In re Estate of Williams , 2015 Ohio 4781 ( 2015 )


Menu:
  • [Cite as In re Estate of Williams, 2015-Ohio-4781.]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    SANDUSKY COUNTY
    In re Estate of Stephanie L. Williams                 Court of Appeals No. S-14-018
    Trial Court No. 20071067
    DECISION AND JUDGMENT
    Decided: November 20, 2015
    *****
    Scott A. Rumizen, for appellants.
    Roger W. Hafford, for appellee.
    *****
    PIETRYKOWSKI, J.
    {¶ 1} This is an appeal from a judgment of the Sandusky County Court of
    Common Pleas, Probate Division, which distributed the assets of appellee, the Estate of
    Stephanie L. Williams, and awarded legal fees stemming from a civil action in
    Mississippi. Appellants, Nicholas Matassini and the Matassini Law Firm, P.A., challenge
    that judgment through the following assignments of error:
    Assignment of Error #1
    The probate court abused its discretion when it denied Nicholas
    Matassini and the Matassini Law Firm, P.A.’s motion to intervene as a
    matter of right pursuant to Civil Rule 24(A)(2).
    Assignment of Error #2
    The probate court abused its discretion when it distributed wrongful
    death settlement funds without conducting a hearing and providing notice
    to all parties pursuant to Rules 70 and 71 of the Rules of Superintendance
    for the Courts of Ohio.
    Assignment of Error #3
    The probate court abused its discretion when it distributed wrongful
    death settlement funds without accounting for the reimbursement of the
    reasonable litigation expenses incurred by the attorneys who represented
    the Estate of Stephanie Williams in the underlying wrongful death
    litigation.
    Assignment of Error #4
    The probate court abused its discretion in its distribution of wrongful
    death settlement funds to Nicholas Matassini and the Matassini Law Firm,
    P.A. as attorneys [sic] fees when, as stated in his motion to intervene, Mr.
    2.
    Matassini was not requesting the payment of an attorneys [sic] fee, but
    rather the reimbursement of the reasonable litigation expenses incurred by
    the attorneys representing the Estate of Stephanie Williams in the
    underlying wrongful death litigation.
    Assignment of Error #5
    The probate court abused its discretion when it distributed thirty two
    thousand and five hundred dollars ($32,500.00) to attorney Roger Hafford,
    an attorney who was not involved in the representation of the Estate of
    Stephanie Williams in the underlying wrongful death claim, from the
    wrongful death settlement proceeds without a statement of the services
    rendered and a statement of the amount of the fees claimed by Mr. Hafford.
    Assignment of Error #6
    The probate court abused its discretion when it distributed wrongful
    death settlement funds without ordering the distribution of the fifteen
    thousand ($15,000.00) dollars which was ordered in 2007 to be paid into an
    interest bearing account by Roger Hafford, Esq. and held there pending an
    order for its distribution by a future order of the court.
    {¶ 2} The relevant facts of this case are as follows. On June 3, 2006, Stephanie L.
    Williams was killed in an automobile accident in Mississippi. She died intestate and was
    survived by a spouse, Dennis Williams, and two adult sons, Bren’tel and Brandon
    Weatherspoon. Subsequently, the Weatherspoon brothers retained appellants Nicholas
    3.
    Matassini and the Matassini Law Firm, P.A., of Tampa, Florida, to represent them in their
    personal injury and wrongful death claims arising from the accident. That contract of
    employment further identified attorney Wayne Ferrell as co-counsel, but stated that the
    Matassini Law Firm would be primarily responsible for the evaluation and handling of
    the claim. Shortly thereafter, Ferrell, on behalf of the Weatherspoon brothers, filed a
    wrongful death action in Mississippi against Williams and Nissan, for claims based on
    negligence and products liability. The complaint named the Weatherspoon brothers as
    plaintiffs individually and as the natural sons of Stephanie Williams, and further
    identified them as her surviving wrongful death heirs and beneficiaries. On January 17,
    2007, that case was removed to the United States District Court for the Southern District
    of Mississippi. See Weatherspoon v. Nissan N. Am., Inc., S.D. Mississippi No.
    3:07-cv-00024-DPJ-LRA.
    {¶ 3} In his representation of the Weatherspoon brothers, attorney Ferrell referred
    the products liability case to attorneys Jerry M. White and C. Tab Turner of Turner &
    Associates, P.A., of North Little Rock, Arkansas. The record does not reveal precisely
    when White and Turner were brought into the case, but the docket sheet from that case
    includes a motion, dated December 7, 2007, for Turner to appear pro hac vice. The
    motion was granted. Similarly, a docket entry dated May 20, 2008, reflects a motion for
    Jerry White to appear pro hac vice. That motion was also granted. The docket entries
    throughout that case reveal that attorneys White, Turner and Ferrell regularly represented
    the interests of the Weatherspoon brothers until the case was concluded. Ultimately,
    4.
    Dennis Williams was dismissed from the case, with prejudice, and the Weatherspoons’
    case against Nissan was settled. The federal court filed an order acknowledging the
    settlement and dismissing the case on August 17, 2010. Nothing in the record indicates
    that appellants sought to collect fees and expenses from the brothers at the time the case
    was settled.
    {¶ 4} Previously, on February 28, 2007, Dennis Ragas, Dennis Williams’ father,
    filed an application for authority to administer the estate of Stephanie L. Williams, in the
    court below. In an entry dated April 19, 2007, Ragas was named the administrator of the
    estate and Roger W. Hafford was listed as the attorney. Subsequently, the court granted a
    motion requesting attorney Ferrell be admitted pro hac vice to represent the interests of
    the Weatherspoon brothers in the estate action below. On November 7, 2007, the parties
    to the estate reached a settlement agreement that was approved by the court. Initially,
    under the settlement, the parties agreed that Dennis Ragas and Bren’tel Weatherspoon
    would act as co-administrators in the administration of the estate. The main purpose of
    that agreement, however, was to divide the proceeds of an insurance claim the estate had
    with Progressive Insurance Company. To that end, the agreement provided in relevant
    part:
    6. Thirty Thousand Dollars ($30,000.00) shall be paid from the net
    proceeds and deposited to the escrow account of Attorney Wayne E.
    Ferrell, Jr. and shall be used at his discretion for expenses in the products
    liability wrongful death claim in Mississippi;
    5.
    {¶ 5} On January 29, 2010, the lower court filed an entry approving the final
    account of the estate and discharging the administrators. The estate was reopened on
    September 14, 2010, subsequently closed, then reopened again on November 22, 2011.
    The case was reopened to allow the court to distribute the settlement proceeds from the
    wrongful death action in Mississippi. A parallel lawsuit had been brought by the
    administrator of the estate against Nissan in the court below to allow the estate to access
    the funds from the settlement. Through a judgment entry of May 23, 2012, in both this
    case and the parallel lawsuit, the lower court specifically approved the proposed
    settlement as being fair, reasonable, appropriate and in the best interest of the estate. The
    court further ordered Nissan to forward the proceeds of the settlement to the Sandusky
    County Probate Court to be held in trust pending either final settlement following a
    scheduled mediation, or court-ordered distribution following an evidentiary hearing. The
    court then dismissed the parallel lawsuit against Nissan.
    {¶ 6} The court-ordered mediation failed. Consequently, attorney Hafford filed a
    motion to approve a settlement agreement entered into by the executor, the heirs of
    Stephanie Williams, and attorney Hafford regarding the distribution of the settlement
    funds. Under the proposed settlement agreement, the Weatherspoon brothers, Dennis
    Williams, Dennis Ragas, and attorney Hafford agreed to distribute the $250,000
    settlement funds as follows: Bren’tel Weatherspoon, Brandon Weatherspoon, and Dennis
    Williams each to receive $63,000, Denis Ragas to receive $8,000, and attorney Hafford
    to receive $53,000 as attorney fees. Attorney White then filed a motion to appear pro hac
