Florkey v. Malott
2011 Ohio 5199
Ohio Ct. App.2011Background
- Branson seeks relief for Mollie Florkey as Branson's mother and next-best-friend; Malott is Florkey's court-appointed guardian over person and estate.
- Branson filed suit December 7, 2010 against Malott alleging fraud via POA and guardianship, constitutional and ADA rights violations, and damages; also sought to quiet title for property allegedly sold for inadequate consideration.
- Trial court granted Malott's Civ.R. 12(B)(6) and Civ.R. 17(A) motions to dismiss on grounds Branson was not the real party in interest and claims lacked legal basis.
- Branson's guardian-removal claim, if present, falls under probate jurisdiction; the trial court dismissed but the issue is whether transfer to probate court was proper.
- This court (a) affirms dismissal of Branson's claims brought on Florkey's behalf, (b) concludes the guardian-removal claim belongs in probate court, and (c) remands for transfer to probate court for proper handling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Real party in interest | Branson alleges claims on Florkey’s behalf | Branson lacks standing; Malott is guardian, not Branson | Branson lacks standing; claims dismissed under Civ.R. 12(B)(6) and Civ.R. 17 |
| Guardian-removal jurisdiction | Branson seeks removal of Malott as guardian | Probate court has exclusive jurisdiction over guardians; case filed in common pleas | Trial court lacked jurisdiction; guardian-removal claim transferred to probate court |
| Disposition of guardian-removal claim | Guardianship-removal should proceed in trial court | Not proper venue; probate court appropriate | Remand to probate court for transfer and proper handling |
Key Cases Cited
- In re Guardianship of Florkey, 2008-Ohio-4994 (Ohio 2008) (probate appointment; guardianship proceeding context cited by panel)
- Civ.R. 73(B) interpretation (Bringardner), 2008-Ohio-950 (Ohio 2008) (transfer of improperly venued matters to proper division)
- Siebenthal v. Summers, 56 Ohio App.2d 168 (Ohio App. 1978) (authority on transfer and venue for probate matters)
- Barnes v. Tolliver, 100 Ohio App.3d 391 (Ohio App. 1995) (liberal pleading construction for guardianship context)
- Residential Funding Co., L.L.C. v. Thorne, 2010-Ohio-4271 (Ohio 2010) (standing and real-party-in-interest guidance)
- Pryor v. Pryor, 2009-Ohio-6670 (Ohio 2009) (need for record to review Civ.R. 12(B)(6) challenges)
- Cramer v. Javid, 2010-Ohio-5967 (Ohio App. 2010) (standing and Civ.R. 12(B)(6) standards)