[Cite as In re Estate of Hards, 2017-Ohio-7290.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


ESTATE OF: BERTINA HARDS,                          :   OPINION
DECEASED.

                                                   :   CASE NO. 2016-G-0102




Civil Appeal from the Geauga County Court of Common Pleas, Probate Division.
Case No. 02 PE 000194.

Judgment: Reversed and remanded.


Frank J. Witschey, Craig S. Horbus, and Daniel E. Kandray, Witschey Witschey &
Firestine Co., LPA, 405 Rothrock Road, Suite 103, Akron, OH 44321 (For Appellant).

Jacqueline Adams, pro se, P.O. Box 234, Novelty, OH 44072 (Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     The law firm of Witschey Witschey & Firestine Co., LPA (“WWF”)

(appellant herein) appeals from the Geauga County Court of Common Pleas, Probate

Division’s, denial of WWF’s application for attorney fees.      Jacqueline Adams, as

administrator of the Estate of Bertina Hards (appellee herein), has not filed a brief on

appeal. For the following reasons, the probate court’s judgment is reversed, and the

matter is remanded.

        {¶2}     Bertina Hards’ estate was opened in the probate court in 2002; Ms.

Adams was appointed the administrator. The law firm of Michael A. Shore Co., L.P.A.
(“Shore”), filed a lawsuit in the Geauga County Court of Common Pleas against Ms.

Adams, as the estate administrator, and against Ms. Adams and Kenneth Adams,

individually, seeking payment for legal services.1 In 2004, the Adamses moved for

summary judgment and sought a determination regarding whether Shore’s claims were

frivolous. Shore, supra, at ¶10. The final hearing in that matter did not take place until

2015.     Id. at ¶15.     On August 20, 2015, the common pleas court found Shore’s

complaint was frivolous and awarded the Adamses $10,000.00 as reasonable

compensation for the expenses they incurred as a result. Id. at ¶17.

        {¶3}    The Adamses filed a notice of appeal, pro se, from the common pleas

court’s decision, and Shore filed a cross-appeal.                 Id. at ¶1.     This court issued a

judgment entry on December 28, 2015, which held the Adamses were only permitted to

proceed on appeal in their individual capacities, not on behalf of the estate, as they are

not licensed counsel in Ohio.             Citing Kinasz v. S.W. Gen. Health Ctr., 8th Dist.

Cuyahoga No. 100182, 2014-Ohio-402, ¶14 (“Under Ohio law, a non-attorney personal

representative of an estate may not litigate claims on behalf of the estate pro se

because allowing a pro se litigant to represent others would constitute the unauthorized

practice of law.”); see also R.C. 4705.01.

        {¶4}    In the case sub judice, WWF represents it was hired by the estate on an

hourly fee basis to resolve procedural issues in the previous appeal, including Ms.

Adams’ inability to represent the estate pro se, and that no portion of the fee agreement

involved contingent fees.



1. For a complete factual recitation of the litigation between Ms. Adams, et al., and Michael A. Shore Co.,
L.P.A., see this court’s opinion in Michael A. Shore Co., L.P.A. v. Estate of Hards, 11th Dist. Geauga No.
2015-G-0038, 2017-Ohio-7123.


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       {¶5}     On June 27, 2016, WWF filed an administrative claim in the probate court,

providing notice of its performance of legal services on behalf of the estate in appellate

case No. 2015-G-0038, which occurred prior to this court dismissing the estate from that

appeal.     WWF requested that the probate court allow and instruct Ms. Adams, as

administrator of the estate, to pay its counsel fees from estate assets. WWF attached a

copy of the bill for the court’s reference, which totaled $9,851.26.        Ms. Adams, as

administrator, filed a brief in opposition to WWF’s application for fees.

       {¶6}     WWF and the Adamses appeared before the probate court on October 18,

2016. WWF requested the court allow it to present evidence in support of its application

for fees.     The court recessed to research whether the Adamses were permitted to

oppose the claim pro se. Upon return to the bench, the probate court stated: “I did have

a chance to remind myself that this is a claim by the Witschey Law Firm against the

Estate for attorney’s fees that were not – for attorney services that were not submitted

to or approved by this Court. As far as I’m concerned, that’s game, set, and match.

Your motions are denied.” Upon WWF’s objection, the probate court stated: “You can’t

run up a tab by providing legal services to an administrator without coming through the

Court to get those services approved. You didn’t do it. Your motion’s denied. You

want to take it up, you know where to go.” No more discussion was had on the record.

       {¶7}     The probate court issued an entry to this effect on October 27, 2016. It

held, in relevant part: “The Probate Court was not informed of the appellate action and

was not asked to approve the estate’s retention of attorney Witschey prior to his

providing legal services. Moreover, the Court did not approve the estate’s retention of

attorney Witschey or his firm. Therefore, attorney Witschey’s administrative claim is




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denied.” The probate court cited no case law, statutory law, or rule in support of its

decision.

