[Cite as Sosnoswsky v. Koscianski , 2018-Ohio-3045.] Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106147

SAMI SOSNOSWSKY

PLAINTIFF-APPELLANT

vs. JOHN P. KOSCIANSKI, ET AL.

DEFENDANT-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-873745

BEFORE: Jones, J., Stewart, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: August 2, 2018ATTORNEYS FOR APPELLANT

William A. Carlin Mark W. Biggerman Carlin & Carlin 29325 Chagrin Blvd., Suite 305 Cleveland, Ohio 44122

ATTORNEYS FOR APPELLEE

Charles T. Brown Miles Phillip Welo Mansour Gavin, L.P.A. 1001 Lakeside Avenue, Suite 1400 Cleveland, Ohio 44114ON RECONSIDERATION: LARRY A. JONES, SR., J.: {¶1} Upon review, this court sua sponte reconsid ers its decision in this case. After reconsideration, the opinion as announ ced by this court on April 12, 2018, Sosnoswsky v.

Koscianski , 8th Dist. Cuyahoga No. 106147, 2018-Ohio-1409, is hereby vacated and substituted with this opinion. 1 {¶2} This matter involves the issue of whether th e probate division or the general division of the Cuyahoga County Common Pleas Court had jurisdiction over a complaint alleging breach of fiduciary duty, negligence, fraud, conversion, and that sought a constructive trust and an accounting. Upon de novo revi ew, we reverse and remand. Procedural History and Facts {¶3} Plaintiff-appellant, Sami Sosnoswsky (“Sosnoswsky”), was gifted money to be placed into a trust until she turned 18 years old. Judith Lieber, Sosnoswsky’s mother, was custodian of the account. From 1973 – 1980, the fo llowing amounts were to be placed in the trust: $19,000 from Sosnoswsky’s grandmot her, $6,057.40 from her grandfather, and $50,000 from her father. Sosnoswsky has alleged th at the trust is currently worth about $2,000,000. {¶4} In February 2016, defendant-appellee John Kosc ianski (“Koscianski ”) was appointed the guardian of the estate and person of Li eber. On December 12, 2016, Sosnoswsky filed a complaint in the probate division of the Cuya hoga County Common Pleas Court (Probate Court Case No. 2016ADV221589). She filed a second comp laint in the court’ s general division on

1 “[B]y virtue of the jurisdiction conferred by Section 3(B), Article IV, Ohio Constitution, courts of appeals also have inherent authority in the furtherance of justice, to reconsider their judgments sua sponte.” State ex rel. LTV Steel Co. v. Gwin , 64 Ohio St.3d 245, 1992-Ohio-20, 594 N.E.2d 616, citing Tuck v. Chapple , 114 Ohio St. 155, 151 N.E. 48 (1926).December 29, 2016 (Common Pleas Case No. CV- 16-873745). The complaints were virtually identical in that they named the same defenda nts and alleged that, due to Lieber’s fraudulent conveyance of the funds, Sosnoswsky never receive d any of her trust money. The complaints named Koscianski as guardian of Lieber and several financial institutions as defendants. Importantly, the allegations dealt so lely with the actions of Lieber, a ward, that took place prior to the guardianship being established. {¶5} Koscianski filed a motion to dismiss the complaint in the general division pursuant to Civ.R. 12(B)(1), for lack of subject matter ju risdiction. The court stayed the case pending decision by the probate division court on the compla int Sosnoswsky had filed with that court. On April 28, 2017, Sosnoswsky voluntarily dismi ssed her complaint without prejudice in the probate court and m oved to reinstate her general division cas e to the active docket. The general division trial court granted her motion to reinstate the case to the active docket. Sosnoswsky refiled her probate cour t complaint on May 18, 2017 and a Civ.R. 41 notice of dismissal of that complaint on October 31, 2017 (Cuyahoga Common Pleas Court, Probate Division Case No. 2017ADV225631). {¶6} Koscianski moved to renew the original mo tion to dismiss in the general division. On July 31, 2017, prior to the October 31, 2017 dis missal of her probate court complaint, the general division tria l court granted the motion to dismiss, holding, in part: Pursuant to R.C. 2101.24, it is well settled that the probate court has exclusive jurisdiction, unless otherwise pr ovided by law, as to all matters set forth in R.C. 2101.24 and as to all matters pertaining dir ectly to the administration of estates. [T]his instant matter involves a ward [Liebe r] that is currently under guardianship in the Cuyahoga County Probate Court. The Court finds that Plai ntiff’s claims are controlled by Ohio Rev. Code 2109.50 th rough Ohio Rev. Code 2109.56 and the Probate Court has exclusive jurisdiction of this matter. As such, Defendant’s Motion to Dismiss is granted for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(l).{¶7} Sosnoswsky filed a notice of appeal, raisin g one assignment of error for our review: The trial court erred in granting the defendant’s motion to dismiss complaint on the ground that the Cuyahoga County Court of Common Pleas lacked subject matter jurisdiction in accordance with Civ.R. 12(B)(1). Law and Analysis {¶8} In her sole assignment of error, Sosnoswsky claims that the trial court erred in dismissing her complaint for lack of subject matter jurisdiction under Civ.R. 12(B)(1). The

