[Cite as Baillis v. Ross, 2012-Ohio-705.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97259



                                KEVIN BAILLIS, ET AL.
                                              PLAINTIFFS-APPELLANTS

                                               vs.


                                   LAURA ROSS, ET AL.
                                              DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-754093

        BEFORE: Kilbane, J., Sweeney, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                    February 23, 2012
ATTORNEYS FOR APPELLANTS

Michael E. Cicero
Timothy L. McGarry
Nicola, Gudbranson & Cooper
Republic Building, Suite 1400
25 W. Prospect Avenue
Cleveland, Ohio 44115-1048

ATTORNEYS FOR APPELLEES

Adam M. Fried
Adriann S. Garland
Reminger Co., LPA
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093

       MARY EILEEN KILBANE, J.:

       {¶1}    Plaintiffs-appellants, Kevin Baillis (“Baillis”) and Patricia Novak (“Novak”)

(collectively referred to as plaintiffs), appeal the trial court’s judgment granting the motion to

dismiss of defendants-appellees Laura Ross (“Laura”) and Daniel Beears (“Daniel”) (collectively

referred to as defendants). Finding no merit to the appeal, we affirm.

       {¶2} In April 2011, plaintiffs filed a complaint against Laura, Daniel, Christine Ross,

Lindsay Ross, Jennifer Swanson, Jeffrey Beears, and Lisa Ross, asserting five causes of action.

Plaintiffs alleged that a settlement agreement between plaintiffs, Donald, Laura, and Daniel

provided that the plaintiffs were to receive certain bank accounts and 15 percent of Donald

Beears’s (“Donald”) Trust upon his death, which was in January 2011. Baillis was friends with

Donald for approximately 12 years before Donald’s death. Novak lives with Baillis and was

friends with Donald for approximately 12 years before Donald’s death. Laura and Daniel are
Donald’s children and trustees and co-executors of Donald’s estate.1 The plaintiffs allege that

despite due demand, Laura and Daniel have refused to comply with the agreement. None of the

parties signed this agreement before Donald’s death.

         {¶3} In Count 1 (breach of contract), the plaintiffs alleged that defendants breached the

settlement agreement by failing to comply with its terms. In Count 2 (declaratory judgment),

plaintiffs sought a declaration that the agreement is valid. In Count 3 (reformation of trust),

plaintiffs sought reformation of Donald’s Trust as set forth in the settlement agreement. In

Count 4 (tortious interference with inheritance), plaintiffs alleged that defendants intentionally

interfered with their reasonable expectation to receive certain assets upon Donald’s death by

filing a guardianship action in bad faith. In Count 5 (constructive trust), plaintiffs alleged that

the failure of defendants to convey the assets identified in the agreement constituted a breach of

constructive trust.

         {¶4} In response to the plaintiffs’ complaint, defendants filed a motion to dismiss

pursuant to Civ.R. 12(B)(6), arguing that the filing of a guardianship application to protect an

incompetent adult is not tortious conduct and no agreement was reached that would entitle

plaintiffs to relief. Plaintiffs opposed, arguing that the settlement agreement is enforceable and

Donald’s Trust must be reformed.

         {¶5} The trial court granted the defendants’ motion as to all five counts, stating that

         [i]nasmuch as the Decedent Donald Beears retained the sole discretion to name
         the Plaintiffs as a beneficiary of his Trust, and to name the Plaintiffs as
         beneficiaries on his accounts[,] and the unsigned “Agreement”did not require
         Donald Beears to provide any benefit to Plaintiffs except possibly future
         compensation for services rendered[,] and because [Donald] Beears is no longer
         alive, Plaintiffs claim for reformation must fail as a matter of law.

         1
          Christine Ross, Lindsay Ross, Jennifer Swanson, Jeffrey Beears, and Lisa Ross are Donald’s grandchildren and were
never served with the complaint, as the plaintiffs do not know their whereabouts.
       {¶6}    It is from this order that plaintiffs appeal, raising the following single assignment

of error for review.

                                   ASSIGNMENT OF ERROR

       The trial court incorrectly granted defendants’ [Civ.R.] 12(B)(6) motion to
       dismiss as to all five counts of plaintiffs’ complaint.

                                       Standard of Review

       {¶7}    We apply a de novo standard of review to the trial court’s granting of a motion to

dismiss under Civ.R. 12(B)(6) for failure to state a claim. Perrysburg Twp. v. Rossford, 103

Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp.,

95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review, we must

independently review the record and afford no deference to the trial court’s decision. Herakovic

v. Catholic Diocese of Cleveland, 8th Dist. No. 85467, 2005-Ohio-5985, 2005 WL 3007145, ¶

13.

