Karras v. Karras

2016 Ohio 8079

• Court: Ohio Court of Appeals
• Decided: December 9, 2016
• Docket: 26814
• Status: Published

Opinion

[Cite as Karras v. Karras, 2016-Ohio-8079.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

GIORGIO A. KARRAS, et al. : : Plaintiff-Appellant/Cross-Appellee : Appellate Case No. 26814 : v. : Trial Court Case No. 14-MSC-161 : OURANIA M. KARRAS, et al. : (Probate Appeal from : Common Pleas Court) Defendant-Appellee/Cross-Appellant : :

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OPINION

Rendered on the 9th day of December, 2016.

JAMES R. KINGSLEY, Atty. Reg. No. 0010720, Kingsley Law Office, 157 West Main Street, Circleville, Ohio 43113 Attorney for Plaintiffs-Appellants/Cross-Appellees, Giorgio A. Karras, Maria A. Powers and Anastasios A. Karras

JAMES PAPAKIRK, Atty. Reg. No. 0063862, and HOWARD M. SCHWARTZ, Atty. Reg. No. 0024571, Flagel & Papakirk, LLC, 50 East Business Way, Suite 410, Cincinnati, Ohio 45241 Attorneys for Defendant-Appellee/Cross-Appellant, Ourania Karras, Co-Trustee

JAMES L. JACOBSON, Atty. Reg. No. 0002031, Pickrel, Schaeffer and Ebeling, Co. LPA, 2700 Kettering Tower, Dayton, Ohio 45423-2700 Attorney for Defendant-Appellee, Estate of Andreas G. Karras, Deceased

ELIZABETH E.W. WEINEWUTH, Atty. Reg. No. 0078113, Vorys, Sater, Seymour and Pease LLP, Suite 3500, Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202 Attorney for Defendant-Appellee, PNC Bank, National Association

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HALL, J.

{¶ 1} Plaintiffs Giorgio Karras, Anastasios Karras, and Maria Powers (collectively

the “Siblings”) appeal from the trial court’s entry of partial summary judgment in favor of

their step-mother, defendant Ourania Karras, on their claim for declaratory judgment

regarding whether certain assets were included in the estate of their deceased father,

Andreas Karras, or whether the assets were part of a trust Andreas had established with

Ourania long before his death.

{¶ 2} In a cross appeal, Ourania raises several arguments. First, she contends the

trial court erred in finding that she and Maria each were entitled to 50 percent of a joint-

and-survivor account that she maintains was part of the non-trust estate. Second, she

claims the trial court erred in finding (1) that she bore responsibility for expenses related

to her occupancy of the marital residence and (2) that she, despite being the surviving

settlor-trustee, could not act independently of the plaintiffs, who were successor co-

trustees. Third, she asserts that the trial court erred in holding that she could not prevail

on a conversion counterclaim related to property removed from a safe.

{¶ 3} The facts underlying the present dispute accurately were summarized in the

trial court’s July 28, 2015 judgment entry as follows:

On May 24, 2013, Andreas Karras (“Andreas”) passed away,

survived by his wife, Ourania Karras (“Ourania”), and his three children from

a previous marriage, Maria Powers (“Maria”), Anastasios Karras (“Tom”),

and Giorgio Karras (“Giorgio”) (collectively the “Siblings”). Andreas’ last will

and testament (the “Will”), dated July 15, 1992, nominates Ourania as -3-

executor of his estate (the “Estate”) and pours all of the assets of the Estate

into a trust dated the same day as the Will. The Will notes that all personal

and household effects have already been transferred to the trust by

operation of an Assignment of Furniture, Furnishings and Personal Effects

(the “Assignment”), executed the same day. The Assignment recites that

Andreas and Ourania have transferred all of their interest in personal

property which they own, or may own in the future, to the trust. A Letter of

Intent and Declaration of Gift (the “Letter of Intent”), also executed the same

day, provides that all property held in the trust is commonly owned, unless

otherwise designated in writing in the trust documents or in the manner in

which title is held in the trust.

The trust referenced in the Will is the Andreas G. Karras Trust (the

“Trust”), dated July 15, 1992. The Trust is a joint trust. During their joint

lives, Andreas and Ourania are authorized to transfer property into and out

of the Trust and to amend or revoke the Trust.

If Andreas predeceases Ourania, then upon his death, Ourania

continues to serve as surviving trustee and the Siblings assume the duties

of successor co-trustees. In that case, the trustees are directed to divide the

commonly owned Trust assets into two shares, one designated Survivor’s

Trust A, which is revocable by Ourania, and the other designated

Decedent’s Marital Share, Trust B, which is irrevocable. To the extent the

share designated Trust B exceeds the unified tax credit, the excess is to be

administered under the terms [of] Trust A. The trustees are directed to -4-

divide separately owned Trust assets differently. Ourania’s separate Trust

property is to be allocated to Trust A. Andreas’ separate Trust property is to

be divided into four equal shares; one share each to be allocated and

distributed to the Siblings according to the terms of the Trust [footnote

omitted], and one share to be held in trust for Ourania.

During Ourania’s lifetime, she is entitled to all of the net income and

principal from Trust A. From Trust B, she is entitled to all of the net income,

the principal necessary for her maintenance and support, and annual

payments of $5,000 or 5% of the value of the principal, whichever is greater.

Additionally, she is entitled to remain in the couple’s home (the “Residence”)

or to have the Residence sold in order to purchase other accommodations

or to provide for nursing home care. Upon Ourania’s death, the trustees are

directed to distribute $15,000 to Ismirne Mixalatou, or if she predeceases

distribution, to Joanne Mixalatou, if she is unmarried. The assets remaining

in Trust A and Trust B are to be divided into equal shares and distributed to

Andreas’ and/or Ourania’s children, if living, according to the terms of the

Trust.

