Marcinkevicius v. Galloway

[Cite as Marcinkevicius v. Galloway, 2026-Ohio-1280.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

EGIDIJUS MARCINKEVICIUS,                                :

                Plaintiff-Appellee,                     :
                                                            No. 115391
                v.                                      :

ROBERT R. GALLOWAY, ET AL.,                             :

                Defendants-Appellants.                  :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: April 9, 2026


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Probate Division
                              Case No. 2024-ADV293913


                                           Appearances:

                McDonald Hopkins, LLC, Franklin C. Malemud, Tyler L.
                Mathews, and Alex Tominc, for appellee.

                Vorys, Sater, Seymour and Pease LLP, Andrew D.
                Fleming, Karey E. Werner, and Kara M. Mundy; Holland
                & Knight, LLP, Benjamin McGovern, pro hac vice, and
                Krithika Rajkumar, for appellant.


KATHLEEN ANN KEOUGH, J.:

                  On November 27, 2024, “Egidijus Marcinkevicius, Administrator

WWA of the Estate of Gary L. Bryenton” (“Administrator” or “Appellee”) filed a
complaint to appoint a successor trustee to the Gary L. Bryenton Declaration of

Trust (hereinafter, “the Trust”). The trial court appointed a successor trustee that

Barbara Bryenton (“Appellant” or “Barbara”) now challenges in this appeal,

contending that the trial court’s appointment violated R.C. 5807.04(C) and that the

record was insufficient for the trial court to make this appointment. For the reasons

that follow, we affirm.

               Gary L. Bryenton (“Gary”) died on November 17, 2022, and was

survived by his wife, Barbara, and daughters, Elisabeth and Susan. The record

indicates that Barbara and Elisabeth do not get along with Susan. Prior to his death,

Gary executed a will and later a codicil, the originals of which could not be located

following his death. Robert R. Galloway (“Galloway”), who was appointed Gary’s

personal representative in the codicil accordingly filed an application to probate the

lost will, which was accepted and admitted by the court in August 2023. At the same

time, the court issued letters of authority to Administrator to act as the successor

fiduciary of Gary’s estate.

               The will left the residuary of his estate to the trustee of the Trust. The

latest version of the Trust instrument provided:

      If I cease to serve as Trustee, my successor shall be one or more persons
      or entities as I may designate in writing lodged with the Trust records.
      If I make no such designation, or the persons I have designated are not
      able to serve as my successor, then my successor shall be Robert R.
      Galloway or such one or more persons or entities as he may designate
      in a writing lodged with the Trust records.
               Galloway rejected his trusteeship and did not designate a successor

trustee. Accordingly, Administrator filed the complaint forming the basis of this

appeal asking the court to appoint a successor trustee because Administrator had

funds from the residuary of the estate that he was responsible for distributing to the

Trust or trustee, according to Gary’s will.

               In January 2025, Administrator filed a motion alerting the court that

in a separate case pertaining to Gary’s estate, Cuyahoga C.P. No. 2023-EST-278532

(“the Estate Case”), Barbara and Elisabeth filed a “Notice of Appointment of

Trustee(s) and Intention to Finalize Trusteeship Documents.” This filing indicated

that Barbara was appointing herself and Elisabeth as successor trustees pursuant to

the terms of the Trust.

               Barbara filed an answer and a separate motion to dismiss the case,

arguing that under the terms of the Trust, Barbara had been granted authority to

remove a trustee with good cause and appoint a successor trustee. The section of

the Trust that Barbara relies on provides:

