IN THE MATTER OF: GUARDIANSHIP OF NICHOLAS L. WELLER
Appellate Case No. 24337
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
November 10, 2011
2011-Ohio-5816
Triаl Court Case No. 10-GRD-112 (Civil Appeal from Common Pleas Court, Probate Division)
and
CAROLYN MUELLER, Atty. Reg. #0065533, Hall & Mueller, LPA, 3040 Presidential Drive, Suite 222, Fairborn, Ohio 45324
Attorneys for Appellant
DAVID M. RICKERT, Atty. Reg. #0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402
and
DAN R. WARNCKE, Atty. Reg. #0061799, and JULIA B. MEISTER, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202
Attorneys for Appellee
{¶ 1} Appellant Nicholas Weller appeals from a decision of the Montgomery County Common Pleas Court, Probate Division, establishing a guardianship over his estate. Weller contends that the evidence does not support the trial court‘s finding that he was incompetent to manage his estate.
{¶ 2} We conclude that this appeal has been rendered moot by the May 31, 2011 entry finding Weller restored to competency and terminating the guardianship. Accordingly, this appeal is dismissed as moot.
I
{¶ 3} On March 31, 2010, Nicholas Weller suffered a stroke at his residence in Montgomery County. He was taken to Kettering Medical Center for treatment. He was releаsed from the hospital after a ten-day stay. He was checked into an assisted living facility by Janet Ward, a friend of Weller and Weller‘s deceased wife. Weller refused to remain in the assisted living facility and returned home, where Ward arranged for in-home care. It was determined that Weller suffered from aphasia; or the inability to express himself or to understand the words of people speaking to him.
{¶ 4} Thereafter, Ward filed an applicаtion for appointment as guardian over Weller‘s person and estate. Weller hired his own attorneys and proceeded to contest the need for the guardianship. Following protracted litigation and a hearing, the Probate Court determined that Weller was competent as to his person, but found him incompetent as to his estate. The
{¶ 5} On November 12, 2010, Weller appealed from the order subjecting him to a guardianship of his estate. Just prior to the August 2, 2011 oral arguments in this appeal, this court became aware that the Probate Court had issued an order Terminating Guardianship on May 31, 2011. Following argument, we permitted the parties to file supplemental briefs on the question of whether the entry terminating the guardianship rendered this appeal moot. Supplemental briefs on the moоtness issue have been filed by Weller and the applicant, Janet Ward.
II
{¶ 6} Before we address Weller‘s assignments of error, we must first consider the issue of whether the probate court‘s order terminating the guardianship rendered this аppeal moot.
{¶ 7} “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 791. “While Ohio has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long recognized that a court cannot entertain jurisdiction over a moot question.” Id. “It has been long and well established that it is the duty of every judiciаl tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect. It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14. In other words, an issue is moоt when it has no practical significance, being instead merely hypothetical or academic.
{¶ 8} “Although a case may be moot with respect to one of the litigants, [an appellate] court may hear thе appeal where there remains a debatable constitutional question to resolve, or where the matter appealed is one of great public or general interest.” State ex rel. White v. Kilbane Koch, 2002-Ohio-4848, ¶ 16, 96 Ohio St. 3d 395, 398, quoting from Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28. Another exception allоws for judicial review of moot questions when the issue is capable of repetition, yet evading review. “This exception applies when the challenged action is too short in duration to be fully litigated before its cеssation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again.” State ex rel. White v. Kilbane Koch, ¶ 13, quoting from State, ex rel. Dispatch Printing Co. v. Louden (2001), 91 Ohio St.3d 61, 64.
{¶ 9} Weller contends that this case was not rendered moоt by the order terminating the guardianship. In support, he contends that the matter should be decided pursuant to the exceptions to the mootness doctrine. Specifically, he argues that “this guardianship is a classic example of a situation that is too short in duration to be fully litigated, but that could recur and again avoid review. The Probate Court is the superior guardian and possesses the authority to reappoint a guardian for Mr. Weller.
{¶ 11} Weller also contends that the case is an excеption to the mootness doctrine because it involves an issue of “great public interest,” in that it concerns the loss of his constitutional right to control his property. He argues that “other individuals in his position, could be subjeсted to the same type of proceeding and wrongly deprived of their constitutional rights,” if we fail to correct the trial court with regard to the proceedings below. The focus of this argument is the claim that the trial court erred in its findings, its evidentiary rulings, as
{¶ 12} Again, Weller‘s argument presumes that substantially similar evidentiary and factual issues will arise in proceedings involving other individuals who suffer aphasia caused by stroke. However, given that the evidence in this case indicates that aphasia affects different people differently, and in differing degrees, we conclude that the evidentiary and factual issues arising in a proceeding involving another person suffering from aphasia are not likely to be substantially similar.
{¶ 13} Finally, Weller contends that we should review this appeal because permitting the original guardianship order to stand would have adverse collateral consequences оn his businesses and could subject him to paying attorney fees to the law firm that represented Janet Ward in the institution of these proceedings.
{¶ 14} According to the record, Weller is the owner of several real estate businеsses that require him to enter into contracts on a regular basis. Weller contends that his “livelihood depends on his reputation as a successful businessman [whose] current clients and prospective clients will continue to question [his] ability to transact business if there is an order in existence that adjudicated him incompetent.”
{¶ 15} Whether any of Weller‘s clients, current or prospective, will ever become aware that Weller was the subjeсt of a guardianship proceeding, and whether any such knowledge would adversely impact his business, which centers on renting properties and providing mortgages to individuals who do not qualify for a “regular” bank mortgage, is speculative, at best. And whether any adverse impact of such knowledge would be ameliorated by the fact that the order instituting the guardianship was later reversed on appeal is even more
{¶ 16} With regard to the issue of attorney fees sought by the law firm that represented Janet Ward, Weller argues that the claim for fees expended to prosecute the guardianship application is dependent upon the validity of the guardianship order.
{¶ 17} ”
{¶ 18} We conclude that this appeal has been rendered moot by the order of the probate court terminating the guardianship. There is no further relief that this court could afford Weller that hаs not already been afforded him by the probate court.
III
{¶ 19} Weller‘s appeal is dismissed as moot.
GRADY, P.J., concurring:
{¶ 20} It may be that the Probate Court lacked jurisdiction to terminate Weller‘s guardianship pursuant to
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Neil F. Freund
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David M. Rickert
Dan R. Warncke
Julia B. Meister
Hon. Alice O. McCollum