ORiOINAI.

IN THE SUPREME COURT OF OHIO

W^AD WATTERSON, et al., "

Appellees, "

xV.

F3UIaNA , Successor Trustee *

oa` ^^^c 13-11:thel J. Burnard Trust, et. al.,^

^ppellant.x

CASE NO. 2013-0417

Appeal from the Sixth District Courtof Appeals Lucas County, Ohio

Court of Appeal Case No. L-12-1012

X

[^E C E NECY - -^.APPELLEES BRAD AND JAMIE WATTERSON'S

^AR25?() 13 , I 1E1VIO NI)U10'd IN RESPONSE TO THE MEMORANDUM IN

SUP ORT OF JURISDICTION OF APPELLANT RONALD BURNA ,

CLERK nF COURT SUCCESSOR OF THE BARTHEL J. BU RNARD TRUST

SUPREML 'UUe Ci OF OHIO

S^imuel G. Bolotin (0014727) (COUNSEI. OF RECORD)

Andrew J® Stough (0074114)THE BOLOTIN LAW OFFICES3232 Executive ParkwayToledo, Ohio 43623PH: (419) 539-9200FX: (419) 539-7100hol®tin^bex.net MAR ^^.^., 5 2013

CLERK OF COURTCoUNsEL FOR APPELLEES, SUPREME COURT OF OHIOBRAD AND JAMIE WATTERSON

3 O. 10032_^ <^l:do. C)i-43699-0032

PH: (^19) 241-6000^'X. (=; i ^'} 247-1777n^ccoll:als^u;.castrnansmith.comrnjpodolsky(aJeastmansmith: com

1V1^ l^li~^Y^^ Collins (0065077) (COUNSEL OF RECORD

) ivy r^°t^.^ ^ l .i. Podolsky (0075711)EA^ s T. ( +1^ & SMITH LTD.(^nc `^ca(fatc, 24th Floor

^^

^omie.sac J. Spinazze (0059559)1,Yi ^F ,',J & CHAPPELL, LTD.;5470 Tvga; i-i Street, Suite 300

:-vl^vauria. ;%H43560^'PI 1 9) 801-1143

slX: (419 H 867-8909djs,cl'<i-m law.com

E.F(.^R APPELLANT, RONALD BURNARD, SUCCESSOR

THE BARTHEL J. BURNARD TRUST

TABLE OF CONTENTS

P^ ^

'1'ABLL OF AUTHORITIES ..... . .........:.. ...: ..:.:......:: ..... ...:::...... ....:.......;.... ;..:..... ii

1. THIS CASE, WHICH INVOLVES A VERY UNIQUE SET OF FACTS,IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTERESTAND APPELLANT'S ASSERTION AS SUCH IS DISINGENUOUS....... I

Il. STATEMENT OF FACTS AND CASE .................... .......:. ......:...............

III. ARGUMENTS IN SUPPORT OF APPELLEES' POSITION.................... 5

^j__, Ilant's Proposition of LawNo l:

A trial court's decision to grant or deny injunctive relief in Ohio is

reviewed for abuse of discretion even if based on the trial court'sdetermination on issues of law ................ ......... ......... ......... .......;.. ............. 5

Appellant's Proposition of Law No. 2:

Pursuant to the plain and unambiguous language of R.C. 5805.06(A)(1),

and consistent with the law in Ohio for over seventy (70) years under

.fichofied v.Cleveland Trust Co.; 135 Ohio St. 328, 21 N.E. 119(193:9), a

creditor's rightto force the revocation of revocable trust to satisfy thecreditor's claim(s) terminates when the grantor dies ... ...... ...... . ..... ............... 7

IV. CONCLUSION ..:....:........:............ ............................. ................................. 14

CERTIFICATE OF SERVICE ...................................... .....:....................................... 15

i

TABLE OF AU'I'IIO TIES

Case

Case An-ouncements, 119 Ohio St.3d 1446, 2008-Ohio-4487, 893 N.E.2d 517.:.:.. 1

Hunt;niau v. AultmanHosb.,5th Dist. No. 2006 CA 00331, 2008-Ohio-2554,

L 2,572598......... ......... .... . ... . .... . ......... . ......................... .. ........... . ..................... 6

le sed. IVlut. of Ohi® v. Scholtterer; 122 Ohio St.3d 181, 2009-Ohio-2496, 909N.E.2d 1238 ......:..... . ................................ .:.......:... ..... ......... .......:. .....e.. ..... 6

