In re Conservatorship of Adamosky

[Cite as In re Conservatorship of Adamosky, 2011-Ohio-3166.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN THE MATTER OF: )
THE CONSERVATORSHIP OF: ) CASE NO. 09 MA 178
)
ANNE ADAMOSKY, ) OPINION
CONSERVATEE. )
)

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Probate Division, Case No. 2009CN0001.

JUDGMENT: Affirmed.

APPEARANCES:
For Appellee: Attorney Robert Melnick
16 Wick Avenue, Suite 504
Youngstown, Ohio 44403

For Appellant: Attorney Timothy Maloney
406 Gardenview Drive
Boardman, Ohio 44512

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: June 21, 2011
VUKOVICH, J.

¶{1} Appellant Timothy Maloney appeals the decision of the Mahoning County
Probate Court finding that he was only entitled to about half of the attorney fees he
requested. The magistrate originally determined that appellant was only entitled to
$1,747.04 in attorney fees, instead of the $13,194.57 he requested. The probate
court, after reviewing the magistrate’s decision, raised the awarded amount to
$6,144.57.
¶{2} In his first assignment of error, appellant asserts that although he did not
object to the magistrate’s award of attorney fees, the probate court committed plain
error when it did not award him the entire amount of fees he requested. He references
three instances of plain error which he indicates would require reversal of the trial
court’s judgment. First, he contends that the trial court was biased against him and
proof of this is the magistrate’s use of a rule that appellant had enacted when he was
probate judge that limited the fees an attorney could collect when representing a client
in a conservatorship. Appellant contends that since the probate rule no longer exists it
cannot be used to reduce his fees. The second reason is that in filing the petition for
conservatorship under R.C. 2111.021, appellant claims that Adamosky limited the
powers granted to the probate court to oversee fees. The third reason is that there
existed a contract between appellant and appellee Adamosky as to appellant’s hourly
rate. Appellant contends that the probate court has no jurisdiction over the contract
entered into between appellant and appellee.
¶{3} Appellee (conservatee) counters the above contending that all three
arguments fail. First, she asserts that while the magistrate references the probate
rules enacted by appellant, it only did so to show what appellant previously viewed as
reasonable fees for the type of services he rendered. Second, regarding the argument
that appellee used R.C. 2111.021 to limit the trial court’s authority over the
conservatorship, she contends that the attempted limitation does not extend to limiting
the probate court’s power to settle the accounts, which includes attorney fees. Lastly,
as to the unfettered right to contract for attorney fees, she contends that the probate
court has authority to determine the reasonableness of the fees.
 ¶{4} Under the second assignment of error, appellant contends that the
reduction of his requested attorney fees constitutes an abuse of discretion. He asserts
that given the court’s confusing and contradictory language used in its judgment entry,
it is inconceivable that the court would reduce the fees at all. Appellee counters
claiming that the probate court acted within its discretion in reducing the fees because
the fees that were not allowed were for services that could have and should have been
done by the conservator, not the attorney.
¶{5} Considering the arguments appellant presented, we find them to be
meritless. The record before us contains no evidence that the probate court was
biased against appellant. Furthermore, we hold that although the conservatorship
petition limited the powers of the probate court under R.C. 2111.021, it could not limit
the powers of the court over an accounting, which includes a determination of
reasonable attorney fees. Likewise, the contract for attorney fees did not limit the
probate court’s jurisdiction to determine reasonable attorney fees in this case. Lastly,
considering the fact that appellant did not object to the magistrate’s award of attorney
fees, we find no error in the probate court’s determination of reasonable attorney fees
for the services rendered. Consequently, the judgment of the probate court is affirmed.
STATEMENT OF THE CASE
¶{6} Appellee’s home located on Lyden Avenue in Youngstown, Ohio was red
tagged as unfit for human habitation and appellee was removed from the home.
Thereafter, through her counsel, Attorney Maloney, she filed an application for
appointment of a conservator (Cheryl M. Lynn) pursuant to R.C. 2111.021, in
Mahoning County Probate Court. Upon the filing of her application, a magistrate from
the probate court spoke with appellee and found that her petition was voluntarily made
and that the conservatorship was suitable. 02/20/09 Magistrate's Decision. The trial
court adopted the magistrate's decision and “Letters of Conservatorship” were issued.
02/20/09 J .E.
¶{7} On March 2, 2009, following the appointment of the conservator,
appellant filed a Report of Inventory on behalf of appellee. The next filing occurred on
March 25, 2009, when the trial court issued its “Judgment Entry Transferring
Jurisdiction,” which transferred the conservatorship to Trumbull County Probate Court.
The judgment entry indicated that the issue came before the court on a request from
Trumbull County Probate Court to transfer jurisdiction of the conservatorship to it. In
finding that jurisdiction should be transferred, the Mahoning County Probate Court
stated that appellee was no longer a resident of Mahoning County, but instead resided
at Shepherd of the Valley in Trumbull County, Ohio. That decision was appealed to
this court. In re Conservatorship of Adamosky, 7th Dist. No. 09MA58, 2010-Ohio-
1001.
¶{8} We found that prior to transferring jurisdiction, the probate court was
required to hold a hearing to determine residency. Id. at ¶1, 28. Consequently, the
matter was remanded to the trial court.
¶{9} It appears that during the pendency of our appeal, the Trumbull County
Probate Court determined that it did not have jurisdiction over the conservatorship.
Thus, the matter was transferred back to Mahoning County.
¶{10} On June 22, 2009, appellant filed the first partial account. In this account
it shows that money was expended by appellant and the conservator to have
appellee’s property cleaned so that the red tag could be removed. It also shows that
attorney fees were paid to appellant. The probate court took exception to that
accounting and held it in abeyance pending a hearing. It stated there was “no prior
Court order authorizing the expenditure of funds by the Conservator as delineated in
the account” and that the “attorneys fees were paid despite the fact that there was no
motion with an itemized statement of services rendered filed for attorney fees as
required by Rule 71 of the Ohio Rules of Superintendence and Local Rule of Court
71.3 and no hearing held thereon to determine the reasonableness of the same.”
06/29/09 J.E.
¶{11} On July 9, 2009, the conservator and appellee, together through
appellant, moved to have payments for various expenditures for the conservatee and
the attorney fees approved. Appellant sought to have $8,820 approved for attorney
fees. Attached to the motion is a billing statement that lists services and costs from
February 19, 2009 to April 6, 2009. Neither motion contained the signature of the
conservator or conservatee. Appellant also moved to continue the hearing on the
exceptions; the probate court granted that request. 07/10/09 J.E.
¶{12} On the day of the hearing on the exceptions, appellant filed an
“Amended Motion to Allow Payment of Attorney’s Fees.” This motion is actually a
supplemental motion that is requesting attorney fees from April 7, 2009 through
August 5, 2009. Appellant and the conservator both filed notices of resignation.
¶{13} On August 24, 2009, the magistrate issued its decision. As to attorney
fees, it found that the disbursement to appellant of $8,820 was in violation of the
probate court’s February 20, 2009 order. It also stated that the amount was
excessive, unreasonable and in many instances unnecessary. Thus, the magistrate
determined that for the period of February 19, 2009 through April 6, 2009 appellant
was entitled to $1,640 for legal services plus $150 for reimbursement for costs. The
magistrate found that the expenditure of $3,680 to Mark’s Construction to clean up
Adamosky’s property was necessary and reasonable. However, the $870 for security
while the property was being cleaned was unnecessary and unreasonable. The
magistrate ordered that amount to be deducted from appellant’s legal fees. Thus,
appellant was to receive only $920 for the services he rendered from February 19,
2009 through April 6, 2009. For the period of April 7, 2009 through August 5, 2009,
appellant sought $4,374.57 for legal fees and $164.57 for reimbursement of costs. The
magistrate awarded him $662.50 for legal services and $164.57 for reimbursement of
costs. Appellant was permitted to resign as counsel.
¶{14} Appellant did not file objections to the decision. On September 24, 2009,
the probate court issued its decision which partly adopted and partly modified the
magistrate’s decision. The court once again reiterated that the disbursement of
attorney fees was in violation of its previous order. It stated that in some instances the
services were unnecessary, however, many of the services were in the best interest of
the Conservatorship. It then stated:
¶{15} “The Court orders that Attorney Maloney shall be paid attorney fees for
services rendered which were beneficial to the Conservatorship as follow: (1) services
rendered from February 19, 2009 through April 6, 2009 legal fees in the amount of
$4,995.00, plus reimbursement of cash advanced in the amount of $150.00 for a total
of $5,145.00; and (2) for the period from April 7, 2009 through August 5, 2009 Attorney
Maloney be awarded legal fees in the amount of $835.00, plus reimbursement of cash
advanced in the amount of $164.57, for a total of $999.57. The overpayment of
attorney fees in the amount of $2,990.00 shall be repaid to the Conservatorship and
included in the final and distributive account.”
