[Cite as Revocable Living Trust of Mandel v. Lake Erie Util. Co., 2012-Ohio-5718.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97859

REVOCABLE LIVING TRUST OF 

STEWART I. MANDEL

PLAINTIFF-APPELLANT 

vs. 

LAKE ERIE UTILITIES CO., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED IN PART, REVERSED 

IN PART, AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Probate Division 

Case No. 10 ADV 163717 

BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J. 
RELEASED AND JOURNALIZED: December 6, 2012 

ATTORNEY FOR APPELLANT

Orville E. Stifel, II 

5310 Franklin Boulevard 

P.O. Box 602780 

Cleveland, Ohio 44102 

ATTORNEYS FOR APPELLEES

For Lake Erie Utilities Co.

James C. Barney 

Kocher & Gillum 

101 1/2 Madison Street 

Port Clinton, Ohio 43452 

For Burgundy Bay Association, Inc.

David M. Buda 

Burgundy Bay Association, Inc. 

35 East Livingston Avenue 

Columbus, Ohio 43215 

For Harry Giltz, Sr.

Harry Giltz, Sr., pro se 

4835 Munson 

Canton, Ohio 44718 

For David W. Thompson, et al.

David Thompson, pro se 

9967 Sage Creek Drive 

Galena, Ohio 43021 

For Trust Beneficiaries

Joseph Rosalina 

Russo, Rosalina & Co., L.P.A. 

691 Richmond Road 

Richmond Heights, Ohio 44143

FRANK D. CELEBREZZE, JR., J.: 
{¶1} Appellant, Morris Mandel, trustee of the Revocable Living Trust of 

Stewart I. Mandel, brings this appeal following the dismissal of his 

declaratory judgment action pursuant to Civ.R. 12(b)(1) and 12(b)(6). The 

trustee argues that he has standing to bring this contract dispute, the 

Cuyahoga County Probate Court has jurisdiction to hear it, and Cuyahoga 

county is the proper venue. After a thorough review of the record and law, 

we affirm in part, reverse in part, and remand. 

I. Factual and Procedural History 

{¶2} Stewart Mandel established an inter vivos trust in 1996. The 

trust instrument named Stewart trustee during his life and Farmer’s Trust 

Company (“Farmers”) as successor trustee on Stewart’s death. Morris was 

also tasked with serving as trustee during Stewart’s life if Stewart ever 

became incapacitated. Morris was also named as a trust protector with the 

power to supervise and remove Farmers and appoint a successor trustee after 

Stewart’s death. 

{¶3} Stewart owned three parcels of land on Middle Bass Island in 

Ottawa county, Ohio, and on November 19, 1991, he entered into an 

assessment agreement with Burgundy Bay Association, Inc. (“Burgundy 

Bay”), a homeowners’ association, and Lake Erie Utility Company (“Lake 

Erie”), the utility company servicing the neighborhood. The agreement 

allowed homeowners with undeveloped contiguous parcels to defer or waive 
assessments1 on those parcels so long as they remained undeveloped. In 

1996, the properties were transferred to the trust. The agreement stated it 

was binding on successors and assignees. 

{¶4} Following Stewart’s death in 2010, Farmers administered the 

trust while Stewart’s estate was probated. Morris asserts in his opposition 

to appellees’ motion to dismiss that following the close of the probate estate, 

he exercised his powers as trust protector to remove Farmers and appoint 

himself as successor trustee. 

{¶5} While Farmers was trustee, it determined to sell the three parcels 

on Middle Bass Island and market the two undeveloped parcels separately as 

land capable of development. Burgundy Bay and Lake Erie filed liens 

against the property for past assessments plus interest, which it alleged 

became due when Farmers intended to sell the parcels as separate lots. 

{¶6} On November 24, 2010, Morris brought a declaratory judgment 

action in the Cuyahoga County Probate Court claiming to be brought in his 

capacity as trustee as well as in his individual capacity as beneficiary of the 

trust. He sought construction of the assessment agreement as well as 

damages for slander of title and an injunction to remove the liens that created 

a cloud on the title. 

