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Paul S. Kormanik, Guardian of the Estate of David Cooper v. David Cooper et al

November 1, 2011

PAUL S. KORMANIK, GUARDIAN OF THE ESTATE OF DAVID COOPER, PLAINTIFF-APPELLANT,
v.
DAVID COOPER ET AL., DEFENDANTS-APPELLEES.
PAUL S. KORMANIK, GUARDIAN OF THE ESTATE OF VIOLET BAXTER, PLAINTIFF-APPELLANT,
v.
VIOLET BAXTER ET AL., DEFENDANTS-APPELLEES.
PAUL S. KORMANIK, GUARDIAN OF THE ESTATE OF VIOLET BAXTER, PLAINTIFF,
v.
DAVID COOPER ET AL., DEFENDANTS-APPELLEES, OHIO MCGIVNEY POOLED SPECIAL NEEDS TRUST, DEFENDANT-APPELLANT.
PAUL S. KORMANIK, GUARDIAN OF THE ESTATE OF VIOLET BAXTER, PLAINTIFF,
v.
VIOLET BAXTER ET AL., DEFENDANTS-APPELLEES, OHIO MCGIVNEY POOLED SPECIAL NEEDS TRUST, DEFENDANT-APPELLANT.



APPEALS from the Franklin County Court of Common Pleas, Probate Division (Prob. No. 536041B) (Prob. No. 524085B)

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

Cite as Kormanik v. Cooper,

(ACCELERATED CALENDAR)

DECISION

(Prob. No. 536041B) (Prob. No. 524085B)

{¶1} Plaintiff-appellant, Paul S. Kormanik, as the guardian for the estates of Violet Baxter and David Cooper, and defendant-appellant, the Ohio McGivney Pooled Special Needs Trust ("McGivney"), filed these consolidated appeals. Kormanik and McGivney appeal judgments of the Franklin County Court of Common Pleas, Probate Division, that dismissed defendants-appellees, the State of Ohio and the Ohio Department of Job and Family Services (collectively the "state defendants"), as parties. For the following reasons, we affirm the probate court's judgment regarding Baxter, and we dismiss the appeals from the judgment regarding Cooper.

{¶2} The probate court appointed Kormanik guardian of Baxter, who is 83 years old. Subsequently, Kormanik filed a petition asking the probate court to "create a 42 U.S.C. 1396p(d)(4)(C) qualifying pooled special needs trust for the benefit of the ward, Violet Baxter, that maintains the Medicaid eligibility for the ward."*fn1 (R. 16.) The petition named as defendants Baxter, the State of Ohio, the Ohio Department of Job and Family Services ("ODJFS"), and McGivney.

{¶3} Kormanik included the State of Ohio and ODJFS as defendants due to their statutory duty to "oversee[ ] Medicaid benefits and eligibility." (R. 16 at ¶3.) Kormanik later amended the petition to join the Franklin County Department of Job and Family Services ("FCDJFS") as a defendant. Kormanik added FCDJFS because it would be responsible for making the initial determination regarding Baxter's Medicaid eligibility once she applied for benefits. (R. 16 at ¶4.)

{¶4} Instead of filing an answer, the state defendants moved for dismissal under Civ.R. 12(B)(1) and (6). In their motion, the state defendants asserted that Kormanik included them as defendants "solely so [the probate court could] affirmatively determine whether Ms. Baxter is eligible for Medicaid." (R. 23 at 2.) However, as the state defendants pointed out, the probate court did not possess jurisdiction to decide Medicaid eligibility. Because the court lacked authority to rule on Baxter's eligibility for Medicaid, the state defendants asserted that they had "no significant role" to play in the proceedings and should be dismissed. (R. 23 at 3.)

{¶5} In response, Kormanik argued that federal and state statute invested the probate court with jurisdiction to establish a pooled trust. According to Kormanik, the probate court could not establish a pooled trust without declaring that the trust complied with the applicable statutory requirements and that any assets transferred into the trust could not be counted as resources for the purpose of deciding Medicaid eligibility. Kormanik reasoned that, "if the [probate] court create[d] a pooled trust and declare[d] it to fit within the parameters of [federal and state statute], the State [would] be estopped from later arguing the creation of the trust and the transfer of assets into the trust was an invalid or disqualifying transfer." (R. 24 at 3.) Due to the estoppel effect of the declaration, Kormanik argued that the state defendants had an interest to protect and should remain parties to the litigation.

{¶6} The probate court agreed with the state defendants' argument, and it issued a judgment granting their motion to dismiss. Kormanik and McGivney appealed the judgment to this court. After reviewing the matter, we concluded that the dismissal of the state defendants did not completely resolve the action because the probate court had yet to decide whether to grant Kormanik's petition and create the pooled trust. Kormanik v. Cooper, 190 Ohio App.3d 184, 2010-Ohio-4745, ¶9. As the judgment neither disposed of all issues nor contained Civ.R. 54(B) language, it did not constitute a final appealable order. Id. at ¶12. Consequently, we dismissed the appeal.

{¶7} Immediately before Kormanik and McGivney appealed the probate court's judgment, McGivney had filed a motion for reconsideration. The probate court held that motion in abeyance during the pendency of the appeal. Once we dismissed the appeal, Kormanik also filed a motion for reconsideration.

{¶8} The probate court granted Kormanik and McGivney's motions for reconsideration and reanalyzed whether dismissal of the state defendants was appropriate. The reconsideration, however, did not produce a different result. In a judgment issued December 27, 2010, the probate court again dismissed the state defendants from the proceedings.

{¶9} Both Kormanik and McGivney now appeal the December 27, 2010 judgment. Kormanik assigns the following errors:

1. The trial court erred in dismissing the State of Ohio and the Ohio Department of Jobs [sic] and Family Services as defendants herein in that the Probate Court has jurisdiction over all beneficiaries in the creation and the construction of inter vivos trusts including those created pursuant to 42 U.S.C. 1396p (d)(4)(C).

2. The trial court erred in dismissing the State of Ohio and the Ohio Department of Jobs [sic] and Family Services as defendants herein in that they are necessary parties for the creation and construction of the trust.

3. The trial court erred in dismissing the State of Ohio and the Ohio Department of Jobs [sic] and Family Services as defendants herein in that the Probate Court has plenary power pursuant to R. C. 2101.24 (C) to [dispose] fully of any matter that is properly before the court, unless the power ...


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