[Cite as In re Guardianship of Nauth, 2018-Ohio-892.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: THE GUARDIANSHIP OF C.A. No. 17CA0010-M
LOREN NAUTH
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2011 05 GI 00031
DECISION AND JOURNAL ENTRY
Dated: March 12, 2018
CALLAHAN, Judge.
{¶1} Appellant, Shorain McGhee as the guardian of Loren Nauth (“the Guardian”),
appeals the judgment of the Medina County Common Pleas Court, Probate Division, which
denied the Guardian’s attorney fees and reduced the Guardian’s earned fees. For the reasons set
forth below, this Court affirms in part and reverses in part.
I.
{¶2} After considering competing applications by Loren Nauth’s wife (“Wife”) and
daughter in 2011, the probate court found Loren Nauth (“the Ward”) to be incompetent and
appointed a third-party, Shorain McGhee, as the guardian of the Ward’s person. Three years
later, Wife filed a motion to terminate the guardianship or, in the alternative, to substitute Wife
as the guardian. Wife did not assert any allegations of dereliction of duty by the Guardian as a
basis to substitute the guardian. However, around this time an article appeared in the Medina
Gazette wherein Wife complained about the guardianship and criticized the Guardian’s conduct.
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{¶3} The Guardian retained counsel (“the Attorney”) to represent her in the hearing.
The probate court issued a notice to the Guardian that the guardianship would not pay the
Guardian’s legal fees. On the first day of the hearing, the Attorney filed a motion to withdraw as
counsel because the Guardian was unable to pay the legal fees. After conducting an inquiry at
the hearing, the probate court denied the motion to withdraw as counsel, but permitted the
Guardian to file a motion for reconsideration as to the payment of the legal fees.
{¶4} Prior to the start of the hearing, Wife clarified “that she was only seeking to
terminate the guardianship, not remove the present guardian.” In re Nauth, 9th Dist. Medina No.
15CA0025-M, 2016-Ohio-5089, ¶ 5. The hearing took place over a period of four days and the
Attorney was present on behalf of the Guardian the entire time. The probate court ultimately
denied Wife’s motion to terminate the guardianship because the Ward “‘[was] not competent’
and ‘require[d] a guardian.’” Id. Wife appealed that decision, which was affirmed. Id. at ¶ 1.
{¶5} The Guardian filed a motion to reconsider the payment of her legal fees through
the guardianship and submitted an application for attorney fees and guardian fees. Wife opposed
the motion to reconsider the payment of legal fees and objected to some of the guardian fees.
Following a hearing, the probate court denied attorney fees for the trial work, approved attorney
fees for the prior appeal, granted the guardian fees with the exception of $1,350.00, and reduced
the future hourly rate of the Guardian.
{¶6} The Guardian has timely appealed, raising one assignment of error.
II.
ASSIGNMENT OF ERROR
THE COURT’S FINDING AND ORDER DENYING ATTORNEY FEES AND
REDUCING THE GUARDIAN’S FEE WAS AN ABUSE OF DISCRETION[.]
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{¶7} The Guardian asserts that the probate court abused its discretion when it denied
the Guardian’s attorney fees and reduced the Guardian’s earned fee. This Court agrees as to the
attorney fees, but disagrees as to the Guardian’s fee.
{¶8} A trial court’s decision regarding attorney fees and guardian fees in a
guardianship is reviewed for an abuse of discretion. In re Guardianship of Escola, 41 Ohio
App.3d 42, 47 (5th Dist.1987); In re Guardianship of Thacker, 11th Dist. Portage No. 2008-P-
0023, 2008-Ohio-5951, ¶ 17. “A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by evidence, or grossly unsound.”
(Citations and quotation marks omitted.) Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-
Ohio-3454, ¶ 21.
Attorney fees
{¶9} The Guardian argues that the probate court abused its discretion when it failed to
apply the three-part test in In re Wolfe, 29 Ohio Law Abs. 184 (P.C.1938), regarding the
payment of attorney fees arising from a motion to terminate the guardianship. The Guardian
relied upon this three-part test in her briefs and at the hearing requesting attorney fees.
{¶10} In In re Guardianship of Allen, 50 Ohio St.3d 142 (1990), the Ohio Supreme
Court held that,
[i]n an action to terminate a guardianship, the probate court should apply a three-
part test to determine if payment of attorney fees from the guardianship estate is
merited: whether the attorney acted in good faith, whether the services performed
were in the nature of necessities, and whether the attorney’s actions benefited the
guardianship.
Id. at paragraph three of the syllabus, citing In re Wolfe. Because the trial court and the appellate
court failed to apply the three-part test set forth in Wolfe, the Ohio Supreme Court remanded the
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matter to the trial court to decide whether to grant attorney fees based upon the three-part test in
Wolfe. In re Guardianship of Allen at 146.
{¶11} This case is akin to In re Guardianship of Allen because it involves a request for
attorney fees in a proceeding to terminate a guardianship and a probate court’s failure to apply
the three-part test in Wolfe to decide if attorney fees are merited. In this case, the trial court
made no reference to the three-part test in Wolfe and how the Guardian’s experience as an
attorney, the Guardian’s reason for hiring the Attorney, the scope of the Attorney’s
representation, and the nature of the proceedings applied to the three factors necessary for
consideration under Wolfe. Instead of deciding the merit of the attorney fees request under the
three-part test in Wolfe, the probate court ultimately denied the attorney fees because “[h]iring
trial counsel was needlessly redundant and not solely for the benefit of the ward.”
{¶12} Based on the foregoing, the probate court abused its discretion when it failed to
apply the three-part test in Wolfe to render a decision regarding attorney fees. The Guardian’s
assignment of error as to the issue of attorney fees is sustained and the matter is remanded to the
probate court to apply the three-part test in Wolfe.
Guardian fees
{¶13} The Guardian contends that the probate court abused its discretion when it denied
$1,350.00 in earned guardian fees as being a double entry. The Guardian argues she testified
during the hearing that one of the December 16, 2014 entries was a mistake and the probate court
was aware of the correct date of the hearing.
{¶14} The Guardian filed an application for payment of guardian fees incurred between
April 2014 through January 2015. Included in these time entries were four entries regarding the
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hearing on the motion to terminate the guardianship. These entries included the following dates,
descriptions, times, and amounts:
11/4/2014 Full hearing on Motion 3.50 [hrs.] [$]700.00
to Terminate
12/16/2014 Hearing on Motion to 6.50 [hrs.] [$]1,300.00
Terminate
12/16/2014 Hearing on Motion to 6.75 [hrs.] [$]1,350.00
Terminate Guardianship
1/27/2015 Hearing on Motion to 2.50 [hrs.] [$]500.00
Terminate Guardianship
However, the transcripts reflect that the hearing occurred on November 4, 2014, November 19,
2014, December 16, 2014, and January 27, 2015.
{¶15} In the hearing, the Guardian brought to the probate court’s attention that there was
an error in the application for guardian fees: “I do see there is something that’s incorrect. I have
two dates for December 16th, 2014. Actually, one of those should have been November 19th,
your Honor. I apologize. I made a mistake on that date.”
{¶16} The Guardian argued that the probate court was aware of the correct dates for the
hearing and should have awarded her guardian fees for all appearances at the hearing despite her
typo. While the Guardian pointed out the error to the probate court, she did not specify at the
hearing or in a subsequent filing which of the December 16, 2014 entries was in fact for
November 19, 2014. Instead, the Guardian addressed this point for the first time in her appellate
brief, which was too late. See JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit
No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that were not raised in the trial court cannot be
raised for the first time on appeal.”).
{¶17} Further compounding the Guardian’s error is the fact that the court appearances
were billed for essentially identical time, but the record does not reflect identical time being
spent in court for the hearing on those days. The November 19, 2014 transcript is 94 pages,
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whereas the December 16, 2014 transcript is 264 pages. Nor do the entries indicate that the time
spent was for anything other than attendance at the hearing.
{¶18} The probate court questioned the Guardian at length regarding her guardian work
being in the capacity of a lay person rather than legal guardian work. The Guardian was insistent
that there was no distinction, because she was “working, as a guardian, as a lawyer in this
matter.” The Guardian testified that she was “a lawyer and [she could not] separate [her]
knowledge and [] experience from everything that [she does] when [she is] working.” Despite
the Guardian’s strong reliance on being an attorney, she made errors in recording her guardian
fees and did not correct the errors.1
{¶19} Based on the foregoing, this Court cannot say that the probate court abused its
discretion in denying earned guardian fees of $1,350.00. The Guardian’s assignment of error as
to the issue of guardian fees is overruled.
Other arguments
{¶20} The Guardian also argues that the probate court exhibited “passion or bias” when
it relied upon information outside the record and incorrect information regarding the Guardian’s
other employment, and made statements regarding the Guardian’s work as a paralegal to deny
the attorney fees and the earned guardian fees. These arguments are misplaced. The probate
court only referenced these facts in support of its decision to reduce the Guardian’s hourly rate
1
The Guardian continued to make errors relative to these dates in her appellate brief. Despite
Wife noting these errors in her appellee brief, the Guardian repeated the erroneous dates in her
reply brief. She first stated that it “should have been November 29, 2014 which was a full day of
hearing at 6.75 hours.” She then stated that the “hearing occurred on November 19, 2015.”
Based on the transcripts, both of these dates are incorrect. The first date has the wrong day,
while the second date has the wrong year.
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for future work, and not to deny the attorney fees and past guardian fees. The Guardian,
however, did not challenge the probate court’s decision to reduce her future hourly rate. Because
this issue is not properly before this Court on appeal, we decline to address this portion of the
Guardian’s argument.
III.
{¶21} The Guardian’s assignment of error is sustained in part and overruled in part. The
judgment of the Medina County Common Pleas Court, Probate Division, is affirmed in part,
reversed in part, and this matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed equally to both parties.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, J.
CONCURS.
HENSAL, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶22} I respectfully dissent, in part, from the majority’s resolution as to the issue of
attorney fees. While the probate court in this case did not cite to or set forth the three-part test in
Wolfe, it nonetheless applied the test to determine the appropriateness of an attorney fee award
arising from a motion to terminate a guardianship.
{¶23} The probate court’s application of the Wolfe test is evident in its denial of attorney
fees on the basis that “[h]iring trial counsel was needlessly redundant and not solely for the
benefit of the ward.” In reaching this conclusion, the probate court set forth the evidence in the
record that was relevant to deciding whether the Attorney’s services were necessary as it
pertained to the motion to terminate the guardianship. See In re Guardianship of Allen, 50 Ohio
St.3d 142 at paragraphs two and three of the syllabus.
{¶24} As such, I respectfully dissent, in part, as I find the trial court did apply the Wolfe
test and I would proceed to consider whether the probate court acted within its discretion in
refusing to award the Guardian’s trial counsel fees.
{¶25} I concur with the remainder of the majority’s opinion.
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APPEARANCES:
SHORAIN L. MCGHEE, Attorney at Law, for Appellant.
A. CLIFFORD THORNTON, JR., Attorney at Law, for Appellee.