Schofield.v. Cleveland Trust Co. (1939), 135 Ohio St. 328, 21 N.E. 119... ............... 7,10-13

So]vers v_Eu^.i;^bill, 3rd Dist. No. 15-07-14, 2008-Ohio-1486, 889 N.E.2d 172...... 1,2,7-8

State v._Futrall9 123 Ohio St.3d 498, 2009-Ohio-5590, 918 1-4.E.2d 497..... ....... ....... 6

Swartzentnuher v. Orrville Grace Brethren Church 163 Ohio App.3d 96; 2005-836 N.E.2d 619 ..........:..................................: .....e..... ........: .:............... 6Ohio-4264,

^^'atferscjj,.^Burnard:; 6th Dist. No. L-12-1012, 2013-Ohio-316.... . .... . .... .. ............. 2,4-5,10-13

Willzai,^;ori v. Rubich (1960), 171 Ohio St. 253, 254, 168 N.E.2d 876........... . .............. 1

Statute.

............o :: ...:.:.. ........ ....... ,10-11Ohio Crerleral Code Section 8617 .................... . .......... .. ...

RC..§.133501(A) ............ ... ...:..... ................... ....... :. ........ ..... .... .. ... ... .... .. ..... ......... 10-^ . .,

R.C. §2117.06(B) ............. .............................:... ....... ..................... .:... .............. 13

ii

... 13. ;17.06(C) . .................:............................. ......,........... .............. .........

........... ................... . . . . 11§ 2 11)^.21 1 . ... .. ....... . ..

IZ.f. §11.2? ............. .. .... .. . ......... . ....... ........ ... .... 1

^ C1!IZ:C, _,,;^)-5.06(A)(1) ....... . .... ...... ... ........... .... .. ................. . ................ , ........o... 1,7-8,10-12

PUR

Civ.R. 15(C) .............:........ ...............................,,........... ......... ......... ......... .......o..... 11

11 .P 2g(A) ....................... ......... ............... ....: ........... .......

Article 4 , Ohio Constitution............ .......................... .....................9 .. .., . ,. . _.. . ..

111

pag-e

1

I. TI3IS CASE WHICH INVOLVES A VERY UNIOUE SET OF FACTS. IS NOT ACASE OF I'UBLIC OR GREAT GENERAL INTEREST AND AI'PELLANT'S

ASSERTION AS SUCH IS DISINGENUOUS.

The sole issue for determination on Appellant's jurisdictional memorandum is whether

this case. presents a question of public or great general interest as distinguished from a question of

interest primarily to the parties. §2(B)(2)(e), Article 4, Ohio Constitution; Williamson L. Rubich

(1960); 171 Ohio St. 253, 254, 168 N.E.2d 876. The instant case is not a case of public or great

general iiiterest, but rather involves a question of interest solely between the parties. In fact,

Appellecs could find only one other case in the past seventy years with similar facts. See S®wers

v. Lu iig ihill; 3rd Dist. No. 15-07-14, 2008-Ohio-1486, 889 N.E.2d 172. In that case, this Court

declined jurisdiction. See 09/10/2008 Case Announcements, 119 Ohio St.3d 1446, 2008-Ohio-

4487, 893N.E.2d 517. This appeal should be denied as well.

This case involves a very unique fact pattern that likely will never happen again.

Specifically, this case involves a tortfeasor in a motor vehicle accident, who had moved all of her

assets into a revocable trust, and then failed to secure sufficient automobile insurance to protect

those assets, yet continued to drive past the age of eighty-three, ran a red light and seriously

injured Mr. Watterson. Three months prior to the second trial date, she unexpectedly passed

away. Appellees submit that this fact pattern is most unique as people who hold significant

assets in'arevocable trust that is accessible during their lifetime, carry sufficient automobile

insurance to protect those assets.

