[Cite as Abraitis v. Gallagher, 2014-Ohio-2987.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101037



         SARUNAS V. ABRAITIS, EXECUTOR
   OF THE ESTATE OF VLADA SOFIJA STANCIKAITE
                    ABRAITIS
                                                                 RELATOR

                                                   vs.

                       LAURA J. GALLAGHER, JUDGE
                                                                 RESPONDENT




                                      JUDGMENT:
                                  COMPLAINT DISMISSED


                                           Writ of Prohibition
                                           Motion No. 473884
                                           Order No. 475487

        RELEASE DATE: July 2, 2014
ATTORNEY FOR RELATOR

Catherine M. Brady
4417 W. 189th Street
Cleveland, Ohio 44135

ATTORNEYS FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor

By: Charles E. Hannan
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Relator, Sarunas V. Abraitis, in his individual capacity and his capacity as

Executor of the Estate of Vlada Sofija Stancikaite Abraitis1 (collectively referred to as

“Abraitis” or relator herein), filed a complaint seeking a writ that prohibits respondent,

Judge Laura J. Gallagher, from acting in the matter of Vivian Abraitis-Newcomer,

Personal Representative of the Estate of Vytautas T. Abraitis v. Sarunas V. Abraitis,

Cuyahoga C.P. Probate No. 2014 ADV 19500 (the “Probate Court Action”), based on an

alleged lack of subject matter jurisdiction. Respondent has filed a motion to dismiss that

the relator has opposed. The respondent’s motion is granted for the reasons that follow.

                                            Facts

      {¶2} Relator is the fiduciary for the Estate of his mother, Vlada Sofija

Stancikaite   Abraitis   (“Vlada”),   who    died   on   December     16,   2008.   Vivian

Abraitis-Newcomer (“Newcomer”) is the fiduciary for the estate of Vytautas T. Abraitis

(“Vytautas”), who was relator’s brother and also Vlada’s son.2

      {¶3} Vlada’s will, dated June 30, 1978, was admitted to probate on October 4,

2011. Relator and Vytautas were the sole and equal beneficiaries under that will because


      1
       Relator was appointed as fiduciary of Vlada’s estate in In re Estate of Vlada
Sofija Stancikaite Abraitis, Cuyahoga C.P. Probate No. 2011 EST 172533 on
October 5, 2011, vacated December 16, 2013, and appointed December 16, 2011.
      2
       The father of both relator and Vytautas was Vincas Abraitis (“Vincas”) who
died on April 27, 1992.
Vincas had predeceased Vlada.         Relator indicates that efforts to make an initial

disbursement from Vlada’s estate to Vytautas were either refused by him or “barred by”

Newcomer. Vytautas died on November 13, 2013, while his mother’s estate was still

being administered. A second will, dated January 8, 1993, was admitted to probate on

December 12, 2013, approximately one month after Vytautas died and five years after

Vlada had died. Relator is the sole beneficiary under this later admitted will, provided he

survived Vlada by 30 days.

       {¶4} The Probate Court Action, filed on January 13, 2014, involves a complaint

filed on behalf of Vytautas’s estate for a will contest and declaratory judgment, which

petitions the court for relief, including a request for an order to set aside the alleged Last

Will and Testament of Vlada Sofija Abraitis, dated January 8, 1993, as void and a

declaration that a certain survivorship deed is invalid. In addition to being the personal

representative for Vytautas’s estate, Newcomer is also the former wife of Vytautas and

the sole beneficiary of his estate. Vytautas and Newcomer did not have any children

together. Newcomer later married David Fuller Newcomer (“David”). Relator avers

that Vytautas moved to Florida in 2006 to help care for David after a household accident.

Vytautas reportedly lived with the Newcomers and paid them rent until he died.

       {¶5} Relator commenced this action asserting that the probate court lacks

jurisdiction to act in the Probate Court Action because, he maintains, Newcomer is

without standing to maintain it.

                                          Analysis
       {¶6} In order for this court to issue a writ of prohibition, relator is required to

demonstrate each prong of the following three-part test: (1) respondent is about to

exercise judicial power; (2) the exercise of judicial power by respondent is not authorized

by law; and (3) there exists no other adequate remedy in the ordinary course of the law.

State ex rel. Florence v. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003, ¶

14. In addition, prohibition does not lie, if relator has or had an adequate remedy in the

ordinary course of the law, even if the remedy was not employed. State ex rel. Lesher v.

Kainrad, 65 Ohio St.2d 68, 417 N.E.2d 1382 (1981); State ex rel. Sibarco Corp. v. Berea,

7 Ohio St.2d 85, 218 N.E.2d 428 (1966).

       {¶7} Prohibition does not lie unless it clearly appears that the court possesses no

jurisdiction of the cause that it is attempting to adjudicate or the court is about to exceed

its jurisdiction. State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941).

Also, prohibition will not issue to prevent an erroneous judgment, or serve the purpose of

an appeal, or to correct errors committed by the lower court in deciding questions within

its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90

N.E.2d 598 (1950). Furthermore, prohibition should be used with great caution and not

issue in doubtful cases. State ex rel. Merion v. Tuscarawas Cty. Court of Common

Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940).

       {¶8} However, when a court is patently and unambiguously without jurisdiction

to act, the existence of an adequate remedy at law will not prevent the issuance of a writ

of prohibition. Zitter, 106 Ohio St.3d 87, 2005-Ohio-3804, 831 N.E.2d 1003, ¶ 16.
Nevertheless, absent a patent and unambiguous lack of jurisdiction a court possessing

general jurisdiction of the subject matter of an action has the authority to determine its

own jurisdiction. Id. at ¶ 15. A party challenging the court’s jurisdiction possesses an

adequate remedy at law through an appeal from the court’s judgment that it possesses

jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty.

Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997); State ex rel.

Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 1992-Ohio-132, 597 N.E.2d 116.

Finally, this court possesses discretion in issuing a writ of prohibition. State ex rel.

Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

       {¶9} Relator maintains that respondent lacks subject matter jurisdiction to act in

the Probate Court Action. Specifically, he maintains that respondent patently and

unambiguously lacks jurisdiction based on Newcomer’s alleged lack of standing.

Respondent has filed a motion to dismiss on the basis that the probate court has the

statutory and exclusive jurisdiction to determine the action and maintains that relator has

an adequate remedy at law.

       {¶10} The probate court is a court of limited jurisdiction and its proceedings are

restricted to those permitted by statute and by the constitution. State ex rel. Lee v.

Trumbull Cty. Probate Court, 83 Ohio St.3d 369, 372, 700 N.E.2d 4 (1998). Newcomer

commenced the Probate Court Action to contest a will and obtain a declaratory judgment.

 Relator does not dispute that the court has basic statutory jurisdiction over the action

pursuant to R.C. 2101.24(A)(1)(p) and R.C. 2101.24(A)(1)(l).
       {¶11} However, relator asserts that Newcomer lacks standing to bring the action.

Respondent conversely maintains that because Newcomer is arguably an interested

person, jurisdiction is not patently and unambiguously lacking and, therefore, a writ

cannot be issued because there is an adequate remedy at law.

       {¶12} Relator first maintains that respondent has not adequately established the

probate court’s jurisdiction to act with regard to each claim in the Probate Court Action.

However, the declaratory judgment and the will contest are part of the same complaint

and, with regard to Newcomer’s standing, they are interrelated and involve a similar

factual analysis. Both with regard to the declaratory judgment and the will contest, the

parties focus on debating whether Newcomer is an interested party within the context of

the applicable statutes.

       {¶13} R.C. 2721.05 provides:

       Any 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 administration of a trust, or of the estate of a
       decedent, an infant, an incompetent person, or an insolvent person, may
       have a declaration of rights or legal relations in respect thereto in any of the
       following cases:

       (A) To ascertain any class of creditors, devisees, legatees, heirs, next of kin,
       or others;

       (B) To direct the executors, administrators, trustees, or other fiduciaries to
       do or abstain from doing any particular act in their fiduciary capacity;

        (C) To determine any question arising in the administration of the estate or

       trust, including questions of construction of wills and other writings.

       {¶14} R.C. 2107.71(A) provides:
       (A) A person interested in a will or codicil admitted to probate in the
       probate court that has not been declared valid by judgment of a probate
       court pursuant to section 2107.084 of the Revised Code or that has been
       declared valid by judgment of a probate court pursuant to section 2107.084
       of the Revised Code but has been removed from the possession of the
       probate judge, may contest its validity by filing a complaint in the probate
       court in the county in which the will or codicil was admitted to probate.

       {¶15} “An interested party has been defined as: ‘any person who has such a direct,

immediate and legally ascertained pecuniary interest in the devolution of the testator’s

estate as would be impaired or defeated by the probate of the will, or be benefitted by

setting aside the will * * *.’” In re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264,

2011-Ohio-1097, ¶ 12, citing, York v. Nunley, 80 Ohio App.3d 697, 610 N.E.2d 576 (8th

Dist.1992), quoting Bloor v. Platt, 78 Ohio St. 46, 49-50, 84 N.E. 604 (1908).

       {¶16} Newcomer is the fiduciary of Vytautas’s estate and, under Ohio law, “an

administrator of an estate functions in a fiduciary capacity and, pursuant to R.C. 2113.25,

he has a duty to collect all of the assets of the estate.” In re Estate of Stanley, 6th Dist.

Erie No. E-83-25, 1984 Ohio App. LEXIS 9297 (Mar. 9, 1984) (estate administrator had

a duty to pursue uninsured motorist claim on behalf of the estate); see also Jelke v.

Goldsmith, 52 Ohio St. 499, 40 N.E. 167 (1895), paragraph one of the syllabus (“An

administrator de bonis non has the right and power to sue for and recover the assets of the

estate wherever found.”) Secondly, if Vytautas is entitled to inherit from his mother’s

estate, Newcomer, as the sole beneficiary of his estate, will ultimately individually

benefit. Relator indicates that Newcomer has filed some documents in the Probate Court

Action in her representative capacity, while other filings designate her in an individual
capacity.   Notably, relator also contends in opposition to respondent’s motion that

Vytautas waived his direct pecuniary interest in the estate by allegedly refusing an initial

distribution. This, however, would support a finding that Vytautas’s estate has or had a

direct pecuniary interest in the Vlada’s estate and would leave the issue of waiver for

determination by the probate court. Finally, relator has not cited any case where a writ of

prohibition was issued under any factually analogous circumstances.           Accordingly,

relator has not established that respondent is patently and unambiguously without

jurisdiction to act in the Probate Court Action.         Respondent has basic statutory

jurisdiction over the Probate Court Action and can properly determine whether

Newcomer has standing to pursue the action.

       {¶17} “We need not rule on the merits of [these jurisdictional claims], because our

duty is limited to determining whether jurisdiction is patently and unambiguously

lacking.” Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856,

¶ 45, quoting Zitter, 106 Ohio St.3d 87, 2005- Ohio-3804, 831 N.E.2d 1003, ¶ 28.

Relator can pursue an appeal of the trial court’s ruling on Newcomer’s standing and,

therefore, has an adequate remedy at law. Because Newcomer has an adequate remedy at

law by way of appeal, which is not contested, relief through an original action is

inappropriate. E.g., In re Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097; see

also State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, ¶

2.

       {¶18} Respondent’s motion is granted.
      {¶19} Relator to pay costs. The court directs the clerk of courts to serve all

parties with notice of this judgment and its date of entry upon the journal as required by

Civ.R. 58(B).

      {¶20} Complaint dismissed.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