 1

 This is the crux of the dispute in this case. 
{¶7} From various title records submitted by appellees, Morris appears 

not to have been trustee at the time the suit was filed. Morris filed a notice 

of successor trustee effective May 2, 2011, indicating he removed Farmers 

and named himself third successor trustee on April 29, 2011. In the mean 

time, Burgundy Bay and Lake Erie used this apparent lack of authority to 

attempt to have the case terminated for lack of standing by filing a motion to 

dismiss or in the alternative to transfer venue. They also argued that the 

probate court lacked subject matter jurisdiction and that venue did not lie in 

Cuyahoga county. Morris opposed the motion, and the trial court allowed 

significant briefing and a hearing on the issues raised by appellees.2

{¶8} On December 22, 2011, the trial court granted the motion to 

dismiss filed by Burgundy Bay and Lake Erie, finding that Morris did not 

have standing because he was not the trustee at the time the action was filed, 

the probate court did not have subject matter jurisdiction over what 

amounted to a contract dispute, and venue was appropriate in Ottawa, not 

Cuyahoga, county. The probate court dismissed the case, but the journal 

entry memorializing its decision did not indicate whether the dismissal was 

with or without prejudice. Morris, as trustee, timely appealed that decision to 

this court for review, assigning four errors: 

 2

 The trial court provided the parties with an opportunity for a hearing, but both parties 

decided to rely on significant briefing instead. 
I. The trial court erred in holding that Morris Mandel lacked 

standing to maintain the underlying lawsuit. 

II. The trial court erred in holding that it lacked jurisdiction 

over the subject matter of the complaint. 

III. The trial court erred in rendering a purely advisory opinion 

regarding venue, opining that, “Cuyahoga county is not the 

proper venue.” 

IV. The trial court erred in failing to specify that its dismissal 

was a dismissal without prejudice. 

II. Law and Analysis 

{¶9} The trustee first argues that he had standing to institute the 

declaratory judgment actions against appellees. 

A. Standing 

{¶10} “Standing determines ‘whether a litigant is entitled to have a 

court determine the merits of the issues presented.’ Whether a party has 

established standing to bring an action before the court is a question of law, 

which we review de novo.” (Citations omitted.) Moore v. Middletown, Ohio 

133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20. 

“To succeed in establishing standing, plaintiffs must show that 

they suffered (1) an injury that is (2) fairly traceable to the 

defendant’s allegedly unlawful conduct, and (3) likely to be 

redressed by the requested relief. These three factors — injury, 

causation, and redressability — constitute ‘the irreducible 

constitutional minimum of standing.’” (Citations omitted.) 

Id. at ¶ 22. 
{¶11} “A motion to dismiss for lack of standing is treated as a motion to 

dismiss pursuant to Civ.R. 12.” Estate of Okos v. Farley, 6th Dist. No. 

L-03-1343, 2004-Ohio-2882, ¶ 7, citing A-1 Nursing Care of Cleveland, Inc. v. 

Florence Nightingale Nursing, Inc., 97 Ohio App.3d 623, 626-627, 647 N.E.2d 

222 (8th Dist.1994). Specifically, a lack of standing may properly be raised 

in a motion to dismiss premised on Civ.R. 12(B)(6). Culler v. Culler, 5th 

Dist. No. 2010 CA 0042, 2010-Ohio-5095. However, the court must confine 

its analysis of the standing issue to the complaint, just as it must for all 

motions to dismiss for failure to state a claim, unless the court converts the 

motion to one for summary judgment and gives the parties proper notice. Id.

at ¶ 18. 

{¶12} Here, the complaint and amended complaint both stated Morris 

was the trustee of the Mandel Trust at the time the action was filed. They 

also stated Morris was a present interest trust beneficiary. Evidence that 

Morris was not the trustee at the time the complaint was filed was submitted, 

but the trial court could not rely on this information unless it converted the 

motion to one for summary judgment. The court must presume as true 

factual allegations made in the complaint. Id. 

{¶13} Therefore, taking the allegations in the complaint as true, Morris 

had standing to bring suit. There is no evidence in the record that the trial 

court converted the motion to dismiss to one for summary judgment, even 
though the court allowed ample opportunity to brief the issue and allowed the 

parties to submit evidence during a hearing. 

{¶14} Even if evidence was submitted showing that Morris was not the 

trustee at the time, the action was properly filed before the trial court 

because Morris still had standing to bring the action in his individual 

capacity. Papiernik v. Papiernik, 45 Ohio St.3d 337, 544 N.E.2d 664 (1989). 

Here, we find Morris, as a present trust beneficiary, had an interest in the 

contract dispute. Burgundy Bay and Lake Erie had filed liens against 

property of the trust, which significantly affected the property’s value. This 

injury would be borne directly by Morris because of the diminution in value of 

trust assets. This injury is directly traceable to the actions of Burgundy Bay 

and Lake Erie. Finally, the declaratory judgment action would provide relief 

to Morris. The three factors of standing — injury, causation, and 

redressability — are all met in this case. 

