COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61327 RESOLUTION TRUST CORPORATION, : CONSERVATOR, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MIRIAM E. LEVITT, : ADMINISTRATRIX, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 30, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court -- : Probate Court Division : Case No. 1044996 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Robert J. Fogarty 800 National City E. 6th Building Cleveland, Ohio 44114-2262 For defendant-appellant: Frank K. Levin James A. Levin 3010 Terminal Tower Cleveland, Ohio 44113 For Fred Helden: Brian Kraig KRAIG & PASZ 623 St. Clair Avenue, N.W. Cleveland, Ohio 44113 -2- NAHRA, P.J.: Miriam E. Levitt, administratrix of the estate of her husband, Morris M. Levitt, and their son Herschel A. Levitt, appeal from a decision of the probate court in favor of The Resolution Trust Corporation and Fred Helden. For the reasons set forth below, we affirm. Morris M. Levitt died January 19, 1987. Prior to his death, his brother-in-law, Fred Helden, became his judgment creditor in the amount of $28,732.05 pursuant to Fred Helden v. Morris M. Levitt (July 16, 1985), Cuyahoga C.P. No. 94559, unreported. Broadview Savings Bank became a judgment creditor of Miriam E. Levitt as administratrix of Morris E. Levitt's estate in the amount of $250,000.00 plus interest in Broadview Savings and Loan v. Levco Housing Corp., et al. (Feb. 14, 1989), Cuyahoga C.P. Nos. 90770 and 156734, unreported. The Resolution Trust Corporation (hereinafter "RTC") subsequently succeeded to Broadview's interest. RTC and Fred Helden made claims against Morris Levitt's estate. Miriam Levitt as administratrix rejected the claims. Objections to the estate inventory were also filed. RTC then filed a declaratory judgment action in probate court against Miriam and Herschel Levitt. RTC sought declarations that its judgment was a valid claim on the estate; that Morris Levitt's one-third interest in property in Brooklyn, Ohio, which was held in trust, should be included in the estate; and that a purported -3- assignment of the trust property from Morris Levitt to his son Herschel was fraudulent. Fred Helden's motion to intervene in this declaratory judgment action was granted by the court. Miriam and Herschel Levitt answered and filed counterclaims against RTC, each seeking $10 million in compensatory damages and $10 million in punitive damages. RTC moved to dismiss the counterclaims, which motion was subsequently granted. RTC and Fred Helden moved for partial summary judgment. RTC asserted that Morris Levitt's purported assignment of the trust property to his son was not in compliance with the trust provisions and was therefore invalid. Since Morris Levitt still owned the trust property upon his death, it should have been included in his estate to pay the claims of creditors. Fred Helden's motion acquiesced in RTC's motion, stating that he was also a judgment creditor of Morris Levitt and was entitled to judgment for the same reasons. Miriam E. Levitt filed a motion for summary judgment claiming that the court had already found the assignment from Morris to Herschel Levitt to be valid, and that the matter was therefore res judicata. The court denied Miriam Levitt's motion for summary judgment, and granted RTC's motion for partial summary judgment. It found that the assignment was invalid due to lack of compliance with trust provisions. It also found that the property should have been included in Morris Levitt's estate. -4- The court denied all other relief sought in the complaint. It also denied Fred Helden's partial summary judgment as moot. Miriam and Herschel Levitt brought this timely appeal, 1 assigning two errors. RTC truly filed a cross-appeal. This court granted Fred Helden's motion to intervene as a party appellee. I. Appellants' first assignment of error reads as follows: THE PROBATE COURT ABUSED ITS DISCRETION AND CAUSED APPELLANTS PREJUDICIAL HARM BY GRANTING APPELLEE PARTIAL SUMMARY JUDGMENT; GENUINE ISSUES OF MATERIAL FACT EXIST AS TO THE VALIDITY OF DECEDENT'S ASSIGNMENT TO APPELLANT HERSCHEL A. LEVITT. Civ. R. 56(E) provides in pertinent part that [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. See also Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, paragraph three of the syllabus. RTC's motion for partial summary judgment asserted that its $250,000.00 judgment was a valid debt of the estate, and that the trust property should have been included in the estate and be applied to pay the debt. RTC attached a judgment entry 1 Although RTC filed a timely cross-appeal, it did not assign errors. -5- reflecting the $250,000.00 judgment. RTC also attached a copy of the trust agreement, which states in pertinent part as follows: No assignment, transfer, encumbrance or alienation of any beneficial interest in the Trust shall be effective until notice of same shall have been given to the [trustee] and all other [co-beneficiaries], and evidence thereof satisfactory to the [trustee] shall have been furnished to the [trustee]. RTC attached a copy of the assignment from Morris Levitt to Herschel Levitt dated November 18, 1982. RTC also attached Miriam Levitt's affidavit, which states that "everyone knew that Herschel owned my husband's one-third interest in the [trust] property", and that "the other owners acquiesced in the assignment". A portion of Herschel Levitt's deposition is attached, which reflects that the assignment was a gift. Herschel Levitt also stated that he did not notify the trustee of the assignment and did not know whether his father notified the trustee. The deposition and affidavit of Thomas Newell on behalf of the trustee, Chicago Title, indicate that Chicago Title did not receive notice of the assignment until May, 1988, after Morris Levitt's death. Interrogatory answers from the co-beneficiaries indicate that they did not receive notice of the assignment until May, 1988. The deposition of Frank Levin indicated that Herschel Levitt instructed him to keep the assignment