[Cite as Progressive Macedonia, L.L.C. v. Shepherd, 2021-Ohio-792.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
PROGRESSIVE MACEDONIA, LLC : OPINION d.b.a. AVENUE AT MACEDONIA, : Plaintiff-Appellant, CASE NO. 2020-T-0036 : - vs - : DAVID A. SHEPHERD, GUARDIAN OF ESTATE FOR VICTOR A.E. SANSONE, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Probate Division. Case No. 2019 CVA 0033.
Judgment: Affirmed.
William Cory Phillips, Rolf Goffman Martin Lang LLP, 30100 Chagrin Blvd., Suite 350, Cleveland, Ohio 44124 (For Plaintiff-Appellant).
Susan M. Audey and Victoria L. Vance, Tucker Ellis LLP, 950 Main Avenue, Suite 1100, Cleveland, Ohio 44113-7213 (For Defendant-Appellee).
Douglas J. Neuman, Neuman Law Office, LLC, 761 North Cedar Avenue, Suite 1, Niles, Ohio 44446 (Guardian ad litem).
MARY JANE TRAPP, P.J.
{¶1} Appellant, Progressive Macedonia, LLC d.b.a. Avenue at Macedonia
(“Macedonia”), appeals the judgment of the Trumbull County Court of Common Pleas,
Probate Division, which adopted a magistrate’s decision and assessed to Macedonia fees for services rendered by Douglas J. Neuman (“Mr. Neuman”), as guardian ad litem
(“GAL”) for Victor A.E. Sansone (“Mr. Sansone”).
{¶2} The underlying matter involved Macedonia’s motion to remove appellee,
David A. Shepherd (“Mr. Shepherd”), as guardian of Mr. Sansone’s estate and to order
Mr. Shepherd to pay to the guardianship estate the debt caused by his alleged neglect of
duty.
{¶3} Macedonia contends that the trial court erred in ordering it to pay the GAL
fees because (1) it was not a party to the guardianship removal proceeding; (2) the trial
court did not have jurisdiction to render judgment against it; (3) the trial court did not serve
it with, or provide notice of, any demand for payment of GAL fees; and (4) the trial court’s
judgment is against public policy.
{¶4} After a careful review of the record and pertinent law, we find as follows:
{¶5} (1) Since this matter involves the trial court’s adoption of a magistrate’s
decision, Macedonia was required to file timely objections to the magistrate’s decision in
order to preserve its arguments on appeal. By failing to do so, Macedonia is prohibited
from raising on appeal any arguments it failed to preserve, except for a claim of plain
error.
{¶6} (2) Macedonia has not made a plain error argument on appeal, and the plain
error doctrine may not be applied to reverse a civil judgment to allow litigation of issues
which could easily have been raised and determined in the trial court.
{¶7} (3) However, based on our review of Macedonia’s jurisdictional arguments,
we find that the trial court’s alleged errors did not implicate its jurisdiction. Therefore, its
judgment was not void.
2 {¶8} Thus, we affirm the judgment of the Trumbull County Court of Common
Pleas, Probate Division.
Substantive and Procedural History
{¶9} In July 2019, Macedonia filed a document in the trial court entitled
“Petitioner’s Motion to Remove David Shepherd as Guardian of Estate and to Issue Order
of Payment (Request for Evidentiary Hearing).” As the case caption, Macedonia set forth
“In the Matter of: Guardianship of Victor A.E. Sansone” and the case number relating to
Mr. Sansone’s guardianship estate. Below the case caption, Macedonia set forth its
name and address, identifying itself as “Petitioner,” and Mr. Shepherd’s name and
address, identifying him as “Respondent.” Macedonia stated in its motion that there was
proper jurisdiction and venue and set forth factual allegations in numbered paragraphs.
{¶10} A summary of Macedonia’s factual allegations are as follows:
{¶11} Mr. Sansone was a patient at Macedonia’s long-term care facility in Summit
County, Ohio, since May 2018. He was a beneficiary of the Medicaid program, which
paid for most of his medical care needs that Macedonia provided. At some point, Mr.
