[Cite as In re Creation of Park Dist. Within Chester Twp., 2017-Ohio-4031.]
                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


IN THE MATTER OF THE
CREATION OF A PARK                                         OPINION
DISTRICT WITHIN
CHESTER TOWNSHIP                                           CASE NO. 2016-G-0082




Appeal from the Geauga County Court of Common Pleas, Probate Division, Case No. 84
PC 000139.

Judgment: Reversed and vacated.


Frank H. Scialdone and Todd M. Raskin, Mazanec, Raskin & Ryder Co., L.P.A., 100
Franklin=s Row, 34305 Solon Road, Solon, Ohio 44139; Bridey Matheney, Assistant
Prosecutor, 231 Main Street, Suite 3A, Chardon, Ohio 44024 (For Appellant C Chester
Township Board of Trustees).

James M. Gillette, City of Chardon Police Prosecutor, PNC Bank Building, 117 South
Street, Suite 208, Chardon, Ohio 44024 (For Appellee C Chester Township Park District
Board of Commissioners).



SEAN C. GALLAGHER, P.J., Eighth Appellate District, sitting by assignment.

        {¶ 1} The core of this appeal is the extent of the probate court’s jurisdiction over a

judicially created park district under R.C. Chapter 1545. The probate court invoked its own

continuing jurisdiction in a case initiated by the Chester Township Board of Trustees

(“Trustees”) in 1984 to create the Chester Township Park District (“Park District”). The

central question, as framed by the parties, is whether the probate court maintained

jurisdiction over the Trustees and the township as a political entity either through the
exercise of its plenary power to enforce the terms of the 1984 order creating the Park

District or, otherwise, through the probate court=s continuing jurisdiction over the Park

District as provided in R.C. Chapter 1545.

       {¶ 2} The May 10, 1984 order creating the Park District did not impose any

obligations or duties.   It simply created the legal entity known as the Park District,

established the territorial limits of the Park District, and noticed an intent to appoint the

original Park District Board of Commissioners (“Commissioners”). There are no terms in

that order to be enforced in perpetuity. See, e.g., Am. Motors Corp. v. Huffstutler, 61 Ohio

St.3d 343, 349, 575 N.E.2d 116 (1991) (case remanded for further proceedings including

the exercise of continuing jurisdiction in connection with enforcing the terms of a

permanent injunction). Generally in Ohio, trial courts do not maintain the power, plenary or

otherwise, to enforce the terms of a final order absent the grant of continuing jurisdiction or

an express retention of jurisdiction in the final judgment. See, e.g., Infinite Sec. Solutions,

L.L.C. v. Karam Props. II, 143 Ohio St.3d 346, 2015-Ohio-1101, 37 N.E.3d 1211, ¶ 30

(power to enforce settlement agreement must be expressly included in final judgment of

dismissal); In re Adams, 45 Ohio St.3d 219, 543 N.E.2d 797 (1989) (although domestic

relations court generally has continuing jurisdiction, statutory scheme does not include the

continuing jurisdiction to modify alimony); In re J.F., 121 Ohio St.3d 76, 2009-Ohio-318,

902 N.E.2d 19, ¶ 20. Because there was nothing to enforce in the order creating the Park

District, the Park District has focused its entire argument on the statutory grant of

continuing jurisdiction conferred on a probate court in matters involving a park district as

the basis for the probate court’s action.



                                              2
       {¶ 3} Based on the statutory framework, however, we must conclude that the

probate court exceeded its jurisdiction by declaring portions of an arm’s-length agreement

entered under R.C. 1545.14 to be invalid and imposing the costs of the master

commissioner, appointed to review the Commissioners’ conduct, against an unrelated

political entity. In light of the demonstrated confusion over a park district=s functions and

the probate court’s role within Chapter 1545, we must begin with the facts of this case as

they relate to the statutory framework within which the Park District operates.

       {¶ 4} Upon the creation of a park district, the probate court is required to appoint

three commissioners to the board whose terms expire on a rotating basis for the first three

years. R.C. 1545.05. Thereafter, each commissioner is appointed for a three-year term.

Id. Judge Frank Lavrich created the Park District and appointed the first Commissioners

on May 17, 1984. In the early years, the Trustees were responsible for soliciting volunteers

and applications for the position of Commissioner, and the probate court accepted the

Trustees’ recommendation for filling any vacancy. In September 1993, Judge Charles

Henry succeeded Judge Lavrich, and according to the record, Judge Henry followed his

predecessor=s procedure. By July 2007, the probate court began taking applications for

the position of Commissioner directly instead of filtering the applications through the

Trustees.