{¶15} While this may raise issues regarding the joining of necessary 

parties if the actual trustee was not joined in the suit, at the time the trial 

court dismissed the action, Morris had affirmatively demonstrated that he 

was the trustee. A line of cases involving a different area of jurisprudence in 

this jurisdiction holds that the question of standing must be examined at the 

time the complaint is filed. Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 

91675, 2009-Ohio-1092; CitiMortgage, Inc. v. Slack, 8th Dist. No. 94899, 
2011-Ohio-613, ¶ 10; Deutsche Bank Natl. Trust Co. v. Triplett, 8th Dist. No. 

94924, 2011-Ohio-478. See also Fed. Home Loan Mtge. Corp. v. 

Schwartzwald, Supreme Court Nos. 2011-1201 and 2011-1362, 

2012-Ohio-5017 (Apr. 4, 2012). However, those decisions hinge on Civ.R. 

17(A) and whether a plaintiff is the real party in interest in a foreclosure 

action. Jordan at ¶ 21. Here, as a trust beneficiary, Morris is an interested 

party with a stake in the litigation at the time it was filed. This satisfied 

Civ.R. 17(A). 

{¶16} After taking the allegations from the complaint as true, the 

trustee had standing to bring a declaratory judgment action against 

Burgundy Bay and Lake Erie. 

B. Subject Matter Jurisdiction 

{¶17} Appellees also argued in their motion to dismiss that the trial 

court lacked subject matter jurisdiction, an argument premised on Civ.R. 

12(B)(1). 

After a party files a Civ.R. 12(B)(1) motion to dismiss, the trial 

court must determine whether the complaint contains allegations 

of a cause of action that the trial court has authority to decide. 

The Ohio Supreme Court has further noted that the “trial court is 

not confined to the allegations of the complaint when determining 

its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) 
motion to dismiss, and it may consider material pertinent to such 

inquiry.” (Citation omitted.) 

 

Bank of Am. v. Macho, 8th Dist. No. 96124, 2011-Ohio-5495, ¶ 7, quoting 

Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 480 Ohio St.2d 211, 

358 N.E.2d 526 (1976). We review a motion to dismiss de novo, pursuant to 

Civ.R. 12(B)(1), applying the same standard as the trial court but without 

deference to the trial court’s determination. Mellion v. Akron City School 

Dist. Bd. of Edn., 9th Dist. No. 23227, 2007-Ohio-242, ¶ 6, citing Crestmont 

Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 

N.E.2d 222 (10th Dist.2000). 

{¶18} “[A]n action for declaratory judgment must be brought in a court 

that has subject matter jurisdiction over the underlying controversy.” 

Bollenbacher v. Wayne Cty. Bd. of Commrs., 9th Dist. No. 11CA0062, 

2012-Ohio-4198, ¶ 12, citing Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 

109, 110, 539 N.E.2d 140 (1989). “The probate division of the court of 

common pleas has concurrent jurisdiction with, and the same powers at law 

and in equity as, the general division of the court of common pleas to issue 

writs and orders and to hear and determine any action that involves an inter 

vivos trust.” (Emphasis added.) R.C. 5802.03. 

{¶19} Similarly, R.C. 2101.24(B)(1)(b) provides that “[t]he probate court 

has concurrent jurisdiction with, and the same powers at law and in equity 
as, the general division of the court of common pleas to issue writs and 

orders, and to hear and determine actions * * * that involves an inter vivos 

trust * * *.” Further, “[t]he probate court has plenary power at law and in 

equity to dispose fully of any matter that is properly before the court, unless 

the power is expressly otherwise limited or denied by a section of the Revised 

Code.” R.C. 2101.24(C). 

{¶20} The Fourth District has found that matters involving claims 

against trust property were encompassed by this broad language. Zahn v. 

Nelson, 170 Ohio App.3d 111, 2007-Ohio-667, 866 N.E.2d 58, ¶ 16-20 (4th 

Dist.). In Zahn, the probate court was asked to interpret the trust 

instrument itself, which clearly involves an inter vivos trust. The same 

statute was analyzed by the Sixth District in a case involving the 

interpretation of a trust instrument and an ancillary document. Natl. City 

Bank v. de Laville, 170 Ohio App.3d 317, 2006-Ohio-5909, 867 N.E.2d 416 

(6th Dist.). 

