[Cite as In re Estate of Stockmaster, 2012-Ohio-41.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN THE MATTER OF:
THE ESTATE OF CASE NO. 13-11-10
STELLA R. STOCKMASTER,
[HAROLD STOCKMASTER, Executor of
the Estate of Stella R. Stockmaster, AND OPINION
RONALD SMITH, ESQ. - APPELLANTS].
Appeal from Seneca County Common Pleas Court
Trial Court No. 20071114
Judgment Reversed and Cause Remanded
Date of Decision: January 9, 2012
APPEARANCES:
John A. Coble, Joseph F. Albrechta and Brad Culbert for
Appellants
James H. Ellis, III for Appellee, Harold J. Stockmaster
Francis Stockmaster, Appellee
Virginia Ruffing, Appellee
Case No. 13-11-10
SHAW, J.
{¶1} Appellants, Harold Stockmaster (“Harold”), executor of the estate of
Stella Stockmaster, and Ronald Smith (“Attorney Smith”), attorney for the estate
of Stella Stockmaster (“the estate”), appeal the February 28, 2011 judgment of the
Common Pleas Court, Probate Division, of Seneca County, Ohio, determining the
total amount of attorney’s fees to be paid by the estate.1
{¶2} The decedent, Stella Stockmaster (“Stella”), died testate on November
20, 2006. At the time of her death, Stella was not married but was survived by her
four children, Harold, Dorothy Hossler (“Dorothy”), Virginia Ruffing
(“Virginia”), and Francis Stockmaster (“Francis”), each of whom were named as
beneficiaries under various provisions of Stella’s will. By far, the largest portion
of the estate consisted of real property. According to the terms of this will, Harold
and Dorothy were named as the co-executors of the estate.
{¶3} Upon his mother’s death, Francis hired an attorney to represent him in
the estate proceedings. Initially, this attorney filed an application in the Probate
1
In the notice of appeal filed in this Court, Harold is named as an appellant in his capacity as executor for
the estate, along with Attorney Smith, both of whom appear to be represented by the same counsel in this
appeal. The sole assignment of error raises the issues that the amount of attorney fees chargeable to the
estate is too low and is impermissibly capped. Thus, it appears that Harold, as executor, is contending that
the estate should have to pay more in attorney’s fees. However, “[i]t is well established in Ohio that an
appeal lies only on behalf of a party aggrieved. Such party must be able to show that he has been
prejudiced by the judgment of the lower court.” Love v. Tupman (1969), 19 Ohio St.2d 111, 113, 249
N.E.2d 794; see, also, Dawson v. Dawson, 3rd Dist. Nos. 14-09-08, 14-09-10, 14-09-11, 14-09-12, 2009-
Ohio-6029, ¶ 27. Certainly, the estate has not been aggrieved by an award of a lesser amount of attorney
fees, which is also capped. Therefore, Harold, in his capacity as executor, has no legal interest in this
appeal as an appellant.
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Division of the Erie County Common Pleas Court to probate Stella’s will in that
court. However, on April 13, 2007, Attorney Smith, who was retained by the co-
executors to represent the estate, filed an application to probate the will in Seneca
County, Ohio. Eventually, the probate case in Erie County was dismissed, and the
estate action instituted in Seneca County proceeded.
{¶4} A number of claims against the estate were made, and both Harold and
Dorothy filed motions to purchase a portion of the real property belonging to the
estate. Some claims were allowed by the co-executors, some were rejected, and an
inventory and appraisal of the estate’s assets was filed. In addition, a computation
of the fees of the co-executors in accordance with the provisions of R.C. 2113.35,
which reflected a total amount of $9,799.73, was filed on September 14, 2007. On
that same date, the co-executors also filed a computation of attorney fees for the
estate, pursuant to Local Rule 71.4 of the Seneca County Probate Court, which
reflected a total amount of $17,778.23.2
{¶5} Francis opposed Dorothy’s motion to purchase a portion of the real
property belonging to the estate because of her position as co-executor and
because the will did not contain a provision that specifically permitted her to
2
Local Rule 71.4 provides that the computation set forth in Appendix B-1 of the Rules is to 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 executor * * * in the complete administration of a decedent’s estate. * * * SUCH
SCHEDULES, HOWEVER, ARE NOT TO BE CONSIDERED AS SCHEDULES OF MINIMUM OR
MAXIMUM FEES TO BE CHARGED, NOR WILL THEY BE AUTOMATICALLY APPROVED.”
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purchase any of the property, as it did for Harold. The trial court held a hearing on
this matter, and on October 11, 2007, it overruled Dorothy’s motion.
