State ex rel. Goldberg v. Mahoning County Probate Court

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 — 161 — 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 — 162 — 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. — 163 — 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 is not subject to administration and distribution like property of which the decedent died seized.” (Emphasis added.) Lower courts have reiterated that funds recovered by a personal representative in a wrongful death action are intended for the exclusive benefit of the statutory beneficiaries and are not an asset of the decedent’s estate. In re Estate of Craig (1993), 89 Ohio App.3d 80, 84-85, 623 N.E.2d 620, 624; Spivey v. Bender (1991), 77 Ohio App.3d 17, 24, 601 N.E.2d 56, 60. At best, the proceeds of a wrongful death claim are “assets” of the decedent’s estate for “procedural and — 164 — accounting purposes only,” the award being the actual property of the statutory beneficiaries, which cannot be used to satisfy the decedent’s debts. Fogt v. United Ohio Ins. Co. (1991), 76 Ohio App.3d 24, 28, 600 N.E.2d 1109, 1111; cf. DeGarza v. Chetister (1978), 62 Ohio App.2d 149, 155-157,16 O.O.3d 335, 339, 405 N.E.2d 331, 336-337, which, while referring to a wrongful death claim being part of the decedent’s estate, noted that it held this status in a limited or qualified sense only, and that the decedent’s representative was merely a nominal party to the claim, with the statutory beneficiaries being the real parties in interest. Although there is a duty on the estate representative to faithfully administer wrongful death proceeds and to account for them, these proceeds are not considered part of the estate of the decedent. See U.S. Fid. & Guar., 122 Ohio St. at 290-291, 171 N.E. at 335. Because the wrongful death settlement proceeds are not estate assets, the probate court and Judge Maloney lacked jurisdiction to proceed under R.C. 2109.50. Moreover, even if it could be successfully asserted that wrongful death proceeds are estate assets for purposes of R.C. 2109.50, a concealment proceeding brought under that provision would still not have authorized the prejudgment attachment of personal property ordered by appellants. As the court of appeals properly found, R.C. 2109.50 is confined to authorizing prejudgment attachment of persons, not property: “[The probate] 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.” (Emphasis added.) See, also, Black’s Law Dictionary (7 Ed.1999) 123, which includes as one of the definitions of “attachment” the “arrest of a person who either is in contempt of court or is to be held as security for the payment of a judgment.” Furthermore, R.C. 2715.01(D) expressly provides that a prejudgment attachment of personal property must be brought under R.C. Chapter 2715: “An attachment against the property, other than personal earnings, of a defendant may be accomplished prior to the entry of judgment only pursuant to an attachment proceeding under this chapter(Emphasis added.) Under R.C. 2715.01(A), an attachment against personal property, other than personal earnings, of a defendant may be had in a “civil action for the recovery of money.” (Emphasis added.) A concealment action under R.C. 2109.50, however, is, as appellants concede, not a civil action. Instead, it is a quasi-criminal proceeding that is not intended to be a substitute for a civil action to recover a judgment for money owing to an administrator. Fife, 164 Ohio St. 449, 58 O.O. 293, 132 N.E.2d 185, at paragraph one of the syllabus; Rinehart v. Bank One, Columbus, N.A. (1998), 125 Ohio App.3d 719, 732, 709 N.E.2d 559, 567. — 165 — In addition, neither R.C. 2101.24(A)(2) nor (C) confers jurisdiction on Judge Maloney and the probate court to issue prejudgment attachment orders in concealment proceedings. Under R.C. 2101.24(A)(2), the probate court has exclusive jurisdiction over a particular subject matter if (a) another section of the Revised Code expressly confers jurisdiction over that subject matter upon the probate court and (b) no section of the Revised Code expressly confers jurisdiction over that subject matter upon any other court or agency. No statutory section expressly confers jurisdiction on probate courts to consider concealment actions concerning proceeds from wrongful death claims or provides for prejudgment attachment of personal property