On September 23, 2014 a
Motion-Secondary
was filed
involving a dispute between
Michael Dureiko,
and
Patricia A. Osmun Individual,
Patricia A Osmun Trustee,
for PATRICIA A OSMUN TRUSTEE
in the District Court of Montgomery County.
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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Wednesday, December 03, 2014 3:05:00 PM
CASE NUMBER: 2014 CV 05503 Docket ID: 19633968
GREGORY A BRUS|
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
Civil Division
MICHAEL DUREIKO, * CASE NO. 2014 CV 05503
Plaintiff (Judge Michael T. Tucker)
VS. DEFENDANTS’ REPLY
TO PLAINTIFFS’
PATRICIA A. OSMUN, individually MEMORANDUM IN
and Trustee of THE PAUL L. KELLER OPPOSITION
REVOCABLE LIVING TRUST
AGREEMENT, DATED June 12, 2008,
Defendant
NOW COME the Defendants, PATRICIA A. OSMUN, individually and as
Trustee of THE PAUL L. KELLER REVOCABLE LIVING TRUST, DATED JUNE
12, 2008, by and through Counsel, and hereby files this Reply Memorandum to
Plaintiffs Memorandum in Opposition to Defendants’ Motion to Dismiss. A
Memorandum in Support is attached.
Respectfully submitted,
[siMarybeth
W. Rutledge
Marybeth W. Rutledge
Attorney for Defendant (0008164)
Winwood Rutledge Co., LLC
580 Lincoln Park Blvd., Ste. 388
Dayton, Ohio 45429
Telephone: (937) 294-5270
Winwoop
Facsimile: (937) 294-5380
RuTLeDcE Co., LLC mwr@winwoodrutledgelaw.com
AvrtorNeys aT LAW
580 LINCOLN Park BLVD.
Surre 388
Dayton, Onto 45429
Tex: (937) 294-5270 W:\dms\ESTATE ADMIN \Keller-Paul\2014 Documents\Defendants' Reply.docx
Fax: (937) 294-5380
MEMORANDUM
Despite Plaintiff's ad hominem language, the statutory support for the
Defendants’ Motion to Dismiss for lack of jurisdiction under Ohio Civil Rule 12(B)(1)
is clear in longstanding Probate law in Montgomery County and Ohio. Plaintiff's
Counsel fails to explain his claim for his original jurisdictional basis for the Complaint
in which he mis-cited the statute concerning the Court of Claims as well as the Ohio
Constitution. Rather, he now claims, correctly, that Ohio Revised Code 2001.24
provides this Court with concurrent jurisdiction of the Probate Court regarding “inter
vivos Trust.” Plaintiff also correctly cites Ohio Revised Code 5802.03 stating the
Probate division has concurrent jurisdiction of inter vivos Trusts. However, the Trust
within is irrevocable.
As cited in the Defendants’ Memorandum in Opposition, the Ohio Revised Code
simply states as follows:
The jurisdiction of Probate Court is proper in that Section 2101.24 grants
exclusive jurisdiction to the Probate Court when “no section of the
Revised Code expressly confers jurisdiction over that subject matter upon
any other court or agency.” See Section 2101.24(A)(2)(b). As there is no
specific statutory provision granting exclusive jurisdiction to the Probate
Court, and no other section of the Code expressly confers jurisdiction over
irrevocable trusts, it is the exclusive jurisdiction of Probate Court for the
Complaint for Damages filed herein.
It is not a matter of “made up law” that a revocable Trust becomes irrevocable
upon the death of the Grantor. Section 5806.04 discusses limitation of actions expressly
for a “revocable trust that is made irrevocable by the death of the Settlor.” There would
be no need for separate legislation unless the fact exists that inter vivos trusts are made
irrevocable on the death of the Grantor.
Defendants do not seek to deny Plaintiff a forum. That forum is the Probate
Court and not the General Division, as set forth above in the Ohio Revised Code.
Rumor Co, LLC
ATTORNEYS AT LAW
580 LINCOLN PARK BLyp.
Sure
Dayton, Onto 45429
‘Tex: (937) 294-5270 W:\dms\ESTATE ADMIN\Keller-Paul\2014 Documents\Defendants' Reply.docx
Fax: (937) 294-5380
Finally, the Probate Court will grant jurisdiction for the intentional interference
with inheritance claims because it arises out of an irrevocable trust.
THEREFORE, Defendants renew their request to dismiss the Complaint herein
on the basis of lack of jurisdiction under Rule 12(B)(1) and the Ohio Revised Code.
Respectfully submitted,
Isi/Marybeth W. Rutledge
Marybeth W. Rutledge
Attorney for Defendant (0008164)
Winwood Rutledge Co., LLC
580 Lincoln Park Blvd., Ste. 388
Dayton, Ohio 45429
Telephone: (937) 294-5270
Facsimile: (937) 294-5380
mwr@winwoodrutledgelaw.com
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served electronically upon
David D. Brannon at David@OhioProbateEstate.com, this 3rd day of December, 2014.
/si/Max ie
Marybeth W. Rutledge
Attorney for Defendant (0008164)
Winwood Rutledge Co., LLC
580 Lincoln Park Blvd., Ste. 388
Dayton, Ohio 45429
Telephone: (937) 294-5270
Facsimile: (937) 294-5380
mwr@winwoodrutledgelaw.com
‘Winwoop
Rutiepce Co., LL
ATToRNEYS AT LAW
580 LINCOLN PARK BLVD.
Surre 388.
DavTon, Onto 45429
‘Tex: (937) 294-5270 W:\dms\ESTATE ADMIN\Keller-Paul\2014 Documents\Defendants' Reply.docx
Fax: (937) 294-5380
Document Filed Date
December 03, 2014
Case Filing Date
September 23, 2014
Category
PATRICIA A OSMUN TRUSTEE
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Wednesday, December 03, 2014 3:05:00 PM CASE NUMBER: 2014 CV 05503 Docket ID: 19633968 GREGORY A BRUS| CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO Civil Division MICHAEL DUREIKO, * CASE NO. 2014 CV 05503 Plaintiff (Judge Michael T. Tucker) VS. DEFENDANTS’ REPLY TO PLAINTIFFS’ PATRICIA A. OSMUN, individually MEMORANDUM IN and Trustee of THE PAUL L. KELLER OPPOSITION REVOCABLE LIVING TRUST AGREEMENT, DATED June 12, 2008, Defendant NOW COME the Defendants, PATRICIA A. OSMUN, individually and as Trustee of THE PAUL L. KELLER REVOCABLE LIVING TRUST, DATED JUNE 12, 2008, by and through Counsel, and hereby files this Reply Memorandum to Plaintiffs Memorandum in Opposition to Defendants’ Motion to Dismiss. A Memorandum in Support is attached. Respectfully submitted, [siMarybeth W. Rutledge Marybeth W. Rutledge Attorney for Defendant (0008164) Winwood Rutledge Co., LLC 580 Lincoln Park Blvd., Ste. 388 Dayton, Ohio 45429 Telephone: (937) 294-5270 Winwoop Facsimile: (937) 294-5380 RuTLeDcE Co., LLC mwr@winwoodrutledgelaw.com AvrtorNeys aT LAW 580 LINCOLN Park BLVD. Surre 388 Dayton, Onto 45429 Tex: (937) 294-5270 W:\dms\ESTATE ADMIN \Keller-Paul\2014 Documents\Defendants' Reply.docx Fax: (937) 294-5380 MEMORANDUM Despite Plaintiff's ad hominem language, the statutory support for the Defendants’ Motion to Dismiss for lack of jurisdiction under Ohio Civil Rule 12(B)(1) is clear in longstanding Probate law in Montgomery County and Ohio. Plaintiff's Counsel fails to explain his claim for his original jurisdictional basis for the Complaint in which he mis-cited the statute concerning the Court of Claims as well as the Ohio Constitution. Rather, he now claims, correctly, that Ohio Revised Code 2001.24 provides this Court with concurrent jurisdiction of the Probate Court regarding “inter vivos Trust.” Plaintiff also correctly cites Ohio Revised Code 5802.03 stating the Probate division has concurrent jurisdiction of inter vivos Trusts. However, the Trust within is irrevocable. As cited in the Defendants’ Memorandum in Opposition, the Ohio Revised Code simply states as follows: The jurisdiction of Probate Court is proper in that Section 2101.24 grants exclusive jurisdiction to the Probate Court when “no section of the Revised Code expressly confers jurisdiction over that subject matter upon any other court or agency.” See Section 2101.24(A)(2)(b). As there is no specific statutory provision granting exclusive jurisdiction to the Probate Court, and no other section of the Code expressly confers jurisdiction over irrevocable trusts, it is the exclusive jurisdiction of Probate Court for the Complaint for Damages filed herein. It is not a matter of “made up law” that a revocable Trust becomes irrevocable upon the death of the Grantor. Section 5806.04 discusses limitation of actions expressly for a “revocable trust that is made irrevocable by the death of the Settlor.” There would be no need for separate legislation unless the fact exists that inter vivos trusts are made irrevocable on the death of the Grantor. Defendants do not seek to deny Plaintiff a forum. That forum is the Probate Court and not the General Division, as set forth above in the Ohio Revised Code. Rumor Co, LLC ATTORNEYS AT LAW 580 LINCOLN PARK BLyp. Sure Dayton, Onto 45429 ‘Tex: (937) 294-5270 W:\dms\ESTATE ADMIN\Keller-Paul\2014 Documents\Defendants' Reply.docx Fax: (937) 294-5380 Finally, the Probate Court will grant jurisdiction for the intentional interference with inheritance claims because it arises out of an irrevocable trust. THEREFORE, Defendants renew their request to dismiss the Complaint herein on the basis of lack of jurisdiction under Rule 12(B)(1) and the Ohio Revised Code. Respectfully submitted, Isi/Marybeth W. Rutledge Marybeth W. Rutledge Attorney for Defendant (0008164) Winwood Rutledge Co., LLC 580 Lincoln Park Blvd., Ste. 388 Dayton, Ohio 45429 Telephone: (937) 294-5270 Facsimile: (937) 294-5380 mwr@winwoodrutledgelaw.com CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served electronically upon David D. Brannon at David@OhioProbateEstate.com, this 3rd day of December, 2014. /si/Max ie Marybeth W. Rutledge Attorney for Defendant (0008164) Winwood Rutledge Co., LLC 580 Lincoln Park Blvd., Ste. 388 Dayton, Ohio 45429 Telephone: (937) 294-5270 Facsimile: (937) 294-5380 mwr@winwoodrutledgelaw.com ‘Winwoop Rutiepce Co., LL ATToRNEYS AT LAW 580 LINCOLN PARK BLVD. Surre 388. DavTon, Onto 45429 ‘Tex: (937) 294-5270 W:\dms\ESTATE ADMIN\Keller-Paul\2014 Documents\Defendants' Reply.docx Fax: (937) 294-5380