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In re Estate of Green

Court of Appeals of Ohio, Fifth District, Licking

July 11, 2019


          CHARACTER OF PROCEEDING: Appeal from the Licking County Probate Court, Case No. 2017-0562

          For Plaintiff-Appellant ALETHA M. CARVER PATRICK D. MAGUIRE


          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.


          WISE, EARLE, J.

         {¶ 1} Administrator-Appellant Alexis Green appeals the July 31, 2018 judgment of the Licking County Probate Court approving requested attorney fees. Appellees are attorneys Mitchel Alter and Mark Froehlich.


         {¶ 2} On October 9, 2016, decedent Matthew Green was a passenger in Douglas Matthew Morrison's race-modified Audi R8. Morrison was believed to be travelling well in excess of 100 miles per hour when he lost control, crashed the Audi, and killed Green. The air bags in the vehicle never deployed.

         {¶ 3} The men were close friends. Green was a mechanic specializing in high-performance vehicles, and the two shared a love for "high-end exotic cars." Following the crash, when officers from the New Albany Police Department spoke with appellant, who is Green's surviving spouse, she advised there was nothing officers could tell her that she did not already know. She advised she knew what kind of car they were driving, that they liked driving it for obvious reasons, and that it could have been either one of them driving that day, so she did not blame Morrison for her husband's death.

         {¶ 4} Before seeking counsel, in January 2016, appellant met with a representative of Westfield Insurance, Morrison's insurer. The representative provided appellant with an advance payment for expenses, but advised her that there could be no discussion of settlement until she opened an estate for Green. Appellant was not the sole potential beneficiary. Beneficiaries included Green's two minor children as well as his parents.

         {¶ 5} On May 1, 2017, appellant spoke with appellees Alter and Froehlich regarding representation for wrongful death and survivorship action as well as probate. Appellant shared her biggest concern with the attorneys -- that she did not want Morrison to go to jail and wished no criminal charges upon him. She further advised she would be satisfied with less than Morrison's policy limits and desired no personal payment from Morrison as he had already pledged his willingness to take care of her and her children for the rest of their lives. Appellant did not sign a contract with Alter and Froehlich that day. She was, however advised that the typical attorney fee was one-third of any recovery.

         {¶ 6} On June 5, 2017, Attorney Steve Teetor, counsel for Morris through Westfield, disclosed Morrison's policy limits of $2.5 million. Appellant signed a probate fee contract with attorney Froehlich only on July 27, 2017, and decedent's estate was opened on August 1, 2017. On August 15, 2017, however, appellant signed a contingent fee contract to cover the services of both attorneys which stated the attorneys would receive one-third of the gross amount recovered whether "by settlement, arbitration, civil suit, trial or any other manner." On September 1, 2017, in accordance with Sup.R. 71(I), the contingent fee contract was filed with and approved by the probate court.

         {¶ 7} On August 31, 2017, criminal charges were filed against Morrison, specifically, one count of vehicular manslaughter, a misdemeanor of the second degree. Morrison's arraignment took place on September 28, 2017. He entered a no contest plea the same day and received no jail time.

         {¶ 8} On October 6, 2017 counsel for Westfield Insurance proposed mediation to settle the wrongful death action. On October 9, attorney Alter demanded policy limits of $2.5 million plus $500, 000 personal payment. On October 24, Westfield offered policy limits and appellant directed Alter to accept the same on October 25.

         {¶ 9} On May 9, 2018, appellant through Froehlich, filed with the probate court an Application to Approve Settlement and Distribution of Wrongful Death and Survival Claims. The application indicated attorney fees were disputed. The settlement Statement set forth the following:

Funds Received: $2, 500, 000.00
Less Advance to Alexis Green: - 20, 816.87
$2, 479, 183.13
Attorney Fees: - 826, 394.37
Medical ...

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