Tonti v. Petropoulous

• Decision Date: 27 July 1981
• Docket Number: Nos. 79-3555,79-3634,s. 79-3555
• Citation: 656 F.2d 212
• Parties: A. Patrick TONTI, Plaintiff-Appellant, v. James C. PETROPOULOUS and Richard B. Metcalf, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 212

656 F.2d 212

A. Patrick TONTI, Plaintiff-Appellant, v. James C. PETROPOULOUS and Richard B. Metcalf, Defendants-Appellees.

Nos. 79-3555, 79-3634.

United States Court of Appeals Sixth Circuit.

Argued June 4, 1981.

Decided July 27, 1981.

A. Patrick Tonti, pro se.

Paul A. Weick, Weick & Gibson Co., L.P.A., Warren W. Gibson, James Bickett, Cuyahoga Falls, Ohio, J. Vincent Aug, Nieman, Aug, Elder & Jacobs, Cincinnati, Ohio, for plaintiff-appellant.

J. J. Chester, Paul G. Lukeman, Columbus, Ohio, for Metcalf.

David Cupps, Vorys, Sater, Seymour & Pease, John Elam, Columbus, Ohio, for defendants-appellees.

Before KEITH and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This action, filed by appellant A. Patrick Tonti pursuant to 42 U.S.C. § 1983, grows out of proceedings in the Probate Court of Franklin County, Ohio, in the administration of the estate of Alfred E. Tonti, appellant's father, who died in January 1972.

Before reaching the issues on the present appeal, we find it necessary to set forth the proceedings in the State courts in some detail.

I

Appellant Tonti, a licensed Ohio attorney was named as executor in his father's will. Appellant's mother, the sole beneficiary of the estate, opposed the appointment of her son due to his claim of ownership of certain shares of stock in Tonti Securities, Inc., the main asset of the estate. Thereafter, appellant and his mother agreed that because of their conflicting claims as to ownership of the stock, he would not qualify as executor and she would not seek appointment as administratrix with will annexed.

Probate Judge Richard B. Metcalf appointed James Petropoulous and a local bank as co-administrators of the estate with will annexed. The bank later withdrew, leaving Petropoulous as the sole administrator.

Tonti filed exceptions in the Probate Court to the inventory listed in his father's estate by the administrator, claiming that he was the owner of the Tonti Securities, Inc. stock by an inter vivos gift from his father. After eleven days of evidentiary hearings on stock ownership, Probate Judge Metcalf filed comprehensive findings of fact, overruled Tonti's exceptions to the inventory, and held that the decedent owned the shares. This decision was affirmed by the Court of Appeals of Franklin County, Ohio, on April 10, 1975. The Supreme Court of Ohio refused to hear an appeal.

In August 1975, Tonti filed in the Probate Court a motion for relief from the 1974 judgment on the ground of newly discovered evidence which, according to his assertion, demonstrated that he owned the stock by purchase, and not by virtue of an inter vivos gift as claimed at the trial. He filed an affidavit of prejudice seeking to disqualify Judge Metcalf from hearing the motion. In accordance with the provisions of Ohio Revised Code § 2101.39, the issues raised by the affidavit of prejudice were submitted to Ohio's then Chief Justice C. William O'Neill. On October 27, 1975, Chief Justice O'Neill held that no disqualifying bias or prejudice existed on the part of Probate Judge Metcalf. On December 9, 1975, Judge Metcalf overruled appellant's motion for relief from the 1974 judgment.

From this order Tonti appealed to the Franklin County Court of Appeals, contending that the Probate Court erred by overruling the motion for relief from judgment (1) without conducting an evidentiary hearing and (2) by not granting a new trial by reason of his alleged newly discovered evidence. A third assignment was as follows:

Appellant Was Denied A Fair Hearing Before An Unbiased Judge By Reason Of The Bias And Prejudice Of The Probate Judge In Favor Of The Administrator Of The Estate And Bias And Prejudice Against Appellant.

The Court of Appeals affirmed the decision of the Probate Court denying relief from judgment.

Tonti thereupon appealed to the Supreme Court of Ohio, presenting the following propositions of law:

1. Where a party properly raises the issue of the bias and prejudice of the trial court judge in an appeal from a decision of that judge, the court of appeals has jurisdiction to decide that issue regardless of whether the chief justice has ruled on a pretrial affidavit of prejudice.

2. A party is denied his due process right to a fair trial before an impartial judge when, before trial, on an affidavit of prejudice, the trial judge admits under oath that he is biased in favor of the opposing party, and such judge proceeds to hear the case.

3. Where a trial judge enters judgment and is later disqualified because of his bias and prejudice, and the finding by the chief justice under Article IV, Section 5, Ohio Constitution, is based upon facts in existence prior to the entry of that judgment, the judgment must be reversed by reason of such bias and prejudice.

4. A party who files a motion for relief from judgment under Ohio Civil Rule 60(B), where the motion is not frivolous or without merit on its face, is entitled to a fair opportunity to present all relevant evidence in support of the motion either by an evidentiary hearing or by affidavit.

