[Cite as Wisehart v. Wisehart , 2021-Ohio-3649.] IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

PREBLE COUNTY

ARTHUR DODSON WISEHART, COTRUSTEE OF DOROT HY R. WISEHART TRUST, Appellee,

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ARTHUR MCKEE WISEHART, COTRUSTEE OF DOROT HY R. WISEHART TRUST, et al., Appellant. :

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: CASE NO. CA2021-01-001

O P I N I O N

10/12/2021

CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 15 CV 30565

Murr Compton Claypoole & Macbeth, and Jane E. Beach, and Schnei der Smeltz Spieth Bell, LLP, and Scott J. Robinson, for appellee. Arthur McKee Wisehart, pro se.

BYRNE, J. {¶1} Arthur McKee Wisehart appeals the decision of the Preble Count y Court of Common Pleas, which granted summary judgment in favor of plaint iff-appellee, Arthur Dodson Wisehart. For the reasons described below, we affirm th at decision. I. Procedural and Factual History {¶2} In 1987, Dorothy Wisehart established the Dorothy R. Wisehart Trust ("thePreble CA2021-01-001

- 2 - Trust"). Dorothy named herself and her son, Arthur McKee Wiseh art ("McKee") as cotrustees. 1 Dorothy conveyed to the Trust an undivided half-interest in t wo farm properties located in Preble County: a farm located at 5291 New Paris Get tysburg Road and a farm located at 5640 Oxford Gettysburg Road (collectively, "the Farm s"). {¶3} Dorothy retained her half-interest in the Farms. She passed a way in 1993. Upon her death, her remaining half-interest in the Farms transf erred to McKee. The remaining half-interest remained with the Trust. {¶4} Upon Dorothy's death, the Trust became irrevocable. From 1993 to 2010,

McKee served as sole trustee of the Trust. {¶5} In 2010, the Trust had five income beneficiaries, consisting o f Elizabeth Wisehart – McKee's wife from approximately 1953 to the date of her death in 2013 – and

Elizabeth and McKee's four children. Dodson is one of those ch ildren. McKee was never an income beneficiary of the Trust. {¶6} The Trust provided for removal and replacement of the trustee upon the written request of 75 percent of the income beneficiaries. Pursuant to this provision, in January 2010, four of the five income beneficiaries (80 percent) execut ed a document removing McKee as sole trustee of the Trust, and then appointing McKee a nd Dodson as co-trustees. {¶7} In 2015, in his capacity as co-trustee of the Trust, Dodson fi led suit against McKee, individually and in McKee's capacity as co-trustee. The lawsuit sought to quiet title to the Preble County real estate partially held by the Trust. Dodson alleged that he filed the action because McKee was in the midst of attempting to sell the Preble County real estate and lacked the authority to do so. Dodson also requested the c ourt declare that McKee

was not the sole trustee of the Trust and that McKee and Dodson were co-trustees. Dodson

1. The plaintiff and defendant have the same first and last na mes so for ease of reading we will refer to the parties using their middle names.Preble CA2021-01-001

- 3 - additionally asserted a claim for breach of fiduciary duty agai nst McKee and requested an accounting of any Trust income received by McKee. {¶8} As the lawsuit progressed, the trial court issued orders enjoi ning McKee from selling the Farms, ordering him to maintain the status quo, and further ordering him to deposit any income produced by the Farms with the court until t he matter could be decided. McKee violated all of these orders and the court ultimately fou nd him in contempt. McKee appealed the contempt order. We affirmed the trial court. Wisehart v. Wisehart , 12th Dist. Preble No. CA2018-12-019, 2019-Ohio-3833. {¶9} In 2019, the parties filed cross-motions for summary judgment. Subsequently, the trial court issued its summary judgment decision, which den ied McKee's motion and granted Dodson's motion. The court found that (1) the Trust he ld an undivided one-half interest in the Farms, (2) the appointment of Dodson and McKee as co-trustees was valid, (3) all of McKee's prior attempts to convey the Farms out of th e Trust were void, and (4) that McKee breached his fiduciary duty to the Trust, must provi de an accounting for his actions, and must repay the Trust income that he wrongfully wit hheld. Dodson subsequently moved for attorney fees and the court held a heari ng. In December 2020, the court granted Dodson $134,374.22 in attorney fees. {¶10} McKee appeals, raising two assignments of error, which we addr ess together. II. Law and Analysis {¶11} Assignment of Error No. 1: {¶12} THE TRIAL COURT HAD NO DISCRETION BUT TO DISMISS FOR LACK

OF JUSTICIABLE JURISDICTION AND ERRED BY FAILING TO DISMISS. {¶13} Assignment of Error No. 2: {¶14} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF-APPELLEE, AND DENYING OR NOT RULING UPON DEFENDAN T'SPreble CA2021-01-001

