State ex rel. Lewis v. Moser - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Lewis et al. v. Moser, Judge.
[Cite as State ex rel. Lewis v. Moser (1995), Ohio
St.3d .]
Mandamus to compel common pleas court judge to adjudicate
claims against executor for conversion and other
mishandling of estate -- Writ denied, when.
(No. 93-939 -- Submitted January 24, 1995 -- Decided April
2, 1995.)
In Mandamus.
Relators, Bonnie C. Lewis and her three children, are the
beneficiaries under a will and trust executed by Lewis's
mother, Jean M. Cullen, now deceased. In May 1992, relators
sued the executor of Cullen's estate, Star Bank, N.A., Butler
County ("Star Bank"), and the attorney for the estate, the law
firm of Parrish, Beimford, Fryman, Smith & Marcum Co., L.P.A.,
before respondent, Judge John Moser, in the Butler County Court
of Common Pleas. On defendants' motions, respondent dismissed
one of relators' counts and transferred two of the remaining
claims to the probate division of the common pleas court.
The transferred claims were part of Counts II and IV of
the common pleas complaint and sought compensatory and punitive
damages against Star Bank for (1) the "conversion" of paintings
worth over two million dollars (Lewis claims that the paintings
should have passed to her under Cullen's will, but the executor
sold them at auction for the benefit of the residuary estate),
and (2) breach of fiduciary duty in misallocating a
generation-skipping transfer tax exemption, which resulted in
the Lewis children's paying $282,415 in additional taxes.
Relators responded by moving the probate court for a ruling
that it did not have jurisdiction over claims for punitive and
compensatory damages. Judge Stephen Powell granted this motion
on May 10, 1993.
Judge Powell has also approved the final accounting and
settled the Cullen estate, discharging Star Bank from its
fiduciary duties. Relators have moved to vacate that final
order, citing, among other things, the executor's failure to
pass Cullen's paintings to Bonnie Lewis pursuant to a
testamentary devise of household furnishings.

Relators ask for a writ of mandamus to compel respondent
to adjudicate their claims against Star Bank as alleged in
Counts II and IV.

John A. Lloyd, Jr., Jeanette H. Rost and John W. Hancock,
for relators.
Taft, Stettinius, & Hollister, R. Joseph Parker and
Michael R. Rickman, for respondent.

Per Curiam. Relators argue that Judge Powell has no
authority to adjudicate Counts II and IV of their complaint
because the probate court's limited jurisdiction under R.C.
2101.24 1 does not include claims for compensatory and punitive
damages. Respondent contends that (1) the probate court has
exclusive jurisdiction over claims against an executor for
conversion and other breaches of fiduciary duties in the
administration of an estate, (2) relators had an adequate
remedy in the ordinary course of law by way of appeal, and (3)
laches bars issuance of the writ.
For a writ of mandamus to issue, relators must have a
clear right to respondent's performance of a clear legal duty
and no adequate remedy in the ordinary course of the law.
State ex. rel. Seikbert v. Wilkerson (1994), 69 Ohio St.3d 489,
490, 633 N.E.2d 1128, 1129. Thus, the following issues are
raised: (1) Does the common pleas court possess jurisdiction
over claims against an executor for conversion and otherwise
mishandling an estate, such that respondent has a duty to
adjudicate relators' claim for compensatory and punitive
damages? (2) Is appeal an available and adequate legal remedy
that precludes a writ of mandamus? and (3) Does laches
prevent relief? For the reasons that follow, we hold that
appeal is an adequate legal remedy. Accordingly, we deny the
writ of mandamus without disposing of the other arguments
raised by the parties and leave the issue of probate court
jurisdiction for resolution by the appellate process.
Respondent argues that relators' remedy is appeal of the
jurisdictional ruling transferring their claims against Star
Bank to the probate court. He relies on cases establishing the
general principles that (1) jurisdictional issues may be raised
on appeal, and (2) extraordinary relief is not to be used as a
substitute for appeal. See, e.g., State ex rel. Smith v. Huron
Cty. Probate Court (1982), 70 Ohio St.2d 213, 24 O.O.3d 320,
436 N.E.2d 1005 (prohibition to prevent exercise of
jurisdiction denied due to available appeal), and State ex rel.
Casey Outdoor Advertising, Inc. v. Ohio Dept. of Transp.
(1991), 61 Ohio St.3d 429, 575 N.E.2d 181 (mandamus relief
denied due to available appeal).
Relators respond that the transfer order is not final and
appealable under R.C. 2505.02 because while it "affects a
substantial right in an action," it did not "determine the
action." 2 Relators also argue that appeal at the conclusion of
the common pleas proceedings is inadequate because it will mean
separate trials against Star Bank and Parrish, Beimford,
Fryman, Smith & Marcum. This, they complain, could impede
their trial strategy and produce "conflicting decisions, the
duplication of trials, and the waste of money and judicial
resources."

