[Cite as State ex rel. Mitseff v. Park, 2011-Ohio-5461.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL DENISE C. MITSEFF JUDGES: Hon. William B. Hoffman, P.J. Relator Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. v.
HONORABLE DIXIE N. PARK, Case No. 2011CA00152
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Prohibition and Writ of Mandamus
JUDGMENT: DENIED
DATE OF JUDGMENT: October 24, 2011
APPEARANCES:
For Relator For Respondent
G. IAN CRAWFORD JOHN D. FERRERO Courtyard Centre, Suite 800 Prosecutor 116 Cleveland Avenue N.W. By: AMY A. SABINO Canton, OH 44702 Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 4470 Stark County, Case No. 2011CA00152 2
Farmer, J.
{¶1} Relator, Denise Mitseff, has filed a Complaint for Writ of Mandamus and/or
Prohibition requesting this Court issue a writ requiring Respondent to accept a
settlement agreement in the Stark County Probate Court and to prohibit Respondent
from continue acting in the underlying probate court cases. Respondent has filed a
motion to dismiss arguing she does not have a clear legal duty to accept the settlement
agreement. Further, Respondent argues she has jurisdiction to continue to preside over
the cases now pending in her court.
{¶2} Relator filed a request in the Stark County Probate Court to become the
guardian of Relator’s mother and father. A hearing was held, however, Relator’s father
died before the trial court issued a ruling. The application for guardianship over
Relator’s father was dismissed as moot. Relator was appointed as the guardian of her
mother’s person and eventually of her mother’s estate. Several months after the
appointment, Relator’s mother died.
{¶3} An estate was opened Relator’s mother wherein Relator was appointed as
executrix. The trial court asked Relator to resign from her position as executrix which
Relator agreed to do. Attorney Stephen Ginella has been named substitute executor of
the estate. A special commissioner was also appointed to assist Respondent in
identifying any problems with the guardianship accounting.
{¶4} Relator and her brother are the only heirs to the estate of Relator’s
mother. Both Relator and her brother are represented by counsel. They came to an
agreement relative to the distribution of estate assets, life insurance proceeds, and
annuity proceeds. Stark County, Case No. 2011CA00152 3
{¶5} The parties advised the court that a settlement had been reached. A
hearing was scheduled where the parties intended to discuss the settlement, however,
prior to the hearing the special commissioner filed a preliminary report raising concerns
over Relator’s spending during her time as guardian as well as possible missing assets
on the inventory. Rather than accepting and reviewing the proposed settlement,
Respondent issued an order staying the settlement and ordered the parties to
cooperate with the special commissioner who had been appointed to assist the court in
evaluating the final account in the guardianship of Relator’s mother.
{¶6} In response to the trial court’s entry staying the settlement, Relator filed a
notice of appeal as well as the instant complaint.
{¶7} In order for a writ of prohibition to issue, petitioner must prove that: (1) the
lower court is about to exercise judicial authority; (2) the exercise of authority is not
authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary
course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994),
69 Ohio St.3d 176, 178, 631 N.E.2d 119. A writ of prohibition, regarding the
unauthorized exercise of judicial power, will only be granted where the judicial officer's
lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv.,
Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48,
562 N.E.2d 125. State ex rel. Daniels v. Harris 2008 WL 5197131, 1 (Ohio App. 5
Dist.).
{¶8} As the Supreme Court has explained, “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. Corron v. Corron Stark County, Case No. 2011CA00152 4
(1988), 40 Ohio St.3d 75, 77, 531 N.E.2d 708.” In re Hollins, 114 Ohio St.3d 434, 2007-
Ohio-4555, 872 N.E.2d 1214, ¶ 11. The general grant of jurisdiction to probate courts
regarding guardians is comprehensive. R.C. 2101.24 states:
{¶9} “(A)(1) Except as otherwise provided by law, the probate court has
exclusive jurisdiction:
{¶10} “ * * *
{¶11} “(e) To appoint and remove guardians, conservators, and testamentary
trustees, direct and control their conduct, and settle their accounts.
{¶12} “ * * *
{¶13} “(C) The 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.
{¶14} “In addition, the probate court is the ‘superior guardian,’ and other
guardians must obey all probate orders: ‘At 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.’ R.C. 2111.50(A)(1).