      An individual Trustee (other than me) may be removed at any time with
      good cause, and a corporate Trustee may be removed at any time with
      or without cause, by the following persons, in order: my wife, or if she
      is not able then by my brother Alan, or if he is not able then by each
      beneficiary with respect to her separate Trust. Upon such a removal,
      or if a Trustee ceases to serve and no successor is designated pursuant
      to [the section naming Galloway], then a successor Trustee may be
      appointed by the persons described in the preceding sentence having
      the power to remove a Trustee; provided, a Trustee appointed by a
      daughter of mine must be a bank or trust company of national
      prominence.
               Susan appeared and filed a motion to appoint an “institutional

trustee,” arguing that an institutional trustee is consistent with Gary’s wishes and

ensures that the administration of the Trust would be fair. She cited concerns about

potential financial misconduct, providing that “Barbara & Elisabeth, have now made

it abundantly clear that they would not treat me, Susan, with any kind of respect or

fairness.” In response, Barbara filed a “motion to correct inaccuracies and clarify

appointment of co-trustees” wherein she disputed the allegations that Susan made

in her motion and reiterated that pursuant to the Trust terms, she had appointed

herself and Elisabeth as co-trustees. Susan, now acting through counsel, filed a

responsive motion asking the court to strike all pro se filings of Barbara, arguing that

Elisabeth had “exercis[ed] undue influence” over Barbara and prepared legal filings

on Barbara’s behalf. Susan fired her counsel and did not retain any other counsel.

In June 2020, Susan, pro se, filed an additional motion to “strike down lies,

deceptions and delusions.”

               Following a pretrial on March 12, 2025, the trial court issued a journal

entry indicating that nonparties Susan and Elisabeth did not file any motions to

intervene and therefore are not proper parties to the case, and that Elisabeth, going

forward, may not file pleadings on Barbara’s behalf or act as her attorney. A

transcript of this hearing is not included in the appellate record. A full hearing was

set for May 1, 2025, and the court ruled that “only the parties to this action and their

counsel will be permitted to present testimony and evidence in this matter.”
                  On March 27, 2025, the court granted Administrator’s motion to

dismiss and strike Barbara’s notice of appointment of trustees that designated her

and Elisabeth as co-trustees. Shortly thereafter, Elisabeth and Susan filed their

respective motions to intervene and Barbara hired new counsel; the full hearing was

continued to June 23, 2025. Neither of the motions to intervene were ruled upon

prior to trial.

                  At the June 23, 2025 hearing, Administrator addressed the court

stating that he filed this action because Galloway had not appointed a successor and

that “[i]t’s up to the Court to decide if since that time that the subsequent filings have

changed that, or whether or not the Court still retains jurisdiction and has discretion

to appoint whoever they want.” (Tr. 3.) Barbara’s counsel requested that the court

dismiss the complaint for lack of jurisdiction because the latest modification of the

Trust permitted Barbara to appoint a successor trustee, which she had done

pursuant to the contents of the Trust instrument, thus rendering the complaint

moot. This constituted the entirety of the hearing, and Barbara contends that it

lasted only four minutes. There were no sworn witnesses nor was any evidence

introduced.

                  The trial court ultimately appointed “an independent, non-interested

attorney” based on the hearing and filings received. The court found that “a

beneficiary of the Trust, Susan Bryenton, has filed multiple documents with the

Court asserting that Barbara and Eli[s]abeth, as Co-Trustees, have demonstrated

bias against her and would be unable to [fairly] administer the Trust.”
               Barbara appeals the court’s appointment, assigning two errors for our

review:

      The Probate Court committed an error of law and abused its discretion
      by disregarding and superseding Appellant’s lawful appointment of
      successor co-trustees under Ohio Revised Code § 5807.04 and
      pursuant to the clear terms of the subject trust.

      The Probate Court committed an error of law and abused its discretion
      by relying on unsworn allegations and a four-minute “trial” to
      adjudicate the substantive rights of the parties.

               Initially, we address the supplemental briefing that this court ordered

pertaining to our jurisdiction to hear and consider the appeal. We asked the parties

to file supplemental briefs addressing whether the court’s order constituted a final

appealable order since it ordered that the court would appoint an uninterested

attorney but did not yet designate the identity of the successor trustee. The parties

agree that pursuant to R.C. 2505.02, this order was final and appealable because it

occurred in a special proceeding and affects a substantial right that determines the

action and prevents a judgment. We also agree and proceed to the merits of this

appeal.

               Barbara’s assigned errors both dispute the trial court’s appointment

of a successor trustee, but for different reasons. First, Barbara asserts that the trial

court erred in overriding Barbara’s alleged appointment. Second, she asserts that

the court erred in making this determination based on unsworn allegations. We

elect to discuss these errors together.