       {¶ 5} The creation of the Park District created a legal entity, separate and apart from

the township. However, the creation of the Park District did not automatically transfer any

land or property over which the Park District could assert control. R.C. 1545.14 expressly

provides that a park district cannot acquire or control any park, park lands, parkways,



                                              3
playgrounds, or other lands, or boulevards owned or controlled by any other public

authority unless an agreement is reached between the park district and the public authority

in possession of such lands. Id. In other words, the public authorities maintained their

ownership interests in any park land within the territorial limits of the Park District after its

creation. There is no statutory obligation for any public authority to cede ownership or

control of its park lands to a park district. A park district does not have a purpose unless

there are properties to be maintained, to be developed, or over which the park district could

assume control.     The legislature contemplated this possibility and provided for the

dissolution of a park district after a prolonged period of inactivity. R.C. 1545.38 (upon

notice that the park district has not made any expenditures or deposits of funds in five

years, the district shall be dissolved). In order to avoid this situation, the legislature

provided two mechanisms.

       {¶ 6} A park district could purchase or acquire its own property. R.C. 1545.11.

Under R.C. 1545.11, the commissioners could, but were not required to, acquire

       lands either within or without the park district for conversion into forest
       reserves and for the conservation of the natural resources of the state,
       including streams, lakes, submerged lands, and swamp lands, and to those
       ends may create parks, parkways, forest reservations, and other reservations
       and afforest, develop, improve, protect, and promote the use of the same in
       such manner as the board deems conducive to the general welfare.

The commissioners have the discretion to obtain such property through gift, purchase by

cash or installment payments, or by appropriation, which can only occur through the

manner provided in R.C. 163.01 to 163.22. Any gift of property must be approved by the

probate court. R.C. 1545.11. The Park District has not obtained any property of its own.




                                               4
       {¶ 7} The second method of obtaining a purpose for a park district is through R.C.

1545.14, which is entitled “Cooperation with other public authorities.” That section provides

that the commissioners may enter into agreements with other legislative or public

authorities in control of parks or park lands, whether within or without the park district,

either (1) to assume control of all or a portion of any existing lands or (2) to otherwise

contract or cooperate with the other public authority in connection with the “use,

development, improvement, and protection of parks or park lands.” (Emphasis added.) Id.

It is important to note the disjunctive phrasing of the options.

       {¶ 8} The commissioners of a park district do not need probate court approval

before entering any agreement under R.C. 1545.14. The agreements are left to the

discretion of the commissioners appointed to manage the park district. If the legislature

had intended for the commissioners to seek probate court approval, language similar to

sections 1545.11, 1545.12(B), and 1545.15, all of which require approval before the

commissioners undertake specific actions, could have been included in R.C. 1545.14.

State ex rel. Cordray v. Court of Claims of Ohio, 190 Ohio App.3d 161, 2010-Ohio-4437,

941 N.E.2d 93, ¶ 27 (10th Dist.) (the omission of language dictates the conclusion that the

legislature did not intend the omitted language to have any force or effect in proceedings

under the statutory section). The contracting option provides the park district with a limited

role in which the township delegates some or all of its responsibility over park lands to the

park district through an agreement.

       {¶ 9} Although it is a far better practice to define that role in writing, there is no

legislative requirement that a park district enter a written contract with the public authority; it



                                                5
may simply Acooperate with@ the other political body for the maintenance, use, and

development of the park lands. There is also no statutory requirement specifying the

degree of control over the park lands that the public authority must delegate to the park

district. According to the unambiguous terms of R.C. 1545.14, the public authority may

retain any degree of control it deems necessary in contracting or cooperating with the park

district. Regardless of which option is chosen, the park district is authorized to develop,

improve, and protect those lands as if the lands were acquired by the commissioners. Id.

        {¶ 10} The legislature also provided park districts with several options to obtain

funding. The park district may levy a dedicated tax in an amount not to exceed one-half of

one mill, but only “[a]fter the budget commission of the county in which the district is

located certifies such levy, or such modification thereof as [the budget commission]

considers advisable, to the county auditor, he shall place it upon the tax duplicate.”

(Emphasis added.) Id. Thus, it is within the commissioners’ discretion whether to seek the

dedicated tax, and even if the commissioners decide to pursue the independent source of

funding, the county budget commission must certify the tax if they consider any portion of it

advisable. Id. In this case, the Park District received the dedicated tax up until 2002.

According to the master commissioner, the township eliminated it.1 Despite the elimination

of the tax, the township provided the Park District with its necessary funding C as would be

expected considering the fact that the township still owned the properties and had an

obligation and desire to ensure the continuing vitality of the park lands. See R.C. 511.37


(1.) It is not clear from the record under what authority the township could eliminate a county tax without the
county budget commission’s approval or action. The county budget commission is responsible for making any
decisions whether to reduce or modify a tax levy of a park district. 2008 Ohio Atty.Gen.Ops. No. 08-020, at
21; R.C. 1545.20.

