[Cite as Minshall v. Estate of Minshall, 2024-Ohio-3428.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
Werner E. Minshall, et al. Court of Appeals No. E-21-059
Appellees Trial Court No. 2014-1-218A
v.
Rosalyn Ahner, executor of the DECISION AND JUDGMENT Estate of William E. Minshall, deceased Decided: September 6, 2024
Appellant
***** D. Jeffery Rengel and Kevin J. Zeiher, for Appellees
Charles M. Murray, Joseph A. Galea, and Daniel L. McGookey, for Appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Estate of William E. Minshall,1 appeals the December 2, 20212
judgment of the Erie County Court of Common Pleas, Probate Division, finding that he
1 William Minshall was the original appellant. On October 13, 2023, counsel for William filed a suggestion of his death. On December 29, 2023, this court granted a motion to substitute his estate, with Rosalyn Ahner as executor, as appellant. 2 This appeal was originally submitted for our review on September 7, 2022. On December 15, 2022, we remanded this matter to the trial court for 45 days to resolve concealed assets from the estate of his mother, Frances Minshall’s estate, and awarding
damages, penalties, and attorney’s fees arising from the recovery of concealed assets to
appellees, Peter and Werner Minshall. For the following reasons, we affirm, in part, and
reverse, in part, the trial court’s judgment and remand this matter for further proceedings.
II. Facts and Procedural Background
{¶ 2} This appeal arises from a lengthy and complex series of facts and litigation.
The parties’ mother, Frances,3 died on March 2, 2014. Upon her death, William, filed her
last will and testament and a related codicil in the Erie County Court of Common Pleas,
Probate Division on July 1, 2014. The will identified an inter vivos trust that Frances had
established prior to her death. The trust contained some property. The will devised that
any property not specifically bequeathed to a named beneficiary was to “pour over” into
the trust upon Frances’s death.
{¶ 3} The estate was assigned Probate Division case No. 2014-1-218 and William
was appointed executor the following day. On August 5, 2014, William filed an
inventory of estate assets that consisted of a single asset—an annuity valued at
$78,795.54. On August 12, 2014, William filed a certificate of termination with the
court, pursuant to R.C. 2109.301, stating that all estate liabilities had been satisfied, taxes
William’s Civ.R. 60 motion for relief from judgment. Following multiple extensions of the stay to accommodate the trial court’s review of that motion and the parties’ continued motion practice, we lifted the stay on April 29, 2024, after the parties advised that all matters pending below had been withdrawn. 3 Due to the shared surname among the individuals identified in this action, we will identify the Minshall family members by their first names. 2. and any fees owed had been paid, and that all estate assets had been distributed. The trial
court approved the certificate that same day.
{¶ 4} Nearly five years later, on July 3, 2019, appellees Peter and Werner filed a
complaint, pursuant to R.C. 2109.50, alleging that William concealed assets of Frances’s
estate when he filed his inventory with the trial court.4 The concealment action was
assigned case No. 2014-1-218(A). On November 4, 2019, the trial court entered an order
vacating the previously approved certificate of termination. The parties then proceeded
to the first day of trial on appellees’ concealment action on December 5, 2019.5 During
this first day of trial, William confirmed that the only item he included in the estate
inventory was his mother’s annuity account. He stated that he did not include any other
property that belonged to Frances at the time of her death and that he compiled the
inventory based on his “memory.” He also testified that at the time he prepared the
inventory, he recalled “numerous items” that were in her possession but still failed to
include those additional items in the inventory.
4 In their briefs, Peter and Werner allege that they discovered the concealment during the discovery process in a proceeding in the Erie County Clerk of Courts general division related to William’s alleged breach of fiduciary duties as trustee of Frances’s trust. This, and all other related proceedings pending in the general division, are not part of this appeal. 5 In a related proceeding, appellees’ also alleged that William had concealed assets from Frances’s trust. That related action was transferred to the general division of the Erie County Common Pleas Court and is not part of this appeal. 3. {¶ 5} On the second day of trial,6 the trial court determined that William’s
testimony indicated that an accounting of Frances’s trust was necessary to determine
what assets belonged to her trust at the time of her death and would not be subject to the
concealment as alleged in the underlying action. The trial was then continued
indefinitely pending resolution of that accounting.
