[Cite as In re Guardianship of Weller, 2011-Ohio-5817.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN THE MATTER OF: : : Appellate Case No. 24522 GUARDIANSHIP OF : NICHOLAS L. WELLER : Trial Court Case No. 10-GRD-112 : : : (Civil Appeal from Common Pleas : (Court, Probate Division) : : ...........
OPINION
Rendered on the 10th day of November, 2011.
...........
NEIL F. FREUND, Atty. Reg. #0012183, and KELLY M. SCHROEDER, Atty. Reg. #0080637, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 and CAROLYN MUELLER, Atty. Reg. #0065533, Hall & Mueller, LPA, 3040 Presidential Drive, Suite 222, Fairborn, Ohio 45324 Attorneys for Appellant
DAVID M. RICKERT, Atty. Reg. #0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402 and DAN R. WARNCKE, Atty. Reg. #0061799, and JULIA B. MEISTER, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202 Attorneys for Appellee 2
.............
FAIN, J.
{¶ 1} Appellant Nicholas Weller appeals from an order of the Montgomery County
Common Pleas Court, Probate Division, denying his motion to terminate a guardianship of his
estate. Weller contends that the probate court utilized an erroneous statutory provision in
overruling his motion as premature.
{¶ 2} We conclude that this appeal has been rendered moot by the May 31, 2011 order
of the probate court terminating the guardianship. Accordingly, this appeal is dismissed as
moot.
I
{¶ 3} On March 31, 2010, Nicholas Weller suffered a stroke at his residence in
Montgomery County. He was taken to Kettering Medical Center for treatment. He was
released from the hospital after a ten-day stay. He was checked into an assisted living
facility by Janet Ward, a friend of Weller and Weller’s deceased wife. Weller refused to
remain in the assisted living facility and returned home, where Ward arranged for in-home
care. It was determined that Weller suffered from aphasia; or the inability to express himself
or to understand the words of people speaking to him.
{¶ 4} Thereafter, Ward filed an application for appointment as guardian over Weller’s
person and estate. Weller retained his own counsel and proceeded to contest the need for the
guardianship. Following protracted litigation and a hearing, the probate court determined that
Weller was competent as to his person, but found him incompetent as to his estate. The 3
probate court appointed attorney Christopher Cowan as guardian of the estate.
{¶ 5} On November 12, 2010, Weller appealed the order subjecting him to a
guardianship of his estate. That matter is currently pending before this court.
{¶ 6} On February 8, 2011, Weller filed a motion to terminate the guardianship
pursuant to R.C. 2111.47. The probate court denied the motion as premature. On March 8,
2011, Weller filed an appeal of the entry denying his motion to terminate.
{¶ 7} Just prior to the August 4, 2011 submission date in this appeal, this court became
aware that the probate court had issued an order Terminating Guardianship on May 31, 2011.
Following argument in the companion case also on appeal, we permitted the parties to file
supplemental briefs on the question of whether the entry terminating the guardianship
rendered this appeal moot. Supplemental briefs on the mootness issue have been filed by
Weller and the applicant, Janet Ward.
II
{¶ 8} Before we address Weller’s Assignment of Error, we must first consider the
issue of whether the probate court’s order terminating the guardianship rendered this appeal
{¶ 9} “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of
Section 2, Article III of the United States Constitution and in the general notion of judicial
restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. “While Ohio
has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long
recognized that a court cannot entertain jurisdiction over a moot question.” Id. “It has been 4
long and well established that it is the duty of every judicial tribunal to decide actual
controversies between parties legitimately affected by specific facts and to render judgments
which can be carried into effect. It has become settled judicial responsibility for courts to
refrain from giving opinions on abstract propositions and to avoid the imposition by judgment
of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970),
22 Ohio St.2d 13, 14. In other words, an issue is moot when it has no practical significance,
being instead merely hypothetical or academic.
