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Waterman v. Elk & Elk Co.9/14/1994
case, the probate court did afford Waterman the opportunity to be heard. The probate court held a hearing where Waterman and his counsel argued in support of his motion for relief from judgment. The court denied the motion and then scheduled a hearing on the issue of the disbursement of the attorney fees. Waterman dismissed his claim in probate court before this hearing was held. Thus, Waterman cannot claim a violation of due process when the probate court did provide him with the opportunity to present his argument. Waterman's assignment of error is overruled.
The judgment of the common pleas court is affirmed.
Judgment affirmed.
DICKINSON, J., concurs.
BAIRD, J., concurs separately.
BAIRD, J., concurring.
Though I do not disagree with the majority opinion, it seems to me that, since the jurisdiction of the probate court is statutory, mention should be made of the statutory basis for today's decision.
The parties really do not dispute the concept that the probate court has jurisdiction to hear such a matter. Waterman's argument is, however, that the general division of the common pleas court also has jurisdiction, by reason of this being a simple action upon a contract of the sort routinely heard in the general division. In other words, Waterman concedes that the probate court has jurisdiction, but maintains that its jurisdiction is not exclusive.
R.C. 2111.18 specifically gives the probate court jurisdiction to approve the settlement of minor's claims, through the use of guardianship procedures.(fn1) R.C. 2101.24(A)(2) provides:
"In addition to the exclusive jurisdiction conferred upon the probate court by division (A)(1) of this section, the probate court shall have exclusive jurisdiction over a particular subject matter if both of the following apply:
"(a) Another section of the Revised Code expressly confers jurisdiction over that subject matter upon the probate court.
"(b) No section of the Revised Code expressly confers jurisdiction over that subject matter upon any other court or agency."
Since I believe that both of these requirements are met here, I believe that the above statute is appropriate authority to establish the exclusive nature of the jurisdiction of the probate court over the subject matter at issue in this case.
_____________________ Footnote:
1 This power includes jurisdiction over disputes between attorneys as to distribution of attorney fees from settlement finds. In re Kinross (1992), 84 Ohio App.3d 335, 616 N.E.2d 1128.
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