On April 8, 1977, the Supreme Court of Ohio sua sponte dismissed Tonti's appeal "for the reason that no substantial constitutional question exists therein." On June 3, 1977, the Supreme Court of Ohio denied Tonti's motion for a rehearing.

Tonti thereupon filed a petition for a writ of certiorari in the Supreme Court of the United States, stating the following reasons for granting the writ:

1. The Decision Below Violates the Due Process Clause of the Fourteenth Amendment by Denying Petitioner's Right to a Trial Before a Fair and Unbiased Judge.

2. The Decision Below Violates the Due Process Clause of the Fourteenth Amendment in That the Prejudiced Probate Judge Denied Petitioner a Full and Fair Opportunity to Present All of His Evidence in Support of His Claim for Relief From Judgment.

The Supreme Court denied certiorari. Tonti v. Tonti, 434 U.S. 856, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977).

During the pendency of his 1976 appeal to the State Court of Appeals, Tonti filed a second motion in the Probate Court and a second affidavit of prejudice against Judge Metcalf, stating that he intended to call Judge Metcalf as a material witness. Chief Justice O'Neill thereupon removed Judge Metcalf from further participation in the case. Judge Harold S. Ewing, sitting by designation as Probate Judge, denied Tonti's second motion for relief from judgment. Judge Metcalf was not called as a witness. Tonti perfected an appeal from Judge Ewing's decision to the Ohio Court of Appeals, urging that the Probate Judge erred in refusing to set aside the final judgment of November 1, 1974, "by reason of the bias and prejudice of Judge Metcalf on that date," and the ruling of Judge Metcalf dated December 9, 1975, "for the reason that the ruling is void and a nullity because of Judge Metcalf's breach of his mandatory duty to disqualify himself in this proceeding." The Court of Appeals affirmed the decision of Judge Ewing.

II

Tonti filed the present action in the district court on March 20, 1979, against Probate Judge Richard B. Metcalf and James Petropoulous, administrator of the estate. The complaint was signed by Tonti pro se. He prayed that the district court declare that Tonti is the owner of the shares of Tonti Securities, Inc., and the administrator and the estate hold the stock as constructive trustees for Tonti; order the administrator to deliver the shares to Tonti; enjoin the administrator from making further claims of ownership of the stock; and declare that all proceedings undertaken by Judge Richard Metcalf concerning the estate of Alfred E. Tonti, deceased, "are unconstitutional and of no legal force and effect."

He alleged fraud and collusion by Judge Metcalf, Petropoulous and the late Chief Justice of Ohio, C. William O'Neill. He prayed for actual damages against administrator Petropoulous of $1,250,000 and punitive damages of $3,750,000.

In a comprehensive opinion rendered after the conclusion of Tonti's evidence, District Judge Joseph P. Kinneary granted the motions of defendants for a directed verdict. We affirm.

III

As stated above, Tonti's complaint asked the district court to assume jurisdiction as a probate court and grant him all the relief he was denied in the Probate Court and the appellate courts of Ohio. The district court clearly had no jurisdiction as to these matters.

It is well settled that the federal courts have no probate jurisdiction. Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 298, 90 L.Ed. 256 (1946); Harris v. Zion's Bank Co., 317 U.S. 447, 450, 63 S.Ct. 354, 356, 87 L.Ed. 390 (1943); Helvering v. Stuart, 317 U.S. 154, 161, 63 S.Ct. 140, 144, 87 L.Ed. 154 (1943); Blair v. Commissioner 300 U.S. 5, 9, 57 S.Ct. 330, 331-32, 81 L.Ed. 465 (1937); Freuler v. Helvering, 291 U.S. 35, 45, 54 S.Ct. 308, 312, 78 L.Ed. 634 (1934); Sutton v. English, 246 U.S. 199, 207, 38 S.Ct. 254, 257, 62 L.Ed. 664 (1918); Farrell v. O'Brien, 199 U.S. 89, 101, 25 S.Ct. 727, 730, 50 L.Ed. 101 (1905); Byers v. McAuley, 149 U.S. 608, 615, 13 S.Ct. 906, 908, 37 L.Ed. 867 (1893); Starr v. Rupp, 421 F.2d 999, 1004 (6th Cir. 1970); Old Kent Bank v. United States, 362 F.2d 444, 448 (6th Cir. 1966); Louisville Trust Company v. Smith, 330 F.2d 483, 487 (6th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1024, 13 L.Ed.2d 962 (1965); Spears v. Spears, 162 F.2d 345, 348 (6th Cir.), cert. denied, 332 U.S. 768, 68 S.Ct. 78, 92 L.Ed. 353 (1947); Divine v. Unaka National Bank, 125 Tenn. 98, 140 S.W. 747 (1911).

IV

This litigation represents yet another misuse of 42 U.S.C. § 1983 in an attempt to obtain federal jurisdiction. This civil rights statute was never intended as a catch-all under which a myriad of suits, traditionally within the exclusive jurisdiction of state courts, can be brought in the federal courts. Ryan v. Aurora City Board of Education, 540 F.2d 222, 225-26 (6th Cir. 1976), cert....