[Cite as Rheinhold v. Reichek, 2014-Ohio-31.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99973
BARBARA RHEINHOLD PLAINTIFF-APPELLANT
vs.
EDWARD R. REICHEK, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-782576
BEFORE: Kilbane, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 9, 2014 ATTORNEYS FOR APPELLANT
Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113
W. Craig Bashein Anthony N. Palombo Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Edward R. Reichek
Steven G. Janik Janik L.L.P. 9200 South Hills Boulevard Suite 300 Broadview Heights, Ohio 44147
For Dollar Bank
Adam M. Fried Holly Marie Wilson Reminger Co., L.P.A. 101 West Prospect Avenue Suite 1400 Cleveland, Ohio 44115 MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Barbara Rheinhold (“Rheinhold”), appeals from the trial
court’s decision granting a motion to dismiss for lack of subject matter jurisdiction in
favor of defendant-appellee, Dollar Bank. For the reasons set forth below, we affirm.
{¶2} In May 2012, Rheinhold filed a complaint against her mother, Debra
Pickering (“Pickering”), Edward Reichek, Esq. (“Reichek”), and Dollar Bank in the
Cuyahoga County Court of Common Pleas, General Division. Rheinhold’s complaint
arises from a monetary settlement she received after she was injured in a car accident in
1999. Rheinhold was seven years old at the time of the accident. As a result, the
settlement proceeds were deposited into a guardianship account at Dollar Bank, which
was administered by the Cuyahoga County Probate Court. Pickering was appointed the
guardian of Rheinhold’s estate. The guardianship was set to terminate when Rheinhold
reached the age of majority (18 years old). As of November 2008, the funds in the
account totaled $16,383.38.
{¶3} On January 11, 2010, Pickering, as guardian, and Reichek, as attorney for
guardian, filed an application in probate court to terminate the guardianship and authority
to distribute the funds, stating that Rheinhold “attained the age of 18 on January 7, 2010.”
The application included a waiver, indicating that Rheinhold waived service and notice
and consented to the application to terminate guardianship. Rheinhold alleges that this
waiver was not signed by her. She further alleges she did not have knowledge that the application was filed with regard to her estate. On January 14, 2010, the probate court
granted this application and Dollar Bank released the funds to Pickering, which totaled
$16,485.65.
{¶4} In her complaint, Rheinhold asserts six causes of action. Count 1 alleges
conversion against Pickering, Reichek, and Dollar Bank. Count 2 alleges fraud against
Pickering. Count 3 alleges negligence and legal malpractice against Reichek. Count 4
alleges civil liability for criminal conduct against Pickering. Count 5 alleges breach of
fiduciary duties against Pickering and Reichek. Count 6 alleges statutory liability against
Dollar Bank. She seeks monetary damages.
{¶5} In July 2012, Dollar Bank filed a motion to dismiss Rheinhold’s complaint
under Civ.R. 12(B)(1) and (B)(6). Dollar Bank argued that this matter is within the
exclusive jurisdiction of probate court. Alternatively, Dollar Bank argued Rheinhold
failed to state a claim because it is shielded from liability for releasing funds under R.C.
5815.06. Rheinhold opposed, and the trial court in a detailed opinion granted Dollar
Bank’s motion for lack of subject matter jurisdiction. The trial court found that
Rheinhold’s “claims arise from the alleged misappropriation of funds from an account
created by and for a guardianship. * * * [T]his matter pertains to guardian, and is
therefore improperly before this Court.”
{¶6} It is from this order that Rheinhold appeals, raising the following single
assignment of error for review.
Assignment of Error The trial judge erred, as a matter of law, by dismissing the action on the grounds that only the probate division possesses jurisdiction over the claims that have been raised.
Standard of Review
{¶7} We review a trial court’s decision on a Civ.R. 12(B)(1) motion to dismiss for
lack of subject matter jurisdiction under a de novo standard of review. Bank of Am. v.
Macho, 8th Dist. Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, citing Crestmont Cleveland
Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th
Dist.2000). In order to dismiss a complaint under Civ.R. 12(B)(1), the court must
determine whether a plaintiff has alleged any cause of action that the court has authority
to decide. Crestmont at 936. When determining its subject matter jurisdiction pursuant
to a Civ.R. 12(B)(1) motion to dismiss, the trial court is not confined to the allegations of
the complaint and may consider material pertinent to such inquiry. Southgate Dev. Corp.
v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph
one of the syllabus.
Subject Matter Jurisdiction
{¶8} Rheinhold argues that probate court does not have jurisdiction over her
claims for monetary damages against a former guardian, attorney, and financial
institution. Dollar Bank argues that Rheinhold’s claims are within the jurisdiction of
probate court because Rheinhold’s claims center on Pickering’s conduct as guardian, the probate court’s approval of the release of the estate funds, and Dollar Bank’s alleged
mishandling, which enabled Pickering to obtain the funds.
{¶9} Under R.C. 2101.24(A)(1)(e), a probate court has exclusive jurisdiction to
“appoint and remove guardians, conservators, and testamentary trustees, direct and
control their conduct, and settle their accounts.” It also “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.” R.C.
