State ex rel. Goldberg v. Mahoning Cty. Probate Court, 00-2238.

• Decision Date: 05 September 2001
• Docket Number: No. 00-2238.,00-2238.
• Citation: 753 NE 2d 192,93 Ohio St.3d 160
• Parties: THE STATE EX REL. GOLDBERG, APPELLEE, v. MAHONING COUNTY PROBATE COURT ET AL., APPELLANTS.
• Court: Ohio Supreme Court

93 Ohio St.3d 160

753 NE 2d 192

THE STATE EX REL. GOLDBERG, APPELLEE, v. MAHONING COUNTY PROBATE COURT ET AL., APPELLANTS.

No. 00-2238.

Supreme Court of Ohio.

Submitted June 20, 2001.

Decided September 5, 2001.

Paul Gains, Mahoning County Prosecuting Attorney, and Linette S. Baringer, Assistant Prosecuting Attorney, for appellants.

Charles E. Dunlap, for appellee.

Per Curiam.

In April 1999, appellants, the Mahoning County Court of Common Pleas, Probate Division, and its judge, Timothy P. Maloney, began investigating complaints alleging that attorney Richard D. Goldberg¹ had concealed, embezzled, conveyed away, or had been in the possession of money, chattel, and choses in action of seventeen different estates. Judge Maloney initiated concealment proceedings pursuant to R.C. 2109.50 et seq.

Judge Maloney found that attorney Goldberg had deposited in his own "trustee" checking account settlement checks intended for beneficiaries of numerous estates without the knowledge, consent, or approval of fiduciaries or the probate court and that he used these funds for personal purposes. According to Judge Maloney, these proceeds were from settlements of wrongful death claims. Judge Maloney further found that attorney Goldberg had failed in his duties to surrender client and estate files and financial records of certain guardianships and that he had liquidated some of his property holdings in 1999.

On June 23, 2000, as a result of these findings, Judge Maloney issued an order directing the bailiff of the Girard Municipal Court to "search for, seize and attach any and all business and/or financial records and/or property in the possession or under the control of Richard D. Goldberg and/or any and all members of his family and/or any other person, firm corporation, partnership [or] other entity which may be acting for him or which or who may have acted for him, with him or otherwise, whether directly or indirectly, in any personal, business or other venture and whether the same may be considered personal, business or professional in nature." Judge Maloney directed the bailiff to search and attach property within attorney Goldberg's personal residence as well as a warehouse and "any other place in which the said Bailiff may learn that any of the above described types of records, property, or other interests may be kept, discovered or located." Judge Maloney specified in his entry that the prejudgment attachment of personal property was justified under R.C. 2715.01 et seq. as well as R.C. 2109.56.

On Saturday, June 24, 2000, the bailiff and several law enforcement officers executed the prejudgment attachment order. When they executed the order at the Goldberg residence, a fourteen-year old daughter of attorney Goldberg and his wife, Dorothy Goldberg (appellee), answered the door and was told to contact an adult. Mrs. Goldberg and her attorney arrived shortly thereafter. Over protests by Mrs. Goldberg and her attorney, the police and their agents executed the order, videotaping, photographing, and listing the items contained in the house, and seizing and removing some of the items, including four Rolex watches, two Piaget watches, three Oriental rugs, and one computer. The attachment team also videotaped and photographed the items in the warehouse and changed the locks to it. The attachment order was not requested by any representative of the estates and was not supported by an affidavit pursuant to R.C. 2715.03.

On July 3, 2000, Mrs. Goldberg filed a complaint for a writ of prohibition in the Court of Appeals for Mahoning County to prevent appellants from exercising further authority under their June 23, 2000 attachment order. The court of appeals denied appellants' motion to dismiss and ordered the parties to submit briefs on the prohibition claim. In their brief, appellants claimed that they had concluded that their attachment order was an appropriate interim remedy under R.C. 2109.50 and 2715.01 et seq.

In November 2000, the court of appeals entered a judgment granting the writ of prohibition and ordering the probate court and Judge Maloney to return to Mrs. Goldberg the property that is the subject of the attachment order. The court of appeals held that although appellants had subject-matter jurisdiction to issue a prejudgment attachment order, they patently and unambiguously lacked jurisdiction to do so in an unconstitutional manner.

This cause is now before the court upon an appeal as of right.

In order to be entitled to a writ of prohibition, Mrs. Goldberg must establish that (1) Judge Maloney and the probate court are about to exercise judicial or quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other remedy in the ordinary course of law exists. Page v. Riley (1999), 85 Ohio St.3d 621, 623, 710 N.E.2d 690, 692.

Appellants assert that prohibition may not be granted because they have already exercised their judicial power by entering the June 23, 2000 attachment order. But in rejecting comparable contentions, we have held that "`where an inferior court patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previous jurisdictionally unauthorized actions.'" (Emphasis sic.) State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127, quoting State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 98, 671 N.E.2d 236, 238; see, also, State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 248, 594 N.E.2d 616, 619. In cases of a patent and unambiguous lack of jurisdiction, the availability of appeal is immaterial. State ex rel. Corn v. Russo (2001), 90 Ohio St.3d 551, 554, 740 N.E.2d 265, 268. Moreover, as the court of appeals concluded, appellants continue to hold the attached property, either actually or constructively, pursuant to their unlawful prejudgment attachment order.

The dispositive issue is whether appellants patently and unambiguously lacked jurisdiction to issue the prejudgment attachment order in the context of concealment proceedings. For the reasons that follow, we hold that appellants patently and unambiguously lacked jurisdiction to issue the June 23, 2000 attachment order, and we affirm the judgment of the court of appeals.

Probate courts are courts of limited jurisdiction, and probate proceedings are consequently restricted to actions permitted by statute and the Ohio Constitution. Corron v. Corron (1988), 40 Ohio St.3d 75, 531 N.E.2d 708, paragraph one of the syllabus; State ex rel. Lipinski v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1995), 74 Ohio St.3d 19, 22, 655 N.E.2d 1303, 1306. Appellants contend that they have subject-matter jurisdiction to issue the prejudgment attachment order in the context of concealment actions under R.C. 2109.50 to 2109.56 as well as their additional exclusive and plenary authority under R.C. 2101.24(A)(2) and (C).

R.C. 2109.50 to 2109.56, however, do not confer subject-matter jurisdiction on probate courts to issue prejudgment attachment orders relating to personal property. A proceeding for the discovery of concealed or embezzled assets of an estate, brought under R.C. 2109.50, is a special proceeding of a summary, inquisitorial character whose purpose is to facilitate the administration of estates by summarily retrieving assets that rightfully belong there. In re Estate of Fife (1956), 164 Ohio St. 449, 58 O.O. 293, 132 N.E.2d 185, paragraphs one and two of the syllabus; Lauerman v. Destocki (1993), 87 Ohio App.3d 657, 664, 622 N.E.2d 1122, 1127. In determining the scope of a concealment proceeding instituted under R.C. 2109.50, we must first look at its language, reading words and phrases used in context and construing them according to the rules of grammar and common usage. State ex rel. Antonucci v. Youngstown City School Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 565, 722 N.E.2d 69, 71; R.C. 1.42.

R.C. 2109.50 provides for a probate court proceeding against persons suspected of converting, embezzling, or conveying away estate assets:

"Upon complaint made to the probate court of the county having jurisdiction of the administration of a trust estate or of the county wherein a person resides against whom a complaint is made, by a person interested in such trust estate or by the creditor of a person interested in such trust estate against any person suspected of having concealed, embezzled, or conveyed away or of being or having been in the possession of any moneys, chattels, or choses in action of such estate, said court shall by citation, attachment or warrant, or, if circumstances require it, by warrant or attachment in the first instance, compel the person or persons so suspected to forthwith appear before it to be examined, on oath, touching the matter of the complaint. * * *

"The probate court may initiate proceedings on its own motion.

"The probate court shall forthwith proceed to hear and determine the matter." (Emphasis added.)

R.C. 2109.50 limits concealment proceedings to cases in which a person is suspected of concealing, embezzling, conveying away, or being or having been in possession of any money, chattel, or chose in action "of such estate." (Emphasis added.) Contrary to appellants' claims, the assets allegedly concealed and embezzled here, i.e., proceeds from settlements of wrongful death claims, are not estate assets. As we held in U.S. Fid. & Guar. Co. v. Decker (1930), 122 Ohio St. 285, 287, 171 N.E. 333, 334:

"It will readily be conceded that * * * a fund [arising out of a wrongful death claim] is not a part of the assets of the estate of the decedent. It is not property which belonged to the decedent in his lifetime, and the claim did not come into existence until his death. In the nature of things, it could not be inventoried as a part of the estate. The fund...