COMMON PLEAS COURT OF STARK COUNTY, OHIO
PROBATE DIVISION
LOCAL RULES
Including Amendments through June 8, 2012
TABLE OF RULES
SUP. R. 11 RECORDING OF PROCEEDINGS
SUP. R. 26.1 COURT RECORDS MANAGEMENT AND RETENTION
SUP. R. 27 STANDARDS RELATIVE TO USE OF ELECTRONIC DOCUMENTS AND RECORDS
SUP. R. 51 STANDARD PROBATE FORMS
SUP. R. 52 SPECIFICATION FOR PRINTING PROBATE FORMS
SUP. R. 55 EXAMINATION OF PROBATE RECORDS
SUP. R. 57 FILINGS AND JUDGMENT ENTRIES
SUP. R. 58 DEPOSIT FOR COURT COSTS
SUP. R. 60 APPLICATION FOR LETTERS OF AUTHORITY TO ADMINISTER ESTATE AND NOTICE OF APPOINTMENT
SUP. R. 67 ESTATES OF MINOR’S OF NOT MORE THAN TEN THOUSAND DOLLARS
SUP. R. 68 SETTLEMENT OF INJURY CLAIMS OF MINORS
SUP. R. 70 SETTLEMENT OF WRONGFUL DEATH AND SURVIVAL CLAIMS
SUP. R. 73 GUARDIAN'S COMPENSATION
SUP. R. 74 TRUSTEE'S COMPENSATION
SUP. R. 78 CASE MANAGEMENT IN DECEDENT'S ESTATES, GUARDIANSHIPS AND TRUSTS
LOCAL RULE 8.1 - COURT APPOINTMENTS
A. Persons appointed by the Court pursuant to constitutional or statutory authority, rule of court, or the inherent authority of the Court shall be selected from lists maintained by the Court. Such list will be maintained in Administrative Case File No. 167567.
B. Appointments will be made from such lists taking into consideration the qualifications, skill, expertise and caseload of the appointee in addition to the type, complexity and requirements of the case.
C. Court appointees will be paid a reasonable fee with consideration given to the factors contained in Rule 1.5 of the Ohio Rules of Professional Conduct, the Ohio Revised Code, and the Local Rules of Court relating to fees.
D. The Court shall review Court appointment lists at least annually to ensure the equitable distribution of appointments.
LOCAL RULE 9.1 - SECURITY PLANS
A. The Court has adopted and implemented a court security plan as required by Rule 9 of the Rules of Superintendence and in accordance with the provisions of the Ohio court security standards adopted by The Supreme Court of Ohio.
B. All persons shall be subject to the Stark County Security Policies and Procedure Manual for the Stark County Office Building, as adopted and as may be amended, in order that appropriate levels of security prevail in the Court to protect the integrity of court procedures, to protect the rights of individuals before the Court, to deter those persons who would take violent action against the Court or litigants; to maintain the proper decorum and dignity of the Court, and to ensure that Court facilities are secure for all persons.
C. The Stark County Security Policies and Procedure Manual for the Stark County Office Building, including any security policy and procedures manual, emergency preparedness manual, and continuity of operations manual adopted as part of the court security plan, shall not be available for public access.
LOCAL RULE 11.1 - RECORDING OF PROCEEDINGS
All hearings before the Court, if requested, will be recorded by audio-electronic recording devices and a fee in the amount $5.00 will be charged and collected as costs in such case. If any other recording procedure is desired, it must be provided by the requesting party, who shall make the necessary arrangements including the payment of costs. The original audio electronic recording of the proceedings will not be made available to the parties. All electronically recorded transcripts of proceedings and exhibits shall be maintained by the court for three (3) months from the date of the final appealable order in the case or final decision on appeal, whichever is later. Unless waived, a record in all jury trials will be taken by a court reporter.
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LOCAL RULE 26.1 - COURT RECORDS MANAGEMENT AND RETENTION
The Court has established pursuant to Sup. R. 26(G), Schedules of Records Retention and Disposition which have been filed under administrative case file number 126131, and which schedules shall be followed in conjunction with the Rules of Superintendence for the Courts of Ohio.
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LOCAL RULE 27.1 - STANDARDS RELATIVE TO THE USE OF ELECTRONIC DOCUMENTS AND RECORDS
This Court submitted its proposed local rule to the Supreme Court Commission on Technology and the Courts and received provisional approval on June 5, 2002. The local rule is set forth as Local Rule 57.1 herein.
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LOCAL RULE 51.1 - STANDARD PROBATE FORMS
Forms for use in the Stark County Probate Court are available at the Court and on the Court’s website: www.probate.co.stark.oh.us.
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LOCAL RULE 52.1 - COMPUTER GENERATED FORMS
When standard forms are generated by computer, they shall conform to all specifications for standard forms stated in Sup. R. 52. The Court will accept for filing nonstandard computer generated forms for the receipts and disbursements attached to a standard account form or the schedule of assets attached to a standard inventory and appraisal form.
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LOCAL RULE 53.1 - HOURS OF THE COURT
The Probate Court and its offices shall be open for the transaction of business from 8:30 a.m. to 4:30 p.m. daily except Saturday, Sunday, and legal holidays. All pleadings requiring a new case number or the payment of court costs shall be filed by 4:15 p.m.
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LOCAL RULE 56.1 - CONTINUANCES
A. Motions for continuances, setting forth the basis for the continuance, shall be submitted in writing with the proper caption and case number. Supporting documentation, if any, shall be attached.
B. Except on motion of the court, no continuance shall be granted in the absence of proof of reasonable notice to, or consent by the adverse party or the party's counsel. Failure to object to the continuance within a reasonable time after receiving notice shall be considered consent to the continuance.
C. A proposed entry shall be filed with a motion for continuance, leaving the time and date blank for the Court to set a new date.
D. Except for extraordinary circumstances, no motion for a continuance shall be granted unless filed no less than seventy-two (72) hours prior to the scheduled hearing.
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LOCAL RULE 55.1 - CASE FILES
The Court’s case files shall not be removed from the probate court. Individual pleadings shall not be removed from the retaining clips.
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LOCAL RULE 55.2 - PHOTOCOPIES
Copies of any public record may be obtained during regular court hours at the cost of ten cents ($.10) per page.
