[Cite as Schwab v. Schwab, 2020-Ohio-560.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MARY LYNN SCHWAB 

 Plaintiff-Appellant 

-vsDAVID A. SCHWAB 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. W. Scott Gwin, J. 

Hon. John W. Wise, J. 

Case No. 2019CA00082 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2018CV00572 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 18, 2020 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

F. THOMAS VICKERS CHARLES V. LONGO 

VICKERS LAW GROUP CO., LPA CHARLES V. LONGO CO., LPA 

1119 Bassett Road 15550 Chagrin Blvd., Suite 320 

Westlake, Ohio 44145 Beachwood, Ohio 44122 
Stark County, Case No. 2019CA00082 2

Wise, J. 

{¶1} Plaintiff-Appellant Mary Lynn Schwab appeals the May 13, 2019, decision 

of the Stark County Court of Common Pleas granting Defendant-Appellee’s Motion to 

Dismiss and directing a verdict in favor of Defendant-Appellee following a jury trial. 

{¶2} Defendant-Appellee in this matter is David A. Schwab. 

STATEMENT OF THE FACTS AND CASE 

{¶3} The relevant facts presented at the jury trial are as follows: 

{¶4} This action arises out of a family Trust which was settled in Florida on April 

1, 1992, by Jerry Schwab. Jerry Schwab's two children, Appellant Mary Lynn Schwab and 

Appellee David A. Schwab are beneficiaries of the Trust and members of the Trust's 3-

member Advisory Committee which provides direction to the Trustee concerning Trust 

assets and is responsible for paying policy premiums. (Tr. II at 163). From April 1, 1992, 

through July 2, 2015, Huntington Bank served as Trustee of the Trust. 

{¶5} The Trust consisted of cash and three (3) life insurance policies. In 2013, 

those insurance policies had a total death benefit of over $9 million. (Tr. II at 163). 

{¶6} In 2012, Appellee David Schwab and Jerry Schwab filed a complaint in 

Collier County, Florida, against Huntington Bank as Trustee, which was subsequently 

removed to the U.S. District Court for the Middle District of Florida. The Florida litigation 

was resolved pursuant to a Settlement Agreement that was executed in July, 2014. All 

activity relating to the Settlement Agreement occurred in Florida. (M.L. Schwab Depo. at 

173-174, 178; see also D. Schwab Aff. ¶ 9). 

{¶7} Appellee received a payment in conjunction with the settlement of the 

Florida litigation, as described in the Settlement Agreement, which consisted of 
Stark County, Case No. 2019CA00082 3

$100,000.00 paid by Huntington Bank to Appellee David Schwab and his father Jerry 

Schwab for reimbursement of a portion of legal fees they incurred in the Florida litigation. 

(D. Schwab 4/4/19 Aff. ¶10). It is undisputed that the Trust did not incur any expense or 

damage as a result of the settlement payment made directly by Huntington Bank. (D. 

Schwab 4/4/19 Aff. ¶10). The $100,000.00 check was issued on July 24, 2014, from 

Huntington Bank to Appellee and his attorney and was drawn from a Huntington Bank 

account ending in 7250. By contrast, the Trust's bank account number at Huntington Bank 

for the accounting period from June 1, 2014, to May 31, 2015, ended in 4903. 

{¶8} As an additional part of the Settlement Agreement, because of certain 

claims in the Florida litigation, Huntington Bank, as Trustee of the Trust, agreed to accept 

$80,000.00 from the Trust as full settlement for its $600,000.00 claim tor reimbursement 

of attorney fees relating to the Florida Litigation and other lawsuits. (See 4/4/19 D. 

Schwab Aff. ¶11; Settlement Agreement). As referenced in the Settlement Agreement, 

Huntington Bank acted as the Trustee of the Trust and in that capacity was solely 

responsible for the payment of the $80,000.00 from Trust assets. (See Settlement 

Agreement, 4/4/19 D. Schwab Aff. ¶12). The Settlement Agreement stated that Appellee 

would "support a request to the Trust Advisory Committee to permit the Trust to borrow 

against or liquidate insurance policies owned by the Trust as needed to generate the cash 

to pay the [$80,000.00 in attorney] Fees." (Settlement Agreement, p. 2, ¶4). To Appellee's 

knowledge and recollection, Huntington Bank did not request approval for the payment of 

attorney fees in the amount of $80,000.00 as described in the Settlement Agreement. 

