BARBARA RHEINHOLD v. EDWARD R. REICHEK, ET AL.
No. 99973
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 9, 2014
[Cite as Rheinhold v. Reichek, 2014-Ohio-31.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-782576
BEFORE: Kilbane, J., S. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: January 9, 2014
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
W. Craig Bashein
Anthony N. Palombo
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Edward R. Reichek
Steven G. Janik
Janik L.L.P.
9200 South Hills Boulevard
Suite 300
Broadview Heights, Ohio 44147
For Dollar Bank
Adam M. Fried
Holly Marie Wilson
Reminger Co., L.P.A.
101 West Prospect Avenue
Suite 1400
Cleveland, Ohio 44115
{¶1} Plaintiff-appellant, Barbara Rheinhold (“Rheinhold“), appeals from the trial court‘s decision granting a motion to dismiss for lack of subject matter jurisdiction in favor of defendant-appellee, Dollar Bank. For the reasons set forth below, we affirm.
{¶2} In May 2012, Rheinhold filed a complaint against her mother, Debra Pickering (“Pickering“), Edward Reichek, Esq. (“Reichek“), and Dollar Bank in the Cuyahoga County Court of Cоmmon Pleas, General Division. Rheinhold‘s complaint arises from a monetary settlement she received after she was injured in a car accident in 1999. Rheinhold was seven years old at the time of the accident. As a result, the settlement proceeds were deposited into a guardianship account at Dollar Bank, which was administered by the Cuyahoga County Probate Court. Pickering was appointed the guardian of Rheinhold‘s estate. The guardianship was set to terminate when Rheinhold rеached the age of majority (18 years old). As of November 2008, the funds in the account totaled $16,383.38.
{¶3} On January 11, 2010, Pickering, as guardian, and Reichek, as attorney for guardian, filеd an application in probate court to terminate the guardianship and authority to distribute the funds, stating that Rheinhold “attained the age of 18 on January 7, 2010.” The application included a waiver, indicating that Rheinhold waived service and notice and consented to the application to terminate guardianship. Rhеinhold alleges that this waiver was not signed by her. She further alleges she did not have knowledge that the
{¶4} In her complaint, Rheinhold asserts six causes of action. Count 1 alleges conversion against Pickering, Reichek, and Dollar Bank. Count 2 alleges fraud against Pickering. Count 3 alleges negligence and legal malpractice against Reichek. Count 4 alleges civil liability for criminal conduct against Pickering. Count 5 alleges breach of fiduciary duties against Pickering and Reichek. Count 6 alleges statutory liability against Dollar Bank. She seeks monetary damages.
{¶5} In July 2012, Dollar Bank filed a motion to dismiss Rheinhold‘s complaint under
{¶6} It is from this order that Rheinhold appeals, raising the following single assignment of error for review.
Assignment of Error
The trial judge erred, as a matter of law, by dismissing the action on the grounds that only the probate division possesses jurisdiction over the claims that have been raised.
Standard of Review
{¶7} We review a trial court‘s decision on a
Subject Matter Jurisdiction
{¶8} Rheinhold argues that probate court does not have jurisdiction over her claims for monetary damages against a former guardian, attorney, and financial institution. Dollar Bank argues that Rheinhold‘s claims are within the jurisdiction of probate court because Rheinhold‘s claims center on Pickering‘s сonduct as guardian, the
{¶9} Under
{¶10} The Ohio Supreme Court has stated that the probate division has continuing and exclusive jurisdiction over all matters pertaining to a guardian and ward. In re Clendenning, 145 Ohio St. 82, 92, 60 N.E.2d 676 (1945). Indeed, the probate court‘s jurisdiction extends “to all matters ‘touching the guardianship.‘” In re Guardianship of Jadwisiak, 64 Ohio St.3d 176, 180, 593 N.E.2d 1379 (1992), quoting In re Zahoransky, 22 Ohio App.3d 75, 488 N.E.2d 944 (1985). Therefore, in the instant case, the issue of jurisdiction turns upon whether Rheinhold‘s claims “touch upon the guardianship.”
{¶11} In State ex rel. Lewis v. Moser, 72 Ohio St.3d 25, 1995-Ohio-148, 647 N.E.2d 155, the Ohio Supreme Court rejected a challenge to the probate court‘s jurisdiction to decide a claim for breach of fiduciary duties even though the relator sought monetary damages. The court adоpted the view that: (1) claims for breach of fiduciary duty, which inexorably implicate control over the conduct of fiduciaries, are within the jurisdiction of the prоbate court by virtue of
{¶12} Since Lewis, this court, as well as other apрellate courts, have rejected the proposition that probate courts cannot award monetary damages for claims that are within the exclusive jurisdiction of the probate court, such as claims based upon the conduct of a guardian. See Rowan v. McLaughlin, 8th Dist. Cuyahoga No. 85665, 2005-Ohio-3473, ¶ 9 (where we affirmed the common pleas court‘s dismissаl of complaint for lack of jurisdiction because claims for monetary damages pertaining to conduct of guardian were within jurisdiction of probate сourt); Ohio Farmers Ins. Co. v. Bank One, 2d Dist. Montgomery No. 16981, 1998 Ohio App. LEXIS 3854, *22 (Aug. 21, 1998) (“we hold that probate courts in some instances may award monetary damages in the exercise of their plenary powеr to adjudicate fully any matter properly before the court.“); Keith v. Bringardner, 10th Dist. Franklin No. 07-AP-666, 2008-Ohio-950 (appellant‘s claims of intentional infliction of emotional distress, abuse of process, negligence, conversion, and civil conspiracy revolve around appellees’ conduct as guardians and are within the exclusive jurisdiction of the probate court.)
{¶14} Thus, the sole assignment of error is overruled.
{¶15} Judgment is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA A. BLACKMON, J., CONCUR