In this case, and in the only other case with a similar fact pattern in seventy years,

Sowers, supra, both Appellate Districts held, pursuant to R.C. §5805.06(A)(1), that a personal

1

injury plaintiff, who has filed suit against a tortfeasor while he or she was still alive, can

collect on a judgment rendered after the death of the tortfeasor from his or her revocable trust>

See WattPr.son v. Bumard, 6th Dist. No. L-12-1012, 2013-Ohio-316, ¶31, Sowers, su . ra, at $39.

U. STATEMENT OF FACTS AND CASE

Oa February 6, 2008, Appellee Brad Watterson was involved in a serious motor vehicle

collision with Barthel Jean Burnard. On that date, Ms. Burnard negligently turned left in front of

Mr. Watterson while he was travelling down U.S. 20 in Sylvania Township, Ohio. Mr.

Watterson collided head on with Ms. Burnard at forty miles per hour.

Following the collision, Mr. Watterson experienced severe low back pain in addition to

other soft tissue injuries. In March 2009, he underwent lumbar fusion surgery. Mr. Watterson's

low baclc pain continued and he was required to undergo a second lumbar surgery at the Cleveland

Clinic ®r, September 16, 2010. As a result of his injuries, Mr. Watterson has not been able to

support his young family and work in his profession as a carpenter, and was disabled by the

Social Security Administration at the young age of thirty-one.

Appellees filed suit against Barthel Jean Burnard on February 3, 2010 in the Lucas

County Court of Common Pleas under Case No. CI201001762 setting forth claims of negligence

and negligence per se and trial was initially scheduled for May 2, 2011. Subsequently, as Mr.

Watterson was still actively treating for his injuries, and upon agreement of all parties, the trial

date was vacated and rescheduled for February 6, 2012.

On November 2, 2011, just three months before the personal injury case was set to go to

2

trial, Ms. Burnard passed away unexpectedly. Following her death, Appellees discovere^? tl`^r

Ms. 13Lirr,<ird had a revocable trust at the time of her death entitled the "Barthel J. Burnard

Trust." (licnreiziafter "the trust") Pursuant to the terms of,the trust, Ms. Burnard was the Grantor

as well ._is the initial Trustee. Moreover, the terms of the trust provided that Ms. Burnard

retained. the power to revoke the trust, in whole or in part. At the time of Ms. Burnard's death,

Appellant was the successor trustee to the trust.

®n .December 9, 2011, Appellees filed a separate complaint against Appellant in the

Lucas County Court of Common Pleas bearing case number CI201106942. It is from this

the instatit appeal originates. In addition to setting forth a. cause of action for declaratory relief,

Appellees sought injunctive relief prohibiting Appellant from disbursing trust assets until

resolu0,-s? of the personal injury claim. Appellees argued that if the proceeds of the trust were

disbursed: prior to the resolution of Appellees' claims, they would undoubtedly suffer immediate

and irreparable injury, loss and damage.

Although initially obtaining a temporary restraining order, the trial court denied

Appellees' motion for preliminary injunction on December 22, 2012. In doing so, the trial court

made clear that its authority to grant a preliminary injunction rested solely on a purely legal

issue, ic. whether Appellees, who had filed suit against Ms. Burnard prior to her death, could

satisfy any future judgment rendered in the personal injury case out of the trust assets now that

she had passed away during the pendency of the case. The trial court found against the

Wattersons, in part because no jury verdict had been rendered yet. The Wattersons timely

appealed to the Sixth Appellate District.

3

Si_iosequently; ori February 6, 2012, Appellees tried the underlying personal injury claim

against ^,1 s. Burnard's estate to a jury with Judge Jensempresiding. The jury awarded Appellees

a total of S398,000:00. Following the verdict, the insurance carrier-for Ms. Burriard paid her

$100,000.00 liability limit in partial satisfaction of the judgment, thereby leaving $298,000.00

outstanding.

Following the judgment, Appellees filed a second lawsuit against Appellant in the form of

a creditors' bill in the Lucas County Court of Common Pleas bearing case number CI201201822..

Appellcc s` complaint alleged that Appellant must pay the, judgment out of the trust assets. On

June 22. 2012, Appellees were granted a preliminary injunction by Judge Barber in the creditors'

bill case.against Appellant. The preliminary injunction prohibited Appellant from disbursing any

a:;sets !'fo;i) the trust pending a resolution of the purely legal issue on appeal, i.e. whether

Appellees could satisfy the remainder of their judgment from the trust assets.