(4/4/19 D. Schwab Aff. ¶14). Appellant conceded she did not know if Huntington ever 

made such a request. (M.L. Schwab Depo. at 194). Appellee did not receive a direct or 
Stark County, Case No. 2019CA00082 4

indirect benefit from the payment of attorney fees from Trust assets. (4/4/19 D. Schwab 

Aff. ¶13). 

{¶9} It is undisputed that Appellee and Jerry Schwab are both Florida residents. 

{¶10} In approximately 2015, Premier Bank nka Home Savings Bank was 

appointed as Trustee of the Trust. (D. Schwab Depo. at 10). On July 21, 2017, Home 

Savings Bank issued a check in the amount of $12,343.21 payable to "David A Schwab, 

Trustee of Schwab Irrev" in Florida. (See: D. Schwab Depo.) Appellee did not engage in 

any conduct to cause Home Savings Bank to send to him the H.S. Check. (Motion for 

Summary Judgment: Prelac Aff. at ¶4; see also 4/4/19 D. Schwab Aff. ¶4.) At the time, 

the Trust had no bank account within which to deposit the check. The Tax Identification 

Number (ETIN) related to the Trust was not known to Appellee, and he was not able to 

open a bank account into which the H.S. check could be deposited. (4/4/19 D. Schwab 

Aff. ¶5.) 

{¶11} On or about October 10, 2017, after consulting with his parents, the settlors 

of the Trust, Appellee deposited the H.S. check into his personal account in Florida for 

safe keeping, until the Trust ETIN could be discovered to enable the H.S. check funds to 

be deposited in a Trust bank account. (D. Schwab Depo. 30-32; 4/4/19 D. Schwab Aff. ¶ 

16.) 

{¶12} Appellant commenced the instant lawsuit against Appellee on March 15, 

2018, and subsequently filed an Amended Complaint, which alleged that Appellee 

breached fiduciary duties owed to the Trust and to Appellant as a beneficiary of the Trust. 

Specifically, Appellant took issue with Appellee's actions with regard to the $12,343.21 

Home Savings Check; Appellee's receipt of $100,000.00 paid by Huntington Bank as part 
Stark County, Case No. 2019CA00082 5

of his personal Settlement Agreement with Huntington Bank; and Appellee's agreement 

to support Huntington Bank's future request to the Trust Advisory Committee to use Trust 

assets to pay $80,000.00 in attorney fees incurred in various lawsuits involving the Trust. 

(11/14/18 Amended Complaint, ¶¶17, 25, see also M.L. Schwab Depo. 168). Appellant 

sought damages in the amount of $192,343.21 and Appellee's removal from the Advisory 

Committee. (Amended Complaint ¶28.) 

{¶13} On June 27, 2018, Appellee filed a Motion to Dismiss for Lack of Personal 

Jurisdiction. 

{¶14} On July 25, 2018, Appellant filed her opposition to Appellee’s motion to 

dismiss. 

{¶15} On August 9, 2018, the trial court denied the Motion to Dismiss. 

{¶16} On April 8, 2019, Appellee filed a Motion for Summary Judgment arguing 

lack of jurisdiction. 

{¶17} On April 18, 2019, Appellant filed her Brief in Opposition to Appellee’s 

Motion for Summary Judgment. 

{¶18} By Judgment Entry filed May 2, 2019, the trial court denied Appellee’s 

Motion for Summary Judgment. 

{¶19} A jury trial commenced on May 8, 2019, wherein the Plaintiff-Appellant 

called only herself and Defendant-Appellee on cross-examination as witnesses and then 

rested her case. At that time Defendant-Appellee renewed his Motion to Dismiss and 

requested a directed verdict in his favor. 

{¶20} By Judgment Entry filed May 13, 2019, the trial court granted DefendantAppellee’s Motion to Dismiss and directed a verdict in his favor, finding that Plaintiff-
Stark County, Case No. 2019CA00082 6

Appellant failed to establish damages, failed to establish a breach of fiduciary duty, failed 

to establish personal jurisdiction over Defendant-Appellee and failed to establish that 

Stark County was the appropriate venue. 

{¶21} Appellant now appeals, raising the following assignment of error: 

ASSIGNMENT OF ERROR 

{¶22} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION 

TO DISMISS AND DIRECTING A VERDICT IN DEFENDANT'S FAVOR AT THE CLOSE 

OF PLAINTIFF’S CASE DURING A JURY TRIAL WHEN IT CONCLUDED THAT 

PLAINTIFF: 

A. FAILED TO ESTABLISH A BREACH OF FIDUCIARY DUTY; 

B. FAILED TO ESTABLISH DAMAGES; 

C. FAILED TO ESTABLISH PERSONAL JURISDICTION OVER DEFENDANT; 

AND, 

D. FAILED TO ESTABLISH THAT STARK COUNTY WAS THE APPROPRIATE 

VENUE.” 