{¶ 6} The trial resumed on June 30, 2021. At that time, the third-party
administrator appointed to conduct the accounting, Richard R. Gillum, testified as to his
findings. Gillum confirmed that he had completed his accounting and had filed an
amended inventory identifying estate assets with the trial court. He testified that William
had not objected to the amended inventory and that it included additional items not
identified in William’s original inventory. He testified that other than a golf cart that was
no longer in operation, all other assets identified in the amended inventory were available
to be reclaimed and distributed in accordance with the provisions of Frances’s will and
any trial court orders.
{¶ 7} After Gillum’s testimony concluded, William was recalled as a witness. He
did not dispute that the items Gillum identified were estate assets that were not reported
on the inventory he originally filed with the trial court. Instead, he argued that he had not
concealed these assets because Peter and Werner were aware of the assets at all times but
6 The trial court’s December 6, 2019 order references a second day of trial. However, no transcript was provided for that day. Since our resolution of appellant’s assigned errors is not dependent on any testimony that may have occurred that day, we note this omission solely for clarification of the record before us. 4. had not made a claim for them. He also defended his failure to include those items based
on the fact that he had prepared and signed the original, incorrect inventory under the
advice of his counsel.
{¶ 8} At the conclusion of William’s testimony, the trial court determined that he
had concealed assets from the estate in violation of R.C. 2109.52. The court’s finding
was memorialized in a July 7, 2021 order finding him guilty of concealment and
scheduling a hearing on the damages resulting from that concealment on July 20, 2021.
{¶ 9} The damages hearing ultimately took place over two days on July 20, 2021,
and August 27, 2021. On the second day of the hearing, at the trial court’s urging, the
parties discussed a proposed resolution regarding damages. The parties began the
potential resolution with a stipulation as to the value of each asset that William was found
to have concealed from Frances’s estate. The stipulation included the following
valuations of assets included in Gillum’s amended estate inventory:
1. A Bank of America checking account valued at $33,128.00;
2. A PNC Bank account valued at $24,087.89;
3. A Mass. Investors Growth check valued at $7,417.11;
4. A federal income tax refund valued at $7,117.00;
5. A golf cart valued at $250.00;
6. Proceeds from the sale of a Ford Taurus valued at $750.00;
7. A 99% interest in Erie Capital, LLC valued at $150,000.00;
8. Penn Treaty Network of America checks valued at $2,208.90;
9. An AT&T refund valued at $26.62;
5. 10. A First Allmerica account valued at $79.86;
11. A Capital One Network account valued at $30.00; and
12. A Chase Card Services Account valued at $243.54.7
After stipulating to the valuation of these assets, the parties sought to resolve which party
would be assessed the costs of the action and the amount of attorney’s fees to be awarded
to Peter and Werner. After significant discussion, the trial court stated that the parties
had reached the following agreement to resolve the case:
[A]t the close of the day, that—that any and all litigation regarding the— the Erie County Probate Court or any other litigation * * * except what’s in the General Division, in exchange or a distribution of estate assets that [Gillum] is going to be making through the estate. * * * [T]he only thing that is pending here are these exceptions to the inventory, and if you can get those resolved—I don’t see why you can’t get those resolved, but we’re resolving all of this, okay? * * * [A]ll other issues relative to this are settled and resolved except for the pending, which would leave: One, court costs paid; two, [the amount Gillum] would be paid; and, three, Court has the discretion to review counsel fees on the basis—on the basis of 1.5, Code of Professional Responsibility, and the legal requirements that—that those charges be fair and reasonable for legal services for actually—actually performed that benefit the estate[.]
The trial court then asked the parties to stipulate to a reasonable hourly rate on which to
determine any award of reasonable attorney’s fees. After some discussion, the parties
agreed that $250 was a reasonable hourly rate.
7 The record shows that William did not file any objections to Gillum’s amended inventory. While William attempted to retain his right to object to these valuations at the damages hearing on August 27, 2021, his arguments on appeal are unrelated to the valuation of these assets. Therefore, we find that any challenge to Gillum’s valuations are not before the court in this appeal. 6. {¶ 10} The trial court then asked William’s counsel to restate the parties’
agreement on the record. He stated that the terms of the agreement were that Gillum
would be responsible for distribution of the durable assets in the estate, that the only
unresolved issue related to the concealment action was a chose in action pending in the
general division that was owned jointly by William and Frances—99% by Frances and
1% by William—at the time of Frances’s death, that the parties each agreed to pay 1/3 of
Gillum’s costs and 1/3 of court costs, and that the trial court would separately determine
the amount of attorney’s fees owed to Peter and Werner with the hourly rate of those
costs established at $250 per hour. The parties briefly argued over the splitting of court
costs and payments to Gillum but the trial court stated that each party would be required
to pay 1/3 of those costs.
{¶ 11} The trial court then invited William’s counsel to draft and circulate a
proposed judgment entry reflecting the terms of the agreement. Peter and Warner
objected to the terms of the proposed judgment entry, arguing that it did not reflect the
parties’ entire agreement. On September 13, 2021, the trial court entered a “journal entry
and order” stating that the parties had reached a settlement and outlined the basic terms of
that settlement—those terms being consistent with the terms identified at the August 27,
2021 hearing. The court’s entry also ordered the parties to “file a proposed Judgment
Entry which incorporates the above basic terms of settlement for the Court[‘s] review and
approval on or before September 20, 2021”. Peter and Werner continued to decline
executing William’s proposed judgment entry, resulting in the trial court conducting a
hearing on November 12, 2021.
7. {¶ 12} At that hearing, William argued that the proposed judgment entry was the
entirety of the parties’ settlement and that Peter and Werner’s objections were solely to
add additional terms to the agreement that they failed to negotiate at the damages hearing.
Peter and Werner argued that the proposed settlement could not include all necessary
terms as it failed to address whether prejudgment interest would be added to the damages
and did not include the mandatory ten percent penalty to be imposed on William pursuant
to R.C. 2109.52. William filed a motion to enforce the settlement agreement on
November 30, 2021.
{¶ 13} The trial court did not hold a hearing on William’s motion to enforce the
settlement agreement. Instead, the trial court entered judgment on December 2, 2021, on
the concealment action. The trial court found that William was guilty of concealing
$225,338.92 from Frances’s estate—the total of the stipulated value of assets in the
amended inventory. The court further held that Gillum had offered services with a
reasonable value of $24,412.50 with additional expenses of $1,160.00 for his work
identifying the estate assets. Finally, the trial court determined that Peter and Werner’s
co-counsel, having previously submitted itemized statements reflecting the work
performed on their respective client’s behalf, had earned reasonable attorney’s fees in the
amounts of $36,500.00 plus $665.50 in expenses, and $36,250.00, respectively. The
court entered judgment against William and in favor of Frances’s estate in the amount of
“$225,338.92 for money and other personal property concealed, embezzled, conveyed
away, or [in] the possession of [William,] together with a 10% penalty, and all costs of
the Estate and these proceedings.” The court also ordered William to pay Gillum’s fees
8. and expenses as well as Peter and Werner’s attorney’s fees in the amounts described
above.
{¶ 14} On December 7, 2021, the trial court entered a “Judgment Entry nunc pro
tunc Order.” The order corrected a clerical error from its December 2, 2021, judgment
entry—that is, identifying the date of the damages hearing as August 27, 2021, rather
than August 2, 2021, as described in the original judgment. The order also denied
William’s motion to enforce a settlement agreement. In doing so, the trial court cited Art
v. Erwin, 2009-Ohio-4306 (10th Dist), which held that concealment actions were quasi-
criminal in nature and, therefore, could not be settled by the parties but had to be resolved
by the trial court with a finding of guilt and a calculation of damages. For this reason, the
trial court denied William’s motion to enforce the settlement as a matter of law.8
III. Assignments of Error
{¶ 15} Appellant timely appealed and assigns the following errors for our review:
1. The trial court erred in denying [William’s] motion to enforce settlement;
2. The trial court erred in its assessment of damages against [William]; and
8 Although not raised by any party, we note the procedural defect in the trial court’s denial of William’s motion after it had already rendered a final judgment. A trial court generally loses jurisdiction over a case after issuing its final order. State ex. real. The Kelleys Island School District Board v. The Ohio Department of Education, 2024-Ohio- 285, ¶ 45 (6th Dist.). Ostensibly, the trial court’s post-judgment denial of William’s motion was a nullity. Id. However, since the trial court did not rule on William’s motion prior to entering final judgment, it is considered denied. Webber v. Ohio Department of Public Safety, 2017-Ohio-9199, ¶ 27, fn. 1 (10th Dist.). Therefore, William’s assignment of error to the trial court’s denial of his motion is properly before this court, albeit through a slightly different procedural posture than that identified by the parties. 9. 3. The trial court erred in awarding Peter’s and Werner’s attorneys fees.
IV. Law and Analysis
a. The Trial Court did not err in denying William’s Motion to Enforce Settlement
{¶ 16} In his first assignment of error, William argues that the trial court erred in
denying his motion to enforce the settlement agreement. Specifically, he argues that the
trial court erroneously determined that concealment actions are not subject to settlement
as described in Art v. Erwin, 2009-Ohio-4306 (10th Dist.). Instead, he argues that
concealment actions are indeed subject to private settlement when that settlement is
reached at the invitation of the trial court and approved on the record.
{¶ 17} A trial court’s decision on a motion to enforce a settlement agreement is a
matter of law that we review de novo. Erie Capital, LLC v. Barber, 2021-Ohio-2258, ¶
14 (6th Dist.). We find that because concealment actions are not subject to settlement by
the parties as a matter of law, the trial court did not err in denying William’s motion to
enforce the settlement agreement.
{¶ 18} To determine whether a concealment action may be settled by the parties,
we must examine the nature of concealment actions. In Art, the Tenth District Court of
Appeals was asked to determine whether the underlying concealment action could be
referred to arbitration because one of the estate assets, a securities account, had an
arbitration clause as part of its underlying terms. Id. at ¶ 8. The court described
concealment actions as “a special proceeding which is inquisitorial in nature and involves
10. a charge of wrongful or criminal conduct on the part of the accused.” Id. at ¶ 34. “In
such a proceeding, a finding of guilty or not guilty is required with the imposition of a
penalty upon a finding of guilty.” Id. Put simply, a concealment action is “a summary
means, inquisitorial in nature, to recover specific property or proceeds or value thereof
belonging to [an estate],9 title to which was in a decedent at [their] death or in a ward
when his guardian was appointed; or to recover property belonging to [an estate],
concealed, taken or disposed of after the appointment of the fiduciary.” Art at ¶ 33, citing
In re. Estate of Black, 145 Ohio St. 405 (1945). It is not a proceeding to be used by
individuals “to collect a debt, obtain an accounting or adjudicate rights under a contract”
and “bears little resemblance to a civil action, either in purpose or execution. It is not a
matter of a dispute between two private parties[.]” Id. at ¶ 36.
{¶ 19} The court further held:
[Concealment actions are] not a matter of dispute between two private parties, such as (in this case) a broker and a surety. It is a summary, inquisitorial, quasi-criminal proceeding which, by the plain language of R.C. 2109.50, must be conducted not merely in the probate court, but by the probate court. In essence, the accused is one party and the court itself, as the superior guardian of the ward, is the other. The fact that an “interested party,” such as a surety or a family member or heir of the ward, may bring a complaint to begin the inquisitorial process does not, in the long-held view of the Supreme Court of Ohio, transform it into a matter akin to a private dispute and a controversy thus amenable to resolution by private arbitration. The reasons primarily advanced in favor of private arbitration, which are increased efficiency and decreased cost, would not be advanced by referring concealment actions to arbitration.
9 The estate in Art was a trust estate. R.C. 2109.50 applies to “an estate, a testamentary trust, or a guardianship.” 11. Id. In light of the nature of concealment proceedings, the Tenth District Court of Appeals
held that concealment actions could not be referred to arbitration since utilizing
alternative dispute resolution would be in contravention of R.C. Chapter 2109. Id. We
find the Tenth District’s analysis is applicable to the parties’ attempt to reach a settlement
in this action.
{¶ 20} It is undisputed that Peter and Werner were interested parties that first
alleged William’s concealment of estate assets. While their interests certainly include
identifying any assets owned by Frances at the time of her death, that interest does not
raise them to the level of parties to a private dispute with William. Instead, when they
alleged William’s wrongdoing, R.C. Chapter 2109 tasked the trial court with conducting
the inquisitorial concealment proceedings and determining William’s guilt or innocence.
While the issue in Art was whether the matter could be referred to arbitration, we see no
distinction between arbitration and the trial court’s attempts to encourage a settlement
here. In both instances, the interested parties’ settlement of the concealment claim as
private parties would result in the usurpation of the probate court’s statutory obligation to
resolve the action in accordance with the proceedings outlined in R.C. 2109.50.
Therefore, while the trial court’s attempts to facilitate a settlement in this case may have
been well-intentioned, they were not authorized by law—an error the trial court
apparently realized at the time of its December 7, 2021 order denying William’s motion.
{¶ 21} Put simply, the nature of concealment actions require probate courts to
adjudicate the accused’s conduct in a quasi-criminal proceeding. The interested parties
that first allege wrongdoing are not elevated to the status of a party to the action that can
12. settle the claims with the accused. For these reasons, we find that the trial court did not
err in denying William’s motion to enforce the settlement agreement as no such
agreement was permitted as a matter of law.
{¶ 22} To avoid this result, William cites several cases that purportedly show that
concealment actions are indeed subject to settlement among the parties. Each of these
cases is readily distinguishable. In In re. Estate of Schoenman, 2011-Ohio-5243 (5th
Dist.), the trial court’s decision awarding attorney’s fees in accordance with the parties’
proposed settlement agreement was deemed improper because the trial court had not
previously made a guilty finding. Whether the settlement agreement itself was valid was
not at issue. Neither In re. Estate of Lewis, 2001-Ohio-2546 (4th Dist) nor In re. Estate
of Stamm, 2006-Ohio-5176 (11th Dist.) involved the settlement of a concealment action.
As a result, they are entirely inapplicable to our analysis here. Finally, in Estate of
Millstein, 2021-Ohio-4610 (8th Dist.), the parties had entered into a prior settlement
agreement that prohibited any further disputes related to a separate probate action. The
Eighth District Court of Appeals held that the term “dispute” in the parties’ agreement
encompassed future concealment actions. In reaching this conclusion, the Eighth District
reaffirmed that concealment actions were not an action between private parties. Id. at ¶
55. However, the court held that a concealment claim did fall within the broad
prohibition of continued “disputes” in the parties’ prior settlement agreement and, as a
result, held that the concealment action could not be maintained. Id. at ¶ 65.
Importantly, the holding in Millstein prohibited the initiation of a concealment action
under the terms of a prior settlement agreement between the parties. That limited holding
13. does not support the premise of upholding a settlement between private parties in a
pending concealment action. As a result, it does not instruct our analysis here.
{¶ 23} In sum, the parties to the present action were not authorized to settle Peter
and Werner’s concealment claims as a matter of law. Therefore, we find that the trial
court did not err in denying William’s motion to enforce the settlement as a matter of law
and his first assignment of error is found not well-taken.
b. The trial court did not err in assessing judgment against William.
{¶ 24} In his second assignment of error, William argues that the trial court erred
in awarding damages against him because Frances’s estate did not actually suffer any
damages based on his concealment of assets. Essentially, he argues that because any
assets Frances owned at the time of her death that were not specifically bequeathed to an
individual beneficiary were to be poured over into Frances’ trust, that his purported
placement of the concealed assets into the trust did not damage the estate. As a result, he
argues, the award of damages against him was invalid. William’s argument misstates the
applicable law to the limited nature of the concealment action and, therefore, is without
merit.
{¶ 25} R.C. 2109.52 states, in relevant part, that if the accused in a concealment
action is found guilty, the probate court “shall assess the amount of damages to be
recovered[.]” The amount of the judgment rendered against the guilty party is
determined by whether they are the fiduciary for the estate. A “fiduciary” includes
executors of a testamentary estate. R.C. 2109.01; In re Estate of Usiak, 2007-Ohio-3038,
¶ 35 (7th Dist.). If the guilty party is a fiduciary, the probate court shall render judgment
14. “against the fiduciary for the amount of the moneys or the value of the personal property
or choses in action concealed, embezzled, conveyed away, or held in possession, together
with penalty and costs[.]” R.C. 2109.52. However, if they are not the fiduciary, the
probate court “shall render judgment in favor of the fiduciary * * * for the amount of the
moneys or value of the personal property or choses in action concealed, embezzled,
conveyed away, or held in possession, together with ten percent penalty and all costs of
the proceeding or complaint, except that the judgment shall be reduced to the extent of
the value of anything specifically restored or retuned in kind as provided in this section.”
Id. (emphasis added). Therefore, under the plain language of the statute, the reduction in
judgment for assets that are restored or returned to the estate is not applicable when the
fiduciary of an estate is found guilty of concealing its assets.
{¶ 26} Here, it is undisputed that William was the executor of Frances’s estate
and, therefore, a fiduciary under the statute. The trial court, relying on the parties’
stipulation as to the value of the concealed assets at trial, determined that William
concealed $225,338.92 from Frances’s estate. Pursuant to R.C. 2109.52, the trial court
was obligated to enter judgment against William in that amount plus a 10% penalty and
costs. William, as fiduciary, was not entitled to any reduction in the amount of the
judgment rendered against him pursuant to R.C. 2109.52 based on the alleged recovery of
those assets by the estate through their placement in Frances’s trust.10 Therefore, the trial
10 William argues that all of the cash assets he was determined to have concealed from Frances’s estate were placed into Frances’s trust and are recoverable, resulting in a lack of damage to the estate from their concealment. Peter and Werner dispute this 15. court did not err in rendering judgment against William for the full amount of the
concealed assets.
{¶ 27} Certainly, whether the trust has been made whole, or whether those assets
have been properly recovered by the estate may be issues that need to be addressed in
future proceedings. However, as both parties acknowledge, this concealment action is a
limited proceeding and any litigation related to Frances’s trust is outside the scope of this
appeal. The underlying concealment action was “a summary means, inquisitorial in
nature, to recover specific property or proceeds or value thereof belonging to [Frances’s
estate].” The trial court rendered its judgment on that limited proceeding in accordance
with the statute and William has not identified any bases on which the trial court erred.
For these reasons, we find William’s second assignment of error not well-taken.
c. The trial court erred in granting Peter and Werner’s attorney’s fees without first conducting a hearing before granting the award.
{¶ 28} In his third assignment of error, William argues that the trial court erred in
granting Peter and Werner their attorney’s fees without first conducting a hearing. He
argues that Sup.R. 71(C) required the trial court to conduct an evidentiary hearing prior to
awarding attorney’s fees. Since no hearing was held, he argues, the trial court erred in
awarding Peter and Werner their attorney’s fees.
conclusion, arguing that whether the estate assets were ever placed into the trust is an open question to be determined in litigation pending in the General Division of the Erie County Court of Common Pleas. Because the statute does not entitle William, a fiduciary, to an offset in the judgment for any assets that may be recoverable from the trust, and because the trust matter is not part of this appeal, we do not address the merits of the parties’ arguments on this issue. 16. {¶ 29} We review the award of attorney’s fees for an abuse of discretion. Dunbar
v. Dunbar, 68 Ohio St.3d 369 (1994). An abuse of discretion occurs when the trial
court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1993). “An abuse of discretion may be found where the trial court
applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.” B.M. v. H.L., 2015-Ohio-2444, ¶ 8 (6th Dist.), citing
Thomas v. Cleveland, 2008-Ohio-1720 (8th Dist.).
{¶ 30} “It is well-settled that attorney fees are not recoverable except when there
is a specific statutory provision allowing such or where “the losing party has acted in bad
faith, vexatiously, wantonly, obdurately or for oppressive reasons.” In re. Estate of
Brate, 2008-Ohio-3517, ¶ 8 (12th Dist.). There is no specific provision in R.C. 2109.52
that authorizes the award of attorney’s fees. Id. at ¶ 9. However, the trial court held in its
December 2, 2021 judgment entry that William had acted in bad faith in concealing the
assets from the estate, thereby authorizing an award of attorney’s fees.
{¶ 31} Sup.R. 71(A), specifically applying to probate actions, states that “attorney
fees in all matters shall be governed by Rule 1.5 of the Ohio Rules of Professional
Conduct.” Additionally, Sup.R. 71(C) states that “[a]ttorney fees may be allowed only if
there is a written application that sets forth the amount requested and will be awarded
only after proper hearing, unless otherwise modified by local rule.” The Erie County
Local Rules do not dispense with the hearing requirement identified in Sup.R. 71(C). It
is undisputed that the trial court did not conduct a hearing prior to awarding Peter and
Werner’s attorney fees. William argues that the trial court’s failure to conduct a hearing
17. constituted an abuse of discretion. Peter and Werner argue that the trial court was not
obligated to conduct a hearing and, even if it was, that William waived that hearing.
Neither argument is persuasive.
{¶ 32} First, Peter and Werner argue that Sup.R. 71 is limited only to an
administrator of an estate’s request for attorney’s fees. Indeed, Sup.R. 71(B), a separate
subsection of the rule, applies specifically to an administrator’s request for attorney’s
fees. However, subsections (A) and (C), the sections on which William bases his
argument, contain no such restriction. These sections have been previously held to apply
to concealment actions and not, as Peter and Werner argue, only an administrator’s
request for attorney’s fees for administration of an estate. See Neuman v. Trice, 2012-
Ohio-4206, ¶ 44 - 45. Additionally, to limit Sup.R. 71 to only attorney fee requests for
the administration of an estate would require this court to ignore the provision in Sup.R.
71(A) stating that attorney fees “in all matters” shall be governed by Rule 1.5 of the Ohio
Rules of Professional Conduct. Therefore, Peter and Werner’s argument that the trial
court was not obligated to conduct a hearing prior to awarding their fees is without merit.
{¶ 33} Peter and Werner next argue that William waived his right to a hearing at
the November 12, 2021 hearing. They cite a portion of the transcript in which the trial
court asked William if he wanted a hearing and William responded “I do not want a
hearing, your honor[.]” Absent from Peter and Werner’s citation, however, is the context
in which William declined a hearing. Throughout the November 12, 2021 hearing,
William argued that the parties had entered into a settlement agreement that did not
include an award of attorney’s fees. His statement to the trial court that he did not want a
18. hearing on attorney’s fees came immediately after his argument that the parties were
bound by the settlement agreement outlined in the trial court’s September 14, 2021 entry
and did not include attorney’s fees. His full response to the trial court’s inquiry regarding
an evidentiary hearing was “I do not want a hearing, your honor. I believe that we have
an outline of an agreement. I believe that the parties and the court should stick to the
agreement.” In the context of the hearing, William was not waiving his right to a hearing
on attorney’s fees in general but was advancing his argument that there should be no
hearing because the parties should abide by settlement agreement. We do not believe this
constitutes a waiver of William’s right to a hearing before the trial court awarded
attorney’s fees to Peter and Werner. See Revocable Living Trust of Mandel v. Lake Erie
Util. Co., 2016-Ohio-1396, ¶ 15 (6th Dist) (“a waiver is an intentional relinquishment of
a known right”).
{¶ 34} Having reviewed the record, we find that the trial court was obligated to
conduct a hearing prior to awarding Peter and Werner their attorney’s fees. William did
not waive his right to that hearing and the trial court abused its discretion in making an
award without first conducting a hearing. For these reasons, we find William’s third
assignment of error well-taken.
V. Conclusion
{¶ 35} We find William’s first and second assignments of error not well-taken.
We find William’s third assignment of error well-taken. Therefore, we affirm the trial
court’s December 2, 2021 judgment as to its denial of William’s motion to enforce
settlement and its calculation of damages against him. We reverse the trial court’s
19. judgment as to its award of Peter and Werner’s attorney’s fees. We remand this matter to
the trial court for further proceedings consistent with this opinion.
{¶ 36} The parties are ordered to split the costs of this appeal pursuant to App.R.
24.
Judgment affirmed, in part, reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Gene A. Zmuda, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
20.