State ex rel. Lewis v. Moser

647 N.E.2d 155, 72 Ohio St. 3d 25
Ohio Supreme Court·Decided April 12, 1995·No. No. 93-939·Published·Cited by 52 cases

Opinions

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. 2101.241 does not include claims for compensatory and punitive [27]*27damages. 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. Wilkinson (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 [28]*28“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 [29]*29(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, 1989 WL 77053, 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.

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State ex rel. Lewis v. Moser, 647 N.E.2d 155, 72 Ohio St. 3d 25 (Ohio 1995).

647 N.E.2d 155 (State ex rel. Lewis v. Moser) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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