               R.C. 5802.01(A) provides that “[a] court may intervene in the

administration of a trust to the extent its jurisdiction is invoked by an interested
person or as provided by law.” Under R.C. 2101.24(B)(1)(b), probate courts may

hear and determine “any action that involves an inter vivos trust.” And, R.C.

2101.24(C) “confers broad authority to the probate court to address collateral

matters, including ‘plenary power at law and in equity to dispose fully of any matter

that is properly before the court.’” Franklin v. Franklin, 2010-Ohio-4251, ¶ 14 (8th

Dist.).

                  Barbara’s first assigned error submits that the court erroneously

applied R.C. 5807.04(C) that governs the appointment of successor trustees in the

event of a vacancy. It provides that trusteeship vacancies must “be filled in the

following order of priority”:

          (1) By a person designated in the terms of the trust to act as successor
          trustee;

          (2) By a person appointed by someone designated in the terms of the
          trust to appoint a successor trustee;

          (3) By a person appointed by unanimous agreement of the qualified
          beneficiaries;

          (4) By a person appointed by the court.

                  “One of the important functions of the court of equity is to assist in

enforcement and administration of trusts, and hence to make such orders and

decrees as will secure the carrying out of the creators’ expressed intent, as to the

dispositive provisions, as to the directions, as to the methods to be used, and as to

the details of the administration to be followed by the trustee.” Papiernik v.
Papiernik, 45 Ohio St.3d 337, 344 (1989).1 R.C. 5801.04(B) provides that “[t]he

terms of a trust prevail over any provision of Chapters 5801. to 5811. of the Revised

Code . . . [except when the court] take[s] any action and exercise[s] any jurisdiction

that may be necessary in the interests of justice.” And, “‘[e]ven where the power of

appointment is conferred by the instrument in trust upon an individual, a court of

equity may control its execution so as to prevent an abuse of discretion.’” Natl. City

BK of Cleveland et al. v. Schmoltz, 31 N.E. 444 (8th Dist. 1934), quoting Pomeroy,

Equity Jurisprudence, § 1087; see also Holbeck v. Squire, 1937 Ohio Misc. LEXIS

1227, *15 (8th Dist. 1937) (“A court of proper jurisdiction could, upon showing

justifying the action, remove the named trustee and appoint another.”). Mindful

that the court must still comply with the order of priority in R.C. 5807.04(C), we

review a probate court’s appointment of a successor trustee for an abuse of

discretion. See, e.g., Galbreath v. Del Valle, 633 N.E.2d 1185 (10th Dist. 1993).

               Both parties rely on Franklin, 2010-Ohio-4251 (8th Dist.). Franklin

is factually distinguishable but still instructive in the instant matter. The Franklin

Court concluded that the probate court, “being a court of equity with broad equitable

powers,” was authorized to appoint a suitable trustee in violation of the trust

instrument’s terms. Id. at ¶ 15. The at-issue trust required that a daughter, Emily,


       1 We note Barbara’s arguments contesting caselaw that predates Ohio’s adoption

of the Uniform Trust Code on January 1, 2007. R.C. 5801.05 nonetheless provides that
“[t]he common law of trusts and principles of equity continue to apply in this state, except
to the extent modified by Chapters 5801. to 5811. or another section of the Revised Code.”
Barbara has not specifically pointed to any sections that are explicitly modified by R.C.
Chs. 5801 to 5811 herein, so we continue to cite cases predating the Ohio Trust Code.
appoint a “bank or trust company with a combined capital and surplus of at least

$10 million [to] serve as successor trustee.” Id. at ¶ 17. Testimony received at trial

indicated that nearly all of the qualifying institutions that were contacted refused to

serve because of the account balance. Accordingly, the court concluded that “no one

designated by terms of the Trust, i.e. a corporate trustee, [is] willing to serve as

successor trustee.” Id. Thus, the court appointed co-trustees, one of whom was

Emily. The court’s appointment unquestionably deviated from the terms of the trust

— the section providing that Emily may only appoint an institutional successor

suggests that it was likely not contemplated that Emily herself could serve as trustee

— but the trial court appointed Emily, noting that Emily was a suitable trustee

because she had already managed the trust and demonstrated that she could

administer the trust fairly.    This matter is obviously distinguishable because

appointing a bank or trust company was an impossibility in Franklin because of the

account balance. In other words, following the trust instrument would have been

impossible and thus the court made an appointment.

