[Cite as In re Cletus P. McCauley & Mary A. McCauley Irrevocable Trust, 2014-Ohio-3489.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

 : JUDGES: 

 : 

IN RE: : Hon. W. Scott Gwin, P.J. 

 : Hon. Patricia A. Delaney, J. 

CLETUS P. MCCAULEY AND MARY 

A. MCAULEY, 

: 

: 

Hon. Craig R. Baldwin, J. 

IRREVOCABLE TRUST : 

 : Case No. 2013CA00237 

 : 

 : 

 : 

 : 

 : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Probate Division, Case 

No. 208532 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: August 11, 2014 

APPEARANCES: 

For Plaintiffs-Appellants: For Defendant-Appellee: 

 

CRAIG. T. CONLEY JOHN R. FRANK 

604 Huntington Plaza T.K. Harris Building -- Suite 102A 

220 Market Ave. S. 3930 Fulton Dr., NW 

Canton, OH 44702 Canton, OH 44718 

 

 TERRENCE L. SEEBERGER 

 3475 Ridgewood Road 

 Akron, OH 44333 
Stark County, Case No. 2013CA00237 2 

Delaney, J. 

{¶1} Appellants Emily R. Clark and Jennifer M. Fricke appeal the November 25, 

2013 judgment entry of the Stark County Court of Common Pleas, Probate Division that 

appointed Terrence L. Seeberger, Esq. to represent the Cletus P. McCauley and Mary 

A. McCauley Irrevocable Trust and ordered Emily Clark and Fricke to post a $10,000.00 

supersedeas bond. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Cletus and Mary McCauley were the parents of four children, including 

Paula A. Clark and Kevin L. McCauley. On May 29, 2007, Cletus and Mary McCauley 

executed a will that gave specific sums of money to their children. The remainder was to 

pour-over into the Cletus P. McCauley Trust. On May 29, 2007, the McCauleys also 

created the Cletus P. & Mary A. McCauley Irrevocable Trust designed primarily to 

benefit Kevin McCauley, their special needs adult son. 

{¶3} Paula Clark is the mother of two adult daughters, Jennifer M. Fricke and 

Emily R. Clark. Fricke and Emily Clark are the appellants in the instant appeal. Fricke 

and Emily Clark base their standing in this matter upon their status as a beneficiary of 

the McCauley Estate and/or as remainder beneficiaries of the McCauley Irrevocable 

Trust. 

{¶4} Mary McCauley died on August 9, 2008. Cletus McCauley died on 

December 23, 2008. Paula Clark was appointed to serve as the Executrix and opened 

Cletus McCauley's estate in the Stark County Probate Court on December 30, 2008. 

Raymond McCauley was appointed the Trustee of the McCauley Irrevocable Trust. On 
Stark County, Case No. 2013CA00237 3 

September 15, 2008, Paula Clark was appointed the first successor Trustee for the 

McCauley Irrevocable Trust because of Raymond McCauley's health issues. 

{¶5} Since 2009, the parties involved with the McCauley Estate and McCauley 

Irrevocable Trust have been embroiled in litigation, featured in the Probate Court, 

General Division of the Stark County Court of Common Pleas, Fifth District Court of 

Appeals, and Ohio Supreme Court. The actions of the parties to the McCauley Estate 

and Irrevocable Trust have resulted in at least six Probate Court cases and eight 

appeals with issues and claims so intertwined that the procedural history is very lengthy. 

A visiting judge was assigned by the Supreme Court to preside over the multiple 

Probate Court cases on October 20, 2011. A second visiting judge was assigned on 

May 7, 2014. 

{¶6} On April 8, 2009, the Guardian of the Estate of Kevin McCauley filed 

Objections to the Inventory and Appraisal filed by Paula Clark for the McCauley Estate. 

The Guardian objected on the belief that significant assets were not included in the 

Inventory and Appraisal. On February 22, 2010, Paula Clark filed a declaratory 

judgment action in the General Division, requested a declaratory judgment as to the 

validity of certain bank accounts. The General Division case was transferred to the 

Probate Court and the decision to transfer the case was affirmed on appeal. 