       {¶8} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to

state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can

prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe

v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

Also, a reviewing court accepts as true all material allegations of the complaint and makes all

reasonable inferences in favor of the plaintiffs. Maitland v. Ford Motor Co., 103 Ohio St.3d 463,

2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11. “[A]s long as there is a set of facts, consistent with the

plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573

N.E.2d 1063 (1991).

                                        Breach of Contract

       {¶9}     Plaintiffs first argue that the trial court erred when it dismissed their complaint

because Donald intended to make certain distributions to them under the settlement agreement

and defendants are in breach of the agreement by failing to abide by its terms.

       {¶10} In the instant case, the settlement agreement resulted from defendants’ concern that

Donald was being exploited by the plaintiffs. Plaintiffs, on the other hand, alleged that Donald

had numerous disputes with defendants regarding his finances and living arrangements.

Subsequently, Baillis filed a conservatorship action, with Donald’s permission, to assist Donald

with his finances.    In response, Laura filed an application for guardianship over Donald.

Plaintiffs claim that there was no hearing in connection with the guardianship proceedings,

instead the parties attempted to negotiate a settlement of their disputes. Donald was represented

by counsel during the conservatorship and guardianship proceedings and during the settlement

negotiations.

       {¶11}     The unsigned settlement agreement provided in pertinent part:

       II. AGREEMENTS WITH REGARD TO DONALD BEEARS’ ASSETS

       A. The intent of this Agreement in regard to [Donald’s] assets is to give him as
       much control and flexibility with his assets as possible, but at the same time to
       protect him.

       ***

       3. [Donald], at his option and/or sole discretion, may designate any one or more
       of his individual accounts, payable on death to any person, party or entity to
       whom he desires.

       ***
         III. THE TRUST ACCOUNT

         ***

         C. [Donald] will enter into an Amendment to Trust that provides for the
         following:

         ***
         5. The Trust shall be further amended to provide the following:

         b) 15% of the residue of Trust shall be distributed to [Novak] and [Baillis], share
         and share alike, per capita, at the sole discretion of [Donald]; [Donald] shall retain
         the right to revoke and/or reduce said distribution to [Baillis] and/or [Novak] at
         his discretion.

         {¶12} Donald died before the agreement was finalized and executed by the parties. The

Ohio Supreme Court has stated:

                 It is preferable that a settlement be memorialized in writing. * * *
         However, an oral settlement agreement may be enforceable if there is sufficient
         particularity to form a binding contract. * * * Terms of an oral contract may be
         determined from “words, deeds, acts, and silence of the parties.” Rutledge v.
         Hoffman (1947), 81 Ohio App. 85, 36 O.O. 405, 75 N.E.2d 608, paragraph one of
         the syllabus * * *. “A contract is generally defined as a promise, or a set of
         promises, actionable upon breach. Essential elements of a contract include an
         offer, acceptance, contractual capacity, consideration (the bargained for legal
         benefit and/or detriment), a manifestation of mutual assent and legality of object
         and of consideration.” Perlmuter Printing Co. v. Strome, Inc. (N.D.Ohio 1976),
         436 F.Supp. 409, 414. A meeting of the minds as to the essential terms of the
         contract is a requirement to enforcing the contract. Kostelnik v. Helper, 96 Ohio
         St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 15-16.

         {¶13} Plaintiffs acknowledge that the parties never executed the settlement agreement,

but argue that Donald certainly intended to make distributions to them. Their complaint alleges

that a settlement agreement between plaintiffs, Donald, Laura, and Daniel provided that the

plaintiffs were to receive certain bank accounts and 15 percent of Donald’s Trust upon his death.

Plaintiffs further allege that defendants breached the agreement by failing to comply with its

terms.
         {¶14} Besides these allegations, there is nothing in the complaint indicating that the

parties agreed to be bound by the terms of the settlement agreement. Specifically, the agreement

was never executed and Donald’s Trust was never amended. If the agreement was executed,

Donald would have had the ability, at his option and sole discretion, to provide limited

distributions to the plaintiffs. However, Donald never changed his Trust, nor did he make

distributions to the plaintiffs. Because there is no settlement agreement, and thus, no binding

contract, plaintiffs are not entitled to relief under a breach of contract theory of recovery.2

         {¶15} Therefore, the trial court properly dismissed plaintiffs’ breach of contract claim.

                                                 Declaratory Judgment

         {¶16} Plaintiffs next argue the trial court erred by dismissing their claim for a declaratory

judgment because they were prohibited from conducting discovery and proving that there was a

settlement agreement that needed to be enforced.