{¶ 10} “Although a case may be moot with respect to one of the litigants, [an
appellate] court may hear the appeal where there remains a debatable constitutional question
to resolve, or where the matter appealed is one of great public or general interest.” State ex
rel. White v. Kilbane Koch, 2002-Ohio-4848, ¶ 16, 96 Ohio St. 3d 395, 398, quoting from
Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28. Another exception allows
for judicial review of moot questions when the issue is capable of repetition, yet evading
review. “This exception applies when the challenged action is too short in duration to be
fully litigated before its cessation or expiration, and there is a reasonable expectation that the
same complaining party will be subject to the same action again.” State ex rel. White v.
Kilbane Koch, ¶ 13, quoting from State, ex rel. Dispatch Printing Co. v. Louden (2001), 91
Ohio St.3d 61, 64.
{¶ 11} Weller contends that this case was not rendered moot by the order terminating
the guardianship. In support, he contends that the matter should be decided pursuant to the
exceptions to the mootness doctrine. Specifically, he argues that “this guardianship is a
classic example of a situation that is too short in duration to be fully litigated, but that could 5
recur and again avoid review. The probate court is the superior guardian and possesses the
authority to reappoint a guardian for Mr. Weller. R.C. 2111.02. Without this court’s review,
the probate court could again find Mr. Weller or another individual to be incompetent just
because he or she is unable to fully articulate speech due to aphasia [and could make the same
evidential errors as were made in the original guardianship hearing.]”
{¶ 12} While Weller might, in the future, be the subject of another guardianship
proceeding, such an action would necessarily be predicated upon new facts; e.g., another
stroke or other debilitating event causing him to become incompetent. In other words, the
aphasia caused by the prior stroke, from which Weller has presumably sufficiently recovered
in order to be deemed competent by the probate court, cannot be used as a basis for a new
guardianship, unless he suffers a set-back of some kind in the future that would preclude him
from managing his own affairs. Further, Weller has had the opportunity to prepare
appropriate documents – powers of attorney, trusts, or the like – to avoid the necessity (or,
from his point of view, the risk) of another guardianship litigation. Also, were he subjected
to another guardianship over his person or estate, we cannot presume that action would be of
such limited duration as to preclude full litigation of the matter. Finally, we cannot presume
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[Cite as In re Guardianship of Weller, 2011-Ohio-5817.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN THE MATTER OF: : : Appellate Case No. 24522 GUARDIANSHIP OF : NICHOLAS L. WELLER : Trial Court Case No. 10-GRD-112 : : : (Civil Appeal from Common Pleas : (Court, Probate Division) : : ...........
OPINION
Rendered on the 10th day of November, 2011.
...........
NEIL F. FREUND, Atty. Reg. #0012183, and KELLY M. SCHROEDER, Atty. Reg. #0080637, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 and CAROLYN MUELLER, Atty. Reg. #0065533, Hall & Mueller, LPA, 3040 Presidential Drive, Suite 222, Fairborn, Ohio 45324 Attorneys for Appellant
DAVID M. RICKERT, Atty. Reg. #0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402 and DAN R. WARNCKE, Atty. Reg. #0061799, and JULIA B. MEISTER, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202 Attorneys for Appellee 2
.............
FAIN, J.
{¶ 1} Appellant Nicholas Weller appeals from an order of the Montgomery County
Common Pleas Court, Probate Division, denying his motion to terminate a guardianship of his
estate. Weller contends that the probate court utilized an erroneous statutory provision in
overruling his motion as premature.
{¶ 2} We conclude that this appeal has been rendered moot by the May 31, 2011 order
of the probate court terminating the guardianship. Accordingly, this appeal is dismissed as
moot.
I
{¶ 3} On March 31, 2010, Nicholas Weller suffered a stroke at his residence in
Montgomery County. He was taken to Kettering Medical Center for treatment. He was
released from the hospital after a ten-day stay. He was checked into an assisted living
facility by Janet Ward, a friend of Weller and Weller’s deceased wife. Weller refused to
remain in the assisted living facility and returned home, where Ward arranged for in-home
care. It was determined that Weller suffered from aphasia; or the inability to express himself
or to understand the words of people speaking to him.