{¶7} On March 24, 2010, the Guardian of the Estate of Kevin McCauley filed an 

action in the Probate Court in Case No. 208532 to remove Paula Clark as the Executrix 

and the first successor Trustee. The basis for the complaint was the declaratory 

judgment action originally filed in the General Division where Kevin McCauley alleged 

Paula Clark took assets belonging to the Estate, which thereby created a conflict in her 
Stark County, Case No. 2013CA00237 4 

position as Executrix and Trustee. The Guardian requested that Paula Clark make an 

accounting to the Estate and Trust and be ordered to pay back the Estate and Trust. 

{¶8} On August 3, 2010, Paula Clark filed an answer and counterclaim in Case 

No. 208532. She requested declaratory judgment that the bank accounts were proper 

and Paula Clark's property. 

{¶9} In Probate Case No. 209512, the court (1) removed Paula Clark as the 

Executrix of the McCauley Estate on July 13, 2010; and (2) appointed John Frank, Esq. 

to serve as the administrator with will annexed (WWA) of the McCauley Estate on July 

28, 2010. Paula Clark, Jennifer M. Fricke, and Emily R. Clark filed four motions to 

remove John Frank as the administrator of the McCauley Estate. The Probate Court 

denied the motions and this court affirmed on appeal. 

{¶10} On November 16, 2010, Probate Case No. 208532 was stayed due to 

Paula Clark's bankruptcy notice. 

{¶11} On November 18, 2010, the Probate Court named John Frank as the 

second successor Trustee of the McCauley Irrevocable Trust under Case No. 208532. 

{¶12} On July 27, 2011, the McCauley Estate and the McCauley Irrevocable 

Trust filed a legal malpractice action in the General Division against Craig Conley, Esq., 

counsel for Paula Clark, Jennifer Fricke, and Emily Clark. The parties settled the matter. 

{¶13} On November 17, 2011, in Probate Case Nos. 204989 and 209055, the 

court determined five bank accounts claimed to be Paula Clark's property were Estate 

assets. This court affirmed the judgment in Case No. 2011CA00272. 

{¶14} On June 20, 2013, Paula Clark, Jennifer Fricke, and Emily Clark filed a 

motion for reimbursement in the Probate Court Case No. 209512 alleging that John 
Stark County, Case No. 2013CA00237 5 

Frank misused funds of the Estate to pay for a legal malpractice expert in the amount of 

$4,906.25. 

{¶15} On June 24, 2013, John Frank filed a motion to appoint a third successor 

Trustee in Case No. 208532. 

{¶16} Kevin McCauley passed away on September 6, 2013. Kevin McCauley's 

funeral occurred on September 9, 2013. On September 9, 2013, John Frank filed a 

motion with the Probate Court in Case No. 208532 for authority to pay for Kevin 

McCauley's funeral and burial expenses from the Irrevocable Trust in the amount of 

$7,738.31. The Probate Court granted the motion on September 9, 2013. 

{¶17} On September 11, 2013, Paula Clark, Jennifer Fricke, and Emily Clark 

filed a motion to appoint a third successor Trustee. They withdrew the motion on 

October 3, 2013. 

{¶18} On September 18, 2013, Fricke and Emily Clark appealed the September 

9, 2013 judgment entry in Probate Case No. 208532 to this court in Case No. 

2013CA00188. A review of the total record shows that Fricke and Emily Clark argued in 

the Probate Court that their appeal of the September 9, 2013 judgment entry in Case 

No. 2013CA00188 divested the Probate Court of jurisdiction over the Irrevocable Trust. 

{¶19} On September 20, 2013, Emily Clark and Fricke filed a declaratory 

judgment action in the General Division under Case No. 2013CV02559 alleging John 

Frank as second successor Trustee breached his fiduciary duties to the Irrevocable 

Trust beneficiaries. 
Stark County, Case No. 2013CA00237 6 

{¶20} On October 15, 2013, the Probate Court denied the motion for 

reimbursement. Paula Clark, Jennifer Fricke, and Emily Clark appealed the judgment to 

this court in Case No. 2013CA00222 on November 13, 2013. 

{¶21} On October 23, 2013, the Probate Court scheduled a hearing for 

November 13, 2013 to set a bond on the appeals of judgments rendered in Probate 

Court Case Nos. 209512, 208532, 209055, and 205029. 

{¶22} On November 8, 2013, the General Division in Case No. 2013CV02559 

transferred the declaratory judgment action to the Probate Court to be consolidated with 

Probate Case No. 208532. 

{¶23} On November 13, 2013, the Probate Court held a hearing in Case No. 

208532. A transcript of the hearing was not filed with the instant appeal. 

{¶24} On November 21, 2013, Fricke and Emily Clark filed a declaratory 

judgment action against John Frank in Probate Court Case No. 219397. The trial court 

determined that General Division Case No. 2013CV02559 should be consolidated with 

Probate Court Case No. 219397, instead of Case No. 208532. 

{¶25} On November 25, 2013, in Case No. 208532, the Probate Court issued a 

judgment entry, which is the subject of the instant appeal. The Probate Court 

determined it had jurisdiction to rule on matters while Fricke and Emily Clark appealed 

other issues. The Probate Court also held it had jurisdiction to preside over the 

administration of the inter vivos trust, even though the beneficiary of the trust was 

deceased. The court ordered Fricke and Emily Clark to post a $10,000.00 supersedeas 

bond during the pendency of the appeals, to cover additional costs and expenses. In 

that same order, the Probate Court found it was in the best interests of the trust to 
Stark County, Case No. 2013CA00237 7 

appoint Terrence L. Seeberger, Esq. to represent the interests of the McCauley 

Irrevocable Trust due to the "multiple issues remaining for determination in the trust 

proceeding, the multiple appeals, and the ongoing litigious nature of disputes involving 

the beneficiaries and the trust." 

{¶26} Fricke and Emily Clark filed a notice of appeal of the November 25, 2013 

judgment entry on December 4, 2013 in Case No. 2013CA00237. 

{¶27} On February 3, 2014, the trial court consolidated Case No. 208532 with 

Case No. 219397. Fricke and Emily Clark appealed the Probate Court's decision to 

consolidate in Case No. 2014CA00031. On March 7, 2014, the Probate Court ordered 

that Paula Clark's pending counterclaim in Case No. 208532 would be heard in Case 

No. 219397. 

{¶28} On April 10, 2014, John Frank filed Motion for Instructions as to the 

Irrevocable Trust in Probate Court Case No. 220494. On April 17, 2014, counsel for the 

Irrevocable Trust filed a proposed distribution of the Irrevocable Trust. Fricke and Clark 

objected on jurisdictional grounds. On July 15, 2014, the Probate Court overruled the 

jurisdictional objections and issued a judgment entry that ordered the second successor 

Trustee to distribute one-half of the Irrevocable Trust balance, or $129,000, to the 

beneficiaries, in equal shares. The court also ordered Frank not to make any additional 

distributions until the completion of all Estate/Irrevocable Trust litigation. 

ASSIGNMENT OF ERROR 

{¶29} Fricke and Emily Clark raise one Assignment of Error: 

{¶30} "THE TRIAL COURT ERRED IN ITS ISSUANCE OF THE NOVEMBER 

25, 2013 JUDGMENT ENTRY NOW ON APPEAL." 
Stark County, Case No. 2013CA00237 8 

ANALYSIS 

Final and Appealable Order

{¶31} The first issue we must examine is whether the November 25, 2013 

judgment entry is a final, appealable order. The November 25, 2013 judgment entry 

appointed independent counsel for the Irrevocable Trust and ordered Fricke and Emily 

Clark to post a $10,000.00 supersedeas bond. Counsel for the Irrevocable Trust argues 

the November 25, 2013 judgment entry is an interlocutory order. An appellate court has 

jurisdiction to review and affirm, modify, or reverse judgments or final orders of the trial 

courts within its discretion. See Section 3(B)(2), Article IV, Ohio Constitution; see also

R.C. 2505.02. If an order is not final and appealable, the appellate court is without 

jurisdiction to review the matter and must dismiss the appeal. Gen. Acc. Ins. Co. v. Ins. 

Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). 

{¶32} To be final and appealable, an order must comply with R.C. 2505.02. R.C. 