On February 1, 2013, the Sixth Appellate District reversed the trial court's decision

which had found the issue of law in favor of the trustee. In doing so, the Sixth Appellate District

found "no reason that an arbitrary event such as the death of the settlor while a tort claim is

pendirigshould prevent a tort claimant from satisfying a judgment out of the assets of a revocable

trust, provided that the now-deceased settlor could have accessed the trusts' assets during his or

her lifetime." See Watterson; su ra, at ¶31. Accordingly, the Sixth Appellate District found that

the trial court erred as a matter of law when it found that Appellees could not reach the assets of

the trust tosatisfy a judgment where the lawsuit was filed, but was not concluded, prior to the

trust settlor's death. Id.

4

TTS IN SUPPORT OF APPEI,I.aEES' POSf'I'IONifi, ARGIIIVIEIS

A. A ellant's ProDosition of Law No l: 6GA trial eourt's decision toVp_grant or deny injunctive relief in Ohio is reviewed for abuse ofdiscretion even if based on the trial court's determination on issues

of law," is a red herring.

The above proposition of law, which addresses the proper standard of review of a denial

of a prelirninary injunction, is nothing more than a diversion and contrary to Appellant's earlier

pos:tiozi. Moreover, the above proposition of law is directly contrary to recent Supreme Court

authority.

i iiis case is not about injunctive relief. In fact, by the time this case was argued in the

Sixth Appellate District, injunctive relief had already granted in the creditors' bill case, and was

noted b^ ^ounsel for the Wattersons at oral argument. Specifically, in the separate creditors' bill

ca-.. )ther trial judge, Judge Barber, granted an injunction prohibiting Appellant from

any assets from the trust until a decision was rendered by the Sixth Appellate District

on this legal issue, i.e. whether Appellees can satisfy their jury verdict and judgment out of the

assets of a revocable trust after the settlor dies before trial. Thus, Appellant's argument that the

Sixth District applied the wrong standard of review for injunctive relief is nothing more than a

diversiori because the Sixth District focused on the "ultimate issue" 1 that both sides agreed

should be heard and didn't even discuss the standard for injunctive relief inits holding since-that

issue was mooted by Judge Barber's injunction.

Not only was there a separate injunction in place pending the outcome of the legal issue,

1 See Watterson, su ra, at ¶25 "Before deciding the ultimate issue, i.e., whetherBrad Watterson is entitled to reach the assets of the Burnard trust to satisfy his

tort claim..."5

but Rpellant himself moved to stay the creditors' bill case pending resolution ot the

. ;^i e! Indeed, in moving the trial court to stay the creditors' bill case pending resolution.

of tfiG ^t2gfi[ issue, Appellant argued:

The paramount issue in the Present Case and in the Appellate Case isz'^ hether Plaintiffs can satisfy the judgment obtained in the Personal Injury

Case from Trust assets. This issue will be decided by the Court of Appeals and

pPrhaps by the Supreme Court and whatever the de.cision rendered bythe higher

courts will have a controlling effect on the Present Case. Thus, as a matter ofj3idicial efficiency, the PresentCase should be stayed until the Appellate Case has

beei2 fully resolved.

Appc11^Dnt's 1Motion for Stay, Lucas County C.P. Case No. CI 201201822; filed Oct. 5, 2012.

othat Appellees had a jury verdict in their favor, Judge Jensen granted the stay4

thereby <.;cknowledging that only the single legal issue needed to be resolved. Thus, Appellant's

argument ., SaL Liae wrong standard of review for injunctive relief was used by the Sixth Appellate

District -^\hile previously acknowledging that this case involved a different legal issue, is

inconsistent, disingenuous and should be disregarded.

Regardless, pursuant to recent authority of this Court, the proper standard of review in

this caseis a de novo standard. Specifically, when a court's judgment is based on an erroneous

interpretation of the law, an abuse-of-discretion standard is not appropriate. State v. Futrall, 123

Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶6 citing Swartzentruber v. Orrville Cirace

Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶6; Huntsman -v.

Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶50. See,

also, Med. Miit. of Ohio v. Scholtterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1238,

6

¶13. In the case at bar, the Sixth Appellate District found that the trial court erroneously

;Mterlwct^d Ohio law. Accordingly, the appropriate standard of review was a de novo stanc:"ard.

