IN THE MATTER OF THE CREATION OF A PARK DISTRICT WITHIN CHESTER TOWNSHIP
CASE NO. 2016-G-0082
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
2017-06-26
2017-Ohio-4031
Aрpeal from the Geauga County Court of Common Pleas, Probate Division, Case No. 84 PC 000139. Judgment: Reversed and vacated.
James M. Gillette, City of Chardon Police Prosecutor, PNC Bank Building, 117 South Street, Suite 208, Chardon, Ohio 44024 (For Appellee — Chester Township Park District Board of Commissioners).
SEAN C. GALLAGHER, P.J., Eighth Appellate District, sitting by assignment.
OPINION
{¶ 1} The core of this appeal is the extent of the probate court‘s jurisdiction over a judicially created park district under
{¶ 2} The May 10, 1984 order creating the Park District did not impose any obligations or duties. It simply created the legal entity known as the Park District, established the territorial limits of the Park District, and noticed an intent to appoint the original Park District Board of Commissioners (“Commissioners“). There are no terms in that order to be enforced in perpetuity. See, e.g., Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 349, 575 N.E.2d 116 (1991) (case remanded for further proceedings including the еxercise of continuing jurisdiction in connection with enforcing the terms of a permanent injunction). Generally in Ohio, trial courts do not maintain the power, plenary or otherwise, to enforce the terms of a final order absent the grant of continuing jurisdiction or an express retention of jurisdiction in the final judgment. See, e.g., Infinite Sec. Solutions, L.L.C. v. Karam Props. II, 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 30 (power to enforce settlement agreement must be expressly included in final judgment of dismissal); In re Adams, 45 Ohio St.3d 219, 543 N.E.2d 797 (1989) (although domestic relations court generally has continuing jurisdiction, statutory scheme does not include the continuing jurisdiction to modify alimony); In re J.F., 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19, ¶ 20. Because there was nothing to enforce in the order creating the Park District, the Park District has focused its entire argument on the statutory grant of
{¶ 3} Based on the statutory framework, however, we must conclude that the probate court exceeded its jurisdiction by declaring portions of an arm‘s-length agreement entered under
{¶ 4} Upon the creation of a park district, the probate court is required to appoint three commissioners tо the board whose terms expire on a rotating basis for the first three years.
{¶ 5} The creation of the Park District created a legal entity, separate and apart from the township. However, the creation of the Park District did not automatically transfer any land or property over which the Park District could assert control.
{¶ 6} A park district could purchase or acquire its own property.
lands either within or withоut the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamp lands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare.
The commissioners have the discretion to obtain such property through gift, purchase by cash or installment payments, or by appropriation, which can only occur through the manner provided in
{¶ 8} The commissioners of a park district do not need probate court approval before entering any agreement under
{¶ 9} Although it is a far better practice to define that role in writing, there is no legislative requirement that a park district enter a written contract with the public authority; it
{¶ 10} The legislature also provided park districts with several options to obtain funding. The park district may levy a dedicated tax in an amount not to exceed one-half of one mill, but only “[a]fter the budget commission of the county in which the district is located certifies such levy, or such modification thereof as [the budget commission] considers advisable, to the county auditor, he shall place it upon the tax duplicate.” (Emphasis added.)
(township trustees may make contributions of money from its general fund to the park
{¶ 11} In addition to the dedicated millage, the commissioners may directly submit a request for an additional tax levy to the voters by resolution.
{¶ 12} In April 1985, the Park District and the Trustees negotiated an arm‘s-length agreement under
{¶ 14} In the early part of 2014, an anonymously drafted “report” surfaced, entitled “Chester Township Park District 2013 Review” (“the review“). The review questioned the Park District‘s financial affairs. Under
{¶ 16} A master commissioner‘s duties under
{¶ 17} The appointment of a master commissioner under
{¶ 18} The probate court in this case tasked the master commissioner with addressing the issues raised in the review and to determine, examine, and either resolve or provide the probate court with a proposed resolution. As the probate court requested, and the master commissioner understood, her task was to investigate the allegations in the review and provide recommendations for the “best practices” under which the Park District should operate.
{¶ 20} Both parties have invited us to consider the master commissioner‘s report as it was considered by the Ohio Supreme Court in State ex rel. Chester Twp. v. Grendell, 147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683. Although we recognize that the Ohio Supreme Court reviewed the report as evidence in the original writ action and not upon the probate court‘s record, if any error exists in considering the report for the purposes of this appeal, such an error was invited by agreement among the parties. Further, if the report is not considered, there was no evidence before the probate court upon which the court could have acted. The probate court‘s orders are all premised on the findings and conclusions within the master commissioner‘s report.
{¶ 21} In the master commissioner‘s report, the master commissioner determined upon her “research and discussions with those involved with the park district‘s formation” that the intent behind the Park District‘s creation was to keep the township politics out of the park district. The master commissioner ultimately concluded, through interviews and research, that the Park District and its employees had not committed any knowing violations of Ohio law. Several policy and procedure “recommendations” were also provided. No sworn testimony was taken, nor did the probate court require the master commissioner to do so or resolve any factual disputes. After submitting the report, the
{¶ 22} At the same time the master commissioner was reviewing the allegations against the Commissioners regarding financial decisions, a state agency was conducting a formal audit of the Park District‘s finances relating to the same allegations. The Park District is required to present its yearly budget to the Geauga County Budget Commission and to the township trustees in order to comply with
{¶ 23} In the Confirmation Order, the probate court went further than reviewing the conduct of the Commissioners and specifically concluded that (1) the Trustees had terminated the dediсated millage for the Park District, directly contravening the fundamental purpose for creating the Park District; (2) the 1993 agreement addressing the Trustees’ contractual right to review any construction or alteration of any permanent improvement on the park lands impeded the Park District‘s separate purpose; (3) the Commissioners had the sole statutory authority to levy the millage under
{¶ 24} The Trustees appealed the Confirmation Order, but the original appeal was dismissеd for the want of jurisdiction. The Confirmation Order had not finalized the actual costs associated with the master commissioner‘s investigation, even though the parties were ordered to split the undetermined costs with the probate court. In re Creation of Park Dist. Within Chester Twp., 11th Dist. Geauga No. 2014-G-3242, 2015-Ohio-1210, ¶ 7. Without the imposition of a specific cost, the probate court‘s decision was not a final one within the meaning of
{¶ 25} After the appeal was dismissed, the Trustees sought a writ of prohibition from the Ohio Supreme Court. In denying the writ, it was held that the Trustees “clearly have an adequate remedy in the ordinary course of the law by way of appeal.” Grendell, 147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683, at ¶ 21. Because the probate court did not patently and unambiguously lack jurisdiction over the potential removal of the Commissioners, the writ had to be denied. Id. at ¶ 30. Therе was an express reluctance to circumvent the appellate process. Id. at ¶ 31. Indeed, it has been continually maintained that a “court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by way of appeal.” State ex rel. Huntington Natl. Bank v. Kontos, 145 Ohio St.3d 102, 2015-Ohio-5190, 47 N.E.3d 133, ¶ 19, citing State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-Ohio-4732,
{¶ 26} The probate court believed it maintained continuing jurisdiction over the Trustees based on the Ohio Supreme Court‘s statement that
[t]he probate court‘s authority to create park districts and its plenary power “to dispose fully of any matter” that is properly before it surely includes the ability to issue orders to enforce the entry creating the park district, including orders that impose duties on those interfering with the park district‘s purposes.
(Emphasis added.) Id. at ¶ 30. As we havе already discussed, the 1984 order creating the Park District imposed no prospective obligations on any parties, much less the Trustees or the township. Although there is no question the probate court has some plenary power under its statutory grant of continuing jurisdiction, that power is not unbridled. In this regard, it is important to understand what was decided in Grendell and what was not. The case was an original action for a writ of prohibition. The only matter to be resolved was whether the probate court patently and unambiguously lacked jurisdiction over a specific matter. Salloum v. Falkowski, 11th Dist. Lake No. 2015-L-124, 2016-Ohio-5005, ¶ 32 (Grendell, J., concurring) (in a writ of prohibition action, the court is not “called upon to decide whether the lower court‘s exercise of jurisdiction over the underlying case is proper, only whethеr there is a ‘patent and unambiguous’ lack of jurisdiction“). It was not an action to determine whether the probate court possessed jurisdiction over any particular issue.
