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Sosnoswsky v. Koscianski

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

SAMI SOSNOSWSKY PLAINTIFF-APPELLANT
v.
JOHN P. KOSCIANSKI, ET AL. DEFENDANT-APPELLEES

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-873745

          ATTORNEYS FOR APPELLANT William A. Carlin Mark W. Biggerman Carlin & Carlin

          ATTORNEYS FOR APPELLEE Charles T. Brown Miles Phillip Welo Mansour Gavin, L.P.A.

          BEFORE: Jones, J., Stewart, P.J., and Blackmon, J.

          JUDGMENT

          LARRY A. JONES, SR, JUDGE

         {¶1} Upon review, this court sua sponte reconsiders its decision in this case. After reconsideration, the opinion as announced by this court on April 12, 2018, Sosnoswsky v. Koscianski, 8th Dist. Cuyahoga No. 106147, 2018-Ohio-1409, is hereby vacated and substituted with this opinion.[1]

         {¶2} This matter involves the issue of whether the probate division or the general division of the Cuyahoga County Common Pleas Court had jurisdiction over a complaint alleging breach of fiduciary duty, negligence, fraud, conversion, and that sought a constructive trust and an accounting. Upon de novo review, we reverse and remand.

         Procedural History and Facts

         {¶3} Plaintiff-appellant, Sami Sosnoswsky ("Sosnoswsky"), was gifted money to be placed into a trust until she turned 18 years old. Judith Lieber, Sosnoswsky's mother, was custodian of the account. From 1973 - 1980, the following amounts were to be placed in the trust: $19, 000 from Sosnoswsky's grandmother, $6, 057.40 from her grandfather, and $50, 000 from her father. Sosnoswsky has alleged that the trust is currently worth about $2, 000, 000.

         {¶4} In February 2016, defendant-appellee John Koscianski ("Koscianski") was appointed the guardian of the estate and person of Lieber. On December 12, 2016, Sosnoswsky filed a complaint in the probate division of the Cuyahoga County Common Pleas Court (Probate Court Case No. 2016ADV221589). She filed a second complaint in the court's general division on December 29, 2016 (Common Pleas Case No. CV-16-873745). The complaints were virtually identical in that they named the same defendants and alleged that, due to Lieber's fraudulent conveyance of the funds, Sosnoswsky never received any of her trust money. The complaints named Koscianski as guardian of Lieber and several financial institutions as defendants. Importantly, the allegations dealt solely with the actions of Lieber, a ward, that took place prior to the guardianship being established.

         {¶5} Koscianski filed a motion to dismiss the complaint in the general division pursuant to Civ.R. 12(B)(1), for lack of subject matter jurisdiction. The court stayed the case pending decision by the probate division court on the complaint Sosnoswsky had filed with that court. On April 28, 2017, Sosnoswsky voluntarily dismissed her complaint without prejudice in the probate court and moved to reinstate her general division case to the active docket. The general division trial court granted her motion to reinstate the case to the active docket. Sosnoswsky refiled her probate court complaint on May 18, 2017 and a Civ.R. 41 notice of dismissal of that complaint on October 31, 2017 (Cuyahoga Common Pleas Court, Probate Division Case No. 2017ADV225631).

         {¶6} Koscianski moved to renew the original motion to dismiss in the general division. On July 31, 2017, prior to the October 31, 2017 dismissal of her probate court complaint, the general division trial court granted the motion to dismiss, holding, in part:

Pursuant to R.C. 2101.24, it is well settled that the probate court has exclusive jurisdiction, unless otherwise provided by law, as to all matters set forth in R.C. 2101.24 and as to all matters pertaining directly to the administration of estates.
[T]his instant matter involves a ward [Lieber] that is currently under guardianship in the Cuyahoga County Probate Court. The Court finds that Plaintiffs claims are controlled by Ohio Rev. Code 2109.50 through Ohio Rev. Code 2109.56 and the Probate Court has exclusive jurisdiction of this matter. As such, Defendant's Motion to Dismiss is granted for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1).

         {¶7} Sosnoswsky filed a notice of appeal, raising one assignment of error for our review:

The trial court erred in granting the defendant's motion to dismiss complaint on the ground that the Cuyahoga County Court of Common Pleas lacked subject matter jurisdiction in accordance with Civ.R. 12(B)(1).

         Law and Analysis

         {¶8} In her sole assignment of error, Sosnoswsky claims that the trial court erred in dismissing her complaint for lack of subject matter jurisdiction under Civ.R. 12(B)(1). 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, 123, 606 N.E.2d 1050 (9th Dist.1992), citing Avco Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67, 520 N.E.2d 1378 (10th Dist.1987); State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). This determination involves a question of law that we review de novo. Phillips v. Deskin, 5th Dist. Richland No. 12CA119, 2013-Ohio-3025, ¶ 8, citing Shockey v. Fouty, 106 Ohio App.3d 420, 666 N.E.2d 304 (4th Dist.1995). In doing so, we accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Phillips at id, citing Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

         Jurisdiction of Probate Court

         {¶9} The probate court is a court of limited jurisdiction; it can exercise just such powers as are conferred on it by statute and the constitution of the state. Goff v. Ameritrust Co., N.A., 8th Dist. Cuyahoga Nos. 65196 and 66016, 1994 Ohio App. LEXIS 1916, 10-11 (May 5, 1994), citing Schucker v. Metcalf, 22 Ohio St.3d 33, 488 N.E.2d 210 (1986).

         {¶10} The Ohio Supreme Court has historically recognized that the probate division's jurisdiction includes "continuing and exclusive jurisdiction over both the ward and the guardian." In re ...


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