The appeal that will eventually be available to relators
is not inadequate for the following reasons. State ex rel.
Willis v. Sheboy (1983), 6 Ohio St.3d 167, 6 OBR 225, 451
N.E.2d 1200, paragraph one of the syllabus states:
"Where a constitutional process of appeal has been
legislatively provided, the sole fact that pursuing such
process would encompass more delay and inconvenience than
seeking a writ of mandamus is insufficient to prevent the
process from constituting a plain and adequate remedy in the
ordinary course of the law." Accord State ex rel. Casey,
supra, 61 Ohio St.3d at 432, 575 N.E. 2d at 184.
To avoid the issue of an adequate legal remedy, relators
further rely on State ex rel. Adams v. Gusweiler (1972), 30
Ohio St.2d 326, 59 O.O.2d 387, 285 N.E.2d 22, a prohibition
case holding that the writ may issue despite an available
appeal where a court has no jurisdiction whatsoever to act. We
consider appeal "immaterial" in prohibition actions and will
stop an inferior tribunal from exercising unauthorized
jurisdiction only if that tribunal patently and unambiguously
lacks jurisdiction over the pending cause. Goldstein v.
Christiansen (1994), 70 Ohio St.3d 232, 235, 638 N.E.2d 541,
543. We applied a variation of this rule in State ex rel.
Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d 650,
in which a writ of mandamus was issued to compel the vacation
of a court order, notwithstanding an available appeal, because
the lower court had no jurisdiction to act.
However, we are not convinced that the probate court so
patently and unambiguously lacks jurisdiction over claims for
breaches of fiduciary duties seeking monetary damages that we
are willing to issue a writ of mandamus and circumvent the
appellate process.
The parties cite competent authority on both sides of this
issue. Relators rely on Kindt v. Cleveland Trust Co. (1971),
26 Ohio Misc. 1, 55 O.O.2d 53, 266 N.E.2d 84, and Alexander v.
Compton (1978), 57 Ohio App.2d 89, 11 O.O.3d 81, 385 N.E.2d
638, which hold that probate courts have no jurisdiction under
R.C. 2101.24 to award money damages. We have also relied on
these cases. See Corron v. Corron (1988), 40 Ohio St.3d 75,
531 N.E.2d 708; Schucker v. Metcalf (1986), 22 Ohio St.3d 33,
22 OBR 27, 488 N.E.2d 210; and Dumas v. Estate of Dumas (1994),
68 Ohio St.3d 405, 627 N.E.2d 978.
By contrast, respondent relies on Starr v. Rupp (C.A. 6,
1970), 421 F.2d 999, 25 Ohio Misc. 224, 53 O.O.2d 169, and Bedo
v. McGuire (C.A. 6, 1985), 767 F.2d 305, which recognize the
exclusive jurisdiction of Ohio probate courts under R.C.
2101.24 to determine claims that an executor mishandled the
assets of an estate. Respondent also relies on Border v. Ohio
Savings & Trust Co. (1970), 26 Ohio Misc. 273, 55 O.O.2d 410,
267 N.E.2d 120, and Chewning v. Rickman (July 14, 1989), Lucas
App. No. L-88-416, unreported, which consider common pleas
court claims against an executor for improperly administering
an estate an impermissible collateral attack on the probate
court's final order settling the fiduciary's account. Accord
Truss v. Clouse (App. 1937), 23 Ohio Law Abs. 610.
The parties do not attempt to reconcile these cases, and
we are aware of only one case that directly addresses and
explains the rule that applies when both a breach of fiduciary

duty and a request for monetary damages are claimed in the same
cause of action. In Goff v. Ameritrust Co., N.A. (May 5,
1994), Cuyahoga App. Nos. 65196 and 66016, unreported, 1994 WL
17355, the court of appeals affirmed a common pleas court's
dismissal of a complaint for money damages against an executor
for breach of fiduciary duties. The beneficiary of the will in
Goff made the same arguments as relators do here regarding
probate court jurisdiction, but the court of appeals rejected
them. In essence, the Goff court held that (1) the probate
court's plenary jurisdiction at law and in equity under R.C.
2101.24(C) authorizes any relief required to fully adjudicate
the subject matter within the probate court's exclusive
jurisdiction, and (2) claims for breach of fiduciary duty,
which inexorably implicate control over the conduct of
fiduciaries, are within that subject-matter jurisdiction by
virtue of R.C. 2101.24(A)(1)(c) and (l).
The thoughtful discussion in Goff suggests a basis for
reevaluating the holdings in Kindt, supra, and Alexander,
supra, that probate courts cannot award monetary damages. We
conclude, therefore, that relators have failed to establish the
manifest lack of jurisdiction for which we will resolve this
appealable issue and grant extraordinary relief. Accordingly,
the writ of mandamus is denied.
Writ denied.
Moyer, C.J., Douglas, Wright, F.E. Sweeney and Cook, JJ.,
concur.
Resnick, J., concurs in judgment only.
Pfeifer, J., dissents.