    6.
    vice in order participate in the case on behalf of the Weatherspoon brothers, individually
    and as the natural sons of Stephanie Williams.
    {¶ 7} On July 19, 2012, the case proceeded to a hearing on the pending motions.
    The court initially permitted White to provisionally appear and participate in the hearing.
    White asserted that because he represented the Weatherspoon brothers in the underlying
    litigation against Nissan, which resulted in the settlement funds at issue, and because
    there were litigation expenses in that case that needed to be addressed, he should be
    permitted to appear and participate in this case. Upon questioning by the court, however,
    both attorney Hafford and Bren’tel Weatherspoon denied that White represented the
    Weatherspoon brothers. Bren’tel stated that he only signed a retainer agreement with
    Nick Matassini, who was not at the hearing. He further signed an affidavit to that fact
    which was filed with the court. The court therefore denied White’s motion to appear pro
    hac vice. The court determined that because there was no written contract or nexus
    between White and the Weatherspoon brothers, any pursuit of legal fees and expenses for
    the litigation in Mississippi could only appropriately be pursued by attorney Matassini or
    through an appropriately filed claim against the estate. It then became clear that the
    Weatherspoon brothers were not represented by counsel at the hearing below.1 The court
    noted that Matassini was the attorney who should be in court to represent the interests of
    the Weatherspoon brothers. However, following Bren’tel’s assurances that he was
    1
    Only Bren’tel Weatherspoon appeared at the hearing below. Brandon Weatherspoon
    was on active duty in the military and had signed a power of attorney allowing Bren’tel to
    represent his interests.
    7.
    comfortable proceeding with the hearing without Matassini present, the court continued
    with the hearing and heard from the parties on the issue of distribution of the settlement
    proceeds that were currently in the estate.
    {¶ 8} Following the hearing, Tab Turner & Associates, P.A. (“Turner”), filed a
    motion to intervene in the action below. Turner asserted that it had a protectable interest
    (attorney fees and litigation expenses) in the settlement proceeds which were then held by
    the court because of the work it had done to procure the settlement in the underlying
    wrongful death action. Turner did not file a claim against the estate.
    {¶ 9} On November 22, 2013, the lower court issued a judgment on all pending
    matters. In pertinent part, the court denied the Turner motion to intervene, noting that
    Turner had not supported its motion with any evidence of a contractual relationship or
    proof of representation between Turner and the Weatherspoon brothers. The court
    further determined that attorney Matassini was the only professional in a position to
    pursue payment for legal fees and expenses directly from the estate, and that he had not
    done so. The court therefore granted Matassini 14 days to file any motions with respect
    to the distribution of funds in the estate and ordered that if Matassini did not file any
    motions, the court would proceed with the distribution of funds and the closing of the
    estate.
    {¶ 10} On December 10, 2013, appellants, represented by Ohio counsel, filed a
    motion to intervene in the case. Appellants claimed that pursuant to their retainer
    agreement with the Weatherspoon brothers, they were entitled to recover attorney fees
    8.
    and litigation expenses from any recovery obtained in the wrongful death case, and, as
    such, they had an interest relating to the settlement funds which would not be protected
    absent their intervention. In the alternative, appellants requested that $200,000 be
    approved as the reasonable and necessary expenses for the pursuit of the wrongful death
    action in Mississippi and that that amount be distributed to Matassini and/or his co-
    counsel, Turner and Associates, P.A. Matassini did not file a motion to appear pro hac
    vice or attempt to file a claim against the estate.
    {¶ 11} On March 21, 2014, the lower court issued a judgment entry on all pending
    motions. Initially, the court quoted the following from its November 22, 2013 judgment
    entry, and stated that the quoted section formed a portion of the basis for the court’s
    decision:
    “* * * any pursuit of legal fees and expenses for the litigation in
    Mississippi * * * in this estate matter, could only be appropriately pursued
    by Attorney Mattassini [sic], who apparently has not been in
    communication with the Weatherspoon brothers for an extended period of
    time; or through an appropriately filed claim against the estate in this
    matter. No such relief has been requested by Attorney Mattassini [sic], nor
    has any such claim against the estate been filed, and the prescribed time for
    doing so has now lapsed.
    “It is clear from the totality of the circumstances that there is an
    enormous breakdown of relationships and proper documentation amongst
    9.
    the attorneys involved in the representation in the underlying federal
    litigation. All of the actual parties at various times before the Court have
    indicated a complete lack of knowledge of some of the attorneys claiming
    to represent them. They have indicated no communication for extended
    periods of time. They have put forth that the only professional they
    established an attorney/client relationship with is Attorney Mattassini [sic],
    and/or Attorney Hafford. It is further noted that throughout this protracted
    action, there was no finalized settlement actually achieved until Attorney
    Hafford began his latest involvement and current representation.”
    {¶ 12} The court then reiterated that “the dispute over the legal fees and expenses
    from the unrelated civil litigation in Mississippi is that of a contractual dispute amongst
    or between attorneys. There are clear remedies available under the law to pursue
    payment under any such contracts or agreements, through other appropriate legal
    forums.”
    {¶ 13} Based on these findings, the court determined that equity required some
    distribution to Attorney Matassini, as the original attorney hired to pursue the underlying
    claim, but that how that portion was to be divided amongst other counsel was a matter of
    contract law to be pursued in some other appropriate forum. The court then denied
    Matassini’s motion to intervene, but granted his alternative motion for a distribution of a
    portion of the fund, awarding him $100,000, or 40 percent of the settlement fund. The
    court further awarded Dennis Williams, Brandon Weatherspoon and Bren’tel
    10.
    Weatherspoon $37,500 each, awarded Dennis Ragas $5,000 as the executor of the estate,
    and awarded Attorney Hafford $32,500 as reasonable attorney fees. The court then
    approved and authorized Hafford, as counsel for the estate, to distribute the funds in the
    manner ordered by the court, and to then file the final account to close the estate. That is
    the judgment that appellants, Nicholas Matassini and the Matassini Law Firm, now
    challenge on appeal.
    {¶ 14} In their first assignment of error, appellants assert that the lower court erred
    in denying their motion to intervene.
    {¶ 15} In the proceedings below, appellants sought to intervene as of right, under
    Civ.R. 24(A). To intervene in a case as a matter of right, the movant must file a timely
    application and show that: (1) the movant “claims an interest relating to the property or
    transaction that is the subject of the action”; (2) “disposition of the action may as a
    practical matter impair or impede the applicant’s ability to protect that interest”; and that
    (3) “the applicant’s interest is [not] adequately represented by existing parties.” Civ.R.
    24(A)(2). Generally, Civ.R. 24(A) is liberally construed to allow intervention. State ex
    rel. LTV Steel Co. v. Gwin, 
    64 Ohio St. 3d 245
    , 247, 
    594 N.E.2d 616
    (1992). In addition,
    however, “Civ.R. 24(C) requires that any * * * motion [to intervene] be accompanied by
    a pleading ‘setting forth the claim or defense for which intervention is sought.’” Tatman
    v. Fairfield Cty. Bd. of Elections, 
    102 Ohio St. 3d 425
    , 2004-Ohio-3701, 
    811 N.E.2d 1130
    , ¶ 11. A trial court’s ruling on a motion to intervene as of right is reviewed under
    an abuse of discretion standard. State ex rel. Merrill v. Ohio Dept. of Natural Resources,
    11.
    
    130 Ohio St. 3d 30
    , 2011-Ohio-4612, 
    955 N.E.2d 935
    , ¶ 41. Accordingly, a trial court’s
    denial of a motion to intervene will not be reversed on appeal absent a showing that the
    court’s attitude in reaching its judgment was unreasonable, arbitrary or unconscionable.
    Blakemore v. Blakemore, 
    5 Ohio St. 3d 217
    , 219, 
    450 N.E.2d 1140
    (1983).
    {¶ 16} Upon review, we cannot say that the lower court abused its discretion in
    denying appellants’ motion to intervene. First, we note that appellants did not file, along
    with their motion, a pleading setting forth their claim, as required by Civ.R. 24(C). That
    alone is grounds for denying the motion. State ex rel. Sawicki v. Court of Common Pleas
    of Lucas Cty., 
    121 Ohio St. 3d 507
    , 2009-Ohio-1523, 
    905 N.E.2d 1192
    , ¶ 21. In addition,
    we construe the court’s decision as finding that under the circumstances of this case,
    appellants’ motion to intervene was simply not timely filed. Nevertheless, because
    appellants were the only attorneys who had a contractual relationship with the
    Weatherspoon brothers, the court found they were entitled to an equitable distribution of
    40 percent of the settlement fund. This is in keeping with the long-established law in
    Ohio that an attorney has an “equitable right to enforce a lien on a client’s judgment,
    decree or award, for payment of attorney fees earned in the prosecution of litigation to
    judgment.” Garrett v. City of Sandusky, 6th Dist. Erie No. E-03-024, 2004-Ohio-2582,
    ¶ 23.
    {¶ 17} The controversy in this case, however, is over the litigation expenses
    incurred in obtaining the settlement agreement with Nissan. Those expenses were
    evidently incurred by attorneys Turner and White. No contract between the Matassini
    12.
    firm and the Turner firm and no evidence of litigation expenses were ever provided to the
    court below in support of the motion to intervene. Under those circumstances, we cannot
    say that the lower court’s decision denying appellants’ motion to intervene, and in the
    alternative awarding them 40 percent of the settlement proceeds, was unreasonable,
    arbitrary or unconscionable. The first assignment of error is not well-taken.
    {¶ 18} Appellants’ remaining assignments of error challenge various aspects of the
    trial court’s distribution of the settlement proceeds and other monies. It is well-
    established that “an appeal from the denial of a motion to intervene is limited solely to
    the issue of intervention.” State ex rel. Montgomery v. City of Columbus, 10th Dist.
    Franklin No. 02AP-963, 2003-Ohio-2658, ¶ 33. Appellants were not parties to the action
    below and have no standing to challenge any other aspect of the trial court’s order. Id.;
    see also 
    Sawicki, supra
    , at ¶ 18; Fouche v. Denihan, 
    66 Ohio App. 3d 120
    , 126, 
    583 N.E.2d 457
    (10th Dist.1990). The second, third, fourth, fifth and sixth assignments of
    error are not well-taken.
    {¶ 19} On consideration whereof, the court finds that substantial justice has been
    done the parties complaining and the judgment of the Sandusky County Court of
    Common Pleas, Probate Division, is affirmed. Appellants are ordered to pay the costs of
    this appeal pursuant to App.R. 24.
    Judgment affirmed.
    13.
    In re Estate of Williams
    C.A. No. S-14-018
    A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
    See also 6th Dist.Loc.App.R. 4.
    Mark L. Pietrykowski, J.                       _______________________________
    JUDGE
    Thomas J. Osowik, J.
    _______________________________
    Stephen A. Yarbrough, P.J.                                 JUDGE
    CONCUR.
    _______________________________
    JUDGE
    This decision is subject to further editing by the Supreme Court of
    Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
    version are advised to visit the Ohio Supreme Court’s web site at:
    http://www.sconet.state.oh.us/rod/newpdf/?source=6.
    14.
    

Document Info

Docket Number: S-14-018

Citation Numbers: 2015 Ohio 4781

Judges: Pietrykowski

Filed Date: 11/20/2015

Precedential Status: Precedential

Modified Date: 11/20/2015