Sansone was terminated from the Medicaid program due to his accumulation of funds
that placed him over the asset/resource limit for Medicaid eligibility, resulting in a balance
owed to Macedonia in excess of $70,000. Macedonia issued a discharge notice, but
discharge could not occur because a Medicaid application was subsequently filed. This
application was denied because of excess of funds. Thus, Mr. Shepherd failed to act as
required by law.
{¶12} Macedonia requested that the trial court remove Mr. Shepherd as guardian
and order him to repay the successor guardian the damages or debt resulting from his
3 alleged negligent conduct, including an order to surcharge Mr. Shepherd’s guardian bond
should payment not be made. Macedonia further requested an evidentiary hearing on its
motion.
{¶13} The trial court opened a separate removal proceeding with a new case
number and issued a summons to Mr. Shepherd. Mr. Shepherd appeared through
counsel and filed an answer.
{¶14} It appears that the trial court appointed Mr. Neuman, an attorney, as GAL
to investigate the allegations that Macedonia raised in its motion.1 Mr. Neuman filed a
motion to intervene in the removal proceeding and a report.
{¶15} According to Mr. Neuman’s report, Mr. Sansone’s Medicaid benefits were
discontinued as a result of net proceeds from the sale of his former residence. Mr.
Shepherd spent down the proceeds in accordance with Medicaid regulations, and Mr.
Sansone was re-qualified for Medicaid benefits. Mr. Sansone’s requalification was
applied retroactively so that his financial obligation to Macedonia would be satisfied. Mr.
Neuman concluded that Mr. Shepherd had acted diligently and in the best interest of the
ward and that Macedonia’s motion was not “well-founded.”
{¶16} The trial court issued a judgment entry granting Mr. Neuman’s motion to
intervene and stated that he “shall be entitled to compensation and expenses for serving
as Guardian ad Litem herein upon the approval of a written application submitted to the
Court.” Mr. Neuman subsequently filed an answer.
{¶17} The trial court held a status conference, where Macedonia and Mr.
1. The record before us does not contain a judgment entry appointing Mr. Neuman or defining his requested services. However, the record on appeal only relates to the guardian removal proceeding and not proceedings involving Mr. Sansone’s guardianship estate.
4 Shepherd appeared by counsel and where Mr. Neuman appeared on his behalf. The trial
court’s subsequent judgment entry indicates that Mr. Shepherd’s counsel and Mr.
Neuman raised the issue of whether Macedonia had standing to bring the action. The
trial court set forth a briefing schedule on this issue, as well as a discovery deadline, and
a trial date.
{¶18} Mr. Neuman filed a notice of withdrawal of his objection to Macedonia’s
standing.
{¶19} Mr. Shepherd filed a brief and position statement arguing that Macedonia,
as a creditor, lacked standing to advocate for his removal and seek to hold him liable but
that it may file an exception to the guardianship’s account for any balance due.
{¶20} Macedonia filed a brief and position statement arguing that it had standing
as an “interested party” to fully participate in resolving the issue before the trial court.
{¶21} Mr. Sansone died in October 2019. Mr. Shepherd filed a motion to dismiss
Macedonia’s motion to remove/order payment as moot. Macedonia filed a motion to
dismiss and/or withdraw its motion to remove/order payment and indicated it had filed an
exception to the guardian’s final account, which would “resolve any claim regarding the
Guardian’s potential liability for the debt owed to Petitioner.” The trial court issued a
judgment entry granting Macedonia’s motion, dismissed Macedonia’s motion to
remove/order payment, and assessed costs to Macedonia.
{¶22} In February 2020, Mr. Neuman filed a motion for GAL fees for legal services
rendered in the amount of $2,470 and attached an itemized statement. He requested
payment from the trial court’s “indigent fund” because there were no funds available from
Mr. Sansone to pay the fees.
5 {¶23} On March 12, 2020, the magistrate issued a report and decision. The
magistrate found that Mr. Neuman’s requested fees were reasonable, appropriate, and
beneficial to Mr. Sansone; it was necessary to appoint a GAL to investigate the allegations
raised in Macedonia’s motion to remove/order payment; and Macedonia dismissed the
matter prior to adjudication. The magistrate determined that as “the party seeking relief
herein,” it was appropriate for Macedonia “to bear all costs for the guardian ad litem.”
Therefore, it recommended that Macedonia pay $2,470 to Mr. Neuman within 14 days.
{¶24} The magistrate’s decision contained the required notice stating that “a party
shall not assign as error on appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of fact or conclusion of law
under Civ.R. 52(D)(3)(a)(ii), unless the party timely and specifically objects to that finding
or legal conclusion as required by Civ.R. 53(D)(3)(b).”
{¶25} On the same day, the trial court issued a judgment entry adopting the
magistrate’s decision, reiterating the magistrate’s findings and determination as its own,
and converting the magistrate’s recommendation into an order. The record of the removal
proceeding does not reflect that Macedonia filed objections to the magistrate’s decision.
{¶26} Macedonia appealed the trial court’s judgment and raises the following sole
assignment of error:
{¶27} “The probate court committed error when it ordered Appellant
(“Macedonia”) to pay the costs and fees of the guardian ad litem when Appellant was not
a party to the in rem guardianship proceedings and without any notice to Appellant of a
demand and without providing Appellant an opportunity to object (T.D. 22).”
6 Standard of Review
{¶28} This case involves the trial court’s adoption of a magistrate’s decision
pursuant to Civ.R. 53.
{¶29} Civ.R. 53 authorizes courts of record to appoint magistrates to assist them.
State ex rel. Franks v. Ohio Adult Parole Authority, 159 Ohio St.3d 435, 2020-Ohio-711,
151 N.E.3d 606, ¶ 9; Civ.R. 53(A) and (C)(1). When a matter is referred to a magistrate
for decision, the magistrate is required to prepare a written decision. Franks at ¶ 9; Civ.R.
53(D)(3)(a)(i) and (iii).
{¶30} A party may file written objections to a magistrate’s decision within 14 days
of its filing. Civ.R. 53(D)(3)(b)(i).2 An objection to a factual finding, whether or not
specifically designated as such, shall be supported by a transcript of all the evidence
submitted to the magistrate relevant to that finding. Civ.R. 53(D)(3)(b)(iii). The objecting
party has 30 days from the time the objections are filed to file the hearing transcript. Id.
The objecting party may also seek leave of court to supplement objections if the
objections were filed before the transcript had been filed. Id.
{¶31} A magistrate’s decision is not effective unless adopted by the court. Civ.R.
53(D)(4)(a). Whether or not objections are timely filed, a court may adopt or reject a
magistrate’s decision in whole or in part, with or without modification. Civ.R. 53(D)(4)(b).
If one or more objections to a magistrate’s decision are timely filed, the court shall rule on
those objections by undertaking an “independent review” of the objected matters to
2. Since the magistrate’s decision was issued on March 12, 2020, the applicable deadlines in Civ.R. 53 were tolled pursuant to the Supreme Court of Ohio’s order in In re Tolling of Time Requirements Imposed by Rules Promulgated by the Supreme Court and Use of Technology, 158 Ohio St.3d 1516, 2020-Ohio- 2975, 145 N.E.3d 299.
7 ascertain whether the magistrate properly determined the factual issues and appropriately
applied the law. Civ.R. 53(D)(4)(d).
{¶32} In addition to adopting, rejecting, or modifying a magistrate’s decision, the
court shall also enter a judgment or interim order. Civ.R. 53(D)(4)(e). The court may
enter a judgment during the 14 days permitted for the filing of objections or after the 14
days have expired. Civ.R. 53(D)(4)(e)(i). If the court enters a judgment during the 14
days, the timely filing of objection operates as an automatic stay until the court disposes
of the objections and vacates, modifies, or adheres to its previously entered judgment.
Id.
{¶33} As the Supreme Court of Ohio has explained, “[a] party’s failure to file
objections to a magistrate’s decision has consequences.” Franks at ¶ 9. “‘Except for a
claim of plain error, a party shall not assign as error on appeal the court’s adoption of any
factual finding or legal conclusion, whether or not specifically designated as a finding of
fact or conclusion of law * * *, unless the party has objected to that finding or conclusion
as required by Civ.R. 53(D)(3)(b).’” Id., quoting Civ.R. 53(D)(3)(b)(iv).
{¶34} “Thus, in a civil case before a trial court, when a party fails to file objections
to a magistrate’s decision, that party waives the right to later assign as error on appeal
the court’s adoption of any of the magistrate’s findings and conclusions.” Id.
