[Cite as Patterson v. Church, 2013-Ohio-1906.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99159


                                SHARON PATTERSON
                                                       PLAINTIFF-APPELLANT

                                                 vs.


                              DAVID CHURCH, ET AL.
                                                       DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              AFFIRMED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-768575


        BEFORE: Jones, P.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED: May 9, 2013
ATTORNEY FOR APPELLANT

Alexander R. Folk
P.O. Box 67128
Cuyahoga Falls, Ohio 44222


ATTORNEY FOR APPELLEES

John F. Hersch
8536 Crow Drive
Suite 240
Macedonia, Ohio 44056
LARRY A. JONES, SR., P.J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

       {¶2} In this accelerated appeal, plaintiff-appellant, Sharon Patterson, appeals from

the trial court’s judgment granting the motion to dismiss of defendants-appellees, David

Church and Joyce Church. We affirm, but remand with instructions for the trial court to

enter the dismissal without prejudice.

                                  I.     Procedural History

       {¶3} In November 2011, Patterson filed this action against the Churches, asserting

claims for (1) a declaratory judgment, (2) unjust enrichment, and (3) tortious interference

with expectancy of inheritance.        The action was filed in the general division of the

common pleas court.

       {¶4} The Churches filed a motion to dismiss for lack of subject matter jurisdiction

under Civ.R. 12(B)(1). A brief in opposition was filed by Patterson, and the Churches

filed a reply brief. The trial court granted the Churches’ motion, and dismissed the case

with prejudice. Patterson now appeals, raising the following assignment of error for our

review:    “The trial court erred by dismissing the case for lack of subject matter

jurisdiction.”

                                           II. Facts

       {¶5} Patterson alleged the following in her complaint.      She and David Church are

brother and sister, and their parents are deceased.           Joyce Church is David’s wife.
Patterson alleged that during the last years of the parents’ lives, she provided daily care to

them, including, but not limited to, managing their finances.

       {¶6} After their mother passed away in 2005, the Churches moved into the parents’

home, and to the exclusion of Patterson, substantially altered the father’s then-existing

estate planning from an “equal division of his property between his children to making an

inter-vivos transfer of [the] father’s assets.”    Specifically, Patterson alleged that the

Churches had the father transfer ownership of his residence to David, with the father

retaining only a life estate.   Ownership of two other properties located in West Virginia

were transferred from the father to the Churches.       According to Patterson, David also

opened joint accounts with their father.

       {¶7} Patterson alleged that her father was “frail and vulnerable during the time

frame in which he executed these deeds and bank documents * * *.”              According to

Patterson, David “purposefully and with prior intent sequestered [their father] from [her],

so that he could diminish the assets to which she would have been entitled upon his death.”

       {¶8} During the same time frame as these transfers, the father executed a will

which equally divided his assets between David and Patterson, so long as they survived

him by 30 days.

       {¶9} Patterson alleged that after their father passed away in 2010, David removed

the funds from the joint accounts and did not divide them with her.

       {¶10} Based on these allegations, Patterson sought a declaratory judgment and

recovery for unjust enrichment and tortious interference with expectancy of inheritance.
                                   III.   Law and Analysis

        {¶11} In ruling on a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter

jurisdiction, the trial court determines whether the claim raises any action cognizable in

that court.    Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-550,

2011-Ohio-713, ¶ 5.     Subject-matter jurisdiction involves “‘a court’s power to hear and

decide a case on the merits and does not relate to the rights of the parties.’” Id., quoting

Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-Ohio-5567, ¶ 14. An appellate

court reviews de novo a trial court’s order granting or denying a Civ.R. 12(B)(1) motion to

dismiss. Robinson at ¶ 5, citing Hudson v. Petrosurance, 10th Dist. No. 08AP-1030,

2009-Ohio-4307, ¶ 12.

        {¶12} In their motion to dismiss, the Churches contended that the trial court lacked

subject matter jurisdiction over this case because exclusive jurisdiction rests with the

probate court. In support of their contention, the Churches relied primarily on Grimes v.

Grimes, 173 Ohio App.3d 537, 2007-Ohio-5653, 879 N.E.2d 247 (4th Dist.), and Sayer v.

