DeSantis v. Estate of DeSantis

[Cite as DeSantis v. Estate of DeSantis, 2023-Ohio-518.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
LILIANA R. DeSANTIS,
Plaintiff-Appellant,
v.
ESTATE OF JOSEPH J. DeSANTIS, DECEASED, AMY M. DeSANTIS,
ADMINISTRATOR,
Defendant-Appellee,
v.
CHRISTIAN DeSANTIS,
Third-Party Defendant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0103
Civil Appeal from the
Court of Common Pleas, Probate Division, of Mahoning County, Ohio
Case No. 2021 CI 00017
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
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Atty. Ronald E. Knickerbocker, 725 Boardman-Canfield Road, Unit M-3, P.O. Box 3202,
Youngstown, Ohio 44513, for Plaintiff-Appellant and
Atty. Frank L. Cassese and Atty. Corey J. Grimm, Ingram, Cassese & Grimm, LLP,
7330 Market Street, Youngstown, Ohio 44512, for Defendant-Appellee.
Dated: February 15, 2023
D’Apolito, P.J.
{¶1} Appellant, Liliana R. DeSantis (“Liliana”), appeals from the October 19,
2021 judgment of the Mahoning County Court of Common Pleas, Probate Division, sua
sponte dismissing her action pursuant to Civ.R. 12(H)(3) for lack of subject-matter
jurisdiction. On appeal, Liliana asserts the probate court should have transferred her
case to the Mahoning County Court of Common Pleas, General Division, instead of sua
sponte dismissing her action for lack of subject-matter jurisdiction, thereby leaving her
without a remedy. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} Liliana claims to be the majority stockholder of an Ohio corporation known
as Quints Auto Body, Inc. (“Quints”), an auto body repair shop with a principal place of
business located at 4280 Lake Park Road, Youngstown, Mahoning County, Ohio 44512
(“the Property”). (5/27/2021 Complaint, p. 1-2; 6/4/2021 First Amended Complaint, p. 1-
2). The Articles of Incorporation filed with the Ohio Secretary of State, however, reveal
that the only two shareholders of Quints are “Joe DeSantis” and “Chris DeSantis.”
(Appellee’s Exhibit A). Joseph J. DeSantis (“the decedent”) passed away on May 11,
2017. (6/4/2021 First Amended Complaint, p. 3). The decedent was the son of Liliana
and her late husband, Quintino DeSantis (“Quintino”). (5/27/2021 Complaint, p. 2;
6/4/2021 First Amended Complaint, p. 2). Third-Party Defendant, Christian DeSantis
(“Christian”), was the brother of the decedent and is the son of Liliana. (Id. at p. 3). On
March 3, 2021, the probate court appointed Amy M. DeSantis, the surviving spouse and
next of kin, as Administrator of the Estate of Joseph J. DeSantis.
Case No. 21 MA 0103
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{¶3} Liliana filed a complaint on May 27, 2021 and a first amended complaint on
June 4, 2021, both in the Mahoning County Court of Common Pleas, Probate Division,
against Appellee, Estate of Joseph J. DeSantis, Deceased, Amy M. DeSantis,
Administrator (“the Estate”), claiming a breach of a promissory note and unjust
enrichment. In her complaints, Liliana alleges, inter alia, the following: the decedent was
a business manager for Quints; the decedent prohibited Liliana, Quintino, and Christian
from inspecting and/or participating in the preparation or filing of any of the business
records, accounts receivables, real estate tax payments, mortgage payments, etc.; the
decedent diverted the gross proceeds from the business for his own use and embezzled
substantial sums of money; as a direct and proximate result of the decedent’s diversion
of the business funds from the business and subsequent failure to pay the mortgage on
the Property, PNC Bank filed a foreclosure in 2010, Case No. 2010 CV 3089 (against
Liliana and Quintino), as a result of which Liliana and Quintino had to pay attorney fees
and costs in an amount exceeding $138,000; the decedent failed to pay the real estate
taxes on the Property (between 2014 through 2015) which resulted in Daniel Yemma,
Treasurer of Mahoning County, filing an action, Case No. 2015 CV 1479 (against Liliana,
Quintino, the decedent, and Christian) in an amount exceeding $13,370; in order to
resolve the money issues between the parties, the decedent and Christian executed a
promissory note in which they agreed to pay $152,000 to Liliana and Quintino; and that
the Estate is now in default of said payment. (5/27/2021 Complaint, p. 2-3; 6/4/2021 First
Amended Complaint, p. 2-3).