{¶ 4} Thereafter, Ward filed an application for appointment as guardian over Weller’s
person and estate. Weller retained his own counsel and proceeded to contest the need for the
guardianship. Following protracted litigation and a hearing, the probate court determined that
Weller was competent as to his person, but found him incompetent as to his estate. The 3
probate court appointed attorney Christopher Cowan as guardian of the estate.
{¶ 5} On November 12, 2010, Weller appealed the order subjecting him to a
guardianship of his estate. That matter is currently pending before this court.
{¶ 6} On February 8, 2011, Weller filed a motion to terminate the guardianship
pursuant to R.C. 2111.47. The probate court denied the motion as premature. On March 8,
2011, Weller filed an appeal of the entry denying his motion to terminate.
{¶ 7} Just prior to the August 4, 2011 submission date in this appeal, this court became
aware that the probate court had issued an order Terminating Guardianship on May 31, 2011.
Following argument in the companion case also on appeal, we permitted the parties to file
supplemental briefs on the question of whether the entry terminating the guardianship
rendered this appeal moot. Supplemental briefs on the mootness issue have been filed by
Weller and the applicant, Janet Ward.
II
{¶ 8} Before we address Weller’s Assignment of Error, we must first consider the
issue of whether the probate court’s order terminating the guardianship rendered this appeal
{¶ 9} “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of
Section 2, Article III of the United States Constitution and in the general notion of judicial
restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. “While Ohio
has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long
recognized that a court cannot entertain jurisdiction over a moot question.” Id. “It has been 4
long and well established that it is the duty of every judicial tribunal to decide actual
controversies between parties legitimately affected by specific facts and to render judgments
which can be carried into effect. It has become settled judicial responsibility for courts to
refrain from giving opinions on abstract propositions and to avoid the imposition by judgment
of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970),
22 Ohio St.2d 13, 14. In other words, an issue is moot when it has no practical significance,
being instead merely hypothetical or academic.
{¶ 10} “Although a case may be moot with respect to one of the litigants, [an
appellate] court may hear the appeal where there remains a debatable constitutional question
to resolve, or where the matter appealed is one of great public or general interest.” State ex
rel. White v. Kilbane Koch, 2002-Ohio-4848, ¶ 16, 96 Ohio St. 3d 395, 398, quoting from
Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28. Another exception allows
for judicial review of moot questions when the issue is capable of repetition, yet evading
review. “This exception applies when the challenged action is too short in duration to be
fully litigated before its cessation or expiration, and there is a reasonable expectation that the
same complaining party will be subject to the same action again.” State ex rel. White v.
Kilbane Koch, ¶ 13, quoting from State, ex rel. Dispatch Printing Co. v. Louden (2001), 91
Ohio St.3d 61, 64.
{¶ 11} Weller contends that this case was not rendered moot by the order terminating
the guardianship. In support, he contends that the matter should be decided pursuant to the
exceptions to the mootness doctrine. Specifically, he argues that “this guardianship is a
classic example of a situation that is too short in duration to be fully litigated, but that could 5
recur and again avoid review. The probate court is the superior guardian and possesses the
authority to reappoint a guardian for Mr. Weller. R.C. 2111.02. Without this court’s review,
the probate court could again find Mr. Weller or another individual to be incompetent just
because he or she is unable to fully articulate speech due to aphasia [and could make the same
evidential errors as were made in the original guardianship hearing.]”
