[Cite as Mackay v. Thomas, 2018-Ohio-4154.]


                                     COURT OF APPEALS
                                TUSCARAWAS COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


KERISSA MACKAY, Parent and Natural               JUDGES:
Guardian of CONRAD MACKAY and                    Hon. John W. Wise, P. J.
ROWAN MACKAY, et al.                             Hon. Patricia A. Delaney, J.
                                                 Hon. Craig R. Baldwin, J.
        Plaintiffs-Appellants

-vs-
                                                 Case No. 2018 AP 03 0012
CLARA THOMAS

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Case No. 2017 CT 04 0253


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       October 11, 2018



APPEARANCES:

For Plaintiffs-Appellants                     For Defendant-Appellee

JUDE B. STREB                                 DENNIS R. ROSE
JUSTIN S. GREENFELDER                         HAHN LOESER & PARKS, LLP
BUCKINGHAM, DOOLITTLE &                       200 Public Square
BURROUGHS, LLC                                Suite 2800
4518 Fulton Drive, NW, Suite 200              Cleveland, Ohio 44114-2316
P. O. Box 35548
Canton, Ohio 44735-5548
Tuscarawas County, Case No. 2018 AP 03 0012                                            2

Wise, P. J.

        {¶1}   Plaintiffs-Appellants Kerissa Mackay, Parent and Natural Guardian of

Conrad Mackay and Rowan Mackay, and Katherine Mackay appeal the February 14,

2018, Judgment Entry entered by the Tuscarawas County Court of Common Pleas,

granting the Motion for Judgment on the Pleadings filed by Defendant-Appellee Clara

Thomas.

                           STATEMENT OF THE CASE AND FACTS

        {¶2}   The relevant facts and procedural history are as follows:

        {¶3}   On April 13, 2017, Plaintiffs-Appellants, Kerissa Mackay, Parent and

Natural Guardian of Conrad Mackay and Rowan Mackay, and Katherine Mackay

("Appellants'')1 filed their Complaint against Defendant-Appellee Clara Thomas

("Appellee") in the Tuscarawas County Court of Common Pleas. In said Complaint,

Appellants asserted claims for intentional interference with expectancy of inheritance,

constructive trust, declaratory judgment, and accounting.

        {¶4}   On June 13, 2017, Appellee filed her answer to Appellants' Complaint.

        {¶5}   On July 7, 2017, Appellants filed an Amended Complaint, adding claims for

fraudulent transfer and punitive damages, to which Appellee filed her answer on July 19,

2017.

        {¶6}   In their Amended Complaint, Appellants allege the following facts:




1  Katherine Mackay is the great-niece, and Conrad and Rowan Mackay are the great-
great nephew and great-great nice of William J. Thomas, the decedent in this matter.
Tuscarawas County, Case No. 2018 AP 03 0012                                              3


       {¶7}   William Thomas and Clara Thomas were married on April 20, 1991.

(Amended Complaint ¶ 9). They remained married until William passed away on

September 9, 2014. (AC ¶10).

       {¶8}   In 2010, William and Clara, residents of Florida, engaged Andre Patrone, a

licensed attorney in Florida, to draft wills and trusts for them (the "2010 Will" and "2010

Trust," respectively). Under the terms of the 2010 Will and the 2010 Trust, if William was

survived by Clara, all of his interest in the marital residence and the tangible property

would pass to Clara outright, and all of William's other assets would pass to a Trust for

Clara's benefit. (AC ¶¶ 12-14).

       {¶9}   In June or July 2014, William discussed a new estate plan with Attorney

Edd K. Wright. The proposed new estate plan was to be comprised of a new will and trust.

(AC ¶21).

       {¶10} On or about July 18, 2014, Attorney Wright brought a draft of the 2014 Will

to Union Hospital in Dover, Ohio, where William was hospitalized. (AC ¶24). Due to a

quarantine, Attorney Wright was not permitted by the medical professionals to see

William. (AC ¶25). Attorney Wright handed the 2014 draft will to a nurse, with instructions

to give the document to William (AC ¶26).

       {¶11} Appellee Clara Thomas acknowledged that she reviewed the 2014 draft Will

and destroyed it, stating it contained factual inaccuracies. (AC ¶28).

       {¶12} Attorney Wright had not yet drafted a new Trust document. (AC ¶¶29-30).

       {¶13} William Thomas died on September 9, 2014. (AC ¶41).

       {¶14} After William’s death, the 2010 Will was admitted to the Probate Court in

Lee County, Florida, Case Number 14-CP-2189. (AC ¶44). Pursuant to the terms of the
Tuscarawas County, Case No. 2018 AP 03 0012                                           4


2010 Will, the Decedent's probate assets were transferred to the 2010 Trust, for the

benefit of Appellee Clara Thomas, and withdrawn from the Trust, pursuant to the power

of withdrawal that was granted to her in the Trust. (AC ¶¶43-44).