in that or any other context. And R.C. 2715.01(A) and (D) specifically divest probate courts of authority to issue prejudgment attachment orders in concealment actions, which are special, quasi-criminal proceedings. R.C. 2101.24(C), which details a probate court’s plenary authority, is likewise inapplicable because a prejudgment attachment within a concealment proceeding is not “properly before the court.” Finally, even assuming that appellants had jurisdiction to issue a prejudgment attachment order against a defendant’s personal property in a concealment action, they patently and unambiguously acted in excess of that jurisdiction when they failed to comply with either the statutory or constitutional prerequisites for such an order. See Corn, 90 Ohio St.3d at 554, 740 N.E.2d at 268 (“a writ of prohibition prevents an inferior court from exceeding its jurisdiction”). As we held in Peebles v. Clement (1980), 63 Ohio St.2d 314, 17 O.O.3d 203, 408 N.E.2d 689, paragraph one of the syllabus, in order to comport with constitutional due process, “[statutes providing for prejudgment attachment must at a minimum: (1) require, plaintiff to furnish an appropriate bond or other security to compensate a defendant in the event of wrongful seizure; (2) require that an affidavit be filed alleging personal knowledge of specific facts forming a basis for prejudgment seizure; (3) require that a judicial officer pass upon the sufficiency of the facts alleged in the affidavit; (4) provide for dissolution of the seizure upon the posting of a bond by defendant; and (5) provide an immediate right of hearing to the defendant in which plaintiff must prove that the seizure is warranted.” See, also, R.C. 2715.01 et seq. The court of appeals correctly found that appellants here did not comply with these constitutional requirements, including those relating to an affidavit and a bond: “The action taken by the Probate Judge in this case was unconstitutional. By his unilateral action, he completely eliminated the requirement that an affidavit be filed alleging personal knowledge of specific facts forming a basis for prejudgment procedure, as well as the requirement that an independent judicial officer pass upon the sufficiency of those facts. He also eliminated the requirement of — 166 — an appropriate bond or other security to compensate a defendant in the event of wrongful procedure. Respondents’ argument that the Probate Court’s findings in relation to the concealment action constitute an affidavit is invalid. Those findings were not based on personal knowledge of specific facts, subject to an independent review;. The findings are general and do not describe any property taken from relator. Prejudgment attachment is not a proceeding that allows the Judge to be both the one presenting the facts and the one deciding whether the facts were sufficient to meet the constitutional requirements for a prejudgment attachment. This would be akin to a Judge filing an affidavit for a search warrant and then deciding that it was sufficient. Clearly, the actions of the Probate Judge resulted in the issuance of an unconstitutional prejudgment order of attachment.” See, also, R.C. 2715.03 and 2715.044. As previously noted, proceedings in probate court are restricted to those actions permitted by statute and the Constitution. Corron, 40 Ohio St.3d 75, 531 N.E.2d 708, at syllabus. Because neither statute nor the Constitution permitted appellants’ prejudgment attachment of Mrs. Goldberg’s personal property, the court of appeals properly granted the writ of prohibition to vacate the prejudgment attachment order and to cause the property to be returned to Mrs. Goldberg at appellants’ expense. Based on the foregoing, appellants patently and unambiguously lacked jurisdiction to issue their prejudgment attachment order. Therefore, albeit for reasons additional to and different from those expressed by the court of appeals, we affirm the judgment granting the writ of prohibition. Judgment affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Cook, JJ., concur. Pfeifer and Lundberg Stratton, JJ., dissent. Footnotes [1] We denied attorney Goldberg’s affidavit of resignation in May 2000, and found him in contempt of court. See In re Resignation of Goldberg (2000), 88 Ohio St.3d 1504, 727 N.E.2d 926; Disciplinary Counsel v. Goldberg (2000), 89 Ohio St.3d 1449, 731 N.E.2d 1137.