Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law.

The Trumbull County Court of Common Pleas, Probate Division, entered an order removing Rudolph Joseph Setinsek as Successor Trustee of the Rudolph J. Setinsek and Mary T. Setinsek Trust on the grounds that he committed serious breaches of the trust and of the duty of loyalty.  Setinsek appealed that order removing him, but the Court of Appeals of Ohio for the Eleventh District dismissed the appeal for lack of a final order.

The reason why Setinsek could not, at that time, appeal the order was because the case continued pending below in the probate court.  The probate court had appointed Robert G. Kroner, Jr. as a “special court investigator” and special commissioner to investigate certain issues and make a recommendation to the court whether or not any transactions under the former trustee [Setinsek] should be voided.

Thus, the probate court had adjudicated fewer than all the claims in the action and that order removing Setinsek technically remained subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of the parties.  To have been appealable, the probate court would have had to expressly enter a final judgment on the removal claim and make an express determination that there was no just reason for delay in entering that final judgment, which it did not.  Thus, Setinsek must wait to appeal the order removing him as successor trustee.