                                                      6
(township trustees may make contributions of money from its general fund to the park

district for the purpose of planning, acquisition, management, and improvement); 1988

Ohio Atty.Gen.Ops. No. 88-033 (interpreting R.C. 511.37 to mean that the board of a park

district does not need to seek approval of the funding terms from the probate court).

       {¶ 11} In addition to the dedicated millage, the commissioners may directly submit a

request for an additional tax levy to the voters by resolution. R.C. 1545.21. Outside of

taxes, a park district may also receive a share of the undivided local government fund as

determined by the county budget commission for the purpose of managing the park land

properties. 2008 Ohio Atty.Gen.Ops. No. 08-020, at 21-22, citing R.C. 5747.51.

       {¶ 12} In April 1985, the Park District and the Trustees negotiated an arm’s-length

agreement under R.C. 1545.14 wherein the Trustees, with “the authority and responsibility

to operate and maintain park lands within Chester Township” agreed (1) to allow the Park

District to assume control of all park lands owned by the township for a period of five years

unless either party terminates the agreement with 90 days’ advance notice; (2) that the

Park District would operate, maintain, develop, improve, and protect the park lands for the

residents of Chester Township and the public; (3) that subject to prior approval from the

Trustees, the Commissioners could (a) enter agreements with other political subdivisions

for the use and operation of the parks, (b) construct or alter permanent improvements on

the park or park lands, and (c) contract for and incur debts that could result in liens being

imposed on the township’s park land properties; and (4) that the Commissioners must

agree that no rangers or park officers shall be appointed other than police officers

employed by the township. No one disputed the terms of that agreement.



                                             7
       {¶ 13} In 1993, following the expiration of the original agreement and a short period

in which the Park District cooperated with the township to maintain the park lands without a

formal agreement, the Park District and the township negotiated a second agreement

nearly identical to the first. There were two material differences between the agreements:

(1) the 1993 agreement was for a period of five years, to renew yearly into perpetuity, but

subject to the same 90-day termination clause; and (2) the 1993 agreement was not for the

stated purpose of the Park District assuming all control over the township’s park lands.

The Park District had a more limited role. The Park District only had the contractual

authority to use, develop, improve, and protect the park lands within the township and

subject to the limitations to which the Park District agreed. No one, and certainly neither of

the real parties in interest to the agreement, challenged any aspect of the 1993 agreement

in any court of competent jurisdiction.

       {¶ 14} In the early part of 2014, an anonymously drafted “report” surfaced, entitled

“Chester Township Park District 2013 Review” (“the review”). The review questioned the

Park District’s financial affairs.   Under R.C. 1545.06, which provides that any park

commissioner may be removed at the discretion of the probate judge, the probate court

had continuing jurisdiction to sua sponte consider removing any one of the Commissioners

based on those allegations of financial misconduct. If, in exercising its grant of continuing

jurisdiction, the probate court felt it necessary to remove any Commissioner, the court was

required to provide that Commissioner with at least ten days’ notice ahead of the statutorily

mandated public hearing. R.C. 1545.06.




                                              8
       {¶ 15} Upon receiving the review, the probate court appointed Attorney Mary Jane

Trapp as the master commissioner under the court’s “fiduciary oversight authority.” During

the proceedings on the master commissioner’s report, the probate court clarified that its

jurisdiction was derived from R.C. 2101.06 and R.C. 1545.06, although no individual

Commissioner was ever put on notice that the court intended to remove any one of them

from office.

       {¶ 16} A master commissioner’s duties under R.C. 2101.06 should not be confused

with the probate court’s authority to appoint an investigator as statutorily provided in other

probate matters, such as guardianship proceedings. R.C. 3109.04(C) (a probate court can

order an investigation, but the investigator must be made available for cross-examination at

trial); R.C. 2111.042 (a probate court may appoint an investigator to review the

guardianship of a minor). The statute, R.C. 2101.06, unlike other provisions in the Revised

Code dealing with the authority of a probate court, does not authorize the trial court to

appoint an investigator. See, e.g., R.C. 2151.28(I) (a guardian ad litem’s functions include

“investigation, mediation, monitoring court proceedings and monitoring services provided

for the child”). Generally, if a court appoints an investigator when statutorily authorized to

do so, “[t]o protect the parties’ due process rights, the trial court must make [the

investigator] available for direct and cross-examination.” In re A.L., 6th Dist. Lucas No.