standard of review for a Civ.R. 12(B)(1) dismissal is whether any cause of action cognizable by the forum has been raised in the complaint. Prosen v. Dimora , 79 Ohio App.3d 120, 123, 606 N.E.2d 1050 (9th Dist.1992), citing Avco Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67, 520 N.E.2d 1378 (10th Dist.1987); State ex rel. Bush v. Spurlock , 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). This determinati on involves a question of law that we review de novo. Phillips v.

Deskin , 5th Dist. Richland No. 12CA119, 2013-Ohio-3025, ¶ 8, citing Shockey v. Fouty , 106 Ohio App.3d 420, 666 N.E.2d 304 (4th Dist.1995). In doing so, we accept all fact ual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Phillips at id. , citing Byrd v. Faber , 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

Jurisdiction of Probate Court {¶9} The probate court is a court of limited jurisdiction; it can exercise just such powers as are conferred on it by statute and the constitution of the state. Goff v. Ameritrust Co., N.A. , 8th Dist. Cuyahoga Nos. 65196 and 66016, 1994 Ohio App. LEXIS 1916, 10-11 (May 5, 1994), citing Schucker v. Metcalf , 22 Ohio St.3d 33, 488 N.E.2d 210 (1986). {¶10} The Ohio Supreme Court has historically recognized that the probate division’s jurisdiction includes “continuing and exclusive ju risdiction over both the wa rd and the guardian.”

In re Clendenning , 145 Ohio St. 82, 92, 60 N.E.2d 676 (1945).In this state the Probate Court does have continuing, exclusive jurisdiction over both the ward and the guardian, where no appeal has been perfected. * * * A guardian is an officer of the court a ppointing him. * * * A ward receives such status from a proceeding in rem in the Probate Court. The ward becomes the ward of the court. The control of the ward’s person and property remains in the Probate Court with the discharge of the duties in respect thereof being delegated to a guardian as the agent of the court a nd subject to the orders of the court.

Id. {¶11} This jurisdiction is codified in R.C. 2101.24, which provides th at a probate court has exclusive jurisdiction over the following matters: (A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction:

*** (e) To appoint and remove guardians, c onservators, and testamentary trustees, direct and control their conduc t, and settle their accounts;

* * * (m) To direct and control the conduct of fiduciaries and settle their accounts;

* * * (C) The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the cour t, unless the power is expressly otherwise limited or denied by a section of the Revised Code. {¶12} In Schucker v. Metcalf , 22 Ohio St.3d 33, 488 N.E.2d 210 (1986), the Supreme

Court of Ohio determined that “the probate division has no ju risdiction over claims for money damages arising from a llegations of fraud.” Id. at 35; see also Dumas v. Estate of Dumas , 68 Ohio St.3d 405, 408, 627 N.E.2d 978 (1994) (“Even thoug h [plaintiff] seeks an order to rescind the transfer of assets of the trust * * * which order, if granted may affect the administration of [the] probate estate, her primary aim is still the recovery of monetary damages from the allegedfraud * * * [and] the issues raised * * * were sole ly within the jurisdiction of the general division * * *.”); Dallas v. Childs , 8th Dist. Cuyahoga No. 65150, 1994 Ohio App. LEXIS 2694, 4-5 (June 23, 1994) (“As a matter of law, a probate court has no jurisd iction over a claim for money damages resulting from fraud. Alexander v. Compton (1978), 57 Ohio App.2d 89, 385 N.E.2d

