Durkin v. Williams

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Durkin v. Williams, Slip Opinion No. 2022-Ohio-1416.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-1416

DURKIN, EXR., v. WILLIAMS, JUDGE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Durkin v. Williams, Slip Opinion No. 2022-Ohio-1416.]

Prohibition—Law-of-the-case doctrine—Writ sought to prevent trial judge from

exercising jurisdiction over issues allegedly already decided by court of

appeals—Court of appeals’ mandate did not expressly restrict or

specifically limit the proceedings on remand such that trial judge patently

and unambiguously lacked jurisdiction—Writ denied.

(No. 2021-0580—Submitted February 8, 2022—Decided May 3, 2022.)

IN PROHIBITION.

____________________

Per Curiam.

{¶ 1} Petitioner, John Durkin, executor of the estate of Virginia Durkin,

seeks a writ of prohibition against respondent, Judge Steven O. Williams, who is

presiding over the underlying action involving the Durkin estate in the Summit

County Common Pleas Court, Probate Division. John contends that Judge

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Williams’s appointment of a special master commissioner under R.C. 2101.06

disregards the law of the case established in In re Estate of Durkin, 9th Dist. Summit

No. 28661, 2018-Ohio-2283 (“Durkin I”). John attempted to appeal the order

appointing the special master commissioner, but the court of appeals dismissed the

appeal for lack of a final, appealable order. In re Estate of Durkin, 9th Dist. Summit

No. 29532, 2021-Ohio-1076 (“Durkin II”). John then brought the present original

action.

{¶ 2} We denied Judge Williams’s motion to dismiss and granted an

alternative writ. 164 Ohio St.3d 1437, 2021-Ohio-3233, 173 N.E.3d 1219. For the

reasons set forth below, we now deny the writ.

I. FACTS

{¶ 3} In August 2015, Virginia Durkin died a resident of Summit County.

Virginia’s daughter, Patricia O’Halloran, predeceased her by several months.

Virginia’s will provided for her estate to be divided equally between her children,

Patricia and John; if Patricia predeceased Virginia, then Patricia’s share would pass

to her three children per stirpes. See Durkin I at ¶ 2. The will was admitted to

probate, and John was appointed as the executor in accordance with the will.

{¶ 4} The administration of the estate became contentious when Patricia’s

son, Daniel O’Halloran, contended that John had abused his power of attorney

while Virginia was alive and that he had not included assets in the estate inventory

that should have been included. A brief overview of the probate proceedings is

necessary to understand John’s prohibition claim.

A. Inventory, objections, and final judgment

{¶ 5} John filed the estate inventory in October 2015, and the probate court

approved it in December 2015. The inventory listed $503,320 worth of savings

bonds as the sole asset of the estate. In May and June 2016, Daniel submitted

untimely objections to the inventory as well as objections to the estate’s final

account.

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January Term, 2022

{¶ 6} In August 2016, the probate-court magistrate held a hearing on

Daniel’s objections, and at that hearing, Daniel contended that John had engaged

in fraud and self-dealing in his roles as attorney in fact for Virginia and executor of

her estate. Daniel later obtained information regarding assets that he believed

should have been included in the estate, and the magistrate ordered disclosures

regarding two individual retirement accounts (“IRAs”) Virginia had held.

{¶ 7} In February 2017, the magistrate issued a decision disposing of (1)

Daniel’s exceptions to the inventory and accounting, (2) Daniel’s motion to remove

John as executor, and (3) various other motions and objections. With respect to

one IRA, the magistrate found that John had engaged in self-dealing when, after

Patricia’s death, he used his power of attorney to substitute himself for Patricia as

beneficiary. Based on that finding, the magistrate set aside the substitution and

ordered that the IRA be included in the estate. With respect to one of Virginia’s

bank accounts, the magistrate imposed a constructive trust on one-half of that

account because the funds were traceable to a certificate of deposit that had

designated Patricia as a beneficiary—the magistrate ordered that that portion be

included in the estate. With respect to the savings bonds, the magistrate upheld

their inclusion in the estate, rejecting Daniel’s contention that they ought to have

been re-registered with him and his siblings as beneficiaries. The magistrate also

reduced a fine for a contempt citation against Daniel to $500. In all other respects,

the magistrate rejected Daniel’s contentions.