      {¶15} On October 18, 2017, Appellee filed a Motion for Judgment on the

Pleadings requesting the trial court to dismiss Appellants' First Amended Complaint,

claiming that Appellants' claims were barred by both Ohio and Florida law.

      {¶16} Appellee's principal arguments were that the pour-over will drafted by the

decedent's attorney in 2014, which was later destroyed by Appellee, did not meet the

basic requirements of Ohio law and that Appellants' intentional interference with

expectancy of inheritance claim constituted a "collateral action" barred by Ohio Law and

the Florida Probate Code.

      {¶17} On November 6, 2017, Appellants filed their opposition to Appellee's Motion

for Judgment on the Pleadings.

      {¶18} On February 14, 2018, following an oral hearing, the trial court issued its

Judgment Entry granting Appellee's Motion for Judgment on the Pleadings.

      {¶19} Appellant now appeals, assigning the following assignments of error:

                                 ASSIGNMENTS OF ERROR

      {¶20} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING

THAT THE APPELLANT'S FIRST AMENDED COMPLAINT FAILS TO ALLEGE FACTS

THAT WOULD ENTITLE APPELLANTS TO RELIEF UNDER AN INTENTIONAL

INTERFERENCE WITH EXPECTANCY OF INHERITANCE CLAIM BECAUSE THE

TRIAL COURT FAILED TO CONSTRUE ALL FACTS ALLEGED IN APPELLANTS'
Tuscarawas County, Case No. 2018 AP 03 0012                         5


FIRST AMENDED COMPLAINT AS TRUE AND TO DRAW ALL REASONABLE

INFERENCES THEREFROM IN FAVOR OF APPELLANTS.

     {¶21} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING

THAT APPELLANTS' CLAIMS HAD ALREADY BEEN DECIDED BY THE FLORIDA

PROBATE COURT AND WERE A MATTER OF RES JUDICATA, BECAUSE THE TRIAL

COURT MISAPPLIED FLORIDA LAW AND THE ISSUES IN THIS CASE WERE NOT

AND COULD NOT HAVE BEEN ADJUDICATED BY THE FLORIDA COURTS.

     “1. APPELLANTS LACKED STANDING AND, THEREFORE, DID NOT HAVE AN

     ADEQUATE REMEDY FOR THEIR CLAIMS IN THE FLORIDA PROBATE

     COURT.

     “2. APPELLANTS LACKED STANDING AND, THEREFORE, DID NOT HAVE AN

     ADEQUATE REMEDY TO PURSUE THEIR CLAIMS IN THE FLORIDA

     PROBATE COURT

     “3. THE TRIAL COURT IMPROPERLY FOUND THAT APPELLANTS' CLAIMS

     WERE BARRED BY THE FLORIDA PROBATE COURT AND WERE A MATTER

     OF RES JUDICATA

     “4. FLORIDA PROBATE LAW DOES NOT APPLY TO THE NON-PROBATE

     TRUST ASSETS WHICH APPELLANTS WERE TO HAVE INHERITED FROM

     THE DECEDENT.

     {¶22} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING

THAT APPELLEE WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON

APPELLANTS' REMAINING CLAIMS FOR THE ALLEGED REASON THAT THOSE
Tuscarawas County, Case No. 2018 AP 03 0012                                               6


CLAIMS ARE DEPENDENT UPON APPELLANTS' INTENTIONAL INTERFERENCE

WITH EXPECTANCY OF INHERITANCE CLAIM.”

                                                I.

       {¶23} In their first assignment of error, Appellants argue the trial court erred in

finding that their amended complaint did not allege sufficient facts to support a claim for

intentional interference with the expectancy of inheritance. We disagree.

                                       Standard of Review

       {¶24} Civ.R. 12(C) provides, “After the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings.” The standard

of review of the grant of a motion for judgment on the pleadings is the same as the

standard of review for a Civ.R. 12(B)(6) motion. As the reviewing court, our review of a

dismissal of a complaint based upon a judgment on the pleadings requires us to

independently review the complaint and determine if the dismissal was appropriate. Rich

v. Erie County Department of Human Resources, 106 Ohio App.3d 88, 91, 665 N.E.2d

278 (1995). A reviewing court need not defer to the trial court's decision in such cases.

Id.

       {¶25} A motion for a judgment on the pleadings, pursuant to Civ.R. 12(C),

presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 165–166, 297

N.E.2d 113 (1973). The determination of a motion under Civ.R. 12(C) is restricted solely

to the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor. Id. Evidence in any form cannot be considered. Conant v. Johnson,

1 Ohio App.2d 133, 135, 204 N.E.2d 100 (1964). In considering such a motion, one must
Tuscarawas County, Case No. 2018 AP 03 0012                                               7

look only to the face of the complaint. Nelson v. Pleasant, 73 Ohio App.3d 479, 597

N.E.2d 1137 (1991).