{¶35} There is no dispute that Macedonia did not file objections to the magistrate’s
decision in the removal proceeding. Macedonia states in its appellate brief that it filed an
objection to the magistrate’s decision in the guardianship estate proceeding rather than
the removal proceeding, and the trial court overruled it on that basis. Macedonia does
not assert that its actions complied with Civ.R. 53(D)(3)(b).
8 {¶36} Instead, Macedonia contends that the applicable standard of review is de
novo, citing this court’s decision in In re Guardianship of Tracey, 11th Dist. Trumbull No.
2006-T-0108, 2007-Ohio-2310. However, Tracey is procedurally distinguishable, as it did
not involve the trial court’s adoption of a magistrate’s decision under Civ.R. 53. See id.
at ¶ 1, ¶ 14.
{¶37} Macedonia further contends in its reply brief that a judgment rendered
without personal jurisdiction is void and that this issue cannot be waived, citing the
Supreme Court of Ohio’s decision in Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052,
7 N.E.3d 1188.
{¶38} However, Lingo involved the issue of a court’s subject matter jurisdiction.
See id. at ¶ 25. The court has specifically held that “‘the requirement that a court have
personal jurisdiction over a party is a waivable right * * *.’” Preferred Capital, Inc. v. Power
Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, 860 N.E.2d 741, ¶ 6, quoting
Kennecorp Mtge. Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 66 Ohio St.3d
173, 175, 610 N.E.2d 987 (1993).
{¶39} In addition, this court has held that “‘[i]f a party enters a case, makes no
objection to jurisdiction, and asks the court to act on its behalf in some substantive way,
it will be held to have waived further objection.’” Promotional Prods. Group, Inc. v. Sunset
Golf, LLC, 11th Dist. Portage No. 2009-P-0041, 2010-Ohio-3806, ¶ 84, quoting
Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir.1972).
{¶40} Accordingly, pursuant to Civ.R. 53, Macedonia is prohibited from raising on
appeal any arguments it failed to preserve by filing objections to the magistrate’s decision,
except for a claim of plain error. Franks at ¶ 11; Civ.R. 53(D)(3)(b)(iv).
9 Plain Error
{¶41} As the Supreme Court has noted, “[t]he plain error doctrine originated as a
criminal law concept.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099
(1997). “Although in criminal cases ‘[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court,’ Crim.R.
52(B), no analogous provision exists in the Rules of Civil Procedure.” (Emphasis sic.) Id.
{¶42} Thus, the court has held that “[i]n applying the doctrine of plain error in a
civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine
strictly to those extremely rare cases where exceptional circumstances require its
application to prevent a manifest miscarriage of justice, and where the error complained
of, if left uncorrected, would have a material adverse effect on the character of, and public
confidence in, judicial proceedings.” Id.
{¶43} The court has further explained that while invocation of the plain error
doctrine is often justified in order to promote public confidence in the judicial process, it
is doubtful that the public’s confidence in the jury system is undermined by requiring
parties to live with the results of errors that they invited, even if the errors go to crucial
matters. Id. In fact, the idea that parties must bear the cost of their own mistakes at trial
is a central presupposition of our adversarial system of justice. Id. at 121-122.
{¶44} “Moreover, the determination of a miscarriage of justice is often subjective.
Litigants whose cases have been thwarted by statutes of limitations or whose appeals
have been dismissed for failure to timely file a notice of appeal may believe they have
suffered a miscarriage of justice. Nevertheless, it is well established that failure to follow
procedural rules can result in forfeiture of rights.” Id. at 122.
10 {¶45} Thus, the court has held that “[t]he plain error doctrine should never be
applied to reverse a civil judgment simply because a reviewing court disagrees with the
result obtained in the trial court, or to allow litigation of issues which could easily have
been raised and determined in the initial trial.” Id.
{¶46} While Macedonia has not forfeited arguing the existence of plain error on
appeal, it has not made a plain error argument in its appellate brief.
{¶47} In addition, Macedonia appears to have invited many of alleged the errors
it now appeals. It could have easily raised all of these issues in the trial court, by either
objecting during the removal proceeding or by filing objections to the magistrate’s
decision, which it failed to do. According to the Supreme Court of Ohio, we are not
permitted to the apply the plain error doctrine to reverse a civil judgment under such
circumstances. Goldfuss at 122.
