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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, September 23, 2014 3:46:18 PM
CASE NUMBER: 2014 CV 05503 Docket ID: 19455981
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT, MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
:
MICHAEL DUREIKO :
2501 S. Patterson Blvd. :
Kettering, OH 45409 :
: Case No. _________________
Plaintiff, :
: Judge ____________________
vs. :
:
PATRICIA A. OSMUN, individually, :
and Trustee of the Paul L. Keller : COMPLAINT FOR DAMAGES
Revocable Living Trust Agreement UTA :
June 12, 2008 :
315 Hart Street :
Saint Joe, IN 46785-9782 :
:
Defendant. :
:
:
:
Now comes Plaintiff Michael Dureiko (“Plaintiff”), and for this Complaint against
defendant Patricia A. Osmun, individually and as Trustee (“Defendant”) of the Paul L. Keller
Revocable Living Trust Agreement dated the 12th day of June, 2008 (“Trust”) states as follows:
PARTIES AND JURISDICTION
1. Michael Dureiko was, at all times relevant to the case at bar, an individual residing in
Montgomery County, Ohio. Plaintiff is a beneficiary under the Trust.
2. Patricia A. Osmun, at all times pertinent is a resident of Indiana. She is the Trustee of the
Ohio Trust.
3. The Montgomery County Common Pleas Court has original and exclusive jurisdiction
pursuant to Civ. R. 3, Section 16 Article I of the Ohio Constitution and R.C. 2743.03(A)(2).
4. The facts giving rise to this Complaint occurred in and around Montgomery County,
Ohio, at all times pertinent.
5. All parties joined herein are necessary parties needed for a just adjudication of the matters
raised in this Complaint, pursuant to Civ. R. 19.
6. Pursuant to Civ. R. 19, Plaintiff is unaware of the names of any other necessary party to
this action and therefore, are unable to join such party or parties. Should it be required, Plaintiff
will conduct discovery pursuant to Civ. R. 37(D) and R.C. 2317.48 in order to ascertain the
identify of any such potentially adverse parties and to ascertain any other causes of action to
which they may be entitled against the named defendant(s).
FACTS
7. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten
herein.
8. Paul L. Keller, Settlor and original Trustee of the Trust (“Settlor” or “Decedent”),
executed the inter vivos Trust on June 12, 2008. A true and accurate copy is attached to this
Complaint as Exhibit 1.
9. Settlor died on February 9, 2012.
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10. Settlor’s probate estate was probated in Montgomery County Probate Court, Case No.
2012 EST 0936.
11. The sole beneficiary of the estate was the Trust.
12. There was one accounting and distribution to Michael Dureiko, in 2012.
13. The most recent accounting, after numerous demands, was sent to the undersigned on
July 23, 2014. That accounting is inconsistent with the first accounting.
14. Plaintiff has made multiple requests for disbursements and/or accountings, and the
responses have been insufficient.
FIRST CLAIM FOR RELIEF
(Accounting of Trust)
15. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten
herein.
16. Plaintiff is entitled to an adequate accountings of all trust funds, both under Ohio law and
under the terms of the Trust.
17. The Trust should have also received rents related to a farm and residence located at5983
County Road 64, Spencerville, IN 46788.
18. There were numerous disbursements that were in direct conflict with the rights and
benefits of beneficiary-Plaintiff.
19. Defendant is under a duty to keep and render clear and accurate accounts with respect to
the administration of the Trust.
SECOND CLAIM FOR RELIEF
(Breach of Fiduciary Duties)
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20. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten
herein.
21. Defendant owes a fiduciary duty to Plaintiff, arising from a fiduciary relationship as
Trustee of the Trust.
22. Defendant has a duty against self-dealing.
23. Defendant failed to observe those duties.
24. Plaintiff was injured as a proximate result of Defendant’s failure to fulfill her duties.
25. Plaintiff suffered damages as a result of Defendant’s conduct.
THIRD CLAIM FOR RELIEF
(Tortious Interference with Inheritance Rights against Defendant individually)
26. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten
herein.
27. Plaintiff has a vested expectancy of inheritance under the Trust.
28. Defendant has intentionally interfered with that expectancy of inheritance.
29. Defendant’s conduct involving that inheritance, individually and/or collectively, involved
fraud, duress, undue influence, and/or other tortious conduct.
30. A reasonable certainty that the expectancy of inheritance would have been realized but for
the interference by the defendant(s).
31. Plaintiff suffered damages as a result of the interference.
CLAIM FOR RELIEF
(Punitive Damages)
32. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten
herein.
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33. Defendant owed duties to Plaintiff, as aforesaid, which were breached.
34. Defendant’s conduct was grossly negligent and/or in willful disregard of the rights of the
Plaintiff, which were substantially certain to result in damage to Plaintiff.
35. Said conduct of defendants constitutes legal malice and entitles Plaintiff to punitive
damages.
WHEREFORE, Plaintiff demands the following:
A. Judgment against Defendant in excess of $25,000;
B. Pre and post judgment interest at the statutory rate;
C. Declaratory judgment outlining the rights of Plaintiff under the Trust;
D. That all property unlawfully held, secreted, concealed, and the like, be returned to
Plaintiff;
E. Attorney fees and the costs of this action; and,
F. For such other and further relief to which Plaintiff may be deemed entitled at law
and/or equity.