2505.02(B) provides the following: 

(B) An order is a final order that may be reviewed, affirmed, modified, or 

reversed, with or without retrial, when it is one of the following: 

(1) An order that affects a substantial right in an action that in effect 

determines the action and prevents a judgment; 

(2) An order that affects a substantial right made in a special 

proceeding or upon a summary application in an action after 

judgment; 

(3) An order that vacates or sets aside a judgment or grants a new 

trial; 
Stark County, Case No. 2013CA00237 9 

(4) An order that grants or denies a provisional remedy and to 

which both of the following apply: 

(a) The order in effect determines the action with respect to 

the provisional remedy and prevents a judgment in the 

action in favor of the appealing party with respect to the 

provisional remedy. 

(b) The appealing party would not be afforded a meaningful 

or effective remedy by an appeal following final judgment as 

to all proceedings, issues, claims, and parties in the action. 

{¶33} Our research on the issue of a final, appealable order in a probate 

proceeding has shown there is a disagreement among the appellate districts as to 

whether a judgment entry during a probate court proceeding as to the administration of 

an estate or a trust is a final, appealable order. The Ohio Supreme Court has not 

weighed in on that question as of the date of the authoring of this opinion. One query 

that has caused the greatest debate among the courts is whether a ruling on a motion to 

remove an executor is a final, appealable order. While the issue in our case is whether 

the Probate Court's sua sponte appointment of independent counsel to represent the 

interests of the Irrevocable Trust is a final, appealable order, we find the analysis of 

whether a ruling on a motion to remove an executor is final and appealable is of 

relevance to the question presented in the case sub judice. 

{¶34} The Sixth District Court of Appeals in the case of In re Estate of Sneed, 

166 Ohio App.3d 595, 2006-Ohio-1868, 852 N.E.2d 234 (6th Dist.) analyzed the 

question of whether a ruling on a motion to remove an executor is a final, appealable 
Stark County, Case No. 2013CA00237 10 

order. The Sixth District held that under the "provisional remedy" portion of R.C. 

2505.02(B)(4), a ruling on a motion to remove an executor from a probate estate is final 

and appealable. Sneed overruled the Sixth District's earlier decision in In re Estate of 

Packo, 6th Dist. Lucas No. L-99-1350, 2000 WL 191784 (Feb. 15, 2000) where it had 

held that an order granting or denying a motion to remove an executor was not 

appealable under R.C. 2505.02(B)(4).1 The Sneed court gave the basis for its decision: 

The difference in our holding in [In re Estate of] Gannett [6th Dist. 

Huron No. H-01-047, 2001 WL 1518035 (Nov. 27, 2001)] and Packo and 

the holdings of the Seventh, Tenth, and Eleventh Districts in [In re Estate 

of] Geanangel [147 Ohio App.3d 131, 768 N.E.2d 1235 (7th Dist.2002)], 

[In re Estate of] Nardiello [10th Dist. Franklin No. 01AP-281, 2001 WL 

1327178 (Oct. 30, 2001)], and [In re Estate of] Meloni [11th Dist. Trumbull 

No. 2003-T-0096, 2004-Ohio-7224] is the focus on what will be lost if a 

party who wishes to be the executor of an estate is not allowed to serve in 

that capacity. Our decisions focused on whether any mistakes or 

mishandling of estate assets could be remedied by an appeal after the 

estate is closed; the other districts focused on whether a person's missed 

opportunity to administer the estate himself could be remedied by an 

appeal after the estate is closed. 

 In considering all of the above, we are persuaded that the approach 

taken by the Seventh, Tenth, and Eleventh Districts is sound and more 

realistic than our previous holding. By focusing on the loss of a person's 

 

1

 This court relied on Packo in In re Estate of Endslow, 5th Dist. Delaware No. 99CA-F-07-37 (April 12, 

2000) when it dismissed the appeal of a judgment entry of a probate court, in an action for the 

administration of an estate, which did not dispose of the estate for the lack of a final, appealable order. 
Stark County, Case No. 2013CA00237 11 

opportunity to be the executor of an estate, the courts in Geanangel, 

Nardiello, and Meloni acknowledge that such a loss cannot be remedied. 