2101.24(C).
{¶10} The Ohio Supreme Court has stated that the probate division has continuing
and exclusive jurisdiction over all matters pertaining to a guardian and ward. In re
Clendenning, 145 Ohio St. 82, 92, 60 N.E.2d 676 (1945). Indeed, the probate court’s
jurisdiction extends “to all matters ‘touching the guardianship.’” In re Guardianship of
Jadwisiak, 64 Ohio St.3d 176, 180, 593 N.E.2d 1379 (1992), quoting In re Zahoransky,
22 Ohio App.3d 75, 488 N.E.2d 944 (1985). Therefore, in the instant case, the issue of
jurisdiction turns upon whether Rheinhold’s claims “touch upon the guardianship.”
{¶11} In State ex rel. Lewis v. Moser, 72 Ohio St.3d 25, 1995-Ohio-148, 647
N.E.2d 155, the Ohio Supreme Court rejected a challenge to the probate court’s
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[Cite as Rheinhold v. Reichek, 2014-Ohio-31.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99973
BARBARA RHEINHOLD PLAINTIFF-APPELLANT
vs.
EDWARD R. REICHEK, ET AL. DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-782576
BEFORE: Kilbane, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 9, 2014 ATTORNEYS FOR APPELLANT
Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113
W. Craig Bashein Anthony N. Palombo Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Edward R. Reichek
Steven G. Janik Janik L.L.P. 9200 South Hills Boulevard Suite 300 Broadview Heights, Ohio 44147
For Dollar Bank
Adam M. Fried Holly Marie Wilson Reminger Co., L.P.A. 101 West Prospect Avenue Suite 1400 Cleveland, Ohio 44115 MARY EILEEN KILBANE, J.:
{¶1} Plaintiff-appellant, Barbara Rheinhold (“Rheinhold”), appeals from the trial
court’s decision granting a motion to dismiss for lack of subject matter jurisdiction in
favor of defendant-appellee, Dollar Bank. For the reasons set forth below, we affirm.
{¶2} In May 2012, Rheinhold filed a complaint against her mother, Debra
Pickering (“Pickering”), Edward Reichek, Esq. (“Reichek”), and Dollar Bank in the
Cuyahoga County Court of Common Pleas, General Division. Rheinhold’s complaint
arises from a monetary settlement she received after she was injured in a car accident in
1999. Rheinhold was seven years old at the time of the accident. As a result, the
settlement proceeds were deposited into a guardianship account at Dollar Bank, which
was administered by the Cuyahoga County Probate Court. Pickering was appointed the
guardian of Rheinhold’s estate. The guardianship was set to terminate when Rheinhold
reached the age of majority (18 years old). As of November 2008, the funds in the
account totaled $16,383.38.
{¶3} On January 11, 2010, Pickering, as guardian, and Reichek, as attorney for
guardian, filed an application in probate court to terminate the guardianship and authority
to distribute the funds, stating that Rheinhold “attained the age of 18 on January 7, 2010.”
The application included a waiver, indicating that Rheinhold waived service and notice
and consented to the application to terminate guardianship. Rheinhold alleges that this
waiver was not signed by her. She further alleges she did not have knowledge that the application was filed with regard to her estate. On January 14, 2010, the probate court
granted this application and Dollar Bank released the funds to Pickering, which totaled
$16,485.65.
{¶4} In her complaint, Rheinhold asserts six causes of action. Count 1 alleges
conversion against Pickering, Reichek, and Dollar Bank. Count 2 alleges fraud against
Pickering. Count 3 alleges negligence and legal malpractice against Reichek. Count 4
alleges civil liability for criminal conduct against Pickering. Count 5 alleges breach of
fiduciary duties against Pickering and Reichek. Count 6 alleges statutory liability against
Dollar Bank. She seeks monetary damages.
{¶5} In July 2012, Dollar Bank filed a motion to dismiss Rheinhold’s complaint
under Civ.R. 12(B)(1) and (B)(6). Dollar Bank argued that this matter is within the
exclusive jurisdiction of probate court. Alternatively, Dollar Bank argued Rheinhold
failed to state a claim because it is shielded from liability for releasing funds under R.C.
5815.06. Rheinhold opposed, and the trial court in a detailed opinion granted Dollar
Bank’s motion for lack of subject matter jurisdiction. The trial court found that
Rheinhold’s “claims arise from the alleged misappropriation of funds from an account
created by and for a guardianship. * * * [T]his matter pertains to guardian, and is
therefore improperly before this Court.”
{¶6} It is from this order that Rheinhold appeals, raising the following single
assignment of error for review.
Assignment of Error The trial judge erred, as a matter of law, by dismissing the action on the grounds that only the probate division possesses jurisdiction over the claims that have been raised.
Standard of Review
{¶7} We review a trial court’s decision on a Civ.R. 12(B)(1) motion to dismiss for
lack of subject matter jurisdiction under a de novo standard of review. Bank of Am. v.