{¶4} On July 27, 2021, the Estate filed an answer, counterclaim, and third-party
complaint against Christian. In its counterclaim, the Estate alleges the following: Liliana
is not in compliance with R.C. 2117.06(B) because she failed to present any claim within
the six-month period after the decedent’s death; Liliana failed to provide any
documentation that would demonstrate that she is in compliance with R.C. 1309.203(3)(b)
and (c); Liliana failed to provide any documentation to demonstrate that she perfected her
interest pursuant to R.C. 1309.313; and Liliana’s claim is subject to discharge as an
unsecured debt presented past the time allotted under R.C. 2117.06(B). In its third-party
complaint against Christian, the Estate alleges the following: the Estate should be held
harmless and indemnified by Christian from and against all sums, if any as may be
Case No. 21 MA 0103
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adjudicated against it in favor of Liliana; and in the alternative, to the extent the Estate is
found liable to Liliana, then it should be entitled to contribution from Christian. (7/27/2021
Answer, Counterclaim and Third-Party Complaint, p. 4-5).
{¶5} On September 30, 2021, Liliana filed a reply to the Estate’s counterclaim
and Christian filed an answer to the third-party complaint against him.
{¶6} On October 19, 2021, the probate court sua sponte dismissed Liliana’s
action pursuant to Civ.R. 12(H)(3) for lack of subject-matter jurisdiction.
{¶7} Liliana filed a timely appeal and raises one assignment of error.1
ASSIGNMENT OF ERROR
THE MAHONING COUNTY PROBATE COURT, A DIVISION OF THE
MAHONING COUNTY COMMON PLEAS COURT, ERRED AS A
MATTER OF LAW IN DISMISSING THE PLAINTIFF’S CLAIMS IN THIS
CASE FOR LACK OF JURISDICTION, WHERE, AS HERE, THE
PROBATE COURT COULD HAVE AND SHOULD HAVE TRANSFERRED
SAID CLAIMS TO THE GENERAL JURISDICTION COURT OF THE
MAHONING COUNTY COMMON PLEAS COURT WHICH DOES HAVE
JURISDICTION, RATHER THAN LEAVING THE
PLAINTIFF/APPELLANT WITHOUT A REMEDY.
{¶8} In her sole assignment of error, Liliana argues the probate court erred in
sua sponte dismissing her action for lack of subject-matter jurisdiction instead of
transferring her case to the general division.
{¶9} “A trial court’s decision to dismiss for lack of subject-matter jurisdiction
raises questions of law; thus, an appellate court reviews the decision de novo.” In re Britt,
7th Dist. Columbiana No. 14 CO 20, 2015-Ohio-1605, ¶ 19, citing Morway v. Durkin, 181
Ohio App.3d 195, 2009-Ohio-932, ¶ 18 (7th Dist.).
{¶10} In support of her position that the probate court should have transferred her
case to the general division instead of sua sponte dismissing it, Liliana relies on Civ.R.
1Christian also filed a notice of appeal with this court, Case No. 21 MA 0104. Christian raises the identical
assignment of error as Liliana.
Case No. 21 MA 0103
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73(B) which states, in part: “Venue. * * * Proceedings that are improperly venued shall be
transferred to a proper venue provided by law and division (B) of this rule, and the court
may assess costs, including reasonable attorney fees, to the time of transfer against the
party who commenced the action in an improper venue.” Liliana also cites to two cases
from our Sister Courts: one from 44 years ago, Siebenthal v. Summers, 56 Ohio App.2d
168 (10th Dist.1978), and another from 38 years ago, Mid-Ohio Liquid Fertilizers, Inc. v.
Lowe, 14 Ohio App.3d 36 (12th Dist.1984), for the proposition that a transfer was
warranted pursuant to Civ.R. 73(B).
{¶11} It appears Liliana is focusing on venue rather than jurisdiction.
“[J]urisdiction and venue are distinct legal concepts.” In the Matter of B.M., 4th Dist.
Hocking No. 16CA12, 2017-Ohio-7878, ¶ 8, citing In re Z.R., 144 Ohio St.3d 380, 2015-
Ohio-3306, ¶ 16. “Venue is a ‘procedural matter,’ and it refers not to the power to hear a
case but to the geographical location where a given case should be heard.” In the Matter
of B.M., supra, at ¶ 8, citing Morrison v. Steiner, 32 Ohio St.2d 86, 87-88 (1972). If an
action does not appear to be one of the “‘(p)roceedings under Chapters 2101. through
2131. of the Revised Code[,]’” then “Civ.R. 73(B) is inapplicable.” U.S. Bank, N.A. v.
Webb, 139 Ohio Misc.2d 54, 2006-Ohio-5462, ¶ 8.
{¶12} “Venue” is defined as: “1. The proper or a possible place for a lawsuit to
proceed * * *. 2. The territory, such as a country or other political subdivision, over which
a trial court has jurisdiction.” Black’s Law Dictionary (11th Ed.2019). “‘Venue must be
carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to
hear and dispose of a given case.’” (Id. at 3, quoting Jack H. Friedenthal et al., Civil
Procedure 2.1, at 10 (2d Ed.1993).
{¶13} “Jurisdiction” is defined as: “1. A government’s general power to exercise
authority over all persons and things within its territory * * *. 2. A court’s power to decide
a case or issue a decree.” Black’s Law Dictionary (11th Ed.2019).
{¶14} At issue in the case at bar is subject-matter jurisdiction. “Subject-matter
jurisdiction is defined as a court’s power to hear and decide cases.” Fifth Third Bank,
N.A. v. Maple Leaf Expansion, Inc., 188 Ohio App.3d 27, 2010-Ohio-1537, ¶ 15 (7th Dist.),
citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11. Subject-matter
jurisdiction “‘connotes the power of the court to hear and decide a case upon its merits.’”
Case No. 21 MA 0103
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(Emphasis sic). Fifth Third Bank, supra, at ¶ 17, quoting Morrison, supra, at 87. “When
determining whether a court has subject matter jurisdiction, a court does not determine
which forum should hear and decide the case[.]” Fifth Third Bank at ¶ 17.
{¶15} As stated, Liliana filed her complaints in the Mahoning County Court of
Common Pleas, Probate Division. “The probate court is a court of limited jurisdiction and
thus cannot exercise authority other than that specifically granted by statute or the
constitution.” Estate of Dombroski v. Dombroski, 7th Dist. Harrison No. 14 HA 3, 2014-
Ohio-5827, ¶ 12, citing Corron v. Corron, 40 Ohio St.3d 75, 77 (1988); R.C. 2101.24,
“Jurisdiction of probate court.” “[T]he probate division has no jurisdiction over claims for
money damages arising from allegations of fraud.” Schucker v. Metcalf, 22 Ohio St.3d
33, 35 (1986); Dumas v. Estate of Dumas, 68 Ohio St.3d 405, 408 (1994) (Because the
plaintiff’s primary aim was recovery of money damages from alleged fraud, then the
issues raised were solely within the jurisdiction of the general division); Sosnoswsky v.
Koscianski, 8th Dist. Cuyahoga No. 106147, 2018-Ohio-3045, ¶ 12.
{¶16} Civ.R. 12(H)(3) states: “Whenever it appears by suggestion of the parties
or otherwise that the court lacks jurisdiction on the subject matter, the court shall dismiss
the action.” (Emphasis added.) Civ.R. 12(H)(3) does not require notice before dismissal.
In re Britt, supra, at ¶ 31. A probate court may sua sponte dismiss an action under Civ.R.
12(H)(3). Id. at ¶ 32.
{¶17} Upon review, the allegations raised in Liliana’s complaints, filed in the
Mahoning County Court of Common Pleas, Probate Division, do not fall under the purview
of R.C. 2101.24. Rather, Liliana stressed that the decedent diverted gross proceeds from
the business and embezzled substantial sums of money for his personal use. (5/27/2021
Complaint, p. 2; 6/4/2021 First Amended Complaint, p. 2). Thus, Liliana apparently raised
claims for money damages arising from allegations of fraud. (Id.). However, “the probate
division has no jurisdiction over claims for money damages arising from allegations of
fraud.” Schucker, supra, at 35. Accordingly, the probate court did not err in sua sponte
dismissing Liliana’s action pursuant to Civ.R. 12(H)(3) for lack of subject-matter
jurisdiction.
Case No. 21 MA 0103
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CONCLUSION
{¶18} For the foregoing reasons, Liliana’s sole assignment of error is not well-
taken. The October 19, 2021 judgment of the Mahoning County Court of Common Pleas,
Probate Division, sua sponte dismissing Liliana’s action pursuant to Civ.R. 12(H)(3) for
lack of subject-matter jurisdiction is affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 MA 0103
[Cite as DeSantis v. Estate of DeSantis, 2023-Ohio-518.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas, Probate Division, of Mahoning County, Ohio, is affirmed.
Costs to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.