638. See , also , DiPaolo v. DeVictor (1988), 51 Ohio App.3d 166, 555 N.E.2d 969”). {¶13} In Goff v. Ameritrust Co., N.A. , 8th Dist. Cuyahoga Nos. 65196 and 66016, 1994 Ohio App. LEXIS 1916 (May 5, 1994), this court held that the probate c ourt’s jurisdiction over the guardianship extends to all matters “touching the guardianship” under R.C. 2101.24. Id., citing R.C. 2111.13(A); see also In re Rauscher , 40 Ohio App.3d 106, 531 N.E.2d 745 (8th Dist. 1987). The Goff court found that a fiduciary may be liable for monetary damages for maladministration of a decedent’s or a ward’s estate in probate court. Id. at 23. “An action seeking monetary damages is within the probate court’s plenary power at law and clearly affects

the court’s direction and control of the fiduciaries’ conduct a nd affects the cour t’s settlement of

the fiduciaries’ accounts.” Id. at 22. Broadening of Probate Court’s Jurisdiction {¶14} More recently, the Ohio Supreme Court has embraced a “broader view of the probate court’s jurisdiction.” Keith v. Bringardner , 10th Dist. Franklin No. 07AP-666, 2008-Ohio-950, ¶ 9-11. In State ex rel. Lewis v. Moser , 72 Ohio St.3d 25, 29, 647 N.E.2d 155 (1995), the Ohio Supreme Court, in noting this court’s opinion in Goff , found: In essence, the Goff court held that (1) the probate court’s plenary jurisdiction at law and in equity under R.C. 2101.24(C) au thorizes any relief required to fully adjudicate the subject matter within the probate court’s exclusive jurisdiction, and (2) claims for breach of fiduciary duty, which inexorably implicate control over theconduct of fiduciaries, are within that subj ect-matter jurisdiction by virtue of R.C. 2101.24(A)(1)(c) and (l). The thoughtful discussion in Goff suggests a basis for reevaluating the holdings in Kindt [ v. Cleveland Trust Co. , 26 Ohio Misc. 1, 266 N.E.2d 84 (C.P.1971)] and Alexander , supra, that probate courts cannot award monetary damages. {¶15} In Lewis , the court rejected a challenge to the probate court’s jurisdiction to decide a claim for breach of fiduciary duties even though the relators sought money damages against the estate’s executor and attorney. “Since Lewis , other appellate courts have rejected the proposition that probate courts cannot awar d monetary damages for claims that are within the exclusive jurisdiction of the probate cour t, such as claims based upon the conduct of a guardian.” Keith at ¶ 11. {¶16} This court took note of Ohio courts’ broadening of the pr obate court’s ju risdiction in Rowan v McLaughlin , 8th Dist. Cuyahoga No. 85665, 2005-Ohio-3473, ¶ 9: Relying on Kindt v. Cleveland Trust Co. (1971), 26 Ohio Misc. 1, 266 N.E.2d 84,

and Alexander v. Compton (1978), 57 Ohio App.2d 89, 385 N.E.2d 638, Rowan claims that the probate court lacks jurisdiction to award money damages on his claims. However, in Goff v. Ameritrust Co. (May 5, 1994), Cuyahoga App. Nos. 65196 and 66016, 1994 Ohio App. LEXIS 1916, this court found Kindt and

Alexander to be unpersuasive and reasoned that the probate court has authority to award money damages pertaini ng to claims within its exclusive jurisdiction, such as claims relating to th e conduct of a guardian.

The Rowan court further held: “The probate court has exclusive jurisdiction over the claims pertaining to McLaughlin [the guardian of Rowan’s mother] and the ward.” Id. at ¶ 11.{¶17} In Rheinhold v. Reichek , 8th Dist. Cuyahoga No. 99973, 2014-Ohio-31, the plaintiff alleged conversion, fraud, negligence, and legal malpractice, civ il liability, breach of fiduciary duty, and statutory liability against a former gu ardian, attorney, and fina ncial institution. This court, relying on Goff, Moser , and Lewis , rejected the proposition th at probate courts cannot award monetary damages for claims that are within the exclusive jurisdiction of the probate court, such as claims based upon th e conduct of a guardian. Rheinhold at ¶ 12. All of the plaintiff’s

claims arose out of alle ged conduct by her mother as guardian , the attorney for the guardian, and the bank’s handling of the funds. {¶18} Koscianski argues that the probate court has exclusive ju risdiction and control of a guardian and all things that “touch the guardianship”; therefore, Sosnoswsky’s claim that the case belongs solely in the general division is in correct. The cases mentioned above, as well as the other Ohio cases we have reviewed, concern ac tions against a fiduciary of an estate and/or

ward. The issue in this case differs. We ar e called upon to determine whether a probate court has exclusive jurisdiction, to the exclusion of the common pleas court general division, to hear and determine a cause of action broug ht by a ward’s child (or other beneficiary) against the ward’s