I. 

{¶23} In her sole assignment of error, Appellant argues that the trial court erred in 

granting Appellee’s motion to dismiss and directing a verdict in Appellee’s favor at the 

close of Appellant’s case. We disagree. 

Personal Jurisdiction 

{¶24} Appellant argues the trial court had personal jurisdiction over Appellee in 

this matter. 
Stark County, Case No. 2019CA00082 7

{¶25} “ ‘Jurisdiction’ means ‘the courts' statutory or constitutional power to 

adjudicate the case.’ The term encompasses jurisdiction over the subject matter and over 

the person. * * * ‘If a court acts without jurisdiction, then any proclamation by that court is 

void.’ ” (Citations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 

N.E.2d 992, ¶ 11. Personal jurisdiction is rudimentary for a court to render a valid 

judgment over a defendant. Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538 

(1984). “This may be acquired either by service of process upon the defendant, the 

voluntary appearance and submission of the defendant or his legal representative, or by 

certain acts of the defendant or his legal representative which constitute an involuntary 

submission to the jurisdiction of the court.” Id.

{¶26} We review the trial court's decision on personal jurisdiction de novo as a 

question of law. Fraley, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, at ¶ 11, citing

Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 

N.E.2d 784, ¶ 27. 

{¶27} The determination whether an Ohio trial court has personal jurisdiction over 

an out-of-state defendant requires a two-step inquiry. First, the court must determine 

whether the defendant's conduct falls within Ohio's long-arm statute or the applicable civil 

rule. If it does, then the court must consider whether the assertion of jurisdiction over the 

nonresident defendant would deprive the defendant of due process of law under the 

Fourteenth Amendment to the United States Constitution. Id. at ¶ 12, citing Kentucky

Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 

(1990). 
Stark County, Case No. 2019CA00082 8

{¶28} Appellant has the burden to establish the trial court's personal jurisdiction. 

Henderson, 6th Dist. Erie Nos. E-12-068, E-13-047, 2014-Ohio-4634, at ¶ 56; Klunk v. 

Hocking Valley Ry. Co., 74 Ohio St. 125, 135, 77 N.E. 752 (1906) (at all times the burden 

of proof remains on the party whose case requires the proof of the fact at issue.). “ ‘Once 

a defendant has challenged the trial court's personal jurisdiction over him or her, the 

plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence.’ ” 

(Citation omitted.) State ex rel. DeWine v. 9150 Group, L.P., 2012-Ohio-3339, 977 N.E.2d 

112, ¶ 8 (9th Dist.). “[P]reponderance of evidence means the greater weight of evidence. 

* * * The greater weight may be infinitesimal, and it is only necessary that it be sufficient 

to destroy the equilibrium.” Travelers' Ins. Co. v. Gath, 118 Ohio St. 257, 261, 160 N.E. 

710 (1928). Preponderance is a higher burden of proof than prima facie, which merely 

means “at first view” appearing sufficient to establish the fact unless rebutted. Carr v. 

Howard, 17 Ohio App.2d 233, 235, 246 N.E.2d 563 (2d Dist.1969).

{¶29} Ohio's long-arm statute, R.C. §2307.382(A)(1), and Civ.R. 4.3(A)(1) permit 

a court to exercise personal jurisdiction over a nonresident defendant and provide for 

service of process to effectuate that jurisdiction Said long-arm statute sets forth specific 

acts by a defendant which give rise to personal jurisdiction: 

§2307.382 Personal jurisdiction

 (A) A court may exercise personal jurisdiction over a person who acts 

directly or by an agent, as to a cause of action arising from the person's: 

 (1) Transacting any business in this state; 

 *** 

 (3) Causing tortious injury by an act or omission in this state; 
Stark County, Case No. 2019CA00082 9

 (4) Causing tortious injury in this state by an act or omission outside 

this state if he regularly does or solicits business, or engages in any other 

persistent course of conduct, or derives substantial revenue from goods 

used or consumed or services rendered in this state; 

 *** 

 (6) Causing tortious injury in this state to any person by an act 

outside this state committed with the purpose of injuring persons, when he 

might reasonably have expected that some person would be injured thereby 

in this state; 

 *** 

{¶30} Civ.R. 4.3, the corresponding rules for service of process upon

nonresidents, states: 

 (A) *** Service of process may be made outside of this state, as 

provided in this rule, in any action in this state, upon a person who, at the 

time of service of process, is a nonresident of this state or is a resident of 

this state who is absent from this state. “Person” includes an individual, an 

individual's executor, administrator, or other personal representative, or a 

corporation, partnership, association, or any other legal or commercial 

entity, who, acting directly or by an agent, has caused an event to occur out 

of which the claim that is the subject of the complaint arose, from the 

person's: 

 (1) Transacting any business in this state; 

 *** 
Stark County, Case No. 2019CA00082 10

 (9) Causing tortious injury in this state to any person by an act 

outside this state committed with the purpose of injuring persons, when the 

person to be served might reasonably have expected that some person 

would be injured by the act in this state[.] 