{¶6} In March of 2009, Francis filed a motion to compel Harold, as
executor, to sell one of the parcels of property belonging to the estate. Shortly
thereafter, Attorney Smith filed a memorandum on behalf of the estate opposing
Francis’ motion to compel. That same day, Attorney Smith also filed a motion on
behalf of the estate to extend the time for filing an accounting in the estate because
Dorothy was seriously ill, had been hospitalized, and lost her husband in late
January, all of which necessitated additional time for her to complete the
accounting.
{¶7} On September 4, 2009, Dorothy died. As a result, Attorney Smith
filed a motion to have Harold appointed as the sole executor. After conducting a
hearing on this matter, the trial court appointed Harold as the sole executor on
December 4, 2009.
{¶8} In June of 2010, Attorney Smith filed a motion for extraordinary fees
and attached an itemized statement of the number of hours and a description of the
work he performed for the estate. On that same day, Harold, acting in his
individual capacity, filed a motion for the trial court to permit him to purchase two
of the parcels of real estate belonging to the estate, as provided in the will. Francis
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opposed both motions, and a hearing was conducted by the trial court on these
matters.
{¶9} At the conclusion of the hearing, the trial court found that it was
unable to determine what attorney fees were for ordinary activities of the estate
administration, for extraordinary fees of the estate administration, and for executor
activities ordinarily conducted by the executor but that were conducted by
Attorney Smith. Thus, the court ordered Attorney Smith to file additional
information to assist the court in ascertaining these amounts and noted that it
would set the matter for further hearing once the additional information was filed.
In addition, the trial court denied Harold’s request to purchase the two parcels of
real property belonging to the estate.
{¶10} Harold timely appealed the trial court’s judgment denying his request
to purchase the real property belonging to the estate. While that matter was
pending in this Court, Attorney Smith filed a “Notice of Filing”, which contained
the additional information requested by the trial court, delineating which fees
Attorney Smith believed were ordinary (134.3 hours x $130.00/hr. = $17,459.00),
extraordinary (186.7 hours x $130.00/hr. = $24,271.00), and which were incurred
because he conducted activities normally performed by the executor (24 hours x
$130.00/hr. = $3,120.00). The total amount sought by Attorney Smith totaled
$44,850.00.
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{¶11} A hearing was held on Attorney Smith’s motion for extraordinary
fees on December 15, 2010. At that time, Attorney Smith testified and submitted
two exhibits in support of his motion. Virginia, who was unrepresented, cross-
examined Attorney Smith but only asked questions regarding whether Attorney
Smith had done anything to help resolve any of the problems surrounding Harold’s
attempt to exercise his option to purchase the real property belonging to the estate.
Counsel for Francis did not cross-examine Attorney Smith, and no other testimony
and/or exhibits were presented by Attorney Smith or any of the parties.
{¶12} During closing statements, Francis’ attorney informed the trial court
that he had no objection to the documents showing Attorney Smith’s time and the
nature of the work he performed in this case, specifically stating that Attorney
Smith was a “fine attorney”, that he had no concerns that Attorney Smith actually
performed the work as described in the documentation, and that he should be
compensated. (Hrg., 12/15/10, pp. 59, 62.) Nevertheless, counsel for Francis
expressed his concern as to who should have to compensate Attorney Smith as he
believed some of the matters Attorney Smith handled were issues between the
beneficiaries and their respective attorneys, not matters for the estate to address.
Counsel for Francis also raised concerns over the fees for duties of the executor
that Attorney Smith performed because the entire amount of executor fees had
already been determined and dispersed to Harold and Dorothy’s estate and
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Case No. 13-11-10
apparently one or both of them did not entirely fulfill their obligations. Counsel
for Francis did not provide the trial court with any specific amounts that he
believed were not compensable from the estate or otherwise present any evidence
contrary to the evidence presented by Attorney Smith.
{¶13} On February 28, 2011, the trial court rendered its decision on this
issue. The court found that the following amounts were reasonable attorney’s
fees: $17,459.00 for ordinary fees, and $17,778.23 for extraordinary attorney’s
fees and fees for performing executor duties. The trial court further noted that
three estate matters were not complete: (1) the issue regarding Harold’s option to
purchase the real property that was pending in this Court; (2) the sale/disposition
of that property in a manner consistent with this Court’s future decision; and (3)
the final accounting of the estate. The trial court then ordered the estate to pay
Attorney Smith $17,459.00 for his ordinary fees incurred to date and to pay
Attorney Smith $17,778.23 as extraordinary fees after the filing of the final
account and noted that this amount would represent the full payment for the
remainder of Attorney Smith’s fees for the completion of the entire estate.
{¶14} This appeal followed, and Attorney Smith now asserts one
assignment of error for our review.
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY ARBITRARILY REDUCING
APPELLANT’S ATTORNEY FEES AND BY EFFECTIVELY
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CAPPING ALL FUTURE ATTORNEY FEES FOR SERVICES
APPELLANT WILL RENDER TO THE ESTATE.
{¶15} Revised Code section 2113.36 allows the estate to reimburse the
executor for the cost of reasonable attorney fees. The burden of production on the
issue of whether the attorney fees proposed to be paid by the estate are reasonable
is upon the party seeking to obtain the fees. In re Estate of Verbeck, 173 Ohio St.
557, 558-559, 184 N.E.2d 384 (1962). The determination of whether the attorney
fees are reasonable and the amount of those fees are matters within the probate
court’s discretion and will not be reversed on an appeal absent an abuse of that
discretion. In re Estate of Wirebaugh, 84 Ohio App.3d 1, 5, 616 N.E.2d 245
(1992).
{¶16} Attorney fees in all matters are governed by the Rules of Professional
Conduct, which provide:
(a) A lawyer shall not make an agreement for, charge, or
collect an illegal or clearly excessive fee. A fee is clearly
excessive when, after a review of the facts, a lawyer of ordinary
prudence would be left with a definite and firm conviction that
the fee is in excess of a reasonable fee. The factors to be
considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of
the questions involved, and the skill requisite to perform the
legal service properly;
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Case No. 13-11-10
(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.
Prof. Cond. R. 1.5.
{¶17} In the present case, Attorney Smith testified as to the reasonableness
of his fees and explained the contents of Exhibits 1 and 2, which listed all of the
time he spent on matters related to the estate. These exhibits were also coded:
items that were not underlined indicated that this was an ordinary activity on
behalf of the estate, items that were underlined in red indicated that this was an
extraordinary activity on behalf of the estate, and items that were underlined in
blue indicated that this was an activity conducted by Attorney Smith for the estate
that an executor would normally have performed.
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{¶18} As previously noted, none of the beneficiaries questioned that
Attorney Smith performed all of these activities or that these were reasonable
attorney fees. The only issues were raised by counsel for Francis. These issues
concerned (1) the fact that the co-executors were paid in full from the estate, a
total amount in excess of $9,000.00, yet Attorney Smith fulfilled some of these
duties and also sought payment from the estate for his performance and (2) that
some of Attorney Smith’s activities appeared to have been related to matters
between the beneficiaries rather than on behalf of the estate. However, Francis did
not indicate any specific items listed in the exhibits that he found to be
questionable or otherwise provide a total amount that he thought were not
chargeable to the estate.
{¶19} In its judgment entry as to the amount of attorney fees properly
chargeable to the estate, the trial court found that a caustic relationship existed
between the beneficiaries of the estate, which made the administration of the estate
difficult and time consuming. The trial court also found that a high level of
mistrust and dysfunction existed between the beneficiaries, which caused delays in
the administration of the estate and “invariably led to [Attorney] Smith spending
inordinate amounts of time and effort administering the Estate.” The court further
noted that there were multiple contested motions and hearings in the estate and
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that the dispute regarding the option to purchase made the administration of the
estate time consuming.
{¶20} The trial court then considered the factors provided in Prof. Cond. R.
1.5 and found as follows. As to the first factor regarding the difficulty of the
questions involved in this case, although the court found that the issues presented
did not exceed the knowledge or ability of an attorney of ordinary competence, the
court found that the poor relationships of the beneficiaries, the death of one of the
co-executors, and the dispute arising out of Harold’s option to purchase the real
estate caused Attorney Smith to expend substantial time and labor in his legal
representation.
{¶21} As to the second factor regarding Attorney Smith’s ability to accept
other employment, the trial court noted that Attorney Smith testified that his
representation of the estate limited his ability to pursue other clients’ matters, but
he presented no evidence as to any specific clients/matters that he was unable to
handle because of the time he spent on this estate. As to the third factor regarding
the customary fee charged in the area, the trial court noted that no expert
testimony was presented about the customary fee for estates in Seneca County.
Attorney Smith’s exhibits reflected that he charged $130.00 per hour for each
activity performed by him.
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Case No. 13-11-10
{¶22} As to the fourth factor regarding the amounts involved and the results
obtained, Attorney Smith testified that he facilitated the sale of one tract of real
estate and attempted to facilitate the sale of the remaining parcels. The trial court
found that four years after Stella’s death, a majority of the real estate had not been
transferred, that the final account had not been completed, and that a substantial
amount of Attorney Smith’s time was spent negotiating and facilitating potential
deals between the beneficiaries regarding the disputed option to purchase. The
trial court found that there was no evidence regarding the fifth factor related to the
time limitations imposed by the estate or by the circumstances.
{¶23} The trial court found in regards to the sixth factor, the nature and
length of the professional relationship, that Attorney Smith was a neighbor and
friend with Stella’s family, that no fee agreement was ever entered into between
the co-executors and Attorney Smith, and that Attorney Smith simply began
working on the estate for the co-executors and tracked his time and activities. The
trial court found this “troubling” because neither the co-executors nor the
beneficiaries seemed to have any “meaningful concept” of what the attorney fees
for the estate would be, which could have been prevented with a written fee
agreement.
{¶24} The trial court found that the seventh factor, the experience,
reputation, and ability of Attorney Smith, was shown through Attorney Smith’s
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“self-serving assertion that he is experienced, competent and reputable.” Lastly,
the trial court found as to the eighth factor regarding fixed or contingent fees, that
there was no evidence of any such agreement between Attorney Smith and the co-
executors.
{¶25} Based on these findings, the trial court allowed the amount requested
by Attorney Smith of $17,459.00 for ordinary attorney fees but only allowed an
additional $17,778.23 for extraordinary fees and attorney fees for executor duties
to be paid to Attorney Smith upon the filing of the final account. This amount
created a difference of $9,612.77 between the amount requested by Attorney
Smith and the amount allowed by the trial court.3 The trial court further ordered
that this amount was to represent the full payment for the remainder of Attorney
Smith’s fees for the future completion of the estate, which was awaiting this
Court’s decision on Harold’s option to purchase, the sale and/or disposition of the
real estate once our decision was rendered, and a final accounting.
{¶26} While the trial court made a number of detailed findings to support
its allowance of extraordinary fees, all of which were supported by the
uncontroverted evidence before it, the court failed to provide any basis for
3
In his brief to this Court, Attorney Smith noted that this was a difference of $8,806.77, based upon his
request for a total amount of fees of $44,044.00. While this was the total amount originally requested in his
June 3, 2010 motion for fees, in his notice of filing of November 19, 2010, and in his exhibits, Attorney
Smith noted that he omitted 6.2 hours of time, which were also extraordinary fees, from his original request
but had now included those hours in his fee request. These hours account for the $806.00 difference
between Attorney Smith’s brief to this Court and the exhibits submitted to the trial court.
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reducing the amount of this allowance to the extent that it did. There is nothing
evident from the record or from the trial court’s findings that demonstrates in any
way a basis for the trial court to conclude that only $17,778.23 was a reasonable
amount for extraordinary fees and executor duties, particularly considering that
none of the beneficiaries and/or the executor presented any evidence contrary to
the documentation and testimony presented by Attorney Smith.
{¶27} Although the trial court may have made a reasoned and supported
decision for reducing the amount requested by Attorney Smith, i.e. finding some
activity and/or time spent to not be compensable or determining that $130.00 per
hour for some and/or all items was an unreasonable amount, we simply are unable
to determine and, therefore, can only guess at its rationale based upon the record
and judgment entry before us. Thus, while the trial court’s final dollar amount is
specific, it is also, by definition, arbitrary because on its face it is a random
amount that is neither consistent with the evidence in the record nor the findings
made by the trial court. As such, we have no choice but to find that the trial court
abused its discretion by simply setting a lump sum and unexplained amount of
$17,778.23 for extraordinary fees and fees for executor duties.4
4
We note that this figure is the same amount as the figure originally determined in September of 2007, by
Local Rule 71.4 as the expected amount of ordinary attorney fees for the estate. This would appear to be
the source of the trial court’s total allowance for extraordinary fees. However, the fact that this may be the
source of the dollar amount, thus rendering it less random, does not render this amount any less arbitrary in
regards to the allowance of extraordinary fees in light of the record before this Court.
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{¶28} In addition, we find that the trial court’s purported decision to allow
no future attorney fees despite the fact that Attorney Smith may be needed again to
provide legal assistance in the administration of the estate, as there are still
outstanding matters that must be addressed before the estate may be closed, is also
an abuse of discretion. If Attorney Smith renders services to the estate after the
date of his request for fees, the trial court is obligated to review any request for
fees for such services to determine whether they are reasonable. See In re Estate
of Kendall, 171 Ohio App.3d 109, 2007-Ohio-1672, 869 N.E.2d 728, ¶ 32. “To
conclude summarily that no further fees will be considered, without first
determining whether they are reasonable and necessary, is premature and
constitutes an abuse of discretion.” Id.
{¶29} For all of these reasons, the assignment of error is sustained, and the
judgment of the Common Pleas Court, Probate Division, of Seneca County, Ohio,
is reversed and the cause remanded for further proceedings consistent with this
opinion.
Judgment Reversed and
Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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