B. Apt^ellant's Prop®sition of I li?o. 2: "Pursuant to the plain and

unambiguous language of R.C. 5805.06(A)(1), and consistent with the

law in Ohio for over seventy (70) years under Schofield v. Cleveland

Trust Co.,.135 Ohio St. 328, 21 N.E. 119 (1939), a creditor's right to

force the revocation of revocable trust to satisfy the cred:itcr'sclaim(s) terminates when the grantor dies," is not based on the

Schofield decision or Ohio law.

1lic above proposition of law is flawed for multiple reasons. First, the clear, and

unambigtic us language of R.C. §5805.06(A)(1) provides.that Appellee can reach the trus¢ assets

to satisl'Y theirjudgment as their claims were made during the lifetime of IVIs.Burnard. Second,

the h Appellate District did not overturn over seventy years of ®hio law, but rather decided

this case consistent with Schofield v. Cleveland Trust Co. (1939), 135 Ohio St. 328, 21 N.E. 119

and subsequentOhio law.

l he plain language of Ohio Revised Code §5805.06(A)(1) is clear. The statute provides

that "[d] ttring the lifetime of the settlor, the property of a revocable trust is subject to,claims of

the settlor' s creditors." In the case at bar, it is undisputed that Appellees' claims accrued on the

date of the motor vehicle accident. Further, it is undisputed that Appellees set forth their, claims

in a lawsuit against Ms. Burnard during her lifetime. Accordingly, pursuant to the plain

language of the statute, the property of her revocable trust is subject to Appellees' claims even

after her death. This is exactly how the Sixth Appellate District ruled. Further, it is exactly how

the Third Appellate District ruled in Sowers, su ra:

7

P,:C:. 5805.06(A)(1) provides: "During the lifetime of the settlor, the property of arevocable trust is subject to the claims of the settlor's creditors." The statute's

plain language provides that the property of a revocable trust is subject to claimso1, die settlor's creditor. There is no dispute that at the time Luginbill filed hert^^rt claim, the settlor was alive and had a revocable trust. Because Luginbill'sclaim was fledwithin the settlor's lifetime, the express language of R.C.

>805.d6(A)(1)applies. The fact that the settlordfles following the filing of

fla€; ciaimdoes not defeat Luginbill's ability to access the trust property.

Sc, ,e, s, su ra, at ¶39. (Jurisdiction denied) Emphasis added.

Appellant's Proposition of Law No. 2 would require a creditor to obtain a judgment, not

merelv ;!Lst have a claim, prior to the settlor's death in order to collect froni trust assets.

Howe`ei-. R.C. §5805.06(A)(1) does not provide that a revocable trust is subject to judgments,

but rather of the settlor's creditors. To have a rule that requires a person having a valid

claim to a^,,Otairi a jud'gment prior to the settlor's death, would render meaningless the language of

R.C. §50 ^-,.06'(A)(l) which states that revocabletrusts are subject to claims made against

the settlor during her lifetime.

Further, requiring someone having a claim to obtain a judgment prior to the settlor's death

would yield absurd and unfair results. Specifically, requiring debtors to first obtain a judgment;

as opposed to having a claim, will result in creditors with meritorious claims being left unable to

collect dlie to a host of factors beyond their control.

To begin, a creditor with a valid.claim has no control over a trial court's docket. Indeed,

there areseveral reasons why a trial court may vacate a civil trial sua sponte. A trial court may

vacate a civil trial because the court has a conflicting criminal trial scheduled wherein the

8

Defend:ii1t ,-ias not waived^his right to a speedy trial guaranteed by the United States and Ohio

Coj;,tit^Wio;ls. A trial court may vacate a civil trial because there is another civil trial scheduled

the ci:,. in an earlier filing. A trial courtjudge may even vacate a trial date for something as

s;srr;:_ -is aa illness. To allow a debtor to escape his or her creditors merely because he or she

passed v,vjy before a rescheduled trial date lacks common sense and would be fundamentally

unfair. 1'hP bottom line is that you can't have a rule of law that is dependent on a trial c®urt's

docket.

