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In re Estate of DeCarlo12/8/2005
JUDGMENT: Reversed.
JUDGES: Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
{ } Appellant Goldberg, Persky & White, P.C. (GPW) appeals the decision of the Mahoning County Probate Court vacating its prior decision that approved of the litigation agreement between GPW and Ellen J. DeCarlo, executrix of the Estate of Raymond A. DeCarlo, for asbestos litigation. GPW also finds fault with the Probate Court ordering Ellen J. DeCarlo thirty days to supply it with a "Representation Agreement" with other asbestos litigation counsel. The issue before the court is whether the probate court abused its discretion in making either of the above two orders. For the reasons expressed below, the judgment of the probate court is reversed.
STATEMENT OF CASE
{ } GPW, a Pennsylvania law firm, represented Raymond A. DeCarlo five years prior to his death in an asbestos-related personal injury lawsuit in Cuyahoga County Common Pleas Court. After his death, GPW continued its representation by representing the Estate of Raymond A. DeCarlo in the asbestos-related personal injury lawsuit.
{ } On July 13, 2004, after Raymond's death, the Mahoning County Probate Court approved the representation agreement between Ellen J. DeCarlo, executrix of the Estate of Raymond A. DeCarlo, and GPW for the continued representation in the asbestos-relate personal injury lawsuit. Thus, it granted GPW pro hac vice status.
{ } On November 18, 2004, a hearing was held in the Mahoning County Probate Court. The hearing was regarding a check that was forwarded by GPW to the executrix's estate attorney, Albert J. Ortenzio. At the hearing, GPW admitted that the check was for the incorrect amount in that it had pre-deducted its attorney fees and costs, i.e. it was for net proceeds, not gross proceeds. GPW admitted that this was a clerical error on its part and that it would be corrected.
{ } The probate court at this point asked whether the settlement amount had yet been approved by the court. GPW acknowledged that it made another clerical mistake when it did not follow its prior practice of forwarding the applications for approval to the executrix (through her attorney) for filing with the probate court. The probate court also became aware of three other settlements that were sent to the executrix and deposited into an interest bearing account without receiving prior approval from the probate court. GPW stated that it may have not forwarded the approval application to the executrix by mistake and that is why there was no prior approval.
{ } After hearing this information, the probate court addressed Ellen J. DeCarlo. It explained that she asked to be named executrix, and that this was a "severe" responsibility. (Tr. 11). It explained that it was her "duty to make sure that everyone is complying with the law of Ohio and your instructions." (Tr. 11). The court then adjourned and stated that it would enter its orders.
{ } On November 22, 2004, the court entered judgment. In this order the court stated:
{ } "Upon the Court's review of the record of this case and the testimony presented, the Court finds not less than four (4) 'settlements' have been accepted by Goldberg, Persky, without the Court's prior approval and contrary to Local Rule 70.5(B). As a consequence, more than $25,000.00 is on deposit in a restricted Sky Bank account, but without the benefit of the Court knowing who the settling defendants are and whether each such settlement is fair and reasonable. The Court finds that Goldberg, Persky has, therefore, exceeded any authority to act on behalf of the Estate and has hindered, delayed and obstruct
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