LOCAL RULE 57.1 - FACSIMILE FILINGS
Pursuant to Civil Rule 73(J) the Court in its discretion may allow facsimile filing during regular business hours of the Court as set forth in Local Rule 53.1 The area code and number of the receiving machine is 330.451.7040.
A. No facsimile filings shall be submitted to the Court unless the consent of the Judge is first obtained. Any facsimile submitted without prior court approval shall not be considered filed for record.
B. These rules only apply to civil proceedings and civil commitment proceedings in the Stark County Probate Court.
C. Any documents permitted to be filed by facsimile, and received after regular business hours shall be deemed filed the following business day.
D. No initial document may be filed by facsimile.
E. A document filed by facsimile shall be accepted as the original and shall be filed by the attorney of record. All risks of transmission shall be borne by the sender.
F. Where a filing is permitted by the Court to be made by facsimile, the person submitting the facsimile, shall file within three (3) days of the facsimile transmission, the original pleading with the Court. The failure of the transmitting party to do so will result in the facsimile being stricken from the record.
G. All filings by facsimile shall be accompanied by a cover page that states all of the following information: (1) The date of transmission; (2) The name, telephone number, and facsimile number of the person transmitting the document; (3) The case number and caption of the case in which the document is to be filed; (4) The title of the document to be filed; (5) The number of pages being transmitted.
H. Any signature on documents transmitted by facsimile shall be considered that of the attorney or party that it purports to be for all purposes. If it is established that the documents were transmitted without authority, the Court may order the filing stricken.
I. The filing date of any documents transmitted by facsimile during regular business hours shall be the time and date the document was received by the probate court's facsimile machine.
J. No document filed by facsimile that requires a filing fee shall be accepted by the Clerk for filing until court costs and fees have been paid.
LOCAL RULE 57.2 - STREET ADDRESS
When required on a court document, the fiduciary’s address must be a street address and, if applicable, any post office box number used as a mailing address. The address of the fiduciary must be the fiduciary’s legal address. A fiduciary who is an attorney, may use an office address.
LOCAL RULE 57.3 - ORIGINAL SIGNATURES
All filings must contain original signatures. In all matters with multiple fiduciaries, the signature of all fiduciaries is required.
LOCAL RULE 57.4 - ATTORNEY SIGNATURES
A person who is not an attorney may not sign on behalf of an attorney.
LOCAL RULE 57.5 - FIDUCIARY SIGNATURES
The attorney for the fiduciary may not sign for the fiduciary.
LOCAL RULE 57. 6 - CASE NUMBER
All filings, including attachments, must have the case number on each page.
LOCAL RULE 57. 7 - FORWARDING COPIES
The Court will not return file-stamped copies by mail unless submitted with a return self-addressed stamped envelope.
LOCAL RULE 57.8 - DISPOSITION OF EXHIBITS
All exhibits offered for admission during a hearing or trial shall be labeled by party name and item identification. In a proceeding recorded by a Court stenographer, custody of exhibits admitted or proffered shall be given to the stenographer, unless otherwise ordered by the Court. If the proceeding is electronically recorded, exhibits shall be retained separate from the case file, unless otherwise ordered by the Court.
Upon agreement of the parties or by order of the Court, copies may be substituted for the original exhibit. Disposal of exhibits shall be pursuant to Sup. R. 26.
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LOCAL RULE 57.9 - PERSONAL IDENTIFIERS
A. Social Security numbers, except for the last four digits, and all financial account numbers, employer and employee identification numbers are personal identifiers, which are confidential pursuant to Sup. R. 44, and shall not be included in any filing in this Court that is available for inspection by the general public.
B. Personal Identifiers shall be filed with the Court upon SCPC Form 45(D) entitled "Confidential Disclosure of Personal Identifiers" which form shall not become part of the public record.
C. Marriage applications are public records, however, Social Security numbers that are required on marriage applications and which are included therein are sequestered and are not available for inspection by the general public.
D. Adoption filings, Civil Commitment filings, and all post November 8, 1990 Ohio Estate tax filings are confidential records that are not available for inspection by the general public.
E. The person filing or submitting a document, or their attorney shall omit or redact all Personal Identifiers, from all filings, pleadings, documents, or exhibits that are available for inspection by the general public.
F. The responsibility for redacting Personal Identifiers rests solely with the person filing or submitting the document or their attorney.
G. The Court shall not review documents for compliance with this rule, or redact documents, or seal documents that fail to comply with this rule.
LOCAL RULE 58.1 - COURT COSTS
A. Application to Admit Will to Probate $81.00
(when no administration necessary)
B. Application for Authority to Administer Testate Estate $125.00
C. Application for Authority to Administer Intestate Estate $125.00
D. Application to Relieve Estate From Administration *
* (varies as to statutory limits and dates of death)
1. Additional fee for certificate of transfer of real estate $ 7.00
E. Petition for Adoption, excepting independent adoptions*
(includes home study)
Effective September 2, 2014 $627.00
Effective August 1, 2005 $427.00
(if more than one child is being adopted by the same
adoptive parents each additional petition for adoption) $127.00 *
F. Application for Placement for Adoption $ 58.00
(attorney must make arrangements with qualified assessor
for payment of fee)
G. Civil Actions $125.00
(Land sales, determination of heirs, etc.)
H. Application for Appointment of Guardian $151.00
Application for Appointment of Conservator $101.00
I. Estate Tax Return
(if filed without estate proceedings) $ 18.00
J. Exceptions to Inventory and Appraisal $ 23.00
K. Exceptions to Account $ 23.00
L. Petition for Release of Adoption Information $ 63.00
M. Application for Name Change $ 84.00
N. Minor's Settlement $ 66.00
O. Account $ 25.00 (plus $1 per page)
P. Testamentary Trust (extra Letters $1.00 each) $ 101.00
Q. Wrongful Death Trust $ 66.00
SUP. R. 60 - APPLICATION FOR LETTERS OF AUTHORITY TO ADMINISTER ESTATE AND NOTICE OF APPOINTMENT
LOCAL RULE 60.1 - APPOINTMENT OF NON RESIDENT FIDUCIARIES
An applicant to be appointed fiduciary of a decedent's estate, or trust, who is not a resident of this state, must be in compliance with Section 2109.21 of the Revised Code and use as the attorney of record an attorney licensed to practice law in this State. To assure the assets remain in Stark County, Ohio, during the administration of the estate or trust, the applicant must meet one or more of the following criteria as required by the Court:
A. Place a substantial amount of the assets in a custodial depository in this county, pursuant to Section 2109.13 of the Revised Code;
