COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73207 & 74357 IN THE MATTER OF: ESTATE OF : J. DEZSO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 5, 1998 CHARACTER OF PROCEEDING: : Civil appeals from : Common Pleas Court -- : Probate Court Division : Case No. 1091177 JUDGMENT : REVERSED, VACATED AND : REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For Helen Gall, Successor Alan C. Yarcusko Executrix of the Estate of PORTER, WRIGHT, MORRIS & ARTHUR Joseph A. Dezso: 1700 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1483 Franklin J. Hickman HICKMAN & LOWDER CO., L.P.A. Standard Building, Suite 1620 1370 Ontario Street Cleveland, Ohio 44113 -2- For appellants Christine Karen A. Davey Hicks, f.k.n. Christine RIPPNER, SCHWARTZ & CARLIN Dezso, Renee Dezso, and 55 Public Square Helen Rita Gall, in her Suite 1630 individual capacity: Cleveland, Ohio 44113 For Kristine Keith and Robert S. Horbaly Jeffrey C. Keith: Patricia F. Weisberg WALTER & HAVERFIELD, P.L.L. 1300 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2253 Jeffrey C. Keith, Pro Se Inmate No. 334-054 Lorain Correctional Institute 2075 S. Avon-Belden Road Grafton, Ohio 44044 Former Counsel for the David G. Finley Fiduciary of the Estate of 25 Prospect Avenue, N.W. Joseph A. Dezso: 704 LTV Steel Building Cleveland, Ohio 44115 For Jozsef Laszlo Dezso: Jozsef Laszlo Dezso, Pro Se CDC No. J01995 Bautisda Conservation Center #36 P.O. Box 33015 Hemet, California 92544 -3- NAHRA, J.: This is a consolidated appeal of Cuyahoga County Court of Appeals Case Nos. 73207 and 74357. In Case No. 73207, appellant Jeffrey Keith appeals the probate court determination of the allocation and distribution of proceeds from a settlement of a survival action and a wrongful death action brought by the executrix of the estate of Joseph A. Dezso. In Case No. 74357, appellants, Christine Hicks, Renee Dezso, and Helen Rita Gall, appeal from the denial of their Civ.R. 60(B) motion to vacate the judgment entry appealed in Case No. 73207. This Civ.R. 60(B) motion was made for the purposes of obtaining the probate court's consent to a settlement reached by all parties to these appeals. We first address the appeal in Case No. 74357. Appellants' sole assignment of error reads: THE TRIAL COURT ERRED IN DENYING THE MOTION TO VACATE THE JUDGMENT ENTRY WHERE ALL INTERESTED PARTIES HAD, DURING THE PENDENCY OF AN APPEAL FROM SAID ENTRY, ENTERED INTO A SETTLEMENT AGREEMENT, THE TERMS OF WHICH DEVIATED FROM THE TERMS OF THE JUDGMENT ENTRY AND WHICH WAS EXPRESSLY CONDITIONED UPON PROBATE COURT APPROVAL. All parties with a claim to the funds from the survival and wrongful death actions, while on appeal in Case No. 73207, reached a settlement of their claims that would end the litigation. The case was remanded to the probate court for consideration of a Civ.R. 60(B) motion and approval of the settlement. Because the proceeds of the estate consisted of money received in a wrongful death action, the settlement and distribution of these funds must be approved by the probate court. See R.C. 2125.02(C); 2125.03(A). -4- A court's decision on a Civ.R. 60(B) motion is reviewed to determine whether or not the court abused its discretion. In Re Whitman (1998), 81 Ohio St.3d 239, 690 N.E.2d 535. Appellants argue, and appellees agree, that the probate court abused its discretion by not granting the motion for relief from judgment made pursuant to Civ.R. 60(B) in order to effectuate their settlement of the appeal of the court's previous allocation and distribution of the assets of the estate. Civ.R. 60(B) states: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. *** In GTE Automatic Electric, Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, the second paragraph of the syllabus reads: 2. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3) not more than one year after the judgment, order or proceeding was entered or taken. -5- In this case, the probate court denied the motion to vacate the judgment because the movants were not entitled to relief under the standards set forth in GTE Automatic Electric, supra. Under GTE Automatic Electric, supra, the motion to vacate the judgment should have been granted. The movants presented a meritorious claim for relief, e.g., the final resolution of litigation of a probate matter where the assets of the estate would finally be distributed and the drain of those assets from protracted litigation would end. Pursuant to Civ.R. 60(B)(5), the end to further litigation and a settlement of claims between or among all interested parties is a reason sufficient to justify relief from judgment, especially in light of the fact that settlement agreements are highly favored in the law. See Continental West Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc.(1996), 74 Ohio St.3d 501, 502, 660 N.E.2d 431, 432. The Civ.R. 60(B) motion was made in a reasonable amount of time where it was made during the pendency of a direct appeal of the judgment sought to be vacated. For these reasons, the probate court abused its discretion by not granting the motion to vacate and approving the settlement to which all interested parties agreed. Approval of the settlement would finalize the litigation over the estate's assets and serve to conserve those resources. The judgment of the probate court denying the motion to vacate is reversed. The court's journal entry allocating and distributing the funds from the settlement of the wrongful death action is -6- vacated, and this cause is remanded to the probate court to consent to t t Because of our resolution of Case No. 74357, we need not consider the assignments of error in Case No. 73207.1 See App.R. 12(A)(1)(c). 1he parties' proposed settlement agreement and enter judgmenaccordingly.Th I. THE PROBATE COURT ERRED WHEN IT ALTERED THE ALLOCATION OF THE SETTLEMENT BETWEEN THE WRONGFUL DEATH AND SURVIVORSHIP CLAIMS SINCE PROBATE COURTS DO NOT HAVE JURISDICTION TO ALTER SETTLEMENTS. II. THE PROBATE COURT ERRED WHEN IT EXCLUDED JEFFREY KEITH AS A BENEFICIARY OF THE WRONGFUL DEATH CLAIM. 1. THE PROBATE COURT LACKS JURISDICTION TO DETERMINE THE BENEFICIARIES NAMED IN A WRONGFUL DEATH SETTLEMENT. 2. THE PROBATE COURT'S FINDING THAT JEFFREY KEITH DID NOT DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT HE HAD A TRUE FATHER-SON RELATIONSHIP WITH JOSEPH DESZO IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE PROBATE COURT ERRED WHEN IT HELD THAT JEFFREY KEITH IS NOT ENTITLED TO ATTORNEY'S FEES FOR THE LEGAL SERVICES RENDERED IN FURTHERANCE OF THE SURVIVORSHIP AND WRONGFUL DEATH ACTIONS, OR IN THE ALTERNATIVE, THAT HE IS NOT ENTITLED TO ORDINARY AND EXTRAORDINARY SERVICES AS THE EXECUTOR OF THE ESTATE OF JOSEPH DESZO. -7- This cause is reversed, vacated and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA JUDGE PORTER, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .