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State ex rel Marsteller v. Maloney4/14/2005
OPINION and JOURNAL ENTRY
JUDGMENT: Petition Granted.
Writ Issued.
{ } Plaintiff-relator, Florence Marsteller, executrix of the estate of James Marsteller, has filed a petition for a writ of prohibition against defendant-respondent, Judge Timothy Maloney. Respondent has filed a motion to dismiss.
{ } Relator is the executrix and sole beneficiary of her late husband's estate (the estate). Respondent is the judge of the Mahoning County Probate Court. In her petition, relator asserts the following facts, which respondent does not contest. Relator completed the administration of the estate. But the estate remained open so she could pursue wrongful death claims. Relator retained a local attorney to assist her with her fiduciary duties. Additionally, relator retained the law firm of Goldberg, Persky & White (Goldberg-Persky) as trial counsel to pursue the wrongful death claims. Relator entered into a contingency fee agreement with Goldberg-Persky, which the probate court approved. Relator filed applications in the probate court to settle and distribute the wrongful death claims.
{ } The following facts are set out in this Court's opinion in In re Estate of Marsteller, 7th Dist. No. 03-MA-185, 2004-Ohio-6214. Goldberg-Persky recovered $42,200.00 in partial settlements on behalf of the estate and filed the first of two applications to approve these partial settlements and distribute the proceeds on February 7, 2001. The probate court granted the attorney fees requested in Goldberg-Persky's first application for partial settlement, but reduced the expenses from the requested amount of $780.64 to $176.33. In the second application for partial settlement, Goldberg-Persky requested $11,066.66 in attorney fees and $1,108.80 in expenses. The probate court ordered payment of $388.50 in expenses and reduced the attorney fees by $265.70. Goldberg-Persky appealed the determination of fees and expenses.
{ } In response to Goldberg-Persky's appeal, relator filed a notice with this Court advising us that she would not file a brief in support of or in opposition to Goldberg-Persky's appeal.
{ } In Marsteller, this Court found that the probate court abused its discretion when it applied a local rule retroactively to reduce Goldberg-Persky's fees and expenses.
Accordingly, we reversed the probate court's judgment and entered judgment for Goldberg-Persky in the amount of $11,066.66 in fees and $1,889.44 in expenses for a total of $12,956.10.
{ } After this Court reversed the probate court's decision and entered judgment on Goldberg-Persky's fees and expenses, the probate court issued an order appointing counsel for the estate to represent it for appellate purposes regarding the appeal of this court's Marsteller decision in addition to numerous other cases involving similar facts. The probate court stated, in part, in its judgment entry:
{ } "For reasons which are not explained by the record, the Counsel of Record under each of the foregoing Estates failed to take any position with respect to each separate appeal, despite the fact that the Court's original orders benefited the beneficiaries under each such estate."
{ } The court appointed a specific attorney as counsel of record for the estate for appellate purposes. It further found that counsel would be paid an hourly rate of $125 and that his total fee would be apportioned by the court between this case and the numerous other cases the court grouped together with this case.
{ } It was after the probate court filed this order that relator filed her petition for a writ of prohibition asking that we prevent respondent fro
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