[Cite as Scanlon v. Scanlon , 2012-Ohio-2317.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97739



## JOHN J. SCANLON, ET AL.

PLAINTIFFS-APPELLANTS

vs. 

## PATTI C. SCANLON, ET AL.

DEFENDANTS-APPELLEES



### 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, 2012ATTORNEYS 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. 1111 Superior Avenue Suite 1000 Cleveland, Ohio 44114

FOR APPELLEES

Attorneys for Patti C. Scanlon

Dennis R. Rose Dipali Parikh Hahn Loeser & Parks, L.L.P. 200 Public Square Suite 2800 Cleveland, Ohio 44114

Attorney for Brian Scanlon

Fred W. Friend 2619 Edgerton Road University Heights, Ohio 44118

Colleen Adams, pro se 4330 Peartree Lane, #1 Hemet, California 92544

Kevin Allen, pro se 25 Martin Hanover Township, Pennsylvania 18706

-continuedToby Allen, pro se 11923 CyclopsNorwalk, California 90650

Tonya Allen, pro se 260 Market Street Pittston Township, Pennsylvania 18640

Carla Callahan, pro se 3115 Stoney Ridge Road Avon, Ohio 44011

Annette Hart, pro se 11923 Cyclops Norwalk, California 90650

Kathy Hoff, pro se 5797 Overlook Way North Ridgeville, Ohio 44039

Kerrie Japel, pro se 3147 Stoney Ridge Road Avon, Ohio 44011

Mary Cecile O’Donnell, pro se 2391 Wagar Road Rocky River, Ohio 44116

Neil O’Donnell, pro se 2791 Wagar Road Rocky River, Ohio 44116

Mary Pickett, pro se 3132 Killingworth Lane Twinsburg, Ohio 44087

-continuedCharles Scanlon, pro se 11207 Peony Lane Cleveland, Ohio 44111

Michael Scanlon, pro se 1505 McLean Corner Lane McLean, Virginia 22101

Michael Scanlon, pro se 11207 Peony AvenueCleveland, Ohio 44111

Michael Scanlon, pro se 14613 Orchard Park Cleveland, Ohio 44111

Patrick Daniel Scanlon, pro se 122 Stanley Place LaPlace, Louisiana 70068

Patrick Scanlon, pro se 2361 Hidden Lake Drive Palm Harbor, Florida 34683

Daniel Thompson, pro se 127 Cobblestone Way Novato, California 94945

Delgar Patrick Thompson, pro se 23500 Peartree Lane Hemet, California 92544

Timothy Thompson, pro se 631 A. So. Glassell Orange, California 92865

Mary Kathleen Wilcox, pro se 3 Coventry Drive Haines City, Florida 33844FRANK 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 ananswer 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-claimbecause 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