B. Have a co-fiduciary who is a resident of this State;
C. Post a bond in compliance with Section 2109.04 of the Revised Code.
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LOCAL RULE 61.1 - APPRAISERS AND APPRAISALS
When required by law, there shall be one suitable and disinterested appraiser appointed by the executor or administrator of an estate, with Court approval. An auctioneer may appraise assets that he or she has been retained to sell at a public auction. The following persons shall be disqualified from being such an appraiser:
A. A person related by blood or marriage to the decedent;
B. A beneficiary of the estate;
C. A person related by blood, marriage or employment to the attorney for the estate;
D. A person related by blood, marriage or employment to the fiduciary for the estate, and
E. Real estate agents, and brokers who are or will be utilized to sell the assets which are to be appraised.
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LOCAL RULE 61.2 - REAL ESTATE APPRAISERS
Real estate appraisals shall be made by licensed real estate agents, brokers, auctioneers, credentialed real estate appraisers, or such other persons who by experience and training are qualified to make real estate appraisals.
LOCAL RULE 61.3 - SELF-DEALING - APPRAISER
No appraiser shall be permitted to directly or indirectly purchase or acquire any of the property he or she appraises, except at public auction.
LOCAL RULE 61.4 - READILY ASCERTAINABLE VALUE OF REAL PROPERTY:
Notwithstanding Local Rule 61.1 through Local Rule 61.3, the market value of real estate as found in the Stark County Auditor's property records may be accepted as the readily ascertainable value of the property and no further appraisal of such property shall be required except as provided under Local Rule 61.7. A copy of said evaluation shall be attached to Form 6.1 - Schedule of Assets or Form 5.1 - Assets and Liabilities of Estate to be Relieved from Administration, whichever is applicable.
LOCAL RULE 61.5 - READILY ASCERTAINABLE VALUE OF MOTOR VEHICLE
Notwithstanding Local Rule 61.1 through Local Rule 61.3, for the market value of any motor vehicle, the fiduciary may use the applicable value listed in the current N.A.D.A. Guide, the Kelley Blue Book, or comparable guide to reflect the readily acceptable value of the property without further appraisal, except as provided under Local Rule 61.7. The fiduciary must provide a copy of the N.A.D.A. Guide, Kelley Blue Book value, or comparable guide, and should state the condition of the car to support the value that was used. This information should be attached to Form 6.1 - Schedule of Assets or Form 5.1 - Assets and Liabilities of Estate to be Relieved from Administration, whichever is applicable.
LOCAL RULE 61.6 - HOUSEHOLD FURNISHINGS
All tangible personal property, household goods and furnishings of a decedent shall be returned on the Inventory with an appraisal, except as provided herein:
A. Unless otherwise ordered by the Court, tangible personal property, household goods and furnishings of the decedent, passing to the surviving spouse may be returned on the Inventory without appraisal.
B. Unless otherwise ordered by the Court, where no Ohio estate tax return is required to be filed, tangible personal property, household goods and furnishings of the decedent may be returned on the Inventory without appraisal if all beneficiaries entitled to receive such property consent to the waiver of an appraisal.
LOCAL RULE 61.7 - DISPUTED APPRAISAL
A fiduciary, beneficiary, or creditor of a decedent's estate may file a written request with the Probate Court not later than five (5) days prior to the date set for hearing on the Inventory and Appraisal pursuant to Section 2115.16 of the Revised Code that any property deemed to be appraised by readily ascertainable value shall be appraised by a suitable and disinterested appraiser as provided in Local Rule 61.1 through Local Rule 61.3.
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LOCAL RULE 64.1 - ACCOUNT TIMELINES
A. For estates where the date of death is after January 1, 2002, the Final and Distributive Account or Certificate of Termination shall be due not later than six months following the date of the appointment of the estate fiduciary.
1. The time for filing the Final and Distributive Account may be extended to thirteen months by filing the notice or motion for the reasons enumerated in R.C. 2109.301(B)(1). (Use Standard Probate Forms 13.8 or 13.10)
B. For guardians, the first account shall be due not later than one year following the date of the appointment and each subsequent account shall be due on an annual basis, unless the court orders otherwise. Every guardian shall file a final and distributive account within thirty (30) days following the death of the ward,
C. For trusts, the first account shall be due not later than one year following the date of the appointment and each subsequent account shall be due on an annual basis, unless the court orders otherwise.
LOCAL RULE 64.2 - VOUCHERS
A. The Court requires copies of vouchers to be filed with estate accounts for decedent's dying on or before December 31, 2001, and all guardianship and trust accounts. The voucher copies will be kept by the Probate Court until the account is approved. After the account is approved, the vouchers may be destroyed by the Probate Court or if requested, returned to the Attorney for the Fiduciary.
B. Accounts requiring vouchers will not be approved without vouchers or other proof which verifies each disbursement. Copies of bank draft receipts and uncancelled checks will not satisfy R.C. 2109.302 and R.C. 2109.303.
C. The Court will accept as a voucher, a statement from a financial institution specifying the payee, check amount and date of payment on a bank statement that includes photo copies of cancelled checks.
LOCAL RULE 64.3 - FIDUCIARY'S SIGNATURE AND ADDRESS
A. All accounts must be personally signed by the fiduciary and contain the full name, current residence address and telephone number of the fiduciary.
B. All fiduciaries must sign the account when multiple fiduciaries have been appointed.
LOCAL RULE 64.4 - DELINQUENCY IN FILING AN ACCOUNT
No expenditure, sale, distribution or fee will be approved while the fiduciary is delinquent in filing an account. See also Sup. R. 78.
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LOCAL RULE 66.1 - GUARDIANSHIPS OF MINORS
A. A separate guardianship must be filed and a corresponding case file established for each proposed ward.
B. The Court will not accept for filing any guardianship for a minor where the sole purpose of the guardianship is to establish a residency for school purposes. Custody for school purposes is a matter to be heard and determined by the Juvenile Division of the Court of Common Pleas.
C. A certified copy of the minor's birth certificate shall be filed with every Form 16.0 - Application for Appointment of a Guardian of a Minor.
D. Minor's who are not U.S. citizens or resident aliens, are not considered by this Court to be residents or have legal settlement as set forth in Section 2111.02(A) of the Revised Code.
