THE STATE EX REL. NEFF, APPELLANT, v. CORRIGAN, JUDGE, ET AL., APPELLEES.
No. 95-553
Supreme Court of Ohio
Submitted October 24, 1995—Decided March 1, 1996.
75 Ohio St.3d 12 | 1996-Ohio-231
APPEAL from the Court of Appeals for Cuyahoga County, No. 67421.
{¶ 1} This appeal involves two separate estates. According to appellant, attorney Owen C. Neff, there was a conspiracy among appellees Judge John E. Corrigan of the Cuyahoga County Court of Common Pleas, Probate Division; Donahue & Scanlon, a law firm; and Gerald M. Porter, an attorney associated with Donahue & Scanlon. This alleged conspiracy involved Judge Corrigan‘s unlawful removal of testamentary fiduciaries in large estates and trusts, and the appointment of Porter and other members of Donahue & Scanlon as successor administrators to fraudulently divert fees and commissions arising from the administration of these estates and trusts. Appellant more specifically alleged the following as to the two estates.
Gerber Estate
{¶ 2} On April 22, 1991, the will of Peter J. Gerber was admitted to probate, and appellant, having been named executor in the will, was appointed executor. On July 3, 1993, appellee Joan M. Litzow, an attorney who represented Gerber‘s widow, sought a declaratory judgment awarding approximately $500,000 in assets
{¶ 3} Litzow then filed a motion to remove appellant as executor of the Gerber estate.1 This and other motions were set for a November 8, 1993 hearing before Judge Corrigan.
{¶ 4} At the November 8, 1993 hearing, Judge Corrigan refused to allow a court reporter employed by appellant to transcribe the proceeding. Appellant further alleges that in order to falsify the record and evade appellate review, Judge Corrigan and Litzow coerced the interested parties to sign a settlement agreement with stated purposes of settling the claims of the heirs and winding up the administration of the Gerber estate. The complete settlement agreement entered into on November 8, 1993 included a document entitled “Agreement,” a document purporting to be the resignation of appellant as executor of the Gerber estate, and oral representations that the December 1, 1993 date for filing a final account would be extended if the administration of the estate could not be completed by that date. Appellant signed the agreement and resignation documents because he believed them to be part of a valid agreement to settle the claims of all parties interested in the estate.
{¶ 5} In reliance on the allegedly false representations made at the November 8, 1993 hearing, appellant dismissed his appeal from the July 30, 1993 declaratory judgment entered by Judge Corrigan and his action against Litzow and Gerber‘s widow. Subsequently, the agreement and resignation were, in December 1993, filed separately. Judge Corrigan then signed journal entries accepting appellant‘s resignation and appointing Porter as successor administrator of the Gerber estate. Appellant appealed both entries. Both appeals were dismissed for lack of a final appealable order.
Borgh Estate
{¶ 6} On August 25, 1992, Porter was appointed successor administrator of the estate of Carl Borgh. Judge Corrigan had previously removed Betty Ann Cushman as testamentary executor and trustee.
{¶ 7} On February 10, 1994, Porter filed a motion to withdraw consent of the beneficiaries to attorney fees paid to appellant under a contractual agreement with the Borgh heirs.
Mandamus and Prohibition Action
{¶ 8} On June 13, 1994, appellant filed a complaint in the Court of Appeals for Cuyahoga County which requested the following extraordinary relief: (1) a writ
{¶ 9} In January 1995, the court of appeals entered judgment granting Judge Corrigan‘s and Litzow‘s
{¶ 10} The cause is now before this court upon an appeal as of right.
Snyder, Neff & Chamberlin and Owen Calvin Neff, pro se.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Gregory B. Rowinski and Carol Shockley, Assistant Prosecuting Attorneys, for appellee Judge Corrigan.
Reminger & Reminger Co., L.P.A., and Clifford C. Masch, for appellee Joan M. Litzow.
DOUGLAS, J.
{¶ 11} Appellant asserts in his first proposition of law that the court of appeals erred in granting Judge Corrigan‘s and Litzow‘s
{¶ 12} As to the motion to strike,
{¶ 13} Applying the
{¶ 14} Appellant contends that Judge Corrigan patently and unambiguously lacked jurisdiction to consider Porter‘s motion to withdraw consent of the beneficiaries to the Borgh estate to attorney fees paid to appellant. Appellant claims that Judge Corrigan lacked jurisdiction after a prior executor‘s appeals were dismissed following settlement. Appellant relies on State ex rel. Special Prosecutors v. Judges of Belmont Cty. Court of Common Pleas (1978), 55 Ohio St.2d 94, 9 O.O.3d 88, 378 N.E.2d 162 (writ of prohibition allowed to prevent trial court from proceeding with trial after granting a postsentence motion to withdraw guilty plea after appeal from judgment of conviction and sentence had been affirmed on appeal because allowing the withdrawal of the plea was inconsistent with the court of appeals’ judgment).
{¶ 15} When a case has been appealed, the trial court retains all jurisdiction
{¶ 16} Further, even if the attorney fees matter had been raised in the prior appeals, once those appeals were dismissed, Judge Corrigan possessed jurisdiction to consider Porter‘s motion. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 558, 653 N.E.2d 366, 371; see, also,
{¶ 17} Appellant also sought a writ of mandamus compelling Judge Corrigan to open the journals of the probate court to public inspection and to correct the record in the probate court cases relating to the Gerber estate. In order to be entitled to a writ for mandamus, appellant must establish (1) a clear legal right to the requested relief, (2) a clear legal duty to perform these acts on the part of Judge Corrigan, and (3) the lack of a plain and adequate remedy in the ordinary course of law. State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65, 637 N.E.2d 1.
{¶ 18} As to appellant‘s mandamus claim to compel Judge Corrigan to open the probate court‘s journal, the court of appeals determined that “the copies of numerous filings in the probate court which accompany relator‘s affidavit contradict relator‘s assertion that the records of the probate court are not open and available for inspection and copying.” (In fact the copies of the filings were not attached to the affidavit, but it is obvious that appellant had access to them.) In addition, appellant does not assert any error by the court of appeals in dismissing the foregoing claim.
{¶ 19} Appellant instead contends that the court of appeals erred in dismissing and striking his claim for a writ of mandamus compelling Judge
{¶ 20} While we find Worcester to be, possibly, inapposite, we now, nevertheless, limit Worcester to its facts. Notwithstanding this, we agree with the court of appeals that appellant had an adequate remedy at law. Appellant could have filed a
{¶ 21} The time has come to put an end to the seemingly interminable delays that these estates have been subjected to by appellant. Judge Corrigan is fully capable of determining the issues before him and has sought to do so in spite of appellant‘s continued efforts at delay. We should not and will not be part of further delaying Judge Corrigan‘s actions and his jurisdiction.
{¶ 22} Accordingly, the judgment of the court of appeals is affirmed in all respects.
Judgment affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK, J., concurs separately.
WRIGHT, J., concurs in part and dissents in part.
COOK, J., concurring.
{¶ 23} Although not argued by the parties to this appeal, the threshold issue is whether the appellant‘s claims against the court are maintainable as mandamus or prohibition actions. Specifically, I question the court‘s treating as a justiciable controversy in an estate, an attorney‘s claim that the court engaged in fraud and collusion. Allegations of fraudulent practices by a judge are to be addressed in disciplinary proceedings. I do not see it as practical that the court alleged to have engaged in conspiracy and fraud should then consider a
{¶ 24} Appellant‘s complaint asks to set aside a settlement agreement. Usually the procedure employed is a motion to vacate a settlement agreement, not an extraordinary writ. Moreover, because appellant is apparently not representing the interests of any party to this estate, but rather appears only to be attempting to protect his interests in fees, his remedy is outside the scope of the mandamus action
{¶ 25} I concur in the judgment to affirm the court of appeals and deny the writs.
WRIGHT, J., concurring in part and dissenting in part.
{¶ 26} Although I join with the court in the bulk of its opinion, I respectfully dissent from the portion that addresses Neff‘s petition for mandamus to correct the journal entries of the probate court. The court of appeals erroneously dismissed this petition on a
{¶ 27} The majority bases its disposition of this issue on two questionable grounds. First, it incorrectly suggests that this court‘s decision in State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183, is inapplicable to the matter at hand, while stating that Worcester ought to be limited to its facts. Despite careful review of the court‘s opinion, I have been unable to find any support for either of these conclusions.
{¶ 28} Second, the majority asserts that mandamus was inappropriate in this matter because Neff possessed an adequate remedy at law, a
{¶ 29} Consequently, there is no adequate remedy at law available to Neff. In light of this consideration, as well as those I have outlined above, we should reverse the court of appeals’ decision on this narrow issue.