In re Estate of Brunger , 2019 Ohio 3548 ( 2019 )

[Cite as In re Estate of Brunger, 2019-Ohio-3548.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
ESTATE OF: ELEANOR FAYE BRUNGER, : OPINION
a.k.a. ELEANOR F. BRUNGER,
a.k.a. ELEANOR BRUNGER, :
DECEASED. CASE NO. 2019-P-0014
Civil Appeal from the Portage County Court of Common Pleas, Probate Division.
Case No. 2016 ES 537.
Judgment: Affirmed.
S. Kim Kohli, pro se, 1 Memory Lane, Suite 400, Garrettsville, OH 44231 (Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Attorney S. Kim Kohli, appeals from the decision of the Portage
County Court of Common Pleas, Probate Division, denying her motion for extraordinary
attorney fees following a hearing upon remand from this court. Appellant’s motion relates
to services she performed during the administration of the Estate of Eleanor Faye
Brunger, a.k.a. Eleanor F. Brunger, a.k.a. Eleanor Brunger, Deceased. The probate
court’s judgment is affirmed.
{¶2} On December 1, 2017, appellant filed a motion for extraordinary attorney
fees and an application/computation of estate attorney fees totaling $2,395.01. The value
of the estate, adjusted for the real value of personal property sold, is $11,987.85. For an
estate of that value, Portage County Probate Court Local Rule 71.2(B) and (K) provides
that attorney fees are presumed reasonable and allowable at a rate of 4%. Thus,
according to that rate, appellant requested $479.51 in ordinary fees. Appellant requested
an additional $1,915.50 in extraordinary fees.
{¶3} Attached to the motion and application was an itemized fee bill detailing the
dates and types of services provided to the estate and the hourly rate for those services.
Appellant calculated the fees and costs for the services she provided to the estate from
October 2016 through October 2017 at $2,819.09 for 12.25 hours of work. Appellant
indicated she would accept $2,395.01 as total payment, presumably because, as stated
in the First Partial Account, this is the amount remaining in the estate after all other
disbursements have been made.
{¶4} Simultaneously, a “consent to payment of attorney fees outside court
guidelines” was filed by each beneficiary of the estate: Glenna L. Hovatter (fiduciary of
the estate and decedent’s daughter); Cheryl D. Lutes (decedent’s daughter); Jennifer
McPherson (decedent’s granddaughter); and a representative of the Medicaid Division of
the Ohio Attorney General’s Office. Also accompanying these documents was a Final
Account, Receipts, and Disbursements.
{¶5} On December 14, 2017, the probate court summarily denied appellant’s
motion for extraordinary fees, without a hearing, finding the “attorney’s fees requested
are not extraordinary.”
{¶6} The clerk of courts returned the Final Account, Receipts, and
Disbursements for appellant to make corrections that would reflect the probate court’s
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ruling. Appellant filed the First Partial Account on January 10, 2018, which reflects an
undistributed balance of $2,395.01.
{¶7} On January 12, 2018, appellant filed a notice of appeal from the probate
court’s summary denial of her motion for extraordinary fees. Appellant first argued the
probate court abused its discretion by denying her motion without holding a hearing. This
court concluded the probate court did not abuse its discretion in failing to hold a hearing,
because the affected parties did not challenge appellant’s motion or the contents of the
itemized fee bill and they approved the application for attorney fees. In re Estate of
Brunger, 11th Dist. Portage No. 2018-P-0003, 2018-Ohio-4474, ¶10 (relying on Portage
County Probate Court Local Rule 71.2(E)&(G)).
{¶8} This court found merit, however, with appellant’s second argument, that the
probate court abused its discretion in denying her motion without determining whether the
requested fees were necessary and reasonable. We remanded the matter to the probate
court, stating:
The probate court summarily denied the request for extraordinary
fees, stating, without analysis or discussion, that ‘the fees requested
are not extraordinary.’ The probate court was not bound to accept
appellant’s itemization of services she performed on behalf of the
estate. It is impossible, however, to discern whether the probate
court analyzed the reasonable value of the ordinary and necessary
services appellant did provide to the estate. Without more of an
indication as to the probate court’s reasoning for denying all the
requested fees, over and above the $479.51 presumed reasonable,
we must remand for further proceedings.
***
It appears from the information contained in appellant’s itemized bill
that there were at least two significant matters to address in relation
to the size of the estate. The first was the resolution of a significant
debt related to the mobile home owned by the decedent. The second
was a negotiation with the Ohio Attorney General’s office with regard
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to a Medicaid lien. Finally, it is not clear how the balance of the estate
would be distributed based on the disapproval of appellant’s
requested fees. This may be relevant to an assessment of the
reasonableness in relation to the size of the estate.
We conclude the denial of appellant’s motion without determining the
reasonable value of legal services provided by appellant to the estate
was an abuse of discretion.
Brunger, supra, at ¶21-24, citing In re Estate of Murray, 11th Dist. Trumbull No. 2004-T-
0030, 2005-Ohio-1892, ¶24.
{¶9} Following remand, on December 13, 2018, the probate court held a hearing
on appellant’s motion. Appellant was present, as well as Glenna L. Hovatter, fiduciary of
the estate. Appellant submitted she was entitled to extraordinary attorney fees because
of the following:
 Opening the estate with a purported will at the executor’s request
and attempting to locate witnesses to validate the will
 Modifying the paperwork to proceed intestate after the will was
deemed invalid
 Preparing a bill of sale and requesting the court’s consent to sell a
used television
 Contacting the decedent’s nursing home multiple times to obtain a
refund of overpayment
 Corresponding with the funeral home for a refund of prepaid
expenses
 Preparing correspondence to the Ohio Medicaid Division
 Obtaining a consent transfer to title to the decedent’s mobile home
 Miscellaneous correspondence
{¶10} In a January 10, 2019 journal entry, the probate court granted appellant
$750.00 in attorney fees, which is the minimum reasonable attorney fee for a full estate
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administration pursuant to Portage County Probate Court Local Rule 71.2(L). The
probate court recited rules of superintendence and professional conduct, statutory
factors, and case law before concluding:
Time alone is not the dispositive factor in a determination of
reasonableness. Swanson v. Swanson [48 Ohio App. 2d 85 (8th
Dist.1976)].
In the Motion before the Court there is [sic] no extraordinary services
provided. The estate is small and counsel should have known
counsel fees would not be great regardless of hourly rate charged.
Weighing all the factors and evidence before the Court reasonable
attorney’s fees for the benefit of this Estate shall be $750.00.
{¶11} Appellant filed the instant appeal, raising four assignments of error:
[1.] The trial court erred and abused its discretion when it determined
that the hourly rate billed by appellant was excessive for the size of
the estate.
[2.] The trial court erred and abused its discretion when it failed to
consider all relevant factors relating to reasonableness of attorney
fees.
[3.] The trial court erred and abused its discretion when it failed to
determine whether all of the 12.25 hours of service appellant
provided to the estate were necessary and beneficial to the
administration of the estate, and the reasonable value of those
services.
[4.] The trial court erred and abused its discretion when it failed to
provide guidance to appellant as to how the monies not applied to
her fees should be distributed.
{¶12} “An attorney retained to assist in the administration of an estate is entitled
to reasonable attorney fees paid as part of the expenses of administration.” In re Estate
of Bretschneider, 11th Dist. Geauga No. 2005-G-2620, 2006-Ohio-1013, ¶6, citing
Murray, supra, at ¶20; see also R.C. 2113.36 (“If an attorney has been employed in the
administration of the estate, reasonable attorney fees paid by the executor or
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administrator shall be allowed as a part of the expenses of administration.”). Attorney
fees “must be reasonable both from the standpoint of the attorney rendering the services
and from the standpoint of the estate out of which payment is being made.” In re Estate
of Love, 1 Ohio App. 2d 571, 578 (10th Dist.1965). The attorney has the burden to
introduce evidence of the services performed, the reasonable value of those services,
and that the billed time was fair, proper, and reasonable. Bretschneider, supra, at ¶15,
citing In re Estate of Lindquist, 11th Dist. Portage No. 95-P-0041, 1995 WL 815334, *2
(Dec. 22, 1995) and In re Estate of Williams, 11th Dist. Lake No. 2003-L-200, 2004-Ohio-
3993, ¶21. The reasonableness of a fee is to be determined by the probate court and is
governed by the Ohio Rules of Professional Conduct. See Sup.R. 71(A).
{¶13} Pursuant to Prof.Cond.R. 1.5(a), the following factors are to be considered
in determining the reasonableness of a fee:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent.
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{¶14} As provided in Portage County Probate Court Local Rule 71.2(A), these
factors are adapted more specifically to the reasonableness of a fee for legal services in
connection with the administration of an estate:
1. The time and effort required;
2. The complexity and difficulty of the Estate and the various matters
and questions involved, including the determination of Federal and
State Income taxes and Estate taxes;
3. The degree of skill required to perform these services to the best
advantage of the Estate;
4.Fees customarily charged in Portage County for such service;
5. The amount and character of the assets, including non-probate
assets included in the gross estate for Estate Tax purposes and the
liability of the Estate;
6. The benefits resulting from the Estate from the services;
7. The experience and ability of the Attorney or Attorneys performing
these services and all other relevant factors.
{¶15} Additional reasonable attorney fees may be permitted for extraordinary
services performed for the benefit of the estate. Pursuant to Portage County Probate
Court Local Rule 71.2(F), examples of extraordinary services which may be compensated
include, but are not limited to, the following:
1. Actions for the estate in a Court other than Probate;
2. A contested matter in Probate Court;
3. In connection with the preparation or filing, audit, protest of,
contest of an income or gift tax return, or liability incurred by the
decedent or personal representative;
4. In connection with the settlement of the estate taxes with respect
to insurance not payable to the estate, gifts in contemplation of
death, or general testamentary powers of appointment not exercised
by the decedent and other testamentary powers of appointment not
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exercised by the decedent and other negotiations not represented by
assets included in the gross value of the estate;
5. With respect to problems of valuation or taxability of property for
estate taxes or protest of such taxes;
6. In connection with matters which are unusual or excessive for the
size of the estate;
7. In connection with the performance of duties normally performed
by the fiduciary but which fall to the lawyer because of the fiduciary’s
inexperience, lack of ability, or absence from the place from which
the assets of the estate must be managed;
8. Sale of business or business assets;
9. Proceedings to determine heirship;
10. Proceedings involving partnership;
11. Completion of a land contract.
{¶16} “The allowance of fees for services rendered by attorneys employed by an
executor or administrator is a matter within the discretion of the probate court and we will
not disturb the court’s determination save an abuse of discretion.” Bretschneider, supra,
at ¶15, citing In re Estate of Wirebaugh, 84 Ohio App. 3d 1, 4-5 (6th Dist.1992). Under
this standard of review, an appellate court may not substitute its judgment for that of the
trial court. The fact that this court, or another court, might have reached a different
conclusion on the same facts is not sufficient to establish an abuse of discretion. McLeod
v. McLeod, 11th Dist. Lake No. 2000-L-197, 2002-Ohio-3710, ¶102. Rather, a court
abuses its discretion when its decision is “unreasonable, arbitrary, or unconscionable.”
State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St. 3d 106, 107
(1995) (citation omitted); see also State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-
8
Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004) (defining “abuse of
discretion” as the “failure to exercise sound, reasonable, and legal decision-making”).
{¶17} Here, even though appellant established some services were performed
that were beyond what may have been normal for an estate this size, those services did
not necessarily benefit the estate. As a result, we cannot conclude that the probate court
abused its discretion in awarding appellant attorney fees in the amount of $750.00.
{¶18} In her first, second, and third assignments of error, appellant asserts the
probate court abused its discretion by (1) suggesting that the hourly rate billed by
appellant was excessive; (2) failing to consider all relevant factors; and (3) failing to
consider the evidence before it regarding the necessity of the services provided and the
reasonableness of the fees charged for those services. We do not find support for these
assertions in the record.
{¶19} First, the probate court did not conclude appellant’s hourly rate was
excessive. Rather, it stated that appellant should have known she would not receive all
requested fees, “regardless of hourly rate charged,” due to the small size of the estate.
{¶20} Second, the probate court spent five pages of its seven-page journal entry
enumerating all of the statutory, rule-based, and case law considerations relevant to
making such a fee determination. It then stated it had weighed all of those factors, as
well as the evidence before it, in concluding that reasonable attorney fees for the benefit
of the estate are $750.00.
{¶21} Finally, the case law emphasized in the journal entry indicates the probate
court’s decision was based upon the small size of the estate and the time and labor
appellant spent on services that benefited the estate itself, rather than the exact amount
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of hours appellant submitted in her fee request or on services that may have benefited
third parties. The following portion of the hearing transcript also reveals what evidence
and factors the probate court considered and weighed in fashioning its decision:
THE COURT: Okay. Normally when we talk about extraordinary fees
we’re talking about a Will contest or Will construction, determination
of benefits, beneficiaries on it, collection of taxes, tax advice,
purchase, sale or lease of real estate, * * * or zoning issues,
something of that sort. None of that occurred in this Estate other
than the mobile home title[. Or] carrying on a decedent’s business
or compensation disputes in a business that the decedent had owned
or ancillary administration of assets in some other state[. So] as far
as the Court’s aware none of that occurred, right?
MS. KOHLI: No, that is correct, your Honor.
THE COURT: Okay, and the Court also has to determine not only
the time and labor of the attorney, which is certainly one factor, but
the reasonable value of the services to the Estate, not to anyone
else, to the Estate[.]
It is clear the probate court considered all relevant factors and the evidence before it
regarding the necessity of the services provided and the reasonableness of the fees
charged for those services.
{¶22} Appellant’s first, second, and third assignments of error are without merit.
{¶23} In her fourth assignment of error, appellant argues the trial court abused its
discretion by denying appellant’s request because it was already approved by the Ohio
Medicaid Division. She asserts that, “[b]y reducing the amount of attorney’s fees to
$750.00, the court has created a situation where the State will be paid, when it does not
wish to be paid.” Appellant suggests that the representative of the Ohio Medicaid Division
deemed her attorney fees reasonable because he signed the consent form for fees
outside the guidelines.
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{¶24} We find no basis to reverse the probate court’s decision merely because
the Medicaid representative consented to appellant’s request for extraordinary fees.
There is no indication that the representative deemed appellant’s request reasonable,
only that it consented not to receive payment from the estate. Even if the consent is
viewed as an indication that the representative deemed the request reasonable, it is
nothing more than acquiescence. The fact that the state may receive payment, despite
its consent not to receive payment, is neither dispositive of appellant’s request nor binding
on the probate court. Further, while not clear from the record, it is possible Medicaid may
still be in a position to waive recoupment.
{¶25} In considering all the factors relevant to the estate and the services
performed for its benefit, supported by the record, the probate court properly exercised
its discretion in granting appellant the minimum reasonable amount of attorney fees for a
full administration, albeit less than appellant had requested.
{¶26} Appellant’s fourth assignment of error is without merit.
{¶27} The judgment of the Portage County Court of Common Pleas, Probate
Division, is hereby affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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