Goldberg v. Maloney

855 N.E.2d 856, 111 Ohio St. 3d 211
CourtOhio Supreme Court
DecidedNovember 8, 2006
DocketNo. 2006-0250
StatusPublished
Cited by25 cases

This text of 855 N.E.2d 856 (Goldberg v. Maloney) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goldberg v. Maloney, 855 N.E.2d 856, 111 Ohio St. 3d 211 (Ohio 2006).

Opinion

Per Curiam.

{¶ 1} This is an appeal and cross-appeal from a judgment granting a writ of prohibition to prevent a probate judge from proceeding in a concealment action instituted under R.C. 2109.50. Because the probate judge does not patently and unambiguously lack jurisdiction to proceed in the concealment case, we reverse.

Kish Concealment Action: 1999-2000

{¶ 2} On October 29, 1999, James B. Dietz, in his capacity as guardian of the estate of Michael James Kish (“Kish”), filed a complaint pursuant to R.C. 2109.50 in the Mahoning County Court of Common Pleas, Probate Division, for concealment of assets against appellee and cross-appellant, attorney Richard D. Goldberg. In the complaint, the guardian alleged the following.

{¶ 3} On October 30, 1970, the ward, Michael James Kish, was born. When Kish was still a minor, he suffered a football injury in the fall of 1987. Kish received treatment for the injury but developed an infection and ultimately experienced respiratory arrest, which resulted in anoxic encephalopathy. Kish became physically and mentally disabled and legally incompetent.

{¶ 4} On January 13, 1989, Goldberg represented Kish and his father, Michael Joseph Kish, and filed a medical-malpractice case on their behalf against various physicians and health-care providers in the Mahoning County Court of Common Pleas. No guardianship was established at the time of filing or during the case, although Kish had reached the age of majority. The lawsuit was eventually settled for $1,773,917. Of this amount, $773,917 was used to purchase annuities to be paid to Kish. The defendants paid the remaining $1,000,000 in cash, and Goldberg retained the money except for $20,761.29 that he paid to the State Teachers Retirement System on behalf of Kish’s father. Goldberg accounted for [212]*212another $31,544.95 as reimbursement to him for costs and expenses that he had allegedly advanced.

{¶ 5} The primary settlement agreement with the health-care providers was signed by Kish’s father even though Kish had already reached the age of majority. Other settlement agreements purported to be between the health-care providers and Kish individually, but Kish did not sign the agreements and he lacked the cognitive capacity to understand them. On these latter agreements, Kish’s signature was forged.

{¶ 6} On October 7, 1999, Dietz was appointed as Kish’s guardian. Goldberg thereafter gave the guardian a copy of a July 12, 1998 fee agreement signed by Kish’s father providing for an attorney fee of 50 percent of any amount recovered by compromise or settlement.

{¶ 7} In May 2000, appellant and cross-appellee, Judge Timothy P. Maloney of the probate court, received evidence in the concealment case and took the matter under advisement.

Attorney Disciplinary Proceedings

{¶ 8} On September 10, 1999, during certain criminal actions against Goldberg, we suspended his license to practice law in Ohio for an indefinite period. In re Goldberg (1999), 86 Ohio St.3d 1480, 716 N.E.2d 213. On May 3, 2000, we denied Goldberg’s motion to resign from the practice of law. In re Resignation of Goldberg (2000), 88 Ohio St.3d 1504, 727 N.E.2d 926.

{¶ 9} On February 27, 2002, we found that Goldberg had misappropriated over $742,000 in funds paid in a wrongful-death action, defrauded an estate of $400,000 when he represented the estate in a medical-malpractice action, made false representations to a court in a criminal case arising from his illegal conduct, and failed to make restitution to all of the victims of his crimes. Disciplinary Counsel v. Goldberg (2002), 94 Ohio St.3d 337, 763 N.E.2d 119. We disbarred Goldberg from the practice of law in Ohio.

Bankruptcy and Other Proceedings

{¶ 10} On January 30, 2001, Goldberg filed for bankruptcy protection in the United States District Court for the Northern District of Ohio.

{¶ 11} On May 3, 2000, Judge Maloney issued contempt orders in four separate concealment cases and sentenced Goldberg to 21 months in jail. Following the exhaustion of his direct appeals, a federal district court granted Goldberg relief in habeas corpus. On September 5, 2001, we granted Goldberg a writ of prohibition to prevent Judge Maloney and the probate court from issuing prejudgment attachment orders in certain concealment proceedings. State ex rel. Goldberg v. Mahoning Cty. Probate Court (2001), 93 Ohio St.3d 160, 753 N.E.2d 192.

[213]*213{¶ 12} In February 2005, Goldberg entered into a plea agreement with the state of Ohio in a criminal case in which he agreed to make restitution. As part of the agreement, the guardian in the Kish case agreed to the restitution amount of $60,733.26.

Kish Concealment Action: 2005

{¶ 13} As a result of the February 2005 plea agreement, Kish’s guardian notified Judge Maloney on March 16, 2005, of the agreement and asked the probate court to ratify it. On March 25, 2005, however, Judge Maloney denied the guardian’s application because of the pending concealment action involving Kish’s estate:

{¶ 14} “There is yet a related concealment action pending in this Court * * *. That complaint, brought by Attorney Dietz as Guardian of the Estate of Michael James Kish, is as yet unresolved. It is unresolved principally as Goldberg invoked his Fifth Amendment privilege [against self-incrimination]. However and based upon information supplied by the Applicant, Attorney Dietz, it would appear that Goldberg has since waived his Fifth Amendment privilege, as well as other rights, and entered a plea of guilty to the charges pertaining to the instant Ward, Michael James Kish. This Court’s review of its records indicates that Richard Goldberg accepted $1 million dollars that he has yet to account for to this Court. This Court is not, therefore, inclined to ratify his late offering of $60,733.26 in satisfaction of the outstanding sums which may be due in this case.”

{¶ 15} Shortly thereafter, on March 29, 2005, in the Kish concealment case, Judge Maloney issued a citation ordering Goldberg to appear before the probate court on April 6, 2005, “to be examined under oath touching upon the matters set forth within the Complaint, and for such other proceedings and process as may be authorized by law or required in the premises.” There had been no previous activity in the concealment case since Judge Maloney’s May 2000 entry taking the case under advisement.

Prohibition Case

{¶ 16} On April 1, 2005, Goldberg filed a complaint in the Court of Appeals for Mahoning County for a writ of prohibition to prevent Judge Maloney from proceeding with his examination on April 6, 2005, and to quash the citation. In his complaint, Goldberg claimed that Judge Maloney patently and unambiguously lacked jurisdiction to proceed in the underlying concealment action involving the Kish guardianship because (1) Judge Maloney lacked authority to approve or ratify the plea agreement between Goldberg and the state, (2) Judge Maloney had already closed the evidentiary record in May 2000, and (3) Goldberg’s filing of a bankruptcy petition automatically stayed the concealment case. On April 5, [214]

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Cite This Page — Counsel Stack

Bluebook (online)
855 N.E.2d 856, 111 Ohio St. 3d 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-maloney-ohio-2006.