Opinion
No. 91-P-17.
Decided October 7, 1993.
Gary Bullock and David F. Allen, for Conrail.
Gerald S. Leeseberg, for the guardian.
This matter comes before the court upon the motion filed July 27, 1993 by Conrail, asking that the court set a hearing and order the guardian to accept Conrail's settlement offer. A memorandum in opposition was filed by the guardian on August 13, 1993, and a reply memorandum was filed by Conrail on August 25, 1993. Finally, on September 13, 1993, the court received and filed a copy of the decision of the Twelfth District Court of Appeals, Hicks v. Consol. Rail Corp. (Sept. 13, 1993), Clermont App. No. CA93-03-018, unreported, 1993 WL 367179. In its decision, the appellate court reversed the Clermont County Common Pleas Court's ruling sustaining defendant's motion for summary judgment and remanded the case to the Clermont County Common Pleas Court for trial. In this unprecedented motion, Conrail seeks to have this probate court exercise jurisdiction as superior guardian and order the guardian to enter into a settlement in the underlying personal injury case on behalf of the ward. The issue here is simply whether a probate court has jurisdiction to do so and, if it does, should the court exercise its discretion in this unusual manner?
It is the decision of this court that it does not have jurisdiction to make the order sought by Conrail. Further, if it did, the court should not exercise its discretion in this particular case. To do so would constitute an abuse of this court's discretion. The motion of Conrail is, therefore, overruled in its entirety.
In support of its motion, Conrail cites the probate court's power to direct and control guardians, R.C. 2101.24(A)(1)(d), and the probate court's power to direct and control administrators and executors, R.C. 2101.24(A)(1)(c). In addition, Conrail cites the probate court's plenary power in law and equity to dispose of any matter properly before it, R.C. 2101.24(C). These sections, however, have to be read together with R.C. 2111.18, which sets forth the procedure in probate court for settlement of minors' claims. This statute reads in part as follows:
"[W]hen any ward is entitled to maintain an action for damages or any other relief based on any claim or subject to any claim to recover damages or any other relief based on any claim, the guardian of the estate of the ward may adjust and settle a claim with the advice, approval and consent of the probate court." (Emphasis added.)
This statute only grants the probate court the power to advise on, and approve and consent to, a settlement which has already been entered into by the guardian. In the case at bar, it is clear that no settlement has been reached between the guardian and Conrail. Conrail argues, however, that the court's powers as superior guardian, as set forth in R.C. 2111.50, should be exercised.
R.C. 2111.50(A)(1) does provide in part as follows:
"At all times, the probate court is the superior guardian of wards who are subject to its jurisdiction, and all guardians who are subject to the jurisdiction of the court shall obey all orders of the court that concern their wards or guardianships.
"(2)(a) Subject to divisions A(2)(b) and (c) of this section, the control of the guardian over the person, the estate, or both of his ward is limited to the authority that is granted to the guardian by the Revised Code, relevant decisions of the courts of this State, and orders or rules of the probate court."
In addition, paragraph (B) provides that "[t]hese powers include, but are not limited to, the power to do any of the following[.]"
The statute goes on to list seven specific things that a court's superior guardianship power includes. None of these specific powers refers to the ability of a probate court to interject itself into the negotiations of a minor's personal injury claim. Moreover, Conrail has failed to cite any other sections of the Ohio Revised Code, rules of court, or decisions in Ohio that support its contention that a probate court has the ability to exercise its superior guardianship powers in this situation.