{¶31} As the Supreme Court of Ohio emphasized, both the statute and the rule 

are broadly worded and permit jurisdiction over any defendant who is “transacting any 

business” in Ohio. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear Inc., 53 Ohio St.3d 

73, 75, 559 N.E.2d 477 (1990). Quoting Black's Law Dictionary (5th Ed.1979), the court 

in Kentucky Oaks stated the term “transact” “ ‘means to prosecute negotiations; to carry 

on business; to have dealings,’ ” “ ‘but it is a broader term than the word “contract” and 

may involve business negotiations which have been either wholly or partly brought to a 

conclusion.’ ” (Emphasis sic.) Id. Whether a defendant has transacted any business in 

Ohio is determined on the particular facts of the case. United States Sprint 

Communications Co. at 185, 624 N.E.2d 1048. 

{¶32} Here, Appellant’s sole argument in support of personal jurisdiction is based 

on the Home Savings check which was sent to Appellee at his home in Fort Myers, 

Florida, and then deposited into a Florida bank account. The check itself had an address 

of St. Clairsville, Ohio, endorsed on it. 

{¶33} Upon review, we do not find the mere act of receiving a check, which 

contained an Ohio address and may or may not have been sent from Ohio, by Appellee 

in Florida, without evidence of any solicitation or further involvement by Appellee, 

amounts to “transacting business” in the state of Ohio for purposes of exercising personal 

jurisdiction over Appellee pursuant to Ohio’s long-arm statute.
Stark County, Case No. 2019CA00082 11

Venue 

{¶34} Civ.R. 3(C) provides in pertinent part:

 Any action may be venued, commenced, and decided in any court in 

any county. When applied to county and municipal courts, “county,” as used 

in this rule, shall be construed, where appropriate, as the territorial limits of 

those courts. Proper venue lies in any one or more of the following counties:

 (1) The county in which the defendant resides;

 (2) The county in which the defendant has his or her principal place 

of business;

 (3) A county in which the defendant conducted activity that gave rise 

to the claim for relief;

 (4) A county in which a public officer maintains his or her principal 

office if suit is brought against the officer in the officer's official capacity;

 (5) A county in which the property, or any part of the property, is 

situated if the subject of the action is real property or tangible personal 

property;

 (6) The county in which all or part of the claim for relief arose; or, if 

the claim for relief arose upon a river, other watercourse, or a road, that is 

the boundary of the state, or of two or more counties, in any county 

bordering on the river, watercourse, or road, and opposite to the place 

where the claim for relief arose;

 (7) In actions described in Civ.R. 4.3, in the county where plaintiff 

resides;
Stark County, Case No. 2019CA00082 12

 (8) In an action against an executor, administrator, guardian, or 

trustee, in the county in which the executor, administrator, guardian, or 

trustee was appointed;

 ****

{¶35} Upon review, we find that none of the above factors apply in the instant 

case.

{¶36} While Appellant attempts to argue that venue is proper under (7), we find 

that said Civ.R. 4.3(A)(1) authorizes out-of-state service of process on a defendant who 

is “[t]ransacting any business in this state[.]” As Appellee in this matter was not transacting 

business in Ohio, Civ.R. 4.3(A)(1) is not applicable.

Breach of Fiduciary Duty 

{¶37} No testimony or evidence was presented with regard to what fiduciary duties 

were owed, if any, and/or how and when said duties were breached. 

Damages 

{¶38} Upon review we find Appellant failed to produce any evidence in support of 

claim for damages. There is no evidence that the Trust suffered any damages as a result 

of the Florida litigation and resulting settlement. 

{¶39} In light of the above, we find no error in the trial court’s decision directing a 

verdict in favor of Appellee and dismissing Appellant’s action.

 
Stark County, Case No. 2019CA00082 13

{¶40} Appellant’s assignment of error is overruled. 

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

Stark County, Ohio, is affirmed. 

By: Wise, J. 

Hoffman, P. J., and 

Gwin, J., concur. 

JWW/d 0205