                     Intentional Interference with Expectancy of Inheritance

       {¶26} The Ohio Supreme Court has held that any person who can prove the

elements of intentional interference with expectancy of inheritance has the right to

maintain that cause of action. Firestone v. Galbreath, 67 Ohio St.3d 87, 88, 616 N.E.2d

202 (1993). The elements of intentional interference with an expectancy of inheritance

are: (1) the plaintiff's expectancy of an inheritance; (2) the defendant's intentional

interference with that expectancy of inheritance; (3) conduct by the defendant involving

the interference that is tortious in nature, such as fraud, duress or undue influence; (4) a

reasonable certainty that the expectancy of inheritance would have been realized, but for

the defendant's interference; and (5) damage resulting from the interference. Id.

       {¶27} In the case sub judice, Appellants allege that, but for Appellee's actions, the

Decedent would have executed an additional estate plan document, specifically the Will

drafted in 2014.

       {¶28} The Will, which the decedent would have purportedly executed, contained

the following clause:

                                             Item III

              All of the remainder of my estate, both real and personal,

       wheresoever the same may be situated, I bequeath to the William J.

       Thomas Trust as drafted by my attorney E.K. Wright in New Philadelphia,

       Ohio. (emphasis in original).
Tuscarawas County, Case No. 2018 AP 03 0012                                                8


      {¶29} However, there is no allegation in the Complaint that the Appellee interfered

with the drafting, review or execution of the 2014 William J. Thomas Trust. Appellants

have, in fact, conceded that the Trust was never drafted. (AC §29).

      {¶30} R.C. §2107.63, which is also referred to as Ohio’s pour-over clause statute,

provides:

             A testator may by will devise, bequeath, or appoint real or personal

      property or any interest in real or personal property to a trustee of a trust that

      is evidenced by a written instrument signed by the testator or any other

      settlor either before or on the same date of the execution of the will of the

      testator, that is identified in the will, and that has been signed, or is signed

      at any time after the execution of the testator's will, by the trustee or trustees

      identified in the will or their successors or by any other person lawfully

      serving, by court appointment or otherwise, as a trustee.

      {¶31} A pour-over clause is a provision in a will directing the distribution of a

decedent's property into a trust. Black's Law Dictionary 608 (5th Ed. 1983).

      {¶32} As set forth above, R.C. § 2107.63 , specifically requires that a trust be

“evidence by a written instrument.”

      {¶33} As such, Appellants arguments that Atty. Wright was still working on, but

had not yet drafted the trust agreement, and/or that the decedent had created an oral

trust, fail as same do not comply with the requirements that the trust be written and

executed simultaneously with or prior to the will containing a pour-over clause.
Tuscarawas County, Case No. 2018 AP 03 0012                                               9


       {¶34} Inasmuch as the ‘pour-over’ bequest to the living trust fails, the residue

would descend as intestate property in the absence of something to save it. Knowles v.

Knowles, 4 Ohio Misc. 153, 160–61, 212 N.E.2d 88, 94 (P.C.1965).

       {¶35} Here, because the residue and remainder of the estate could not be

‘poured-over’ to the living trust, the residuary estate would descend to the next-of-kin, in

this case Appellee as the surviving spouse, pursuant to the intestate rules of descent and

distribution as set forth in R.C. 2105.06(E).

       {¶36} Having found that even “but for” Appellee’s alleged actions in preventing the

execution of the 2014 Will, the trust bequest would have passed to Appellee, we find that

Appellants cannot meet their burden of showing “a reasonable certainty that the

expectancy of inheritance would have been realized, but for the defendant's interference.”

       {¶37} Based on the foregoing, we find that Appellee was entitled to judgment on

the pleadings. Appellant’s first assignment of error is overruled.

                                                II.

       {¶38} In their second assignment of error, Appellants argue the trial court erred in

finding that their claims were barred by the doctrine of res judicata.

       {¶39} Inasmuch as our holding on the first assignment of error is dispositive of the

case, we find that such holding renders Appellants’ second assignment of error moot and

we will not address same.

                                                III.

       {¶40} In Appellants’ third assignment or error, they argue the trial court erred in

dismissing their remaining claims. We disagree.
Tuscarawas County, Case No. 2018 AP 03 0012                                                  10


       {¶41} Appellants concede that the remaining claims in their amended complaint

were dependent upon Appellants’ claim for intentional interference with expectancy of

inheritance.

       {¶42} Having found above that Appellants’ claim for intentional interference with

expectancy of inheritance fails, we find that Appellants’ derivative claims likewise fail.

       {¶43} Appellants’ third assignment of error is overruled.

       {¶44} For the foregoing reasons, the judgment of the Court of Common Pleas of

Tuscarawas County, Ohio, is affirmed.


By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.



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