{¶15} “ * * *
{¶16} “It is also clear that the probate court has the plenary authority to
investigate guardians.” In re Guardianship of Spangler (2010), 126 Ohio St.3d 339,
346-347, 933 N.E.2d 1067, 1073 – 1074.
{¶17} The probate court has jurisdiction over guardianships pursuant to statute
and further has the power to investigate guardians pursuant to the probate court’s Stark County, Case No. 2011CA00152 5
plenary power. Relator has not demonstrated Respondent’s exercise of judicial
authority is unauthorized by law. For these reasons, the writ of prohibition does not lie.
{¶18} A writ of mandamus will issue if the party seeking the writ demonstrates
that the respondent is under a clear duty to perform the requested act, that there is clear
legal right to the requested relief, and that there is no plain and adequate remedy in the
ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d.28,
29, 451 N.E.2d 225, citing State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399
N.E.2d 66, syllabus 1. Lawrence Twp. Bd. of Trustees v. Canal Fulton 2009 WL
418752, 3 (Ohio App. 5 Dist.).
{¶19} Relator argues Respondent has a clear legal duty to accept the parties’
settlement agreement based upon the right to contract.
{¶20} Guardianships are not adversarial proceedings. The Supreme Court has
held, “Guardianship proceedings, including the removal of a guardian, are not
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State ex rel. Mitseff v. Park, 2011-Ohio-5461.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL DENISE C. MITSEFF JUDGES: Hon. William B. Hoffman, P.J. Relator Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. v.
HONORABLE DIXIE N. PARK, Case No. 2011CA00152
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Prohibition and Writ of Mandamus
JUDGMENT: DENIED
DATE OF JUDGMENT: October 24, 2011
APPEARANCES:
For Relator For Respondent
G. IAN CRAWFORD JOHN D. FERRERO Courtyard Centre, Suite 800 Prosecutor 116 Cleveland Avenue N.W. By: AMY A. SABINO Canton, OH 44702 Assistant Prosecuting Attorney 110 Central Plaza South Suite 510 Canton, OH 4470 Stark County, Case No. 2011CA00152 2
Farmer, J.
{¶1} Relator, Denise Mitseff, has filed a Complaint for Writ of Mandamus and/or
Prohibition requesting this Court issue a writ requiring Respondent to accept a
settlement agreement in the Stark County Probate Court and to prohibit Respondent
from continue acting in the underlying probate court cases. Respondent has filed a
motion to dismiss arguing she does not have a clear legal duty to accept the settlement
agreement. Further, Respondent argues she has jurisdiction to continue to preside over
the cases now pending in her court.
{¶2} Relator filed a request in the Stark County Probate Court to become the
guardian of Relator’s mother and father. A hearing was held, however, Relator’s father
died before the trial court issued a ruling. The application for guardianship over
Relator’s father was dismissed as moot. Relator was appointed as the guardian of her
mother’s person and eventually of her mother’s estate. Several months after the
appointment, Relator’s mother died.
{¶3} An estate was opened Relator’s mother wherein Relator was appointed as
executrix. The trial court asked Relator to resign from her position as executrix which
Relator agreed to do. Attorney Stephen Ginella has been named substitute executor of
the estate. A special commissioner was also appointed to assist Respondent in
identifying any problems with the guardianship accounting.
{¶4} Relator and her brother are the only heirs to the estate of Relator’s
mother. Both Relator and her brother are represented by counsel. They came to an
agreement relative to the distribution of estate assets, life insurance proceeds, and
annuity proceeds. Stark County, Case No. 2011CA00152 3
{¶5} The parties advised the court that a settlement had been reached. A
hearing was scheduled where the parties intended to discuss the settlement, however,
prior to the hearing the special commissioner filed a preliminary report raising concerns
over Relator’s spending during her time as guardian as well as possible missing assets
on the inventory. Rather than accepting and reviewing the proposed settlement,
Respondent issued an order staying the settlement and ordered the parties to
cooperate with the special commissioner who had been appointed to assist the court in
evaluating the final account in the guardianship of Relator’s mother.
{¶6} In response to the trial court’s entry staying the settlement, Relator filed a
notice of appeal as well as the instant complaint.