               Here, Barbara’s appointment was not impossible. We find, however,

that Barbara did not exercise her appointment power despite being provided with

the chance, which we will explain in the proceeding paragraphs of this opinion. We

likewise find that the trial court complied with the order of priority in R.C.

5801.04(B).

               Under subsection (B)(1) and the Trust, the parties agree that

Galloway rejected his appointment and did not appoint anyone else.
               Under subsection (B)(2), Barbara was next in the order of priority to

appoint a successor trustee. Neither party disputes this.

               Section (B)(3) relies upon an agreement of all beneficiaries. However,

the record before us demonstrates that there was no agreement. Susan plainly

objected to Barbara’s alleged appointment and instead asked the court to appoint a

neutral third party because of her poor relationship with Barbara and Elisabeth.

Accordingly, the record supports that the parties were not in agreement about

appointing a Trustee. The final option was subsection (B)(4), where the court makes

an appointment.

               We find that the trial court heeded the order of priority under R.C.

5807.04(C)(2) because Barbara was provided with an opportunity to make her

appointment or demonstrate that she could be unbiased, and she did not exercise

this opportunity. On March 27, 2025, the trial court struck Barbara’s alleged notice

of appointment from the record and found that Elisabeth had prepared and made

the appointment instead of Barbara. The notice of appointment was stricken from

the record on March 27, 2025, the hearing was scheduled for May 2025, and then

after a continuance, the hearing was rescheduled for June 23, 2025. During this

time between the stricken notice of appointment and the hearing, Barbara could

have filed any number of motions or filings as a substitute for the notice that was

stricken from the record making an alternative appointment or advocating for her

and Elisabeth’s ability to serve as co-trustees.
               We further note Barbara’s argument that the court’s decision is

improper because of the length of the hearing is unsupported by the law and record

before us. That the hearing did not include an evidentiary component and that it

lasted four minutes was the responsibility of the parties who elected not to introduce

sworn evidence despite adequate notice from the court.            That neither party

submitted anything further despite the opportunity and notice of the hearing

indicates that the parties consented to the court making its decision on the record

before it. And, to the extent Barbara insists that the trial court should have made its

decision based on sworn evidence, Barbara herself did not introduce any sworn

evidence and did not object to anything at any point during the hearing. Further,

Barbara does not point us to any authority, statutory or otherwise, mandating or

even suggesting that a hearing was required in this instance or that the court’s

decision must be based on sworn evidence. She also does not argue that her due-

process rights were violated because her preference for the outcome was not

communicated to the court. Accordingly, on this record, we cannot find that the trial

court erred in conducting the hearing.

               We also cannot find that the court’s appointment was inconsistent

with Gary’s wishes. The record suggests that Gary foresaw these potential issues

and qualified his daughters’ appointment authority by limiting their appointments

to a bank or financial institution.      Elisabeth, in making the appointment on

Barbara’s behalf, did not appoint a bank or financial institution. Appointing a
neutral party was more consistent with Gary’s wishes than Elisabeth’s attempted

appointment.

               On this record, we cannot find that the trial court abused its discretion

in appointing a neutral and uninterested party nor do we find that the trial court did

not follow the statutory order of priority. We do not find that the record was

insufficient as Barbara suggests. This is because the parties were afforded an

opportunity to build a record and neither elected to introduce sworn evidence or

testimony. The record that the trial court considered and the record before us

demonstrates that there are fairness and equity concerns associated with

beneficiaries Barbara and Elisabeth serving as trustees because of their volatile

relationship with another beneficiary, Susan. We accordingly cannot find that the

trial court abused its discretion for the reasons assigned by Barbara and overrule

both of Barbara’s assignments of error.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the probate court to carry this

judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and
MICHAEL JOHN RYAN, J., CONCUR