{¶21} Here, we are dealing with an ancillary contract between the 

settlor of the trust and third parties who are strangers to the trust. 

However, Lake Erie and Burgundy Bay have made claims against trust 

property by filing liens against trust property pursuant to their interpretation 

of the assessment agreement. This is a matter of contract interpretation 

that is not so removed from the governance of the trust that would preclude a 
common pleas court, and thus a probate court, with concurrent jurisdiction 

from exercising jurisdiction over the matter as claims made against trust 

property. 

{¶22} At first blush, the Cuyahoga County Probate Court seems an 

unlikely place to bring a contract dispute involving property in Ottawa 

county. However, a reading of the broad jurisdictional provisions for the 

probate courts of Ohio relating to matters involving trusts demonstrates that 

this is a matter involving claims against property of an inter vivos trust, 

which R.C. 2101.24(B)(1)(b) allows to be heard by a probate court. State ex 

rel. Sladoje v. Belskis, 149 Ohio App.3d 190, 2002-Ohio-4505, 776 N.E.2d 557 

(10th Dist.). Where a contract has no bearing on trust property or the 

administration of a trust, then a probate court is without jurisdiction to 

entertain a declaratory judgment action seeking the court’s interpretation. 

In re Estate of Martin, 115 Ohio App. 515, 185 N.E.2d 785 (12th Dist.1962) 

(stating the same for contracts having no bearing on estate property or the 

administration of an estate). But here, the contract in question directly 

affects trust property and the validity of the liens levied against it. Those 

liens create a cloud on the title, something the trustee is attempting to 

extinguish with this action. 

{¶23} Cases holding that the jurisdiction of the probate court is limited 

to “matters involved in the enhancement or depletion of the estate and 
distribution of that estate to the proper heirs” Ivancic v. Enos, 11th Dist. No. 

2011-L-050, 2012-Ohio-3639, ¶ 38, citing 1 Baldwin’s Ohio Practice, 

Merrick-Rippner Probate Law, Section 3:4 (2011), were decided before Ohio 

adopted the Uniform Trust Code and added the broad language of R.C. 

2101.24(B)(1)(b). See In re Frank, 181 Ohio App.3d 686, 2009-Ohio-1285, 910 

N.E.2d 523, ¶ 11 (2d Dist.). When codifying the broad jurisdictional grant 

for the probate court, Ohio adopted the provisions outlined in the Uniform 

Trust Code. Section 203(b), Uniform Trust Code (2005). That language is 

not limited in its scope by other provisions as it is in other states. See, e.g., 

Betty G. Weldon Revocable Trust v. Weldon, 231 S.W.3d 158, 173 

(Mo.App.2007). 

{¶24} Once it is determined that the probate court has jurisdiction over 

the declaratory judgment action, it may exercise jurisdiction over the 

remainder of the trustee’s claims because the probate court also has plenary 

power to fully dispose of any matter properly before the court unless the 

power is expressly otherwise limited or denied by statute. Wolfrum v. 

Wolfrum, 2 Ohio St.2d 237, 208 N.E.2d 537 (1965). 

C. Venue 

{¶25} The trial court also determined that venue was not appropriate 

in Cuyahoga county, which the trustee asserts is an advisory opinion given 
that the court found it lacked subject matter jurisdiction and the trustee 

lacked standing. 

{¶26} “Subject-matter jurisdiction of a court connotes the power to hear 

and decide a case upon its merits, while venue connotes the locality where the 

suit should be heard.” Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 

841 (1972), citing Fireproof Constr. v. Brenner-Bell Inc., 152 Ohio St. 347, 89 

N.E.2d 472 (1949). 

{¶27} Generally, venue is determined by the proper application of 

Civ.R. 3(B). Recognizing this analysis insufficient for probate practice, 

Civ.R. 73(A) makes the general venue provision inapplicable to the probate 

court. However, Civ.R. 73 only applies to those actions instituted under one 

of the provisions of Ohio’s probate code set forth in R.C. Chapters 2101 

through 2131. Staff note to Civ.R. 73(B). Specifically, the staff notes 

recognize that 

[R.C.] 2725.01, et seq., and [R.C.] 2721.01, et seq., which govern 

habeas corpus and declaratory judgment, do not attempt to state 

the forums in which habeas corpus or declaratory judgment may 

be filed. These sections are outside Chapter 2101 through 

Chapter 2131 of the Revised Code and therefore, outside the 

ambit of the Rule 73(B) limitation. 