LOCAL RULE 66.2 - GUARDIAN'S REPORT
All guardians are required to file their Guardian's Report (Form 17.7) as detailed in Section 2111.49 of the Revised Code on the first anniversary after the date of the issuance of the Letters of Guardianship and annually thereafter.
LOCAL RULE 66.3 - SALE OF PERSONAL PROPERTY
A guardian may not sell any tangible personal property of the ward without prior Court approval. Every application to sell a ward's tangible personal property shall be supported by a written appraisal by a suitable and qualified appraiser.
LOCAL RULE 66.4 - DEPOSIT OF WILLS
The guardian must deposit with the Court any and all wills of the ward for safekeeping pursuant to Section 2107.07 of the Revised Code.
LOCAL RULE 66.5 - CHANGE OF ADDRESS
A guardian shall inform the Court as to any change of address of the guardian or the ward within thirty (30) days of the address change. Failure to notify the Court under this rule may result in guardian being removed.
LOCAL RULE 66.6 - STATEMENT OF EXPERT EVALUATION
Where a physician or clinical psychologist states on a Statement of Expert Evaluation that to a reasonable degree of medical certainty it is unlikely the ward's mental competence will improve, the Court may dispense with the filing of subsequent evaluations.
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LOCAL RULE 67.1 - REPRESENTATION OF MINOR
A. If no attorney represents the interests of the minor, the attorney representing the interests of the payor shall assume the duties imposed by Sup. R. 67 (B) and (C).
B. Pursuant to Sup. R. 67(C), the attorney representing the applicants or the payor in the matter shall acknowledge responsibility for depositing the funds and providing the financial institution with a copy of the entry. The attorney shall obtain a Verification of Receipt and Deposit (Form 22.3) from the financial institution and file the form with the Court within seven (7) days of the issuance of the entry.
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LOCAL RULE 68.1 - GENERAL PROVISIONS
A. The injured minor and the applicant shall be present at the hearing.
B. Seven days notice of the hearing as provided by Civil Rule 73 of the Ohio Rules of Civil Procedure shall be given to the noncustodial parent or parents, which notice may be waived.
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LOCAL RULE 68.2 - STRUCTURED SETTLEMENTS
In the event that parties involved in claims for injuries to minors or incompetents desire to enter into a structured settlement, defined as a settlement wherein payments are made on a periodic basis, the following rules shall apply:
A. The application shall include a signed statement from one of the following independent professionals, specifying the present value of the settlement, and the method of calculation of that value: an actuary, certified public accountant, certified financial planner, chartered life underwriter, chartered financial consultant, or an equivalent professional.
B. If the settlement is to be funded by an annuity, the application shall include a signed statement by the annuity carrier or the broker procuring the policy stating:
(1) The annuity carrier is licensed to write annuities in Ohio.
(2) The annuity carrier's ratings from at least two of the following organizations, which meet the following criteria:
a. A.M. Best Company; A++, A+, or A;
b. Fitch Company (formerly Duff & Phelps Credit Rating Company (Claims Paying Ability Rating): AAA, AA+, or AA;
c. Moody's Investors Service (Financial Strength): Aaa, Aa1, or Aa2;
d. Standard & Poor's Corporation (Financial Strength): AAA, AA+, or AA;
e. Weiss Research Inc.: A+ or A.
C. In addition to the requirements of Paragraph (B) above, an annuity carrier must meet any other requirement the Court considers reasonably necessary to assure that funding to satisfy periodic payment settlements will be provided and maintained.
D. There shall be no premature withdrawals or hypothecation of the structure without prior Court approval.
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LOCAL RULE 70.1 - WRONGFUL DEATH TRUSTS
Any attorney who is submitting a wrongful death trust must submit the form of the trust to the Court at least seven (7) days prior to the hearing on the wrongful death settlement.
LOCAL RULE 70.2 - WRONGFUL DEATH TRUST WITH MULTIPLE BENEFICIARIES
A wrongful death trust with its own case number shall be created for each beneficiary.
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LOCAL RULE 71.1 - ATTORNEY SERVING AS FIDUCIARY
In all matters where an attorney is appointed as the fiduciary of an estate, guardianship, or trust, and the fiduciary is also the attorney of record, detailed records describing the services provided as an attorney, including time involved shall be maintained and upon request shall be submitted to the Court for review. Rule 1.5 of the Ohio Rules of Professional Conduct shall govern the reasonableness of all fees, notwithstanding statutory allowances. The Court assumes an attorney appointed as fiduciary has been selected due to the attorney's special knowledge and abilities resulting in the prompt and efficient administration of the estate, guardianship, or trust.
The Court may determine fees after a hearing or without hearing, regardless of the submission of consents to fees.
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LOCAL RULE 71.2 - COUNSEL FEES - DECEDENT'S ESTATES
A. Where the primary beneficiaries have consented in writing to the amount of counsel fees, an application need not be made for the allowance, provided the consent is endorsed on the fiduciary's account or evidenced by a separate instrument filed with the account.
B. Where the attorney on application to the court prior to or during administration requests a fixed fee, the court, if it deems appropriate and after appropriate notice to the interested parties, will then fix a reasonable fee for services beneficial to the administration of the estate.
C. Counsel fees for the administration of a decedent's estate shall be reasonable and beneficial to the estate. The application for fees shall be in writing which sets forth the details supporting the calculations on which the requested fees are based.
D. Counsel fees for the administration of a decedent's estate as set forth below may serve as a guide in determining fees to be charged to the estate for legal services of an ordinary nature rendered as attorney for the fiduciary in the complete administration of a decedent's estate.
E. Such schedules, however, are not to be considered or represented to clients as schedules of minimum or maximum fees to be charged.
1. On the personal property which is subject to administration and for which the fiduciary is charged and upon the proceeds of real estate that is sold under a power of will as follows:
a. For the first $100,000.00 at a rate of 4.5%;
b. All above $100,000.00 and not exceeding $400,000.00 at the rate of 3.5%;
c. All above $400,000.00 at the rate of 2.5%.
2. On real property that is not sold at a rate of 2%.
3. On real estate sold by judicial proceedings according to the judgment entry confirming the proceedings.
4. On all other property not included in this rule:
a. If a federal estate tax return is not required,1 1/2% of all such property subject to Ohio estate tax.
b. If a federal estate tax return is required, 2 1/2% of all such property subject to federal estate tax.
