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In re Thompson11/8/2002
DECISION.
Judgment Appealed From Is: Reversed and Cause Remanded
We have sua sponte removed this cause from the accelerated calendar.
{ } Donald and Brenda Thompson retained John H. Metz and Albert T. Brown, Jr., as counsel for a medical malpractice lawsuit filed against a doctor and others for injuries suffered by their daughter, Tesha Lanae Thompson, at her birth. The Thompsons executed a contingency-fee agreement dated January 24, 1997, whereby counsel would receive certain percentages of any amount recovered by the Thompsons, if litigation progressed beyond identified milestones. The remuneration percentages ranged from thirty-three and one-third percent to forty-five percent of the total recovery by the Thompsons. The Thompsons were also responsible for their counsel's trial-preparation costs.
{ } Before the malpractice lawsuit progressed to trial, the defendants offered a certain sum of money as a total settlement of all the Thompsons' claims. At that time, Donald Thompson filed an application for appointment as guardian of the estate of his daughter in the probate court, as well as an application to settle his daughter's claims in the medical malpractice lawsuit. The settlement application included a request for attorney fees in an amount that was forty percent of the total proffered settlement amount and that also included reimbursement for trial-preparation expenses. Donald Thompson attached to his settlement application copies of the contingency-fee agreement, the trial-preparation expenses, and a report from the child's neurologist.
{ } The probate court appointed Donald Thompson as guardian of his daughter's estate on January 11, 2001. The probate court then approved the settlement in the full amount proposed and ordered the payment of counsel's trial-preparation expenses. But the probate court then ordered as payment for attorney fees an amount that was only thirty-three and one-third percent of the settlement amount, rather than the forty percent that had been proposed by Donald Thompson.
{ } In its opinion on the issue of attorney fees, the probate court held that it had ordered only thirty-three and one-third percent of the settlement as attorney fees because Donald Thompson had not sought prior court authorization to proceed with the settlement. The probate court noted that Sup.R. 71(I) required that the application for authority to settle the child's claims be filed before the fiduciary entered into a contingency-fee contract with an attorney for legal services. The probate court noted that its Loc.R. 71.2 required the court's approval of an application for authority to enter into a contingency-fee agreement before such an agreement was executed. The probate court also noted that its approval would not have been required had the contingency-fee agreement not exceeded thirty-three and one-third percent of the total recovery. The probate court noted that, in the absence of prior court approval, Loc.R. 71.2(C) set a maximum attorney fee of thirty-three and one-third percent.
{ } Metz filed various post-judgment motions, including a motion for reconsideration of the probate court's ruling on attorney fees and a motion to declare Sup.R. 71 and Loc.R. 71.2 unconstitutional. Metz also appealed the probate court's judgment to this court. This court then granted a limited stay of the appeal and remanded the matter to the probate court "for the sole purpose of permitting said court to consider and determine the various post judgment motions filed therein." Following the remand, the probate court denied Metz's motion for reconsideration. This court then lifted the stay on the appeal. Metz now raises four assignments
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