State ex rel. Goldberg v. Mahoning County Probate Court

753 N.E.2d 192, 93 Ohio St. 3d 160
CourtOhio Supreme Court
DecidedSeptember 5, 2001
DocketNo. 00-2238
StatusPublished
Cited by39 cases

This text of 753 N.E.2d 192 (State ex rel. Goldberg v. Mahoning County Probate Court) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Goldberg v. Mahoning County Probate Court, 753 N.E.2d 192, 93 Ohio St. 3d 160 (Ohio 2001).

Opinions

Per Curiam.

In April 1999, appellants, the Mahoning County Court of Common Pleas, Probate Division, and its judge, Timothy P. Maloney, began investigating complaints alleging that attorney Richard D. Goldberg1 had concealed, embezzled, conveyed away, or had been in the possession of money, chattel, and choses in action of seventeen different estates. Judge Maloney initiated concealment proceedings pursuant to R.C. 2109.50 et seq.

Judge Maloney found that attorney Goldberg had deposited in his own “trustee” checking account settlement checks intended for beneficiaries of numerous estates without the knowledge, consent, or approval of fiduciaries or the probate court and that he used these funds for personal purposes. According to Judge Maloney, these proceeds were from settlements of wrongful death claims. Judge Maloney further found that attorney Goldberg had failed in his duties to surrender client and estate files and financial records of certain guardianships and that he had liquidated some of his property holdings in 1999.

On June 23, 2000, as a result of these findings, Judge Maloney issued an order directing the bailiff of the Girard Municipal Court to “search for, seize and attach any and all business and/or financial records and/or property in the possession or under the control of Richard D. Goldberg and/or any and all members of his family and/or any other person, firm corporation, partnership [or] other entity [161]*161which may be acting for him or which or who may have acted for him, with him or otherwise, whether directly or indirectly, in any personal, business or other venture and whether the same may be considered personal, business or professional in nature.” Judge Maloney directed the bailiff to search and attach property within attorney Goldberg’s personal residence as well as a warehouse and “any other place in which the said Bailiff may learn that any of the above described types of records, property, or other interests may be kept, discovered or located.” Judge Maloney specified in his entry that the prejudgment attachment of personal property was justified under R.C. 2715.01 et seq. as well as R.C. 2109.56.

On Saturday, June 24, 2000, the bailiff and several law enforcement officers executed the prejudgment attachment order. When they executed the order at the Goldberg residence, a fourteen-year old daughter of attorney Goldberg and his wife, Dorothy Goldberg (appellee), answered the door and was told to contact an adult. Mrs. Goldberg and her attorney arrived shortly thereafter. Over protests by Mrs. Goldberg and her attorney, the police and their agents executed the order, videotaping, photographing, and listing the items contained in the house, and seizing and removing some of the items, including four Rolex watches, two Piaget watches, three Oriental rugs, and one computer. The attachment team also videotaped and photographed the items in the warehouse and changed the locks to it. The attachment order was not requested by any representative of the estates and was not supported by an affidavit pursuant to R.C. 2715.03.

On July 3, 2000, Mrs. Goldberg filed a complaint for a writ of prohibition in the Court of Appeals for Mahoning County to prevent appellants from exercising further authority .under their June 23, 2000 attachment order. The court of appeals denied appellants’ motion to dismiss and ordered the parties to submit briefs on the prohibition claim. In their brief, appellants claimed that they had concluded that their attachment order was an appropriate interim remedy under R.C. 2109.50 and 2715.01 et seq.

In November 2000, the court of appeals entered a judgment granting the writ of prohibition and ordering the probate court and Judge Maloney to return to Mrs. Goldberg the property that is the subject of the attachment order. The court of appeals held that although appellants had subject-matter jurisdiction to issue a prejudgment attachment order, they patently and unambiguously lacked jurisdiction to do so in an unconstitutional manner.

This cause is now before the court upon an appeal as of right.

In order to be entitled to a writ of prohibition, Mrs. Goldberg must establish that (1) Judge Maloney and the probate court are about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other remedy in the ordinary [162]*162course of law exists. Page v. Riley (1999), 85 Ohio St.3d 621, 623, 710 N.E.2d 690, 692.

Appellants assert that prohibition may not be granted because they have already exercised their judicial power by entering the June 23, 2000 attachment order. But in rejecting comparable contentions, we have held that “ ‘where an inferior court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previous jurisdictionally unauthorized actions.’” (Emphasis sic.) State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127, quoting State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 98, 671 N.E.2d 236, 238; see, also, State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 248, 594 N.E.2d 616, 619. In cases of a patent and unambiguous lack of jurisdiction, the availability of appeal is immaterial. State ex rel. Corn v. Russo (2001), 90 Ohio St.3d 551, 554, 740 N.E.2d 265, 268. Moreover, as the court of appeals concluded, appellants continue to hold the attached property, either actually or constructively, pursuant to their unlawful prejudgment attachment order.

The dispositive issue is whether appellants patently and unambiguously lacked jurisdiction to issue the prejudgment attachment order in the context of concealment proceedings. For the reasons that follow, we hold that appellants patently and unambiguously lacked jurisdiction to issue the June 23, 2000 attachment order, and we affirm the judgment of the court of appeals.

Probate courts are courts of limited jurisdiction, and probate proceedings are consequently restricted to actions permitted by statute and the Ohio Constitution. Corron v. Corron (1988), 40 Ohio St.3d 75, 531 N.E.2d 708, paragraph one of the syllabus; State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1995), 74 Ohio St.3d 19, 22, 655 N.E.2d 1303, 1306. Appellants contend that they have subject-matter jurisdiction to issue the prejudgment attachment order in the context of concealment actions under R.C. 2109.50 to 2109.56 as well as their additional exclusive and plenary authority under R.C. 2101.24(A)(2) and (C).

R.C. 2109.50 to 2109.56, however, do not confer subject-matter jurisdiction on probate courts to issue prejudgment attachment orders relating to personal property. A proceeding for the discovery of concealed or embezzled assets of an estate, brought under R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
753 N.E.2d 192, 93 Ohio St. 3d 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-goldberg-v-mahoning-county-probate-court-ohio-2001.