{¶48} However, since Macedonia alleges that the trial court lacked jurisdiction,
resulting in a void judgment, we believe that discussion of Macedonia’s jurisdictional
arguments is warranted.
Macedonia as a Party
{¶49} In its first and second issues for review, Macedonia contends that the trial
court “unlawfully” designated the removal proceeding as an adversary proceeding rather
than as an in rem proceeding, contrary to the Supreme Court of Ohio’s decision in In re
Guardianship of Spangler, 126 Ohio St.3d 339, 2010-Ohio-2471, 933 N.E.2d 1067. By
doing so, the trial court “created the appearance that Macedonia was a party thereto.”
Therefore, the trial court was without “jurisdiction” to find Macedonia, a nonparty, liable
for the GAL’s fees, making its judgment entry void.
11 {¶50} Macedonia’s use of the term “jurisdiction” appears to conflate the separate
concepts of subject-matter jurisdiction, personal jurisdiction, and standing. See Bank of
Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18 (“The
often unspecified use of this polysemic word can lead to confusion and has repeatedly
required clarification as to which type of ‘jurisdiction’ is applicable in various legal
analyses”). Therefore, we set forth the legal standards governing each concept.
Jurisdiction
{¶51} The Supreme Court of Ohio has held that “the question of whether a
judgment is void or voidable generally depends on ‘whether the Court rendering the
judgment has jurisdiction.’” Miller v. Nelson-Miller, 132 Ohio St.3d 381, 2012-Ohio-2845,
972 N.E.2d 568, ¶ 12, quoting Cochran’s Heirs’ Lessee v. Loring, 17 Ohio 409, 423
(1848).
{¶52} “‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to
adjudicate the case.’” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d
992, ¶ 11, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118
S.Ct. 1003, 140 L.Ed.2d 210 (1998), and Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290
N.E.2d 841 (1972), paragraph one of the syllabus. The term encompasses jurisdiction
over the subject matter and over the person. Id.
{¶53} Lack of personal jurisdiction is a defense that may be raised by a defendant
in a civil case. In re Z.R., 9th Dist. Summit No. 26860, 2016-Ohio-1331, ¶ 8; see Civ.R.
3(A) and Civ.R. 4(A) (providing that a civil action is commenced by filing a complaint and
serving it on the defendant and requiring the clerk of court to “issue a summons for service
upon each defendant”) (Emphasis added.)
12 {¶54} The Supreme Court of Ohio has explained personal jurisdiction in a civil
case as follows:
{¶55} “It is rudimentary that in order to render a valid personal judgment, a court
must have personal jurisdiction over the defendant. This may be acquired either by
service of process upon the defendant, the voluntary appearance and submission of the
defendant or his legal representative, or by certain acts of the defendant or his legal
representative which constitute an involuntary submission to the jurisdiction of the court.
The latter may more accurately be referred to as a waiver of certain affirmative defenses,
including jurisdiction over the person under the Rules of Civil Procedure.” Maryhew v.
Yova, 11 Ohio St.3d 154, 156 (1984).
{¶56} Subject-matter jurisdiction is a court’s power to hear and decide a case on
the merits. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002
(1998). It does not relate to the rights of the parties, but to the power of the court. Id. It
focuses on the court as a forum and on the case as one of a class of cases, not on the
particular facts of a case or the particular tribunal that hears the case. State v. Swiger,
125 Ohio App.3d 456, 462, 708 N.E.2d 1033 (9th Dist.1998). In the civil context, the
determinative issue is whether the plaintiff has alleged “‘any cause of action cognizable
by the forum.’” Id., quoting Avco Fin. Serv. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67,
520 N.E.2d 1378 (10th Dist.1987).
{¶57} The term “jurisdiction” is also used when referring to a court’s exercise of
its jurisdiction over a particular case. Pratts at ¶ 12. This latter use of “jurisdiction”
encompasses the trial court’s authority to determine a specific case within that class of
cases that is within its subject matter jurisdiction. Id. It is only when the trial court lacks
13 subject matter jurisdiction that its judgment is void; lack of jurisdiction over the particular
case merely renders the judgment voidable. Id. Once a tribunal has jurisdiction over both
the subject matter of an action and the parties to it, the right to hear and determine is
perfect; and the decision of every question thereafter arising is but the exercise of the
jurisdiction thus conferred. Id. See Kuchta at ¶ 19 (“[A]ny error in the invocation or
exercise of jurisdiction over a particular case causes a judgment to be voidable rather
than void”).
