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In re Guardianship of Freeman11/20/2002
DECISION AND JUDGMENT ENTRY
. This is an appeal from an Adams County Common Pleas Court, Probate Division, judgment that ordered Firooz T. Namei, appellant herein, to repay a portion of the attorney fees he previously withheld from a personal injury settlement to the guardianship of Therron Freeman.
. Appellant's brief posits no assignments of error as required by App.R. 16(A)(3). However, in the brief's table of contents does set out the following argument "sub-headings" which we will treat in the interests of justice as assignments of error:
FIRST ASSIGNMENT OF ERROR:
. "THE COURT BELOW ERRED TO THE PREJUDICE OF THE APPELLANT IN GRANTING THE APPELLEES AN EQUITABLE REMEDY WITHOUT FIRST ASCERTAINING THE MERITS OF APPELLANT'S ALLEGATIONS THAT APPELLEES DID NOT COME WITH `CLEAN HANDS.'"
SECOND ASSIGNMENT OF ERROR:
. "THE COURT BELOW VIOLATED THE PROCEDURAL DUE PROCESS RIGHTS OF THE APPELLANT WHEN IT CONDUCTED THE HEARING IN SUCH A MANNER AS TO DENY THE APPELLANT A REASONABLE OPPORTUNITY TO REBUT THE ALLEGATIONS AGAINST HIM."
THIRD ASSIGNMENT OF ERROR:
. "THE COURT BELOW ERRED TO THE PREJUDICE OF THE APPELLANT IN GRANTING THE APPELLEES' MOTION TO COMPEL RETURN OF FEES WHEN, EVEN IF ALL OF APPELLEES' ALLEGATIONS WERE PROVED TRUE, APPELLANT WOULD, BY ITS CONDUCT IN THE MATTER AT ISSUE, STILL BE ENTITLED TO QUANTUM MERUIT PAYMENT EQUAL OR GREATER THAN THE FEE RECEIVED."
. On August 22, 1997, Therron Freeman (DOB 1-8-93) sustained severe personal injury when struck by a Schwan Sales Enterprises delivery truck. Robin Freeman, Therron's father, retained the law firm of McKinney & Namie to represent their interests against Schwan. The firm entered into negotiations with Schwan's insurance company and, apparently, agreed to a $75,000 settlement.
. On October 7, 1998, appellant, a McKinney & Namie partner, filed an application on behalf of Robin Freeman and asked the Probate Court to appoint Robin Freeman as guardian of Therron's person and estate. The court did not immediately act on the application, as the Probate Court could not obtain service of process on Therron's mother. Nevertheless, on November 19, 1998, CNA Insurance Company (CNA) issued a check payable to "Robin Freeman, Guardian of Therron Freeman and McKinney & Namei: His Atty." The check was negotiated and the funds deposited in the firm's account. From those proceeds, appellant retained $26,467.68 for attorney fees and expenses, and then issued a $18,532.32 check payable to "Robin Freeman, Guardian of Therron Freeman." It is unclear from the record what became of those proceeds (and later what became of Robin Freeman) but the money did not find its way into any guardianship account for Therron. Subsequently, in June of 1999, Robin Freeman sought new counsel and appellant withdrew from the case.
. On August 31, 2000, a motion was filed that asked appellant and CNA to disclose the existence and whereabouts of the settlement proceeds. On May 9, 2001, a new application asked the Probate Court to appoint Michael Kelly as guardian of Therron's estate for purposes of resolving the personal injury claim and managing the proceeds. Therron's parents, Robin Freeman and Janet Dummitt, both consented to this appointment. On June 14, 2001, the trial court officially appointed Michael Kelly as guardian.
. On September 28, 2001, the guardian asked the trial court to compel appellant to return the $26,467.68 in attorney fees and expenses he retained from the settlement. The basis for the motion was that a proper guardianship had not been established and appellant had no authority to settle
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