- 4 - MOTIONS FOR SUMMARY JUDGMENT. {¶15} Though McKee was apparently a licensed attorney at one time, t he legal arguments he presents in his brief are rambling, incoherent, an d rife with irrelevant legal concepts and legal authority. McKee, as a pro se litigant, is held to the same standard as a party represented by counsel. Chambers v. Setzer , 12th Dist. Clermont No. CA2015-10- 078, 2016-Ohio-3219, ¶ 10. {¶16} What we can discern is that McKee is arguing that all of the t rial court's orders in this case were invalid because the case was not "justiciable ," that the trial court lacked subject-matter jurisdiction over the lawsuit, and that Dodson, who he refers to as the "noncognizable fabricated plaintiff-appellee," lacked standing to b ring the lawsuit against him

because Dodson was never a co-trustee of the Trust. A. Summary Judgment Standard {¶17} Appellate review of a trial court's decision granting summary judgment is de

novo. M&T Bank v. Johns , 12th Dist. Clermont No. CA2013-04-032, 2014-Ohio-1886, ¶ 7. Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of any material fact, (2) the moving party is entitled to judgm ent as a matter of law, and (3) the evidence submitted can only lead reasonable minds to one co nclusion and that conclusion is adverse to the nonmoving party, who is entitled t o have the evidence construed most strongly in his favor. Bank of New York Mellon v. Putman , 12th Dist. Butler No. CA2012-12-267, 2014-Ohio-1796, ¶ 18. "The party moving for summary judgment bears the initial burden of demonstrating that no genuine issue of material fact exists." Fifth

Third Bank v. Bolera , 12th Dist. Butler No. CA2017-03-039, 2017-Ohio-9091, ¶ 25. O nce this initial burden is met, the nonmoving party "must then rebu t the moving party's evidence with specific facts showing the existence of a genuine triable issue; it may not rest on the mere allegations or denials in its pleadings." Deutsche Bank Natl. Trust Co. v. Sexton , 12thPreble CA2021-01-001

- 5 - Dist. Butler No. CA2009-11-288, 2010-Ohio-4802, ¶ 7, citing Civ .R. 56(E). B. Legal Analysis {¶18} "For a cause to be justiciable, there must exist a real contro versy presenting issues which are ripe for judi cial resolution and which will ha ve a direct and immediate impact on the parties." Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire

Marshal , 12th Dist. Fayette Nos. CA2005-03-009 and CA2005-03-011, 2006 -Ohio-1002, ¶ 32 (reversed on other grounds), citing Tradesmen Internatl., Inc. v. Massillon , 5th Dist. Stark No.2002CA00251, 2003-Ohio-2490, ¶ 32. In order for a justiciab le question to exist, the "danger or dilemma" of the plaintiff must be present, not conti ngent on the happening of hypothetical future events and the threat to his or her positio n must be actual and genuine and not merely possible or remote. Mid-American Fire & Cas. Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, ¶ 9. {¶19} This case presents a justiciabl e controversy ripe for judicial resolution. Dodson, in his capacity as co-trustee of the Trust, alleged tha t McKee was taking unilateral action to convey assets partially owned by the Trust and lacked the legal authority to do so. Dodson claimed that McKee was breaching his fiduciary duties to the Trust beneficiaries by withholding Trust income. Dodson alleged that McKee believed h imself to be sole trustee of the Trust and disputed Dodson's authority as a co-trustee. All these issues were contested and there was a real danger or dilemma that the Trust beneficiaries would be injured by McKee's actions if Dodson did not involve the court system in resolving this dispute. McKee's argument that thi s case was not justiciable i s meritless. {¶20} Next, Dodson argues that the Preble County court lacked subjec t-matter jurisdiction to decide this case. "'Subject-matter jurisdictio n of a court connotes the power to hear and decide a case upon its merits' and 'defines the com petency of a court to render a valid judgment in a particular action.'" Cheap Escape Co., Inc. v. Haddox, L.C.C. , 120Preble CA2021-01-001

- 6 - Ohio St.3d 493, 2008-Ohio-6323, ¶ 6, quoting Morrison v. Steiner , 32 Ohio St.2d 86, 87 (1972). Whether a court possesses subject-matter jurisdiction over a case is a matter of

law that this court reviews de novo. Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 34; Powers-Urteaga v. Urteaga , 12th Dist. Warren No. CA2014-08-109, 2015-Ohio-2465, ¶

15. {¶21} The Preble County Court of Common Pleas possessed subject-matt er jurisdiction over this case. The case involved a controversy o ver the ownership of real estate located in Preble County, a Trust that owned an interest in that real estate, and allegedly misappropriated Trust income derived from that real e state. The court also had subject-matter jurisdiction to resolve ancillary issues such as whether Dodson was properly appointed co-trustee of the Trust. McKee's subject-matter juri sdiction argument is

meritless. {¶22} With regard to Dodson's alleged lack of standing, McKee argues , without citation to the terms of the Trust or any other legal authority , that only Dorothy could appoint a co-trustee. McKee contends that when Dorothy died the Trust became irrevocable and

no one else could become a co-trustee in the absence of a court order. However, McKee fails to address the Trust provision that permitted 75 percent of the Trust beneficiaries to remove and replace the trustee. Instead, McKee relies on mere conclusory statements, unsupported by evidence in the record or persuasive legal autho rity, in arguing that Dodson

is not co-trustee and lacks sta nding. McKee's standing argument lacks any conceivable

merit. {¶23} To the extent McKee makes any argument we have not specificall y referenced in this opinion, we find upon our review of the brie fs and the record that such arguments are without merit.

III. ConclusionPreble CA2021-01-001

- 7 - {¶24} Upon review of McKee's appellate briefs and the record, we fin d no error in the trial court's decision granting summary judgment and attorn ey fees. We overrule McKee's first and second assignments of error. {¶25} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.