 ¶{16} The court also held that the $870 the magistrate ordered deducted from
appellant’s attorney fees would not be adopted. It explained that since the expenditure
for the clean up was necessary, it would not find that the security provided for the
cleanup was unnecessary.
FIRST ASSIGNMENT OF ERROR
¶{17} “THE PROBATE COURT’S DECISIONS AND JUDGMENTS ARE SO
FLAWED AS TO CONSTITUTE PLAIN ERROR SERIOUSLY AFFECTING THE
BASIC FAIRNESS, INTEGRITY AND PUBLIC PERCEPTION OF THE JUDICIAL
PROCESS, AND THEREBY CHALLENGING THE LEGITIMACY OF THE
UNDERLYING JUDICIAL PROCESS.”
¶{18} Appellant admits that he did not object to the magistrate’s findings. “In
appeals of civil cases, the plain error doctrine is not favored and may be applied only
in the extremely rare case involving exceptional circumstances where error, to which
no objection was made at the trial court, seriously affects the basic fairness, integrity,
or public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” Goldfuss v. Davidson (1997), 79 Ohio St.3d 116,
paragraph one of the syllabus. It should only be applied where the error complained
of, if left uncorrected would have a material adverse effect on the character of and
public confidence in judicial proceedings. Id. at 121. Three claims of plain error are
asserted in this case.
Bias and Prejudice of the Probate Court
¶{19} Appellant’s legal rate for many of the services he provided was $200 per
hour. It is true that the magistrate, in determining the attorney fees for services
rendered, referenced a no longer effective local rule that was enacted and authored by
appellant during his tenure as probate court judge in Mahoning County. That prior
rule, 71.4(A), set the fees at $450 for the appointment of a guardian of an estate of a
minor or incompetent and $150 for the preparation of each necessary application and
or motion. The magistrate explained that the former rules illustrate what appellant
believed to be fair and reasonable for conservatorships during his tenure as Mahoning
County Probate Court Judge. 08/24/09 J.E. The magistrate’s decision and the
itemized billing statement indicate that for at least one charge, the magistrate reduced
the fee in accordance with the old probate rule.
 ¶{20} Regardless of whether the magistrate committed any error in referencing
the prior probate rule, we cannot conclude that the probate court was biased against
appellant. The probate court did not employ the reasoning given by the magistrate; it
made no mention of the prior rule in its decision. Moreover, the probate court did not
adopt the magistrate’s recommendation for the amount of fees. Rather, it more than
doubled the magistrate’s recommendation of fees. Consequently, we cannot find that
the probate court used, in any manner (whether justly or unjustly), the prior court rules
to determine what a reasonable fee for appellant would be. There is no evidence that
the probate court was biased against him.
R.C. 2111.021
¶{21} R.C. 2111.021, the statute for conservatorships, states:
¶{22} “A competent adult who is physically infirm may petition the probate court
of the county in which he resides, to place, for a definite or indefinite period of time, his
person any or all of his real or personal property, or both under a conservatorship with
the court. A petitioner either may grant specific powers to the conservator or court or
may limit any powers granted by law to the conservator or court, except that the
petitioner may not limit the powers granted to the court by this section and may not
limit the requirement for bond as determined by the court. The petition shall state
whether the person of the competent adult will be placed under the conservatorship,
shall state with particularity all real and personal property that will be placed under the
conservatorship, shall state the powers granted and any limitation upon the powers of
the conservator or court, and shall state the name of a proposed suitable conservator.
¶{23} “After a hearing, if the court finds that the petition was voluntarily filed
and that the proposed conservator is suitable, the court shall issue an order of
conservatorship. Upon issuance of the order, all sections of the Revised Code
governing a guardianship of the person, the estate, or both, which ever is involved,
except those sections the application of which specifically is limited by the petitioner,
and all rules and procedures governing such guardianship, shall apply to the
conservatorship, including but not limited to, applicable bond and accounting
requirements.”
¶{24} Thus, if the petition does not limit the powers of the court, all applicable
guardianship laws apply. Both parties agree and are correct that the conservatee
cannot limit the power of the probate court to set bond and settle the accounts. The
last paragraph of the above quote indicates that and so does R.C. 2101.24, which
states:
¶{25} “(A)(1) Except as otherwise provided by law, the probate court has
exclusive jurisdiction:
¶{26} “* * *
¶{27} “(e) To appoint and remove guardians, conservators, and testamentary
trustees, direct and control their conduct and settle their accounts.” R.C.
2101.24(A)(1)(e).
¶{28} In the petition, appellee gave the power over her person to the
conservator which included all powers that a guardian would have under the
guardianship laws of Ohio, but as to the probate court the petition limited the power to
those reserved under R.C. 2111.021. Similarly, as to the estate portion of the
conservatorship, she gave the conservator all powers that a guardian would have, but
limited the court’s powers to those reserved under R.C. 2111.021 over “all property.”
¶{29} The issue before this court is whether a probate court has jurisdiction to
determine attorney fees where the conservatorship petition limits the court’s power to
“those items reserved to the Court under O.R.C. §2111.021” over “all property.” We
find that the limiting language in the petition over “all property” does not dispose of the
probate court’s authority to determine reasonable attorney fees. The attorney fees for
the conservatorship were paid from an account that was part of the conservatorship.
Thus in settling the accounts, which the probate court clearly had authority to do, the
court was acting within its power when it reviewed the attorney fees and determined
whether those fees were reasonable. As appellee points out, Sup.R. 71 states that an
application shall be filed for the allowance of counsel fees for services rendered to a
guardian, trustee or “other fiduciary”. This includes a conservator. Thus, the petition
over “all property” does not limit the court’s authority to determine reasonable attorney
fees which come from an account that is part of the conservatorship.
Contract
¶{30} Appellant’s argument regarding there being a contract that controls the
attorney fees is not reviewed for plain error. A probate court is a court of limited
jurisdiction, and may entertain only those types of actions which the General Assembly
permits. Schucker v. Metcalf (1986), 22 Ohio St.3d 33, 34. Thus, by contending the
probate court has no jurisdiction over contracts, the argument made is a subject matter
jurisdiction argument that can be raised at any time.
¶{31} There are instances when the probate court does not have jurisdiction
over a contract for attorney fees. The Eleventh Appellate District has explained that
the probate court does not have jurisdiction over a complaint by the beneficiaries of
decedent’s trust alleging that the attorney took excessive legal fees from the decedent.
Burns v. Daily, 114 Ohio App.3d 693. Because the money had already been paid to
the attorney while the decedent was alive, the money was not part of the estate and
thus, was not within the probate court’s jurisdiction. Id. at 704.
¶{32} However, that is not the case here. The monies being sought and that
were paid to appellant came from an account covered by the conservatorship, which
the probate court had jurisdiction over.
¶{33} The Ohio Supreme Court in 1992 explained that in a guardianship case
“the state’s interest in the guardianship is effectuated by the extension of the probate
court's jurisdiction to all matters ‘touching the guardianship.’” In re Guardianship of
Jadwisiak (1992), 64 Ohio St.3d 176, 180.
¶{34} Paragraph one of the syllabus states:
¶{35} “A probate court, in order to maintain control over any personal injury
settlement entered into on behalf of a ward under its protection, has subject matter
jurisdiction over the entire amount of settlement funds, which includes attorney fees to
be drawn therefrom.” Id.
¶{36} This logic can be extended to a conservatorship case and applies to the
situation presented to this court. Just as the court had jurisdiction over the settlement,
including the disbursement of attorney fees, the probate court has jurisdiction over the
accounts in the conservatorship, including the disbursement of attorney fees. Thus,
while appellant was entitled to enter into a contract for attorney fees with the
conservatee, the probate court had the authority to review and reduce the attorney
fees. In the situation of guardianships and conservatorships, the ability of the court to
review the contract for attorney fees is vital considering the reasons why
guardianships and conservatorships are created.
SECOND ASSIGNMENT OF ERROR
 ¶{37} “THE TRIAL COURT ACTED ARBITRARILY, UNREASONABLY AND
UNCONSCIONABLY IN DENYING MALONEY REASONABLE LEGAL FEES IN
REPRESENTING ADAMOSKY.”
¶{38} We have previously indicated that a probate court has discretion to allow
reasonable attorney fees and that decision will be upheld absent an abuse of
discretion. In re Guardianship of Poschner, 7th Dist. No. 04MA160, 2005-Ohio-2788,
¶8. An abuse of discretion implies that the court's attitude is unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As stated
above, appellant did not object to the magistrate’s reduction of fees pursuant Civ.R.
53. Thus, the portions of the magistrate’s decision that were adopted by the probate
court can only be reviewed under plain error. Civ.R. 53(D)(3)(b)(iv).
¶{39} In the probate court’s decision the court stated the following:
¶{40} “IT IS ORDERED, ADJUDGED AND DECREED that the Magistrate’s
Decision dated August 24, 2009 is hereby adopted and/or modified as follows:
¶{41} “(1) The expenditures/disbursements reflected on the Account are found
to have been made in violation of both this Court’s Judgment Entry of February 20,
2009 and in violation of Subsections (B)( and (D) of the Ohio Revised Code §2111.14.
However, the expenditures made, although not authorized by the Court, were in large
part beneficial to the Conservatorship except as specifically noted herein.
¶{42} “(2) The disbursement to Attorney Maloney of $8,820.00 paid on April 7,
2009 be found in violation of the Court’s Judgment Entry of February 20, 2009,
Superintendence Rule 71 and Local Court Rules 71.3. The payment of $8,820.00 to
Attorney Maloney for attorney fees was unauthorized by the Court. In some instances,
the services were unnecessary. However, much of the services were in the best
interest of the Conservatorship.” 09/24/09 J.E.
¶{43} Appellant’s contention that the first paragraph is confusing because the
judgment does not contain a specific notation of what actions were not beneficial to the
conservatorship is somewhat accurate. However, the appeal concerns the reduction
of the requested attorney fees and thus, involves the second paragraph, not the first
paragraph. Thus, the first paragraph is not at issue in this appeal.
¶{44} In order to determine whether the reduction was an abuse of discretion,
we must look to Sup.R. 71(A), which states:
 ¶{45} “(A) Attorney fees in all matters shall be governed by Rule 1.5 of the
Ohio Rules of Professional Conduct.”
¶{46} Rule 1.5 lists factors that are used to determine the reasonableness of
an attorney fee and they are:
¶{47} “(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
¶{48} “(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
¶{49} “(3) the fee customarily charged in the locality for similar legal services;
¶{50} “(4) the amount involved and the results obtained;
¶{51} “(5) the time limitations imposed by the client or by the circumstances;
¶{52} “(6) the nature and length of the professional relationship with the client;
¶{53} “(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
¶{54} “(8) whether the fee is fixed or contingent.” Ohio Prof. Con. R. 1.5.
¶{55} Keeping those principles in mind, our analysis of whether there was any
error in the probate court award of fees will start with the probate court filings and
actions taken while the matter was pending before the probate court, i.e. all other
actions except those taken in the 09MA58 appeal. In its decision, the magistrate
stated that given appellant’s experience his $200 per hour fee was legitimate. Most of
the issues the magistrate had with the billing were the time it took appellant to
complete things given his vast experience and the fact that he was doing and charging
fees for things that could have and should have been done by the conservator. Given
the probate court’s upward modification of the magistrate’s recommendation, it does
not appear that the probate court had issues with the hourly rate. It appears that it
agreed in some instances with the magistrate as to the amount of time and non-legal
services that could have been done by the conservator.
¶{56} A review of the itemized list of attorney fees and the magistrate’s
decision does show that some of the actions appellant was charging fees (sometimes
legal fees) were for actions the conservator should have been doing. For instance, on
March 2, 2009, appellant went to the Youngstown Police Dept. to arrange for security
on house cleaning day. On April 1, 2009, he met with Lt. Mw. Rafferty (security for
house cleaning day) and Dave Nicora (from house cleaners) at Client’s Lyden Avenue
residence. He also met with the staff of Shepherd of the Valley. On April 4 and 6 he
supervised the cleaning of the client’s home. On April 7, he met with contractors for
the house and with Shepherd of the Valley to arrange for assisted living for Adamosky.
On May 5, received a call from Park Vista, where appellee was living, they were
having some sort of problem with her. He spoke to the Medical Director who agreed
that her staff had overreacted to appellee’s actions. Some time also in May he had
another telephone conference with the Medical Director. On May 31, 2009, he
received a call from appellee who refused to meet with a doctor, so he canceled her
appointment. Most, if not all of these actions, should have been done by the
conservator, not appellant. Furthermore, some of these services were lumped in with
legal services and charged together so it is hard to discern how much he was charging
for the non-legal services.
¶{57} The magistrate also reduced some of his fees because it determined that
considering the number of years appellant practiced in probate court, including his
tenure as probate court judge, the services should not have taken as long as they did.
For instance for services on March 1, 2009, he charged for nine hours of work for the
total amount of $1,800. This was for: “Prepared Motions to Enseal, For Injunction and
to Correct the Record; Report of Inventory, prepared proposed orders Granting
Motions to Enseal, to correct and restricting accounted directed to Home Savings,
Wachovia, Nat’l City Bank and Prudential and proposed entries for the Court. Revised,
reviewed and completed. Copies and collated.”
¶{58} The magistrate in reviewing those services and fees stated:
¶{59} “The Court file reveals that on March 2009 a Motion to Enseal, for
Injunctive Orders and to Correct the Record was filed by Attorney Maloney with the
Court. This is a two-page document. It is followed by the Court’s orders and
Injunctive Order restricting account which is a one and one-half page document and a
Judgment Entry and Orders which is a one and one-quarter page document. There is
an additional and separate order and injunctive orders restricting accounts, which is a
one page document. Frankly, it is difficult to believe that lawyer of Attorney Maloney’s
expertise and experience needed nine (9) hours plus to create these documents.
(Assumedly, some part of the 2-29-09 time was also used on drafting these
documents).” 08/24/09 J.E.
¶{60} It is not extremely clear which fees the probate court adopted and which
fees it modified. However, considering all of the magistrate’s statements and the
probate court’s modification of the magistrate’s recommendation, as it pertains to all
matters other than the appeal in 09MA58, we cannot find that the probate court
abused its discretion and/or committed plain error in adopting portions of the
magistrate’s decision or in modifying the magistrate’s decision.
¶{61} As it pertains to the appeal in 09MA58, the magistrate reduced the
amount of time it took to draft the notice of appeal in that case. It noted that appellant
charged one hour for the Eleventh Appellate District but two hours for our district. Our
court does not require excessive documents to file an appeal. We do require a
docketing statement, but that document is a fill in the blank form and it is easily found
on our website. Consequently, we find that the magistrate’s determination that each
should have taken the same amount of time, one hour, is legitimate.
¶{62} The fees for writing the brief are found in the “Amended Motion to Allow
Payment of Attorney Fees.” From the billing period, the magistrate awarded $662.50
in legal fees. The probate court modified that to $835. For the brief in 09MA58,
appellant billed nine and three quarter hours charging at $200 an hour for a total of
$1,462.50. Looking at the itemized attachment to the magistrate’s decision it did not
award any fees for the brief. It explained in its decision:
¶{63} “Counsel is requesting payment of $675.00 for services rendered on
June 1, 2009 for four and one-half (4.50) hours to ‘continue draft of appellate brief for
Seventh District.’ He is requesting an additional $300.00 to continue the draft for the
Seventh Appellate District Brief on June 10, 2009 and also $487.50 for three and one-
quarter (3.25) hours spent on such draft on July 2, 2009. Counsel indicated during the
course of the instant hearing that a great deal of legal research was necessary to
construct the brief to that point, and he further indicated that more work was
necessary. The issue of necessity arises for such a brief (again, if counsel would have
requested prior Court approval for this, as he should have, this probably would not be
an issue), especially in light of the Judgment Entry of 5-11-09 dismissing the transfer
of jurisdiction. Also the Court of Appeals issues its own Judgment Entry on 7-27-09
indicating that “no brief has been filed and the appellant has taken no further action to
timely prosecute this appeal.” Therefore, it appears that the Conservatorship did not
benefit by these hours. No compensation should be allotted at this time.”
¶{64} The magistrate appeared to believe that the appeal was moot because
Trumbull County had transferred jurisdiction back to Mahoning County. Although the
probate court does not provide any indication of whether it awarded any fees for the
appellate work, given that the probate court only increased the fees on that motion by
less than $200, it was not awarding any monies for the appellate work.
¶{65} As appellant did not object to the magistrate’s decision, he can now only
raise plain error as to this issue. We do not find that this is an exceptional case where
plain error should be recognized. Consequently, as to the attorney fees for appeal
09MA58 we find no error.
¶{66} Therefore, the probate court’s partial modification of the magistrate’s
award of attorney fees was not an abuse of discretion. Likewise, the probate court’s
part adoption of the magistrate’s award of attorney fees did not amount to plain error.
In all, this assignment of error lacks merit.

CONCLUSION
¶{67} For the reasons expressed above, both assignments of error lack merit.
The judgment of the trial court is hereby affirmed..

Donofrio, J., concurs.
Waite, P.J., concurs.