{¶ 8} Daniel filed objections to the magistrate’s decision. In May 2017, the

probate court issued a final judgment entry overruling the objections and adopting

the magistrate’s decision. The entry specifically stated: (1) “John remains as

Executor” and (2) “[t]he Court accepts the Estate Accounting.” The court also

denied Daniel’s motions objecting to the payment of John’s fiduciary fees as

executor and the estate attorney’s fees, sustained the finding of contempt against

Daniel, and stated that there was “no just cause for delay.”

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B. Durkin I

{¶ 9} Daniel appealed the final judgment, and in June 2018, the court of

appeals affirmed in part and reversed in part the probate court’s order. Durkin I,

2018-Ohio-2283. The appellate court reversed the contempt finding against Daniel,

id. at ¶ 39-40, 44, but it rejected Daniel’s seven other assignments of error. The

court of appeals remanded for further proceedings “consistent with” its decision.

Id. at ¶ 44. The court of appeals also ordered that a special mandate issue requiring

the trial court to carry the appellate court’s judgment into execution.

C. Proceedings after remand

{¶ 10} On remand, the probate-court magistrate issued an order in January

2019 that (1) vacated the contempt finding against Daniel and (2) required John to

file an amended inventory reflecting the magistrate’s rulings that had been adopted

in the probate court’s May 2017 final judgment entry. John duly filed the amended

inventory, and Daniel filed objections. Daniel also sought to disqualify the probate-

court judge—Judge Elinore Marsh Stormer—on grounds of bias. Although the

judge denied any bias, she voluntarily recused herself, and Judge Williams was

assigned to the case.

{¶ 11} At an April 2019 status conference, Judge Williams expressed an

“inclination” to remove John as executor. But after holding a hearing on the

removal issue, Judge Williams declined to remove John as executor. Instead, in

August 2019, Judge Williams appointed a special master commissioner, in

accordance with R.C. 2101.06, and instructed that commissioner to “investigate and

make a report to the [Probate] Court as to whether any additional assets should be

included in the [estate] after examining the actions of John Durkin acting with the

Power of Attorney from Virginia Durkin.”

D. Durkin II

{¶ 12} John attempted to appeal the August 2019 order appointing the

special master commissioner, arguing that it violated the mandate from the earlier

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appeals-court decision with respect to the disposition of several of Daniel’s

assignments of error. In March 2021, the court of appeals dismissed for lack of a

final, appealable order. Durkin II, 2021-Ohio-1076.

{¶ 13} One judge dissented, stating that she would conclude that the order

was final and appealable; she also stated: “Perhaps an appropriate remedy under

these circumstances would be for [John] to file an action requesting an

extraordinary writ, given that he contends that the visiting judge disregarded this

Court’s prior decision.” Id. at ¶ 14 (Carr, J., dissenting).

{¶ 14} In May 2021, John filed this action seeking a writ of prohibition.

II. ANALYSIS

A. Law of the case and the remedy of prohibition

{¶ 15} Generally, to demonstrate entitlement to a writ of prohibition, a

petitioner must show (1) that a court has exercised judicial power, (2) that its

exercise of judicial power is unauthorized by law, and (3) that denying the writ

would result in injury for which no other adequate remedy exists in the ordinary

course of law. See State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, 156 Ohio

St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 16. But a petitioner does not need

to prove the third requirement—the lack of an adequate remedy in the ordinary

course of law—if he can show that the court patently and unambiguously lacked

jurisdiction to exercise its judicial power as it did. Id. at ¶ 26. This exception from

the general rule comes into play in this case because the availability of a

discretionary appeal from Durkin II (which John did not pursue) qualifies as an

adequate remedy in the ordinary course of law, even though this court might have

denied jurisdiction. See State ex rel. O’Malley v. Collier-Williams, 153 Ohio St.

553, 2018-Ohio-3154, 108 N.E.3d 1082, ¶ 14-15. Therefore, to be entitled to the

requested writ, John must show that Judge Williams patently and unambiguously

lacked jurisdiction to appoint a special master commissioner in the underlying case.

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{¶ 16} John predicates his prohibition claim on Judge Williams’s alleged

“fail[ure] to comply with the appellate court’s mandate directed to [the probate]

court.” He asserts that because “the appellate court’s decision in [Durkin I, 2018-

Ohio-2283,] is the law of this case,” it “governs any other court which subsequently

considers this case.” The law-of-the-case doctrine states that “[a]bsent

extraordinary circumstances, such as an intervening decision by the Supreme Court,

an inferior court has no discretion to disregard the mandate of a superior court in a

prior appeal in the same case.” Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410

(1984), syllabus. Equally established is the principle that “ ‘a writ of prohibition is

an appropriate remedy to prevent a lower court from proceeding contrary to the

mandate of a superior court.’ ” State ex rel. Cordray v. Marshall, 123 Ohio St.3d

229, 2009-Ohio-4986, 915 N.E.2d 633, ¶ 32, quoting State ex rel. Crandall, Pheils

& Wisniewski v. DeCessna, 73 Ohio St.3d 180, 182, 652 N.E.2d 742 (1995).

{¶ 17} Although it is settled that the law-of-the-case doctrine may furnish

the grounds for a writ of prohibition in a proper case, the court adjudicating the

prohibition claim must determine whether the challenged action of the trial court in

fact violates the earlier appeals-court mandate or whether the action fell within the

lower court’s residual powers. The appellate court’s mandate establishes the law

of the case on the legal questions involved in that appeal, State ex rel. Baker v. State

Personnel Bd. of Rev., 85 Ohio St.3d 640, 642, 710 N.E.2d 706 (1999), meaning

that the law-of-the-case doctrine “ ‘comes into play only with respect to issues

previously determined,’ ” Giancola v. Azem, 153 Ohio St.3d 594, 2018-Ohio-1694,

109 N.E.3d 1194, ¶ 16, quoting Quern v. Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139,

59 L.Ed.2d 358 (1979), fn. 18. Additionally, the law-of-the-case doctrine will not

be applied to achieve unjust results. See Baker at 643.

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January Term, 2022

B. The appellate court’s pronouncement in Durkin II

regarding the mandate in Durkin I is not dispositive

{¶ 18} In the context of dismissing John’s appeal from Judge Williams’s

order appointing the special master commissioner, the appellate court stated: “We

find nothing * * * in the mandate of the prior order of this Court that would conflict

with appointment of a master commissioner by the trial court.” Durkin II, 2021-

Ohio-1076, at ¶ 10. Citing this pronouncement, Judge Williams argues that because

the court of appeals “took no offense to [his] actions in hiring a Master

Commissioner,” it is “inappropriate for [John] to obtain another ‘bite at the apple’

via this Writ of Prohibition.”

{¶ 19} In the past, we have shown deference to appellate courts when those

courts have determined the scope of their own mandate. Observing that the court

of appeals is in the best position to determine whether a trial court has violated the

appellate court’s mandate, this court has declined to find a patent and unambiguous

lack of jurisdiction by the trial court when the court of appeals itself has found no

violation of its mandate. State ex rel. Pyle v. Bessey, 112 Ohio St.3d 119, 2006-

Ohio-6514, 858 N.E.2d 383, ¶ 12; see also State ex rel. Jelinek v. Schneider, 127

Ohio St.3d 332, 2010-Ohio-5986, 939 N.E.2d 847, ¶ 14; but see State ex rel.

Mullins v. Curran, 131 Ohio St.3d 441, 2012-Ohio-685, 966 N.E.2d 267, ¶ 10, 12

(reversing court of appeals’ decision granting a writ of prohibition to prevent a trial-

court judge from conducting a retrial on the claim of negligence, which the court

of appeals held was in violation of its earlier mandate).

{¶ 20} In this case, however, we decline to defer to the court of appeals’

pronouncement. In Durkin II, the appellate court dismissed John’s appeal because

it found that Judge Williams’s order appointing the special master commissioner

was not a final, appealable order. The only issue relevant to making that

determination in Durkin II was whether John could effectively protect his right to

enforce the mandate in a later appeal from a later order. Id. at ¶ 6. The violation-

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of-mandate issue was not a basis for the court of appeals’ decision that the order

was not final and appealable but instead constituted the substantive issue raised by

John’s premature appeal.

{¶ 21} By concluding that the order was not appealable, the court of appeals

effectively ruled that it had no jurisdiction to decide whether the mandate had been

violated. As a result, the appellate court’s substantive finding that the mandate had

not been violated was a nullity. See Supportive Solutions, L.L.C. v. Electronic

Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490,

¶ 10 (“An appellate court can review only final orders, and without a final order, an

appellate court has no jurisdiction”); State v. Henderson, 161 Ohio St.3d 285, 2020-

Ohio-4784, 162 N.E.3d 776, ¶ 17 (a judgment rendered by a court without

jurisdiction “is a mere nullity”). We must therefore make an independent

determination concerning the scope of the mandate.

C. Whether appointing the special master commissioner

violated the Durkin I mandate

{¶ 22} The first step in evaluating John’s prohibition claim consists of

closely inspecting his argument that appointing the special master commissioner

violated the appellate court’s mandate in Durkin I, 2018-Ohio-2283. Although

John attaches some importance to the court of appeals’ affirmance of Judge

Williams’s decision not to remove him as executor, his main argument for finding

a violation of the mandate lies in his observation that Durkin I “affirmed the probate

court’s determination to close the record” by “overrul[ing] [Daniel’s] third and fifth

assignments of error.”

{¶ 23} John’s characterization of the probate court’s rulings, which were

affirmed by the court of appeals in Durkin I, is correct: the probate court initially

made rulings on the information before it, cut off further investigation, and all of

its rulings merged into the final judgment that was affirmed in pertinent part by the

court of appeals. See Navistar, Inc. v. Testa, 143 Ohio St.3d 460, 2015-Ohio-3283,

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January Term, 2022

39 N.E.3d 509, ¶ 38 (“the [Board of Tax Appeals] hearing examiner’s [evidentiary]

ruling has merged into the BTA’s decision and constitutes the law of this case,

subject to challenge * * * in this appeal”). Specifically, the court of appeals

affirmed the probate court’s order terminating further discovery when it overruled

two of Daniel’s assignments of error. In overruling Daniel’s third assignment of

error, the court of appeals held that the probate court did not abuse its discretion

when it denied Daniel’s motion to compel discovery of information about John’s

alleged abuse of his power of attorney before Virginia’s death. Durkin I at

¶ 16-19. And in overruling Daniel’s fifth assignment of error, the appeals court

held that the probate court did not abuse its discretion by “entering judgment on the

accounting of Virginia Durkin’s estate and denying [Daniel] a hearing despite his

presentation of new evidence in his objections to the magistrate’s decision.” Id. at

¶ 25.

{¶ 24} Accordingly, John presents a plausible argument that when, after

remand, Judge Williams ordered an investigation into John’s actions, he reopened

what the probate court had fully resolved in the earlier proceedings and thus

violated the law-of-the-case doctrine because the probate court’s rulings had been

affirmed by the court of appeals and were thereby incorporated into the appellate

court’s mandate.