F. Where the attorney, law partner or firm associate is appointed as fiduciary, the total administration fee may not exceed the statutory fiduciary commission plus one half of the guideline counsel fee.
G. If by reason of the application of the above percentages to values of assets a disparity or injustice results, such disparity or injustice may be reviewed on the court's own motion in respect of any account reflecting such compensation or upon exceptions to such an account.
LOCAL RULE 71.3 - COUNSEL FEES - GUARDIANSHIPS
Counsel fees for the administration of a guardianship shall be those reasonable and beneficial to the guardianship. The application for fees shall be in writing which sets forth the details supporting the calculations on which the requested fees are based.
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LOCAL RULE 73.1 - GUARDIAN'S COMPENSATION
A. A guardian of the estate shall be allowed compensation for income and disbursements as follows:
1. Income and Disbursements:
4% of the first $5,000.00 of income
3% of the excess of $5,000.00 of income
4% of the first $5,000.00 of disbursements
3% of the excess of $5,000.00 of disbursements
2. Principal:
$3.00 per thousand on the first $250,000.00 of market value
$2.00 per thousand on excess of $250,000.00 of market value
B. For purposes of determining compensation based on income the following shall not be considered income:
1. Receipt of corpus by guardian
2. Balance carried forward from prior accountings
3. Investment and reinvestment of corpus
C. If by reason of the application of the above percentages a disparity or injustice results, such disparity or injustice may be reviewed on the court's own motion in respect of any account reflecting such compensation or upon exceptions to such an account.
D. Applications for compensation by guardians of veterans must comply with Chapter 5905 of the Ohio Revised Code and all other rules and regulations of the Department of Veterans Affairs.
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LOCAL RULE 74.1 - CORPORATE TRUSTEES
A. Except where the instrument creating the trust makes provisions for compensation, a testamentary trustee, subject to the approval of the Court, may charge fees on the same basis as it charges for living trusts.
B. Fee schedules are subject to prior Court approval and are to be furnished to the Court by the 10th day of January of each year and whenever a change in fees is made within any calendar year. A copy of the fee schedule shall also be served upon each current beneficiary.
C. The trustee shall notify the current beneficiaries of the trust in advance of any change in the method or rate of the trustee's compensation.
D. The computation of the trustee's compensation shall be set forth in the trustee's account as a condition for the approval of the account.
LOCAL RULE 74.2 - INDIVIDUAL TRUSTEES
A. Except where the instrument creating the trust makes provisions for compensation, the testamentary trustee may charge as follows:
(1) Principal Fee. A fee of $2.00 per $1,000 of the market value of the principal held by the trustee.
(2) Income Fee. A fee of six and one half percent (6.5%) of the total of the income for the accounting period.
(3) Principal Distribution Fee. A fee of one percent (1%) of the principal distributed during the accounting period.
B. If by reason of the application of the above percentages to values of assets a disparity or injustice results, such disparity or injustice may be reviewed on the Court's own motion in respect of any account reflecting such compensation or upon exceptions to such an account.
LOCAL RULE 75.1 - FIDUCIARY BONDS
A. Pursuant to Ohio Revised Code Sec. 2109.04(A)(2), if the instrument dispenses the giving of bond, the Court will appoint a fiduciary without bond, unless the Court is of the opinion that the interest of the estate or trust demands it. In order for the Court to be able to make this determination, the Court may schedule a hearing on the waiver of bond; but may dispense with the hearing and appoint the fiduciary without bond if:
1. Upon application for appointment or prior to a scheduled hearing, the fiduciary files with the Court Acceptances of the Waiver of Bond (in a format approved by the Court) signed by all the vested beneficiaries named in the decedent’s will as identified on the Form 1.0, or for a testamentary trust, by all the current beneficiaries named in the testamentary trust; or
2. The named fiduciary is the sole beneficiary of the estate/trust or if the named co-fiduciaries are the only beneficiaries of the estate/trust.
B. If the Court determines a bond is necessary the Court will generally require the applying fiduciary to post a surety bond of two times the probable value of the personal estate or such other level as determined to be appropriate by the Court; however, if the fiduciary is an attorney, the Court will generally require a surety bond equal to the probable value of the personal estate.
C. In lieu of the bond, the Court may authorize a depository in lieu of bond or restricted financial account arrangement to hold financial assets of the estate/trust, with such account being subject to the further order of the Court prior to the release of the restricted assets.
D. Attorneys shall not act as sureties in any case, nor are they permitted to become sureties on the bond of any fiduciary.
E. Where a bond is required, the Court will not accept personal sureties.
LOCAL RULE 75.2 - RELIEVING ESTATE FROM ADMINISTRATION
A. Appraisal of assets:
1. The appraisal of assets shall be subject to Local Rule 61.1, "Appraisers and Appraisals".
2. All chattel property and household furnishings shall be appraised except as provided herein:
a. If it all passes to the surviving spouse, it may be returned without an appraisal, subject to Court approval.
b. If there is no Ohio Estate Tax return required to be filed, and all beneficiaries consent to the waiver of an appraisal, it may be returned without an appraisal, subject to Court approval.
B. Publication of notice to creditors and all interested parties:
1. Publication of notice is not required if assets are less than the statutory limits and there is no surviving spouse and/or minor children of the decedent, and there is a paid funeral bill or waiver by the funeral director or a funeral payment agreement, and a Notice to Distributee (SCPC Form 10.4) is filed for each beneficiary.
2. Publication of notice is not required if assets are less than the statutory limits and the decedent is survived by minor children but no surviving spouse, and there is a paid funeral bill or waiver by the funeral director or funeral payment agreement, and a Notice to Distributee (SCPC Form 10.4) is filed for each beneficiary.
3. Publication of notice is not required if assets are less than $100,000.00 and there is a surviving spouse who inherits the entire probate estate, and there is a paid funeral bill or waiver by the funeral director or funeral payment agreement and a Notice to Distributee (SCPC Form 10.4) is filed by the surviving spouse.
C. Commissioner - A commissioner shall be appointed:
1. To make distributions in kind;
2. To sell personal property;
3. To pay outstanding debts;
4. To execute documents to titled personal property.
D. Every commissioner shall file a report of distribution within thirty (30) days of the appointment
LOCAL RULE 75.3 - ADOPTIONS
A. In addition to the requirements of R.C. 3107.014, each person to be a qualified assessor, shall first have on file with the Court a copy of a current "Certificate of Completion".
