State ex rel. Florence v. Zitter

• Decision Date: 10 August 2005
• Docket Number: No. 2005-0260.,2005-0260.
• Court: Ohio Supreme Court
• Parties: The STATE ex rel. FLORENCE v. ZITTER, Judge.

831 N.E.2d 1003

106 Ohio St.3d 87

2005 Ohio 3804

The STATE ex rel. FLORENCE v. ZITTER, Judge.

No. 2005-0260.

Supreme Court of Ohio.

Submitted May 10, 2005.

Decided August 10, 2005.

COPYRIGHT MATERIAL OMITTED

James M. Hill Co., L.P.A., and James M. Hill, Beavercreek, for relator.

Andrew J. Hinders, Mercer County Prosecuting Attorney, and Amy B. Ikerd, Assistant Prosecuting Attorney, for respondent.

PER CURIAM.

{¶ 1} This is an action for a writ of prohibition to prevent a probate judge from proceeding in a guardianship case.

{¶ 2} Relator, Ermal Florence, is the 92- or 93-year-old widow of Glen Florence and the mother of four adult children Glen Florence Jr., Harold Florence, Janet Smelser, and Larry Florence. Glen Florence owned a family farm and livestock business, and he and Ermal lived in a home on the farm in Mercer County, Ohio. After Glen died in 1972, his partner operated the business until the mid-1980s, when Glen Jr. and Larry took over the business. Around that time, Ermal granted a power of attorney to her son Glen Jr. and transferred the farm to Glen Jr. and Larry. Ermal continued to live at her Mercer County home.

{¶ 3} In January 2002, Ermal granted a power of attorney to her son Harold and revoked any previous powers of attorney. In early 2002, Ermal left her Mercer County home and went to live with Harold and his family in Miami County, Ohio. She also stayed in South Carolina with her daughter, Janet, during part of 2002. In August 2003, because of her deteriorating physical condition, Ermal began living at The Inn at Fox Run, an assisted-living facility in Clark County, Ohio. She is currently a full-time resident of that facility.

{¶ 4} In March 2002, Glen Jr. and Larry questioned the propriety of alleged transfers of real property and other assets from Ermal to Harold and Janet. Ermal, Harold, and Janet then filed suit in the Mercer County Common Pleas Court against Glen Jr. and Larry, alleging that they had breached their fiduciary duties to Ermal.

{¶ 5} On August 26, 2004, Glen Jr. and Larry applied in the Mercer County Court of Common Pleas, Probate Division, for the appointment of a guardian for Ermal. Glen Jr. and Larry claimed that Ermal was incompetent because of physical illness or disability. Glen Jr. and Larry further alleged that Harold had abruptly taken Ermal from her Mercer County home despite her desire to remain in Mercer County.

{¶ 6} On October 6, 2004, respondent, Judge Mary Pat Zitter of the Mercer County Probate Court, held a pretrial hearing at which she announced that she would appoint attorney Angela R.M. Nickell as the guardian ad litem for Ermal. An entry reflecting the assignment was not filed until February 10, 2005. Ermal's counsel initially mistakenly believed that Judge Zitter had appointed a guardian with the power to order Ermal to perform certain actions.

{¶ 7} On December 8, 2004, Nickell submitted a report to the parties and Judge Zitter. Nickell detailed her meeting with Ermal at the assisted-living facility. Nickell described Ermal as confused about how she had become a resident in the Clark County facility and adamant about wanting to return home to Mercer County. Nickell recommended that Ermal be examined by a physician who is able to diagnose the limits of her dementia and that Ermal be moved to a nursing-care facility near her Mercer County home.

{¶ 8} By entry dated December 22, 2004, based upon Nickell's report, Judge Zitter ordered Ermal returned to Mercer County for a 30-day period during which she would be examined by her long-time family physician and a physician specializing in elder care and the diagnosis of Alzheimer's disease and dementia. Judge Zitter also ordered that Ermal spend Christmas Eve and Christmas in Mercer County.

{¶ 9} On December 28, 2004, Ermal appealed Judge Zitter's December 22, 2004 order and requested a stay. The court of appeals granted a stay of the December 22, 2004 order because of a physician's affidavit statement that Ermal was "unable to undergo any type of mental health evaluation without serious risk to her health, particularly if she is removed from her current assisted living facility." The court of appeals also noted that the December 22, 2004 entry gave no rationale for Ermal's return to Mercer County.

{¶ 10} On January 19, 2005, Judge Zitter ordered Ermal to remain in Ohio so that her mental competency could be examined. Judge Zitter further ordered the guardian ad litem to arrange for Ermal to be examined at her assisted-care facility in Clark County.

