In re Estate of Southard
949 N.E.2d 1049
Ohio Ct. App.2011Background
- Peter Southard died June 11, 2005; probate admitted his will and appointed Diana Southard as executor.
- Diana retained Leeseberg & Valentine (L&V) to pursue a wrongful-death-and-survival action against the care facility.
- On Sept. 2, 2005, Diana signed a contingent-fee agreement with L&V (40% of recovery).
- Same day, Diana signed a fee-sharing agreement stating L&V would receive two-thirds of fees and Morse one-third; the agreement anticipated joint representation.
- The case settled for $6.5 million; fees were proposed at $2.6 million (40%).
- The probate court approved the settlement and the overall fee award, but reserved a disputed $866,666.67 for later disposition and referred the fee dispute to OSBA mediation/arbitration under DR 2-107(B).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probate court had jurisdiction over the fee-sharing dispute | L&V argued DR 2-107(B) arbitration was mandatory; probate lacked jurisdiction to resolve the fee dispute. | Morse contends the dispute relates to court-approved settlement, but OSBA mediation/arbitration should resolve it first; probate jurisdiction is proper only for fee approval, not disputed allocation. | Probate court lacked jurisdiction; referral to OSBA mediation/arbitration was correct. |
| Is the probate court entry final and appealable | Appellants assert the decision reserving disposition after OSBA leaves a final, appealable order. | Morse argues the entry remains non-final because of postarbitration steps. | Entry is final and appealable; DR 2-107(B) arbitration is mandated and final. |
| Effect of DR 2-107(B) on disposition of funds post-arbitration | Dispute should be resolved in arbitration, after which funds are disbursed per OSBA award. | Post-arbitration distribution should follow OSBA award; probate acts only as conduit. | Arbitration is mandatory; probate acts as conduit consistent with OSBA award. |
Key Cases Cited
- Shimko v. Lobe, 103 Ohio St.3d 59 (Ohio 2004) (DR 2-107(B) arbitration is mandatory; arbitration is final and binding)
- Jadwisiak, 64 Ohio St.3d 176 (Ohio 1992) (probate court has jurisdiction over settlement funds in wrongful-death cases)
- Kinross, 84 Ohio App.3d 335 (Ohio App.3d 1992) (probate court may order returns of entire settlement proceeds in fee disputes)
- Steiner v. Van Dorn Co., 104 Ohio App.3d 51 (Ohio App.3d 1995) (DR 2-107(B) requires mediation/arbitration for attorney-fee disputes)
- Putnam v. Hogan, 122 Ohio App.3d 351 (Ohio App.3d 1997) (client cannot be compelled to arbitrate fee disputes with former attorney in some contexts)
- Denham v. New Carlisle, 86 Ohio St.3d 594 (Ohio 1999) (finality standards for appellate review of orders)
- Bell v. Horton, 142 Ohio App.3d 694 (Ohio App.3d 2001) (finality concepts in determining appealability of probate orders)