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State ex rel Goldberg v. Mahoning County Probate Court9/5/2001
Probate court - Concealed or embezzled assets - R.C. 2109.50 to 2109.56 do not confer subject-matter jurisdiction on probate courts to issue prejudgment attachment orders relating to personal property - Prohibition - Writ sought to prohibit judge of common pleas court, probate division, from exercising further authority under his June 23, 2000 attachment order - Court of appeals' grant of writ affirmed, albeit for reasons additional to and different from those expressed by the court of appeals.
Submitted June 20, 2001
In April 1999, appellants, the Mahoning County Court of Common Pleas, Probate Division, and its judge, Timothy P. Maloney, began investigating complaints alleging that attorney Richard D. Goldberg had concealed, embezzled, conveyed away, or had been in the possession of money, chattel, and choses in action of seventeen different estates. Judge Maloney initiated concealment proceedings pursuant to R.C. 2109.50 et seq.
Judge Maloney found that attorney Goldberg had deposited in his own "trustee" checking account settlement checks intended for beneficiaries of numerous estates without the knowledge, consent, or approval of fiduciaries or the probate court and that he used these funds for personal purposes. According to Judge Maloney, these proceeds were from settlements of wrongful death claims. Judge Maloney further found that attorney Goldberg had failed in his duties to surrender client and estate files and financial records of certain guardianships and that he had liquidated some of his property holdings in 1999.
On June 23, 2000, as a result of these findings, Judge Maloney issued an order directing the bailiff of the Girard Municipal Court to "search for, seize and attach any and all business and/or financial records and/or property in the possession or under the control of Richard D. Goldberg and/or any and all members of his family and/or any other person, firm corporation, partnership other entity which may be acting for him or which or who may have acted for him, with him or otherwise, whether directly or indirectly, in any personal, business or other venture and whether the same may be considered personal, business or professional in nature." Judge Maloney directed the bailiff to search and attach property within attorney Goldberg's personal residence as well as a warehouse and "any other place in which the said Bailiff may learn that any of the above described types of records, property, or other interests may be kept, discovered or located." Judge Maloney specified in his entry that the prejudgment attachment of personal property was justified under R.C. 2715.01 et seq. as well as R.C. 2109.56.
On Saturday, June 24, 2000, the bailiff and several law enforcement officers executed the prejudgment attachment order. When they executed the order at the Goldberg residence, a fourteen-year old daughter of attorney Goldberg and his wife, Dorothy Goldberg (appellee), answered the door and was told to contact an adult. Mrs. Goldberg and her attorney arrived shortly thereafter. Over protests by Mrs. Goldberg and her attorney, the police and their agents executed the order, videotaping, photographing, and listing the items contained in the house, and seizing and removing some of the items, including four Rolex watches, two Piaget watches, three Oriental rugs, and one computer. The attachment team also videotaped and photographed the items in the warehouse and changed the locks to it. The attachment order was not requested by any representative of the estates and was not supported by an affidavit pursuant to R.C. 2715.03.
On July 3, 2000, Mrs. Goldberg filed a complaint for a writ of prohibition in the Court of Appeals for M
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