{¶58} “Thus, a judgment is generally void only when the court rendering the
judgment lacks subject-matter jurisdiction or jurisdiction over the parties; however, a
voidable judgment is one rendered by a court that lacks jurisdiction over the particular
case due to error or irregularity.” Miller at ¶ 12.
Standing
{¶59} The concept of “standing” involves whether the plaintiff to a civil action has
alleged such a personal stake in the outcome of the controversy that he or she is entitled
to have a court hear the case. Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-
780, 964 N.E.2d 414, ¶ 15. Although a court may have subject matter jurisdiction over
an action, if a claim is asserted by one who is not the real party in interest, then the party
lacks standing to prosecute the action. Suster at 77. The lack of standing may be cured
by substituting the proper party pursuant to Civ.R. 17 so that a court otherwise having
subject matter jurisdiction may proceed to adjudicate the matter. Id.
{¶60} According to the Supreme Court of Ohio, “[s]tanding is certainly a
jurisdictional requirement; a party’s lack of standing vitiates the party’s ability to invoke
the jurisdiction of a court—even a court of competent subject-matter jurisdiction—over
14 the party’s attempted action.” Kuchta at ¶ 22. “But an inquiry into a party’s ability to
invoke a court’s jurisdiction speaks to jurisdiction over a particular case, not subject-
matter jurisdiction.” Id.
Removal of Guardians
{¶61} We next set forth the legal standards governing a probate court’s removal
of a guardian.
{¶62} The Supreme Court of Ohio has held that it is a well-settled principle of law
that probate courts are courts of limited jurisdiction and are permitted to exercise only the
authority granted to them by statute and by the Ohio Constitution. Spangler, supra, at ¶
46. The general grant of jurisdiction to probate courts regarding guardians is
comprehensive. Id.
{¶63} For instance, R.C. 2101.24(A)(1)(e) provides that “‘[e]xcept as otherwise
provided by law, the probate court has exclusive jurisdiction: * * * [t]o appoint and remove
guardians, conservators, and testamentary trustees, direct and control their conduct, and
settle their accounts[.]’” Id. at ¶ 47-49, quoting R.C. 2101.24(A)(1)(e). R.C. 2101.24(C)
provides that “‘[t]he 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.’” Id. at ¶ 51, quoting R.C. 2101.24(C).
{¶64} In addition, the probate court is the “superior guardian,” and other guardians
must obey all probate orders. Id. at ¶ 52. For instance, R.C. 2111.50(A)(1) provides that
“‘[a]t all times, the probate court is the superior guardian of wards who are subject to its
jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all
orders of the court that concern their wards or guardianships.’” Id., quoting R.C.
15 2111.50(A)(1).
{¶65} The court has held that “[g]uardianship proceedings, including the removal
of a guardian, are not adversarial but rather are in rem proceedings involving only the
probate court and the ward.” Id. at ¶ 53. “Because the probate court is the superior
guardian, the appointed guardian is simply an officer of the court subject to the court’s
control, direction, and supervision.” Id. “The guardian, therefore, has no personal interest
in his or her appointment or removal.” Id. However, “the probate court has the plenary
authority to investigate guardians.” Id. at ¶ 54. It also has “‘the inherent power to sua
sponte consider removal’” of a guardian. Id., quoting In re Guardianship of Herr, 5th Dist.
Richland No 98-CA-16-2, 1998 WL 666986, *2 (Sept. 2, 1998).
{¶66} Although the Ohio Revised Code does not specify a procedure for doing so,
Ohio courts have found that an “interested person” may move for the removal of a
guardian. In re Guardianship of Bakhtiar, 2018-Ohio-1764, 113 N.E.3d 24, ¶ 37 (9th
Dist.). Since there is necessarily no statutory definition of the term “interested person,”
courts appear to make this determination on a case-by-case basis. See, e.g., In re
Guardianship of Constable, 12th Dist. Clermont Nos. CA2006-08-058 & CA2006-09-067,
2007-Ohio-3346, ¶ 9 (collecting cases).