L-10-1355, 2011-Ohio-2569, ¶ 35. The legislature=s decision to provide statutory authority

for the probate court to investigate in other proceedings but omit such language from the

statute authorizing the appointment of a master commissioner must be presumed to be for

a purpose. State ex rel. Cordray, 190 Ohio App.3d 161, 2010-Ohio-4437, 941 N.E.2d 93,



                                              9
at ¶ 27 (10th Dist.), citing State ex rel. Fink v. Registrar, Ohio Bur. of Motor Vehicles, 12th

Dist. Butler No. CA98-02-021, 1998 Ohio App. LEXIS 4261 (Sept. 14, 1998); and Metro.

Secs. Co. v. Warren State Bank, 117 Ohio St. 69, 76, 158 N.E. 81 (1927).

       {¶ 17} The appointment of a master commissioner under R.C. 2101.06 is analogous

to the appointment of a magistrate. See, e.g., State ex rel. Estate of Hards v. Klammer,

110 Ohio St.3d 104, 2006-Ohio-3670, 850 N.E.2d 1197, ¶ 3 (appointed guardian filed suit

on behalf of ward, and master commissioner appointed under R.C. 2101.06 and Civ.R. 53

to resolve motions and applications regarding the dispute); R.C. 2101.31. The master

commissioner resolves issues of fact. R.C. 2101.31. After a master commissioner has

been “properly appointed by the probate court,” she has a statutory duty to take sworn

evidence and render a report just as a magistrate would issue a magistrate’s decision

subject to court approval. State ex rel. Estate of Hards v. Klammer, 11th Dist. Lake No.

2004-L-189, 2005-Ohio-2655, ¶ 21. The parties have the right to file objections as any

party would under Civ.R. 53 or its equivalent. R.C. 2101.06 (“[t]he report may be excepted

to by the parties and confirmed, modified, or set aside by the court.”).

       {¶ 18} The probate court in this case tasked the master commissioner with

addressing the issues raised in the review and to determine, examine, and either resolve or

provide the probate court with a proposed resolution. As the probate court requested, and

the master commissioner understood, her task was to investigate the allegations in the

review and provide recommendations for the “best practices” under which the Park District

should operate.




                                              10
       {¶ 19} Complicating matters, the master commissioner’s report was not filed as part

of the record, nor did the probate court require such. It appears that the report was

provided to the probate court, published on the court’s website, but never entered into the

record of the proceedings. The journal entry “confirming” the report incorporates the report

by reference, but the report was not attached to the judgment entry either.

       {¶ 20} Both parties have invited us to consider the master commissioner’s report as

it was considered by the Ohio Supreme Court in State ex rel. Chester Twp. v. Grendell,

147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683. Although we recognize that the Ohio

Supreme Court reviewed the report as evidence in the original writ action and not upon the

probate court’s record, if any error exists in considering the report for the purposes of this

appeal, such an error was invited by agreement among the parties. Further, if the report is

not considered, there was no evidence before the probate court upon which the court could

have acted. The probate court’s orders are all premised on the findings and conclusions

within the master commissioner’s report.

       {¶ 21} In the master commissioner’s report, the master commissioner determined

upon her “research and discussions with those involved with the park district’s formation”

that the intent behind the Park District’s creation was to keep the township politics out of

the park district. The master commissioner ultimately concluded, through interviews and

research, that the Park District and its employees had not committed any knowing

violations of Ohio law. Several policy and procedure “recommendations” were also

provided. No sworn testimony was taken, nor did the probate court require the master

commissioner to do so or resolve any factual disputes. After submitting the report, the



                                             11
probate court made several findings of facts and conclusions of law but otherwise adopted

the master commissioner’s unfiled report. Judgment Entry Findings of Fact Conclusions of

Law, November 26, 2014 (“Confirmation Order”).

       {¶ 22} At the same time the master commissioner was reviewing the allegations

against the Commissioners regarding financial decisions, a state agency was conducting a

formal audit of the Park District’s finances relating to the same allegations. The Park

District is required to present its yearly budget to the Geauga County Budget Commission

and to the township trustees in order to comply with R.C. 5705.36(A)(1). As part of that

process, the township fiscal officer had requested a state audit of the Park District that was

under way as of the date of the master commissioner’s report. It appears the probate court

appointed the master commissioner to investigate that which other executive agencies

were in the process of reviewing. The probate court could not have been aware of the

audit at the time it appointed the master commissioner, but there was no consideration of

the separate audit after the fact was disclosed in the master commissioner’s report. The

outcome of the audit is not in the record before us.

       {¶ 23} In the Confirmation Order, the probate court went further than reviewing the

conduct of the Commissioners and specifically concluded that (1) the Trustees had

terminated the dedicated millage for the Park District, directly contravening the

fundamental purpose for creating the Park District; (2) the 1993 agreement addressing the

Trustees’ contractual right to review any construction or alteration of any permanent

improvement on the park lands impeded the Park District’s separate purpose; (3) the

Commissioners had the sole statutory authority to levy the millage under R.C. 1545.20; (4)



                                             12
the Trustees must provide funding until the Park District sets up its independent funding

through dedicated millage; and (5) the Park District, the Commissioners, and the Park

District’s employees must comply with the recommendations made by the master

commissioner regarding the Abest practices@ for operating a park district.

       {¶ 24} The Trustees appealed the Confirmation Order, but the original appeal was

dismissed for the want of jurisdiction. The Confirmation Order had not finalized the actual

costs associated with the master commissioner’s investigation, even though the parties

were ordered to split the undetermined costs with the probate court. In re Creation of Park

Dist. Within Chester Twp., 11th Dist. Geauga No. 2014-G-3242, 2015-Ohio-1210, ¶ 7.

Without the imposition of a specific cost, the probate court’s decision was not a final one

within the meaning of R.C. 2505.02.

       {¶ 25} After the appeal was dismissed, the Trustees sought a writ of prohibition from

the Ohio Supreme Court. In denying the writ, it was held that the Trustees “clearly have an

adequate remedy in the ordinary course of the law by way of appeal.” Grendell, 147 Ohio

St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683, at ¶ 21. Because the probate court did not

patently and unambiguously lack jurisdiction over the potential removal of the

Commissioners, the writ had to be denied. Id. at ¶ 30. There was an express reluctance to

circumvent the appellate process. Id. at ¶ 31. Indeed, it has been continually maintained

that a “court having general subject-matter jurisdiction can determine its own jurisdiction,

and a party contesting that jurisdiction has an adequate remedy by way of appeal.” State

ex rel. Huntington Natl. Bank v. Kontos, 145 Ohio St.3d 102, 2015-Ohio-5190, 47 N.E.3d

133, ¶ 19, citing State ex rel. Shumaker v. Nichols, 137 Ohio St.3d 391, 2013-Ohio-4732,



                                            13
999 N.E.2d 630, ¶ 10, and State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264,

2008-Ohio-3838, 893 N.E.2d 485, ¶ 5.

       {¶ 26} The probate court believed it maintained continuing jurisdiction over the

Trustees based on the Ohio Supreme Court’s statement that

       [t]he probate court’s authority to create park districts and its plenary power
       “to dispose fully of any matter” that is properly before it surely includes the
       ability to issue orders to enforce the entry creating the park district, including
       orders that impose duties on those interfering with the park district’s
       purposes.

(Emphasis added.) Id. at ¶ 30. As we have already discussed, the 1984 order creating the

Park District imposed no prospective obligations on any parties, much less the Trustees or

the township. Although there is no question the probate court has some plenary power

under its statutory grant of continuing jurisdiction, that power is not unbridled. In this

regard, it is important to understand what was decided in Grendell and what was not. The

case was an original action for a writ of prohibition. The only matter to be resolved was

whether the probate court patently and unambiguously lacked jurisdiction over a specific

matter. Salloum v. Falkowski, 11th Dist. Lake No. 2015-L-124, 2016-Ohio-5005, ¶ 32

(Grendell, J., concurring) (in a writ of prohibition action, the court is not “called upon to

decide whether the lower court’s exercise of jurisdiction over the underlying case is proper,

only whether there is a ‘patent and unambiguous’ lack of jurisdiction”). It was not an action

to determine whether the probate court possessed jurisdiction over any particular issue.

Id., citing Grendell at ¶ 31 (it was only decided whether the probate court patently and

unambiguously lacked jurisdiction, and after concluding that it did not, the court was

unwilling “to issue a writ and circumvent the appellate process”).



                                              14
       {¶ 27} Nevertheless, in May and June 2016, the probate court entered two

additional orders citing the Ohio Supreme Court’s obiter dictum as the basis of its

jurisdiction to proceed. In the May order, the probate court found certain provisions in the

1993 agreement to be in conflict with the Park District’s authority and ordered the parties to

negotiate a new agreement. In the June judgment entry, the probate court further held (1)

that the 1993 agreement between the Park District and the township infringes on the Park

District’s authority to assume all control of all park lands within the territorial limits of the

Park District, allegedly conflicting with R.C. Chapter 1545, and (2) that the Park District and

the township must bear 75 percent of the $40,000 cost of the master commissioner under

R.C. 2101.06 and 2101.07.

       {¶ 28} The fees were imposed against the township under the belief that the probate

court has a plenary power to prevent others from interfering with the Park District’s

purposes under R.C. 2101.24(C), and as a result, the court could order any such party to

pay the costs of investigating the Park District’s operations despite the fact that those

parties had no control over the Park District’s operational management. Further, the

probate court held that the creation of the Park District meant that all the “township’s lands

used for township park purposes, regardless of the record ownership, are under the

jurisdiction of the Park Board” at the expense of the title owner’s property rights and R.C.

1545.14, which expressly provides any public authority the ability to delegate some

authority to a park district without surrendering all control over the park lands. In light of its

sua sponte findings, the probate court concluded that the portions of the 1993 agreement

that vested any control over the park lands with the Trustees were not enforceable, and the



                                               15
township was “permanently restrained and enjoined” from enforcing or acting on any of

those provisions that preserved the township’s authority over its own park lands.

         {¶ 29} This appeal followed in which the Trustees claim the probate court exceeded

its jurisdiction by sua sponte voiding the terms of a lawful agreement entered under R.C.

1545.14 in the Confirmation Order and the June 2016 order and erred by imposing the

master commissioner=s fees as costs against the township.

         {¶ 30} At the most basic of levels, the probate court’s orders all depend on the

proper invocation of the court’s continuing jurisdiction over the Park District. In order for a

court to exercise any judicial power or resort to its plenary power at law, it must have

continuing jurisdiction over the subject matter of the dispute. State ex rel. McGinty v.

Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13. A

court in want of jurisdiction cannot exercise its judicial power by entering any judgment or

order in furtherance of a case. Id. at ¶ 27. Further, a court with jurisdiction to act is limited

to reviewing only those issues within the scope of that jurisdiction. Mitchell v. Mitchell, 11th

Dist. Portage No. 2007-P-0023, 2008-Ohio-833, ¶ 67 (the trial court, although possessing

jurisdiction over some of the issues, exceeded its jurisdiction by ordering the manner in

which an asset should be distributed and that portion of the order must be vacated); see

also Lisboa v. Karner, 167 Ohio App.3d 359, 2006-Ohio-3024, 855 N.E.2d 136; Tanagho v.

Tanagho, 10th Dist. Franklin No. 92AP-1190, 1993 Ohio App. LEXIS 1201, 10 (Feb. 23,

1993).

         {¶ 31} “Probate courts are courts of limited jurisdiction and may hear only those

types of cases expressly authorized by the applicable statutes.” Swift v. Gray, 11th Dist.



                                               16
Trumbull No. 2007-T-0096, 2008-Ohio-2321, ¶ 37-39, citing Rudloff v. Efstathiadis, 11th

Dist. Trumbull No. 2002-T-0119, 2003-Ohio-6686, ¶ 6, and Schucker v. Metcalf, 22 Ohio

St.3d 33, 34, 488 N.E.2d 210 (1999). A court cannot create its own jurisdiction C it only

has “such jurisdiction as may be provided by law.” Ohio Constitution, Article IV, Section

3(B)(2). “ ‘The existence of the court’s own subject-matter jurisdiction in a particular case

poses a question of law which the court has the authority and responsibility to determine.’ “

Id., quoting Burns v. Daily, 114 Ohio App.3d 693, 701, 683 N.E.2d 1164 (11th Dist.1996).

Appellate courts “review that determination de novo without any deference to the

conclusion reached below.” Id., citing Burns.

       {¶ 32} R.C. 2101.24 is silent with respect to the probate court’s jurisdiction over park

districts. Instead, R.C. 2101.24(A)(2) provides that probate courts have jurisdiction if

another section of the Revised Code expressly confers jurisdiction over that subject matter

upon the probate court and no other section of the Revised Code confers jurisdiction over

that subject matter upon any other court or agency. A probate court’s jurisdiction over a

park district is, therefore, solely governed by R.C. Chapter 1545. That chapter confers

upon the probate court continuing jurisdiction over a park district case in order

       (1) to appoint the park district’s board of commissioners, R.C. 1545.05(A);

       (2) to expand the board to five members upon the park district’s request,
       R.C. 1545.05(B);

       (3) to remove any commissioners after providing a hearing and no less than
       10 days’ notice of the intent to do so, R.C. 1545.06 (and this may include the
       power to investigate certain conduct related to any one commissioner);

       (4) to approve the park district’s acceptance of donations of money or
       property, R.C. 1545.11;



                                             17
       (5) to approve the sale of lands if the lands are within the county of the
       probate court’s territorial jurisdiction, R.C. 1545.12(B);

       (6) to approve the annexation of any territory within the probate court’s
       territorial jurisdiction, R.C. 1545.15; and

       (7) to dissolve the park district if the results of a certified vote are presented
       to the probate court or the park district is inactive for a period of five years,
       R.C. 1545.36 and 1545.38.

The probate court’s continuing jurisdiction as set forth in R.C. Chapter 1545 is narrow. See

Grendell, 147 Ohio St.3d 366, 2016-Ohio-1520, 66 N.E.3d 683, at ¶ 23 (probate court’s

jurisdiction over the park district is derived from R.C. Chapter 1545 and is limited to

dissolving the park district or appointing and removing commissioners, and the only role the

township trustees have is in applying for the creation of the park district). Importantly, the

probate court’s continuing jurisdiction is limited to certain acts or questions involving the

park district’s board of commissioners or over the commissioners themselves as it relates

to the court’s power to appoint and remove. There are no other statutory sections

providing the probate court with (1) a general supervisory power over park district matters

or (2) any additional jurisdiction over a party or entity other than the park district’s board of

commissioners.

       {¶ 33} Although the probate court has plenary power at law and in equity over some

matters, those matters must be “properly before the court,” i.e., based on the grant of

jurisdiction.   R.C. 2101.24(C) is not an independent source of the probate court’s

jurisdiction. Likewise, R.C. 2101.06 is not an independent source either. Klammer, 110

Ohio St.3d 104, 2006-Ohio-3670, 850 N.E.2d 1197, at ¶ 3. In that latter section, the

legislature unambiguously provided that a probate court Amay appoint a special master



                                               18
commissioner in any matter pending before the judge.@ (Emphasis added.) R.C. 2101.06.

As the Ohio Supreme Court noted in Klammer, if a probate court has basic statutory

jurisdiction, such as to appoint and remove guardians, then that court also has basic

statutory authority to appoint a special master commissioner under R.C. 2101.06 to carry

out its fact-finding function. Id. Thus, in order to have jurisdiction to appoint a master

commissioner, there must be a matter properly pending before the probate court at the

time.   Id.   Both R.C. 2101.24(C) and 2101.06 are confined by the probate court’s

jurisdiction; neither expands it. A court must possess jurisdiction over the matter before

exercising its plenary power. McGinty, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88.

        {¶ 34} In this case, the probate court’s continuing jurisdiction over the park district

matter is solely dependent on R.C. Chapter 1545. In this regard, the probate court had

jurisdiction to consider the removal of the Commissioners. R.C. 1545.06. As a result, the

appointment of the master commissioner to take testimony and report the testimony with

respect to the potential removal of a Commissioner is not the issue.

        {¶ 35} The issue before us is whether the probate court exceeded the scope of its

continuing jurisdiction to consider removing any one of the Commissioners, (1) by imposing

costs upon the township as a separate legal entity C incurred through the appointment of

the master commissioner for the express purpose of investigating allegations of financial

misconduct within the Park District and to provide consulting services to the Park District;

and (2) by invalidating a contractual agreement entered between the Park District and the

township defining the scope of the Park District’s involvement with the township’s park

lands. Mitchell, 11th Dist. Portage No. 2007-P-0023, 2008-Ohio-833, at ¶ 67.



                                              19
       {¶ 36} The grant of continuing jurisdiction under Revised Code Chapter 1545.06 is

limited. The probate court exceeded its continuing jurisdiction to remove a commissioner

in appointing the master commissioner to investigate all aspects of the Park District=s

operations and its contractual relationship with the township and then impose those costs

upon the township, a separate and distinct political body. The probate court also lacked

jurisdiction to sua sponte enjoin the township from enforcing the negotiated contract terms

of the 1993 agreement. The probate court’s jurisdiction, as applicable in this case, is

statutorily limited to determining whether to remove any of the Commissioners. More

simply stated, the legislature has not provided the probate court with a general grant of

fiduciary oversight over the Park District. Grendell, 147 Ohio St.3d 366, 2016-Ohio-1520,

66 N.E.3d 683, at ¶ 27 (the legislature did not provide probate courts with a general

supervisory power over park districts). Although we recognize that the probate court judge

acted with good intentions in seeking the master commissioner’s report before acting on

the allegations in the review and that the master commissioner herself acted in good faith,

nevertheless, there are limitations as to the scope of the probate court’s jurisdiction under

the statute.

       {¶ 37} Because the trial court exceeded the grant of continuing jurisdiction, the

Confirmation Order and the June 2016 order were not within the purview of the probate

court’s plenary power over matters properly before it under R.C. 2101.24(C). Those orders

must be vacated. Once the probate court concluded that removal of the commissioners

was unnecessary based on the master commissioner’s report, the inquiry should have

terminated. No other action was authorized by the legislature, and the township is not a



                                             20
party over which the probate court has continuing jurisdiction C the township has no

authority to remove or appoint any of the Commissioners. The master commissioner’s

fees imposed as costs against the township were improper.

       {¶ 38} None of this is to suggest that the Park District is without protection or

recourse with respect to others interfering with the Park District’s operations or in resolving

contract disputes over agreements entered under R.C. 1545.14 C the two primary areas of

concern upon which the probate court acted.

       {¶ 39} As a separate and distinct political entity, the Park District is capable of suing

and being sued in a court of competent jurisdiction. Marrek v. Cleveland Metroparks Bd. of

Commrs., 9 Ohio St.3d 194, 195, 459 N.E.2d 873 (1984); R.C. 1545.07; see

also Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 37, 426 N.E.2d 784

(1981). If a contract dispute erupts under any agreement entered under R.C. 1545.14, the

Park District is authorized to file a breach of contract or declaratory judgment action to

determine its rights and obligations under the agreement. Buckman-Peirson v. Brannon,

159 Ohio App.3d 12, 2004-Ohio-6074, 822 N.E.2d 830, ¶ 12 (2d Dist.); Bd. of Twp. v. Bd.

of Park Commrs., 4th Dist. Pickaway No. 80 CA 21, 1981 Ohio App. LEXIS 13397, 3 (Nov.

20, 1981). A probate court, however, lacks jurisdiction to enter declaratory judgments over

contract disputes. Brannon. (R.C. 2101.24 does not grant a probate court jurisdiction to

resolve breach of contract actions or a declaration of rights under an enforceable contract).

       {¶ 40} Further, if the Commissioners feel the need to protect the Park District from

outside interference, R.C. 1545.09(A) mandates that the Commissioners adopt bylaws and

rules as they deem advisable for “the preservation of good order within and adjacent to



                                              21
parks and reservations of land, and for the protection and preservation of the parks,

parkways, and other reservations of land under its jurisdiction and control and of property

and natural life therein.” If the Commissioners enact bylaws to preclude others from

interfering with the good order and maintenance of the park district, there are statutory

procedures and penalties available for relief that the park district could pursue in a court of

competent jurisdiction. Id.; R.C. 1545.99; see, e.g., Cleveland Metro. Park Dist. v. Fladda,

63 Ohio Misc.2d 110, 112, 619 N.E.2d 1244 (M.C.1993) (although its authority is

constitutionally vague, the park district had authority to enact rules governing the use of the

park lands subject to the penalty restrictions provided by statute); In re DeGeronimo, 8th

Dist. Cuyahoga No. 40089, 1979 Ohio App. LEXIS 11282, 7 (June 28, 1979) (the board of

park commissioners has the power to adopt rules and regulations for the preservation of

order within the park lands under its control). Much like the Commissioners’ unilateral

ability to contract under R.C. 1545.14, the legislature has not required the Commissioners

to seek probate court approval before enacting any bylaws.

       {¶ 41} Despite the limitations on the scope of the probate court’s continuing

jurisdiction, the Park District, as a separate and distinct political entity, has statutory

mechanisms at its disposal to protect its rights and those of the public it serves.




                                              22
[Cite as In re Creation of Park Dist. Within Chester Twp., 2017-Ohio-4031.]
        {¶ 42} We sustain the two assignments of error.2 Although the probate court

possessed continuing jurisdiction to consider removing any of the Commissioners as the

current proceedings originated, the scope of that jurisdictional grant of authority was

limited.     The probate court exceeded its jurisdiction by imposing the master

commissioner=s fees as costs against an unrelated political agency and by considering the

validity of a contractual agreement entered between two separate and distinct political

entities. We reverse and vacate the Confirmation Order and June 2016 order.

        {¶ 43} It is ordered that appellant recover from appellee costs herein taxed.

        {¶ 44} The court finds there were reasonable grounds for this appeal.

        {¶ 45} It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

        {¶ 46} A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


WILLIAM A. KLATT, J., Tenth Appellate District, sitting by assignment,

PATRICK M. MCGRATH, J., Retired, Tenth Appellate District, sitting by assignment,

concur.




(2.) The Trustees had filed a motion to stay the lower court’s proceedings following the filing of this appeal.
During the appellate proceedings, the Trustees supplemented the record with a decision from Judge John J.
Lohn, who sat by assignment in the probate proceedings after Judge Timothy J. Grendell recused himself
from the proceedings, which occurred while this case was on appeal and was outside the scope of our review.
The decision issued by Judge Lohn appears to have resolved the issues raised in the motion to stay, and we
deny it as moot.