On December 29, 2005, Andreas and Ourania executed an

Amendment to the Andreas G. Karras Trust Dated July 15, 1992 (the

“Amendment”). The Amendment deletes the provisions creating Trust A and

Trust B. Additionally, the Amendment modifies the allocation of Trust assets

so that, upon Andreas’ death, Ourania is to receive $200,000 in “liquid

funds” from “[Andreas’] separate Trust property,” free of trust, “in lieu of an -5-

allocation of Trust assets to Trust A or Trust B.” The remainder of Andreas’

separate Trust property is to be divided into equal shares and allocated to

the Siblings.

***

After executing the Estate Planning Documents, Andreas opened

numerous retirement, investment, savings, and checking accounts, the

majority of which were not titled in the name of the Trust, but rather were

titled jointly with other owners and/or were designated as payable to one or

more beneficiaries upon the death of the owner or owners. For instance,

seven years after Andreas and Ourania executed the documents, in

December 1999, Andreas opened an individual retirement account through

Pioneer Investments (“Pioneer IRA”). On the application for the account,

Andreas is listed as the owner and Ourania is listed as the sole beneficiary.

Consistent with the forgoing, the financial advisor who assisted Andreas in

establishing the account asserts that Andreas “affirmatively stated that he

intended for these Pioneer IRA funds to benefit his wife, Ourania Karras,

and that he had made provision for his children elsewhere.”

Three years later, on February 15, 2002, Andreas and Ourania

opened a checking account in their names (“PNC Checking 8872”). The

paperwork indicates that Andreas, Ourania, and Maria are owners having

rights of survivorship. On May 10, 2006, Andreas and Ourania opened

another checking account in their names (“PNC Checking 0076”), with no

other owners. On August 13, 2008, Andreas and Ourania purchased a -6-

certificate of deposit, also titled in their names (“PNC CD 0897”). The

paperwork indicates that Andreas, Ourania, and Maria are owners having

rights of survivorship, and that Tom is a payable on death beneficiary. On

August 25, 2008, Andreas opened a savings account in his and Maria’s

names (“PNC Savings 2432”). The paperwork indicates that he and Maria

are owners having rights of survivorship, and that Ourania is a payable on

death beneficiary.

During this time, Andreas also opened accounts titled in his name

and accounts titled in the name of the Trust. For instance, on April 28, 2010,

Andreas opened a checking account titled in his name (“PNC Checking

3086”), with no other owners. Although the dates on which they were

opened is unknown, at least two other accounts (“PNC Investment 0674”

and “Merrill Lynch 7127”) were titled in Andreas’ name, with no other

owners, and various accounts with Wells Fargo were titled in the name of

the Trust.

Shortly after Andreas’ death, the Siblings and Ourania made several

transfers from the accounts. On May 24, 2013, Maria withdrew $21,000

from PNC Checking 8872. Subsequently, she withdrew $60,000 from PNC

Savings 2432. On August 13, 2013, Ourania closed PNC CD 0897 and

transferred the proceeds to a checking account titled in her name.

(Doc. #100 at 2-5).

{¶ 4} In May 2014, the Siblings filed a complaint for declaratory judgment, -7-

conversion, and removal of Ourania as a trustee. Among other things, they sought a

declaratory judgment that various accounts (including accounts referenced above) were

trust assets. They also alleged that Ourania improperly had converted the CD mentioned

above when she closed the account and transferred the proceeds into her own checking

account. Based on her actions, they sought Ourania’s removal as a trustee.

{¶ 5} Ourania subsequently asserted several counterclaims. Specifically, she

sought a declaratory judgment regarding her ability to act independently as a trustee, her

ability to live in the marital residence expense free, and ownership of various accounts

and assets. She also alleged conversion and concealment of property belonging to her,

the estate, or the trust, and she requested an accounting. The parties filed competing

motions for partial summary judgment and summary judgment on the respective claims

and counterclaims. The trial court resolved these motions, and others, in a July 28, 2015

decision and entry (Doc. #100) from which the present appeal and cross appeal have

been filed.

{¶ 6} As relevant here, the trial court granted Ourania summary judgment on the

Siblings’ declaratory-judgment claim regarding ownership of various accounts. Contrary

to the Siblings’ argument, the trial agreed with Ourania that the disputed accounts were

not part of the trust. The trial court also found Ourania entitled to summary judgment on

her declaratory-judgment counterclaim that she alone is entitled to the Pioneer IRA and

PNC 0076 accounts mentioned above. The trial court concluded, however, that Ourania

and Maria were entitled to split equally the balances remaining in PNC Checking 8872

and PNC CD 0897. With regard to Ourania’s ability to act independently as a settlor-

trustee, the trial court concluded that she was required to act jointly with the Sibling co- -8-

trustees and that she could not remove them. Therefore, the trial court found the Siblings

entitled to summary judgment on her declaratory judgment counterclaim regarding her

ability to act independently. As for Ourania residing in the marital residence, the trial court

determined that the trust granted her a life estate in, and exclusive possession of, the

residence. The trial court also concluded, however, that she was responsible for paying

the associated taxes and expenses. Accordingly, the trial court found the Siblings entitled

to summary judgment on their claim that Ourania was not permitted to live in the residence

expense free. It found Ourania entitled to summary judgment, however, on her

counterclaim that Tom Karras had no right to continue living in the residence.

{¶ 7} With regard to conversion, the trial court found Ourania entitled to summary

judgment on the Siblings’ claim, as co-trustees, that she improperly had converted the

PNC CD referenced above by closing the account and transferring the proceeds to her

own account. The trial court reached this conclusion based on its finding that the CD was

not a trust asset. The trial court also determined, however, that Maria personally had a

conversion claim regarding the CD because Maria and Ourania were both surviving

owners of the CD funds. As for Ourania’s own conversion counterclaims, the trial court

found the Siblings, as co-trustees, entitled to summary judgment. The trial court found a

genuine issue of material fact, however, regarding a conversion claim by Ourania against

Maria regarding the latter’s withdrawal of $21,000 from PNC Checking 8872.

{¶ 8} The trial court next found the Siblings entitled to summary judgment

regarding Ourania’s concealment counterclaim insofar as it related to trust property. The

trial court found the concealment issue viable, however, insofar as it related to estate

property, which included items in a safe and an automobile. Finally, the trial court found -9-

Ourania entitled to summary judgment on the Siblings’ claim that she had violated no-

contest provisions of Andreas’ will and the trust. (Doc. #100 at 16-31). Although the trial

court’s ruling did not dispose of all issues between the parties, Civ.R. 54(B) certification

has been affixed.1

{¶ 9} In their sole assignment of error on appeal, the Siblings contend the trial court

erred in finding that property acquired after July 15, 1992 did not constitute trust property.

Their argument concerns the various accounts mentioned above that were opened after

the trust was created. The Siblings assert that these accounts were part of the trust for

two reasons: (1) valuable consideration was paid for a declaration that all later-acquired

property would be held in trust and (2) subsequent to acquiring the accounts, Andreas

repeatedly manifested his intent that they were to be included in the trust. Therefore, the

Siblings maintain that the trial court erred in entering summary judgment against them on

their declaratory-judgment claim that the accounts were trust assets.

{¶ 10} Upon review, we see no error in the trial court’s ruling. The Siblings’

argument implicates language in the July 15, 1992 trust and a simultaneous assignment

purporting to make later-acquired property part of the trust. In relevant part, the trust

document reads:

The Trust is intended by the Trustors to be the recipient of all their

assets, whether commonly owned, community, quasi-community, separate

or joint, as well as the named Beneficiary of all interests of which the

Trustors are, or may become, Beneficiaries.

1 At this court’s request, the trial court issued a September 7, 2016 entry clarifying that it intended to and did affix Civ.R. 54(B) certification to the decision and judgment entry from which the parties have appealed and cross appealed. -10-

(Emphasis added.) (Doc. #2 at Karras Trust pg. 4).

{¶ 11} The assignment executed by Andreas and Ourania when the trust was

created provides:

We, Andreas G. Karras and Ourania A. Karras, do hereby sell,

transfer and assign, without consideration, all right, title and interest which

we have in our personal property of every kind, including but not limited to

furniture, fixtures, appliances, furnishings, antiques, pictures, china,

silverware, glass, books, jewelry, wearing apparel, recreational vehicles,

tools, and all policies of fire, burglary, property damage, and other insurance

on or in connection with the use of this property, stocks, bonds, mutual

funds, certificates of deposit, promissory notes, savings accounts, checking

accounts, which we now own or which we may own in the future, to:

The Andreas G. Karras Trust, dated July 15, 1992, Andreas G.

Karras and Ourania A. Karras, Trustor(s) and/or Trustee(s).

(Emphasis added.) (Id. at Assignment of Furniture, Furnishings, and Personal Effects).

{¶ 12} In their appellate brief, the Siblings assert that “[w]hen and how after

acquired property becomes an asset of a trust is an issue of first impression in Ohio.”

(Siblings’ Oct. 15, 2015 brief at 12). They acknowledge the widely-recognized rule,

however, that “an interest which has not come into existence or an expectation of hope

of receiving property in the future cannot be held in trust.” (Id.). We agree. The

Restatement of Trusts expressly provides that “[a]n expectation or hope of receiving

property in the future, or an interest that has not come into existence or has ceased to

exist, cannot be held in trust.” Restatement (Third) of Trusts § 41 (2003). Restatement -11-

“notes” following § 41 elaborate on this rule:

b. Nonexistent interests. An interest may not be in existence because

the thing that would be the subject matter of the interest is not itself in

existence or, although the thing exists, no one has an interest in it. In these

cases, no one has an interest in anything of which there could be a

declaration of trust or a transfer to another in trust. A person can make a

promise to create a trust of an interest in such a thing should it thereafter

be acquired, but such an agreement is not binding unless the requirements

of the law of contracts are satisfied. * * *

c. Contractual liability. If consideration is received for a purported

declaration of trust or assignment in trust of a bare expectancy or

nonexistent property, the purported declaration or transfer is treated as a

contract to create a trust even though it is worded as a present declaration

or transfer. * * *

d. Intended trust property subsequently acquired. A person

gratuitously purports to declare a trust, or to make a transfer to another in

trust, of a bare expectancy or nonexistent property. No trust arises when

the person later acquires the intended trust property in the absence of some

express or implied manifestation at the later time of an intent to give effect

to the trust. * * *

Restatement (Third) of Trusts § 41 (2003) at notes b, c, and d.

{¶ 13} While acknowledging the general rule that later-acquired property is not -12-

trust property, the Siblings argue that the scenarios depicted in notes “c” and “d” above

apply here. First, they assert that Andreas’ and Ourania’s declaration of trust with respect

to later-acquired property is enforceable, as a matter of contract law, because it was

supported by consideration. 2 Specifically, they contend “[t]he consideration was

$200,000 of Andreas’ money payable to Ourania and her right to live in the house.”

(Siblings’ brief at 12). Second, the Siblings maintain that the accounts at issue constituted

trust property because Andreas repeatedly manifested his intent, after acquiring the

accounts, that they were part of the trust.

{¶ 14} Neither argument is persuasive. As set forth above, the 1992 assignment

that transferred property into the accompanying trust explicitly stated that the assignment

of assets was “without consideration.” Moreover, as Ourania correctly points out, the

$200,000 mentioned by the Siblings constituted explicit consideration for the 2005 trust

amendment referenced above that deleted the creation of the “A/B” aspects of the original

trust. Nothing suggests that it was consideration for a contract-based agreement to

include later-acquired property as a trust asset. Finally, the Siblings have not

demonstrated that Ourania’s right to live in the marital residence constituted consideration

for any promise to hold later-acquired assets in trust.

{¶ 15} With regard to the second issue, the Siblings contend Andreas repeatedly

manifested his intent for the disputed accounts to be included in the trust after opening

them. In support, they cite Maria Powers’ deposition testimony that Andreas told her

2 The Siblings’ appellate brief contains several pages of analysis. (See Siblings’ brief at 7-12). Most of it, however, involves property already in existence at the time of the trust. The Siblings present a single page of argument about later-acquired property and the effect of consideration. (Id. at 12). -13-

Ourania would get $200,000 and nothing else from the trust. She claimed Andreas said

the Siblings would get “the rest.” (Powers depo. at 299). These statements, however, fail

to resolve which assets were included in the trust to be divided by the Siblings. When

addressing whether the accounts at issue were in or out of the trust, which is the issue

before us, the trial court reasoned:

With respect to the Pioneer IRA, the affidavit of the financial advisor

who established the account shows that Andreas intended for the account

to pass pursuant to its terms upon his death. Likewise, the documents

creating the PNC accounts show that Andreas and Ourania intended for the

accounts to pass pursuant to their terms upon the death of one or more of

their owners. Significantly, the PNC accounts were designated personal

accounts, despite the fact that the documents provided an option to

designate them as trust accounts. Additionally, the accounts listed multiple

owners with rights of survivorship. Indeed, in some cases, the accounts not

only listed multiple owners, but also payable on death beneficiaries. Given

that the Siblings do not offer any evidence that a contrary intention was

manifested at the time the IRA and PNC accounts were opened, the Court

concludes that Ourania is entitled to summary judgment on the Siblings’

claim that the Disputed Accounts belong to the Trust.

(Doc. #100 at 18).

{¶ 16} We concur in the trial court’s analysis. In her deposition, Maria Powers

insisted that Andreas “wanted everything to go in the trust.” (Powers depo. at 91). But

whatever “everything” may have encompassed, Andreas’ actions when setting up the -14-

accounts at issue demonstrate that he did not intend for those accounts to be trust assets.

As the trial court correctly noted, the accounts were designated as personal accounts

rather than trust accounts and had rights of survivorship and payable-on-death

beneficiaries. Such contemporaneous manifestations of intent establish that the accounts

were not trust assets. We see no error in the trial court’s resolution of the issue.

Accordingly, the Siblings’ sole assignment of error is overruled.

{¶ 17} In her first assignment of error on cross appeal, Ourania asserts that the

trial court erred in finding her and Maria each entitled to one-half of the PNC CD account

referenced above. The trial court ruled that two PNC accounts, “PNC checking 8872 and

PNC CD 0897” were divided 50/50 between Ourania and Maria. Her cross-appellant’s

first assignment of error challenges the trial court’s ruling regarding “the amounts

remaining in the joint and survivorship accounts.” (Emphasis added.) However, her

argument only deals with the CD account. Also the evidence she argues creates a

genuine issue of material fact is her affidavit discussing the opening of the CD account

with “ou[r] joint funds,” not the PNC checking 8872 account. Accordingly, the record

supports the trial court decision for a 50/50 split of the checking 8872 account, and we

limit our discussion to whether summary judgment was appropriate only to the PNC CD

0897 account.

{¶ 18} Based on our resolution of Siblings’ assignment of error, the trial court

correctly concluded that the PNC account, which was a joint-and-survivor account, was

not a trust asset. In analyzing ownership of the PNC account (and other accounts not at

issue here), the trial court reasoned:

* * * It is well-settled that where there are joint account owners with -15-

rights of survivorship, the surviving owner or owners are entitled to the

balance remaining in the account upon the death of one of the owners.

[Citation omitted.]. In cases in which it is undisputed that neither of two

surviving owners contributed to the account, each is entitled to an equal

share of the remaining balance. Weyand v. Barnes, 10th Dist. Franklin No.

08AP-857, 2009-Ohio-3239, ¶22. In contrast, in cases in which the surviving

owners’ contributions are disputed, at least one Ohio appellate court has

indicated that each is entitled to her net contribution, plus an equal share of

the remaining balance. Miller v. Miller, 139 Ohio App.3d 512, 744 N.E.2d

778 (8th Dist.2000).

* * * Andreas, Ourania, and Maria are joint owners, with rights of

survivorship, of PNC Checking 8872 and PNC CD 0897. There is no dispute

that Maria did not contribute any funds to these accounts. Maria, citing

Ourania’s deposition testimony that she was unemployed and financially

dependent on Andreas, argues that, likewise, there is no dispute that

Ourania did not make any contributions. In response, Ourania alleges that

the contributions came from the Trust assets, which were commonly owned

pursuant to the Letter of Intent. However, Ourania offers no evidence

showing that the Trust was the source of the contributions, and

consequently, fails to show that there is a genuine issue of material fact as

to her entitlement to the remaining balances. Accordingly, the Court

concludes that Ourania and Maria are each entitled to one-half of the -16-

balances remaining in PNC Checking 8872 and PNC CD 0897 at the time

of Andreas’ death.

(Doc. #100 at 19-20).