Our focus in Gannett and Packo on the economic impact of a decision as 

to who will administer an estate, and the conclusion that any mistakes or 

mishandling of estate assets could be remedied after the estate closed, is 

theoretically true, but in practice not realistic. Once an estate has been 

administered, all of the decisions about how to value, invest, dispose of, 

and distribute the assets of the estate will have been made. Second 

guessing those decisions after the fact is generally futile, and even if 

mishandling can be proven, trying to recover the assets may be even 

more futile. Thus, we overrule our prior determination that an order ruling 

on a motion to remove an executor from a probate estate is not final and 

appealable and now hold that pursuant to R.C. 2505.02(B)(4), such an 

order is final and appealable. 

In re Estate of Sneed, 166 Ohio App.3d 595, 2006-Ohio-1868, 852 N.E.2d 234, ¶ 17-18 

(6th Dist.). 

{¶35} The impetus for the Sixth District's reversal of its prior holding was the 

reality of estate administration. Trust administration can be considered in the same light 

as estate administration (to which Judge Trapp called a "distinction without a 

difference"). See Guardianship & Protective Servs., Inc. v. Setinsek, 11th Dist. Trumball 

No. 2010-T-0099, 2011-Ohio-6515, ¶36 (Trapp, J., dissenting). We find the logic of the 

analysis in Sneed applies to the present case. The instant appeal does not involve the 

granting or denial of a motion to remove the Trustee to the Irrevocable Trust. It involves 
Stark County, Case No. 2013CA00237 12 

the Probate Court's sua sponte appointment of counsel to represent the interests of the 

Irrevocable Trust. As counsel to the Irrevocable Trust, Seeberger will be required to 

make legal choices that will affect the Irrevocable Trust and he will be entitled to collect 

fees and expenses from the Irrevocable Trust for the exercise of those duties. While not 

an executor or trustee, counsel for the Irrevocable Trust may have an economic impact 

on the Irrevocable Trust assets. Under these specific circumstances, we find the holding 

of Sneed is instructive to the present case in that the decision to appoint counsel to the 

Irrevocable Trust may cause Fricke and Emily Clark to have no effective or meaningful 

remedy following the resolution of the trust. We therefore find in this case, the 

November 25, 2013 judgment entry as to the sua sponte appointment of counsel to 

represent the interests of the Irrevocable Trust is a final and appealable order. 

Jurisdiction

{¶36} Fricke and Emily Clarke first argue in the present appeal that the Probate 

Court was without jurisdiction to appoint counsel to represent the interests of the 

Irrevocable Trust. Fricke and Emily Clark assert their appeal of the September 9, 2013 

judgment entry permitting the Irrevocable Trust to pay for Kevin McCauley's funeral 

expenses (Case No. 2013CA00188) divested the Probate Court of jurisdiction to rule on 

any other matters dealing with the Irrevocable Trust. We disagree. 

{¶37} It is a well-recognized principle that once an appeal has been perfected, 

the trial court loses jurisdiction over the matter, pending the outcome of the appeal. 

Ritchey v. Plunkett, 5th Dist. No. 2013 CA 00105, 2013-Ohio-5695, ¶15 citing Kane v. 

Ford Motor Co., 17 Ohio App.3d 111, 116, 477 N.E.2d 662 (8th Dist.1984), citing 

Vavrina v. Greczanik, 40 Ohio App.2d 129, 318 N.E.2d 408 (8th Dist.1974) (additional 
Stark County, Case No. 2013CA00237 13 

citations omitted). However, a notice of appeal only divests the trial court of jurisdiction 

over that part of the final order, judgment, or decree which is sought to be reviewed. 

Cramer v. Fairfield Med. Ctr., 5th Dist. Fairfield No.2007 CA 62, 2008–Ohio–6706, ¶ 18, 

citing Majnaric v. Majnaric, 46 Ohio App.2d 157, 158, 347 N.E.2d 552 (9th Dist.1975). 

{¶38} Fricke and Emily Clark's appeal of the September 9, 2013 judgment entry 

in Case No. 2013CA00188 divested the Probate Court of jurisdiction over the issue 

being appealed in that case. The Probate Court continues to have jurisdiction during the 

pendency of an appeal so long as the exercise of jurisdiction does not interfere with the 

power of this court to review the appealed judgment. See Buckles v. Buckles, 46 Ohio 

App.3d 118, 120, 546 N.E.2d 965 (10th Dist.1988). The Probate Court, therefore, 

retained jurisdiction to continue to hear matters in Case No. 208532 not in conflict with 

the appeal in Case No. 2013CA00188. We find the November 25, 2013 judgment entry 

does not conflict with the issue appealed in Case No. 2013CA00188. 

{¶39} We further find the Probate Court retained jurisdiction over the 

administration of the Irrevocable Trust pursuant to the duties and powers of the Probate 

Court as stated in R.C 2101.24 and 5802.01. The statutes state: 

R.C. 2101.24: 

* * * 

(B)(1) The 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 as follows: 

* * * 
Stark County, Case No. 2013CA00237 14 

(b) Any action that involves an inter vivos trust; a trust 

created pursuant to section 5815.28 of the Revised Code; 

* * * 

(C) The 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. 5802.01: 

*** 

(B) An inter vivos trust is not subject to continuing judicial 

supervision unless ordered by the court. Trusts created pursuant to 

a section of the Revised Code or a judgment or decree of a court 

are subject to continuing judicial supervision to the extent provided 

by the section, judgment, or decree or by court order. 

(C) A judicial proceeding involving a trust may relate to any matter 

involving the trust's administration, including a request for 

instructions and an action to declare rights. 

{¶40} The record in this case is replete with the Probate Court's continued 

exercise of judicial supervision of the Irrevocable Trust as ordered by its judgment 

entries and the parties' reliance on the Probate Court's continuing jurisdiction by their 

continual filings in Case No. 208532. 
Stark County, Case No. 2013CA00237 15 

Appointment of Counsel

{¶41} Fricke and Emily Clark next argue the Probate Court was without authority 

and abused its discretion when it sua sponte appointed independent counsel to 

represent the interests of the Irrevocable Trust. We disagree. 

{¶42} The probate court in Ohio is a court of limited and special jurisdiction and 

thus has only those powers specifically granted to it by statute. Corron v. Corron, 40 

Ohio St.3d 75, 77, 531 N.E.2d 708 (1988). R.C. 2101.24(B)(1)(b) authorizes the probate 

court to “hear and determine * * * any action that involves an inter vivos trust.” 

{¶43} R.C. 2101.24(C) confers broad authority to the probate court to address 

collateral matters, including “plenary power at law and in equity to dispose fully of any 

matter that is properly before the court.” Franklin v. Franklin, 8th Dist. Cuyahoga No. 

94126, 2010-Ohio-4251, ¶ 14 citing R.C. 2101.24(C); Reinhart v. Bank One Columbus, 

125 Ohio App.3d 719, 728, 709 N.E.2d 559 (10th Dist.1998), citing Wolfrum v. Wolfrum, 

2 Ohio St.2d 237, 208 N.E.2d 537 (1965), paragraph one of the syllabus. This plenary 

power authorizes the probate court to exercise complete jurisdiction over the subject 

matter to the fullest extent necessary. In re Ewanicky, 8th Dist. Cuyahoga No. 81742, 

2003-Ohio-3351, ¶ 8, citing Johnson v. Allen, 101 Ohio App.3d 181, 185, 655 N.E.2d 

240 (8th Dist.1995). 

{¶44} The November 25, 2013 judgment entry appointed counsel stated: 

 The Court finds that due to the multiple issues remaining for 

determination in the trust proceeding, the multiple appeals, and the 

ongoing litigious nature of disputes involving the beneficiaries and the 

trust, that it is in the best interest of the trust to have an attorney represent 

the trust's interest. 
Stark County, Case No. 2013CA00237 16 

{¶45} Fricke and Emily Clark argue separate counsel to represent the 

Irrevocable Trust is unnecessary because the second successor Trustee, John Frank, is 

an attorney. Fricke and Emily Clarke have moved four times to have John Frank 

removed as the administrator of the McCauley Estate. Fricke and Emily Clark have 

moved to have a third successor Trustee appointed. Fricke and Emily Clark have filed a 

declaratory judgment against John Frank claiming a breach of his fiduciary duties. The 

Probate Court's conclusion that the beneficiaries have a conflict with John Frank that is 

impeding the resolution of this trust is demonstrated in the record. We find there was no 

abuse of discretion for the Probate Court to determine it was in the best interests of the 

Irrevocable Trust to appoint neutral third party legal counsel to represent the trust's 

interests so that the issues in the inter vivos Irrevocable Trust can be eventually 

resolved. 