B. Each assessor who is to perform a home study as provided in R.C. 3107.031 must first be approved and appointed by the Court.
C. The requirement of a pre-finalization assessment as provided in R.C. 3107.12 shall not be required in an adoption by a step-parent, unless the Court orders otherwise.
D. A final accounting in accordance with R.C. 3107.055 shall be filed in all public children services agency adoptions.
E. A preliminary estimate account and a final account as provided for in R.C. 3107.055 shall not be required in adoptions by a step-parent, unless the Court orders otherwise.
F. The application for search of the Ohio Putative Father Registry shall be filed by the mother of the child, the child welfare agency or the attorney for either of them.
G. There shall be separate legal counsel for the person(s) seeking to adopt and the parent(s) placing a child for adoption, pursuant to R. C. 5103.16.
H. In private placement adoptions, a pre-placement application in a form prescribed by the Court shall be filed by the prospective adopting parents not less than seven (7) days prior to the placement if the applicants are residents of Stark County, Ohio and not less than fourteen (14) days if the applicants are not residents of Stark County, Ohio.
I. In all adoptions, married petitioner(s) must be married for not less than one (1) year prior to the final approval of adoption.
J. All homestudies, and Bureau of Criminal Investigation, and Federal Bureau of Investigation background checks shall have been completed no more than six (6) months prior to the filing of the Petition for Adoption.
LOCAL RULE 75.4 - SUMMARY ESTATE ADMINISTRATION
A. The Court may issue an order of distribution for a summary estate administration, if the applicant satisfies all of the following requirements:
1. The applicant has paid, or is obligated in writing to pay the decedent's funeral expenses, and
2. The entire value of the decedent's estate, as verified by written documentation, does not exceed Two Thousand ($2,000.00) Dollars, and
3. The applicant is entitled to the entire estate to satisfy the claim for the decedent's funeral expenses or the family allowance.
B. If the applicant is not the decedent's surviving spouse or a next of kin, then notice must be given at the applicant's cost, to all next of kin before any order of distribution will issue.
LOCAL RULE 75.5 - PARALEGALS
In fee statements filed with the Court, services of the paralegal must be itemized separately from services performed by an attorney.
LOCAL RULE 75.6 - WILLS DEPOSITED FOR SAFEKEEPING
After the testator's death, a will deposited for safekeeping pursuant to Section 2107.07 of the Revised Code shall only be released to a Court of probate jurisdiction.
LOCAL RULE 75.7 - OBJECTIONS TO MAGISTRATE'S DECISION
Upon filing objections to a magistrate's decision pursuant to Civ. R. 53, the moving party shall cause the objections to be set for hearing and to give notice to the opposing party or attorney of the date on which the matter is to be heard or submitted for decision.
The objections must be accompanied by a supporting memorandum. If required, the transcript shall be filed within thirty (30) days of the filing of the objections or two (2) days before the hearing, whichever occurs first.
Failure to file a transcript when one is required by Civ. R. 53(D)(3)(b)(iii) is a basis for dismissal of the objections.
Memoranda contra to the objections may be filed by any party within ten (10) days of the filing of the objections, or two (2) days prior to the hearing, whichever occurs first.
A. In all cases before the Probate Court, where publication is required for service of summons or service of notice, it shall be the duty of the party requesting publication, or their attorney, to effectuate the publication.
B. Before service by publication can be made, a motion, with a proposed order, and with an affidavit by a party requesting notice or their counsel shall be filed with the court, together with a copy of the proposed notice. The affidavit shall aver that service of summons or notice cannot be made because the residence of the party is unknown to the affiant, all of the efforts made on behalf of the affiant to ascertain the residence of the party and that the residence of the party cannot be ascertained with reasonable diligence.
C. Within ten days of the first publication, the party requesting publication shall file a notice with the Court of the dates of publication. Within ten days after the final publication, the party requesting publication shall file with the Court a Publisher's Affidavit that includes the notice published, and the dates of publication.
LOCAL RULE 78.1 - CIVIL ACTIONS
A. A pre-trial conference shall be conducted in all civil cases, except in land sale proceedings, prior to being scheduled for trial.
B. Within thirty (30) days after the answer day the case shall be set by the Court for a pre-trial conference.
C. Not less than fourteen (14) days notice of the pre-trial conference shall be given by the Court to all counsel of record by mail and/or telephone. Any application for continuance of the conference shall be in writing and filed with the Court in a timely manner.
D. The following decisions shall be made at the pre-trial conference and all counsel attending must have full authority to enter into a binding pre-trial order;
1. A definite discovery schedule shall be agreed upon by all parties for the completion of all discovery.
2. A definite date for exchange of expert witness reports shall be determined.
3. A definite date for filing of all motions which date shall not be less than seven (7) days before the final pre-trial. The date for the final pre-trial shall be set by the Court and shall be held approximately one week prior to the trial.
4. The date for the trial shall be set by the Court.
E. The following decisions shall be made at the final pre-trial and all counsel attending must have full authority to enter into a binding final pre-trial order;
1. The Court will rule on all pre-trial motions.
2. Briefs on any legal issues, proposed jury instructions and proposed jury interrogatories shall be submitted to the Court.
3. Clients must attend the final pre-trial.
4. No motions shall be heard after the final pre-trial without leave of Court and without good cause being shown.
F. The trial date shall not be changed nor shall the trial be continued without order of the Court and after the showing of good cause.
LOCAL RULE 78.2 - LAND SALES
A. All land sales which have not been concluded within one (1) year from the date of filing the complaint shall be set for pre-trial conference within ten (10) days following the expiration of one year.
B. The following decisions shall be made at the pre-trial conference and all counsel attending must have full authority to enter into a binding pre-trial order;
1. The attorney of record and the fiduciary must attend the pre-trial conference.
2. A written status report shall be filed with the Court no later than seven (7) days prior to the pre-trial conference.
3. The status report shall address the efforts being made to sell the real estate and when the case will be closed.
LOCAL RULE 78.3 - DECEDENT'S ESTATES
A. The statutory time for filing of an inventory (R.C. 2115.02) and an account (R.C. 2109.30) shall be adhered to and the citation procedure (R.C. 2109.301) shall be utilized if necessary to gain compliance.
B. The Court shall set all exceptions to an inventory or an account for a pre-trial conference within thirty (30) days after exceptions are filed.
1. The Court at the pre-trial conference shall set the matter for an evidentiary hearing within thirty (30) days thereafter.
C. All decedent's estates, which are current as to filed accounts, that remain open after a period of thirteen months shall be subject to a status conference. The fiduciary and the attorney shall be present and a written status report shall be submitted to the Court at the time of the status conference.
LOCAL RULE 78.4 - WRONGFUL DEATH SETTLEMENTS
All hearings shall be held within thirty (30) days of the filing of the Form 14.0, provided however, if either a guardian or guardian ad litem is required to be appointed the hearing shall be held within fifteen (15) days after the appointment.
LOCAL RULE 78.5 - GUARDIANSHIPS
A. The statutory time for filing of an account (R.C. 2109.30) shall be adhered to and the citation procedure (R.C. 2109.31) shall be utilized if necessary to gain compliance.
B. The statutory time for filing a guardian's report (R.C. 2111.49) shall be adhered to and the citation procedure (R.C. 2109.31) shall be utilized if necessary to gain compliance.
C. Each guardianship shall be reviewed not less than bi-annually, by the probate court investigator.
LOCAL RULE 78.6 - TRUSTS
The statutory time for filing of an account (R.C. 2109.30) shall be adhered to and the citation procedure (R.C. 2109.31) shall be utilized if necessary to gain compliance.
LOCAL RULE 78.7 - MOTIONS
A. The moving party shall serve and file with the motion a brief written statement in support of the motion and a list of citations of authorities in support. Opposing counsel or a party shall serve the response memorandum on or before the fourteenth (14th) day after the date of service as set forth on the Certificate of Service attached to the served copy of the motion.
B. All motions shall be determined upon the pleadings and memorandum in support. Oral arguments upon motions may be permitted upon written application and after showing of good cause.
C. When a hearing is granted, the Court shall set the hearing within thirty (30) days after receipt of the request.
LOCAL RULE78.8 - ADOPTIONS
A. All hearings shall be held within seventy five (75) days of the filing of the Petition for Adoption.
B. All cases in which an Interlocutory Order of Adoption has been issued shall be reviewed six (6) months after the Interlocutory Order of Adoption is journalized and shall be finalized or set for further proceedings.
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LOCAL RULE 79.1 - MEDIATION
The Court establishes mediation in order to increase access to justice; to increase parties participation in the court processes and their satisfaction with the outcome; to allow cases to settle more quickly with less expense to the parties; and to expand dispute resolution resources available to the parties. The Court adopts Local Rule 79, as amended, and effective January 1, 2007. Through Local Rule 79 the Stark County Probate Court incorporates by reference Chapter 2710 “Uniform Mediation Act” (UMA) and Rule 16 of the Supreme Court of Ohio Rules of Superintendence.
LOCAL RULE 79.2 - DEFINITIONS
All definitions found in the “Uniform Mediation Act” (UMA) R.C. 2710.01 are adopted by this Court through Local Rule 79, including, but not limited to the following:
A. “Mediation” means any process in which a mediator facilitates communication and negotiation between the parties to assist them in reaching a voluntary agreement regarding their dispute.
B. "Mediator” means an individual who conducts a mediation.
C. “Mediation Communication” means a statement, whether oral, in a record, verbal or non verbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
D. “Proceeding” means either of the following:
1. Judicial, administrative, arbitral or other adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery;
2. A legislative hearing or similar process.
E. “Party” means a party who participates in a mediation and whose agreement is necessary to resolve the dispute.
LOCAL RULE 79.3 - PURPOSE OF MEDIATION
The purpose of mediation is to promote greater efficiency and public satisfaction through the facilitation of the earliest possible resolution for Stark County Probate cases through the use of mediation. To accomplish this goal, the Stark County Mediation program has been established.
LOCAL RULE 79.4 - MEDIATION REFERRAL
The Court may refer a case to mediation on the motion of any party, on the agreement of the parties, or on its own order.
A. Referral Process: The Court, on its own motion, or the motion of any of the parties may refer disputed issues to mediation in whole or in part by “Notice of Scheduled Mediation” which shall, at a minimum indicate the date, time, place and contact information of the mediation.
B. Domestic Violence: All parties and counsel shall advise the judge of any domestic violence allegations known to them to exist or to have existed in the past, or which become known to them following entry of the order but before conclusion of all mediation proceedings, which allegations involve any two or more persons whose attendance is required by the referral order.
C. Eligibility of Cases: The Court will determine the eligibility and appropriateness of each referral prior to the commencement of the mediation process and may decline any referral(s) deemed inappropriate.
D. Outside Referrals: If a dispute involves such issues as mental health, mental retardation, developmental disability, or aging adults, but a guardianship case has not been filed, a party may file a motion to refer the matter to mediation. A case shall be referred to mediation if mediation is likely to resolve the dispute as a less restrictive alternative to guardianship.
LOCAL RULE 79.5 - SELECTION AND ASSIGNMENT OF MEDIATOR
The following methods may be used to determine the mediator for the case:
A. The court mediator may facilitate the mediation.
B. The Court randomly assigns a mediator to the case from the Court’s roster of approved mediators.
C. Specific appointments may be made by the Court taking into consideration the qualifications, skills, expertise, and caseload of the mediator in addition to the type, complexity and requirements of the case.
D. Subject to the approval of the Court, the Parties may select a mediator from the court roster.
LOCAL RULE 79.6 - MEDIATION PROCEDURE
A. In accordance with all applicable provisions of this rule, if a case is deemed appropriate by the Court, mediation will be scheduled. A mediator may meet with the parties individually prior to bringing the parties together for any reason including, but not limited to further screening. A mediator may schedule multiple mediation sessions, if necessary and mutually acceptable for the resolution of the issues in part or in their entirety.
B. The Court shall utilize procedures for all cases that will:
1. Ensure that parties are allowed to participate in mediation, and if the parties wish, that their attorneys and other individuals they designate are allowed to accompany them and participate in mediation.
2. Screen for domestic violence both before and during mediation.
3. Encourage appropriate referrals to legal counsel and other support services for all parties, including victims of and suspected victims of domestic violence.
4. Prohibit the use of mediation in any of the following:
i. As an alternative to the prosecution or adjudication of domestic violence;
ii. In determining whether to grant, modify or terminate a protection order;
iii. In determining the terms and conditions of a protection order; and
iv. In determining the penalty for violation of a protection order.
LOCAL RULE 79.7 - PARTY AND NON-PARTY PARTICIPATION
A. Parties to informal cases may voluntarily attend mediation sessions.
B. Parties who are ordered into mediation in formal cases shall attend scheduled mediation sessions. The Court may order parties to return to mediation at any time in formal cases.
1. Party representatives with authority to negotiate a settlement and all other persons necessary to negotiate a settlement, including insurance carriers, must attend the mediation session.
2. In the event the parties and or their attorneys and or the insurance representatives do not attend the mediation sessions, the mediator shall report the non-compliance to the Judge.
C. A judge, and/or mediator may require the attendance of the parties’ attorneys at the mediation sessions if the mediator deems it necessary and appropriate.
D. If counsel of any party to the mediation becomes aware of the identity of a person or entity whose consent is required to resolve the dispute, but has not yet been joined as a party in the pleadings, they shall promptly inform the mediator as well as the judge.
E. If the opposing parties to any case are 1) related by blood, adoption, or marriage; 2) have resided in a common residence, or 3) have known or alleged domestic violence at any time prior to or during the mediation, then the parties and their counsel have a duty to disclose such information to the mediator and have duty to participate in any screening required by the court.
F. By participating in mediation a nonparty participant, as defined by R.C. 2710.01(D), agrees to be bound by this rule and submits to the court’s jurisdiction to the extent necessary for enforcement of this rule. Any nonparty participant shall have the rights and duties under this rule attributed to parties except as provided by R.C. 2710.03(B) (3) and 2710.04(A) (2).
LOCAL RULE 79.8 - CONFIDENTIALITY/PRIVILEGE
A. All mediation communications related to or made during the mediation process are subject to and governed by the “Uniform Mediation Act” (UMA) R.C. 2710.01 to 2710.10, the Rules of Evidence and any other pertinent judicial rule(s).
B. All mediation communications related to or made during the mediation process are subject to and governed by the “Uniform Mediation Act” (UMA) R.C. 2710.01 to 2710.10 and the Rules of Evidence and any other pertinent judicial rule(s). In furtherance of the confidentially set forth in this rule, parties and non-parties desiring confidentiality of mediation communications shall execute a written “Agreement to Mediate” prior to the mediation session. If a new or different person(s) attend a subsequent session, their signatures shall be obtained prior to proceeding further in the process. A blank “Agreement to Mediate” form is available for review by any prospective participant by contacting the court at 330-451-7756.
C. All communications, negotiations, or settlement discussions by and between participants in the course of a mediation are not subject to discovery or admissible in evidence, and shall remain confidential and are protected from disclosure, except as otherwise provided by law.
D. The mediator shall be prohibited from being called as a witness in any subsequent legal proceeding, (Except as to the terms of the settlement agreement.).
LOCAL RULE 79.9 - MEDIATOR CONFLICTS OF INTEREST
In accordance with R.C. 2710.08(A) and (B), the mediator assigned by the Court to conduct a mediation shall disclose to the mediation parties, counsel, if applicable, and any nonparty participants any known possible conflicts that may affect the mediator’s impartiality as soon as such conflict(s) become known to the mediator. If counsel or a mediation party requests that the assigned mediator withdraw because of the facts so disclosed, the assigned mediator should withdraw and request that the Judge appoint another mediator from the list of qualified mediators that is maintained by the Court. The parties shall be free to retain the mediator by an informed, written waiver of the conflict of interest(s).
LOCAL RULE 79.10 - TERMINATION
If the assigned mediator determines that further mediation efforts would be of no benefit to the parties, he or she shall inform all interested parties and the Court that the mediation is terminated using the procedure required by this Court.
LOCAL RULE 79.11 - STAY OF PROCEEDINGS
All remaining court orders shall continue in effect. No order is stayed or suspended during the mediation process except by written court order. Mediation shall not stay discovery, which may continue through the mediation process in accordance with applicable rules, unless agreed upon by the parties and approved by the judge.
LOCAL RULE 79.12 - CONTINUANCES
It is the policy of this Court to determine matters in a timely way. Continuances of scheduled mediations shall be granted only for good cause shown after a mutually acceptable future date has been determined. The case may be continued only by the Judge. Except as authorized by the Court, the existence of pending motions shall not be good cause for a continuance and no continuance will be granted unless the mediation can be scheduled prior to the final pretrial.
LOCAL RULE 79.13 - MEDIATION CASE SUMMARY
At least five (5) days before the mediation, the parties shall submit to the mediator a short memorandum stating the legal and factual positions of each party, as well as other material as each party believes would be beneficial to the mediator, including but not limited to:
1. Summary or material facts.
2. Summary of legal issues.
3. Status of discovery
4. List of special damages and summarize injuries or damages.
5. Settlement attempts to date, including demands and offers.
LOCAL RULE 79.14 - MEDIATION MEMORANDUM OF UNDERSTANDING
The assigned mediator, parties or counsel, if applicable, as agreed by the parties, may immediately prepare a written memorandum memorializing the agreement reached by the parties. The “Mediation Memorandum” may be signed by the parties and counsel (if the “Mediation Memorandum” is signed it will not be privileged pursuant to R.C. 2710.05 (A) (1)). The written “Mediation Memorandum of Understanding” may become an order of the court after review and approval by the parties and their attorney, if applicable. No oral agreement by counsel or with parties or an officer of the court will be regarded unless made in open court.
LOCAL RULE 79.15 - MEDIATOR REPORT
A. At the conclusion of the mediation and in compliance with R.C. 2710.06 the court shall be informed of the status of the mediation including all of the following:
1. Whether the mediation occurred or was terminated;
2. Whether a settlement was reached on some, all or none of the issues, and
3. Attendance of the parties.
4. Future mediation sessions(s), including date and time.
B. If full agreement is reached, the report shall indicate the parties’ agreement as to who shall be responsible for outstanding court costs and who will prepare any necessary journal entries.
LOCAL RULE 79.16 - MISCELLANEOUS
If any individual ordered by the Court to attend mediation fails to attend mediation without good cause, the court may impose sanctions which may include, but are not limited to, the award of attorney’s fees and other costs, contempt or other appropriate sanctions at the discretion of the Judge.