[Cite as Weinberg v. 

Merriman, 2024-Ohio-971.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

RICHARD WEINBERG, EXECUTOR, :

Plaintiff-Appellant, :

Nos. 112594 and 112595

v. :

MERRIMAN LEGANDO WILLIAMS & :

KLANG, LLC, ET AL,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 14, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Probate Court Division

Case No. 2022ADV275304 and 2022ADV275303

Appearances:

McDonald Hopkins, LLC, and Franklin C. Malemud, for 

appellant. 

Gallagher Sharp LLP, Timothy T. Brick, and Maia E. Jerin, 

for appellees. 
MICHAEL JOHN RYAN, J.:

This case arises from two complaints for concealment of assets brought 

pursuant to R.C. 2109.50 et seq. by plaintiff-appellant Richard Weinberg, Executor 

of the Estate of Jack Landskroner, deceased, (referred to as “Weinberg” or “the 

estate”) and on behalf of the Landskroner Law Firm, LTD (“LLF”). The Cuyahoga 

County Probate Court dismissed both complaints after finding that it did not have 

subject-matter jurisdiction and the complaints failed to state claims upon which 

relief could be granted. After a thorough review of the facts and the law, we affirm.

In 2019, allegations surfaced that Jack Landskroner (“Landskroner”) 

was part of a multimillion-dollar kickback scheme related to a class action lawsuit 

against the Los Angeles Department of Water & Power. Landskroner had 

represented the class claimants and earned $10.3 million in attorney fees, $2.175 

million of which, it was alleged, he unlawfully paid as a kickback.

After the allegations surfaced, defendant-appellee, Tom Merriman 

(“Merriman”) and other LLF attorneys left the firm to form Merriman Legal. 

LLF and Merriman Legal negotiated a settlement agreement through which 

Merriman Legal took over primary responsibility for 190 active contingency fee 

cases and LLF retained cases that had previously been settled.

The separation agreement between LLF and Merriman Legal and its 

partners provided that “disputes concerning the division of fees for matters where 

they serve as co-counsel * * * are subject to arbitration or mediation pursuant to 

Ohio Rule of Professional Conduct 1.5(f).” The agreement further provided for 
payment of fees and expenses to LLF as long as Landskroner remained the

managing and sole member of LLF. The agreement did not provide for a 

continuation of payment of fees upon the death of a party to the agreement or 

provide for payments to Landskroner individually. 

On September 3, 2020, unbeknownst to Merriman Legal, Landskroner 

created a trust (“LLF Trust”) to acquire LLF, with Landskroner as the sole 

beneficiary. On May 26, 2021, Landskroner was declared incapacitated pursuant to

the terms of the LLF Trust. At that time, Landskroner’s wife and children became 

additional beneficiaries of the Trust. Landskroner died on June 19, 2021, leaving 

his wife and children as sole beneficiaries. Weinberg transferred the interests out of 

the LLF Trust and into Landskroner’s estate at some point prior to filing the estate 

in probate court.

In July 2021, Merriman Legal learned that LLF had been put into a 

trust. Concerned that the LLF Trust had nonlawyer beneficiaries, Merriman Legal 

requested an advisory opinion from the Ohio Board of Professional Conduct

regarding the sharing of attorney fees with the law firm of a deceased solo 

practitioner whose ownership interests in that firm had been placed in a trust with 

nonlawyer beneficiaries. 

In August 2021, Weinberg requested the status of “cases still remaining 

on the Separation Agreement exhibits.” Merriman Legal responded that it was 
holding funds in its IOLTA1 account pending guidance from the Board of 

Professional Conduct. The Board of Professional Conduct subsequently issued a 

Staff Letter, which advised Merriman Legal that “your law firm cannot share the 

earned legal fees with the nonlawyer beneficiaries via the trust and you should 

continue to hold the fees in your IOLTA until the dispute is resolved.” 

Weinberg retained an attorney in the matter, who notified Merriman 

Legal that “LLF, as an entity, remains active for the sole purpose of winding-up its 

affairs, which primarily entails the efforts to receive and make payment of legal fees 

owed to and by LLF,” including the division of legal fees as set forth by the parties’ 

separation agreement. Weinberg maintained the position that there was money due 

and owing to the estate.

