[Cite as In re Estate of Williams,

.]

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,

,

(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,

,

,

. 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.

,

,

, ¶ 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,

,

(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.,

,

,

. 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,

.

{¶ 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,

, ¶ 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

; Fouche v. Denihan,

,

(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.

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