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State ex rel Sladoje v. Belskis9/3/2002
(REGULAR CALENDAR)
DECISION
. Petitioner, Mark Sladoje, Jr., has filed an original action in prohibition requesting this court to issue a writ of prohibition ordering respondent, Lawrence Belskis, Judge of the Franklin County Court of Common Pleas, Probate Division, to desist from removing petitioner as a successor trustee of an inter vivos trust that is the subject of a declaratory judgment action pending in the probate court.
. This court referred the matter to a magistrate, pursuant to Civ.R. 53(C) and Section (M), Loc.R. 12 of the Tenth District Court of Appeals. The magistrate issued an order to show cause why the complaint should not be dismissed for failure to state a claim upon which relief could be granted. See Appendix.
. Petitioner responded to the order to show cause, although respondent failed to do so. The magistrate issued a decision including findings of fact and conclusions of law and decided that the probate court has jurisdiction over an inter vivos trust, pursuant to R.C. 2101.24, and that the complaint for a writ of prohibition should be dismissed. Petitioner has filed objections to the magistrate's decision and argues that the probate court clearly lacks jurisdiction over an inter vivos trust.
. The following facts are taken from petitioner's complaint for a writ of prohibition.
. Petitioner is the successor trustee of an inter vivos trust executed by Ruth Moore in November 1991. Petitioner was appointed in 1996 by an amendment to the trust. Michael Moore and Melody Quesenberry are beneficiaries of the trust. Mrs. Moore died in 1999. Mr. Moore filed a declaratory judgment action in probate court naming petitioner as a defendant, and, as part of that action, a probate court magistrate ordered petitioner to file an accounting. Petitioner complied with the magistrate's order and filed an accounting, and Mr. Moore filed exceptions to that accounting. Petitioner filed a motion to dismiss the exceptions, arguing that the probate court had no jurisdiction to rule on the exceptions. The magistrate heard both the motion to dismiss and the exceptions, overruled the motion to dismiss and, as part of that ruling, removed petitioner as trustee. Petitioner objected to the magistrate's order removing him as trustee and, one day prior to the hearing in probate court on the objections, filed this action seeking a writ of prohibition.
. The magistrate's show cause order is analogous to a motion to dismiss. In O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus, the Ohio Supreme Court held:
. "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson, 355 U.S. 41, followed.)"
. In ruling on a motion to dismiss, pursuant to Civ.R. 12(B)(6), a court must presume all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190.
. In State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 74, the court stated:
. "In order for a writ of prohibition to issue, the relator must prove that (1) the lower court is about to exercise judicial authority, (2) the exercise of authority is not authorized by law, and (3) the relator possesses no other adequate remedy in the ordinary course of law if the writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 178, 631 N.E.2d 119, 121."
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