{¶ 12} While Weller might, in the future, be the subject of another guardianship
proceeding, such an action would necessarily be predicated upon new facts; e.g., another
stroke or other debilitating event causing him to become incompetent. In other words, the
aphasia caused by the prior stroke, from which Weller has presumably sufficiently recovered
in order to be deemed competent by the probate court, cannot be used as a basis for a new
guardianship, unless he suffers a set-back of some kind in the future that would preclude him
from managing his own affairs. Further, Weller has had the opportunity to prepare
appropriate documents – powers of attorney, trusts, or the like – to avoid the necessity (or,
from his point of view, the risk) of another guardianship litigation. Also, were he subjected
to another guardianship over his person or estate, we cannot presume that action would be of
such limited duration as to preclude full litigation of the matter. Finally, we cannot presume
that the identical evidence or procedural and evidentiary issues would arise in a subsequent
guardianship proceeding. Therefore, any ruling we might make on the issues raised in this
appeal would not necessarily prevent a ruling in a future proceeding that would be adverse to
Weller. Thus, we conclude that Weller has failed to demonstrate that this matter falls into
this exception to the mootness doctrine.
{¶ 13} Weller also contends that the case is an exception to the mootness doctrine 6
because it involves an issue of “great public interest,” in that it concerns the loss of his
constitutional right to control his property. He argues that “other individuals in his position,
could be subjected to the same type of proceeding and wrongly deprived of their constitutional
rights,” if we fail to correct the trial court with regard to the proceedings below. The focus
of this argument is the claim that the trial court erred in its findings, its evidentiary rulings, as
well as in procedural matters.
{¶ 14} Again, Weller’s argument presumes that substantially similar evidentiary and
factual issues will arise in proceedings involving other individuals who suffer aphasia caused
by stroke. However, given that the evidence in this case indicates that aphasia affects
different people differently, and in differing degrees, we conclude that the evidentiary and
factual issues arising in a proceeding involving another person suffering from aphasia are not
likely to be substantially similar.
{¶ 15} Finally, Weller contends that we should review this appeal because permitting
the original guardianship order to stand would have adverse collateral consequences on his
businesses and could subject him to paying attorney fees to the law firm that represented Janet
Ward in the institution of these proceedings.
{¶ 16} According to the record, Weller is the owner of several real estate businesses
which require him to enter into contracts on a regular basis. Weller contends that his
“livelihood depends on his reputation as a successful businessman [whose] current clients and
prospective clients will continue to question [his] ability to transact business if there is an
order in existence that adjudicated him incompetent.”
{¶ 17} Whether any of Weller’s clients, current or prospective, will ever become aware 7
that Weller was the subject of a guardianship proceeding, and whether any such knowledge
would adversely impact his business, which centers on renting properties and providing
mortgages to individuals who do not qualify for a “regular” bank mortgage, is speculative, at
best. And whether any adverse impact of such knowledge would be ameliorated by the fact
that the order instituting the guardianship was later reversed on appeal is even more
speculative. We decline to exercise appellate jurisdiction based on this speculation.
{¶ 18} With regard to the issue of attorney fees sought by the law firm that represented
Janet Ward, Weller argues that the claim for fees expended to prosecute the guardianship
application is dependent upon the validity of the guardianship order.
{¶ 19} “R.C. 2113.36 vests the probate court with jurisdiction to determine necessary
and reasonable attorney fees.” In re Guardianship of Papuska, Stark App. No.
2004-CA-00150, 2005-Ohio-741, ¶ 28. “Absent a specific demonstration that the actions are
beneficial to the estate or ward, a guardian may not be reimbursed from the estate for legal
expenses incurred in proceedings relating solely to the determination of whether the guardian
may serve in that capacity.” In re Guardianship of Wonderly (1984), 10 Ohio St.3d 40, 42.
Thus, we conclude that our disposition of the underlying merits of this case would not be
dispositive of the issue of whether an award of attorney fees is justified in this case, and if so,
how much.
{¶ 20} We conclude that this appeal has been rendered moot by the order of the
probate court terminating the guardianship. There is no further relief that this court could
afford Weller that has not already been afforded him by the probate court. 8
III
{¶ 21} Weller’s appeal is dismissed as moot.
GRADY, P.J., and HALL, J., concur.
Copies mailed to:
Neil F. Freund Kelly M. Schroeder Carolyn Mueller David M. Rickert Dan R. Warncke Julia B. Meister Hon. Alice O. McCollum