[Cite as Comer v. Bench, 2003-Ohio-2821.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO AMANDA COMER, et al.: Plaintiffs-Appellees: vs. : C.A. CASE NO. 19229
T.C. CASE NO. 00CV2863 (Civil Appeal from Common Pleas Court)
DOUGLAS W. BENCH, ETC. et al. : Defendants-Appellants :
......... OPINION Rendered on the 30th day of May, 2003. ......... Jonathan M. Richard, Timothy S. Sell, 108 E. Poplar Street, Sidney, Ohio 45365 Attorney for Plaintiffs-Appellees Neil F. Freund, Atty. Reg. No. 0012183; Edward H. Blakemore, Atty. Reg. No. 0071962, One Dayton Centre, 1 S. Main Street, Suite 1800, Dayton, Ohio 45402-2017 Attorneys for Defendants-Appellants ......... GRADY, J. {¶1} Defendants, Michigan Physicians Mutual Liability
Insurance Company and Bipin Modi, M.D., appeal from a declaratory judgment rendered by the general division of the court of common pleas. The action for declaratory judgment was commenced by
Amanda Comer, who asked the court to find that a settlement agreement between her and these defendants that was executed in 1986 is void for fraud in the factum. {¶2} The settlement agreement was on a claim for wrongful
death arising from the death of Plaintiff Amanda Comer’s father,
Danny Comer.
2 Amanda Comer was then four years of age. Her
alleged consent to the settlement was granted on the agreement and concurrence of her mother, Gail Comer, whose purported
signature appeared on the settlement agreement. {¶3} A decedent’s estate proceeding was commenced in the The settlement agreement was On March 19, and ordered
Probate Court of Montgomery County.
submitted to the Probate Court for its approval. 1986, the Probate of Court net approved proceeds the settlement five
distribution
the
among
beneficiaries,
including Amanda Comer. {¶4} In 2000, after she had reached her majority, Amanda
Comer commenced the underlying action for declaratory judgment in the general division of the court of common pleas. She asked the
court to find that her mother’s purported signature that appeared on the settlement agreement was forged, and on that finding to declare the agreement void and release her from any bar it
imposed to her further claims for compensation.
The defendants
in the declaratory judgment action included the insurance company and the physician who are appellants herein, the attorney who negotiated the settlement, other insurers, and the other
beneficiaries of Danny Comer’s estate.
Amanda Comer alleged in
an amended complaint that the Probate Court had reopened the Estate of Danny Comer on July 6, 2000. {¶5} On January 25, 2002, the matter was submitted to the Appellants objected that
trial court on stipulations of fact.
the question the matter involved was one in which the Probate Court had jurisdiction. (T. 6-9). The trial court didn’t rule
on that objection.
3 In a decision it found that the signature of
Amanda Comer’s mother that appeared on the settlement agreement was forged, and that the agreement was therefore void for fraud in the factum. On that basis the court further found that the
Probate Court’s approval was likewise procured by fraud, and therefore void. The court ordered that the administrator of
Danny Comer’s estate is authorized to pursue the relief available in law arising from Danny Comer’s alleged wrongful death. {¶6} Defendants Michigan Physician Mutual Insurance Company They
and Bipin Modi, M.D. filed a timely notice of appeal. present a single assignment of error. filed a brief. {¶7} “THE TRIAL COURT ERRED WHEN IT DID NOT
Plaintiff-Appellee has not
COMPLETELY
DISMISS MPLC AND DR. MODI FROM THE UNDERLYING LITIGATION.” {¶8} Defendants-Appellants argue that, notwithstanding the
fraud which the trial court found, and its resulting decision vacating the settlement agreement, the court should have
dismissed them as parties, presumably because they were in no way responsible for the fraud concerned. They also claim the benefit approved in
of the settlement agreement that the Probate Court
1986, discharging them from any liability arising from the death of Danny Comer. {¶9} Appellants have not renewed the jurisdictional
objection they made in the trial court; that the court lacked jurisdiction because jurisdiction was in the probate court. trial court didn’t rule on that objection. However, The by
proceeding to a judgment on the merits, the court implicitly
4 denied the jurisdictional objection. {¶10} Jurisdictional defects may be raised at any time.
Failure to challenge a court’s subject matter jurisdiction can’t confer subject matter jurisdiction the court lacks. Neither can
a stipulation that jurisdiction exists, which presents a question of law the court must analyze independently. The court in this
instance may have failed to do that because it viewed the factual stipulations as conclusive of jurisdiction. {¶11} Because the jurisdictional issue is threshold to the particular error alleged, and in view of Appellee’s failure to file a brief, we shall first address the jurisdictional defect that the trial court rejected when the defect was claimed. Had
the trial court addressed the question of its jurisdiction that was raised, the trial court should have found that it lacked jurisdiction to grant the declaratory relief requested of it. {¶12} A decedent’s personal representative is authorized to commence a wrongful death action on behalf of the decedent’s survivors. R.C. 2125.02(A)(1). The personal representative may,
with the approval of the probate court, settle with the defendant the amount to be paid. R.C. 2125.02(C)(1). The probate court is
authorized to order distribution of the settlement proceeds to the beneficiaries who are entitled to share in the proceeds. R.C. 2125.03(A). {¶13} The jurisdiction of the courts of common pleas and its divisions is determined by legislative enactment. Section 4(B), Ohio Constitution. 123 Ohio St. 393. Article IV,
Mattone v. Argentina (1931),
The probate court is a division of the court
5 of common pleas. {¶14} R.C. R.C. 2102.45. provides that “[c]ourts of record may 2721.02
declare rights, status, and other legal relations whether or not further relief is or could be claimed.” However, where a special
statutory method for determining a particular type of case is provided, it cannot be bypassed in favor of a declaratory
judgment action.
State ex rel. Albright v. Court of Common Pleas That is especially
of Delaware County (1991), 60 Ohio St.3d 409.
the case where the statutory method is exclusive and the bypass thereof would circumvent a clear legislative scheme for
jurisdiction.
Grossman v. City of Cleveland Heights (1997), 120
Ohio App.3d 435; Rocky Fork Hunt & Country Club v. Testa (1997), 120 Ohio App.3d 442. Adjudication in a declaratory judgment
action of an issue that could be tried in accordance with the statutory scheme would amount to ousting a statutory court of its attached jurisdiction. Laub v. Wills (1943), 72 Ohio App. 496;
Staffilino Chevrolet, Inc. v. Gen Motors Corp. (1993), 86 Ohio App.3d 247. {¶15} By enacting R.C. 2125.03(A), the General Assembly
conferred exclusive jurisdiction on the probate division of the court of common death pleas and to to approve settlements of in the actions for
wrongful proceeds.
order
distribution
settlement
That proceeding cannot be bypassed in favor of a
declaratory judgment action on the same claim commenced in the general division of the court of common pleas, as this action was. {¶16} The Probate Court had reopened the estate of Danny
6 Comer when the trial court proceeded to judgment in this declaratory judgment action. 1986 order the of approval and Any relief from the Probate Court’s distribution on a claim was of then available per Civ.R.
through
Probate
Court,
fraud
60(B)(3).
The one-year time limit of that rule bars the relief why this declaratory
available under it, which is most likely
judgment action was instead commenced in the general division. Even so, that cannot operate to confer jurisdiction on the
general division which the General Assembly has conferred on the Probate Court. {¶17} The trial court was without jurisdiction to grant the relief that it ordered, because exclusive jurisdiction to
determine the claim for relief involved is conferred by R.C. 2125.03 on the Probate Court of Montgomery County. The
jurisdictional defect was brought to the trial court’s attention, but was rejected. We find that the trial court erred when it
denied the jurisdictional objection and entered the order from which this appeal was taken. The assignment of error is
sustained. {¶18} Having sustained the error assigned, the judgment of the trial court is reversed as void, and it will be vacated.
BROGAN, J. and WOLFF, J., concur. Copies mailed to: Jonathan M. Richard, Esq. Timothy S. Sell, Esq. Neil F. Freund, Esq. Edward H. Blakemore, Esq.
7 Patrick K. Smith John D. Smith First Executive Corporation Brian McHenry Douglas W. Bench Ira H. Thomsen Thomas A. Knoth Edward C. Redder Timothy M. Cline Stephen Watring Hon. Dennis J. Langer