FOOTNOTES:

1. R.C. 2101.24 provides, in part:
"(A)(1) Except as otherwise provided by law, the probate
court has exclusive jurisdiction:
''* * *
"(c) To direct and control and settle the accounts of
executors and administrators and order the distribution of
estates;
"* * *
"(j) To construe wills;
"* * *
"(l) To direct and control the conduct of
fiduciaries and settle their accounts;
"* * *
"(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 a section of the Revised Code."
2. The parties do not argue whether the order is immediately
appealable as having been made in a "special proceeding"
pursuant to R.C. 2505.02. See Polikoff v. Adam (1993), 67 Ohio
St.3d 100, 616 N.E.2d 213 (Orders affecting substantial rights
and entered in actions specially created by statute are final
and appealable under R.C. 2505.02 as "special proceedings.").
Pfeifer, J., dissenting. A writ of mandamus should be
available to relators who have a prima-facie case for a
recognized tort but who -- due to a jurisdictional ping-pong

match between two divisions of the court of common pleas --
have no court to hear their case.
"Although mandamus normally will not issue to control a
court's discretion, * * * it will issue to require a court to
exercise its jurisdiction or discharge its mandatory functions.
* * *" (Citations omitted amd emphasis added.) Dapice v.
Stickrath (1988), 40 Ohio St.3d 298, 300, 533 N.E.2d 339, 341.
The courts of common pleas are constitutionally obligated
to exercise their jurisdiction over the tort of conversion.
Section 4 (B), Article IV of the Ohio Constitution provides:
"The courts of common pleas and divisions thereof shall
have such original jurisdiction over all justiciable matters *
* * as may be provided by law." (Emphasis added.)
The common-law tort of conversion has long been recognized
as a cause of action in Ohio. See Woods v. McGee (1836), 7 Ohio
127. If the facts as alleged by relators prove to be true,
there is little question that relators have a justiciable claim
against the defendant bank. Thus, one division of the common
pleas court -- whether it be the general division or the
probate division -- is obligated to hear relators' case.
The cause of action of conversion is constitutionally
guaranteed by other provisions of the Ohio Constitution.
Section 16 Article I -- which is also known as the "open
courts" section -- provides:
"All courts shall be open, and every person, for an injury
done him in his land, goods, person, or reputation, shall have
remedy by due course of law, and shall have justice
administered without denial or delay."
"It is the primary duty of courts to sustain this
declaration of right and remedy, wherever the same has been
wrongfully invaded." Kintz v. Harriger (1919), 99 Ohio St. 240,
124 N.E. 168, paragraph two of syllabus. The "open courts"
section of the Constitution requires that a plaintiff with a
cause of action for conversion be able to bring that action in
a court. See Baltimore & Ohio RR. Co. v. Armstrong, Lee & Co.
(1919), 99 Ohio St. 163, 124 N.E. 186.
Requiring appellate review of a cause of action before it
can proceed in a court of original jurisdiction is precisely
the type of delay that Section 16, Article I prohibits. When
the open courts section "speaks of remedy and injury to person,
property, or reputation, it requires an opportunity granted at
a meaningful time and in a meaningful manner." Hardy v.
VerMuelen (1987), 32 Ohio St.3d 45, 47, 512 N.E.2d 626, 628.
Relators have been denied the opportunity to bring their
conversion action in a meaningful time and a meaningful manner.
Contrary to the assertions of the majority, this delayed
process will not provide relators with an adequate remedy.
Relators must first wait until their causes of action against
the defendant law firm are resolved before they will be able to
seek a determination by the court of appeals as to which
division of the court of common pleas has jurisdiction to hear
their claims against the defendant bank. Considering the
crowded dockets of today's courts, relators' case will be
delayed for several years before relators can proceed in a
court possessing original jurisdiction to hear their claims.
I, accordingly, dissent from the majority's opinion and
would grant relators' motion requesting oral argument so that

we can review this jurisdictional controversy. If we agree
with relators that the general division of the court of common
pleas has jurisdiction over their claims, then we should use
our mandamus power to ensure that relators are provided with
meaningful access to a courtroom.