Unable to resolve their issues, Weinberg, on behalf of the estate, filed 

two complaints in Cuyahoga County Probate Court against Merriman Legal, one 

relating to alleged concealment of case expense reimbursements and personal 

property in the form of server data (2022ADV275303) and the other relating to 

alleged concealment of legal fees (2022ADV275304). 

Merriman Legal moved to dismiss both cases pursuant to 

Civ.R. 12(B)(1), arguing that the dispute arose solely out of a fee-dispute between 

the two law firms, which would fall into the exclusive arbitration jurisdiction of state 

or local bar associations, and Civ.R. 12(B)(6), for failure to state a cognizable claim 

1 Interest on Lawyer Trust Account — an interest-bearing trust account used for 

holding client funds.
for concealment of assets. Weinberg opposed the motions. In separate opinions

dated March 13, 2023, the probate court granted the motions to dismiss.

In its opinion, the probate court found that it did not have subjectmatter jurisdiction over the case because the parties’ dispute was a fee dispute 

arising out of the settlement agreement. The court further found that the assets the 

estate was looking to recover belonged to the LLF Trust, not to LLF or Landskroner,

at the time of his death and were not subject to recovery under R.C. 2109.50.

Weinberg filed a notice of appeal and this court sua sponte referred 

the parties to the court mediator. The parties failed to come to an agreement and 

the case was returned to the active docket. 

Assignments of Error 

Weinberg raises the following assignments of error:

I. The trial court order granting Merriman Legal’s motion to dismiss 

wrongly and baselessly concluded that the court lacked jurisdiction 

over the complaints. 

II. The trial court order granting Merriman Legal’s motion to dismiss 

wrongly conducted an unauthorized factual inquiry to conclude that 

the complaints failed to state a claim.

Probate Court Lacked Jurisdiction — Civ.R. 12(B)(1)

In the first assignment of error, Weinberg argues that the trial court 

erred in granting Merriman Legal’s motion to dismiss based on a lack of subjectmatter jurisdiction.

“Subject-matter jurisdiction is a court’s power to hear and decide a

particular class of cases.” McKitrick v. Larose, 2022-Ohio-3800, 199 N.E.3d 677, 
¶ 7 (10th Dist.), citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio4275, 21 N.E.3d 1040, ¶ 19. This determination involves a question of law that we

review de novo. Phillips v. Deskin, 5th Dist. Richland No. 12CA119, 2013-Ohio3025, ¶ 8, citing Shockey v. Fouty, 106 Ohio App.3d 420, 666 N.E.2d 304

(4th Dist.1995). Under a de novo analysis, we accept all factual allegations of the

complaint as true, and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991). 

In determining whether the estate alleged a cause of action sufficient 

to withstand a Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter 

jurisdiction, the trial court is not confined to the allegations of the complaint and

can consider relevant evidentiary material. Tibbs v. Kendrick, 93 Ohio App.3d 35, 

39-40, 637 N.E.2d 397 (8th Dist.1994), citing Southgate Dev. Corp. v. Columbia 

Gas Transm. Corp., 48 Ohio St.2d 211, 358 N.E.2d 526 (1976). A trial court may 

dismiss a complaint for lack of jurisdiction over subject matter on the basis of (1) the 

complaint alone; (2) the complaint supplemented by undisputed facts evidenced in 

the record; or (3) the complaint supplemented by undisputed facts plus the trial 

court’s resolution of disputed facts. Tibbs at 40, citing Jenkins v. Eberhart, 71 Ohio 

App.3d 351, 355, 594 N.E.2d 29 (4th Dist.1991). 

Probate courts are courts of limited jurisdiction, and proceedings in 

probate court are restricted to those actions permitted by statute and by the Ohio 

Constitution. Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 

N.E.2d 856, ¶ 23, citing Corron v. Corron, 40 Ohio St.3d 75, 531 N.E.2d 708 (1988). 
“The probate court has plenary power at law and in equity to dispose fully of any 

matter that is properly before the court, unless the power is expressly otherwise 

limited or denied by a section of the Revised Code.” R.C. 2101.24(C).