{¶67} However, the Supreme Court of Ohio has noted that “an in rem
guardianship proceeding, which, at its basic level, involves the court and the ward or
potential ward[,] * * * inherently limits any interest or standing of a third party.” In re
Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 12.
{¶68} With the above principles in mind, we consider the merits of Macedonia’s
void-judgment argument.
16 Analysis
{¶69} As Spangler makes clear, a probate court has “comprehensive” statutory
authority regarding guardianships under R.C. 2101.24(A)(1)(e) and plenary authority to
investigate guardians under R.C. 2101.24(C). Id. at ¶ 46, ¶ 54. Thus, in this case, the
trial court had subject matter jurisdiction to consider the allegations that Macedonia raised
in its motion.
{¶70} With respect to personal jurisdiction, Macedonia was not a “defendant”
under the civil rules. Rather, Macedonia instituted the underlying removal proceeding by
filing a motion in which it sought the affirmative relief of Mr. Shepherd’s removal as
guardian and his personal liability for the alleged debt owed to it.
{¶71} In fact, portions of Macedonia’s motion are organized in a manner similar to
a civil complaint, as demonstrated below:
17 {¶72} Thus, below the case caption, Macedonia set forth its name and address,
identifying itself as “Petitioner,” and Mr. Shepherd’s name and address, identifying him as
“Respondent.” See Civ.R. 10(A).
{¶73} Macedonia also made factual allegations in numbered paragraphs. See
Civ.R. 10(B). Contrary to its arguments on appeal, Macedonia specifically alleged that
“jurisdiction and venue are proper.”
{¶74} In addition to instituting the removal proceeding, Macedonia participated
throughout and appeared before the trial court. When Mr. Shepherd and Mr. Neuman
questioned Macedonia’s standing at a status conference, Macedonia filed a brief
vigorously defending its right to continue participating in the removal proceeding as an
“interested party.”
{¶75} Therefore, to the extent the trial court erred by designating the removal
proceeding as an adversary proceeding and conferring standing to Macedonia, its alleged
errors did not implicate its subject matter jurisdiction or personal jurisdiction. Instead, the
trial court’s alleged errors involved the exercise of its jurisdiction, making its subsequent
judgment voidable due to alleged error or irregularity, not void. See Miller, supra, at ¶ 12;
Kuchta, supra, at ¶19.
{¶76} Although Macedonia relies on Spangler in support of its position, our
conclusion is wholly consistent with Spangler.
{¶77} In Spangler, a county board of developmental disabilities filed a motion in
the probate court to remove as ward’s parents as guardians and appoint a protective
services agency as successor guardian. Id. at ¶ 8. The probate court granted the motion
to remove on a temporary basis and appointed the agency as temporary guardian. Id.
18 {¶78} The parents filed a motion to dismiss the board’s motion, arguing that it had
no statutory authority or standing to file it. Id. at ¶ 9. The probate court joined the board
as a party to the removal proceeding for the purposes of prosecuting its motion and
denied the parents’ motion to dismiss. Id. at ¶ 10.
{¶79} The ward filed a motion to dismiss the board from the case, arguing that it
lacked standing to be considered a party. Id. The probate court denied the motion,
determining that the board was an “interested party.” Id. at ¶12. Following a hearing, the
probate court removed the parents as guardians and ordered that the agency continue
as the legal guardian of the ward’s person.
{¶80} The parents and the ward separately appealed to this court, where we
reversed the probate court’s judgment in a split decision. Id. at ¶ 15.
{¶81} The Supreme Court of Ohio accepted the board’s discretionary appeal “to
determine whether a board of * * * developmental disabilities has the authority and
standing to request that a probate court remove a guardian of an incompetent adult and
whether the probate court has the authority to conduct proceedings to remove a guardian
upon the board’s request.” Id. at ¶ 16.
{¶82} The court first reviewed the statutes applicable to the board and concluded
that “a county board of developmental disabilities does not have the statutory authority to
file a motion in the probate court to remove a guardian.” Id. at ¶ 17-44. The court next
reviewed the statutes governing a probate court’s authority over the removal of a
guardian. Id. at ¶ 46-54. It concluded that “the plenary power of the probate court as the
superior guardian allows it to investigate whether a guardian should be removed upon
19 receipt of sufficient information that the guardian is not acting in the ward’s best interest.”