{¶ 19} On appeal, Ourania challenges the trial court’s award of one-half of the PNC

CD account to Maria. Specifically, Ourania contends she presented evidence that she

and Andreas opened the PNC CD with “joint funds.” Regardless of whether these funds

came from the trust or from non-trust assets belonging to Ourania and Andreas

personally, Ourania asserts that she was a “joint contributor” of all of the funds in the PNC

account. Therefore, she contends she was entitled to 100 percent of the balance. In

support of her argument, Ourania refers to the following portion of her summary judgment

affidavit in which she averred:

Later, Andreas told me that we would set up an interest-bearing

certificate of deposit at PNC Bank. In 2008, we went together and signed

the consumer signature card attached at Exhibit B. Maria Powers was not

present when we signed it. These were ou[r] joint funds and we discussed

that this entire certificate of deposit was mine in the event of Andreas’ death.

We never discussed that my share in the certificate of deposit would be

limited or that it was a substitute for anything else I would receive under the

Will, the Trust, the Pioneer IRA or any other account.

(Emphasis added) (Doc. #58 at ¶10).

{¶ 20} Upon review, we are persuaded, in part, by Ourania’s argument. The case

law governing the disposition of the PNC CD is clear. The Ohio Supreme Court

summarized this law in Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006- -17-

Ohio-2418, 847 N.E.2d 405, as follows:

“The existence of a joint and survivorship bank account raises a

rebuttable presumption that co-owners of the account share equally in the

ownership of the funds on deposit.” Vetter v. Hampton (1978), 54 Ohio St.2d

227, 8 O.O.3d 198, 375 N.E.2d 804, paragraph three of the syllabus. This

presumption applies in the absence of evidence to the contrary. Id. at

paragraph four of the syllabus; see Wright v. Bloom (1994), 69 Ohio St.3d

596, 602–603, 635 N.E.2d 31. “A joint and survivorship account belongs,

during the lifetime of all parties, to the parties in proportion to the net

contributions by each to the sums on deposit, unless there is clear and

convincing evidence of a different intent.” In re Estate of Thompson (1981),

66 Ohio St.2d 433, 20 O.O.3d 371, 423 N.E.2d 90, paragraph one of the

syllabus; see Uniform Probate Code 6–103. We expressly stated that

Thompson did not “significantly alter our earlier case law” but merely

amended our analytic framework to better effectuate “the intent of the

parties to create joint and survivorship accounts.” Thompson, 66 Ohio St.2d

at 439, 20 O.O.3d 371, 423 N.E.2d 90. This language indicates that,

although we adopted a new presumption for determining ownership of joint

and survivorship accounts, the presumption of equal ownership continues

to exist when net contributions are not proven. See Uniform Probate Code

6–103, Official Comment (courts should “divide the account equally among

the parties to the extent that net contributions cannot be proven”).

Id. at ¶ 12. -18-

{¶ 21} The foregoing case law dictates that, prior to Andreas’ death, the funds in

the PNC CD account belonged to Andreas, Ourania, and Maria in proportion to their net

contributions. 3 Maria concedes that she did not contribute anything to the account.

Therefore, if the funds to open the account were in part Ourania’s, prior to his death, the

funds in the account belonged solely to Andreas and Ourania in proportion to each’s net

contributions. The evidence in the record about the nature of those contributions is

Ourania’s affidavit that the funds in the account were “joint funds.” She appears to mean

that they were marital property. If so, a reasonable interpretation is that she and Andreas

each owned 50 percent of the funds that they jointly placed in the CD prior to his death.

This conclusion is consistent with the Ohio Supreme Court’s recognition in Cowling that

a joint-and-survivorship account belongs to the parties in proportion to their contribution

If ownership of the funds were disputed during Andreas’ lifetime, none of the funds would

be Maria’s property because she admittedly contributed nothing.

{¶ 22} Upon Andreas’ death, the funds in the PNC CD belonged to the surviving

parties, Ourania and Maria, “in proportion to their previous ownership interests

augmented by an equal share for each survivor of any interest the decedent may have

owned in the account immediately before his death * * *.” Thompson, at syllabus

paragraph two, overruled on other grounds by Wright, supra.4 Thus, we conclude there

3 “Net contributions” are “ ‘the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party which have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned.’ ” Cowling, at ¶ 13, quoting Uniform Probate Code 6–211. 4 Although Wright purports to overrule paragraph two of the syllabus of Thompson, that

paragraph contains two sentences. Wright addressed and overruled the first sentence, which states: “Sums remaining on deposit at the death of a party to a joint and survivorship account belong to the surviving party or parties as against the estate of the -19-

is a genuine issue of material fact whether Ourania is entitled to her percentage of the

“joint funds” used to open the account, as well as an equal share, along with Maria, of

Andreas’ portion of the contribution of funds. Ourania, upon proof that the account was

opened with non-specific “joint” funds, could be entitled to 75 percent of the funds in the

PNC CD at the time of Andreas’ death, and Maria is entitled to 25 percent. Accordingly,

Ourania’s first assignment of error is sustained to that extent.

{¶ 23} We reject Ourania’s additional argument, however, that she should have

been granted summary judgment on Maria’s conversion claim regarding the PNC CD.

The trial court concluded that the conversion claim remained viable because Maria was

entitled to 50 percent of the funds in the CD account, which Ourania had closed after

Andreas’ death. Based on her belief that she is entitled to 100 percent of those funds,

Ourania insists that Maria’s conversion claim fails as a matter of law. We disagree.

