## Facts

- Brad Watterson was injured in an automobile accident on February 6, 2008, caused by Barthel J. Burnard; fault was undisputed.
- Brad Watterson and his wife, Jamie Watterson, filed a personal-injury lawsuit against Burnard on February 3, 2010.
- Burnard died on November 2, 2011, while the tort case was still pending and before any judgment was entered.
- Before her death, Burnard established and funded a revocable trust (the Barthel J. Burnard Trust) by transferring assets to it during her lifetime.
- Upon Burnard’s death, her son, Ronald J. Burnard, became the successor trustee.
- The Wattersons filed a separate action seeking declaratory and injunctive relief to prevent distribution of trust assets and to have the trust assets declared available to satisfy any judgment they might obtain in the personal-injury case.
- The trial court issued a temporary restraining order against disbursements but later denied the motion for a preliminary injunction, reasoning that the Wattersons could not reach the trust because their claim had not been reduced to judgment before Burnard died.
- The Wattersons appealed from the denial of the preliminary injunction.

## Issues

1. Whether tort claimants whose cause of action arose and whose lawsuit was filed during the settlor’s lifetime may reach assets held in the settlor’s revocable trust after the settlor’s death to satisfy a judgment entered after death.
2. Whether the trial court erred as a matter of law by denying a preliminary injunction on the ground that creditor rights against a revocable trust require a pre-death judgment.

## Decision

- The court of appeals reversed the trial court’s order denying the preliminary injunction and remanded for further proceedings.
- Because the trial court denied relief based on a legal conclusion (not an equitable weighing of injunction factors), the appellate court reviewed the question de novo.
- The court held that the Wattersons qualified as “creditors” based on a tort claim that accrued during Burnard’s lifetime and that the trust assets were subject to that claim even though the tort suit had not reached judgment before Burnard’s death.
- The court rejected the trial court’s view that the absence of a pre-death judgment barred access to revocable-trust property.
- In addressing prior authority, the court distinguished older precedent limiting creditor remedies to the settlor’s lifetime and relied on more recent appellate authority and the Ohio Trust Code provisions governing creditor claims against settlors of revocable trusts.

## Legal Principles

- When a trial court denies a preliminary injunction based on a pure question of law, appellate review is de novo rather than for abuse of discretion.
- Under Ohio trust law, a settlor’s revocable-trust property may be subject to claims of the settlor’s creditors.
- A tort claimant may be treated as a “creditor” when the cause of action accrues (at the time of injury), not only after obtaining a judgment.
- The settlor’s death does not necessarily cut off a prior creditor’s ability to reach revocable-trust assets where the claim arose and was asserted during the settlor’s lifetime.

## Conclusion

The Sixth District reversed the denial of a preliminary injunction because the trial court’s legal premise was wrong: the Wattersons’ tort claim made them creditors during Burnard’s lifetime, and Ohio law allowed them to pursue satisfaction from Burnard’s revocable-trust assets even though Burnard died before the tort action was reduced to judgment.


Watterson v. Burnard, 986 N.E.2d 604 (2013)