Id. at ¶ 58.
{¶83} Thus, Spangler involved the board’s standing to file a motion to remove a
guardian and the probate court’s subject matter jurisdiction. The court determined that
the board’s lack of standing did not deprive the probate court of subject matter jurisdiction
over the removal of a guardian. The issue of personal jurisdiction was not involved.
{¶84} Macedonia also cites the Supreme Court of Ohio’s decision in State ex rel.
Ballard v. O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), for the proposition that
“a trial court is without jurisdiction to render judgment or to make findings against a person
who is not a party in the court proceedings.”
{¶85} In Ballard, the plaintiffs brought a breach of contract and fraud action
regarding the purchase of their business. Id. at 182. Mr. Ballard was the attorney who
prepared the documents relating to the incorporation of the entity that was to hold the
purchased business assets. Id. However, Mr. Ballard was not served with summons,
never appeared before the trial court, and was not joined as a defendant. Id. At the
conclusion of the proceedings, the trial court found that the conduct of Mr. Ballard was
“less than professional and potentially criminal” and awarded punitive damages of
$100,000 against him and others. Id.
{¶86} Mr. Ballard filed for a writ of mandamus, which the Supreme Court of Ohio
allowed. Id. at 183-184. The court found that the trial court was “without jurisdiction to
render judgment against” Mr. Ballard because he “was not a party in the trial court
proceedings, was not served summons, and did not appear before the court.” Id. at 184.
{¶87} Ballard is readily distinguishable from the facts of this case, since
20 Macedonia instituted the removal proceeding, participated throughout, and vigorously
defended its right to do so.
Due Process
{¶88} In his third issue for review, Macedonia contends that it was not served with,
or given notice of, any demand for GAL fees prior the trial court’s judgment assessing the
GAL fees to it. Macedonia argues that the trial court’s alleged violation of its due process
rights deprived the trial court of personal jurisdiction over Macedonia.
{¶89} In support of its position, Macedonia cites Northland Ins. Co. v. Poulos, 7th
Dist. Mahoning No. 06 MA 160, 2007-Ohio-7208, where the Seventh District stated that
“[p]ersonal jurisdiction is dependent on receiving notice of a suit or waiver of such, and it
is true that this aspect of personal jurisdiction implicates the due process clause.” Id. at
¶ 40.
{¶90} However, Macedonia has quoted Northland out of context. Beginning with
the next sentence of its opinion, the court stated as follows:
{¶91} “But, this connection does not necessarily make every single due process
issue eternally subject to collateral attack. * * * Rather, it seems to us that typical due
process violations, other than a lack of personal jurisdiction, are voidable but not void.
Otherwise, all entries which could be described as being entered on issues or motions
prior to notice and opportunity to be heard would be subject to attack indefinitely without
the Civ.R. 60(B)(5) limitation of vacation being sought within a reasonable time.” Id. at ¶
40-41.
{¶92} This court has adopted the Northland court’s position. See Kent v. CDC-
Kent, LLC, 11th Dist. Portage No. 2017-P-0081, 2018-Ohio-3743, ¶ 39, quoting Northland
21 at ¶ 41 (“‘[T]ypical due process violations, other than a lack of personal jurisdiction, are
voidable but not void’”).
{¶93} Subsequent to Northland, the Seventh District expressly held that “a due
process violation other than a lack of personal jurisdiction, can only render a judgment
voidable and does not render it void.” Home Fed. S. & L. Assn. of Niles v. Keck, 2016-
Ohio-651, 59 N.E.3d 706, ¶ 51 (7th Dist.).
{¶94} As demonstrated above, the trial court did not lack personal jurisdiction over
Macedonia. Therefore, any due process errors involving the assessment of GAL fees to
Macedonia involved the trial court’s exercise of its jurisdiction, making its judgment
voidable due to alleged error or irregularity, not void.
{¶95} In sum, the trial court’s alleged errors during the removal proceeding did not
implicate its subject matter jurisdiction or its jurisdiction over the parties. Therefore, its
judgment was not void, only voidable.
{¶96} Macedonia’s sole assignment of error is without merit.
{¶97} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, Probate Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.