Supersedeas Bond

{¶46} On October 23, 2013, the Probate Court scheduled a hearing for 

November 13, 2013 to set a bond on the appeals of judgments rendered in Probate 

Court Case Nos. 209512, 208532, 209055, and 205029. The hearing was held on 

November 13, 2013 and by judgment entry on November 25, 2013, the Probate Court 

ordered Fricke and Emily Clark to post a $10,000.00 supersedeas bond. The court 

stated the bond was to cover, in part, the additional costs and expenses during the 

pendency of the appeal. That same judgment entry appointed independent counsel to 

represent the interests of the Irrevocable Trust. 

{¶47} The record is silent and the parties have not made clear in their appellate 

briefs the genesis of the Probate Court's October 23, 2013 order to schedule a hearing 
Stark County, Case No. 2013CA00237 17 

on a supersedeas bond. The hearing on the supersedeas bond was held on November 

13, 2013. Fricke and Emily Clark have not provided this court with a transcript of the 

November 13, 2013 hearing. Fricke and Emily Clark argue the Probate Court had no 

authority to sua sponte set a supersedeas bond because they did not request a stay of 

execution of the September 9, 2013 judgment in their appeal of the same. 

{¶48} Pursuant to R.C. 2505.09, "* * * an appeal does not operate as a stay of 

execution until a stay of execution has been obtained pursuant to the Rules of Appellate 

Procedure or in another applicable manner, and a supersedeas bond is executed by the 

appellant to the appellee * * *." R.C. 2505.14 states: 

A supersedeas bond shall be payable to the appellee or otherwise, as 

may be directed by the court, when the conflicting interests of the parties 

require it, and shall be subject to the condition that the appellant shall 

abide and perform the order, judgment, or decree of the appellate court 

and pay all money, costs, and damages which may be required of or 

awarded against him upon the final determination of the appeal and 

subject to any other conditions that the court provides. When the final 

order, judgment, or decree appealed is for the payment of money, the 

bond may provide that, if the final order, judgment, or decree is not paid 

upon final affirmance, it may be entered against the sureties on the bond. 

{¶49} R.C. 2101.24(C) confers broad authority to the probate court to address 

collateral matters, including “plenary power at law and in equity to dispose fully of any 

matter that is properly before the court.” Franklin v. Franklin, 8th Dist. Cuyahoga No. 

94126, 2010-Ohio-4251, ¶ 14 citing R.C. 2101.24(C); Reinhart v. Bank One Columbus, 
Stark County, Case No. 2013CA00237 18 

125 Ohio App.3d 719, 728, 709 N.E.2d 559 (10th Dist.1998), citing Wolfrum v. Wolfrum, 

2 Ohio St.2d 237, 208 N.E.2d 537 (1965), paragraph one of the syllabus. This plenary 

power authorizes the probate court to exercise complete jurisdiction over the subject 

matter to the fullest extent necessary. In re Ewanicky, 8th Dist. Cuyahoga No. 81742, 

2003-Ohio-3351, ¶ 8, citing Johnson v. Allen, 101 Ohio App.3d 181, 185, 655 N.E.2d 

240 (8th Dist.1995). 

{¶50} Based on the procedural history of this case, we find the Probate Court 

did not abuse its discretion in sua sponte ordering Fricke and Emily Clark to post a 

supersedeas bond. The supersedeas bond will protect the interests of the Irrevocable 

Trust during the pendency of the multiple appeals. Protecting the interests of the 

Irrevocable Trust is within the equitable and plenary powers of the Probate Court. 

Further, without a transcript of the November 13, 2013 hearing, we must presume 

regularity in the proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 

N.E.2d 384 (1980). 

 
Stark County, Case No. 2013CA00237 19 

{¶51} The sole Assignment of Error of Appellants Jennifer Fricke and Emily 

Clark is overruled. 

CONCLUSION 

{¶52} The judgment of the Stark County Court of Common Pleas, Probate 

Division, is affirmed. 

By: Delaney, J., 

Gwin, P.J. and 

Baldwin, J., concur.