[Cite as Rheinhold v. Reichek, 2014-Ohio-31.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99973


                              BARBARA RHEINHOLD
                                                PLAINTIFF-APPELLANT

                                                 vs.


                        EDWARD R. REICHEK, ET AL.
                                                DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                     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
ATTORNEYS FOR APPELLANT

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
MARY EILEEN KILBANE, J.:

       {¶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 Common 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

reached 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, filed 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. Rheinhold alleges that this

waiver was not signed by her. She further alleges she did not have knowledge that the
application was filed with regard to her estate. On January 14, 2010, the probate court

granted this application and Dollar Bank released the funds to Pickering, which totaled

$16,485.65.

       {¶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 Civ.R. 12(B)(1) and (B)(6). Dollar Bank argued that this matter is within the

exclusive jurisdiction of probate court. Alternatively, Dollar Bank argued Rheinhold

failed to state a claim because it is shielded from liability for releasing funds under R.C.

5815.06. Rheinhold opposed, and the trial court in a detailed opinion granted Dollar

Bank’s motion for lack of subject matter jurisdiction.         The trial court found that

Rheinhold’s “claims arise from the alleged misappropriation of funds from an account

created by and for a guardianship. * * * [T]his matter pertains to guardian, and is

therefore improperly before this Court.”

       {¶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 Civ.R. 12(B)(1) motion to dismiss for

lack of subject matter jurisdiction under a de novo standard of review.      Bank of Am. v.

Macho, 8th Dist. Cuyahoga No. 96124, 2011-Ohio-5495, ¶ 7, citing Crestmont Cleveland

Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th

Dist.2000).   In order to dismiss a complaint under Civ.R. 12(B)(1), the court must

determine whether a plaintiff has alleged any cause of action that the court has authority

to decide. Crestmont at 936. When determining its subject matter jurisdiction pursuant

to a Civ.R. 12(B)(1) motion to dismiss, the trial court is not confined to the allegations of

the complaint and may consider material pertinent to such inquiry. Southgate Dev. Corp.

v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph

one of the syllabus.



                                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 conduct as guardian, the
probate court’s approval of the release of the estate funds, and Dollar Bank’s alleged

mishandling, which enabled Pickering to obtain the funds.

       {¶9} Under R.C. 2101.24(A)(1)(e), a probate court has exclusive jurisdiction to

“appoint and remove guardians, conservators, and testamentary trustees, direct and

control their conduct, and settle their accounts.” It also “has plenary power at law and in

equity to dispose fully of any matter that is properly before the court, unless the power is

expressly otherwise limited or denied by a section of the Revised Code.”               R.C.

2101.24(C).

       {¶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 adopted 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 probate court by virtue of R.C. 2101.24(A)(1)(c) and (e), and (2) the
probate court’s plenary jurisdiction at law and in equity under R.C. 2101.24(C) authorizes

any relief required to fully adjudicate the subject matter within the probate court’s

exclusive jurisdiction. Id. at 28-29. This broad statutory grant of authority to fully

resolve matters properly before it includes the power to award monetary damages. Goff

v. Ameritrust Co., N.A., 8th Dist. Cuyahoga No. 65196, 1994 Ohio App. LEXIS 1916

(May 5, 1994) (cited in Lewis for holding that R.C. 2101.24(C) authorizes any relief that

is required to fully adjudicate a claim within the probate court’s jurisdiction).

       {¶12} Since Lewis, this court, as well as other appellate 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 dismissal of complaint for lack of

jurisdiction because claims for monetary damages pertaining to conduct of guardian were

within jurisdiction of probate court); 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 power 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.)
      {¶13} In the instant case, all of Rheinhold’s claims arise out of the alleged conduct

by Pickering, as guardian, Reichek, as attorney for guardian, the probate court’s approval

to terminate the guardianship and allow Pickering to access the estate funds, and Dollar

Bank’s handling of the funds. In her complaint, Rheinhold challenges the actions of the

guardian, attorney for the guardian, the probate court’s administration of her estate, and

Dollar Bank’s distribution of estate funds. These claims “touch the guardianship” and

are, therefore, within the exclusive jurisdiction of the probate court. The fact that the

guardianship has terminated does not foreclose the probate court’s exclusive jurisdiction.

Ohio Farmers Ins. Co. v. Huntington Natl. Bank, 8th Dist. Cuyahoga No. 76303, 2000

Ohio App. LEXIS 4533, *16 (Sept. 28, 2000) (where we found that appellant’s complaint

was within exclusive jurisdiction of probate court that alleged claims concerning acts of

former guardian). Accordingly, the trial court properly determined that the probate court

had exclusive jurisdiction over Rheinhold’s claims.

      {¶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 Rule 27 of

the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
