State ex rel. Neff v. Corrigan

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 12

.]




      THE STATE EX REL. NEFF, APPELLANT, v. CORRIGAN, JUDGE, ET AL.,
                                       APPELLEES.
                [Cite as State ex rel. Neff v. Corrigan, 

1996-Ohio-231

.]
Mandamus to compel common pleas court judge to correct alleged fraudulent
           entries in a probate court case—Appellate court errs in dismissing the
           mandamus claim, when—Mandamus to compel common pleas court judge
           to correct journal entries in an probate court case—Appellate court errs
           in dismissing the mandamus claim, when.
      (No. 95-553—Submitted October 24, 1995—Decided March 1, 1996.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 67421.
                                  __________________
           {¶ 1} This appeal involves two separate estates. According to appellant,
attorney Owen C. Neff, there was a conspiracy among appellees Judge John E.
Corrigan of the Cuyahoga County Court of Common Pleas, Probate Division;
Donahue & Scanlon, a law firm; and Gerald M. Porter, an attorney associated with
Donahue & Scanlon. This alleged conspiracy involved Judge Corrigan’s unlawful
removal of testamentary fiduciaries in large estates and trusts, and the appointment
of Porter and other members of Donahue & Scanlon as successor administrators to
fraudulently divert fees and commissions arising from the administration of these
estates and trusts. Appellant more specifically alleged the following as to the two
estates.
                                      Gerber Estate
           {¶ 2} On April 22, 1991, the will of Peter J. Gerber was admitted to probate,
and appellant, having been named executor in the will, was appointed executor. On
July 3, 1993, appellee Joan M. Litzow, an attorney who represented Gerber’s
widow, sought a declaratory judgment awarding approximately $500,000 in assets
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held in various bank accounts to Gerber’s widow. Judge Corrigan granted the
judgment on July 30. Seven days following the entry of the declaratory judgment
and before appellant received notice of the judgment, Litzow used the judgment
entry to obtain possession of the funds.            Appellant appealed the declaratory
judgment.
        {¶ 3} Litzow then filed a motion to remove appellant as executor of the
Gerber estate.1 This and other motions were set for a November 8, 1993 hearing
before Judge Corrigan.
        {¶ 4} At the November 8, 1993 hearing, Judge Corrigan refused to allow a
court reporter employed by appellant to transcribe the proceeding. Appellant
further alleges that in order to falsify the record and evade appellate review, Judge
Corrigan and Litzow coerced the interested parties to sign a settlement agreement
with stated purposes of settling the claims of the heirs and winding up the
administration of the Gerber estate. The complete settlement agreement entered
into on November 8, 1993 included a document entitled “Agreement,” a document
purporting to be the resignation of appellant as executor of the Gerber estate, and
oral representations that the December 1, 1993 date for filing a final account would
be extended if the administration of the estate could not be completed by that date.
Appellant signed the agreement and resignation documents because he believed
them to be part of a valid agreement to settle the claims of all parties interested in
the estate.
        {¶ 5} In reliance on the allegedly false representations made at the
November 8, 1993 hearing, appellant dismissed his appeal from the July 30, 1993
declaratory judgment entered by Judge Corrigan and his action against Litzow and
Gerber’s widow. Subsequently, the agreement and resignation were, in December


1. Subsequently, appellant filed an action against Litzow and Gerber’s widow, alleging abuse of
process, conversion and fraud in connection with withdrawing the money from the decedent’s bank
accounts.




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                                January Term, 1996



1993, filed separately.    Judge Corrigan then signed journal entries accepting
appellant’s resignation and appointing Porter as successor administrator of the
Gerber estate. Appellant appealed both entries. Both appeals were dismissed for
lack of a final appealable order.
                                    Borgh Estate
       {¶ 6} On August 25, 1992, Porter was appointed successor administrator of
the estate of Carl Borgh. Judge Corrigan had previously removed Betty Ann
Cushman as testamentary executor and trustee.
       {¶ 7} On February 10, 1994, Porter filed a motion to withdraw consent of
the beneficiaries to attorney fees paid to appellant under a contractual agreement
with the Borgh heirs.
                          Mandamus and Prohibition Action
       {¶ 8} On June 13, 1994, appellant filed a complaint in the Court of Appeals
for Cuyahoga County which requested the following extraordinary relief: (1) a writ
of mandamus compelling Judge Corrigan to open the journals of the probate court
to public inspection and to correct the record in the probate court cases relating to
the Gerber estate, (2) a writ of prohibition to prevent Judge Corrigan from
conducting any proceedings or entering any orders as to attorney fees paid to
appellant in the Borgh estate, (3) an alternative writ to command all persons having
pertinent evidence not to destroy or conceal that evidence, (4) an alternative writ
requiring Litzow to account for all funds removed from the disputed Gerber bank
accounts and to restore the funds to those accounts or post sufficient bond to protect
the Gerber estate, and (5) an alternative writ staying all probate court proceedings
as to the Gerber and Borgh estates. The three requests for alternative writs were all
connected to retaining the status quo pending resolution of the writ action.
       {¶ 9} In January 1995, the court of appeals entered judgment granting Judge
Corrigan’s and Litzow’s Civ.R. 12(B)(6) motions to dismiss and Donahue &
Scanlon and Porter’s Civ.R. 12(F) motion to strike, and denying the requested writs.




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       {¶ 10} The cause is now before this court upon an appeal as of right.
                              __________________
       Snyder, Neff & Chamberlin and Owen Calvin Neff, pro se.
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Gregory
B. Rowinski and Carol Shockley, Assistant Prosecuting Attorneys, for appellee
Judge Corrigan.
       Reminger & Reminger Co., L.P.A., and Clifford C. Masch, for appellee Joan
M. Litzow.
                              __________________
       DOUGLAS, J.
       {¶ 11} Appellant asserts in his first proposition of law that the court of
appeals erred in granting Judge Corrigan’s and Litzow’s Civ.R. 12(B)(6) motions
to dismiss for failure to state a claim upon which relief can be granted and Donahue
& Scanlon and Porter’s Civ.R. 12(F) motion to strike. In order to dismiss a
complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can
be granted, after all factual allegations are presumed true and all reasonable
inferences are made in favor of the nonmoving party, it must appear beyond doubt
from the complaint that the relator/plaintiff can prove no set of facts warranting
relief. State ex rel. Williams Ford Sales, Inc. v. Connor (1995), 

72 Ohio St.3d 111, 113

, 

647 N.E.2d 804, 806

.
       {¶ 12} As to the motion to strike, Civ.R. 12(F) provides that on motion of a
party, “the court may order stricken from any pleading any insufficient claim or
defense or any redundant, immaterial, impertinent or scandalous matter.” The
motion to strike attacked the sufficiency of appellant’s complaint in its entirety.
While an insufficient complaint may be subject to a Civ.R. 12(F) motion to strike,
these motions should not be used as a substitute for a Civ.R. 12(B)(6) motion to
dismiss for failure to state a claim upon which relief can be granted. See, e.g.,
McCormac, Ohio Civil Rules Practice (2 Ed.1992) 140, Section 6.10. Instead, a



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                                 January Term, 1996



Civ.R. 12(B)(6) motion to dismiss is directed to the entire pleading, whereas a
Civ.R. 12(F) motion to strike based on insufficiency of a claim should only be used
to attack individual claims which are not dispositive of the entire action. See,
generally,   Browne,     Motions       to   Strike,   Ohio   Civil   Practice   Journal
(January/February 1990) 29-30; 1 Klein, Browne & Murtaugh, Baldwin’s Ohio
Civil Practice (1995) 62, Section T 15.01(A)(1)(b); Staff Note 6 to Civ.R. 12.
Nevertheless, a trial court’s erroneous use of Civ.R. 12(F) in lieu of Civ.R. 12(B)(6)
where the issue is sufficiency of an entire complaint does not constitute reversible
error based on a mere misdesignation of the appropriate motion, since the question
of sufficiency is adequately raised. See, e.g., State ex rel. Walton v. Hunter (1990),

53 Ohio St.3d 269

, 

559 N.E.2d 1362

 (affirmance of Civ.R. 12[F] motion to strike
entire pleading based on its insufficiency). However, the better practice is to use a
Civ.R. 12(B)(6) motion, rather than a Civ.R. 12(F), motion where the sufficiency
of the entire complaint is at issue.
        {¶ 13} Applying the Civ.R. 12(B)(6) standard to the various claims raised
in appellant’s complaint, we note that appellant placed primary emphasis on
extraordinary relief in prohibition and mandamus against Judge Corrigan.
Appellant’s claim for a writ of prohibition was limited to preventing Judge Corrigan
from conducting any further proceedings on attorney fees previously paid to
appellant in the Borgh estate. In order to be entitled to a writ of prohibition,
appellant has to establish (1) that Judge Corrigan is about to exercise judicial or
quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and
(3) that denying the writ will result in injury for which no other adequate remedy
exists in the ordinary course of law. State ex rel. Fowler v. Smith (1994), 

68 Ohio St.3d 357, 359

, 

626 N.E.2d 950, 952

. Absent a patent and unambiguous lack of
jurisdiction, a court having general jurisdiction can determine its own jurisdiction,
and a party challenging the court’s jurisdiction has an adequate remedy by appeal.




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State ex rel. Enyart v. O’Neill (1995), 

71 Ohio St.3d 655

, 656, 

646 N.E.2d 1110, 1112

.
        {¶ 14} Appellant contends that Judge Corrigan patently and unambiguously
lacked jurisdiction to consider Porter’s motion to withdraw consent of the
beneficiaries to the Borgh estate to attorney fees paid to appellant. Appellant claims
that Judge Corrigan lacked jurisdiction after a prior executor’s appeals were
dismissed following settlement.       Appellant relies on State ex rel. Special
Prosecutors v. Judges of Belmont Cty. Court of Common Pleas (1978), 

55 Ohio St.2d 94

, 

9 O.O.3d 88

, 

378 N.E.2d 162

 (writ of prohibition allowed to prevent trial
court from proceeding with trial after granting a postsentence motion to withdraw
guilty plea after appeal from judgment of conviction and sentence had been
affirmed on appeal because allowing the withdrawal of the plea was inconsistent
with the court of appeals’ judgment).
        {¶ 15} When a case has been appealed, the trial court retains all jurisdiction
not inconsistent with the reviewing court’s jurisdiction to reverse, modify, or affirm
the judgment. Howard v. Catholic Soc. Serv. of Cuyahoga Cty., Inc. (1994), 

70 Ohio St.3d 141, 147

, 

637 N.E.2d 890

, 895. As the court of appeals determined, the
settled appeals did not involve the attorney fees issue. See Marshall Cty. Health
Care Auth. v. Shalala (C.A.D.C.1993), 

988 F.2d 1221

; Watterson v. Page (C.A.1,
1993), 

987 F.2d 1

; and Kramer v. Time Warner Inc. (C.A.2, 1991), 

937 F.2d 767

,
773, allowing courts to take judicial notice of appropriate matters in considering a
motion to dismiss for failure to state a claim under the similarly worded
Fed.R.Civ.P. 12(b)(6) without having to convert it to a motion for summary
judgment; see, also, First Michigan Bank. & Trust Co. v. P. & S. Bldg. (Feb. 16,
1989), Meigs App. No. 413, unreported, at 6 (“Conceivably a court may take
judicial notice of adjudicative facts under Evid.R. 201 in determining a Civ.R.
12[B][6] motion * * *.”).




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                                January Term, 1996



       {¶ 16} Further, even if the attorney fees matter had been raised in the prior
appeals, once those appeals were dismissed, Judge Corrigan possessed jurisdiction
to consider Porter’s motion. State ex rel. Newton v. Court of Claims (1995), 

73 Ohio St.3d 553, 558

, 

653 N.E.2d 366, 371

; see, also, R.C. 2113.36 (“When an
attorney has been employed in the administration of the estate, reasonable attorney
fees paid by the executor or administrator shall be allowed as a part of the expenses
of administration.”). Judge Corrigan acted within his jurisdiction to consider
Porter’s motion, and appellant possessed an adequate remedy at law. Therefore,
Special Prosecutors is inapposite, and the court of appeals did not err in dismissing
appellant’s prohibition claim against Judge Corrigan because it is beyond doubt
that appellant could not prove any set of facts entitling him to a writ of prohibition.
       {¶ 17} Appellant also sought a writ of mandamus compelling Judge
Corrigan to open the journals of the probate court to public inspection and to correct
the record in the probate court cases relating to the Gerber estate. In order to be
entitled to a writ for mandamus, appellant must establish (1) a clear legal right to
the requested relief, (2) a clear legal duty to perform these acts on the part of Judge
Corrigan, and (3) the lack of a plain and adequate remedy in the ordinary course of
law. State ex rel. Carter v. Wilkinson (1994), 

70 Ohio St.3d 65

, 

637 N.E.2d 1

.
       {¶ 18} As to appellant’s mandamus claim to compel Judge Corrigan to open
the probate court’s journal, the court of appeals determined that “the copies of
numerous filings in the probate court which accompany relator’s affidavit
contradict relator’s assertion that the records of the probate court are not open and
available for inspection and copying.” (In fact the copies of the filings were not
attached to the affidavit, but it is obvious that appellant had access to them.) In
addition, appellant does not assert any error by the court of appeals in dismissing
the foregoing claim.
       {¶ 19} Appellant instead contends that the court of appeals erred in
dismissing and striking his claim for a writ of mandamus compelling Judge




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Corrigan to correct the Gerber estate probate court records. The court of appeals
determined that appellant possessed an adequate remedy at law by appealing the
various entries in the Gerber estate cases, including the entries accepting appellant’s
resignation as executor and appointing Porter as successor administrator. The court
of appeals cited State ex rel. Worcester v. Donnellon (1990), 

49 Ohio St.3d 117

,

551 N.E.2d 183

, in support of its holding, and further noted that various appeals
had “been concluded” as to all of the cases giving rise to the action.
       {¶ 20} While we find Worcester to be, possibly, inapposite, we now,
nevertheless, limit Worcester to its facts. Notwithstanding this, we agree with the
court of appeals that appellant had an adequate remedy at law. Appellant could
have filed a Civ.R. 60(B)(5) motion for relief from judgment and could have
appealed from an adverse ruling on the motion if, in fact, the ruling was adverse.
       {¶ 21} The time has come to put an end to the seemingly interminable
delays that these estates have been subjected to by appellant. Judge Corrigan is
fully capable of determining the issues before him and has sought to do so in spite
of appellant’s continued efforts at delay. We should not and will not be part of
further delaying Judge Corrigan’s actions and his jurisdiction.
       {¶ 22} Accordingly, the judgment of the court of appeals is affirmed in all
respects.
                                                                  Judgment affirmed.
       MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFE,R JJ., concur.
       COOK, J., concurs separately.
       WRIGHT, J., concurs in part and dissents in part.
                               __________________


       COOK, J., concurring.
       {¶ 23} Although not argued by the parties to this appeal, the threshold issue
is whether the appellant’s claims against the court are maintainable as mandamus



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                                  January Term, 1996



or prohibition actions. Specifically, I question the court’s treating as a justiciable
controversy in an estate, an attorney’s claim that the court engaged in fraud and
collusion. Allegations of fraudulent practices by a judge are to be addressed in
disciplinary proceedings. I do not see it as practical that the court alleged to have
engaged in conspiracy and fraud should then consider a Civ. R. 60(B) motion for
relief from a judgment carrying out the conspiracy.
         {¶ 24} Appellant’s complaint asks to set aside a settlement agreement.
Usually the procedure employed is a motion to vacate a settlement agreement, not
an extraordinary writ. Moreover, because appellant is apparently not representing
the interests of any party to this estate, but rather appears only to be attempting to
protect his interests in fees, his remedy is outside the scope of the mandamus action
he has pursued. Finally, while there is a legal duty imposed on courts to have their
records speak the truth, does a nonparty attorney, currently representing the
interests of none of the parties, have a right to any correction of the record?
         {¶ 25} I concur in the judgment to affirm the court of appeals and deny the
writs.
                                 __________________
         WRIGHT, J., concurring in part and dissenting in part.
         {¶ 26} Although I join with the court in the bulk of its opinion, I respectfully
dissent from the portion that addresses Neff’s petition for mandamus to correct the
journal entries of the probate court. The court of appeals erroneously dismissed
this petition on a Civ.R. 12(B)(6) motion, in spite of the deference that procedural
device affords nonmoving parties.
         {¶ 27} The majority bases its disposition of this issue on two questionable
grounds. First, it incorrectly suggests that this court’s decision in State ex rel.
Worcester v. Donnellon (1990), 

49 Ohio St.3d 117

, 

551 N.E.2d 183

, is inapplicable
to the matter at hand, while stating that Worcester ought to be limited to its facts.




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Despite careful review of the court’s opinion, I have been unable to find any support
for either of these conclusions.
       {¶ 28} Second, the majority asserts that mandamus was inappropriate in this
matter because Neff possessed an adequate remedy at law, a Civ.R. 60(B)(5)
motion for relief from judgment. However, such a motion offers no relief to Neff
because neither of the journal entries Neff wishes to correct is “a final judgment,
order or proceeding” subject to review under Civ.R. 60(B).
       {¶ 29} Consequently, there is no adequate remedy at law available to Neff.
In light of this consideration, as well as those I have outlined above, we should
reverse the court of appeals’ decision on this narrow issue.
                               __________________




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