{¶ 25} But the mere plausibility of John’s argument is not a sufficient basis

for a writ of prohibition to issue. The necessary second step in evaluating John’s

prohibition claim involves determining whether his argument so clearly establishes

a violation of the mandate that Judge Williams’s lack of jurisdiction was patent and

unambiguous. See Mullins, 131 Ohio St.3d 441, 2012-Ohio-685, 966 N.E.2d 267,

¶ 11. Because Mullins involved this court’s independent determination whether an

appeals court’s mandate was violated, it provides us with guidance in deciding this

case.

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{¶ 26} In Mullins, the estate administrator brought a medical-malpractice

action to recover damages in connection with the decedent’s death. A jury returned

a finding of negligence and awarded damages, and the defendants appealed. In

pertinent part, the defendants argued that the trial court erred by failing to instruct

the jury on the possible contributory negligence of the estate administrator herself.

The Seventh District Court of Appeals held that the trial court erred in failing to

give that instruction and in denying the defendants’ motion for a new trial. Mullins

v. Comprehensive Pediatric & Adult Medicine, Inc., 7th Dist. Mahoning No. 07

MA 144, 2009-Ohio-1310, ¶ 74, 79, 81-82, 86, 87, 91, 102. On remand, the trial

court set the case for retrial on both the negligence claim and the contributory-

negligence issue. The estate administrator objected, asserting that the retrial should

address only the issue of contributory negligence.

{¶ 27} When the trial judge persisted, the estate administrator brought a

prohibition action in the court of appeals. The appellate court held that retrying the

negligence claim would violate its earlier mandate, and it therefore granted the writ.

State ex rel. Mullins v. Curran, 7th Dist. Mahoning No. 10 MA 76, 2011-Ohio-

1312. But on appeal, we reversed, holding that the trial-court judge “reasonably

concluded from the court of appeals’ mandate * * * that a retrial of the wrongful-

death case, including the negligence claim * * * was warranted.” Mullins, 131 Ohio

St.3d 441, 2012-Ohio-685, 966 N.E.2d 267, ¶ 10. We observed: “The court of

appeals’ mandate does not expressly restrict or otherwise limit the new trial to the

contributory-negligence issue” and does not “specifically limit the retrial so as to

preclude the jury’s consideration of the negligence claim.” Id. at ¶ 10, 12.

{¶ 28} Mullins provides the test that we will use in this case: Did Durkin I,

2018-Ohio-2283, “expressly restrict” and “specifically limit the [proceedings]” on

remand in a manner that precluded Judge Williams’s appointment of the special

master commissioner to investigate Durkin’s use of the power of attorney? The

answer is no. Any such restriction is at best implied, which is insufficient. Because

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Durkin I did not clearly and explicitly restrict the probate court’s actions on remand

regarding John’s use of the power of attorney, Judge Williams did not patently and

unambiguously lack jurisdiction to appoint the special master commissioner to

conduct further investigation.

{¶ 29} Mullins also makes an important point concerning the need for an

appellate-court mandate to be sufficiently clear. If a court of appeals’ order

explicitly limits the trial court’s jurisdiction on remand, it enables the party

aggrieved by the limitation to appeal that ruling. In Mullins, if the original court of

appeals’ decision had explicitly ordered that the new trial address only contributory

negligence, the defendants could have appealed that limitation. Mullins at ¶ 13.

Similarly, if Durkin I had clearly and explicitly forbidden further investigation of

John’s use of the power of attorney on remand, Daniel could have appealed that

ruling. As in Mullins, we adhere in this case to the principle that the law-of-the-

case doctrine will not be applied to achieve an unjust result. Id. at ¶ 14.

III. CONCLUSION

{¶ 30} For the foregoing reasons, we deny the writ of prohibition. Costs are

taxed to the petitioner.

Writ denied.

O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, STEWART, and

BRUNNER, JJ., concur.

DEWINE, J., concurs in judgment only.

_________________

Michele Morris; and Gregory T. Plesich Co., L.P.A., and Gregory T.

Plesich, for petitioner.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Carrie Hill

and John Galonski, Assistant Prosecuting Attorneys, for respondent.

_________________

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