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In re Estate of Campbell11/29/2005
ority to impose monetary sanctions, the actual imposition of sanctions is reviewed for abuse of discretion. Id.
{ } In its judgment entry approving the settlement and distribution, the probate court ordered that $5,103.96 was to be deducted from Goldberg-Persky's fee for interest. Though the court's judgment does not specify why this interest was deducted from Goldberg-Persky's fees, its previous judgment of September 24, 2002, which we subsequently reversed, gives the court's explanation. In that judgment the court stated:
{ } "Additionally, the Court finds that the Estate was unduly hindered and delayed in the administration of the wrongful death claim by virtue of the fact that litigation counsel did not properly enter an appearance before this Court, pursuant to Sup.R. 71(I), that it accepted settlements purportedly on behalf of the Estate and/or fiduciary, without the prior approval of this Court as required by O.R.C. Chapter 2125, Sup.R. 70 and the Local Rules of this Court. Further, that in doing so, litigation counsel interfered with the duty of the fiduciary to properly receive and deposit such funds into interest bearing accounts for the purpose of enhancing the value of the Estate and/or its related claims. The Court shall therefore Order that the fee for litigation counsel, as noted above, shall be reduced by the interest which otherwise may have been added to this settlement, as calculated by litigation counsel, and deduct the sum of $5,103.96 from its * * * fee as a recoupment to the Estate."
{ } Thus, the court deducted the $5,103.96 as penalty interest against Goldberg-Persky. The court took the entire settlement amount, including interest earned ($53,954.83), determined Goldberg-Persky's fee ($17,979.17 - $5,367.20 [for Kelligher's fees] = $12,611.97), and then subtracted the amount of interest it believed Goldberg-Persky cost the estate ($5,103.96). Thus, it determined that Goldberg-Persky was entitled to $7,508.01.
{ } Appellant explains that the court penalized it under Loc.R. 70.6. Under Loc.R. 70.6(A):
{ } "Whenever it appears to the Court that a previous Application To Approve Settlement And Distribution Of Wrongful Death Claims * * * are inaccurate or incomplete for any reason, including the fact that the fiduciary, the attorney of record for the estate or the litigation counsel for such claims may have failed to fully or accurately disclose any matter the Court deems pertinent, including, inter alia, a failure to distinguish and disclose which defendants have actually paid, separate from which defendants have not yet paid any settlement sums, the fiduciary, the attorney of record for the estate and the litigation counsel shall be required to immediately report upon the status of such erroneous entries and pleadings."
{ } The rule then explains what the report should include. In section (B) the rule states that the probate court "reserves the right to impose such sanctions as it deems appropriate for any failure to fully and accurately disclose the particulars of earlier settlements." Loc.R. 70.6.
{ } Loc.R. 70.6 became effective on March 14, 2002. Goldberg-Persky received the settlement in this case before that time.
{ } We previously addressed this issue in several recent cases. See Traylor, 7th Dist. Nos. 03-MA-253, 03-MA-254, 03-MA-255, 03-MA-256, 03-MA-257, 03-MA-258, 03-MA-259, 03-MA-262; In re Estate of Marsteller, 7th Dist. No. 03-MA-185, 2004-Ohio-6214; In re Covington, 7th Dist. No. 03-MA-98, 2004-Ohio-3639; In Re: Windsor, 7th Dist. No. 03-MA-184, 2004-Ohio-6213. In those cases, we held that the probate court could not apply a local rule retroactively to reduce the fees and expe
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