The estate filed its complaints under R.C. 2109.50. A R.C. 2109.50 

proceeding for the discovery of concealed assets of an estate is a special proceeding 

of a summary, inquisitorial character, the purpose of which is to facilitate the 

administration of estates by summarily retrieving assets that rightfully belong to the 

estate. Goldberg at id., citing In re Estate of Fife, 164 Ohio St. 449, 132 N.E.2d 185

(1956). R.C. 2109.50 authorizes proceedings in a probate court against persons 

suspected of concealing, embezzling, or conveying away estate assets and permits 

an examination of persons on anything touching upon the matter of the concealment 

complaint:

Upon complaint made to the probate court of the county having 

jurisdiction of the administration of a trust estate or of the county 

wherein a person resides against whom the complaint is made, by a 

person interested in such trust estate or by the creditor of a person 

interested in such trust estate against any person suspected of having 

concealed, embezzled, or conveyed away or of being or having been in 

the possession of any moneys, chattels, or choses in action of such 

estate, said court shall by citation, attachment or warrant, or, if 

circumstances require it, by warrant or attachment in the first instance, 

compel the person or persons so suspected to forthwith appear before 

it to be examined, on oath, touching the matter of the complaint.

In its motion to dismiss, Merriman Legal argued that the probate 

court did not have subject-matter jurisdiction over Weinberg’s claims because the 

estate sought recovery of assets that were part of a fee dispute between LLF and 

Merriman Legal; the assets, Merriman Legal argues, were not part of the estate. 
Weinberg countered that the claims were properly filed in probate court because the 

disputed fees were earned while Merriman was still an attorney at LLF and 

Prof.Cond.R. 1.5 does not cover disputes between lawyers at the same firm. 

Prof.Cond.R. 1.5 addresses the requirements for division of fees 

among attorneys. Prof.Cond.R. 1.5(f) states: 

In cases of a dispute between lawyers arising under this rule, fees shall 

be divided in accordance with the mediation or arbitration provided by 

a local bar association. When a local bar association is not available or 

does not have procedures to resolve fee disputes between lawyers, the 

dispute shall be referred to the Ohio State Bar Association for 

mediation or arbitration. 

The parties’ settlement agreement provided as follows: 

All fees to be paid by Merriman Legal to LLF must be “paid in 

compliance with the Ohio Rules of Professional Conduct and the laws 

of the State of Ohio.” 

The parties recognize that disputes concerning the division of fees for 

matters where they serve as co-counsel after the Separation Date are 

subject to arbitration or mediation pursuant to Ohio Rule of 

Professional Conduct 1.5(f).

Weinberg contends that he is owed fees for cases settled prior to the 

separation agreement date consisting of “fees earned from cases resolved while 

Merriman still worked for LLF.” But under the terms of the separation agreement

the cases settled prior to the separation date were retained by LLF. The fees at issue 

were collected after the separation date and after Landskroner’s death. 

The record reflects that while Merriman Legal and/or LLF attorneys 

may have worked on transferred cases while still affiliated with LLF, the transferred 

cases were pending when the separation agreement was executed, and Merriman 
Legal did not “earn” or collect any fees on these contingency cases until after the two 

firms parted ways. The separation agreement was an agreement between two law 

firms: LLF and Merriman and the individual attorneys associated with the firms; 

the agreement was not between lawyers of the same firm.

Weinberg relies on Hohmann, Boukis & Curtis Co., LPA v. Brunn 

Law Firm Co., LPA, 138 Ohio App.3d 693, 697-698 (8th Dist.2000), in arguing that 

Prof.Cond.R. 1.5(f) does not apply to fee disputes between attorneys who are not 

presently, but were at one time, in the same firm. In Hohmann, the claims and 

counterclaims focused on what the various lawyers had allegedly done to each other 

while they were working at the same law firm. More specifically, the allegations 

centered on whether the parties violated the terms of one attorney’s partnership 

relationship with the firm. 

Unlike the current dispute between LLF and Merriman Legal, 

Hohmann did not involve an alleged breach of an agreement between two law firms 

or an agreement to share fees collected after separation; the misconduct in 

Hohmann purportedly occurred while the attorney was at the firm. Unlike the 

instant dispute, the fee dispute in Hohmann also did not involve any agreement 

between the two firms regarding co-counsel fees to be shared after the attorney

resigned. Here, Weinberg has not alleged that Merriman or other former LLF 

attorneys concealed estate assets while they were still employed by LLF, claimed

that the former LLF attorneys refused to share attorney fees while they were 

employed by LLF, or claimed that LLF attorneys violated the terms of an agreement 
that governed their employment with LLF. Moreover, unlike Hohmann, the 

disputes herein, including LLF’s pursuit of server data and case expenses, arise 

directly from, and are governed by, the parties’ separation agreement.

