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In re Guardianship of Matyaszek12/29/2004
ng and appellant's father denies ever attending any hearing on his son's behalf.
{ } Appellee's counsel at the hearing, SS &D;Attorney O'Malley ("Mr. O'Malley"), claims that both appellant and his father attended the hearing. Both courts reviewing appellant's motion to vacate found that appellant and his father likely attended the hearing. Because of the deference this Court must give to the fact finder, we will likewise assume that appellant and his father were present.
Also at the hearing was appellee's attorney, Mr. O'Malley.
B. The Settlement Hearing before Magistrate Wertz
{ } At the settlement hearing, which was not recorded, Magistrate Wertz approved appellant's settlement for the sum of $10,000.00. He stated that he approved it because of the documents provided to him by appellee's counsel and counsel's representations of appellant's current health. There is also some evidence that Magistrate Wertz questioned appellant's father about his son's medical condition and prognosis and attempted to engage appellant himself at the hearing, although the Magistrate does not recollect appellant or his father.
{ } Magistrate Wertz claimed that it would have been contrary to his usual procedure to approve a $10,000.00 settlement on behalf of a minor when the minor was unrepresented. He claimed he only approved settlements without representation of the minor where the injury was worth only between $1,500.00 and $3,000.00 and there was not even a soft tissue injury.He claimed, too, that it was his practice to satisfy himself that the infant had, in fact, recovered from his injuries. Further, he claimed he would have approved a settlement on behalf of a minor without representation only if he knew the attorney from long-standing practice before the court.
{ } The documents contained in the file and available to Magistrate Wertz include the MetroHealth discharge summary of May 1987 and Dr. Grisoni's letter to Schacher which advised Schacher to obtain all medical information about appellant's current condition from Dr. Likavec at the Neurology Clinic. Magistrate Wertz testified that it was his practice to ask only for the discharge summary when confronted with the medical situation of an infant.
{ } Absent from the documentation relating to appellant's condition was Dr. McLaughlin's letter of February 1, 1988, and other MetroHealth medical charts and Drs. McLaughlin and Grisoni's treatment records that appellee's agent Schacher had requested.
{ } Also, the Report of Settlement was presented to the Magistrate. It was signed by appellant's father and represented that appellee had made zero "reimbursement to parents." In fact, appellee had paid appellant's parents $12,327.66 to cover his medical expenses. These bills were contained in the file presented to Magistrate Wertz and were allegedly discussed at the hearing. Appellee's attorney represented to Magistrate Wertz that these matters were to be "handled separately and paid for." Additionally, appellant's parents received $12,143.25 in payment for the Bronco, but this was not disclosed in the Report of Settlement.
{ } Magistrate Wertz claimed that the fact appellant's father was receiving other monies in the settlement would have been important to him because parents often "lose sight of whose claim is being settled."
{ } Immediately after the Magistrate approved the settlement, appellee paid appellant's father the settlement amount. The Magistrate ordered that the money be placed in Bank One in a restricted account in appellant's name which could not be withdrawn until appellant reached the age of majority. However, appellee made out the $1
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