{¶ 28} The fees were imposed against the township under the belief that the probate court has a plenary power to prevent others from interfering with the Park District‘s purposes under
{¶ 29} This appeal followed in which the Trustees claim the probate court exceeded its jurisdiction by sua sponte voiding the terms of a lawful agreement entered under
{¶ 30} At the most basic of levels, the probate court‘s orders all depend on the proper invocation of the court‘s continuing jurisdiction over the Park District. In order for a court to exercise any judicial power or resort to its plenary power at law, it must have continuing jurisdiction over the subject matter of the dispute. State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13. A court in want of jurisdiction cannot exercise its judicial power by entering any judgment or order in furtherance of a case. Id. at ¶ 27. Further, a court with jurisdiction to act is limited to reviewing only those issues within the scope of that jurisdiction. Mitchell v. Mitchell, 11th Dist. Portage No. 2007-P-0023, 2008-Ohio-833, ¶ 67 (the trial court, although possessing jurisdiction over some of the issues, exceeded its jurisdiction by ordering the manner in which an asset should be distributed and that portion of the order must be vacated); see also Lisboa v. Karner, 167 Ohio App.3d 359, 2006-Ohio-3024, 855 N.E.2d 136; Tanagho v. Tanagho, 10th Dist. Franklin No. 92AP-1190, 1993 Ohio App. LEXIS 1201, 10 (Feb. 23, 1993).
{¶ 31} “Probate courts are courts of limited jurisdiction and may hear only those types of cases expressly authorized by the applicable statutes.” Swift v. Gray, 11th Dist. Trumbull No. 2007-T-0096, 2008-Ohio-2321, ¶ 37-39, citing Rudloff v. Efstathiadis, 11th Dist. Trumbull No. 2002-T-0119, 2003-Ohio-6686, ¶ 6, and Schucker v. Metcalf, 22 Ohio St.3d 33, 34, 488 N.E.2d 210 (1999). A court cannot create its own jurisdiction—it only has “such jurisdiction as may be provided by law.”
{¶ 32}
- to appoint the park district‘s board of commissioners,
R.C. 1545.05(A) ; - to expand the board to five members upon the park district‘s request,
R.C. 1545.05(B) ; - to remove any commissioners after providing a hearing and no less than 10 days’ notice of the intent to do so,
R.C. 1545.06 (and this may include the power to investigate certain conduct related to any one commissioner); - to approve the park district‘s acceptance of donations of money or property,
R.C. 1545.11 ;
to approve the sale of lands if the lands are within the county of the probate court‘s territorial jurisdiction, R.C. 1545.12(B) ;- to approve the annexation of any territory within the probate court‘s territorial jurisdiction,
R.C. 1545.15 ; and - to dissolve the park district if the results of a certified vote are presented to the probate court or the park district is inactive for a period of five years,
R.C. 1545.36 and1545.38 .
The probate court‘s continuing jurisdiction as set forth in
{¶ 33} Although the probate сourt has plenary power at law and in equity over some matters, those matters must be “properly before the court,” i.e., based on the grant of jurisdiction.
{¶ 34} In this case, the probate court‘s continuing jurisdiction over the park district matter is solely dependent on
{¶ 35} The issue before us is whether the probate court exceeded the scope of its continuing jurisdiction to consider removing any one of the Commissioners, (1) by imрosing costs upon the township as a separate legal entity—incurred through the appointment of the master commissioner for the express purpose of investigating allegations of financial misconduct within the Park District and to provide consulting services to the Park District; and (2) by invalidating a contractual agreement entered between the Park District and the township defining the scope of the Park District‘s involvement with the township‘s park lands. Mitchell, 11th Dist. Portage No. 2007-P-0023, 2008-Ohio-833, at ¶ 67.
{¶ 37} Because the trial court exceeded the grant of continuing jurisdiction, the Confirmation Order and the June 2016 order were not within the purview of the probate court‘s plenary power over matters properly before it under
{¶ 38} None of this is to suggest that the Park District is without protection or recourse with respect to others interfering with the Park District‘s operations or in resolving contract disputes over agreements entered under
{¶ 39} As a separate and distinct political entity, the Park District is capable of suing and being sued in a court of competent jurisdiction. Marrek v. Cleveland Metroparks Bd. of Commrs., 9 Ohio St.3d 194, 195, 459 N.E.2d 873 (1984);
{¶ 40} Further, if the Commissioners feel the need to protect the Park District from outside interference,
{¶ 41} Despite the limitations on the scope of the probate court‘s continuing jurisdiction, the Park District, as a separate and distinct political entity, has statutory mechanisms at its disposal to protect its rights and those of the public it serves.
{¶ 43} It is ordered that appellant recover from appellee costs herein taxed.
{¶ 44} The court finds there were reasonable grounds for this appeal.
{¶ 45} It is ordered that a special mandate be sent to said court to carry this judgment into execution.
{¶ 46} A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
WILLIAM A. KLATT, J., Tenth Appellate District, sitting by assignment,
PATRICK M. MCGRATH, J., Retired, Tenth Appellate District, sitting by assignment,
concur.