In re Estate of Schoeneman , 2011 Ohio 5243 ( 2011 )

[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: ESTATE OF EARL E. JUDGES:
SCHOENEMAN Hon. William B. Hoffman, P.J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
Case No. 2010CA00340
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Probate Division, Case No.
204531
JUDGMENT: Reversed
DATE OF JUDGMENT: October 11, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GERALD L. BAKER DONALD GALLICK
3711 Whipple Avenue, NW 190 North Union Street
Canton, OH 44718 Suite 102
Akron, OH 44304
Stark County, Case No. 2010CA00340
2
Farmer, J.
{¶1} On November 3, 2008, appellee, Louis W. Schoeneman, as Executor,
opened the Estate of Earl E. Schoeneman (Case No. 204531).
{¶2} On March 15, 2010, appellee filed an asset concealment complaint
against appellant, Robin Minor (Case No. 208428).
{¶3} On July 12, 2010, an agreement was journalized memorializing the
parties' agreement over the disputed assets (Case No. 208428).
{¶4} On September 3, 2010, appellee filed an application to approve attorney
fees (Case No. 204531). By judgment entry filed November 24, 2010, the trial court
approved the requested fees which included fees incurred in the asset concealment
action.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE PROBATE COURT ERRED BY AWARDING ATTORNEY'S FEES
IN A CONCEALMENT ACTION WITHOUT MAKING A DETERMINATION OF GUILT
AS REQUIRED UNDER §2109.52 OR A FINDING OF BAD FAITH."
II
{¶7} "OHIO REVISED CODE §2113.36 DOES NOT AUTHORIZE A PROBATE
COURT TO AWARD AND APPORTION ALL ATTORNEYS' FEES TO BE PAID FROM
THE SHARE OF THE BENEFICIARY WHOSE ACTIONS NECESSITATED THE
ESTATE'S HIRING OF AN ATTORNEY."
Stark County, Case No. 2010CA00340
3
I
{¶8} Appellant claims the trial court erred in awarding attorney fees in the asset
concealment action without making a finding of guilty pursuant to R.C. 2109.52 or bad
faith. We agree.
{¶9} On March 15, 2010, appellee filed an asset concealment complaint in
Case No. 208428. R.C. 2109.52 governs judgment on an asset concealment complaint
and states the following in pertinent part:
{¶10} "When passing on a complaint made under section 2109.50 of the
Revised Code, the probate court shall determine, by the verdict of a jury if either party
requires it or without if not required, whether the person accused is guilty of having
concealed, embezzled, conveyed away, or been in the possession of moneys, chattels,
or choses in action of the trust estate. If such person is found guilty, the probate court
shall assess the amount of damages to be recovered or the court may order the return
of the specific thing concealed or embezzled or may order restoration in kind.*** In all
cases, except when the person found guilty is the fiduciary, the probate court shall
forthwith render judgment in favor of the fiduciary or if there is no fiduciary in this state,
the probate court shall render judgment in favor of the state, against the person found
guilty, for the amount of the moneys or the value of the chattels or choses in action
concealed, embezzled, conveyed away, or held in possession, together with ten per
cent penalty and all costs of such proceedings or complaint; except that such judgment
shall be reduced to the extent of the value of any thing specifically restored or returned
in kind as provided in this section."
Stark County, Case No. 2010CA00340
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{¶11} The matter sub judice was settled via an agreed judgment entry filed July
12, 2010:
{¶12} "This matter came before the Court for a hearing on July 12, 2010 on the
action for concealment. Prior to the hearing, the parties reached a settlement
agreement as follows:
{¶13} "1) On Saturday, July 17, 2010 at 10:30 a.m., the Defendant, Robin Minor,
('Defendant') will have the subject boat, motor and trailer available for pick up by the
Executor, Louis Schoeneman ('Executor') at the cul de sac near the Defendant's home
located at 3304 Chagrin Ave SW, Canton, OH.
{¶14} "2) The sole remaining estate item, a chandelier in the Defendant's home
at the address listed in Item 1, will be available for appraisal by the Dimmerling Realty
and Auctioneer Company until Monday, August 2, 2010. The parties agree that the
Defendant will pay the Estate the value of the chandelier assigned by the Dimmerling
Realty and Auctioneer Company.
{¶15} "Confirmation of the above items is to be provided by the Executor no later
than August 30, 2010. Failure of the parties to abide by the settlement terms may result
in a finding of contempt. Court Costs to Defendant."
{¶16} In a judgment entry filed November 24, 2010 in Case No. 204531, the trial
court specifically found the request for attorney fees was appropriate as it pertained to
the concealed assets in Case No. 208428:
{¶17} "Upon due consideration of the briefs and oral arguments of the parties,
the Court finds the Motion for Payment of Attorney Fees to be well taken. The fees
Attorney Baker charged in assisting Executor with the retrieving of the chandelier, boat,
Stark County, Case No. 2010CA00340
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motor, and trailer were reasonable, necessary and benefited the estate. Attorney
Baker's efforts in assisting Executor in retrieving the chandelier, boat, motor, and trailer
benefited the estate because Executor is responsible for marshaling all of the assets of
the estate. Minor's failure to turn over the estate items necessitated the involvement of
Attorney Baker and the filing of the concealment action. The estate case could not
proceed without the collection of all of the assets of the estate and the beneficiaries
could not receive their distributions without the collection of all estate assets.
{¶18} "Accordingly, Executor's Motion for Payment of Attorney Fees against
Minor is GRANTED in the amount of $3,026.25. The $3,026.25 shall be deducted from
Minor's share of the Estate of Earl E. Schoeneman to the extent possible."
{¶19} Nowhere did the trial court make a finding of guilty under R.C. 2109.52 or
of bad faith.
{¶20} An award of attorney fees in a concealment action is proper upon a finding
of guilty or a showing of bad faith. R.C. 2109.52; In the Matter of: The Estate of Lena B.
Simons, Deceased, Trumbull App. No. 2004-T-0066, 2005-Ohio 2362, ¶26; In re Estate
of Toth (November 29, 1993), Stark App. No. CA-9312. Further, in In Re: Estate of
Meyer (1989), 63 Ohio App.3d 454, 457, our brethren from the Twelfth District stated
the following:
{¶21} "***Accordingly, the statute [R.C. 2109.52] mandates that specific
procedural requirements be followed, including the reduction to writing of the
examination of the accused and any witnesses. The statute also requires a finding of
guilty or not guilty and the imposition of certain penalties upon a finding of guilty.
Stark County, Case No. 2010CA00340
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{¶22} "***The court's conclusion that the account is an asset of the decedent's
estate does not translate into a finding of guilt. Mere possession of an estate asset
does not constitute concealment."
{¶23} Upon review, we find the trial court erred in awarding the attorney fees.
{¶24} Assignment of Error I is granted.
II
{¶25} Based upon our decision in Assignment of Error I, this assignment is
moot.
{¶26} The judgment of the Court of Common Pleas of Stark County, Ohio,
Probate Division is hereby reversed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise_________________
JUDGES
SGF/sg 928
[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: ESTATE OF EARL E. :
SCHOENEMAN : JUDGMENT ENTRY
:
:
:
:
: CASE NO. 2010CA00340
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, Probate Division is
reversed. Costs to appellee.
s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise_________________
JUDGES