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Phillips v. Deskin

Court of Appeals of Ohio, Fifth District

July 11, 2013

MONICA PHILLIPS, ET AL. Plaintiffs-Appellants
v.
ANGELA R. PHILLIPS DESKIN, ET AL. Defendants-Appellees

Appeal from the Court of Commo Pleas, Case No. 2012 CV 0825

For Plaintiff-Appellants ADAM M. FRIED BRIAN C. LEE CLIFFORD C. MASCH.

For Defendants-Appellees SALLI C. LUX NICHOLAS P. CAPOTOSTO.

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Farmer, J.

{¶1} On September 8, 2009, Ralph Phillips died. Mr. Phillips had business interests in numerous entities, including Phillips Mfg. and Tower Company. Prior to his death, Mr. Phillips executed a Last Will and Testament and an Amended and Restated Agreement of Trust on December 19, 2001. Appellee, Mr. Phillips's daughter, Angela Phillips Deskins, was named trustee and also was the executor of her father's estate.

{¶2} On July 13, 2012, appellants, appellee's sisters, Monica Phillips, Annette Phillips, and Kimberly Leland, filed a complaint in the general division against appellee, individually and in her capacity as trustee and executor, seeking a declaratory judgment, a constructive trust, an accounting, and a trust construction, and alleging intentional interference with an expectancy of an inheritance and fraud.

{¶3} On September 7, 2012, appellee filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6). By order filed October 19, 2012, the trial court granted the motion with prejudice, for want of subject matter jurisdiction under Civ.R. 12(B)(1), finding the probate court had exclusive jurisdiction over the claims.

{¶4} On November 16, 2012, appellants filed a Civ.R. 60(B) motion for relief from judgment, requesting the trial court dismiss the matter without prejudice. By judgment entry filed February 6, 2013, the trial court denied the motion.

{¶5} Appellants filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

{¶6} "THE TRIAL COURT ERRED IN DISMISSING THE UNDERLYING COMPLAINT FOR WANT OF SUBJECT MATTER JURISDICTION."

I

{¶7} Appellants claim the trial court erred in dismissing their complaint for lack of subject matter jurisdiction under Civ.R. 12(B)(1). We agree as to Counts I, III, and V.

{¶8} The standard of review for a Civ.R. 12(B)(1) dismissal is whether any cause of action cognizable by the forum has been raised in the complaint. Prosen v. Dimora, 79 Ohio App.3d 120 (9th Dist.1992); State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77 (1989). This determination involves a question of law that will be reviewed de novo. Shockey v. Fouty, 106 Ohio App.3d 420 (4th Dist.1995). Under a de novo analysis, we must accept all factual allegations of the complaint ...


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