Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
A. JONES, SR, JUDGE
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
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.
History and Facts
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.
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.
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).
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
[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.
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).
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).
of Probate Court
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
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 ...