The only precedent that Conrail cites is In re Guardianship of Jadwisiak (1992), 64 Ohio St.3d 176, 593 N.E.2d 1379. In Jadwisiak, the Ottawa County Probate Court cited a Florida attorney for contempt for his failure to pay attorney fees back into the court in order that the court might exercise final approval regarding attorney fees and the overall settlement. The court of appeals affirmed the probate court's decision. The Ohio Supreme Court, however, affirmed the decision in part and reversed in part. The case was then remanded to the probate court for further proceedings. The Supreme Court held that the probate court had subject matter jurisdiction over the entire amount of the settlement funds, which included the attorney fees. However, the court held that the probate court had not served the Florida attorney with notice of the hearing and, therefore, did not have personal jurisdiction, and that the attorney had been deprived of due process. Jadwisiak is completely distinguishable from the case at bar. Jadwisiak presupposes that a settlement had already been made and, in fact, it had. Jadwisiak has only to do with the court's approval of a final settlement and distribution of attorney fees. In the case at bar, there has been no settlement and no application for the court to approve a proposed settlement. Moreover, there is no issue in the case at bar, as to the distribution of attorney fees. Jadwisiak does not stand for the proposition that a probate court can interject itself into negotiations in a pending personal injury case and exercise its jurisdiction, as superior guardian, to impose a settlement. The court therefore concludes that Conrail has failed to cite any precedent for such proceedings to be held in probate court.
If this court were to sustain Conrail's motion or even set up a hearing or a pretrial, the court would be conceding that it has jurisdiction to do such a thing. This court does not concede that it has subject matter jurisdiction to be exercised in this manner and, therefore, declines to do so.
Assuming arguendo that the court did have jurisdiction to interject itself in this case, which it does not, there is a further issue as to whether the court should exercise its discretion to do so. It is the conclusion of this court that for the court to exercise jurisdiction in this manner would, in fact, be an abuse of discretion. To do so would involve the probate court and its judge in substituting its judgment for that of plaintiff's counsel, attorneys Paul Scott and Allen Schulman, Jr. Both of these attorneys are very competent, highly skilled experts in the field of personal injury practice in Ohio. These attorneys have thoroughly investigated all of the facets and aspects of this particular case and are privy to many facts and circumstances which are completely unknown to this court. It would be wrong and an abuse of discretion for this court to ignore the expertise and recommendations of these attorneys and substitute its judgment for that of expert trial counsel. To do so would be an unwarranted interference by the probate court in the trial advocacy system.
It would also be an abuse of discretion to interfere at this juncture because it would set a dangerous precedent for all probate courts in Ohio. That is, in all personal injury cases involving minors and incompetents, any party who is not satisfied with the progress of negotiations could jump from the trial court to the probate court and ask for a similar order. The next logical step would be to ask for such orders in wrongful death cases. R.C. 2125.02(C) provides:
"A personal representative appointed in this State, with the consent of the court making the appointment * * * may settle with the defendant the amount to be paid." (Emphasis added.)
R.C. 2125.03 provides further that a probate court has the power to adjust the shares of the beneficiaries in a wrongful death case if they are not in an equal degree of consanguinity or affinity to the deceased. Clearly, the probate court does not have jurisdiction to influence original settlements in wrongful death cases, but rather can only consent to the settlement and adjust the shares of the beneficiaries who are not in an equal degree of kinship. The court is certain, however, that, if this court did sustain the motion before it, it would not be long before another litigant would be approaching another probate court in Ohio and claiming that this decision permits the interjection of the probate court in the negotiation and settlement process of a wrongful death case. This would, in this court's mind, be clearly wrong. This court, therefore, declines to set such a dangerous precedent.
To sustain this motion would be a further abuse of discretion by this court since it would constitute an unwarranted interference with the advocacy system that has served this country so well for hundreds of years. To do so would seriously encroach upon the province of the trial court. It would dilute the ability of trial counsel to evaluate and negotiate their cases and affect the trial court's ability to settle cases. The probate court in every county should not be placed in a position whereby it would second-guess the trial court in personal injury litigation.
Finally, this court should not interfere in this case in view of the fact that the court of appeals reversed the trial court's granting of Conrail's motion for summary judgment and remanded the case for trial. Obviously, the place to negotiate a settlement is with the Clermont County Common Pleas Court and its trial judge and not this court.
The motion filed by Conrail on July 27, 1993 for hearing and for an order directing the guardian to accept a settlement offer is overruled in its entirety. No such hearing or pretrial will be set or held before this probate court.
Motion denied.