{¶28} In opposition to appellees’ motion to dismiss, the trustee argued 

that Civ.R. 3 did not apply because the probate division had its own venue 

rules set forth in Civ.R. 73. That argument is contrary to the staff notes and 
impermissibly enlarges the venue of the probate court beyond constitutional 

bounds. Therefore, Civ.R. 3(B) determines what venue is appropriate in this 

case. 

{¶29} Generally, this court reviews a lower court’s decision regarding 

venue for an abuse of discretion. State v. Mohamed, 178 Ohio App.3d 695, 

2008-Ohio-5591, 899 N.E.2d 1071, ¶ 12 (8th Dist.). An abuse of discretion 

connotes the trial court’s decision was unreasonable, arbitrary, or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 

1140 (1983). However, the trial court did not make a decision to transfer the 

case, as Civ.R. 3 requires. Instead, it made the determination that venue 

was not appropriate in Cuyahoga county after deciding to dismiss the case on 

other grounds. 

{¶30} Civ.R. 3(C) provides, 

[w]hen an action has been commenced in a county other than 

stated to be proper in division (B) of this rule, upon timely 

assertion of the defense of improper venue as provided in Civ.R. 

12, the court shall transfer the action to a county stated to be 

proper in division (B) of this rule. 

The movant must affirmatively demonstrate that venue is inappropriate in 

the forum chosen by the plaintiff. The movant must also show where an 

appropriate forum lies. 

{¶31} We agree with the trial court that Cuyahoga county is not the 

proper venue for this case. Civ.R. 3(B) does not provide a basis for haling 
Burgundy Bay and Lake Erie before a court in Cuyahoga county for a 

declaratory judgment action involving property in Ottawa county. 

{¶32} The trustee now argues, for the first time on appeal, that Stewart 

Mandel signed the assessment agreement in Cuyahoga county and argues 

that Cuyahoga county is an appropriate venue because actions of the 

defendants conducted in Cuyahoga county in connection with the drafting or 

execution of the agreement satisfies Civ.R. 3(B)(3) — “[a] county in which the 

defendant conducted activity that gave rise to the claim for relief.” However, 

from the face of the agreement, only Stewart signed in Cuyahoga county. 

Burgundy Bay and Lake Erie both executed the agreement in Stark county. 

The trustee made no argument that any negotiations took place in Cuyahoga 

county or that the appellees did anything in Cuyahoga county. That 

distinguishes this case from others where venue was found to be appropriate 

where contracting parties conducted negotiations in the forum giving rise to 

venue under Civ.R. 3(B)(3). See, e.g., Paparodis v. Snively, 7th Dist. No. 

06-CO-5, 2007-Ohio-6910. 

{¶33} Finally, resort to Civ.R. 3(B)(12), “the county where the plaintiff 

resides[,]” is proper only where available forums in subsections (1) through 

(10) of the rule are not appropriate. Fuller v. Fuller, 32 Ohio App.2d 303, 

306, 290 N.E.2d 852 (10th Dist.1972). Here, Civ.R. 3(B)(2), “the county in 
which the defendant has its principle place of business[,]” or Civ.R. 3(B)(5), 

“the county in which the property * * * is situated[,]” is appropriate. 

{¶34} Therefore, venue is not appropriate in Cuyahoga county. 

Pursuant to Civ.R. 3(C)(1) and the trial court’s prior finding that venue was 

not appropriate in Cuyahoga county, the trial court must transfer the case to 

an appropriate venue. 

III. Conclusion 

{¶35} The trustee has standing to bring this action as a present 

interest trust beneficiary and trustee at the time the action was dismissed. 

Further, the probate court of Cuyahoga county has subject matter jurisdiction 

over this case according to R.C. 2101.24(B)(1)(b) because it involves a claim 

against trust property. Finally, venue is not appropriate in Cuyahoga county 

because the provisions of Civ.R. 73 do not apply to the trustee’s declaratory 

judgment action. Therefore, the case is remanded to the trial court with 

instructions to transfer this case to an appropriate venue. This holding 

renders the trustee’s final assignment of error, regarding whether the 

dismissal should be with or without prejudice, moot. 

{¶36} Judgment affirmed in part, reversed in part, and remanded to 

the lower court for further proceedings consistent with this opinion. 

It is ordered that appellant and appellees share the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas 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. 

FRANK D. CELEBREZZE, JR., JUDGE 

MELODY J. STEWART, P.J., and 

JAMES J. SWEENEY, J., CONCUR