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State of Ohio, Ex Rel Denise C. Mitseff v. Honorable Dixie N. Park

October 24, 2011

STATE OF OHIO, EX REL DENISE C. MITSEFF
v.
HONORABLE DIXIE N. PARK,
RESPONDENT



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

Cite as

State ex rel. Mitseff v. Park,

JUDGES: Hon. William B. Hoffman, P.J. Relator Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDING:

Writ of Prohibition and Writ of Mandamus

JUDGMENT: DENIED

{¶1} Relator, Denise Mitseff, has filed a Complaint for Writ of Mandamus and/or Prohibition requesting this Court issue a writ requiring Respondent to accept a settlement agreement in the Stark County Probate Court and to prohibit Respondent from continue acting in the underlying probate court cases. Respondent has filed a motion to dismiss arguing she does not have a clear legal duty to accept the settlement agreement. Further, Respondent argues she has jurisdiction to continue to preside over the cases now pending in her court.

{¶2} Relator filed a request in the Stark County Probate Court to become the guardian of Relator's mother and father. A hearing was held, however, Relator's father died before the trial court issued a ruling. The application for guardianship over Relator's father was dismissed as moot. Relator was appointed as the guardian of her mother's person and eventually of her mother's estate. Several months after the appointment, Relator's mother died.

{¶3} An estate was opened Relator's mother wherein Relator was appointed as executrix. The trial court asked Relator to resign from her position as executrix which Relator agreed to do. Attorney Stephen Ginella has been named substitute executor of the estate. A special commissioner was also appointed to assist Respondent in identifying any problems with the guardianship accounting.

{¶4} Relator and her brother are the only heirs to the estate of Relator's mother. Both Relator and her brother are represented by counsel. They came to an agreement relative to the distribution of estate assets, life insurance proceeds, and annuity proceeds.

{¶5} The parties advised the court that a settlement had been reached. A hearing was scheduled where the parties intended to discuss the settlement, however, prior to the hearing the special commissioner filed a preliminary report raising concerns over Relator's spending during her time as guardian as well as possible missing assets on the inventory. Rather than accepting and reviewing the proposed settlement, Respondent issued an order staying the settlement and ordered the parties to cooperate with the special commissioner who had been appointed to assist the court in evaluating the final account in the guardianship of Relator's mother.

{¶6} In response to the trial court's entry staying the settlement, Relator filed a notice of appeal as well as the instant complaint.

{ΒΆ7} In order for a writ of prohibition to issue, petitioner must prove that: (1) the lower court is about to exercise judicial authority; (2) the exercise of authority is not authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 178, 631 N.E.2d 119. A writ of prohibition, regarding the unauthorized exercise of judicial power, will only be granted where the judicial officer's lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv., Office of ...


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