{¶ 11} On February 4, 2005, Ermal filed this action for a writ of prohibition to prevent Judge Zitter from exercising jurisdiction over the underlying guardianship case. Ermal also requests a writ of prohibition to prevent Judge Zitter from (1) exercising jurisdiction in the case pending Ermal's appeal of her December 22, 2004 order, (2) using a guardian ad litem to conduct ex parte communications with Ermal outside the presence of her counsel, (3) conducting ex parte communications with the guardian ad litem, and (4) considering or using reports created by the guardian ad litem through ex parte communications with Ermal. After Judge Zitter moved to dismiss and for summary judgment, we denied the motions and granted an alternative writ. State ex rel. Florence v. Zitter, 105 Ohio St.3d 1460, 2005-Ohio-1038, 824 N.E.2d 89.

{¶ 12} The parties then filed evidence and briefs. Although Ermal filed evidence suggesting that she had voluntarily left her Mercer County home in early 2002, Judge Zitter's evidence indicated otherwise. In addition, although Ermal claimed that Judge Zitter had engaged in ex parte communications with the guardian ad litem and the court of appeals, Judge Zitter's evidence, including affidavits of the judge, the guardian ad litem, and opposing counsel in the guardianship case, contradicted Ermal's claim.

{¶ 13} This cause is now before the court for a consideration of the merits.

Prohibition: General Standards

{¶ 14} In order to be entitled to the requested writ of prohibition, Ermal must establish that (1) Judge Zitter is about to exercise judicial power, (2) the exercise of that power is not authorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644, ¶ 12. It is uncontroverted here that Judge Zitter has exercised and is continuing to exercise judicial authority in the underlying guardianship proceeding.

{¶ 15} Regarding the remaining requirements for the writ, "`[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject matter jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy by appeal.'" State ex rel. Conkle v. Sadler, 99 Ohio St.3d 402, 2003-Ohio-4124, 792 N.E.2d 1116, ¶ 8, quoting State ex rel. Shimko v. McMonagle (2001), 92 Ohio St.3d 426, 428-429, 751 N.E.2d 472.

{¶ 16} Conversely, "`[i]f a lower court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions.'" State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, ¶ 12, quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 12. Thus, "`[i]n cases of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy of law need not be proven because the availability of alternate remedies like appeal would be immaterial.'" State ex rel. Morenz v. Kerr, 104 Ohio St.3d 148, 2004-Ohio-6208, 818 N.E.2d 1162, ¶ 14, quoting State ex rel. State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18.

{¶ 17} Ermal asserts that Judge Zitter patently and unambiguously lacks jurisdiction over the guardianship proceeding because (1) Ermal has not lived or been physically present in Mercer County for over three years and (2) the guardianship proceeding is the subject of a pending appeal in the Court of Appeals for Mercer County. Ermal also claims that Judge Zitter lacked authority (1) to appoint a guardian ad litem or initiate ex parte communications between the guardian ad litem and Ermal, (2) to engage in ex parte communications with the guardian ad litem or others concerning the case, and (3) to consider or use reports obtained through ex parte communications with Ermal. These claims are next considered.

R.C. 2111.02(A): Residence or Legal Settlement

{¶ 18} Under R.C. 2111.02(A), "[w]hen found necessary, the probate court on its own motion or on application by any interested party shall appoint * * * a guardian of the person, the estate, or both, of a minor or incompetent, provided the person for whom the guardian is to be appointed is a resident of the county or has a legal settlement in the county * * *." (Emphasis added.)

{¶ 19} R.C. 2111.02(A) precludes courts "from providing a guardian for a ward who does not reside, or have a legal settlement, in the county." In re Guardianship of Fisher (1993), 91 Ohio App.3d 212, 215, 632 N.E.2d 533; In re Tripp (1993), 90 Ohio App.3d 209, 210-211, 628 N.E.2d 139. "Residence requires the actual physical presence at some abode coupled with an intent to remain at that place for some period of time." Fisher, 91 Ohio App.3d at 215, 632 N.E.2d 533; LeSueur v. Robinson (1988), 53 Ohio App.3d 9, 12, 557 N.E.2d 796. "`[L]egal settlement' connotes living in an area with some degree of permanency greater than a visit lasting a few days or weeks." Fisher, 91 Ohio App.3d at 216, 632 N.E.2d 533.

{¶ 20} Ermal claims that Judge Zitter patently and unambiguously lacks jurisdiction over the guardianship case because Ermal was neither a resident of nor had a legal settlement in Mercer County...