[Cite as Johnstown v. Smith,
2024-Ohio-5128.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF JOHNSTOWN, ET AL., JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiffs-Appellants Hon. William B. Hoffman, J.
Hon. Andrew J. King, J.
-vsCase No. 2024 CA 00045
ROGER W. SMITH, TRUSTEE OF
OF THE TRUST CREATED UNDER
ITEM 14 OF THE LAST WILL AND
TESTAMENT OF PERRY LESTER
MILES, ET AL.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Probate Division, Case
No. 19750734A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 24, 2024
APPEARANCES:
For Plaintiff-Appellants For Defendant-Appellees
W. SCOTT HAYES PETER N. GRIGGS, ESQ.
195 E. Broad Street JENNIFER HUBER, ESQ.
P.O. Box 958 Brosius, Johnson & Griggs, LLC
Pataskala, Ohio 43062 1600 Dublin Road, Suite 100
Columbus, Ohio 43215
For Ohio Attorney General
LIZA DIETRICH, ESQ.
Associate Assistant Attorneys General
Charitable Law Section
30 E. Broad Street, 25th Floor
Columbus, Ohio 43215-3130
Licking County, Case No. 2024 CA 00045 2
Hoffman, J.
{¶1} Appellants City of Johnstown and Johnstown-Monroe School District appeal
the judgment entered by the Licking County Common Pleas Court, Probate Division,
dismissing their complaint seeking declaratory judgment. Appellees are Roger W. Smith,
Trustee, and Ohio Attorney General David Yost.
STATEMENT OF THE FACTS AND CASE
{¶2} Brigadier General Perry L. Miles died in 1961, and his last will and testament
was admitted to the Licking County Probate Court. Item 14 of the will created a charitable
trust (hereinafter “Trust”), which owns 168.06 acres of undeveloped land in Licking
County. The Trust owns approximately $1,290,000.00 in other assets. In pertinent part,
the Trust provides:
It is my wish and desire that upon the termination of the life estates
hereinbefore provided, that my farm, residences, buildings, furnishings, and
personal effects, books and antiques be kept and maintained as the
Longwell and Miles Memorial Estate for the purpose of Religious,
Educational and Recreational good and benefit to the residents of
Johnstown Village, Liberty Township and surrounding community. To
provide for the safe keeping of items of historical value to the community,
to provide a gathering place for groups interested in the betterment of
mankind through religion and education study; and to provide suitable
environment for picnics, camping and recreation areas, for the youth of the
community.
Licking County, Case No. 2024 CA 00045 3
The management and control of said trust shall be vested in my said
trustee, or his successor, together with the individual person that holds the
position of President of The Johnstown Bank, the President of The
Johnstown Federal Savings and Loan Association, the Mayor of the Village
of Johnstown, Licking County, Ohio, and the President of the Township
Trustees of Liberty Township, Licking County, Ohio, which shall be
designated and known as the Longwell and Miles Memorial Estate Body.
Said Management Body shall have full and complete control of all of
said trust property and shall make such rules and regulations as are
deemed necessary for proper functioning of the trust and its purposes. The
judgment of the Management Body shall be complete and final as to any
matters that concern the use and purpose for which the trust is created.
Said Management Body shall have the power and authority to carry on
farming or other income producing activity that in their judgment may
become necessary for the maintenance and operation of the Longwell and
Miles Memorial Estate. I also authorize said management body, should it
become necessary to properly maintain the trust property or to carry out the
purpose of the trust, to borrow money and as security to pledge such assets
as may be necessary, real or personal.
In all cases in which said Management Body is required to do an act,
the majority of them shall govern and the acts of such majority shall be
binding upon the trust estate and upon all persons whomsoever.
Licking County, Case No. 2024 CA 00045 4
{¶3} Since 2010, the Trustee has been required to file status reports with the trial
court every six months to allow the court to monitor the Trust’s activities. In August of
2022, the Trustee filed an application with the trial court seeking permission to terminate
the Trust, and distribute the Trust’s assets to the Licking Park District to fund the
development of a memorial park, and to the Licking County Foundation to fund
scholarships for local schools. The application included a resolution approving the
proposal signed by three members of the Management Body, including the trustee. The
president of the Liberty Township Trustees did not sign the resolution, but filed a
memorandum stating he did not object to the proposal, provided any funds given to the
park district were specifically earmarked for the General Miles Memorial Park.
{¶4} Appellants City of Johnstown and Johnstown-Monroe School District, along
with the Greater Johnstown Parks District1 (hereinafter “Johnstown Contingent”) filed a
motion to intervene. The Johnstown Contingent also filed a complaint for declaratory
judgment.