{¶7} In order for a writ of prohibition to issue, petitioner must prove that: (1) the
lower court is about to exercise judicial authority; (2) the exercise of authority is not
authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary
course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994),
69 Ohio St.3d 176, 178, 631 N.E.2d 119. A writ of prohibition, regarding the
unauthorized exercise of judicial power, will only be granted where the judicial officer's
lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv.,
Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48,
562 N.E.2d 125. State ex rel. Daniels v. Harris 2008 WL 5197131, 1 (Ohio App. 5
Dist.).
{¶8} As the Supreme Court has explained, “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. Corron v. Corron Stark County, Case No. 2011CA00152 4
(1988), 40 Ohio St.3d 75, 77, 531 N.E.2d 708.” In re Hollins, 114 Ohio St.3d 434, 2007-
Ohio-4555, 872 N.E.2d 1214, ¶ 11. The general grant of jurisdiction to probate courts
regarding guardians is comprehensive. R.C. 2101.24 states:
{¶9} “(A)(1) Except as otherwise provided by law, the probate court has
exclusive jurisdiction:
{¶10} “ * * *
{¶11} “(e) To appoint and remove guardians, conservators, and testamentary
trustees, direct and control their conduct, and settle their accounts.
{¶12} “ * * *
{¶13} “(C) The 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.
{¶14} “In addition, the probate court is the ‘superior guardian,’ and other
guardians must obey all probate orders: ‘At 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.’ R.C. 2111.50(A)(1).
{¶15} “ * * *
{¶16} “It is also clear that the probate court has the plenary authority to
investigate guardians.” In re Guardianship of Spangler (2010), 126 Ohio St.3d 339,
346-347, 933 N.E.2d 1067, 1073 – 1074.
{¶17} The probate court has jurisdiction over guardianships pursuant to statute
and further has the power to investigate guardians pursuant to the probate court’s Stark County, Case No. 2011CA00152 5
plenary power. Relator has not demonstrated Respondent’s exercise of judicial
authority is unauthorized by law. For these reasons, the writ of prohibition does not lie.
{¶18} A writ of mandamus will issue if the party seeking the writ demonstrates
that the respondent is under a clear duty to perform the requested act, that there is clear
legal right to the requested relief, and that there is no plain and adequate remedy in the
ordinary course of the law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d.28,
29, 451 N.E.2d 225, citing State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 399
N.E.2d 66, syllabus 1. Lawrence Twp. Bd. of Trustees v. Canal Fulton 2009 WL
418752, 3 (Ohio App. 5 Dist.).
{¶19} Relator argues Respondent has a clear legal duty to accept the parties’
settlement agreement based upon the right to contract.
{¶20} Guardianships are not adversarial proceedings. The Supreme Court has
held, “Guardianship proceedings, including the removal of a guardian, are not
adversarial but rather are in rem proceedings involving only the probate court and the
ward. In re Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d
683, ¶ 5. 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. In
re Guardianship of Daugherty (Mar. 9, 1984), 7th Dist. Nos. 83-C-24 and 83-C-29, 1984
WL 7676. The guardian, therefore, has no personal interest in his or her appointment or
removal.” In re Guardianship of Spangler (2010), 126 Ohio St.3d 339, 346-347, 933
N.E.2d 1067, 1073 – 1074.
{¶21} Relator and her brother are potential heirs to the proceeds in the
guardianship, however, they are not parties in the guardianship case. They cannot Stark County, Case No. 2011CA00152 6
demonstrate they have a clear legal right to cause the guardianship to be closed by
agreement. Only the probate court has the power and right to terminate the
guardianship case.
{¶22} Because Relator has failed to demonstrate she has a clear legal right to
have Respondent accept the settlement with her brother, a writ of mandamus will not
issue.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer__________________
__s/ William B. Hoffman_______________
_s/ John W. Wise___________________
JUDGES [Cite as State ex rel. Mitseff v. Park, 2011-Ohio-5461.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL DENISE C. MITSEFF : : Relator : : v. : JUDGMENT ENTRY : HONORABLE DIXIE N. PARK : : Respondent : CASE NO. 2011CA00152
For the reasons stated in our accompanying Memorandum-Opinion, the writs of
prohibition and mandamus are denied. Costs to Relator.
/ Sheila G. Farmer__________________
JUDGES