Although we have concluded a genuine issue of material fact whether the CD account

was opened with “joint funds,” Oriania does not claim that the account was opened with

her sole money meaning that some amount of the account is Maria’s by way of

decedent unless there is clear and convincing evidence of a different intention at the time the account is created.” (Emphasis added.) Thompson, at paragraph two of the syllabus. Wright eliminated the opportunity to present evidence of a “different intention” and held that funds remaining on deposit at the death of a party conclusively do belong to the surviving party or parties. Wright at 603 (holding that “survivorship rights under a joint and survivorship account of the co-party or co-parties to the sums remaining on deposit at the death of the depositor may not be defeated by extrinsic evidence that the decedent did not intend to create in such surviving party or parties a present interest in the account during the decedent's lifetime”). Wright did not address, and therefore did not overrule, the second sentence of paragraph two of Thompson’s syllabus, which, as we have noted above, explains how to divide the funds in a joint-and-survivorship account upon the death of one party when multiple surviving parties remain. Wright did not address that issue because in Wright there was only one surviving co-party. -20-

survivorship of Andreas’ interest. Therefore, the trial court did not err in allowing Maria’s

conversion claim to proceed. For the foregoing reasons, Ourania’s first assignment of

error is sustained in part and overruled in part.

{¶ 24} In her second assignment of error, Ourania contends the trial court erred in

declaring (1) that the trust was not responsible for paying real-estate taxes and other

expenses related to her use of the marital residence and (2) that, despite her status as

the surviving settlor of the trust, she could not act independently of the Sibling co-trustees.

{¶ 25} With regard to the former issue, the trial court held that the trust granted

Ourania a life estate in the marital residence. It also held that Ourania was not entitled to

live in the residence expense free and that the trust was not obligated to pay her real

estate taxes or other expenses. In reaching this conclusion, the trial court found the trust

language unambiguous. (Doc. #100 at 24-26). In particular, it quoted two provisions of

the trust. The first addresses occupancy of the residence and provides:

The Trustee may permit any Settlor Beneficiary to occupy rent free

any residence constituting a part of the assets of a Trust for such

Beneficiary and to pay the real estate taxes thereon, expenses of

maintaining said residence in suitable repair and condition and hazard

insurance premiums on said residence; provided, however, the Trustee

shall not exercise this power in any way which would deprive either Settlor

under this Trust of the beneficial enjoyment of the Trust and either Settlor

shall have the right to limit, restrict or terminate the Trustee’s exercises of

this power if it interferes with such beneficial enjoyment.

(Doc. #2 at Karras Trust pg. 21). -21-

{¶ 26} The second trust provision quoted by the trial court states:

The Trustee shall retain in trust the home and furnishings located at

4609 Glenheath Drive, Dayton, Ohio, or the current residence of the Settlors

at the time of the death of the Husband, for as long as Ourania A. Karras

desires to live therein. If said individual desires other accommodations, the

real property is to be sold and the proceeds used to buy such other

appropriate accommodations. Such purchase shall remain in the trust. If

appropriate, the home and furnishings may be sold and the funds used to

provide for a nursing home for said individual. Upon the death of the

Surviving Settlor, the home and furnishings, or remaining funds therefrom,

shall be allocated and distributed as specified as hereinafter provided to the

Primary Beneficiary(s) of the Settlors. The retention of said property is to in

no way imply that the Surviving Settlor cannot draw from the equity for future

investments, improvements or for the Settlor(s) general welfare. The

purpose in retaining the real property in Trust is to benefit the Settlors and

to assure the allocation and distribution to the Primary Beneficiary(s) as

hereinafter provided.

(Id. at 38-39).

{¶ 27} The trial court reasoned:

Read together, these provisions do not disclose any ambiguity

regarding whether Ourania is authorized to live in the Residence expense-

free. The first provision generally provides that the trustee may allow a

settlor to occupy any real property held by the Trust expense-free, whereas -22-

the second more specifically directs the trustee to allow Ourania to live in

the Residence for as long as she desires to do so, but does not direct the

trustee to pay the taxes and expenses incurred by the Residence. The

second provision is sufficient to grant Ourania a life estate in, and exclusive

possession of, the Residence. [Citations omitted.] With this entitlement, and

consistent with the Trust’s silence on the issue, comes the responsibility to

pay taxes and expenses incurred by the residence. [Citations omitted.]

Accordingly, the Court concludes that the Siblings are entitled to summary

judgment on their claim that Ourania is not permitted to live in the Residence

expense-free and that Ourania is entitled to summary judgment on her claim

that Tom is not permitted to remain in the Residence.

(Doc. #100 at 25-26).

{¶ 28} On appeal, Ourania asserts that a primary responsibility of the trustee is to

consider her needs as surviving spouse even if that requires invading the trust estate.

(See Doc. #2 at Karras Trust pg. 14). She also points out that the last sentence of the first

provision cited by the trial court give the surviving settlor the right to limit, restrict, or

terminate the trustee’s power if the trustee interferes with her “beneficial enjoyment” of

the trust. Finally, Ourania maintains that it is implausible to read the second provision

cited by the trial court as allowing her to sell the residence or draw from the equity while

not requiring the trust to pay her property taxes and other expenses.

{¶ 29} As a threshold matter, we note that the trial court’s finding regarding

Ourania’s right to a life estate in the residence is not before us. The Siblings’ opening

appellate brief did not raise as an issue on appeal the trial court’s declaratory judgment -23-

regarding Ourania’s right to a life estate. They raise the issue only in their reply to

Ourania’s cross-appeal, which challenges the trial court’s finding that the trust is not

required to pay all of her housing-related expenses. The Siblings insist that they can raise

the life-estate issue to “defend” the trial court’s judgment regarding payment of expenses

because Ourania has “broached the issue.” (Siblings’ December 10, 2015 Reply Brief at

3). We disagree. The issue Ourania’s cross appeal has broached is the trust’s

responsibility for paying her housing-related expenses. Whether she enjoys a life estate

or merely a license to live in the residence (the issue raised in the Siblings’ reply) is not a

“defense” to the trial court’s declaratory judgment regarding the trust’s non-obligation to

pay her expenses. If the Siblings desired to challenge the trial court’s declaratory-

judgment regarding Ourania’s life estate, they were required to raise that issue in their

own appeal. Because they did not, and because they are raising the issue as a sword to

modify the trial court’s judgment, the life-estate issue is not properly before us.

{¶ 30} With regard to the issue that is before us, the trial court correctly held that

the trust unambiguously is not required to pay Ourania’s property taxes or other housing-

related expenses. The most pertinent trust provision, the first one cited by the trial court,

states: “The Trustee may permit any Settlor Beneficiary to occupy rent free any residence

* * * and to pay the real estate taxes thereon, expenses of maintaining said residence in

suitable repair and condition and hazard insurance premiums on said residence * * *.”

(Emphasis added.) This language makes clear that Ourania, the settlor beneficiary,

enjoys the right to occupy the residence but has the corresponding obligation to pay the

expenses. The second trust provision cited by the trial court does not alter this conclusion

as it says nothing about the payment of expenses. -24-

{¶ 31} Nor are we persuaded by Ourania’s reference to trust language about a

primary responsibility of the trustee being to consider her needs as surviving spouse. This

general language does not nullify the specific provision directly addressing her occupancy

of the marital residence and her payment of associated expenses. Finally, Ourania’s

reliance on the latter part of the first trust provision quoted by the trial court is

unpersuasive. After stating that the trustee may permit Ourania to occupy the residence

and to pay the related expenses, the provision adds the following caveat: “however, the

Trustee shall not exercise this power in any way which would deprive either Settlor under

this Trust of the beneficial enjoyment of the Trust and either Settlor shall have the right to

limit, restrict or terminate the Trustee’s exercises of this power if it interferes with such

beneficial enjoyment.”

{¶ 32} We reject Ourania’s reliance on the foregoing language for at least three

reasons. First, enforcing a requirement for her to pay the associated expenses if she lives

in the marital residence cannot, ipso facto, establish a deprivation of her beneficial

enjoyment of the trust. Otherwise, the first part of the provision at issue (obligating her to

pay those expenses) never could have any force or effect. Second, the issue came before

the trial court in the context of a declaratory-judgment action. The issue was whether the

trust was obligated to pay the disputed expenses. Based on the plain trust language

quoted above, the trust unambiguously is not required to pay those expenses. The fact

that, under certain circumstances, a trustee may be able to alter that result does not

negate the fact that, at present, the trust, by its own terms, is not required to pay Ourania’s

housing-related expenses. Third, for the reasons set forth below, we are unconvinced

that Ourania may act alone to alter trust provisions she dislikes, even if she believes her -25-

“beneficial enjoyment” is being denied. For each of these independent reasons, the trial

court’s declaratory-judgment ruling was correct regarding the trust’s non-obligation to pay

Ourania’s housing expenses.

{¶ 33} As we just noted, Ourania’s second assignment of error also challenges the

trial court’s ruling that she cannot act independently and must act in concert with the co-

trustee Siblings. Ourania insists that the plain language of the trust allows her to act

independently with regard to the trust, its administration, and the disposition of its assets.

{¶ 34} In support, Ourania quotes three trust provisions. They state:

The above named Settlor Trustees [Andreas and Ourania] shall

serve jointly and severally and either shall have full authority for the Trust

without the consent of the other, to act independently in performing

transactions on behalf the Trust * * *.

(Doc. #2 at Karras Trust pg. 1).

When there is more than one Successor Trustee acting

simultaneously with other designated Trustees, the Co-Trustees so serving

must act in concert. This provision does not apply to the Settlor(s).

(Id. at 8). The Surviving Settlor shall be the Trustee, unless and until, the

Trustee resigns in writing, or is determined to be incompetent as per the

terms herein provided. The Surviving Settlor continues to retain all absolute

rights to discharge or replace any Successor Trustee of any portion or share

of the Trust which is revocable by the Surviving Settlor, as long as the

Settlor is competent.

(Id. at 12). -26-

{¶ 35} Ourania argues that the foregoing provisions are unambiguous and that

they allow her to act alone as the surviving settlor, without the concurrence of the co-

trustee Siblings. (Ourania’s November 4, 2015 brief at 22-23).

{¶ 36} Upon review, we find Ourania’s argument unpersuasive. The first provision

she cites governs the relationship between the original settlor-trustees, namely Ourania

and Andreas. It does not address what occurs after the death of one of the original settlor-

trustees. The third provision apparently gives the surviving settlor, Ourania, absolute

authority over any portion of the trust that is revocable. In its ruling, however, the trial

court correctly recognized that the only revocable portion of the trust was the “A” portion

of the original A/B trust, which the 2005 trust amendment eliminated. (Doc. #100 at 24).

“Thus, the only Trust presently existing is irrevocable.” (Id.). Finally, the second provision

states that multiple co-trustees must act in concert. This plainly applies to the Siblings.

The second provision then adds: “This provision does not apply to the Settlor(s).” It is

unclear to us whether this means a settlor need not act in concert with successor co-

trustees. In any event, another trust provision clarifies the issue in the present case by

explicitly stating that, upon Andreas death, Ourania is a co-trustee along with the Siblings.

Under the heading “Surviving Trustee,” it states:

In the event of the death of Andreas G. Karras, (an original Trustee)

* * * the Trustors nominate and appoint Ourania A. Karras, Maria A. Karras,

Anastasios A. Karras and Georgios A. Karras to serve as Co-Trustee

hereunder with said Surviving Trustee, without the approval of any court.

(Emphasis added.) (Doc. #2 Karras Trust at 7).

