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Dater v. Charles H. Dater Foundation12/30/2003
. Plaintiff-appellant/cross-appellee Ann C. Dater challenges the trial court's dismissal of her claims against defendant-appellee/cross-appellant the Charles H. Dater Foundation, Inc. In a cross-appeal, the Foundation takes issue with the trial court's denial of its motion for summary judgment. For the following reasons, we hold that the Foundation was not entitled to summary judgment, and we reverse the trial court's dismissal of the case and remand the cause for further proceedings.
I. Facts
{ } The late Charles H. Dater was a successful businessman who had acquired great wealth during his lifetime. By 1985, Mr. Dater's personal net worth was over $25 million. Over a period of years, Mr. Dater had placed many of his assets in the custody of the investment firm Merrill Lynch through a broker named Alan Ziegler. Sometime in the early 1980s, Ziegler retired and Mr. Dater's account with Merrill Lynch was taken over by Daniel L. Olberding. Olberding was in a partnership relationship with two other Merrill Lynch brokers, Stanley Frank, Jr., and John Silvati, in which they agreed to share commissions and business opportunities.
{ } In August 1985, Mr. Dater suffered a stroke and was unable to manage his financial affairs. Shortly thereafter, Olberding referred Mr. Dater to the law firm of Eichel & Krone. In November 1985, Charles Dater's estate plans, which had been in place with the Central Trust Company since 1940, were modified by the creation of the Charles H. Dater Foundation, Inc., an Ohio charitable trust. At the Foundation's inception, Paul W. Krone, Paul's son, Bruce A. Krone, David L. Oberding, Stanley J. Frank, Jr., and John D. Silvati were named as Foundation trustees.
{ } Approximately one month later, Mr. Dater executed a new agreement that created the Charles H. Dater Trust. On January 5, 1990, despite evidence that Mr. Dater was suffering from dementia and Alzheimer's disease and that his mental condition was deteriorating, Mr. Dater executed the Charles H. Dater Last Will and Testament and bequeathed the residue of his estate under a pour-over provision to the Dater Trust, an existing inter vivos trust. On that same day, Mr. Dater also executed a document called the Second Amendment and Restatement of Trust Agreement, which amended the terms of the Dater Trust.
{ } Mr. Dater died on September 23, 1993. He was survived by his wife, Ann Dater. Pursuant to the estate plans, the Dater Trust provided that, upon Mr. Dater's death, Paul W. Krone, Bruce A. Krone, David L. Olberding, Stanley J. Frank, Jr., and John D. Silvati would become trustees of the Dater Trust. The trust further provided that if one of these trustees died or stepped down, he would be succeeded by his wife and then children in descending order of age. The Dater Trust also contained a provision calling for the Foundation to receive assets upon Mr. Dater's death. The Dater Trust divided the corpus into shares, one of which was paid outright to the Foundation, with the remaining shares to be held in trust for Mrs. Dater and her children, and with the bulk of the remainder thereof to be paid over to the Foundation. At the time of Mr. Dater's death, the Dater inter vivos trust was a fully funded trust with assets over $50 million.
A. Events Precipitating the First Appeal
{ } In September 1997, Ann Dater, her child, and her grandchildren ("Plaintiffs") filed a complaint against Bruce A. Krone, Dorothy G. Krone, David L. Oberding, Stanley Frank, Jr., and John D. Silvati, in their capacities both as individuals and as trustees of the Charles H. Dater Second Amendment and Restatement of Trust Agreement ("Dater trustees"), the law firm of Eich
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