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(:I.FRK (;C COURT SUPREN1E COURT of OHIO iN THE SUPREME COURT OF THE STATE OF 01110 COLUMBUS, OHIO CASE NO: 2010 -0712 VALENTINE SCHUROWLIEW ANSWER TO RESPONDENTS' vs. MOTION TO DISMISS RELATOR'S COMPLAINT FOR A WRIT JUDGE LANCE MASON OF PROHIBITION r-^ r, and R JUDGE LAURA GALLAGHER (:i.FRK (;C COURT Respondents. SUPREN1E COURT OF OHIO RELATOR'S ANSWER TO RESPONllENTS' MOTION TO DISMISS RELA'TOR'S COMPLAINT FOR A WRIT OF PROHIBITION William Mason (0037540) (0025685) Stanley Josselson Cuyahoga County Prosecutor 1276 W. 3 St. #411 1200 Ontario St. 8°i Floor Cleveland, Oliio 44113 Cleveland, Ohio 44113 216-696-8070 216-443-7800 216-696-3752 fax Attorney for Respondents JosselsonL aw ffinail.com Attorney for Relator Certifrcate of Service 2010 to A copy of this Answer was sept by US mail on William Mason, Attorney forRespondents Judge Lau Galla er and Judge Lance Mason, Justice Center 1200 Ontario St. 8`h Floor Cleveland, Ohio, 44113. n rl{v( r'' Ci ? tliFJ CLEFJK OF CC7tJR1' SUPREME CtJUR7 OF OHIO TABLE OF CONTENTS . .. ... ..................................r, n, m TABLE OF AUTHORITIES ...................... ...................................................... ........... ..........1 INTRODUCTION ............................... ...._ ' ........................t STATEMENT OF FACTS ........................................ .......................................7 LAW ANll ARGtTMENTS ..:...................................... ..........7 1. THE STANDARD FOR A WRIT OF PROHIBITION.......................................... II. THE PROBATE COURT HAS EXCLUSIVE JURISDICTION OVER THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATE OF SOFI.IA SCHUROWLIEW.INCLUDINGHERPRE-DEATIITRANSFERS .............................7 Pleas lacks subject matter jurisdiction A. The General Division of Common upon a decedent, negligence, breach of fiduciary duties over claims of fraud ..................... ...............:...................1 l owed a decedent, and conversion of a decedent's assets ... ...................... Pleas Court lacks jurisdiction over claims of B. The (ieneral Divisionof Common rights of Inheritance and Unjust Enrichment because Tortious Interference with ripe for adjudication. Furthermore, Plaintiffs are using those elaims are not yet ty ... ....................................................13 these torts to bypass Probate authori Division to bring their C. Plaintiffs in the instant matter lack standing in the General of fiduciary duty............15 conversion, negligence, and breach Estate clainis of fraud; III. THE PROBATE COURT HAS EXCLUSIVE JURISDICTION OVER ALL MATTERS RELATED TO THE SOFI7A SCHUROWI.IEW INCOME TRUST........e........o.=..=-_••.• 16 the Sofija Schurowliew A. The Probate Court assumed jurisdiction first in time over assets in controversy (Sofija Schurowliew's pre- Income Trust, the Parties, and the urisdiction, as well as controt ovcr the assets..... 16 death transfers)- andmaintained j B. Plaintiffs cannot use their claims of fraud, negligence, conversion, unjust enrichment, tortious interference, and breach of fiduciary duty to bypass the authority of the Probate Cotirt over the Sofija Schurowliew Income Trust ...........................17 C. 'I'he probate court has;plenaty power to adjudicate all issues in its exclusive jurisdiction over the Sof ja Schurowliew Income Trust ................................................................18 IV. THE PROBATE COURT IS EMPOWERED TO GRANT RELIEF IN THE FORM OF DAMAGES ................... ^....;.............. ................................................................ V. RELATOR ASKS THE SUPREME COURT OF 01110 TO DENY RESPONDENTS' MOTION TO DISMISS HIS COMPLAINT AND TO GRANT THE WRIT OF PROHIBITION AS T'HF FACTS AND CIRCUMSTANCES POINT TO THE COMMON PLEAS COURT'S TOTAL LACK OF JURISDICTION ..........................22 CONCLUSION ......................................................................................................................23 APPENDIX I: COPIES OF STATUTES APPENDIX II: EXHIBITS 1-26 TABLE OF AUTHORITIES S'CATU'1'ES 8, 9, 10, 18, 20, 21 ORC 2101.24(A)(1) ................ :................................... ........................... ...7, ORC 2101.24(A)(2) .................................................................................................................. 8 ORC 2101.24(B)(1) ................................................................................................................ 16 ORC 2101.24( C) ....................................................................................................8, 19, 20, 21 ORC 2109.50 .......... ................ ........... ............. ............... ........ ................ .........................4, 9, 20 ORC 2109.52 ............... ............................. ......... .............................. .................... .....................8 . ..:.........:.......:.........9 ORC 2305.01 .............................................................................................. ORC 2721.05 ........................................................................................ 9,10, 18 SECONDARY SOURCES ..........................16 sec. 154 ................................................................. 14 Ohio Jur. 2d, Courts CASE LAW ..........13 Abbot Laboratories v. Gardndr (1967), 387 U.S. 136, 148, 87 S. Ct. 1507 ................ Bank One Tnist Co N.A. v. Nve, 91 Ohio Misc. 2d 204, 698 N.E.2d 519 (1998) ...............21 Bourke v. Carnahan, 163 Ohio App.3d 818, 2005-Ohio-5422, 840 N. E. 2d 1101 ...............15 Butler v. Butler (1984), 19 Ohio Misc. 2d 1 .........................................................................16 Citv of Whitehall ex rel Wolfe v Ohio Civil Rights Commission, 74 Ohio St. 3d 120, 656 N. E. 2d 684 (1995) ...........................................................22 p^ Assn. (1969), 18 Ohio St. 2d 1, 246 N.E.2d 543 .................9 Cole v. Ottawa Home & Savzn s D M et al. Assi nees v. Garlou h(1877), 31 Ohio St. 158, 160 .......................................16 Friedman v. Friedman, 1990 WL 51998 (9"` Dist. 1990) ........................................................16 Gilpin v Bank One Corp., Clermont App. No. CA2003-09-073, 2004-Ohio-3012 ...................... .. ... ............................................22 Goff v. Ameritrust Co., N.A.' (1994), Cuyahoga App. Nos. 65296 and 66016, unreported, 1994 WL 173544 ........................................................................20, 21 i Goldberg v. Maloney, 111 Ohio St. 3"' 211, 217, 855 N. E. 2d 856, 2006-Ohio 5485 ............8 Grannen v. Ey, 44 Ohio App. 2d 55, 335 N. E. 2d 735 (1974) .................................................8 Grimes v. Grinies, 2007-Ohio-5653 (OHCA4) ..................................................................10, 11 Hamblin v. Dau^herty, 2007 Ohio 5893 (9" Dist. 2007) ........................................................12 Holik v. Laffertv, 2006-Ohio -2652 .........................................................................................21 Holt v. Sawver, 180 Ohio App. 3d 255, 2008 Ohio 6686 (1S1 Dist) ........................................14 In Re Estate of Mary Louise Leach, 2006-Ohio-3755 (OIICA2) ..............................................9 hi re Estate of Morrison(1953), 159 Ohio St. 285 ............................ .................................. 9, 19 In re Estate of William Jobe, 1994 WL 200542 (12 Dist. 1994) .............................................20 In Re Guardianship of Stephens (1964), 2 Ohio Misc. 47, 202 N.E. 2d 458 ..........................16 In the Matter of the Estate of Goehrina, 2007 Ohio 1133 (7`r Dist. 2007) ..................12, 14, 17 Kane v. Kane (1946), 146 Ohio St. 686, 67 N.E. 2d 783 ..................................... ..................17 Kasapis v. High Point Funtiture 2006-Ohio 255 (9 Dist. Summit) ............................................9 Keith v. Brim =sarder, 2008- Ohio 950 (10`' Dist. 2008) ..........................................................22 Lamar v. Washington , 2006-Qhio-1414 2006-Ohio 255 (9 Dist. Stinnmit) ............................11 Lewis v. Moser (1995), 72 Ohio St. 3d 25, 657 N.F. 2d 155 ...................................................21 Madiz:an v. Dollar Buildinn and Loan Co, 52 Ohio App. 553, 4 N.E. 2d 68 (1935) ...............16 Mock v. Bowen (1992) Lucas App. No. L-91-210 ..................................................................10 Moore v. Gravbeal (1988) 843 F. 2d 706 .................................................................................13 Ohio Farmers Ins. Co. v. Bank One (1998), Montgomery App. No. 16981 ............................21 Ohio Farmers Ins Co v Huntington National Bank (2000), Cuya. App. No. 76303 .............21 Patton v. Diemer (1988) 35 Ohio St. 3`d 68 . ............................................................................10 Reeional Rail ReorganizationAct Cases (1974), 419 U.S. 102, 140, 95 S. Ct. 335 ...............................................................................13 Resol.ution "1'rust v. Levitt, 1992 WL 181715 (Cuyahoga 8"' Dist. 1992),............................... 19 Robinson v. First StateBank (1983), 97111. 2d 174, 454 N.E. 2d 288 ......................................13 ii Roll v. Edwards, 156 Ohio App. 3d 227, 805 N.E. 2d 162 (4 Dist. 2004) ..........................13, 14 Rowan v. McLaughlin, Cuyahoga App. No. 85665, 2005-Ohio -3473 ....................................22 State ex rel. Connor v. McGoush, 46 Ohio St. 3d 188 (1989) .................................................. 7 State ex rel Elyria Foundry
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