       {¶8}   WWF was permitted to file certain documents in support of its application

for fees under seal.

       {¶9}   WWF had also requested findings of fact and conclusions of law, which

the probate court denied on November 4, 2016. In its entry, the court stated it had

“provided sufficient basis, to wit: The applicant did not get attorney fees approved [by]

the Court, pursuant to the Ohio statute and the Court’s local rules. Therefore, the Court

previously rendered its decision, and that decision sufficiently set forth the basis of its

ruling.” It referenced, for the first time, that it had denied the application on the authority

of R.C. 2117.25 and its own Local Rule 11.

       {¶10} WWF filed a timely appeal and assigns one error for our review:

       {¶11} “The probate court abused its discretion by denying appellant, [WWF’s,]

claim for attorney fees because of an incorrect application of Geauga County Probate

Court Local Rule 11 and by not allowing [WWF] to present evidence as to the

reasonableness of its attorney fees.”

       {¶12} On appeal, WWF represents it was hired by the estate on an hourly fee

basis to resolve procedural issues in the previous appeal, including Ms. Adams’ inability

to represent the estate pro se, and that no portion of the fee agreement involved

contingent fees.    The documents submitted to this court under seal support these

representations. WWF asserts the trial court abused its discretion by refusing to allow it

to present evidence in support of its application for attorney fees at the October 18,




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2016 hearing and by misapplying the legal authority cited in its November 4, 2016 entry,

to wit: R.C. 2117.25 and Geauga County Probate Court Local Rule 11.

      {¶13} “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, citing In re

Estate of Murray, 11th Dist. Trumbull No. 2004-T-0030, 2005-Ohio-1892, ¶20, citing

R.C. 2113.36. The reasonableness of a fee is to be determined by the court and is

governed by the Ohio Rules of Professional Conduct. See Sup.R. 71(A).

      {¶14} “The allowance of fees for services rendered by attorneys employed by an

executor or administrator is a matter within the discretion of the probate court and we

will not disturb the court’s determination save an abuse of discretion.” Bretschneider,

supra, at ¶15, citing In re Estate of Wirebaugh, 84 Ohio App.3d 1, 4-5 (6th Dist.1992).

An abuse of discretion is the “‘failure to exercise sound, reasonable, and legal decision-

making.’”   State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶62,

quoting Black’s Law Dictionary 11 (8th Ed.2004).

      {¶15} Questions of law (such as the proper application of a local rule), on the

other hand, are reviewed de novo. Wren v. Tutolo, 11th Dist. Geauga No. 2012-G-

3104, 2013-Ohio-995, ¶8, citing Haskett v. Haskett, 11th Dist. Lake No. 2011-L-155,

2013-Ohio-145, ¶17.      Thus, this court conducts an independent review without

deference to the trial court’s decision. Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio

App.3d 704, 711 (4th Dist.1993).

      {¶16} Neither the Ohio statute nor the Local Rule cited by the probate court

requires an attorney to obtain leave of court prior to providing legal services for the




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administration of an estate.       R.C. 2117.25(A)(1) provides, “Every executor or

administrator shall proceed with diligence to pay the debts of the decedent and shall

apply the assets in the following order: (1) Costs and expenses of administration[.]” The

Local Rule states that “[f]ees shall be paid only after they have been approved by the

Court.” Loc.R. 11(1)(A). The probate court must approve those fees as “based upon

the actual services performed by the attorney, and the reasonable value of services.”

Id. Additionally, the probate court is required to hold a hearing on an application for

counsel fees when the attorney is “unable to secure the fiduciary’s consent” or when the

application for fees “appears excessive to the Court.” Loc.R. 11(1)(C)-(D). The only

time counsel must obtain approval from the probate court prior to providing services is

“[p]rior to a fiduciary entering into a contingent fee contract with an attorney for

services.” Sup.R. 71(I).

      {¶17} The probate court’s refusal to allow the presentation of evidence or to

even consider WWF’s application at the October 18, 2016 hearing was an abuse of

discretion. The documents under seal indicate the fee contract did not include any

contingent fees, thus pre-approval was not required by the probate court. The probate

court’s subsequent attempt to justify its decision by referencing R.C. 2117.25 and Local

Rule 11 amounted to an improper application of the law.

      {¶18} The judgment of the Geauga County Court of Common Pleas, Probate

Division, is reversed. This matter is remanded for the probate court to hold a hearing on

the application for attorney fees and to approve those fees that it finds comply with state

law and are “based upon the actual services performed by the attorney, and the

reasonable value of services,” pursuant to Geauga County Probate Court Local Rule




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11. This court does not have the authority to entertain WWF’s request for a visiting

judge assignment upon remand. See R.C. 2701.03(A) (“any party to the proceeding or

the party’s counsel may file an affidavit of disqualification with the clerk of the supreme

court in accordance with division (B) of this section”).



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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