Opinion
No. 97739
05-24-2012
JOHN J. SCANLON, ET AL. PLAINTIFFS-APPELLANTS v. PATTI C. SCANLON, ET AL. DEFENDANTS-APPELLEES
ATTORNEYS FOR APPELLANTS For John J. Scanlon and Neil J. O'Donnell, III Ryan P. Nowlin David M. Lenz James D. Vail Schneider, Smeltz, Ranney & LaFond, P.L.L. FOR APPELLEES Attorneys for Patti C. Scanlon Dennis R. Rose Dipali Parikh Hahn Loeser & Parks, L.L.P. Attorney for Brian Scanlon Fred W. Friend Colleen Adams, pro se Kevin Allen, pro se Toby Allen, pro se Tonya Allen, pro se Carla Callahan, pro se Annette Hart, pro se Kathy Hoff, pro se Kerrie Japel, pro se Mary Cecile O'Donnell, pro se Neil O'Donnell, pro se Mary Pickett, pro se Charles Scanlon, pro se Michael Scanlon, pro se Michael Scanlon, pro se Michael Scanlon, pro se Patrick Daniel Scanlon, pro se Patrick Scanlon, pro se Daniel Thompson, pro se Delgar Patrick Thompson, pro se Timothy Thompson, pro se Mary Kathleen Wilcox, pro se
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-659632
BEFORE: Celebrezze, P.J., Sweeney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 24, 2012
ATTORNEYS FOR APPELLANTS
For John J. Scanlon and Neil J. O'Donnell, III
Ryan P. Nowlin
David M. Lenz
James D. Vail
Schneider, Smeltz, Ranney & LaFond, P.L.L.
FOR APPELLEES
Attorneys for Patti C. Scanlon
Dennis R. Rose
Dipali Parikh
Hahn Loeser & Parks, L.L.P.
Attorney for Brian Scanlon
Fred W. Friend
Colleen Adams, pro se
Kevin Allen, pro se
Toby Allen, pro se
Tonya Allen, pro se
Carla Callahan, pro se
Annette Hart, pro se
Kathy Hoff, pro se
Kerrie Japel, pro se
Mary Cecile O'Donnell, pro se
Neil O'Donnell, pro se
Mary Pickett, pro se
Charles Scanlon, pro se
Michael Scanlon, pro se
Michael Scanlon, pro se
Michael Scanlon, pro se
Patrick Daniel Scanlon, pro se
Patrick Scanlon, pro se
Daniel Thompson, pro se
Delgar Patrick Thompson, pro se
Timothy Thompson, pro se
Mary Kathleen Wilcox, pro se FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellants, several remainder beneficiaries of the Thomas P. Scanlon Family Trust, bring the instant appeal following a grant of summary judgment in favor of Patti Scanlon, executor of the estate of Gertrude Scanlon. The remainder beneficiaries filed suit seeking the return of trust assets they alleged were wrongfully removed. This court, however, is without jurisdiction to decide the matter because there is no final, appealable order in this case.
{¶2} Thomas P. Scanlon established a pour-over trust, which would receive substantial assets at his death. The trust was named the Thomas P. Scanlon Family Trust and was established on October 25, 1990. Thomas P. Scanlon died on February 19, 2005, and his wife, Gertrude Scanlon, became trustee and sole present-interest beneficiary. The trust also named several remainder beneficiaries and specified a percentage of the trust assets they should receive upon Gertrude's death. These beneficiaries included Michael T. Scanlon, John J. Scanlon, Cecile O'Donnell, other relatives of Thomas P. Scanlon, a number of children of these individuals, and Gertrude's son from a previous relationship.
{¶3} Gertrude had withdrawn the entire trust principal by the time of her death on September 25, 2007, and the assets formerly held by the trust were divided as specified by her estate documents.
{¶4} Upon discovering that the trust was empty, John J. Scanlon and Cecile O'Donnell filed suit on May 15, 2008, requesting the return of trust assets from Gertrude's estate and for an accounting. Patti Scanlon, Gertrude's executrix, filed an answer and motion for summary judgment. Following the submission of dispositive motions, Patrick Scanlon, the son of now-deceased Michael T. Scanlon, sought leave to file a cross-claim against Patti as executrix. The trial court granted leave, and Patrick's cross-claim was accepted.
{¶5} Patti did not respond to Patrick's cross-claim in a timely manner and filed a late answer with a request for leave to file an answer. This request for leave was granted on the same day the court granted her motion for summary judgment. After giving reasons for its decision, the trial court's journal entry states "Defendant Patti C. Scanlon's, as executrix of the estate of Gertrude I. Scanlon, deceased, motion for summary judgment granted."
{¶6} This court's jurisdiction is limited to reviewing final, appealable orders. Section 3(B)(2), Article IV of the Ohio Constitution.
A final order "is one disposing of the whole case or some separate and distinct branch thereof." Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303, 306, 272 N.E.2d 127 (1971). A trial court's order is final and appealable only if it satisfies the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B). Braelinn Green Condominium Unit Owner's Assn. v. Italia Homes, Inc., 10th Dist. No. 09AP-1144, 2010-Ohio-2371, ¶ 7, citing Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999).Relevant here, Civ.R. 54(B) provides that
[w]hen more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.
{¶7} The journal entry disposing of this case does not address Patrick's cross-claim. No motion for summary judgment was pending on Patrick's cross-claim because it was filed after Patti's motion for summary judgment was submitted. Therefore, the trial court's order granting summary judgment cannot be construed to apply to Patrick's cross-claim.
{¶8} The order appealed does not dispose of all claims in the case or otherwise note why there should be no just reason for delay. Therefore, this court lacks a final, appealable order from which jurisdiction flows. Whitaker-Merrell Co. v. Geupel Const. Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).
{¶9} Accordingly, the appeal is dismissed.
It is ordered that appellees recover of appellants costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANK D. CELEBREZZE, JR., PRESIDING JUDGE JAMES J. SWEENEY, J., and
EILEEN A. GALLAGHER, J., CONCUR