In re Guardianship of Richardson ( 2008 )

[Cite as In re Guardianship of Richardson, 120 Ohio St. 3d 438, 2008-Ohio-6696.]
IN RE GUARDIANSHIP OF RICHARDSON.
[Cite as In re Guardianship of Richardson,
120 Ohio St. 3d 438, 2008-Ohio-6696.]
Judgment reversed in part on the authority of In re Santrucek.
(No. 2007-1546 – Submitted June 3, 2008 – Decided December 24, 2008.)
APPEAL from the Court of Appeals for Montgomery County,
No. 22000, 172 Ohio App. 3d 410, 2007-Ohio-3462.
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{¶ 1} The portion of the court of appeals’ judgment holding that appellee
(appellant below) Norma Leach has standing to appeal the creation of a
guardianship over Alice Richardson is reversed on the authority of our decision in
In re Santrucek, 120 Ohio St. 3d 67, 2008-Ohio-4915, 896 N.E.2d 683. This
reversal does not affect other portions of the court of appeals’ judgment on issues
not accepted for review by this court.
MOYER, C.J., and O’CONNOR, O’DONNELL, and LANZINGER, JJ., concur.
PFEIFER and LUNDBERG STRATTON, JJ., dissent.
CUPP, J., dissents and would dismiss the cause as having been improvidently
accepted.
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PFEIFER, J., dissenting.
{¶ 2} In reversing the sound judgment of the court of appeals regarding
Norma Leach’s ability to appeal on her own behalf, this court is essentially saying
that Norma Leach, who doesn’t believe that her mother needs a guardian, cannot
challenge her mother’s guardianship because she did not file an application to
become her mother’s guardian. I think there is a third option between requiring
Leach to seek something she does not believe is necessary and preventing her
SUPREME COURT OF OHIO
from doing anything. Based on the reasoning in my dissent in In re Guardianship
of Santrucek, 120 Ohio St. 3d 67, 2008-Ohio-4915, 896 N.E.2d 683, I believe we
should allow Leach to appeal because, even though she was not a party below, she
was treated as if she were a party (her attorney was allowed to call and examine
witnesses).
{¶ 3} I believe that we should follow the example of the federal circuit
courts and the Court of Appeals for the District of Columbia, which often allow
nonparties to appeal. In re Orshansky (D.C.App.2002), 804 A.2d 1077, 1090;
Secs. & Exchange Comm. v. Forex Asset Mgmt., L.L.C. (C.A.5, 2001), 242 F.3d
325, 329; Secs. & Exchange Comm. v. Wencke (C.A.9, 1986), 783 F.2d 829, 834-
835 (a nonparty may appeal when (1) the party participated in the proceedings
below and (2) the equities favor hearing the appeal). See also the United States
Supreme Court’s decision in Devlin v. Scardelletti (2002), 536 U.S. 1, 7, 122
S. Ct. 2005, 153 L. Ed. 2d 27 (“We have never * * * restricted the right to appeal to
named parties to the litigation”).
{¶ 4} Fortunately, the majority’s ruling does not affect the ultimate
outcome of the court of appeals’ decision, since it does not reverse the court of
appeals’ decision regarding Richardson’s ability to appeal. Thus, the court of
appeals’ determination that the probate court lacked jurisdiction because the ward
was not a resident of Ohio at the time the application was granted remains intact.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
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Falke & Dunphy, L.L.C., and Lee C. Falke, for appellees.
Breidenbach, O’Neal & Bacon and John E. Breidenbach; and Douple,
Beyoglides, Leve, Hansen, Claypool & Kovich and Harry G. Beyoglides Jr., for
appellant.
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