Macho, 8th Dist. Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, citing Crestmont Cleveland
Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th
Dist.2000). In order to dismiss a complaint under Civ.R. 12(B)(1), the court must
determine whether a plaintiff has alleged any cause of action that the court has authority
to decide. Crestmont at 936. When determining its subject matter jurisdiction pursuant
to a Civ.R. 12(B)(1) motion to dismiss, the trial court is not confined to the allegations of
the complaint and may consider material pertinent to such inquiry. Southgate Dev. Corp.
v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph
one of the syllabus.
Subject Matter Jurisdiction
{¶8} Rheinhold argues that probate court does not have jurisdiction over her
claims for monetary damages against a former guardian, attorney, and financial
institution. Dollar Bank argues that Rheinhold’s claims are within the jurisdiction of
probate court because Rheinhold’s claims center on Pickering’s conduct as guardian, the probate court’s approval of the release of the estate funds, and Dollar Bank’s alleged
mishandling, which enabled Pickering to obtain the funds.
{¶9} Under R.C. 2101.24(A)(1)(e), a probate court has exclusive jurisdiction to
“appoint and remove guardians, conservators, and testamentary trustees, direct and
control their conduct, and settle their accounts.” It also “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.” R.C.
2101.24(C).
{¶10} The Ohio Supreme Court has stated that the probate division has continuing
and exclusive jurisdiction over all matters pertaining to a guardian and ward. In re
Clendenning, 145 Ohio St. 82, 92, 60 N.E.2d 676 (1945). Indeed, the probate court’s
jurisdiction extends “to all matters ‘touching the guardianship.’” In re Guardianship of
Jadwisiak, 64 Ohio St.3d 176, 180, 593 N.E.2d 1379 (1992), quoting In re Zahoransky,
22 Ohio App.3d 75, 488 N.E.2d 944 (1985). Therefore, in the instant case, the issue of
jurisdiction turns upon whether Rheinhold’s claims “touch upon the guardianship.”
{¶11} In State ex rel. Lewis v. Moser, 72 Ohio St.3d 25, 1995-Ohio-148, 647
N.E.2d 155, the Ohio Supreme Court rejected a challenge to the probate court’s
jurisdiction to decide a claim for breach of fiduciary duties even though the relator sought
monetary damages. The court adopted the view that: (1) claims for breach of fiduciary
duty, which inexorably implicate control over the conduct of fiduciaries, are within the
jurisdiction of the probate court by virtue of R.C. 2101.24(A)(1)(c) and (e), and (2) 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. Id. at 28-29. This broad statutory grant of authority to fully
resolve matters properly before it includes the power to award monetary damages. Goff
v. Ameritrust Co., N.A., 8th Dist. Cuyahoga No. 65196, 1994 Ohio App. LEXIS 1916
(May 5, 1994) (cited in Lewis for holding that R.C. 2101.24(C) authorizes any relief that
is required to fully adjudicate a claim within the probate court’s jurisdiction).
{¶12} Since Lewis, this court, as well as other appellate courts, have rejected the
proposition that probate courts cannot award monetary damages for claims that are within
the exclusive jurisdiction of the probate court, such as claims based upon the conduct of a
guardian. See Rowan v. McLaughlin, 8th Dist. Cuyahoga No. 85665, 2005-Ohio-3473, ¶
9 (where we affirmed the common pleas court’s dismissal of complaint for lack of
jurisdiction because claims for monetary damages pertaining to conduct of guardian were
within jurisdiction of probate court); Ohio Farmers Ins. Co. v. Bank One, 2d Dist.
Montgomery No. 16981, 1998 Ohio App. LEXIS 3854, *22 (Aug. 21, 1998) (“we hold
that probate courts in some instances may award monetary damages in the exercise of
their plenary power to adjudicate fully any matter properly before the court.”); Keith v.
Bringardner, 10th Dist. Franklin No. 07-AP-666, 2008-Ohio-950 (appellant’s claims of
intentional infliction of emotional distress, abuse of process, negligence, conversion, and
civil conspiracy revolve around appellees’ conduct as guardians and are within the
exclusive jurisdiction of the probate court.) {¶13} In the instant case, all of Rheinhold’s claims arise out of the alleged conduct
by Pickering, as guardian, Reichek, as attorney for guardian, the probate court’s approval
to terminate the guardianship and allow Pickering to access the estate funds, and Dollar
Bank’s handling of the funds. In her complaint, Rheinhold challenges the actions of the
guardian, attorney for the guardian, the probate court’s administration of her estate, and
Dollar Bank’s distribution of estate funds. These claims “touch the guardianship” and
are, therefore, within the exclusive jurisdiction of the probate court. The fact that the
guardianship has terminated does not foreclose the probate court’s exclusive jurisdiction.
Ohio Farmers Ins. Co. v. Huntington Natl. Bank, 8th Dist. Cuyahoga No. 76303, 2000
Ohio App. LEXIS 4533, *16 (Sept. 28, 2000) (where we found that appellant’s complaint
was within exclusive jurisdiction of probate court that alleged claims concerning acts of
former guardian). Accordingly, the trial court properly determined that the probate court
had exclusive jurisdiction over Rheinhold’s claims.
{¶14} Thus, the sole assignment of error is overruled.
{¶15} Judgment is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and PATRICIA A. BLACKMON, J., CONCUR