confidential. Herschel Levitt's deposition also reflects that his tax returns did not include gains or losses from the trust property. -6- Miriam Levitt opposed RTC's motion for partial summary judgment. The affidavit of attorney Frank Levin was attached. Levin stated that the lawsuit which resulted in RTC's $250,000.00 judgment included an agreement by counsel that the trust property belonged to Herschel Levitt by assignment from his father. However, the judgment entry filed in that case does not reflect that agreement; furthermore, it does not appear of record that the co-beneficiaries or trustee waived their rights to notice of assignment. Also attached to the brief in opposition are judgment entries and a referee's report concerning Morris Levitt's estate. As quoted by appellant, in the August 29, 1988 report, the referee states as follows: The Court is convinced that an assignment was made by Morris M. Levitt, the decedent herein, to his son Herschel A. Levitt on November 18, 1982. Therefore, the subject matter of the deposition concerns an asset which is not part of the probate estate of Morris M. Levitt. However, the referee went on to state as follows: Therefore, the Motion for Protective Order and all other Motions concerning the same should be granted as for the protection of this deposition, and the Motions by the creditor, Fred Helden should be dismissed. The Court is convinced, as it is aware that there is a case presently pending in the General Division, that this matter is best litigated elsewhere. This Court is also aware that there have been settlement negotiations and it has been informed that the case has been settled by and between members of the Levitt family and Mr. Helden who is also a member of the family. -7- The Court must say at this time that it is indeed unfortunate that the matter has reached the proportions that it has. As this is a family matter, it should and has been settled. The court never journalized an entry indicating that the assignment was valid. The court made entries regarding discovery matters only, and left the matter of the assignment to be decided elsewhere. Appellants attach numerous other documents to their opposing brief. None of the documents reflect that the trustee and co- beneficiaries had notice of the assignment; that they waived the notice provisions of the trust; or that they acquiesced in the assignment. Trust provisions attaching conditions to the right of assignment are valid and enforceable. See, e.g., Bogert, Trusts and Trustees (2 Ed. 1979), 471, Sec. 188; II A Scott, Scott on Trusts (4 Ed. 1987), 19, Sec. 136; Lloyd v. McDiarmid (1937), 60 Ohio App. 7 (court enforces trust restrictions on the power to transfer, finding that they do not constitute an illegal restraint on alienation). In this case, there is no genuine issue of material fact that the trustee and the co-beneficiaries did not receive notice of the assignment as required by the trust agreement. Accordingly, the trial court properly granted summary judgment. Appellants' first assignment of error is overruled. II. Appellants' second assignment of error reads as follows: -8- APPELLEE NOT A PARTY TO THE TRUST (SIC), LACKED STANDING TO CHALLENGE THE ASSIGNMENT OF DECEDENT MORRIS M. LEVITT TO APPELLANT HERSCHEL A. LEVITT. R.C. 2721.05 provides in pertinent part as follows: Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto in any of the following cases: * * * (C) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. (Emphasis added.) Prior R.C. 2102.24 provided in pertinent part as follows: (A) Except as otherwise provided by law, the probate court has exclusive jurisdiction: * * * (12) To render declaratory judgments, including, but not limited to, those rendered pursuant to section 2107.084 of the Revised Code; * * * (B) The probate court has concurrent jurisdiction with, and the same powers at law and in equity as, the general division of the court of common pleas to hear and determine actions involving inter vivos trusts. (C) The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by statute. In Bobko v. Sagen (1989), 61 Ohio App. 3d 397, paragraph one of the syllabus, this court held that the probate court had -9- jurisdiction to determine the validity of inter vivos transfers because the property would revert to the estate if the transfers were found invalid. See also In Re Estate of Morrison (1953), 159 Ohio St. 285, syllabus, where the court held as follows: By the Constitution and statutory enactments, the Probate Court is invested with the power and jurisdiction to adjudicate a matter relating to the title to and status of personal property, where, during the administration of a decedent's estate in such court, decedent's widow files her petition asking for a declaration that certain personal property is an asset of the estate and must be administered as such, as against the claim that such property was effectually disposed of by the decedent during his lifetime through a written declaration of trust. Accord Eger v. Eger (1974), 39 Ohio App. 2d 14, paragraph two of the syllabus, where the court held as follows: If an executor, administrator, or other interested party discovers that an asset was not included in the inventory or supplemental inventory of a decedent, and that the asset may belong to the estate, such party may bring an action in declaratory judgment under R.C. 2721.05, or use the special proceedings of R.C. 2109.50 to determine whether such asset belongs in the estate of the decedent. In this case, RTC and Helden are interested in the administration of Morris Levitt's estate in their capacity as creditors. Therefore, they were entitled to bring an action in declaratory judgment to determine whether Morris Levitt's inter vivos assignment of his trust property was valid. Appellant's second assignment of error is overruled. Affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court -- Probate Court Division 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. ANN McMANAMON, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .