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Mollie Florkey, [An Adjudicated Incompetent Adult, By v. James Malott

September 30, 2011

MOLLIE FLORKEY, [AN ADJUDICATED INCOMPETENT ADULT, BY NEXT-BEST-FRIEND/ DAUGHTER JANE BRANSON AS WELL AS JANE BRANSON INDIVIDUALLY,]*FN1 PLAINTIFFS-APPELLANTS,
v.
JAMES MALOTT, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Kline, J.:

Cite as Florkey v. Malott,

DECISION AND JUDGMENT ENTRY

{¶1} Jane Branson (hereinafter "Branson"), appeals the judgment of the Highland County Court of Common Pleas, which dismissed her complaint under Civ.R. 12(B)(6) and Civ.R. 17(A). Branson describes herself as the "next-best-friend/daughter" of Mollie Florkey (hereinafter "Florkey"), and Branson brings this appeal both on behalf of Florkey and herself individually.

{¶2} James Malott (hereinafter "Malott") is Florkey's guardian, and Branson filed the present suit against Malott. Branson's complaint seeks two types of relief. First, Branson seeks relief on Florkey's behalf. And second, Branson seeks to have Malott removed as Florkey's guardian. To the extent that Branson seeks relief on Florkey's behalf, we find that Branson is not the real party in interest. Therefore, the trial court properly dismissed these claims under Civ.R. 12(B)(6) and Civ.R. 17(A). The trial court, however, did not have jurisdiction to hear Branson's guardian-removal claim. Therefore, we remand this matter and instruct the trial court to transfer Branson's guardian-removal claim to the probate court. For these reasons, we affirm, in part, and reverse, in part, the trial court's judgment.

I.

{¶3} Mollie Florkey is Branson's mother. In a prior case, Branson sought to be appointed as Florkey's guardian, but the probate court appointed Malott instead. See In re Guardianship of Florkey, Highland App. No. 07CA22, 2008-Ohio-4994 (hereinafter "Florkey I").

{¶4} On December 7, 2010, Branson filed a pro se complaint against Malott.

Branson referred to herself as Florkey's "next-best-friend/daughter" and made claims against Malott on Florkey's behalf. In her complaint, Branson alleged that Malott acted under "the auspices of [a] fraudulent POA and fraudulent guardianship appointment[.]" Branson further claimed that Malott violated both Florkey's constitutional rights and Florkey's rights under the Americans With Disabilities Act. For these reasons, Branson asked (1) that Malott's Power of Attorney be cancelled and (2) that Malott "be made to account honestly and fully for his acts, conducts and financial dealings under the POA document, and that an award of unspecified damages be awarded to [Florkey] and her estate for all wrongs and unauthorized acts, conducts and dealings which either benefited the defendant and worked a damage to [Florkey] and her estate."

{¶5} Branson's complaint also alleges that Malott acquired real property from Florkey for "grossly inadequate consideration." As a result, Branson included an action to quiet title under R.C. 5303.01. Essentially, Branson asked the trial court to return the real property to Florkey.

{¶6} On January 5, 2011, Malott filed motions to dismiss under Civ.R. 12(B)(6) and Civ.R. 17. Malott claimed (1) that Branson is not the real party in interest and (2) that Branson's various claims have no basis in law or fact.

{¶7} On February 14, 2011, the trial court held a hearing on Malott's motion to dismiss. Malott appeared at the hearing with his attorney, and Branson appeared pro se. We do not have a transcript of this hearing.

{¶8} On February 15, 2011, the trial court granted Malott's motion to dismiss. The trial court found the following: "Malott is currently the court appointed Guardian over Mollie Florkey in case # 20072036 in the Highland County Court of Common Pleas, Probate Division. As Guardian over the person of Mollie Florkey[,] James Malott has not ratified this action via affidavit or otherwise. The Court therefore finds the current action has not been brought by a real party in interest contra to Ohio Civil Rule 17." February 15, 2011 Entry of Dismissal. The trial court also agreed that Branson's various claims have no basis in law or fact.

{ΒΆ9} Branson appeals and asserts the following three assignments of error: I. "The trial Court's finding that the complaint cannot be brought by the Next-Best-Friend absent being ratified by the 'alleged' guardian is contrary to law and Ohio public policy, unconstitutional, and[] an abuse of the trial Court's discretion." II. "The trial Court['s] determination that Plaintiff's complaint failed to state a claim upon which relief could be granted is in error as a matter of law, and is likewise an abuse of discretion." And, III. "The trial ...


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