Nlol-eover, a creditor with a valid claim sometimes has no control over the course t^f his

rnecii^<I!trc^fflnent. Catastrophicallyinjured people sometimes require several years of medical

treatmeri! and numerous medical procedures. Therefore, it may be necessary for such a plaintiff

ti> &,:,- trial court to vacate a trial date to allow him or her to get the proper rnedical

treatc r^,.

Y3iis is exactly the situation in the case at bar. Specifically, an original trial date was

scheduled for May 2; 2011. The trial date, however, was vacated and rescheduled to February 6,

2012 upon a joint motion as Mr. Watterson was recuperating and still undergoing therapy

folloFv;*1<, his second low back surgery which a jury found was a proximate cause of Ms.

Buria.d`s negligence. Then, about three months prior to trial,lVls. Burnard unexpectedly passed

away.

1! is. undisputed that, pursuant to the above proposition of law, Appellees, who clearly

have valid claims as evidenced by a total jury verdict and judgment in the amount of $398,000.00,

could have collected from the trust if only Ms. Burnard had lived just another three months.

9

Tilr y^; otilul also have been able to collect from the trust if the trial court had only rescheduled

tb^°. t^ yi to October, 2011, as opposed to February, 2012. However, neither of these situations

occurreLl, 11 arsuant to Appellant's flawed second proposition of law, Appellees would, lose out

on $298,000.00 awarded by a jury of Ms. Burnard's peers for no logical reason, but merely

because of the fortuitous and unexpected death of Ms. Burnard. This logic goes against common

FVrIse arId i5Tundamentally unfair and is contrary to Ohio law.

.'; ppellees submit that a creditor's ability to collect from a trust should not be subject to

factoi-s tl-^,at are outside his or her control such as the Court's docket or an individual plaintiff's

lcondition. Rather, the more reasoned and fair approach is to allow creditors with valid

eiai7^ s to reach the assets of a settlor's revocable trust where they have claims existing "during

tti, 1. _ f:P of the settlor." See R.C. §5805.06(A)(1).

Second, the Sixth Appellate District did not overturn over seventy years of Ohio law,

but ratlief ciecided this case consistent with Schofield, su ra. As noted by the Sixth Appellate

District, the Schofield Court found that Ohio General Code Section 8617, later re-codified as

forlner R:C. §1335.01(A), which allowed creditors of the creator of a revocable trust to compel

the ie,, o<.:ation of the trust, was "inapplicable to creditors who do not act while the settlor is still

ai:v ^Latterson, su ra, at ¶29. In the case at bar, however, Appelleesacledwhile the

was stili alive by filing suit against her. Therefore, the Sixth Appellate District followed

Schofield by ruling that Appellees can reach the trust assets.

Moreover, while Appellant has argued all along that a ruling that Appellees could reach

the trust assets would upset 70 years of Ohio law, he neglects to discuss the seventy years of

10

01h,i0 !cz v, foilowing SchofYeld. First, the statute that was addressed`in the Schofield decision;

Ohio ^',Jelicral Code Section 8617, was repealed years ago. In addition, the Ohio legislature

passed :,^2 , E:;ral statutes that are relevant.

"l he survival statute, R.C. §2305.21, was enacted on October 1, 1953. This statute

speci,'if,;.ally provides:

Jn addition to the causes of action which survive a common law, cause of action

for mesne profits, or injuries to the person or property, or for deceit or fraud,

°i:yo shall survive; and such actions may be brought notwithstandipg the

cAcath of the pers®n entitled or liable thereto. [Emphasis added]

Moreover, the Ohio legislature enacted the abatement statute, R. C. §2311;21, enacted on

58. This statute provides in pertinent part:

^Aless otherwise provided, no action or proceeding pending in any court

shall abate by the death of either or both of the parties thereto... [Emphasis

added]

Ii: keeping with the above statutes, the Ohio legislature enacted Civ.R. 25(A) which

provides the. proper procedure for amending a complaint to allow for the substitution of a

deceased'defendant, thereby allowing a plaintiff's claim to continue: The legislature also enaeted

Civ.R. 15(C), which'ps that an amended complaint, such as one that substitutes an estatc95

representative for the deceased defendant, relates back to the original complaint, which in this

case, was filed while Ms. Burnard was still alive.