         {¶17} We note that in Fioresi v. State Farm Mut. Auto. Ins. Co., 26 Ohio App.3d 203,

499 N.E.2d 5 (1st Dist. 1985), at the syllabus, the Ohio Supreme Court stated:

         [t]here are only two reasons for dismissing a complaint for declaratory judgment
         pursuant to Civ.R. 12(B)(6): (1) where there is no real controversy or justiciable
         issue between the parties, or (2) where the declaratory judgment will not terminate
         the uncertainty or controversy, under R.C. 2721.07. Otherwise, the court is
         required to issue a judgment declaring the rights or legal relations, or both, of the
         parties, and the court errs when it dismisses the complaint for failure to state a
         claim under Civ.R. 12(B)(6).

See also Gallo v. Westfield Natl. Ins. Co., 8th Dist. No. 91893, 2009-Ohio-1094, 2009 WL

625522.




         2
         It also follows that Baillis should not be required, as the settlement agreement provides, to repay the loan he obtained
from Donald, nor should the bank accounts have to be retitled to Donald’s Trust.
          {¶18} “A ‘controversy’ exists for purposes of a declaratory judgment when there is a

genuine dispute between parties having adverse legal interests of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment.” Wagner v. Cleveland, 62 Ohio App.3d 8, 13,

574 N.E.2d 533 (8th Dist. 1988), citing Burger Brewing Co. v. Liquor Control Comm., 34 Ohio

St.2d 93, 296 N.E.2d 261 (1973).

          {¶19} In the instant case, there is no real controversy between the parties. As stated

above, the settlement agreement was never executed by the parties, and Donald never exercised

his discretion to gift to the plaintiffs. The unsigned agreement gave Donald the option to act.

Because any future action by Donald is impossible, plaintiffs’ claim for declaratory relief cannot

survive. The court can only speculate as to why the settlement agreement was never signed, but

could it be because Donald could “have made the rest of the transfers [to plaintiffs,] except for

the guardianship proceedings filed” and defendants were “concerned that plaintiffs were

financially exploiting Donald”?

          {¶20} Thus, the trial court’s dismissal of plaintiffs’ declaratory judgment claim was

proper.

                                         Trust Reformation

          {¶21} Third, the plaintiffs, relying on R.C. 5804.15, argue that they stated a claim for

reformation because Donald intended to amend his trust to provide a distribution for them.

          {¶22} R.C. 5804.15 provides that “[t]he court may reform the terms of a trust, even if

they are unambiguous, to conform the terms to the settlor’s intention if it is proved by clear and

convincing evidence that both the settlor’s intent and the terms of the trust were affected by a

mistake of fact or law, whether in expression or inducement.” Thus, R.C. 5804.15 requires clear
and convincing proof of both the settlor’s intent and that the terms of the trust were affected by a

mistake of fact or law, whether in expression or inducement.

       {¶23} In Holdren v. Garrett, 10th Dist. No. 09AP-1153, 2011-Ohio-1095, 2011 WL

825637 ¶ 28, the Tenth District Court of Appeals stated:

       [A] mistake of fact exists when one understands a fact to be different than it

       actually is. In re Estate of Werner (1985), 25 Ohio App.3d 31, 34, 495 N.E.2d

       457. ‘A mistake of law occurs where a person is truly acquainted with the

       existence or nonexistence of facts, but is ignorant of, or comes to an erroneous

       conclusion as to, their legal effect.’ Nationwide Life Ins. Co. v. Myers (1980), 67

       Ohio App.2d 98, 102-03, 425 N.E.2d 952, quoting Am. Oil Serv., Inc. v. Hope Oil

       Co. (1965), 233 Cal.App.2d 822, 830, 44 Cal.Rptr. 60.

       {¶24} In the instant case, plaintiffs’ complaint fails to allege facts indicating there was a

mistake of fact or law in Donald’s Trust. Rather, the complaint alleges that the settlement

agreement allowed Donald to give plaintiffs 15 percent of the Trust residue and transfer certain

bank accounts upon death to plaintiffs. Moreover, the language of the unsigned agreement did

not require Donald to provide any benefit to plaintiffs except possible future compensation for

services rendered.

       {¶25} Thus, the trial court properly dismissed plaintiffs’ reformation claim.