Epler, 121 Ohio App.3d 329, 699 N.E.2d 1000 (5th Dist.1997).

        {¶13} In Grimes, the plaintiff son of the decedent sued the decedent’s other son (the

plaintiff’s brother) in the general division of the common pleas court. The plaintiff son

contested inter vivos transfers of property from the father to the other son a couple of

months before the father died.    The father had a will that left his entire estate to the two

sons.   One of the plaintiff’s claims was for the intentional interference with an expected

inheritance.
        {¶14} The defendant son moved for summary judgment, and without addressing the

issue of subject-matter jurisdiction, the court granted the motion. The plaintiff son then

refiled his claims regarding the inter vivos transfers in the probate court; the probate court

dismissed the case.

        {¶15} On appeal, the Fourth Appellate District found that (1) the general division

should have dismissed the case without prejudice for lack of jurisdiction, and (2) the

probate court erred by failing to exercise its exclusive jurisdiction over the claims.

        {¶16} In so holding, the court noted that Ohio probate courts are courts of “‘limited

jurisdiction’” and the proceedings of those courts are limited to actions permitted by either

statute or the Constitution. Grimes at ¶ 17, quoting State ex rel. Lipinski v. Cuyahoga

Cty. Common Pleas Court, Probate Div., 74 Ohio St.3d 19, 22, 1995-Ohio-96, 655 N.E.2d

1303.    The court cited R.C. 2102.24(A)(1)(c), which states in part that the probate court

has “exclusive jurisdiction” to “direct and control the conduct and settle the accounts of

executors and administrators and order the distribution of estates.”      Under that section,

the Fourth District found that any matter relating to the administration of an estate and the

distribution of its assets is within the exclusive jurisdiction of probate court. Grimes at ¶

17.

        {¶17} The Fourth District further found that probate court has the exclusive

jurisdiction to “‘render declaratory judgments, including, but not limited to, those rendered

pursuant to section 2107.084 of the Revised Code.’” Id. at ¶ 18, quoting R.C.

2101.24(A)(1)(l).
       {¶18} R.C. 2721.05, governing declaratory judgments, provides in part that

      [a]ny person interested as or through an executor, administrator, trustee,
      guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or
      cestui que trust, in the * * * estate of a decedent * * * may have a declaration
      of rights or legal relations in respect * * * [t]o determine any question
      arising in the administration of the estate or trust, including questions of
      construction of wills and other writings.
R.C. 2721.05(C)

       {¶19} Reading R.C. 2101.24(A)(1)(l) and 2721.05(C) together, the Fourth District

held that probate court has the exclusive jurisdiction over declaratory judgment actions

relating to the administration of an estate. Grimes at ¶ 18.

       {¶20} Likewise, the Fifth Appellate District reached the same result in Sayer, 121

Ohio App.3d 329, 121 Ohio App.3d 329. There, a grandson sued his mother, who had

been the fiduciary of his deceased grandmother.     The grandson contended that under his

grandmother’s last will and testament, her assets were to be distributed upon her death to

the mother, grandson, and two other grandsons.     After the grandmother’s death, however,

the mother informed the boys that the grandmother did not have any assets and they would,

therefore, not be receiving anything.

       {¶21} The mother told the boys that their grandmother, prior to her death, had given

her (the mother) her house as a gift.     The grandson contended that, in addition to the

house, the grandmother had also owned a substantial value of stock and other assets.     The

grandson’s action was filed in probate court and contained two counts: concealment and

declaratory judgment.          The probate court dismissed the complaint for lack of

subject-matter jurisdiction.
       {¶22} The Fifth Appellate District, citing R.C. 2101.24(A)(1)(l) and 2751.05(C),

found that jurisdiction for the grandson’s claims (except for his claims for relief for fraud

and money damages) lay with the probate court.

       {¶23} Thus, on the authority of Grimes and Sayer and the statutes they relied on,

we find that the probate court is the court vested with jurisdiction to hear Patterson’s

claims.

        {¶24} In light of the above, Patterson’s sole assignment of error is overruled and
the trial court’s judgment is affirmed, but the case is remanded so that the trial court can
enter the dismissal without prejudice.

       It is ordered that appellant recover of appellees 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 Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR
