In re Estate of Dickens

2022 Ohio 1543

• Court: Ohio Court of Appeals
• Decided: May 9, 2022
• Docket: CA2021-09-012
• Status: Published

Opinion

[Cite as In re Estate of Dickens, 2022-Ohio-1543.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

IN RE: : CASE NO. CA2021-09-012

ESTATE OF MARY E. DICKENS : OPINION 5/9/2022 :

:

APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS PROBATE DIVISION Case No. 20201065

Kathleen Mezher & Associates, and Kathleen D. Mezher, for appellant.

M. POWELL, P.J.

{¶ 1} Appellant, Attorney Kathleen Mezher, appeals a decision of the Brown County

Court of Common Pleas, Probate Division, reducing the amount of attorney fees for work

performed during the administration of an estate.

{¶ 2} Mary Dickens died testate on January 16, 2020, predeceased by a son and

survived by three daughters, Sharon Williams, Carole Dotson, and Joyce Keethler.

Dickens' will named Keethler as the executor. Keethler hired Mezher to assist her in the Brown CA2021-09-012

administration of the estate. The estate was opened on April 8, 2020. The schedule of

assets and inventory reflected an estate valued at $51,045 and consisted of a small house,

a 1992 Buick Le Sabre, a bank account with a few thousand dollars on deposit, and some

furniture and other personal property which were specifically bequeathed. The

administration of the estate involved the sale of Dickens' home, the transfer of the Buick to

Dickens' great-granddaughter, and dealing with various beneficiaries regarding Dickens'

personal property.

{¶ 3} On June 22, 2021, Keethler filed the final account, receipts and

disbursements, and an application for attorney fees. The application sought approval of

$5,970 in attorney fees based upon a $300 hourly fee whereas the Brown County Probate

Court's attorney fee schedule ("guideline fee") called for a total fee of $1,605.18 for an

estate of this size. Attached to the application was an itemized statement detailing Mezher's

rendered legal services and the charges incurred for those services. Neither objections nor

consents to the attorney fee application were filed by the beneficiaries. Consequently,

pursuant to Brown County Probate Court Loc.R. 71.1, the probate court held a hearing on

the matter. Mezher, Keethler, Williams, and Dotson attended the hearing.

{¶ 4} Mezher testified that the estate "was "not much of an estate," that there were

numerous beneficiaries, including the children of Dickens' predeceased son, that discord

between Keethler, Williams, and Dotson was prevalent throughout the administration of the

estate and prevented cooperation, and that she had "[a] very difficult time communicating

with these ladies." Mezher generally testified that the administration of the estate generated

substantial communications due to the number of beneficiaries, the need for all

beneficiaries to agree to the transfer of the Buick to the great-granddaughter, and the need

to arrange for beneficiaries to pick up items bequeathed in the will. Mezher further testified

there were "several months of downtime during Covid where there wasn't a lot of

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communication" and that "[it] took numerous emails" for Williams and Dotson to finally

deposit their distribution checks and sign off on the final account. Mezher conceded that

her requested attorney fees were above the probate court's guideline fee and that the

administration of the estate should not have been that difficult and taken that much time,

given the size of the estate. Nevertheless, Mezher stated that her attorney fees were

reasonable and necessary because of "the time spent involved in the case and getting it

done."

{¶ 5} Testimony at the hearing shows that the sale of Dickens' home, a cash buy,

was set up by the buyer's realtor and that it proceeded smoothly. Mezher testified there

was "a bit of a hiccup" in that Dickens had been married twice and her son and both of her

husbands had predeceased her. "[F]ortunately with [Keethler's] legwork," Mezher was able

to get the death certificates for all three men as well as Dickens' divorce decrees.

{¶ 6} Regarding the $5,970 in attorney fees requested by Mezher, Keethler testified

that the amount was appropriate given the many hours Mezher spent administering the

estate; by contrast, Williams and Dotson expressed concerns about the amount. Dotson

testified that while Mezher most likely did a lot of work for the estate, the requested attorney

fees were "steep." Dotson expressed her displeasure and surprise that Mezher charged

attorney fees for phone calls and emails and "every time we had a question." Dotson stated

she likely talked to Mezher four times. Williams testified that while communicating with

Mezher "was supposed to be for the estate, [it] turned out to be more of a communication

for [Keethler]." Williams testified Mezher refused to talk to her and thereafter ignored

Williams' emails. Mezher conceded there were no phone communications between her and

Williams but stated there were emails.

{¶ 7} Regarding their failure to promptly deposit their distribution checks and sign

off on the final account, Dotson testified she hesitated in signing the check because she

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was sick for several weeks. Furthermore, she was not comfortable in having someone else

deposit the check at the bank, as suggested by Mezher. Williams testified she hesitated in

signing documents for items she had never received such as Dickens' antique table.

Williams testified she ultimately felt pressured to sign documents to move the estate.

{¶ 8} On August 17, 2021, the probate court issued a judgment entry reducing

Mezher's attorney fees from her requested $5,970 to $1,605.18. The probate court found

that: the fee agreement between Keethler and Mezher provided for a fee based upon the

probate court's guidelines for the administration of an estate unless the guideline fee was

not approved by the probate court, in which case Mezher was to produce an itemized bill

for services rendered at the hourly rate of $300; Mezher never filed an application for

extraordinary attorney fees as required by the fee agreement, Brown County Probate Court

Loc.R. 71.1, and R.C. 2113.36; and Mezher never claimed the administration of the estate

involved extraordinary or cumbersome work prior to submitting the attorney fee application.

The probate court further found that: it was neither advised during the administration of the

estate that any party or beneficiary was causing "undue delay" nor asked to intervene or

assist; the estate was "a very straight forward, middle-of-the-road, estate"; and the estate

was "delayed by a lack of proper communication by all parties coupled with Covid" and a

failure to set up meetings with the beneficiaries to discuss problems.

{¶ 9} Mezher now appeals, raising one assignment of error:

{¶ 10} THE TRIAL COURT ERRED BY DENYING ATTORNEY FEES IN EXCESS

OF THE GUIDELINES FEES, DISREGARDING THE APPROVAL OF THE EXECUTOR

AND THE ITEMIZATION PROVIDED FOR ALL SERVICES RENDERED SHOWING THE

EXTRAORDINARY AMOUNT OF WORK NEEDED IN THE ADMINISTRATION.

{¶ 11} Mezher argues the probate court abused its discretion by reducing the

attorney fees from her requested $5,970 to the $1,605.18 guideline fee because her fee

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agreement with Keethler supports the attorney fee application, no objections to the attorney

fees were filed before the hearing, there was no dispute the services listed in the attorney

fee application were performed, no one questioned the validity of any specific item in the

fee itemization at the hearing; and the probate court admitted at the hearing that Mezher's

$300 hourly rate was appropriate. Mezher asserts that the administration of the estate was

complicated and prolonged and generated an inordinate amount of communications

because of the contention among the beneficiaries regarding the distribution of Dickens'

personal property, the transfer of the Buick, and the sale of Dickens' house, the need to

prepare a contract and obtain necessary consents for the transfer of the Buick, multiple

communications with Keethler and a title company for the sale of the house, and the failure

of Williams and Dotson to timely deposit their distribution checks.

{¶ 12} An attorney retained to assist in the administration of an estate is entitled to

reasonable attorney fees paid as part of the expenses of administration. In re Estate of

Bretschneider, 11th Dist. Geauga No. 2005-G-2620, 2006-Ohio-1013, ¶ 6. R.C. 2113.36

provides the means for the payment of reasonable attorney fees in probate cases:

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 those fees and, on application of the executor or administrator or the attorney, shall fix the amount of the fees.

{¶ 13} Prof.Cond.R. 1.5(a) provides a nonexhaustive list of factors to guide the

probate court in determining the reasonableness of a fee, including:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

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(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.

"[T]hese factors are not exclusive and each factor may not be relevant in each instance."

In re Estate of Fetters, 12th Dist. Fayette No. CA2016-05-007, 2016-Ohio-8232, ¶ 13.

{¶ 14} 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 appeal absent an abuse of that discretion. Id. at ¶ 12. "[T]he burden is upon

the attorneys to introduce into the record sufficient evidence of the services performed and

of the reasonable value of such services[.]" In re Estate of Verbeck, 173 Ohio St. 557, 559

(1962). Further, the attorney bears the burden of proving that the billed time was fair,

reasonable, and proper. In re Estate of Fetters at ¶ 12.

{¶ 15} "Reasonable" fees must be reasonable both from the standpoint of the

attorney rendering the services and from the standpoint of the estate out of which the

payment is being made. In re Estate of Daily, 12th Dist. Madison No. CA99-03-011, 1999

Ohio App. LEXIS 5118, *7 (Nov. 1, 1999). "A probate court is not bound to accept an

attorney's itemization of services performed on behalf of an estate and its fiduciary." In re

Estate of Murray, 11th Dist. Trumbull No. 2004-T-0030, 2005-Ohio-1892, ¶ 24. Although

an attorney's time and labor are relevant in determining the reasonableness of attorney

fees, it is but one of the factors a probate court must consider. In re Estate of Dye, 12th

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Dist. Fayette Nos. CA2011-04-004 thru CA2011-04-006, 2012-Ohio-2570, ¶ 46.

{¶ 16} The fee agreement between Keethler and Mezher provided in relevant part

that

The Client agrees to pay the Firm a fee based on the guidelines of the Brown County Probate Court for the administration of the estate. * * * If for any reason the guideline fees are not approved by the Probate Court, the client agrees that the Firm shall produce an itemized bill for services rendered based on the rate of $300.00 per hour. * * * If extraordinary circumstances in the Matter should require additional work beyond the usual and customary amount of work required for similar estates, the Client agrees to pay the additional attorney fees as approved by the Probate Court.

{¶ 17} As pertinent here, Brown County Probate Court Loc.R. 71.1 provides that

If counsel requests a fee that is not within the guidelines set forth below, an Application to Approve Attorney Fees, (Form 10.5), signed by the attorney and fiduciary and supported by the attorney's time records for all services, including time for services both within and outside of the guidelines shall be filed with the Court. If all of the residuary beneficiaries of the probate estate and all other parties affected by the payment of said fees have consented in writing to the payment of such fees, the application may be approved or set for hearing at the Court's discretion. If all of the residuary beneficiaries of the probate estate and all other parties affected by the payment of said fees have not consented in writing to the payment of such fees, the application shall be set for a hearing.

Attorney fees for the administration of an Ohio resident decedent's probate estate as set forth below may serve as a guide in determining fees to be charged to the probate estate for legal services of an ordinary nature rendered as attorney for the fiduciary in the administration of an Ohio resident decedent's probate estate.

Attorney fees calculated under this guideline * * * shall be rebuttably presumed to be reasonable[.]

{¶ 18} The attorney fee application requested $5,970 in attorney fees or $4,364.82

above the guideline fee. While no objections to the attorney fee application were filed, the

beneficiaries did not consent to the application. Thus, the probate court held a hearing on

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the application in compliance with Brown County Probate Court Loc.R. 71.1.

{¶ 19} Contrary to Mezher's assertion, the fee agreement does not support the

attorney fee application. The fee agreement explicitly states that Keethler agreed to pay

Mezher attorney fees based upon the probate court's guideline fee and that, "[i]f for any

reason the guideline fees are not approved by the Probate Court," Mezher "shall produce

an itemized bill for services rendered based on the rate of $300.00 per hour." The probate

court never disapproved the guideline fee, thereby requiring Mezher to produce an itemized

bill pursuant to the fee agreement, because the attorney fee application did not request the

guideline fee or explain why the guideline fee was not used. Nor was an application for

extraordinary attorney fees filed. Instead, a standard fee application was filed with the final

account. The application sought $5,970 in attorney fees, well above the guideline fee, but

failed to identify the extraordinary circumstances justifying the request of $4,364.82 in

extraordinary attorney fees.

{¶ 20} A review of Mezher's itemized statement attached to the attorney fee

application indicates that legal services were rendered in the matter from late January 2020

through May 2021, or approximately 16 months. The itemized statement also included

Mezher's upcoming attendance at the attorney fee hearing which, the trial court noted, "was

needed due, in part, to counsel's failure to declare and outline why her fees were

extraordinary or file and request the Court to set aside the fee agreement." Mezher billed

two hours for the hearing at her $300 hourly rate.

{¶ 21} Not including Mezher's attendance at the hearing, the itemized statement

indicates that Mezher provided 32.9 hours of legal services and sought payment of $300

an hour for 17.9 hours. The itemized statement further indicates that 8.4 hours were

devoted to dealing with the sale of the house and transfer of the Buick and communicating

with Williams and Dotson. There was "NO CHARGE" for five of those hours and a $300

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hourly charge for 3.4 of those hours. Of those 3.4 hours, some of that time can be attributed

to ordinary services in the administration of the estate; two of the functions charged were

clerical in nature. The record indicates that notwithstanding the multitude of emails, this

was not an unusual case involving litigious beneficiaries or multiple motions and hearings.

The administration of the estate was legally unremarkable and relatively uncomplicated.

{¶ 22} In light of Mezher's itemized statement, the fee agreement with Keethler, the

failure to set up meetings with the beneficiaries or request the probate court's assistance or

intervention to resolve issues caused by the discord between the beneficiaries during the

administration of the estate, we find that the probate court did not err in finding "there has

been no basis given to not adhere to the Brown County Probate Court guidelines for

administration of Estate as set forth in [fee agreement between] Joyce Keethler and

Kathleen Mezher." While the probate court did not specifically recite each factor of

Prof.Cond.R. 1.5(a) in its judgment entry, the court's findings of fact show it considered the

evidence submitted at the hearing in relation to the applicable factors and applied all

relevant factors in reaching its decision. The probate court did not abuse its discretion in

denying the request for extraordinary attorney fees and reducing Mezher's requested fee of

$5,970 to the guideline amount of $1,605.18.

{¶ 23} Mezher's assignment of error is overruled.

{¶ 24} Judgment affirmed.

S. POWELL and BYRNE, JJ., concur.

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