                              Tortious Interference with Inheritance

       {¶26} Fourth, plaintiffs argue their tortious interference with inheritance cause of action

was properly pled because they alleged that they had an existence of expectancy based upon the

language of the agreement and defendants interfered with that expectancy by instituting

guardianship proceedings over Donald.
       {¶27} In Firestone v. Galbreath, 67 Ohio St.3d 87, 88, 616 N.E.2d 202 (1993), the Ohio

Supreme Court set forth the elements of the tort of intentional interference with expectancy of

inheritance as follows:

       (1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional
       interference by a defendant(s) with that expectancy of inheritance; (3) conduct by
       the defendant involving the interference which is tortious, such as fraud, duress or
       undue influence, in nature; (4) a reasonable certainty that the expectancy of
       inheritance would have been realized, but for the interference by the defendant;
       and (5) damage resulting from the interference.

       {¶28} In the instant case, the guardianship proceedings were instituted before the parties

began negotiating the settlement agreement. As a result, the defendants did not interfere with

plaintiffs’ expectancy of inheritance. Furthermore, Donald never exercised his discretion to

disburse gifts to the plaintiffs.   Therefore, plaintiffs failed to demonstrate that they had a

reasonable expectation of inheritance and that the expectancy of inheritance would have been

realized, but for the interference by defendants. See Miller v. Keybank Natl. Assn., 8th Dist. No.

86327, 2006-Ohio-1725, 2006 WL 871621 and Werman v. Green ex rel. Estate of Green, 11th

Dist. No. 2000-L-033, 2001 WL 314712 (Mar. 30, 2001) (where this court and the Eleventh

District Court of Appeal found that the plaintiffs had not proven a reasonable expectancy of

inheritance.)

       {¶29} Thus, the trial court properly dismissed plaintiffs’ tortious interference with

inheritance claim.

                                       Constructive Trust

       {¶30} Lastly, plaintiffs argue that the trial court should have allowed their claim for

constructive trust because they alleged the terms of the settlement agreement provided that
Donald intended to give them certain funds, but the agreement could not be executed prior to

Donald’s death.

       {¶31} The Ohio Supreme Court in Estate of Cowling v. Estate of Cowling, 109 Ohio

St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405, ¶ 18, found that

               A constructive trust is a “trust by operation of law which arises contrary to
       intention and in invitum, against one who, by fraud, actual or constructive, by
       duress or abuse of confidence, by commission of wrong, or by any form of
       unconscionable conduct, artifice, concealment, or questionable means, or who in
       any way against equity and good conscience, either has obtained or holds the legal
       right to property which he ought not, in equity and good conscience, hold and
       enjoy. It is raised by equity to satisfy the demands of justice.” (Footnotes
       omitted.) Ferguson v. Owens (1984), 9 Ohio St.3d 223, 225, 9 OBR 565, 459
       N.E.2d 1293, quoting 76 American Jurisprudence 2d (1975) 446, Trusts, Section
       221. A constructive trust is considered a trust because “[w]hen property has been
       acquired in such circumstances that the holder of the legal title may not in good
       conscience retain the beneficial interest, equity converts him into a trustee.” Id.
       at 225, 9 OBR 565, 459 N.E.2d 1293, quoting Beatty v. Guggenheim Exploration
       Co. (1919), 225 N.Y. 380, 386, 389, 122 N.E. 378.

       {¶32} We note that

       [a] constructive trust is an equitable remedy that protects against unjust
       enrichment and is usually invoked when property has been obtained by fraud.
       [Ferguson at 226]; Aetna Life Ins. Co. v. Hussey (1992), 63 Ohio St.3d 640, 642,
       590 N.E.2d 724. “[A] constructive trust may also be imposed where it is against
       the principles of equity that the property be retained by a certain person even
       though the property was acquired without fraud.” [Ferguson at 226], citing 53
       Ohio Jurisprudence 2d (1962) 578-579, Trusts, Section 88; v. Scott on Trusts (3d
       Ed.1967) 3412, Section 462. Id. at ¶ 19.

       The party seeking to have a constructive trust imposed “bears the burden of
       producing clear and convincing evidence justifying it.” Id. at ¶ 20, quoting Univ.
       Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St.3d 118, 2002-Ohio-3748, 772
       N.E.2d 105, paragraph three of the syllabus.

       {¶33} A constructive trust is an equitable remedy to unjust enrichment and fraud. In the

instant case, the plaintiffs failed to raise these claims, and as such, they are not entitled to

equitable relief. As previously stated, Donald retained the sole discretion, at all times, to amend
his Trust, retitle his assets, or make distributions, but did not do so prior to his death.

Consequently, nothing is owed to plaintiffs, even on an equitable basis.

       {¶34} Thus, the trial court properly dismissed plaintiffs’ constructive trust claim.

       {¶35} Accordingly, the sole assignment of error is overruled.

       {¶36} Judgment is affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



JAMES J. SWEENEY, P.J., and LARRY A. JONES, J., CONCUR
