[Cite as In re Guardianship of Weller,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN THE MATTER OF: : : Appellate Case No. 24337 GUARDIANSHIP OF : NICHOLAS L. WELLER : Trial Court Case No. 10-GRD-112 : : : (Civil Appeal from Common Pleas : (Court, Probate Division) : : ...........

OPINION

Rendered on the 10th day of November, 2011.

...........

NEIL F. FREUND, Atty. Reg. #0012183, and KELLY M. SCHROEDER, Atty. Reg. #0080637, Freund, Freeze & Arnold, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017 and CAROLYN MUELLER, Atty. Reg. #0065533, Hall & Mueller, LPA, 3040 Presidential Drive, Suite 222, Fairborn, Ohio 45324 Attorneys for Appellant

DAVID M. RICKERT, Atty. Reg. #0010483, 110 North Main Street, Suite 1000, Dayton, Ohio 45402 and DAN R. WARNCKE, Atty. Reg. #0061799, and JULIA B. MEISTER, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202 Attorneys for Appellee 2

.............

FAIN, J.

{¶ 1} Appellant Nicholas Weller appeals from a decision of the Montgomery County

Common Pleas Court, Probate Division, establishing a guardianship over his estate. Weller

contends that the evidence does not support the trial court’s finding that he was incompetent to

manage his estate.

{¶ 2} We conclude that this appeal has been rendered moot by the May 31, 2011 entry

finding Weller restored to competency and terminating the guardianship. Accordingly, this

appeal is dismissed as moot.

I

{¶ 3} On March 31, 2010, Nicholas Weller suffered a stroke at his residence in

Montgomery County. He was taken to Kettering Medical Center for treatment. He was

released from the hospital after a ten-day stay. He was checked into an assisted living facility

by Janet Ward, a friend of Weller and Weller’s deceased wife. Weller refused to remain in

the assisted living facility and returned home, where Ward arranged for in-home care. It was

determined that Weller suffered from aphasia; or the inability to express himself or to

understand the words of people speaking to him.

{¶ 4} Thereafter, Ward filed an application for appointment as guardian over Weller’s

person and estate. Weller hired his own attorneys and proceeded to contest the need for the

guardianship. Following protracted litigation and a hearing, the Probate Court determined

that Weller was competent as to his person, but found him incompetent as to his estate. The 3

Probate Court appointed attorney Christopher Cowan as guardian of the estate.

{¶ 5} On November 12, 2010, Weller appealed from the order subjecting him to a

guardianship of his estate. Just prior to the August 2, 2011 oral arguments in this appeal, this

court became aware that the Probate Court had issued an order Terminating Guardianship on

May 31, 2011. Following argument, we permitted the parties to file supplemental briefs on

the question of whether the entry terminating the guardianship rendered this appeal moot.

Supplemental briefs on the mootness issue have been filed by Weller and the applicant, Janet

Ward.

II

{¶ 6} Before we address Weller’s assignments of error, we must first consider the issue

of whether the probate court’s order terminating the guardianship rendered this appeal moot.

{¶ 7} “The doctrine of mootness is rooted in the ‘case’ or ‘controversy’ language of

Section 2, Article III of the United States Constitution and in the general notion of judicial

restraint.” James A. Keller, Inc. v. Flaherty (1991),

. “While Ohio

has no constitutional counterpart to Section 2, Article III, the courts of Ohio have long

recognized that a court cannot entertain jurisdiction over a moot question.”

“It has been

long and well established that it is the duty of every judicial tribunal to decide actual

controversies between parties legitimately affected by specific facts and to render judgments

which can be carried into effect. It has become settled judicial responsibility for courts to

refrain from giving opinions on abstract propositions and to avoid the imposition by judgment

of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970), 4

. In other words, an issue is moot when it has no practical significance,

being instead merely hypothetical or academic.

{¶ 8} “Although a case may be moot with respect to one of the litigants, [an appellate]

court may hear the appeal where there remains a debatable constitutional question to resolve,

or where the matter appealed is one of great public or general interest.” State ex rel. White v.

Kilbane Koch,

,

, 398, quoting from Franchise

Developers, Inc. v. Cincinnati (1987),

. Another exception allows for

judicial review of moot questions when the issue is capable of repetition, yet evading review.

“This exception applies when the challenged action is too short in duration to be fully litigated

before its cessation or expiration, and there is a reasonable expectation that the same

complaining party will be subject to the same action again.” State ex rel. White v. Kilbane

Koch, ¶ 13, quoting from State, ex rel. Dispatch Printing Co. v. Louden (2001),

.

{¶ 9} Weller contends that this case was not rendered moot by the order terminating

the guardianship. In support, he contends that the matter should be decided pursuant to the

exceptions to the mootness doctrine. Specifically, he argues that “this guardianship is a

classic example of a situation that is too short in duration to be fully litigated, but that could

recur and again avoid review. The Probate Court is the superior guardian and possesses the

authority to reappoint a guardian for Mr. Weller. R.C. 2111.02. Without this Court’s

review, the Probate Court could again find Mr. Weller or another individual to be incompetent

just because he or she is unable to fully articulate speech due to aphasia [and could make the

same evidential errors as were made in the original guardianship hearing.]” 5

{¶ 10} While Weller might, in the future, be the subject of another guardianship

proceeding, that proceeding would necessarily be predicated upon new facts; e.g., another

stroke or other debilitating event causing him to become incompetent. In other words, the

aphasia caused by the prior stroke, from which Weller has presumably sufficiently recovered

in order to be deemed competent by the Probate Court, cannot be used as a basis for a new

guardianship, unless he suffers a set-back of some kind in the future that would preclude him

from managing his own affairs. Furthermore, Weller has had the opportunity to prepare

appropriate documents – powers of attorney, trusts, or the like – to avoid the necessity (or,

from his point of view, the risk) of another guardianship litigation. Also, were he subjected

to another guardianship over his person or estate, we cannot presume that action would be of

such limited duration as to preclude full litigation of the matter. Finally, we cannot presume

that the identical evidence or procedural and evidentiary issues would arise in a subsequent

guardianship proceeding. Therefore, any ruling we might make on the issues raised in this

appeal would not necessarily prevent a ruling in a future proceeding that would be adverse to

Weller. Thus, we conclude that Weller has failed to demonstrate that this matter falls into

this exception to the mootness doctrine.

{¶ 11} Weller also contends that the case is an exception to the mootness doctrine

because it involves an issue of “great public interest,” in that it concerns the loss of his

constitutional right to control his property. He argues that “other individuals in his position,

could be subjected to the same type of proceeding and wrongly deprived of their constitutional

rights,” if we fail to correct the trial court with regard to the proceedings below. The focus

of this argument is the claim that the trial court erred in its findings, its evidentiary rulings, as 6

well as in procedural matters.

{¶ 12} Again, Weller’s argument presumes that substantially similar evidentiary and

factual issues will arise in proceedings involving other individuals who suffer aphasia caused

by stroke. However, given that the evidence in this case indicates that aphasia affects

different people differently, and in differing degrees, we conclude that the evidentiary and

factual issues arising in a proceeding involving another person suffering from aphasia are not

likely to be substantially similar.

{¶ 13} Finally, Weller contends that we should review this appeal because permitting

the original guardianship order to stand would have adverse collateral consequences on his

businesses and could subject him to paying attorney fees to the law firm that represented Janet

Ward in the institution of these proceedings.

{¶ 14} According to the record, Weller is the owner of several real estate businesses

that require him to enter into contracts on a regular basis. Weller contends that his

“livelihood depends on his reputation as a successful businessman [whose] current clients and

prospective clients will continue to question [his] ability to transact business if there is an

order in existence that adjudicated him incompetent.”

{¶ 15} Whether any of Weller’s clients, current or prospective, will ever become aware

that Weller was the subject of a guardianship proceeding, and whether any such knowledge

would adversely impact his business, which centers on renting properties and providing

mortgages to individuals who do not qualify for a “regular” bank mortgage, is speculative, at

best. And whether any adverse impact of such knowledge would be ameliorated by the fact

that the order instituting the guardianship was later reversed on appeal is even more 7

speculative. We decline to exercise appellate jurisdiction based on this speculation.

{¶ 16} With regard to the issue of attorney fees sought by the law firm that represented

Janet Ward, Weller argues that the claim for fees expended to prosecute the guardianship

application is dependent upon the validity of the guardianship order.

{¶ 17} “R.C. 2113.36 vests the probate court with jurisdiction to determine necessary

and reasonable attorney fees.” In re Guardianship of Papuska, Stark App. No.

2004-CA-00150,

. “Absent a specific demonstration that the actions are

beneficial to the estate or ward, a guardian may not be reimbursed from the estate for legal

expenses incurred in proceedings relating solely to the determination of whether the guardian

may serve in that capacity.”1 In re Guardianship of Wonderly (1984),

.

Thus, we conclude that our disposition of the underlying merits of this case would not be

dispositive of the issue of whether an award of attorney fees is justified in this case, and if so,

how much.

{¶ 18} We conclude that this appeal has been rendered moot by the order of the

probate court terminating the guardianship. There is no further relief that this court could

afford Weller that has not already been afforded him by the probate court.

III

{¶ 19} Weller’s appeal is dismissed as moot.

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1 In this case, the reimbursement would be to a person seeking the institution of a guardianship, but not the guardian, since Janet Ward was never appointed guardian. The award of fees would still require a showing of necessity and a benefit to the estate or ward. That might be difficult in this case. 8

HALL, J., concurs.

GRADY, P.J., concurring:

{¶ 20} It may be that the Probate Court lacked jurisdiction to terminate Weller’s

guardianship pursuant to R.C. 2711.47 while Weller’s appeal was pending. See State ex rel.

Special Prosecutors v. Judges, Court of Common Pleas (1978),

. Weller

doesn’t argue that the Probate Court lacked jurisdiction to do that, no doubt being pleased that

the impediment of his guardianship has been removed. However, the termination of Weller’s

guardianship renders moot the error he assigns with respect to the Probate Court’s November

8, 2010 guardianship order because, following that termination, there is no relief we can grant

Weller with respect to the error he assigns on appeal. Weller can’t have his cake and eat it

too.

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Copies mailed to:

Neil F. Freund Kelly M. Schroeder Carolyn Mueller David M. Rickert Dan R. Warncke Julia B. Meister Hon. Alice O. McCollum