[Cite as In re Caltrider, 2013-Ohio-1756.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
CORA ANN CALTRIDER Case No. 12 CA 26
IRREVOCABLE TRUST OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No.
00067229
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: April 24, 2013
APPEARANCES:
For Appellee For Appellant
MICHAEL J. JOHRENDT JUDITH E. GALEANO
JOHRENDT, COOK & EBERHART JAMES S. MOWERY, JR.
250 East Broad Street NICHOLAS W. YAEGER
Suite 200 MOWERY YOUELL & GALEANO
Columbus, Ohio 43215 425 Metro Place North, Suite 420
Dublin, Ohio 43017
Fairfield County, Case No. 12 CA 26 2
Wise, J.
{¶1} Appellant Mowery, Youell & Galeano, Ltd. appeals the May 8, 2012,
decision of the Fairfield County Probate Court granting Appellees’ Motion to Dismiss all
Pending Motions including Appellants’ Motion to Set Aside the Agreed Judgment Entry
filed April 11, 2011.
{¶2} Appellees in this matter are B. Wayne Caltrider, individually and as
Executor of the Estate of Jay A. Caltrider, Patsy Caltrider and Jennifer Caltrider-Adams.
STATEMENT OF THE FACTS AND CASE
{¶3} This appeal arises out of a will contest action that was filed by Appellant
Mowery, Youell & Galeano, Ltd. ("MYG") on behalf of its client at the time, Megan
Osterman and her two children, Cora Ann Caltrider and Joseph Caltrider.
{¶4} On May 13, 2009, Decedent Jay Caltrider's Estate was admitted to the
Probate Court in Fairfield County. Prior to his death, the Decedent had been engaged to
be married to Megan Osterman and the parties had two children together: Cora Ann
Caltrider and Connor Joseph Caltrider. At the time of his death, Decedent had been
established to be the father of one of the Children but not the other. MYG was hired by
Osterman to represent her and her Children to contest the Decedent's will so that the
Children and she could inherit from the Decedent's Estate.
{¶5} On August 13, 2009, MYG, on behalf of Osterman and her children, filed a
Will Contest in the Fairfield County Probate Court, challenging the administration of the
Decedent's Estate.(Case Nos. 00065860-A, 00065860-B, and 00065860-C).
{¶6} MYG’s legal services were provided to Osterman and the children
pursuant to an hourly fee agreement.
Fairfield County, Case No. 12 CA 26 3
{¶7} In March, 2010, after approximately eight months of representation,
Osterman and the children retained the law firms of Brunner and Quinn and Kettlewell
and Donchatz, LLC (now defunct). Brunner entered an appearance substituting as
counsel for MYG.
{¶8} Ultimately, the parties reached a settlement in the will contest action which
resulted in an Agreed Judgment Entry being filed on April 11, 2011.
{¶9} On April 27, 2011, Osterman, through Brunner, filed a new action with
Fairfield County Probate Court (Case Nos. 00067228 and 00067229), known
collectively as the "Trust Case." Osterman then filed a motion with the Fairfield County
Probate Court in the Trust Case requesting the probate court: (a) reduce the amount of
attorney fees incurred by Osterman and the Children resulting from MYG's
representation of the Children in the Will Contest; and, (b) order that such fees be paid
from the Children's Trusts.
{¶10} Upon learning of the filing of the Trust case and the motions filed therein,
MYG moved to intervene in the Trust Case and be made a party. MYG was permitted to
intervene and made a party to the action.
{¶11} MYG also moved to intervene as a necessary party in the Will Contest
Case and filed a 60(B) motion to set aside the Agreed Judgment Entry filed April 11,
2011, in order to protect its interests.
{¶12} On July 15, 2011, the Defendants in the underlying estate litigation, B.
Wayne Caltrider, Patsy Caltrider and Jennifer Caltrider-Adams filed a "Motion to
Dismiss and/or Memorandum in Opposition to All Pending Motions Concerning Attorney
Fees." The motion was joined by the Estate.
Fairfield County, Case No. 12 CA 26 4
{¶13} In their motion, the Caltrider Defendants asserted that the probate court
lacked jurisdiction over a fee dispute between attorneys and that such dispute should be
referred to the bar association. The Caltrider Defendants further asserted that the
probate court had not retained jurisdiction over the issue of attorney fees when it
approved the Agreed Judgment Entry on April 11, 2011, and that it was not appropriate
for a probate court to entertain what had now essentially become a dispute between
private parties over the division of legal fees.
{¶14} In its Entry filed on May 8, 2012, the Fairfield County Probate Court
granted the Caltrider Defendants' Motion to Dismiss all Pending Motions
{¶15} Appellant now appeals, assigning the following assignments of error.
ASSIGNMENTS OF ERROR
{¶16} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION BY FINDING IT LACKED JURISDICTION TO GRANT MOWERY
YOUELL & GALEANO, LTD.'S MOTION TO SET ASIDE THE AGREED JUDGMENT
ENTRY JOURNALIZED WITH THIS COURT ON APRIL 11, 2011 AS THE COURT DID
HAVE JURISDICTION OVER ALL ISSUES SURROUNDING FEES.
{¶17} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
GRANT MYG'S MOTION TO SET ASIDE THE APRIL 11, 2011 SETTLEMENT
AGREEMENT AS MOWERY YOUELL & GALEANO, LTD. ESTABLISHED EACH
REQUIRED ELEMENT UNDER OHIO LAW OR IN THE ALTERNATIVE TO AT LEAST
CONDUCT AN EVIDENTIARY HEARING ON THE CIVIL RULE 60(B) MOTION.”
Fairfield County, Case No. 12 CA 26 5
I.
{¶18} In its First Assignment of Error, Appellant argues that the trial court erred
in finding that it lacked jurisdiction to consider Appellant’s motion to set aside the
settlement entry in this matter. We agree.
{¶19} R.C. §2113.36 vests the probate court with exclusive jurisdiction to
determine reasonable attorney fees. In re Guardianship of Papuska, Stark App. No.
2004-CA-0150, 2005-Ohio-741. In re Estate of Secoy, 19 Ohio App.3d 269, 274 (2d
Dist.1984). In re Estate of Cercone, 18 Ohio App.2d 26, 246 N.E.2d 578 (7th
Dist.1969).
{¶20} Pursuant to R.C. §2113.36:
{¶21} “If an attorney has been employed in the administration of the estate,
reasonable attorney fees paid by the executor or administrator shall be allowed as a
part of the expenses of administration. The court may at any time during administration
fix the amount of such fees * * *.”
{¶22} “[R]easonable attorney fees shall be based upon the actual services
performed by the attorneys and upon the reasonable value of those services.” In re
Estate of Verbeck, 173 Ohio St. 557, 558, 184 N.E.2d 384 (1962). “In all cases,
the probate court must look at all the evidence to determine the reasonable value of an
attorney['s] services.” In re Estate of York, 133 Ohio App.3d 234, 243, (12th Dist.1999).
{¶23} “ ‘It is well established that the payment of reasonable attorneys fees rests
within the probate court's sound discretion.’ ” In re Estate of Keytack, 2008–T–0039,
2008–Ohio–6563, at ¶ 28, citing In re Estate of Fugate (1993), 86 Ohio App.3d 293,
298, 620 N.E.2d 966.
Fairfield County, Case No. 12 CA 26 6
{¶24} “The extent of a probate court's discretion includes the ability to, sua
sponte, vacate an erroneous order fixing attorney's fees for services rendered for an
estate and file a new judgment entry for a lesser amount which the court finds to be the
reasonable value of the services rendered for the benefit of the estate.” In re Estate of
Clark, 11th Dist. No. 97–G–2060, (Dec. 19, 1997).
{¶25} A probate court's determination of reasonable fees is a question of fact
and will not be reversed by a reviewing court unless manifestly against the weight of the
evidence. Kern v. Heilker & Heilker, 56 Ohio App. 371, (1st Dist.1937).
{¶26} In the case before this Court, the probate court, in the April 11, 2011,
Agreed Judgment Entry, stated:
{¶27} “The Court further finds that the attorney for both sides provided significant
legal services beneficial to the entire Estate, including the procurement of voluminous
financial and medical records, the filing and answering of Interrogatories, the assembly
and submission of documents in response to Requests for Production of Documents,
the presentation of numerous substantive legal issues for determination by the Court,
the taking of deposition of witnesses on each side of the dispute and the engagement of
expert witnesses expressing conflicting opinions on the issues in this case.
{¶28} “As a result of this effort, a resolution was achieved which more likely
reflects the intent of the Decedent and the operation of law.
{¶29} “The Court finds that the settlement results in a more equitable distribution
of the Decedent’s assets and that said litigation was essential to the proper
administration and distribution of Decedent’s Estate.”
{¶30} The court then ordered:
Fairfield County, Case No. 12 CA 26 7
{¶31} “6. The Court holds that the attorneys’ fees arising from both Defendants’
counsel on the one hand, and Brunner Quinn and Kettlewell & Donchatz LLC
(hereinafter, “Plaintiffs’ Counsel”) on the other, were actually and necessarily incurred
for the benefit of and were essential to the proper administration and settlement of
Decedent’s Estate. In that the attorneys’ fees incurred by Defendants’ and Plaintiffs’
Counsel were both reasonable in amount and necessary in determining the property
distribution of the property of the Estate among the beneficial interests of the entire
Estate, the Court finds it both equitable and proper that they be, and are, allowable as a
cost of administration, and it is ordered that the Decedents’ Estate shall pay Plaintiffs’
Counsel for Connor J. Caltrider the sum of $168,241.00 as and for their attorneys’ fees
and expenses of litigation from the Estate; it is ordered that the Decedent’s Estate shall
pay Plaintiffs’ Counsel for Cora Ann Caltrider the sum of $168,241.00 as and for their
attorneys’ fees and expenses of litigation from the Estate; it is ordered that the
Decedent’s Estate shall pay Plaintiffs’ Counsel for Megan A. Osterman $83,335 when
Osterman has complied with the Settlement Agreement, and specifically Section Three,
Paragraph 13, as and for their attorneys’ fees and expenses of litigation from the Estate;
it is ordered that the Decedent’s Estate shall pay Defendants’ counsel for Patsy
Caltrider, Jennifer Caltrider, Kerry Adams, Kaitlin Adams, Jordyn Adams and Morgan
Adams the sum of $64,827.80 as and for their attorneys’ fees and expenses of litigation
from the Estate.”
{¶32} After receiving MYG’s motion to set aside the above Agreed Judgment
Entry, in its May 8, 2012, Entry, the trial court stated that it “lacks subject matter
jurisdiction over the pending motions.” The court further stated that the “pending
Fairfield County, Case No. 12 CA 26 8
motions all relate to a dispute over attorney fees between current and former counsel”
for the parties. The court finally stated it “approved a settlement …and did not retain
jurisdiction over attorney fees.”
{¶33} Appellee argues that the issue as to attorney fees is tantamount to a fee-
sharing agreement or fee dispute between the two law firms and as such should be
determined before the Bar Association pursuant to DR 2-107. See In Re Estate of
Southard, 10th Dist. App. 10AP-409, 2011-Ohio-836.
{¶34} Upon review, we find that no fee sharing agreement existed between the
parties. MYG provided legal services to Osterman and her children prior to Brunner’s
representation. Brunner continually provided reassurance to MYG that it would protect
their fees. Nowhere is there a record that Brunner agreed to pay MYG out of its fees or
that MYG expected to be paid out of Brunner’s fees.
{¶35} Instead, this Court finds that the issue and determination of MYG’s fees
was not presented to the probate court, whether such was a mistake, inadvertence or
otherwise, we cannot say. However, we can say that the probate court herein has the
authority to determine the attorney fees for the services provided by MYG in this case.
Further, the probate court certainly has the authority to consider and rule upon
Appellant’s Motion to Set Aside the Agreed Judgment Entry in this case and to vacate
an erroneous order if necessary.
{¶36} Appellant’s First Assignment of Error is sustained.
II.
{¶37} In their Second Assignment of Error, Appellants argue that the trial court
erred in not granting its Civ.R. 60(B) Motion for Relief from Judgment.
Fairfield County, Case No. 12 CA 26 9
{¶38} Based on our disposition of Appellant’s First Assignment of Error, and our
remand to the trial court, we find this assignment of error to be premature as the trial
court has not yet considered and/or ruled upon Appellant’s Civ.R. 60(B) motion to set
aside the settlement entry in this matter.
{¶39} Appellants’ Second Assignment of Error is overruled.
{¶40} For the foregoing reasons, the judgment of the Court of Common Pleas,
Probate Division, Fairfield County, Ohio, is reversed and this matter is remanded for
further proceedings consistent with the law and this opinion.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0409
Fairfield County, Case No. 12 CA 26 10
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
CORA ANN CALTRIDER : JUDGMENT ENTRY
:
IRREVOCABLE TRUST : Case No. 12 CA 26
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas, Probate Division, Fairfield County, Ohio, is
reversed and remanded for further proceedings consistent with this opinion.
Costs assessed to Appellee.
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JUDGES