{¶ 37} Notably, the trust provided a different outcome if Ourania had predeceased -27-

Andreas. In that circumstance, he would have “serve[d] as sole trustee.” (Id.). Thus, a fair

reading of the trust as a whole is that Andreas and Ourania intended for her to have the

assistance of co-trustees (of which she was one) who must act in concert if Andreas

predeceased her, but that Andreas was to make his own decisions as “sole trustee” if

Ourania predeceased him. No purpose would be served by designating Ourania a co-

trustee (who by definition must act in concert with other co-trustees) upon Andreas’ death

if she simultaneously could disregard the co-trustees’ decisions in her role as surviving

settlor. In our view, such an interpretation is unreasonable.

{¶ 38} In rejecting Ourania’s authority to act independently, the trial court

concluded that “[i]n keeping with the intention to limit Ourania’s authority with respect to

irrevocable trusts, the Court concludes that the Trust, as amended, does not authorize

Ourania to act independently as trustee or to remove the Siblings as co-trustees of the

Trust. Thus, the Court concludes that the Siblings are entitled to summary judgment on

Ourania’s claim that she is entitled to act independently as trustee.” (Doc. #100 at 24).

We see no error in this determination. For the foregoing reasons, Ourania’s second

assignment of error is overruled.

{¶ 39} In her third assignment of error, Ourania challenges the trial court’s entry of

summary judgment against her on her conversion counterclaim regarding the contents of

a safe. Her argument concerns a safe in the marital residence that the Siblings opened

and emptied without her knowledge after Andreas’ death.

{¶ 40} In resolving Ourania’s conversion claim, the trial court reasoned:

Finally, turning to the Safe Property, it is unclear whether Andreas -28-

owned the property when the Estate Planning Documents were executed

and, thus, whether the property belonged to the Estate or to the Trust when

it was removed from the safe. To the extent that the property belonged to

the Estate, then Ourania, individually and as trustee, cannot show that

either she or the Trust owned or had a right to possess the property at the

time of the alleged conversion. * * * To the extent the Safe Property

belonged to the Trust, there is no dispute that the Siblings’ counsel is

holding in their trust account the cash that was removed and that the

Siblings, as co-trustees, are holding the remaining property until resolution

of this litigation. Thus, even assuming that the Siblings’ removal of the

property was wrongful, Ourania, as trustee cannot show that the Trust has

been damaged as a result of the removal.

Based on the foregoing, the Court concludes that the Siblings are

entitled to summary judgment on Ourania’s conversion claims * * *.

(Doc. #100 at 28).

{¶ 41} On appeal, Ourania contends the trial court’s analysis ignored a third

possibility, namely “that some or all of the property was After-Acquired Property that

belonged to Ourania personally, rather than to the Estate or Trust.” (Ourania’s November

4, 2015 brief at 24). During her deposition, she testified that Andreas had told her some

unidentified “things” in the safe belonged to her. (Ourania depo. at 160). The only specific

item Ourania mentioned was a “valuable” silver belt that Andreas had bought her. (Id. at

151). She also testified that Andreas had kept cash in the safe along with collectibles and

other “things that belonged to him.” (Id. at 156). Beyond that, she did not know “what -29-

[was] in there.” (Id. at 165).

{¶ 42} In response to Ourania’s argument, the Siblings admit that they removed

property from the safe. They insist that the nature of the property is “irrelevant,” while

acknowledging that it included at least cash and a belt with a buckle. (Siblings’ Dec. 10,

2015 brief at 7). The Siblings then reason:

This claim is not ripe for adjudication. Nothing has been converted

as it was removed from an asset of the trust and is being held in trust.

Ourania’s claim of ownership of it, including her belt buckle [sic] will be

addressed at the hearing on disbursement of trust assets.

(Id.).

{¶ 43} Upon review, we conclude that the trial court erred in entering summary

judgment in the Siblings’ favor on Ourania’s individual conversion counterclaim. We agree

with the trial court that if all the property in the safe belonged to the estate, or the trust,

then Ourania has no conversion claim. But we also agree with her argument that if the

trial court were to determine that some of the property in the safe was her personal

property, then conversion could be appropriate. Ourania’s deposition testimony creates

a genuine issue of material fact as to whether the Siblings have converted a silver belt

that belongs to her personally by removing it from the safe and failing to give her

possession of it. Although the Siblings assert that Ourania’s conversion claim “is not ripe

for adjudication,” the trial court did adjudicate the claim by granting them summary

judgment on it. The Siblings also assert that no conversion occurred because trust assets

were removed from the safe and are being held in trust. This argument ignores Ourania’s

deposition testimony that the silver belt belongs to her personally and the genuine issue -30-

of material fact that it may not be a trust asset at all. Accordingly, we sustain Ourania’s

third assignment of error solely with regard to the described belt.

{¶ 44} Having overruled the Siblings’ sole assignment of error on appeal, and

having sustained, or sustained in part, two of Ourania’s three assignments of error on

cross appeal, we affirm in part and reverse in part the trial court’s July 28, 2015 judgment

entry that, inter alia, sustained in part and overruled in part competing motions for

summary judgment and partial summary judgment.

{¶ 45} The trial court’s judgment is reversed insofar as it entered summary

judgment in favor of the Siblings on Ourania’s conversion counterclaim regarding the

silver belt from the safe. The trial court’s judgment also is reversed insofar as it declared

Ourania and Maria each entitled to 50 percent of the PNC CD discussed above because

there is a genuine issue of material fact whether the CD was acquired with “joint funds.”

In all other respects, the trial court’s judgment is affirmed. Finally, the cause is remanded

for resolution of all remaining issues.

.............

FAIN, J., and WELBAUM, J., concur.

Copies mailed to:

James R. Kingsley James Papakirk Howard M. Schwartz James L. Jacobson Elizabeth E.W. Weinewuth Hon. Alice O. McCollum