{¶5} The Ohio Attorney General (hereinafter “OAG”) filed a motion to intervene,
a response in opposition to the Johnstown Contingent’s motion to intervene, and a motion
to dismiss the Johnstown Contingent’s complaint for declaratory judgment. On April 18,
2024, the trial court granted the motion of the OAG to intervene, and denied the
Johnstown Contingent’s motion to intervene, finding they lacked standing to intervene.
Appellants appeal this judgment in App. Case No. 24 CA 00046. On the same day by
separate judgment entry, the trial court dismissed the Johnstown Contingent’s declaratory
1 The Johnstown Parks and Recreation District has not appealed the decisions of the trial court.
Licking County, Case No. 2024 CA 00045 5
judgment action based on lack of standing. Appellants appealed this judgment in App.
Case No. 24 CA 00045.
{¶6} Although the cases have not been consolidated by this Court, Appellants
filed a single brief including both case numbers, and assignments of error related to both
appeals. It is from the April 18, 2024 judgments of the trial court Appellants prosecute
their appeals, assigning as error:
I. THE LOWER COURT COMMITTED REVERSIBLE ERROR
WHEN IT FAILED TO ALLOW THE JOHNSTOWN CONTINGENT TO
INTERVENE IN THE MATTER OF THE PERRY L. MILES
TESTAMENTARY TRUST.
II. THE LOWER COURT COMMITTED REVERSIBLE ERROR
WHEN IT DISMISSED THE COMPLAINT OF THE JOHNSTOWN
CONTINGENT.
I.
{¶7} In their first assignment of error, Appellants argue the trial court erred in
overruling their motion to intervene. This assignment relates solely to the judgment
appealed in Case No. 24 CA 00046, and will be addressed by separate opinion issued in
that case.
II.
{¶8} In their second assignment of error, Appellants argue the trial court erred in
dismissing their complaint for declaratory judgment on the basis they lacked standing.
Licking County, Case No. 2024 CA 00045 6
{¶9} “Standing” is defined as a “‘party's right to make a legal claim or seek judicial
enforcement of a duty or right.’” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 2007-Ohio-
5024, ¶ 27, quoting Black's Law Dictionary (8th Ed. 2004). “When an appellate court is
presented with a standing issue, generally a question of law, it applies a de novo standard
of review.” Adams v. Adams, 2018-Ohio-944, ¶ 13 (5th Dist.).
{¶10} R.C. 109.24 provides in pertinent part:
The attorney general may investigate transactions and relationships
of trustees of a charitable trust for the purpose of determining whether the
property held for charitable, religious, or educational purposes has been
and is being properly administered in accordance with fiduciary principles
as established by the courts and statutes of this state.
The attorney general shall institute and prosecute a proper action to
enforce the performance of any charitable trust, and to restrain the abuse
of it whenever he considers such action advisable or if directed to do so by
the governor, the supreme court, the general assembly, or either house of
the general assembly. Such action may be brought in his own name, on
behalf of the state, or in the name of a beneficiary of the trust, in the court
of common pleas of any county in which the trust property or any part of it
is situated or invested, or in which the trustee resides; provided that in the
case of a charitable trust created by, arising as a result of, or funded by a
will, such action may be brought in either the court of common pleas of any
such county, or the probate division of it, at the election of the attorney
Licking County, Case No. 2024 CA 00045 7
general. No such action shall abate or discontinue by virtue of the
discontinuance in office of the attorney general in whose name such actions
may be brought. This section is intended to allow the attorney general full
discretion concerning the manner in which the action is to be prosecuted,
including the authority to settle an action when he considers that advisable.
{¶11} This Court has previously held pursuant to this statute, the Ohio Attorney
General has exclusive authority to enforce charitable trusts. “Permitting possible
beneficiaries to have separate counsel besides the Attorney General and to institute their
own actions to enforce charitable trusts might unduly burden trustees and compromise
the best interest of the beneficiaries.” State ex rel. Lee v. Montgomery, 88 Ohio St.3d
233, 236, (2000). Because the enforcement of a charitable trust is done in the interest
of the general public, the attorney general is the proper party to prosecute the claim. Plant
v. Upper Valley Med. Ctr., Inc.,
1996 WL 185341, *3 (2nd Dist. April 19, 1996).
{¶12} Appellants argue the OAG’s representation is inadequate to protect their
interests in the trust due to the efforts of the OAG to prohibit their participation in the case.
However, we find the OAG’s efforts to prevent Appellants from usurping his statutory role
does not demonstrate he will not fairly and adequately represent the interests of
Appellants as possible beneficiaries of the case.