Respectfully submitted,
/s/ David D. Brannon
David D. Brannon (0079755)
BRANNON & ASSOCIATES
130 West Second St. - Suite 900
Dayton, Ohio 45402-1590
Telephone: (937) 228-2306
Facsimile: (937) 228-8475
E-Mail: David@OhioProbateEstate.com
Counsel for Plaintiff
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, September 23, 2014 3:46:18 PM CASE NUMBER: 2014 CV 05503 Docket ID: 19455981 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT, MONTGOMERY COUNTY, OHIO CIVIL DIVISION : MICHAEL DUREIKO : 2501 S. Patterson Blvd. : Kettering, OH 45409 : : Case No. _________________ Plaintiff, : : Judge ____________________ vs. : : PATRICIA A. OSMUN, individually, : and Trustee of the Paul L. Keller : COMPLAINT FOR DAMAGES Revocable Living Trust Agreement UTA : June 12, 2008 : 315 Hart Street : Saint Joe, IN 46785-9782 : : Defendant. : : : : Now comes Plaintiff Michael Dureiko (“Plaintiff”), and for this Complaint against defendant Patricia A. Osmun, individually and as Trustee (“Defendant”) of the Paul L. Keller Revocable Living Trust Agreement dated the 12th day of June, 2008 (“Trust”) states as follows: PARTIES AND JURISDICTION 1. Michael Dureiko was, at all times relevant to the case at bar, an individual residing in Montgomery County, Ohio. Plaintiff is a beneficiary under the Trust. 2. Patricia A. Osmun, at all times pertinent is a resident of Indiana. She is the Trustee of the Ohio Trust. 3. The Montgomery County Common Pleas Court has original and exclusive jurisdiction pursuant to Civ. R. 3, Section 16 Article I of the Ohio Constitution and R.C. 2743.03(A)(2). 4. The facts giving rise to this Complaint occurred in and around Montgomery County, Ohio, at all times pertinent. 5. All parties joined herein are necessary parties needed for a just adjudication of the matters raised in this Complaint, pursuant to Civ. R. 19. 6. Pursuant to Civ. R. 19, Plaintiff is unaware of the names of any other necessary party to this action and therefore, are unable to join such party or parties. Should it be required, Plaintiff will conduct discovery pursuant to Civ. R. 37(D) and R.C. 2317.48 in order to ascertain the identify of any such potentially adverse parties and to ascertain any other causes of action to which they may be entitled against the named defendant(s). FACTS 7. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten herein. 8. Paul L. Keller, Settlor and original Trustee of the Trust (“Settlor” or “Decedent”), executed the inter vivos Trust on June 12, 2008. A true and accurate copy is attached to this Complaint as Exhibit 1. 9. Settlor died on February 9, 2012. 2 10. Settlor’s probate estate was probated in Montgomery County Probate Court, Case No. 2012 EST 0936. 11. The sole beneficiary of the estate was the Trust. 12. There was one accounting and distribution to Michael Dureiko, in 2012. 13. The most recent accounting, after numerous demands, was sent to the undersigned on July 23, 2014. That accounting is inconsistent with the first accounting. 14. Plaintiff has made multiple requests for disbursements and/or accountings, and the responses have been insufficient. FIRST CLAIM FOR RELIEF (Accounting of Trust) 15. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten herein. 16. Plaintiff is entitled to an adequate accountings of all trust funds, both under Ohio law and under the terms of the Trust. 17. The Trust should have also received rents related to a farm and residence located at5983 County Road 64, Spencerville, IN 46788. 18. There were numerous disbursements that were in direct conflict with the rights and benefits of beneficiary-Plaintiff. 19. Defendant is under a duty to keep and render clear and accurate accounts with respect to the administration of the Trust. SECOND CLAIM FOR RELIEF (Breach of Fiduciary Duties) 3 20. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten herein. 21. Defendant owes a fiduciary duty to Plaintiff, arising from a fiduciary relationship as Trustee of the Trust. 22. Defendant has a duty against self-dealing. 23. Defendant failed to observe those duties. 24. Plaintiff was injured as a proximate result of Defendant’s failure to fulfill her duties. 25. Plaintiff suffered damages as a result of Defendant’s conduct. THIRD CLAIM FOR RELIEF (Tortious Interference with Inheritance Rights against Defendant individually) 26. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten herein. 27. Plaintiff has a vested expectancy of inheritance under the Trust. 28. Defendant has intentionally interfered with that expectancy of inheritance. 29. Defendant’s conduct involving that inheritance, individually and/or collectively, involved fraud, duress, undue influence, and/or other tortious conduct. 30. A reasonable certainty that the expectancy of inheritance would have been realized but for the interference by the defendant(s). 31. Plaintiff suffered damages as a result of the interference. CLAIM FOR RELIEF (Punitive Damages) 32. Plaintiff incorporates all previous paragraphs of this Complaint as if fully rewritten herein. 4 33. Defendant owed duties to Plaintiff, as aforesaid, which were breached. 34. Defendant’s conduct was grossly negligent and/or in willful disregard of the rights of the Plaintiff, which were substantially certain to result in damage to Plaintiff. 35. Said conduct of defendants constitutes legal malice and entitles Plaintiff to punitive damages. WHEREFORE, Plaintiff demands the following: A. Judgment against Defendant in excess of $25,000; B. Pre and post judgment interest at the statutory rate; C. Declaratory judgment outlining the rights of Plaintiff under the Trust; D. That all property unlawfully held, secreted, concealed, and the like, be returned to Plaintiff; E. Attorney fees and the costs of this action; and, F. For such other and further relief to which Plaintiff may be deemed entitled at law and/or equity. Respectfully submitted, /s/ David D. Brannon David D. Brannon (0079755) BRANNON & ASSOCIATES 130 West Second St. - Suite 900 Dayton, Ohio 45402-1590 Telephone: (937) 228-2306 Facsimile: (937) 228-8475 E-Mail: David@OhioProbateEstate.com Counsel for Plaintiff 5