In re Guardianship of Lieber , 2020 Ohio 5625 ( 2020 )

[Cite as In re Guardianship of Lieber, 2020-Ohio-5625.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE GUARDIANSHIP :
OF JUDITH A. LIEBER
: 109646
[Appeal by Sami Sosnoswsky]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Probate Division
Case No. 2016-GRD-213031
Appearances:
Carlin & Carlin, William A. Carlin, and Mark W. Biggerman,
for appellant.
Mansour Gavin, L.P.A., Charles T. Brown, Michael P. Quinlan,
and Veronica T. Garofoli, for appellee.
PATRICIA ANN BLACKMON, P.J.:
Appellant Sami Sosnoswsky is the daughter of Judith Lieber.
Appellee John P. Koscianski (“the Guardian”) was the guardian of Lieber’s person
and estate prior to her death. This guardianship was established in February 2016,
due to Lieber’s incompetency. In December 2016, Sosnoswsky filed a complaint
against Lieber, in both the general division of the common pleas court and the
probate court, alleging fraud in mismanaging money that Sosnoswsky claims was
put in trusts for Sosnoswsky’s benefit. Sosnoswsky alleged that Lieber’s misconduct
occurred prior to the guardianship being established. The parties disagreed on
which court had proper jurisdiction over the fraud case and an appeal ensued.
Ultimately, this court held that jurisdiction was proper in the general division of the
common pleas court. See Sosnoswsky v. Koscianski, 8th Dist. Cuyahoga No.
106147, 2018-Ohio-3045; Sosnoswsky v. Koscianski, Cuyahoga C.P. No. CV-16-
873745.
On October 24, 2019, the parties entered into a proposed settlement
agreement, subject to the probate court’s approval. On November 8, 2019, the
Guardian filed an application to settle claim in the probate court. A hearing was
scheduled for December 4, 2019, but Lieber died on December 1, 2019, before the
probate court could approve the settlement. The probate court dismissed the
application, finding that it lacked jurisdiction to consider the proposed settlement
because its jurisdiction terminated upon Lieber’s death. However, the probate court
also found that it retained jurisdiction over motions for attorney fees filed by the
Guardian as part of the final accounting of the guardianship proceeding.
Sosnoswsky appeals from this dismissal and assigns the following
errors for our review:1
I. The Probate Court erred by holding that it lacked jurisdiction to
consider whether to approve the proposed settlement between
the parties.
II. The Probate Court erred by dismissing the application for
authority to compromise claim for the reason that it lacked
jurisdiction to consider whether to approve the proposed
settlement between the parties.
Having reviewed the record and pertinent law, we affirm the decision
of the probate court. Jurisdiction to review pending matters in guardianship
proceedings, other than attorney fees and the final accounting, terminates when the
ward dies. In re Guardianship of Hollins, 114 Ohio St.3d 434, 2007-Ohio-4555, 872
N.E.2d 1214.
Standard of Review
“The question of subject-matter jurisdiction is a question of law,
subject to a de novo review on appeal.” Cuyahoga Cty. Bd. of Cty. Commrs. v.
Daroczy, 179 Ohio App.3d 625, 2008-Ohio-5491, 899 N.E.2d 1017, ¶ 4 (8th Dist.).
Probate Court Jurisdiction
Probate courts have subject-matter jurisdiction over guardianships
and guardianship funds. See In re Guardianship of Jadwisiak, 64 Ohio St.3d 176,
1 On June 25, 2020, the following issue was raised sua sponte prior to oral
arguments, and the parties submitted briefs accordingly: whether the probate court’s
retention of jurisdiction over the pending issue of attorney fees is a final appealable order
pursuant to R.C. 2505.02. Upon review of R.C. 2505.02(B)(2) and Civ.R. 54(B), we find
that the journal entry in question is a final appealable order.
180, 593 N.E.2d 1379 (1992) (referring to “the extension of the probate court’s
jurisdiction to all matters ‘touching the guardianship’”). See also R.C. 2101.24(A)(1)
(“Except as otherwise provided by law, the probate court has exclusive jurisdiction:
* * * (e) To appoint and remove guardians * * *, direct and control their conduct,
and settle their accounts; * * *”).
However, “[i]t is well-settled that the death of a ward terminates any
guardianship proceedings by operation of law.” In re Guardianship of Mogul, 11th
Dist. Trumbull No. 2001-T-0083, 2002 Ohio App. LEXIS 2057 (Apr. 30, 2002). The
Ohio Supreme Court has further explained the exclusive, yet limited, jurisdiction of
a probate court over guardianships:
although “there is precedent under Ohio law for the general proposition
that the legal effect of a guardianship ends upon the death of the ward,”
a guardian has the power after the ward’s death to make a proper
accounting and settlement of any acts taken in regard to the ward’s
assets. * * * Thus, the “jurisdiction of a guardianship court does not
completely terminate immediately after the ward’s death.” * * *
Therefore, even after the ward’s death, “those powers and duties
necessarily involved in the proper accounting and settlement of the
[guardianship] continue.”
(Citations omitted.) State ex rel. Estate of Hards v. Klammer, 110 Ohio St.3d 104,
2006-Ohio-3670, 850 N.E.2d 1197, ¶ 12-13. See also Simpson v. Holmes, 106 Ohio
St. 437, 439, 140 N.E. 395 (1922) (“The guardian is the personal representative of
the ward while the ward lives; upon the ward’s death the administrator or executor
becomes his personal representative”).
“[O]nce a guardianship ceases to exist, a probate court retains
jurisdiction for the limited purpose of settling the guardian’s final accounting.” In
re Guardianship of Hollins, 114 Ohio St.3d 434, 2007-Ohio-4555, 872 N.E.2d 1214,
¶ 29. Hollins involved the guardianship of a minor, rather than a mentally
incompetent adult, but we find the analogy apropos. See R.C. 2111.50(B) (“In
connection with any person whom the probate court has found to be an incompetent
or a minor subject to guardianship and for whom the court has appointed a
guardian, the court has * * * all the powers that relate to the person and the estate of
the person * * *”).
The issue the Hollins court addressed was “whether a probate court
may properly retain jurisdiction and issue orders related to the minor ward once
that ward has reached the age of 18.” Id. at ¶ 10. The Ohio Supreme Court held that
the probate court did not have jurisdiction to journalize a settlement agreement after
Hollins turned 18, even though the agreement had been reached at a hearing held
prior to the ward’s 18th birthday.
In Hollins, the guardian filed a motion to approve settlement in
August 2004, and a magistrate held a hearing and issued a decision in September
2004. The probate court held a hearing on the settlement and the magistrate’s
decision sometime in January 2005. On Saturday January 29, 2005, Hollins turned
18. On Monday January 31, 2005, “the probate court journalized a judgment entry
approving the application to settle * * *.” Id. at ¶ 5. Also on January 31, 2005, the
guardian filed the final accounting, stating that “because the court had not approved
a settlement by Hollins’s 18th birthday, his estate contained no funds.” Id. at ¶ 6.
Subsequently, the probate court removed the guardian and appointed a successor
guardian. Id. at ¶ 8.
This court vacated both orders, finding that “the probate court was
without jurisdiction to issue any orders.” In re Guardianship of Hollins, 8th Dist.
Cuyahoga Nos. 86412 and 86574, 2006-Ohio-1543 (“Hollins I”). The Ohio Supreme
Court affirmed, finding that when Hollins turned 18, the probate court was
“deprived of jurisdiction to issue orders related to the oversight of the guardianship
of Hollins. Therefore, both the order approving the settlement and the order
removing [the] guardian are invalid for lack of jurisdiction.” Hollins, 114 Ohio St.3d
434, 2007-Ohio-4555, 872 N.E.2d 1214, at ¶ 26.
Analysis
On appeal in the instant case, Sosnoswsky argues that Hollins is not
applicable, because the guardianship was based on Lieber’s incompetency rather
than the ward being a minor. Sosnoswsky misconstrues this court’s statement in
Hollins I that “[i]f, however, the ward is found incompetent by the probate court,
then jurisdiction continues.” The term “ward” in that statement applies to a minor
ward. In other words, probate court jurisdiction based on the ward being a minor
may “continue” after the ward reaches the age of majority if that ward is found
incompetent. Once an incompetent ward dies, probate court jurisdiction
terminates.
This court recently applied Hollins to a jurisdictional challenge
involving a guardianship over an incompetent ward. In In re Guardianship of
Siman, 8th Dist. Cuyahoga No. 109586, 2020-Ohio-4472, this court found that the
probate court lacked jurisdiction to grant the appellant’s motion to compel return of
guardianship funds, because the ward had died before the motion was ruled on.
“Hollins shows that a guardianship that necessarily terminates upon the happening
of an event may not be extended from a Saturday to the following Monday.” Id. at
¶ 20.
Sosnoswsky further argues that In re Guardianship of Dereno, 5th
Dist. Delaware No. 95CA F 10 064, 1996 Ohio App. LEXIS 3705 (May 2, 1996) is
“directly analogous and supports the probate court’s continued jurisdiction.” In
Dereno, the appellate court found that the probate court’s approval of a settlement
agreement subsequent to the ward’s death was not an abuse of discretion. Id.Although the facts in Dereno are similar to the facts of the instant case, we
respectfully decline to follow the Fifth District’s 24-year-old case. Dereno predates
the Ohio Supreme Court’s holding in Hollins, and we find that Hollins essentially
overrules the holding in Dereno.
In following Hollins and Siman, we find that the probate court did
not err by dismissing the Guardian’s application to settle claim for lack of
jurisdiction. Accordingly, Sosnoswsky’s assigned errors are overruled.
Judgment affirmed.
It is ordered that appellee 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 Rule 27
of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR