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In re Mercurio3/24/2003
. This appeal is from an order entered by the Mahoning County Court of Common Pleas, Probate Division, on May 3, 2000, which resulted in a finding that attorney Richard D. Goldberg was in criminal contempt for failure to comply with the court's judgment entry and orders of June 17, 1999, that he pay over the entire proceeds of the wrongful death settlement in the gross sum of $150,000 to the estate of Ellen Rose Mercurio. The court ordered that Goldberg be sentenced to a term of 180 consecutive days of imprisonment within the Mahoning County Justice Center and that such sentence be served consecutive to any other sentence imposed upon him. The sentence was ordered to commence after completion of all other periods of actual physical incarceration. Goldberg is currently incarcerated in the Federal Correction Institute at Morgantown, West Virginia.
. This case was consolidated for hearing before this court with other cases involving similar issues of contempt. However, since the facts in each case are somewhat different, although the law is generally the same, the cases will be considered separately in our opinions.
. Appellant, Goldberg, asserts the following assignments of error:
. "1. The Probate Court erred in finding Goldberg to be in contempt of court.
. "2. The Probate Court erred in ordering Goldberg to be imprisoned for failure to pay a debt.
. "3. The Probate Court erred by taking judicial notice of statements made in other cases.
. "4. The Probate Court erred by failing to allow Goldberg basic procedural due process during the contempt hearing."
. Goldberg represented the estate of Ellen Rose Mercurio, deceased, in a wrongful death action filed in the Mahoning County Court of Common Pleas. Ms. Mercurio's estate was admitted to probate in Mahoning County, Ohio, and Paulette Sitnic was appointed executrix.
. Goldberg settled the wrongful death case in February 1999, for $150,000, and the executrix of the estate, Paulette Sitnic, executed the settlement check. However, neither Goldberg nor the executrix had sought prior approval of the settlement from the probate court as required by law.
. On February 29, 1999, an application to approve the settlement was filed by attorney Albert Ortenzio, as the attorney for the estate. In the meantime, Goldberg had possession of the $150,000 check from the insurance company which was made out to the executrix of the estate and Goldberg.
. The application for the hearing to approve the settlement was set for hearing on July 8, 1999, at which time Goldberg did not attend. However, attorneys Dunlap and Ingram did appear on his behalf. At that hearing, the probate court took testimony from Executrix Sitnic. Sitnic testified that she felt that the amount of settlement was fair. She further stated that she had received a call on the morning of the hearing from Casey, the receptionist/secretary employed by Goldberg, that she had met at least a half a dozen times and whose voice she knew. Casey told her that the hearing had been canceled and, when Sitnic asked Casey why, she said that "Rick canceled it," and "I said why." Casey replied, because of things he (Goldberg) has going on in other areas. Sitnic told Casey to let Rick (Goldberg) know that she has a copy of the settlement check and that she will have an attorney present. Casey merely advised her that she would be notified when the hearing was rescheduled.
. At the conclusion of the June 8, 1999 hearing, the probate court found the settlement to be fair but that Goldberg should immediately deposit the $150,000, which he held in an account belonging to him,
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