{¶13} In Plant, supra, the Second District Court of Appeals held under narrow
circumstances, a party other than the OAG may bring an action to enforce the trust. Citing
the Second Restatement of the Law of Trusts 2d 278, Section 391, the court held, “A suit
can be maintained for the enforcement of a charitable trust by the Attorney General or
Licking County, Case No. 2024 CA 00045 8
other public officer, or by a co-trustee, or by a person who has a special interest in the
enforcement of the charitable trust, but not by persons who have no special interest or by
the settlor or his heirs, personal representatives or next of kin.”
{¶14} Appellants argue the City of Johnstown is a “de facto co-trustee” because
the Mayor of Johnstown is a designated member of the Management Body. Assuming
arguendo the Mayor’s status as a member of the Management Body gives him the same
rights as a co-trustee of the trust, the Mayor is not a party to the declaratory judgment
action. We find the Mayor’s membership in the Management Body of the trust does not
impute to the City of Johnstown, which is a separate entity from the Mayor.
{¶15} Appellants argue they have standing as public officers because they are
public officers, elected by the residents of Johnstown, and the trust specifically states the
assets are to be held for the purpose of the benefit of the residents of Johnstown and the
surrounding community. In Jackson v. Cleveland Clinic Found., N.D.Ohio No. 1:11 CV
1334, 2011 WL 4007732, *5, the court rejected a similar argument made by the Mayor of
Cleveland:
Plaintiffs assert that they may sue to enforce charitable trust
obligations because the mayor is a “public officer who lawfully represents
the entire community.” (Pls.' Mem., at 13–14.) The authority on which
Plaintiffs rely, however, supports the Clinic's position. Plant held that Ohio
R.C. § 109.24 “grants absolute control of the prosecution for the
enforcement of a charitable trust to the Attorney General,” and “lacks any
language that would ... confer power to prosecute a charitable trust on any
Licking County, Case No. 2024 CA 00045 9
other entity.” 1996 WL 185341, at *3. While the court in Plant noted that
“[w]here the action effects the entire community, the proper party to bring
the suit is the public officer that lawfully represents the entire community,”
Id., Plaintiffs here do not represent the entire community. Plaintiffs do not
even represent East Cleveland, the community in which Huron Hospital is
located.
{¶16} In the instant case, we find Appellants similarly do not represent the entire
community. Appellants represent only one municipality and one school district, while the
Trust benefits the entire surrounding community. R.C. 109.24 designates the OAG as
the public officer who lawfully represents the entire community.
{¶17} Finally, Appellants argue they have a special interest in the trust. In Plant,
supra, the court discussed special interest standing as follows:
The Plaintiffs do not allege that they possess a special interest in the
charitable trust. The Jacob Dettmer trust does not specifically refer to the
Plaintiffs individually as an actual beneficiary. The Plaintiffs are in fact
concerned members of the general public, possessing the same level of
interest as any other citizen of Miami County. The Plaintiffs are best
characterized as probable beneficiaries. Lacking any special interest, the
Plaintiffs lack standing to sue. The party in the best position to protect the
interests of the citizens of Miami County is the Attorney General.
Licking County, Case No. 2024 CA 00045 10
{¶18} Plant, supra, *4.
{¶19} As in Plant, Appellants herein are not referred to in the Trust as actual
beneficiaries, but rather have the same level of interest as the entire community for whom
the trust was established, and are at best characterized as possible beneficiaries of the
trust. Appellants have not pointed to any special interest they have in the trust which
distinguishes them from the entire community for whom the trust was established.
{¶20} Appellants cite to the Third Restatement of Trusts, which indicates special
interest standing might be justified where the beneficiary group is “reasonably limited”
and the issue is a matter of common concern to all members of the potential recipient
group. However, this standard has not been adopted by Ohio courts, and is inapplicable
to the instant case. The group of potential beneficiaries of the Trust is not reasonably
limited, as it extends not only to the City of Johnstown, but also to the township and the
“surrounding community.” The concerns of Appellants are linked to its own interests and
not to the entire surrounding community for whom the trust was established.
Furthermore, we conclude the Restatement does not diminish or otherwise supersede
the OAG’s exclusive authority as provided in R.C. 109.24.
{¶21} We find the trial court did not err in finding Appellants lacked standing to
bring a declaratory judgment action to enforce the Trust. The assignment of error is
overruled.
Licking County, Case No. 2024 CA 00045 11
{¶22} The judgment of the Licking County Common Pleas Court, Probate Division,
is affirmed.
By: Hoffman, J.
Delaney, P.J. and
King, J. concur