This case is more akin to In re Estate of Southard, 192 Ohio App.3d 

590, 2011-Ohio-836, 949 N.E.2d 1049 (10th Dist.), in which the Tenth District Court 

of Appeals concluded that the probate court lacked jurisdiction over a fee dispute 

between two attorneys. In Southard, the executor of the estate retained a law firm 

to pursue a wrongful death and survival action. The executor agreed to pay forty 

percent of any award to the firm and also consented to the firm sharing one-third of 

the fees with an attorney, William Morse, who assumed joint responsibility for the 

case. After the case was settled for $6.5 million, the executor filed an application 

with the probate court to approve and distribute the settlement proceeds. The 

application to approve the settlement, however, showed that Morse was going to get 

much less than one-third of the fee. Morse filed an objection asserting his claim to 

one-third of the legal fee. The probate court approved the total owed for attorney 

fees but referred the remaining dispute between the firm and Morse to the 

Ohio State Bar Association (“OSBA”) pursuant to Prof.Cond.R. 1.5(f). The probate 

court held that the dispute must be resolved through the OSBA because it was a feesharing dispute. Id. at ¶ 6.

On appeal, the firm argued that because the wrongful death statute 

and the Rules of Superintendence vest the probate court with jurisdiction to approve 

settlement offers and determine the reasonableness of attorney fees in wrongful 
death actions, the probate court is the proper forum to hear the fee-sharing dispute 

between the law firm and Morse. The Southard Court disagreed, finding that the 

probate court properly concluded that it lacked jurisdiction over the fee dispute. 

Id. at ¶ 32. The court concluded that because the law firm and Morse disputed the 

allocation of their fees pursuant to a fee-sharing agreement, and the fee-sharing 

agreement met the requirements of DR 2-107 [the precursor to Prof.Cond.R. 1.5], 

the parties were required to submit their dispute to binding arbitration or mediation 

before the OSBA. Id.

Likewise, in this case the dispute is between the two law firms 

regarding the division of shared legal fees. One of the claims Weinberg made is a 

concealment claim related to case expenses purportedly advanced by LLF and 

alleges that Merriman Legal was concealing server data consisting of “LLF case 

information and itemized expenses and attorney fees and other important 

information used to support attorney fees applications and requests for 

reimbursement of case expenses.” This claim also arises from the dispute regarding

shared legal fees and cannot be resolved independently from the fee dispute. 

Distilled, the fee dispute between the two law firms raises contractual issues with 

respect to shared fees, case expenses, and server data, which must be resolved before 

a determination can be made as to whether the estate is owed any money.

While a probate court may have jurisdiction over concealment actions 

brought pursuant to R.C. 2109.50, the claims herein arise from a dispute between 

Merriman Legal and LLF regarding shared legal fees. Accordingly, we find that the 
probate court correctly determined that it did not have subject-matter jurisdiction 

over Weinberg’s claims.

The first assignment of error is overruled.

Failure to State a Claim — Civ.R. 12(B)(6)

In the second assignment of error, Weinberg argues that the trial 

court erred in granting the motion to dismiss pursuant to Civ.R. 12(B)(6) for failure 

to state claims for concealment. “Once a trial court finds no subject matter 

jurisdiction, it specifically divests itself from the right to rule further.” Phillips, 

5th Dist. Richland No. 12CA119, 2013-Ohio-3025, at ¶ 8, citing State ex rel. Jones v. 

Suster, 84 Ohio St.3d 70, 701 N.E.2d 1002 (1998). 

Because the trial court did not have jurisdiction over the case, it would 

be premature for this court to determine whether the estate’s complaint set forth a 

cognizable claim under R.C. 2109.50. Therefore, we do not further consider this 

assigned error.

The second assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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.

_______________________

MICHAEL JOHN RYAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

EMANUELLA D. GROVES, J., CONCUR