[Cite as In re Estate of Green v. Alter, 2019-Ohio-2862.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



IN THE MATTER OF THE ESTATE                         :       JUDGES:
OF MATTHEW GREEN, DECEASED                          :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. Craig R. Baldwin, J.
         Plaintiff-Appellant                        :       Hon. Earle E. Wise, Jr., J.
-vs-                                                :
                                                    :
MITCHELL ALTER AND                                  :       Case No. 18-CA-70 &18-CA-106
MARK FROEHLICH                                      :
                                                    :
        Defendant-Appellees                         :       OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Licking County
                                                            Probate Court, Case No. 2017-0562



JUDGMENT:                                                   Affirmed




DATE OF JUDGMENT:                                           July 11, 2019


APPEARANCES:

For Plaintiff-Appellant                                     For Defendant-Appellee

ALETHA M. CARVER                                            PAUL GIORGIANNI
4775 Munson Street NW                                       1538 Arlington Avenue
P.O. Box 36963                                              Columbus, OH 43212-2710
Canton, OH 44735-6963

PATRICK D. MAGUIRE                                          GUARDIAN AD LITEM
1650 Lake Shore Drive                                       S. CRAIG PREDIERI
Suite 150                                                   925 River Road
Columbus, OH 43204                                          Granville, OH 43023
Licking County, Case No. 18-CA-70 &18-CA-106                                              2

Wise, Earle, J.

       {¶ 1} Administrator-Appellant Alexis Green appeals the July 31, 2018 judgment

of the Licking County Probate Court approving requested attorney fees. Appellees are

attorneys Mitchel Alter and Mark Froehlich.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2}   On October 9, 2016, decedent Matthew Green was a passenger in Douglas

Matthew Morrison's race-modified Audi R8. Morrison was believed to be travelling well in

excess of 100 miles per hour when he lost control, crashed the Audi, and killed Green.

The air bags in the vehicle never deployed.

       {¶ 3} The men were close friends. Green was a mechanic specializing in high-

performance vehicles, and the two shared a love for "high-end exotic cars." Following the

crash, when officers from the New Albany Police Department spoke with appellant, who

is Green's surviving spouse, she advised there was nothing officers could tell her that she

did not already know. She advised she knew what kind of car they were driving, that they

liked driving it for obvious reasons, and that it could have been either one of them driving

that day, so she did not blame Morrison for her husband's death.

       {¶ 4} Before seeking counsel, in January 2016, appellant met with a

representative of Westfield Insurance, Morrison's insurer. The representative provided

appellant with an advance payment for expenses, but advised her that there could be no

discussion of settlement until she opened an estate for Green. Appellant was not the sole

potential beneficiary. Beneficiaries included Green's two minor children as well as his

parents.
Licking County, Case No. 18-CA-70 &18-CA-106                                              3


       {¶ 5} On May 1, 2017, appellant spoke with appellees Alter and Froehlich

regarding representation for wrongful death and survivorship action as well as probate.

Appellant shared her biggest concern with the attorneys -- that she did not want Morrison

to go to jail and wished no criminal charges upon him. She further advised she would be

satisfied with less than Morrison's policy limits and desired no personal payment from

Morrison as he had already pledged his willingness to take care of her and her children

for the rest of their lives. Appellant did not sign a contract with Alter and Froehlich that

day. She was, however advised that the typical attorney fee was one-third of any

recovery.

       {¶ 6} On June 5, 2017, Attorney Steve Teetor, counsel for Morris through

Westfield, disclosed Morrison's policy limits of $2.5 million. Appellant signed a probate

fee contract with attorney Froehlich only on July 27, 2017, and decedent's estate was

opened on August 1, 2017. On August 15, 2017, however, appellant signed a contingent

fee contract to cover the services of both attorneys which stated the attorneys would

receive one-third of the gross amount recovered whether “by settlement, arbitration, civil

suit, trial or any other manner.” On September 1, 2017, in accordance with Sup.R. 71(I),

the contingent fee contract was filed with and approved by the probate court.

       {¶ 7} On August 31, 2017, criminal charges were filed against Morrison,

specifically, one count of vehicular manslaughter, a misdemeanor of the second degree.

Morrison's arraignment took place on September 28, 2017. He entered a no contest plea

the same day and received no jail time.

       {¶ 8} On October 6, 2017 counsel for Westfield Insurance proposed mediation to

settle the wrongful death action. On October 9, attorney Alter demanded policy limits of
Licking County, Case No. 18-CA-70 &18-CA-106                                           4


$2.5 million plus $500,000 personal payment. On October 24, Westfield offered policy

limits and appellant directed Alter to accept the same on October 25.

       {¶ 9} On May 9, 2018, appellant through Froehlich, filed with the probate court an

Application to Approve Settlement and Distribution of Wrongful Death and Survival

Claims. The application indicated attorney fees were disputed. The settlement Statement

set forth the following:



       Funds Received:                    $2,500,000.00

       Less Advance to Alexis Green:         - 20,816.87

                                          $2,479,183.13

       Attorney Fees:                        - 826,394.37

       Medical Expenses:

                            $13,171.69

       Attorney Expenses

       David Boyd, PhD      $ 2,200.00

       IOD, Inc.                 58.00

       Auto Check Report         26.99

       Filing Fees              325.00

                            $2,610.39

       Total Expenses:       $15,782.08

       Balance to Client:    $1,637,006.68
Licking County, Case No. 18-CA-70 &18-CA-106                                              5


       {¶ 10} