      [Cite as Barber v. Williamson, 2012-Ohio-4925.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

THELMA BARBER,                    :
as Guardian of Nettie Mullins,    :
                                  :
     Plaintiff-Appellee,          : Case No. 11CA3265
                                  :
     vs.                          : Released: October 16, 2012
                                  :
RICK WILLIAMSON, et al.,          :
                                  : DECISION AND JUDGMENT
     Defendants-Appellants.       : ENTRY
                                  :
                            APPEARANCES:

Steven C. Newman, Chillicothe, Ohio, for Appellants.

Thomas M. Spetnagel, Chillicothe, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellants Rick and Jerry Williamson appeal the decision of the Ross

County Court of Common Pleas granting judgment in Appellee’ favor for breach

of fiduciary duty in the amount of $66,956.96. Appellants raise five assignments

of error, arguing: 1) the trial court lacked jurisdiction to continue the action once

an application for guardianship was filed in the probate court; 2) the court

committed reversible error in not following In re Thompson, 66 Ohio St.2d 433; 3)

the court erred in finding that a fiduciary relationship existed between parent and

children (her sons, the Appellants), upon failing to find fraud, coercion, or undue
Ross App. No. 11CA3265                                                                  2


influence; 4) the court erred in determining the donor incompetent at the time of

transfer based solely upon the doctor’s opinions formulated months after the gift;

and 5) the court erred in failing to find a present intention of the donor to

relinquish ownership, dominion, and control of the property.

      {¶2} Having reviewed the record, we find merit to Appellants’ first

assignment of error. The general division of the trial court was not the proper

court for the action because the probate court had exclusive jurisdiction over the

subject matter. Accordingly, we vacate the trial court’s judgment and remand the

cause for transfer to the probate court.

                                       FACTS

      {¶3} Nettie Mullins (“Mullins”) had six children from her first marriage:

three daughters and three sons. Later Mullins remarried, but in 2008 she had

started to display the signs of dementia.

      {¶4} On January 22, 2009, Mullins took the contents of a savings account

she held jointly with her husband and transferred the money into an account solely

in her name. On February 26, 2009, Mullins withdrew $89,390.89 in cash from the

new account. She met her three sons and allegedly took an unknown amount of

the cash for herself, then she gave the rest to her sons and instructed them to “take

care of her” with the money.
Ross App. No. 11CA3265                                                                3


         {¶5} The sons claimed they had not counted the money and initially placed

the funds in a safety deposit box. They later removed it and distributed $5,000 to

each of Mullins’ children, save one, to whom they gave $1,000. They used some

money to place Mullins in an assisted living community. Mullins had occasionally

asked for small sums of cash, which her sons gave her. Another portion of the

money paid for Mullins’ husband’s funeral after he passed in March 2009.

         {¶6} The sons, however, also believed Mullins had permitted them to spend

the money in their possession however they wished, which they did. Mullins also

transferred title of her 2006 Chevy Impala to one of her sons for no consideration.

Neither of the two defendant-sons was able to definitively say how much money

Mullins gave them, nor could they provide an accounting for how they spent those

funds.

         {¶7} In April 2009, Mullins executed a power of attorney naming two of her

daughters as attorneys in fact. The daughters initiated the instant action on

Mullins’ behalf against sons Jerry and Rick Williamson, alleging they took

advantage of Mullins and she had either intended the money to be held in trust for

her benefit, or she was incompetent to gift the money to them. The daughters filed

claims against the defendant-sons for breach of fiduciary duty, conversion, undue

influence, fraud or coercion, and requested a declaratory judgment and an

accounting, as well as money damages.
Ross App. No. 11CA3265                                                                   4


        {¶8} While the action was pending in the general division, the third daughter

instituted proceedings in the probate court to appoint a guardian for Mullins due to

her diminished cognitive functions. The probate court determined Mullins was

incompetent and appointed the third daughter, Thelma Barber, as Mullin’s

guardian on July 8, 2010. The trial court’s general division then substituted

Barber, as Mullins’ guardian, as the plaintiff in the instant action and the case

proceeded to a trial to the court.

        {¶9} At the close of evidence, the trial court gave its ruling from the bench.

The court found Mullins did not possess the donative intent to gift the money to

her sons. (Tr. at 255.) It also determined Mullins was incompetent to make the

transfers, both the January withdrawal from the joint account and the February

cash withdrawal from her new account. (Tr. at 257.) Oddly though, the trial court

determined Mullins had created a trust when she gave the money to the defendant-

sons and told them to take care of her, rendering them fiduciaries.1 (Tr. at 255-

256.)

        {¶10} The trial court held the defendant-sons had breached their fiduciary

duty to Mullins when they spent the money on anything but her care. The court

accounted for any monies the defendants had expended on Mullins’ behalf, which

was proper, and required the defendant-sons to repay the wrongfully expended or
Ross App. No. 11CA3265                                                              5


unaccounted for balance, which came to $66,956.96. The court entered judgment

against the defendant-sons in that amount, holding them jointly and severally

liable. The defendant-sons now appeal.

                           ASSIGNMENTS OF ERROR

      1. The trial court lacked jurisdiction to continue this action once an

      application for guardianship was filed in the probate court.

      2. The court committed reversible error in not following In re Thompson, 66

      Ohio St.2d 433.

      3. The court erred in finding that a fiduciary relationship existed between

      parent and children (her sons, the Appellants), upon failing to find fraud,

      coercion, or undue influence.

      4. The court erred in determining the donor incompetent at the time of

      transfer based solely upon the doctor’s opinions formulated months after the

      gift.

      5. The court erred in failing to find a present intention of the donor to

      relinquish ownership, dominion, and control.

                                   I. Jurisdiction

      {¶11} In their first assignment of error, Appellants argue the trial court

lacked jurisdiction to continue the action once Barber filed an application for

guardianship in the probate court. While we do not believe the probate court
Ross App. No. 11CA3265                                                               6


obtained jurisdiction as soon as Barber filed the application for guardianship, we

do believe this action was within the probate court’s exclusive jurisdiction because

it “touched upon the guardianship.”

                               A. Standard of Review

      {¶12} “The existence of the trial court’s subject-matter jurisdiction is a

question of law that we review de novo.” Yazdani–Isfehani v. Yazdani–Isfehani,

170 Ohio App.3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶ 20 (4th Dist.). “[L]ack of

subject matter jurisdiction may be raised at any stage of a legal proceeding,

including appeal.” Mock v. Bowen, 6th Dist. No. L-91-210, 1992 WL 163959, *3

(July 17, 1992), citing Fox v. Eaton Corp., 48 Ohio St.2d 236, 358 N.E.2d 536

(1976) (syllabus overruled on other grounds in Manning v. Ohio State Library Bd.,

62 Ohio St.3d 24, 577 N.E.2d 650 (1991)). “That is, subject matter jurisdiction

cannot be waived and is the basis for a mandatory sua sponte dismissal by a court.”

Mock at *3, citing State ex rel. Lawrence Development Co. v. Weir, 11 Ohio

App.3d 96, 463 N.E.2d 398 (10th Dist. 1983).

                                 B. Legal Analysis

      R.C. 2101.24 provides:

             (A)(1) Except as otherwise provided by law, the probate

             court has exclusive jurisdiction:

             ***
Ross App. No. 11CA3265                                                     7


            (e) To appoint and remove guardians, conservators, and

            testamentary trustees, direct and control their conduct,

            and settle their accounts;

            ***

            (g) To make inquests respecting persons who are so

            mentally impaired as a result of a mental or physical

            illness or disability, or mental retardation, or as a result

            of chronic substance abuse, that they are unable to

            manage their property and affairs effectively, subject to

            guardianship;

            ***

            (l) To render declaratory judgments, including, but not

            limited to, those rendered pursuant to section 2107.084 of

            the Revised Code;

            ***

            (m) To direct and control the conduct of fiduciaries and

            settle their accounts;

            ***

            (C) The probate court has plenary power at law and in

            equity to dispose fully of any matter that is properly
Ross App. No. 11CA3265                                                                8


             before the court, unless the power is expressly otherwise

             limited or denied by a section of the Revised Code.

      {¶13} Civ.R. 73(B) provides, “Proceedings that are improperly venued shall

be transferred to a proper venue provided by law * * *.”

      “At all times, the probate court is the superior guardian of wards who are

subject to its jurisdiction[.]” 2111.50(A)(1). See, also, In re Guardianship of

Jawisiak, 64 Ohio St.3d 176, 180, 593 N.E.2d 1379 (1992) (“The court having

jurisdiction of the guardianship matter is superior guardian, while the guardian is

deemed to be an officer of the court.”), citing In re Clendenning, 145 Ohio St. 82,

93, 60 N.E.2d 676 (1945). “The state’s interest in the guardianship is effectuated

by the extension of the probate court’s jurisdiction to all matters ‘touching upon

the guardianship.’” In re Guardianship of Jawisiak at 180, citing In re

Zahoransky, 22 Ohio App.3d 75, 488 N.E.2d 944 (8th Dist. 1985). Thus, the issue

of jurisdiction turns upon whether Mullins’ claims, brought by her guardian,

“touch upon the guardianship.”

      {¶14} We have not previously addressed the issue of whether the probate

court has exclusive jurisdiction over claims brought on behalf of the ward to

recover assets that were allegedly wrongfully conveyed away or converted prior to

the guardianship. We have, however, held the probate court has exclusive

jurisdiction over declaratory actions brought to determine any questions arising out
Ross App. No. 11CA3265                                                                  9


of the administration of a decedent’s estate. Grimes v. Grimes, 173 Ohio App.3d

537, 2007-Ohio-5653, 879 N.E.2d 247 (4th Dist.), at ¶ 17. In Grimes, the

declaratory judgment action was properly before the probate court because the

plaintiff sought to invalidate inter vivos transfers involving property that would

revert to the estate if the transfers were deemed invalid. Grimes at ¶ 18-19.

“‘[T]he action related to the administration of the estate and is within the exclusive

jurisdiction of the probate court.’” (Emphasis sic.) Grimes at ¶ 19, quoting Mock,

6th Dist. No. L-91-210, 1992 WL 163959, *3 (July 17, 1992).

      {¶15} It follows then that when a guardian brings suit on behalf of the ward

seeking a declaratory judgment invalidating pre-guardianship transfers involving

property that would revert to the ward’s estate if the court deems the transfers

invalid, such a claim is within the probate court’s exclusive jurisdiction because it

“touches upon the guardianship.” R.C. 2101.24(A)(1)(l); In re Guardianship of

Jawisiak. See, generally, Grimes.

      {¶16} Other courts have reached similar conclusions. In Sayer v. Epler, 121

Ohio App.3d 329, 332-333, 699 N.E.2d 1000 (5th Dist. 1997), the court held

claims for concealing or having wrongfully conveyed away property of the estate

inter vivos, pursuant to R.C. 2109.50, are within the probate court’s jurisdiction

because the property at issue would revert to the estate if the transfers were

declared invalid. Even when a party seeks to enjoin the sale of property it believes
Ross App. No. 11CA3265                                                              10


was wrongfully converted inter vivos from the decedent’s estate, such a claim is

within the probate court’s exclusive jurisdiction and the probate court has the

plenary power to fully dispose of the claim. Bunting v. Estate of Bunting, 5th Dist.

Nos. 2008CA00173, 2008CA00199, 2009-Ohio-3136, at ¶ 13-15.

       {¶17} Mullins’ remaining claims are all merely alternate theories attempting

to recoup the money the Appellants allegedly conveyed away from Mullins prior to

the establishment of the guardianship. These too touch upon the guardianship

because they attempt to recapture the ward’s assets and are within the probate

court’s exclusive jurisdiction.

       {¶18} Regarding Mullins’ counterargument that the probate court lacks the

ability to issue money judgments, we disagree. R.C. 2101.24(C) clearly gives the

probate court plenary power at law and equity to dispose of any claim properly

before it, which includes issuing money damages. Mullins has cited no section of

the Revised Code that specifically denies or limits this power, nor have we found

any.

       {¶19} Moreover, State ex rel. Lewis v. Moser, 72 Ohio St.3d 25, 28-29, 647

N.E.2d 155 (1995) and Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-

5485, 855 N.E.2d 856, at ¶ 31-39 do not support her contention that a probate court

lacks the ability to order money damages and a request for such divests the probate

court of jurisdiction over an action. When determining whether the probate court
Ross App. No. 11CA3265                                                             11


“patently and unambiguously lack[ed] jurisdiction” over actions seeking monetary

damages, the Supreme Court noted in both cases there was case law on either side

of the issue.

      {¶20} In Lewis, the Court stated, “we are not convinced that the probate

court so patently and unambiguously lacks jurisdiction over claims for breaches of

fiduciary duties seeking monetary damages[.]” Lewis at 28. The Court even went

on to suggest, in light of Goff v. Ameritrust Co., N.A., 8th Dist. Nos. 65196, 66016,

1994 WL 173544 (May 5, 1994), that lower courts reevaluate their holdings

finding the probate court had no jurisdiction under R.C. 2101.24 to award money

damages. Lewis at 29. See, also, In re Katherine Ewanicky, 8th Dist. No. 81742,

2003-Ohio-3351, at ¶ 6-10 (holding the probate court properly adjudicated claims

involving a ward’s accounts and was within its jurisdiction and plenary powers

even though claims sought monetary damages); Goldberg at ¶ 37 (probate court

did not patently and unambiguously lack jurisdiction to determine whether pre-

guardianship transfers were valid, where wrongfully transferred assets would

revert to the ward’s estate).

      {¶21} Thus, we find the general division of the trial court was not the proper

court to litigate Mullins’ claims once Barber was appointed her guardian. When

the probate court established the guardianship and the plaintiff changed from

Mullins, through her attorneys in fact, to Barber, in her capacity as Mullins’
Ross App. No. 11CA3265                                                             12


guardian, the nature of the complaint changed. Indeed, the landscape of the

litigation changed. There was suddenly a guardianship and a ward’s estate. The

complaint sought to recover money and assets on Mullins’ behalf – it sought to

recover assets and return them to the ward’s estate. The new factual scenario made

the complaint “touch upon the guardianship” and brought the action within the

probate court’s exclusive jurisdiction. Accordingly, the general division of the trial

court should have transferred the case to the probate court per Civ.R. 73(B).

      {¶22} Therefore, we sustain Appellants’ first assignment of error and vacate

the trial court’s judgment and remand the case for proceedings consistent with this

opinion. Appellants’ remaining assignments of error are overruled as moot.

                         JUDGMENT VACATED AND CAUSE REMANDED.
Ross App. No. 11CA3265                                                                13


                                 JUDGMENT ENTRY


    It is ordered that the JUDGMENT BE VACATED AND CAUSE
REMANDED and that the Appellants recover of Appellee costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

      Harsha, J. and Kline, J.: Concur in Judgment and Opinion.

                                For the Court,

                                BY: _________________________
                                    Matthew W. McFarland, Judge



                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
