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In re Estate of William11/2/2005
JUDGMENT: Reversed and Modified.
JUDGES: Hon. Mary DeGenaro Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
{ } In this opinion, we address thirty-four cases. These cases have not been officially consolidated, but they are all appealed by the same party and contain a common subject. They come for consideration upon the records in the trial court, Appellant's briefs, and their oral arguments before this court. In these appeals, Appellant, Goldberg, Persky, Jennings & White, P.C., appeal the decisions of the Mahoning County Probate Court that imposed a sanction against Appellant in the form of reduced attorney's fees.
{ } In many of these appeals, the probate court indicated that it was sanctioning Appellant because it delayed forwarding settlement funds to the Administratrix and deposited the funds in a Pennsylvania bank rather than an Ohio bank. In other appeals, the probate court's judgment entry stated that it was sanctioning Appellant for this reason, but its statements at a hearing indicate that it was sanctioning Appellant because settlement funds were not distributed within thirty days. Finally, in one appeal, the trial court clearly indicates that it is sanctioning Appellant because the settlement funds were not distributed in thirty days.
{ } It is inappropriate for the probate court to sanction Appellant for these reasons. The sanctions the probate court imposed are not approved by law. Furthermore, the violations it refers to are more appropriately punished by disciplinary proceedings. Finally, it is difficult to see how Appellant's actions prejudiced the estate, so even the probate court's own local rules do not give it authority to sanction Appellant for these actions. Thus, the probate court abused its discretion and its decisions are reversed and modified.
Facts
{ } The facts underlying each of these appeals are more or less the same. In each case, the personal representative of the estate filed one or more documents with the probate court indicating that there were wrongful death proceedings pending.
These claims were all based on the fact that the decedent had developed asbestosis during his lifetime. In each case, Appellant represented the estate in that asbestos-related litigation. And in each case, the probate court approved a 33% contingency fee agreement between Appellant and the estate's personal representative.
{ } Appellant entered into numerous partial settlement agreements on behalf of each estate and asked the probate court to approve both those settlements and the attorney's fees and expenses that Appellant claimed. In each case, the probate court approved the partial settlements after a hearing. It also ordered that Appellant be reimbursed for its litigation expenses and fees, but lowered those awards by "penalty interest" in an amount which differed from application to application. In some applications, the probate court reduced Appellant's reimbursement by less than 10% of the fees requested. In others, that reduction was more than 50% of the fees requested.
{ } In the vast majority of these cases, those appealed in 2004, either the probate court or its magistrate explained that Appellant's fees were being reduced because "it delayed in forwarding moneys of the Estate to the Administratrix, and unlawfully deposited Estate funds into a Pittsburgh, Pennsylvania area bank account, rather than a local institutional account opened by the Administratrix, pursuant to O.R.C. 2109.41. Goldberg, Persky thereby hindered, delayed and obstructed the Administratrix and the administration of this Estate." In most of these 2004 cases, Appellant has failed to provide tran
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