619 N.E.2d 1239
No. 92-C-9.Court of Common Pleas, Highland County, Probate Division.
Decided March 8, 1993.
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Schwartz, Manes Ruby and Thomas J. Breed, for plaintiff.
James D. Hapner, Guardian ad litem.
Rocky A. Coss, Highland County Prosecuting Attorney, for Highland County Historical Society.
Judy A. Gano, for City of Wilmington Park Fund.
John Crouse, for St. Mary’s Episcopal Church.
Beckman, Weil, Shepardson Faller and Ed Marks, for University of Cincinnati, W.G.U.C.
Buckley, Miller Wright and Frederick J. Buckley, for Wilmington College Endowment Fund.
Taft, Stettinius Hollister and Gregory C. Luke, for Kingswood of Cranbrook Schools Endowment Fund, National Right to Work Committee, and Cincinnati Symphony Association.
Dinsmore Shohl and Wiley Dinsmore, for Ohio Foundation of Independent Colleges, and Cincinnati Summer Opera Association.
Frost Jacobs and Lawrence H. Kyte, for Cincinnati Art Museum.
Frost Jacobs and Carla H. Rusconi, for Taft Museum.
Lee I. Fisher, Attorney General, for the state.
Dinsmore Shohl and Timothy A. Tepe, for Ohio Foundation of Independent Colleges and Cincinnati Summer Opera Association.
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RICHARD L. DAVIS, Judge.
Briefs filed herein reveal that Katherine P. Fairley, Executrix of the Estate of Vernon B. Fairley, Jr., has an action for declaratory judgment pending in the General Division of the Common Pleas Court of Highland County, Ohio, case No. 89-CIV-449, praying for the inter vivos trust of Vernon Fairley, Jr. to be declared invalid or for reformation, if valid. Caroline S. DeMar, Trustee Under Inter Vivos Trust of Vernon B. Fairley, Jr., by answer, asks that said trust be declared valid by declaratory judgment. The charities were not made parties defendant to the cause.
In the cause before this court, Katherine P. Fairley, executrix, as defendant, has joined plaintiff Caroline S. DeMar, trustee, in asking for the trust to be declared valid and reformed. The charities are made parties defendant and pray that the trust be declared invalid as to Katherine P. Fairley, executrix, and Caroline S. DeMar, trustee, but valid as to them, primarily because of the rule against perpetuities. Their argument is set forth as Count One in Katherine P. Fairley’s suit in the general division.
The probate division has concurrent jurisdiction with the general division in any action that involves an inter vivos trust, R.C. 2101.24(B), but it is a longstanding rule of law that the first court to acquire jurisdiction over the parties and the subject matter must prevail. “[T]he court whose jurisdiction is first invoked by the commencement of proper proceedings and the service of the required process acquires jurisdiction to the exclusion of a court of concurrent or co-ordinate jurisdiction.” (Footnote omitted.) 22 Ohio Jurisprudence 3rd (1980), Courts and Judges, Section 325, at 502.
“The determination of whether two cases concern the same `whole issue’ or matter so as to preclude the subsequently filed action from proceeding involves a two-step analysis. First, there must be a determination that the cases are pending in two different courts of concurrent jurisdiction involving the same parties. Second, there must be a determination that a ruling by the court subsequently acquiring jurisdiction may affect or interfere with the resolution of the issues before the court where suit was originally commenced.” Michaels Bldg. Co. v. Cardinal Fed. S. L. Bank (1988), 54 Ohio App.3d 180, 561 N.E.2d 1015, paragraph one of the syllabus.
Although the charities were not made parties in the case pending in the general division, Foddy v. Miller (1910), 10 Ohio N.P. (N.S.) 76, 24 Ohio Dec. 604, at headnote three, stands for the proposition that “[w]here a court has jurisdiction of the subject-matter and has acquired jurisdiction of some of the parties, and subsequent summons is necessary to bring in the remaining parties, the
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action will have precedence over another action begun in the same court at a later date on the same cause of action, involving the same parties and seeking the same relief.” See, also, West v. Morris (1858), 2 Disney 415, 13 Ohio Dec. 254.
It may be contended, in the complaint for reformation filed in the probate court, that Katherine P. Fairley, in her capacity as Executrix of the Estate of Vernon B. Fairley, Jr., was not made a party defendant. She would have to be made a party defendant if the probate court were to consider the cause, because R.C. 2721.12 requires that “all persons shall be made parties who have or claim any interest which would be affected by the declaration.” Katherine P. Fairley, executrix, has asserted herself as such a party in interest in the cause pending before the general division court. Furthermore, Caroline S. DeMar, trustee, states in her brief an alleged settlement with the second wife, which itself acknowledges the interest of Katherine P. Fairley.
“A court possessed of jurisdiction generally must exercise it.” Konicek v. Elyria (1987), 37 Ohio App.3d 43, 523 N.E.2d 516, syllabus. A court may not dismiss an action because a subsequent action involving the same parties and same subject matter and seeking the same relief is filed in another court Konicek v. Elyria, supra.
Reference is made in the briefs that the parties Katherine P. Fairley, executrix, and Caroline S. DeMar, trustee, have an agreed settlement, but this court takes judicial notice that the record in the general division case fails to reflect same.
It may be argued that, since both courts are divisions of the common pleas court, these matters are all in the same court, but the general division court is constitutionally created with general jurisdiction, while the probate division, since the 1968 Modern Court’s Amendment to the Ohio Constitution, is a creature of statute with only limited statutory jurisdiction. R.C. 2101.24(B) expressly recognizes two separate courts with concurrent jurisdiction.
The parties, Katherine P. Fairley, executrix, and Caroline S. DeMar, trustee, have invoked the jurisdiction of the general division on the issues of the validity of the trust and, if determined to be valid, for the reformation of the trust. These are the same issues raised in the subsequent suit filed in the probate division. Since these same issues remain pending before the general division court, which first obtained jurisdiction over the parties and the subject matter, the general division court retains jurisdiction to determine all matters properly before it. The probate division court is precluded from considering said issues.
Judgment accordingly.
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