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Waterman v. Elk & Elk Co.9/14/1994
REECE, Presiding Judge.
Plaintiff-appellant, A. Joseph Waterman, appeals the trial court's order dismissing his lawsuit in favor of defendant-appellee, Elk & Elk Co., L.P.A., for lack of subject matter jurisdiction. We affirm.
On October 3, 1989, Steven Fitzpatrick, a minor, was severely injured in the apartment complex where he resided. His father, Mark Fitzpatrick, hired the law firm of Elk & Elk to represent Steven in Steven's personal injury action.
Mark became dissatisfied with Elk & Elk's representation. In January 1990, Mark discharged Elk & Elk and hired attorney Joseph Waterman to represent Steven in the personal injury action. Waterman and Mark entered into an agreement whereby Waterman would receive a contingency fee based on the award Steven received. After only a brief period of representation, Marsdischarged Waterman as Steven's lawyer and rehired Elk & Elk to represent Steven.
Elk & Elk arranged a settlement award for Steven. On July 7, 1992, the Summit County Probate Court appointed Mark as legal guardian for Steven to oversee the settlement award. Waterman learned of the settlement and informed all the parties as well as Elk & Elk of his lien in Steven's case. On July 23, the probate court approved the settlement and awarded attorney fees in the amount of $121,300 to Elk & Elk, subject to any liens or claims by Waterman. Upon further consideration, the probate court then added $24,260 to the attorney fee award for a total of $145,560 in attorney fees.
On March 11, 1993, Waterman moved for relief from judgment in the probate court to set aside the settlement award. At a hearing on July 26, 1993, the probate court denied Waterman's motion. The court then continued the hearing in order for Waterman to present evidence regarding the portion of attorney fees Waterman should receive under the settlement.
On September 17, 1993, Waterman voluntarily dismissed without prejudice his claim in the probate court and filed a complaint in the Summit County Common Pleas Court against Elk & Elk. Waterman accused Elk & Elk of breach of implied contract, breach of fiduciary duty, and conversion. The Summit County Common Pleas Court dismissed Waterman's action for want of subject matter jurisdiction. The common pleas court found that the probate court was the proper forum to determine the amount of Waterman's fees. Waterman now appeals.
In his sole assignment of error, Waterman asserts that the trial court improperly dismissed his claim against Elk & Elk. Waterman argues that the common pleas court and not the probate court was the proper forum to hear his claim. Specifically, Waterman argues that although the probate court originally maintained jurisdiction over the fee dispute, the probate court lost its jurisdiction when Waterman voluntarily dismissed his claim in probate court and filed suit in the common pleas court. We do not agree.
The jurisdiction of the probate court derives from R.C. 2101.24. The statute provides:
"(A)(1) Except as otherwise provided by law, the probate court has exclusive jurisdiction:
"* * *
"(d) To appoint and remove guardians, conservators, and testamentary trustees, direct and control their conduct, and settle their accounts;
"* * *
"(r) To act for and issue orders regarding wards pursuant to section 2111.50 of the Revised Code."
Pursuant to its authorized jurisdiction, the probate court appointed a guardian to oversee Steven's personal injury action. The issue that arises i
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