GiVen the above statutory changes since Schofield, su ra; it is clear that Ohio law is that a

11 ,

d_t;tc ^ c<!iiaot escape the meritorious claims of his her creditors merely because he or

io i-tL.,ic>i.<<.'v l,assed,away during the litigation. Indeed, as the Sixth Appellate District found, the

p^.^i^1 1,_1-^1rage of R.C. §5805.06(A)(1) specifically provides that property held in a revocable

trust is s.i^ject to claims, not judgments, made against the settlor made during her lifetime. In

the casF Et bar, it is undisputed that Appellees acted while Ms. Burnardwas al,ive by filing suit.

Ac eordii,gl they can reach the assets of her revocable trust to satisfy t17 ir judgmerit.

Appellant attempts to argue that the Sixth Appellate District's decision leaves trustees

v^ ithout a c! ear, functional framework to administer revocable trusts following the death

grariio)^ Spccifically, Appellant argues without any way of ever knowing all of the poiential

the grantor, trustees will have no other choice than to wait for the longest possible

sta,t;. i z,-dtations to expire before distributing trust assets. This argument is not credible as

these are not the facts of this case! Rather, Appellant trustee knew and acknowledged that

and a lawsuit pending against his mother and her trust prior to her death:

(^. And are you aware that your mother was involved in an auto accident on

February 6th, 2008 -- "

A . Yes.

' ^ . -- with Mr. Watterson?

A. Yes.

Q. Now, you recognize that the Wattersons had a claim against your mom

and her trust while she was still living, isn't that true?

12

I understood that it was a lawsuit, yes.

;^. And that lawsuit was filed before she died, correct?

A. Yes, it was.

December 22, 2012 Hearing on Appellees' Preliminary Injunction Motion, pp. 28, 35.

Thus, Appellant is attempting to argue a set of facts different from this instant case and

jurisdictior, inust be denied.

.',>.i-,pel1ant's concern that trustees will now have to wait for the longest possible statute of

T followiriga settlor's death is also unfounded for a couple reasons. First, as noted by

;_E. ^!1t Appellate District, Schofield; su ra, stahds for the proposition that the power of

cred ito <. :if the creator of a revocable trust to compel the revocatior of i Eho trust is,inapplicable to

creditors who do not act while the settlor is still alive. Watterson; su ra, at $29. Thus, trustees

wti;,f t' ^^e to worry about claims brought after the death of the settlor, but rather just the ei,^9v-As

brought a,- ainst the settlor while he or she was alive, like the claims of Appellees in this `case.

Moreover, pursuant to R.C. §2117.06(B) and (C), all creditor claims shall be presented

within s;_^ months after the death of the decedent and claims not presented within six months

after the death of the decedent shall be forever barred as to all parties. Thus, Appellant's

argument that trustees will have to wait for the longest statute of limitations is simply incorrect.

13

IN". Cc 'ICLUSI®N

Tiie instant case is not one of public or great geaer.ai interest; but rather involves amost

unique , . r of facts and affects only the parties iiivolved, Accordirigly, this Court should decline

jurisdicp};>«.

Respectfully subrnitted,

,

Samuel G. Bol®.tin. (0014727)

Andrew j, Stou-,,aa :'.0074114)

THE BOLOTIN L.^,° W OFFICES

3232 Executive ia'arkvaay .

Toledo9 OH 43 ^s0bPH: (419), 53992.0®FY: ( 419)'539®7100

bolotin@bex.netCounsel for Appellees,Brad and Jamie Watterson

14

CEIZTIFICATE OlE" SEI"VICE

I;-:as will certify that a copy of the foregoing was sent by ordinary U.S. mail this

day of Mareh, 2013 to the following:

M. Charle.s Collins, Esq.Michael J. I'od®isky, E.sqaE.ASTMA & SMITH LTD.Oije Sea^ ^^°:,,24th Floor

P.O. Box 10032Toledo, 0111.43699-0032

J. Spinazze (0059559)

^."E..^;! i^; CHAPPELL, LTD.^'0 ^ trSuite 300

"'yl.vani.a. 0i143560

CO-CC i_'N SEL FOR APPELLANT, RONALD BURNARD, SUOCESSOR

TRUSTEE OF THE BARTHEL J. BURNARD TRUST

Samuel G. Bolotin (0014727)

Counsel for Appellees,Brad and Jamie Watterson

SGB:ajs:2008-030

15