Brazelton v. Brazelton

2012 Ohio 3593

• Court: Ohio Court of Appeals
• Decided: August 10, 2012
• Docket: 24837
• Status: Published

Opinion

[Cite as Brazelton v. Brazelton, 2012-Ohio-3593.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

JONATHAN BRAZELTON :

Plaintiff-Appellee : C.A. CASE NO. 24837

v. : T.C. NO. 08MSC369

CHRISTINE BRAZELTON : (Civil appeal from Common Pleas Court, Probate Division) Defendant-Appellant :

:

..........

OPINION

Rendered on the 10th day of August , 2012.

RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

CHRISTINE BRAZELTON, 2404 Olson Drive, Dayton, Ohio 45420 Defendant-Appellant

FROELICH, J.

{¶ 1} Christine Brazelton appeals from a judgment of the Montgomery

County Court of Common Pleas, Probate Division, which awarded attorney fees, expenses, 2

and costs to Lawrence W. Henke III in the amount of $44,913.66. For the following reasons,

the judgment of the probate court will be modified and will be affirmed as modified.

Facts and Procedural History

{¶ 2} In November 2008, Jonathan Brazelton (“Mr. Brazelton”) filed a complaint

for declaratory judgment related to the actions of his sister, Christine Brazelton, with whom

he was the co-trustee of the Theodore A. Brazelton Trust. Theodore Brazelton (“Theodore”)

was the parties’ father.1 The complaint alleged that Ms. Brazelton was paying herself for

Theodore’s care and had instructed Merrill Lynch, with which the trust had its account, not to

give information to Mr. Brazelton about the account. It also alleged that Theodore was

“acutely confused and subject to undue influence and domination and undue control.” The

complaint asked the court to order Ms. Brazelton to provide Mr. Brazelton with access to the

trust account and all account statements since January 2008, to produce the original trust

document, and to produce receipts and/or other documentation for all of her expenditures

from the account. The complaint further sought to have Ms. Brazelton removed as

co-trustee due to her breach of her fiduciary duty and that she be ordered to pay attorney fees

and costs associated with the action. Merrill Lynch was also made a party to these

proceedings.

{¶ 3} The matter was set for a bench trial in September 2009. However, in

August 2009, Ms. Brazelton’s attorney filed a Motion for Leave to Withdraw as Counsel

because he and Ms. Brazelton were “unable to agree as to the appropriate strategy for

defending this matter.” The probate court granted the attorney’s motion for leave to

1 Ms. Brazelton disputes Jonathan Brazelton’s paternity, but this issue is not before us and is not relevant to this appeal. 3

withdraw and granted a continuance of the trial date.2

{¶ 4} In September 2009, Ms. Brazelton hired Henke to represent her. Over the

next year and a half, numerous agreed entries were filed continuing the trial date while the

parties continued to seek discovery and attempted to reach a settlement. During this time,

the court granted Mr. Brazelton’s request for a motion in limine, which prevented Ms.

Brazelton from introducing evidence of recoupment, because it is an affirmative defense

which she did not plead, and from introducing evidence regarding her claims against the

estate, which the court found were not relevant to her alleged abuse of her fiduciary duty.

The parties eventually agree to mediation and, in March 2011, the parties filed an agreed

entry asking that the probate court dismiss the case because they had reached a settlement.

{¶ 5} In April 2011, Henke filed a Motion/Application for Authority to Pay

Reasonable Attorney Fees from Ms. Brazelton’s share of the trust. Henke sought a total of

$44,913.66 in attorney fees, expenses, and costs. Ms. Brazelton filed an “Answer,” pro se,

stating that she had “dismissed” Henke, that the case had been “settled and Dismissed,” and

that Henke’s “habitual probate court missed-deadline filings * * * [and] consequent

escalation of fees” were being investigated by the Dayton Bar Association. She also stated

that she “struggled with understanding” the fees and that the “issue should be discussed,

negotiated and * * * decided” in the context of the “forced mediation after most, if not all, of

Christine Brazelton’s proof was excluded” by the court’s ruling on Mr. Brazelton’s motion in

limine. She claimed that she suffered losses as a result of Henke’s handling of the case and

2 Ms. Brazelton requested the continuance due to an injury she had suffered, which made it difficult “to help prepare her defense,” although the probate court may also have considered counsel’s withdrawal in granting the continuance. 4

that any decision on attorney fees should be delayed until these losses could be “weigh[ed]”

and until the bar association matter was completed.

{¶ 6} The probate court deferred its decision on the application for attorney fees

until the bar association committee on fee disputes decided Ms. Brazelton’s alleged claim.

The court later determined that “the fee dispute was not being addressed elsewhere,” i.e., by

the DBA.

{¶ 7} In August 2011, the probate court held a hearing on Henke’s motion for

approval of attorney fees and Ms. Brazelton’s objections to Henke’s motion. Following the

hearing, the probate court found that the requested fees, which included expenses and costs,

were fair and reasonable, that Ms. Brazelton owed Henke $44,913.66, and that this amount

should be paid to Henke from Ms. Brazelton’s portion of the trust.

Arguments on Appeal

{¶ 8} Ms. Brazelton appeals, pro se, from the probate court’s decision. As Henke

points out in his brief, Ms. Brazelton’s “brief” does not comply with App.R. 16(A), which

requires, among other things, a table of contents, a table of authorities, a statement of the

assignments of error, statements of the issues presented for review, and references to the

record which support the arguments raised in the brief. These shortcomings are attributable

to the fact that Ms. Brazelton is proceeding pro se, but we note that “[l]itigants who choose to

proceed pro se are presumed to know the law and correct procedure, and are held to the same

standard of other litigants. A litigant proceeding pro se ‘cannot expect or demand special

treatment from the judge who is to sit as an impartial arbiter.’” CitiMortgage, Inc., v. Lucas,

2d Dist. Montgomery No. 24482, 2011-Ohio-3724, ¶ 6, citing Dunina v. Stemple, 2d Dist. 5

Miami No. 2007 CA 9, 2007-Ohio-4719. While we are mindful that such omissions

authorize this court to either strike the offending portions of the brief or sua sponte dismiss

the appeal, we will review the merits of Ms. Brazelton’s claims in the interests of justice.

{¶ 9} In addition to her brief, Ms. Brazelton has filed several other documents in

this appeal. It is not entirely clear whether all of these documents were intended to be filed

in support of her claims in this case. 3 Nevertheless, in the interest of justice, we have

reviewed and considered these other filings in determining this appeal.

{¶ 10} We review a probate court’s award of attorney fees for an abuse of

discretion. In re Estate of Davidson, 2d Dist. Montgomery No. 22943, 2009-Ohio-3014, ¶

30. An abuse of discretion implies that the court’s attitude was unreasonable, arbitrary, or

unconscionable. In re Jane Doe I, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181 (1991);

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 11} Ms. Brazelton alleges that the probate court erred in granting Henke’s

motion for an award of attorney fees because Henke did not zealously represent her and

“pad[ded] his fees.”

{¶ 12} At the hearing, Michael Conway, an attorney with thirty years of experience

who is certified in estate planning, testified to the reasonableness of Henke’s fees. Conway

stated that he had reviewed the fee agreement between Henke and Ms. Brazelton, Henke’s

billing statements, the various filings by the parties, the mediation agreement, and the trust

document. Conway testified that $250 to $300 per hour was a reasonable hourly rate for an

3 We note that Ms. Brazelton is a party in a matter presently pending in the Montgomery County Court of Common Pleas (Christine Brazelton v. Lawrence W. Henke, III, Mont. Cty. C.P. Case No. 2012-CV-1831). 6

attorney of Henke’s experience, and that Henke’s hourly rate of $200 per the fee agreement

with Ms. Brazelton was “very reasonable.” Conway further testified that Henke’s total fee

and the costs incurred in the case were very reasonable and necessary. Conway noted that,

pursuant to Ms. Brazelton’s fee agreement with Henke, Henke’s fees were capped at $35,000

plus costs and expenses, and that Henke had worked many hours on the case that he had not

billed, because of this limitation. According to Conway, Henke’s bill would have been

$11,000 to $12,000 higher if he had been able to bill all of this time and, in Conway’s

opinion, this amount would still have been reasonable for the work performed.

{¶ 13} Ms. Brazelton did not present any expert testimony about the reasonableness

of Henke’s fees, her representation by Henke, or their fee agreement. She testified on her

own behalf about the perceived shortcomings in Henke’s representation. She admitted that

she had no knowledge of some of the allegations contained in her trial court filings, such as

Henke’s alleged close friendship with another attorney involved in the case or whether the

personal delivery of documents to another attorney, as indicated on the billing statement, was

reasonable. She admitted that she had sent emails expressing her satisfaction with Henke’s

representation, her belief that his fees were reasonable, and her gratitude that he was honoring

the cap in their fee agreement just a few months before the hearing, after the settlement had

been reached. Ms. Brazelton claimed that she made those statements without “full

knowledge” and “before [she] knew how many times [Henke had] been delinquent.” Ms.

Brazelton testified that her conclusion that Henke had been delinquent in court filings was

based on her own investigation through the court’s website and involved conduct unrelated to

this case. 7

{¶ 14} The probate court concluded that Henke had established the reasonableness

of his fees, that his services were necessary, and that he had the requisite skills to perform the

legal services. The court further found that, by signing the mediation agreement and the

agreed entry dismissing the case, Ms. Brazelton had acquiesced in the settlement and had

indicated that she was pleased with the results, that Henke’s attorney fees were “fair and

reasonable,” and that the amount owed to him should be paid from Ms. Brazelton’s share of

her father’s trust. The probate court did not abuse its discretion in reaching these

conclusions.

{¶ 15} Ms. Brazelton did not present any evidence to substantiate her claim, on

appeal, that Henke did not zealously represent her in this case, and she did not advance this

argument in the probate court.

{¶ 16} Henke concedes, however, that the amount awarded by the probate court

exceeded the amount to which he was entitled. The court awarded $44,913.66, the total

amount of fees, expenses, and costs substantiated at the hearing, but Henke states in his brief

that Ms. Brazelton had paid him $7,500 early in the litigation, which the probate court did not

deduct from the amount it awarded. In other words, Henke states that the amount he is still

owed is only $37,413.66. In light of this acknowledgment, the probate’s court’s judgment

will be modified accordingly.

{¶ 17} Ms. Brazelton’s arguments with respect to the probate court’s judgment are

overruled, except that the judgment will be modified to reflect the amount she has already

paid toward Henke’s fees.

Conclusion 8

{¶ 18} The judgment of the probate court will be modified to reflect that Henke is

entitled to additional payment of only $37,413.66. The judgment will be affirmed as

modified.

FAIN, J. and FRENCH, J., concur.

(Hon. Judith L. French, Tenth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Richard Hempfling Christine Brazelton Hon. Alice O. McCollum