estate for actions of the ward. {¶19} Sosnoswsky’s complaint alleges that her mother, Lieber, a ward of the state, was the perpetrator of the offending acts — the complaint refers to improper acts that Lieber did and did not do with the money Sosnoswsky claims belonged to her and various financial institutions handling of the funds. Importantly, the compla int does not call into question the conduct of Koscianski as Lieber’s guardian. {¶20} The above cited case are all distinguishable because they involved claims relating to the actions of a fiduciary, and not a ward. In this case, the claims relate entirely to the conduct ofthe ward. {¶21} R.C. 2101.24 does not provide for jurisdicti on over claims made against a ward. The majority of the cases we have reviewed ha ve cited to R.C. 2101.24(A)(1 )(c), (e), and (m) to prove statutory authority for fraud cases brought in probate court. Th ese subsections provide that probate court has exclusiv e jurisdiction to direct and c ontrol the conduct and settle the accounts of (c) executors; (e) guardians, conser vators, and testamentary trustees, and (m)

fiduciaries. {¶22} We recognize that, pursuant to R.C. 2111.13, the guardian of a ward has a duty to “protect and control the person of the ward.” R.C. 2111.13(A)(1). We do not find that this is sufficient, however, to convey exclusive jurisdic tion to the probate cour t over a ward’s conduct, especially since, in this case, the a llegations stem from actions that occurred prior to the guardianship being established. {¶23} Therefore, the probate cour t did not have exclusive jurisdiction over Sosnoswsky’s

claims. Jurisdictional Priority Rule Does Not Apply {¶24} We have determined that th e probate court does not have exclusive jurisdiction over the claims. We further find that the probate court did not have conc urrent jurisdiction over Sosnoswsky’s claims; therefore, even though So snoswsky first filed he r complaint in probate court, the jurisdictional-prior ity rule does not apply. {¶25} “The jurisdictional priority rule prevents the prosecution of two actions involving the same controversy in two courts of concurrent jurisdiction at the same time.” Davis v. Cowan Sys. , 8th Dist. Cuyahoga No. 83155, 2004-Ohio-515, ¶ 11. “‘The jurisdictional priority rule provides that ‘as between [state] courts of concurrent jurisdic tion, the tribunal whose power isfirst invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle th e rights of the parties.”’ Id., quoting State ex rel. Racing Guild of Ohio v. Morgan, 17 Ohio St.3d 54, 56, 476 N.E.2d 1060 (1985), quoting State ex rel. Phillips v. Polcar , 50 Ohio St.2d 279, 364 N.E.2d 33 (1977), syllabus. {¶26} But, as stated, probate cour t is a court of limited jurisdic tion. By statute, probate court only has concurrent jurisdiction with the general division if: (a) If jurisdiction relative to a particular subject matter is stated to be concurrent in a section of the Revised Code or has been construed by judicial decision to be concurrent, any action that i nvolves that subject matter; (b) Any action that involves an inter vivos trust; a trust created pursuant to section 5815.28 of the Revised Code; a charitable trus t or foundation; subject to divisions (A)(1)(t) and (y) of this section, a power of attorney, including, but not limited to, a durable power of attorney; the medical treatment of a competent adult; or a writ of habeas corpus; (c) Subject to section 2101.31 of the Revise d Code, any action with respect to a probate estate, guardianship, trust, or post-death disput e that involves any of the following: (i) A designation or removal of a benefi ciary of a life insurance policy, annuity contract, retirement plan, brokerage acc ount, security account, bank account, real property, or tangible personal property; (ii) A designation or removal of a payable-on- death beneficiary or transfer-on-death beneficiary; (iii) A change in the title to any asset i nvolving a joint and survivorship interest; (iv) An alleged gift; (v) The passing of assets upon the death of an individual otherwise than by will, intestate succession, or trust. R.C. 2101.24(B)(1). {¶27} None of the enumerated exceptions in 2101.24(B)(1) confer probate courtconcurrent jurisdiction over this matter. Therefore, the jurisdictional- priority rule does not apply to the matter at hand. {¶28} Based on this record, jurisdiction was prope r in the general division of the common pleas court. Thus, the trial c ourt erred when it dismissed Sosnoswsky’s complaint for lack of subject matter jurisdiction. The sole a ssignment of error is sustained. {¶29} The trial court’s decision is vacated and Common Pleas Case No. CV-16-873745 is hereby reinstated. Case remanded for proceedings in accordance with this opinion. It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.

LARRY A. JONES, SR., JUDGE MELODY J. STEWART, P.J., and PATRICIA ANN BLACKMON, J., CONCUR