In re Miles

2024 Ohio 5129

• Court: Ohio Court of Appeals
• Decided: October 24, 2024
• Docket: 2024 CA 00046
• Status: Published

Opinion

[Cite as In re Miles, 2024-Ohio-5129.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: PERRY L. MILES JUDGES: TESTAMENTARY TRUST Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Andrew J. King, J.

Case No. 2024 CA 00046

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Probate Division, Case No. 19750734(30734)

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 24, 2024

APPEARANCES:

For Plaintiff-Appellants For Defendant-Appellees

W. SCOTT HAYES PETER N. GRIGGS, ESQ. 195 E. Broad Street JENNIFER HUBER, ESQ. P.O. Box 958 Brosius, Johnson & Griggs, LLC Pataskala, Ohio 43062 1600 Dublin Road, Suite 100 Columbus, Ohio 43215 For Ohio Attorney General

LIZA DIETRICH, ESQ. Associate Assistant Attorneys General Charitable Law Section 30 E. Broad Street, 25th Floor Columbus, Ohio 43215-3130 Licking County, Case No. 2024 CA 00046 2

Hoffman, J. {¶1} Appellants City of Johnstown and Johnstown-Monroe School District appeal

the judgment entered by the Licking County Common Pleas Court, Probate Division,

overruling their motion to intervene. Appellees are Roger W. Smith, Trustee, and Ohio

Attorney General David Yost.

STATEMENT OF THE FACTS AND CASE

{¶2} Brigadier General Perry L. Miles died in 1961, and his last will and testament

was admitted to the Licking County Probate Court. Item 14 of the will created a charitable

trust (hereinafter “Trust”), which owns 168.06 acres of undeveloped land in Licking

County. The Trust owns approximately $1,290,000.00 in other assets. In pertinent part,

the Trust provides:

It is my wish and desire that upon the termination of the life estates

hereinbefore provided, that my farm, residences, buildings, furnishings, and

personal effects, books and antiques be kept and maintained as the

Longwell and Miles Memorial Estate for the purpose of Religious,

Educational and Recreational good and benefit to the residents of

Johnstown Village, Liberty Township and surrounding community. To

provide for the safe keeping of items of historical value to the community,

to provide a gathering place for groups interested in the betterment of

mankind through religion and education study; and to provide suitable

environment for picnics, camping and recreation areas, for the youth of the

community. Licking County, Case No. 2024 CA 00046 3

The management and control of said trust shall be vested in my said

trustee, or his successor, together with the individual person that holds the

position of President of The Johnstown Bank, the President of The

Johnstown Federal Savings and Loan Association, the Mayor of the Village

of Johnstown, Licking County, Ohio, and the President of the Township

Trustees of Liberty Township, Licking County, Ohio, which shall be

designated and known as the Longwell and Miles Memorial Estate Body.

Said Management Body shall have full and complete control of all of

said trust property and shall make such rules and regulations as are

deemed necessary for proper functioning of the trust and its purposes. The

judgment of the Management Body shall be complete and final as to any

matters that concern the use and purpose for which the trust is created.

Said Management Body shall have the power and authority to carry on

farming or other income producing activity that in their judgment may

become necessary for the maintenance and operation of the Longwell and

Miles Memorial Estate. I also authorize said management body, should it

become necessary to properly maintain the trust property or to carry out the

purpose of the trust, to borrow money and as security to pledge such assets

as may be necessary, real or personal.

In all cases in which said Management Body is required to do an act,

the majority of them shall govern and the acts of such majority shall be

binding upon the trust estate and upon all persons whomsoever. Licking County, Case No. 2024 CA 00046 4

{¶3} Since 2010, the Trustee has been required to file status reports with the trial

court every six months to allow the court to monitor the Trust’s activities. In August of

2022, the Trustee filed an application with the trial court seeking permission to terminate

the Trust, and distribute the Trust’s assets to the Licking Park District to fund the

development of a memorial park, and to the Licking County Foundation to fund

scholarships for local schools. The application included a resolution approving the

proposal signed by three members of the Management Body, including the trustee. The

president of the Liberty Township Trustees did not sign the resolution, but filed a

memorandum stating he did not object to the proposal, provided any funds given to the

park district were specifically earmarked for the General Miles Memorial Park.

{¶4} Appellants City of Johnstown and Johnstown-Monroe School District, along

with the Greater Johnstown Parks District1 (hereinafter “the Johnstown Contingent”) filed

a motion to intervene. The Johnstown Contingent also filed a complaint for declaratory

judgment.

{¶5} The Ohio Attorney General filed a motion to intervene, a response in

opposition to the Johnstown Contingent’s motion to intervene, and a motion to dismiss

the Johnstown Contingent’s complaint for declaratory judgment. On April 18, 2024, the

trial court granted the motion of the Ohio Attorney General to intervene, and denied the

Johnstown Contingent’s motion to intervene, finding they lacked standing to intervene.

Appellants appeal this judgment in App. Case No. 24 CA 00046. On the same day by

separate judgment entry, the trial court dismissed the Johnstown Contingent’s declaratory

1 The Johnstown Parks and Recreation District has not appealed the decisions of the trial court. Licking County, Case No. 2024 CA 00046 5

judgment action based on lack of standing. Appellants appealed this judgment in App.

Case No. 24 CA 00045.

{¶6} Although the cases have not been consolidated by this Court, Appellants

filed a single brief including both case numbers, and assignments of error related to both

appeals. It is from the April 18, 2024 judgments of the trial court Appellants prosecute

their appeals, assigning as error:

I. THE LOWER COURT COMMITTED REVERSIBLE ERROR

WHEN IT FAILED TO ALLOW THE JOHNSTOWN CONTINGENT TO

INTERVENE IN THE MATTER OF THE PERRY L. MILES

TESTAMENTARY TRUST.

II. THE LOWER COURT COMMITTED REVERSIBLE ERROR

WHEN IT DISMISSED THE COMPLAINT OF THE JOHNSTOWN

CONTINGENT.

I.

{¶7} In their first assignment of error, Appellants argue the trial court erred in

overruling their motion to intervene.

{¶8} The denial of a motion to intervene, when the purpose for which intervention

was sought may be litigated in another action, does not affect a substantial right under

R.C. 2505.02(B)(1) which determines the action and prevents the judgment, and therefore

is not a final, appealable order. Gehm v. Timberline Post & Frame, 2007-Ohio-607, ¶ 37.

See, also, Weese v. Dalton, 2023-Ohio-3905, ¶ 30 (5th Dist.). Licking County, Case No. 2024 CA 00046 6

{¶9} Appellants sought to intervene to ensure the modification sought on behalf

of the Trust, which would result in its termination and final distribution of assets, complied

with the terms of the Trust and the intention of General Miles. This purpose could be

litigated in another action, and in fact, Appellants filed a declaratory judgment seeking the

same result. We therefore find the judgment of the trial court denying Appellants’ motion

to intervene is not a final, appealable order under R.C. 2505.02(B)(1), and this Court does

not have jurisdiction over the appeal.

II.

{¶10} Appellants’ second assignment of error relates solely to App. No. 24 CA

00045, and will be addressed under separate opinion issued in that case.

{¶11} The appeal is dismissed for want of a final, appealable order.

By: Hoffman, J. Delaney, P.J. and King, J. concur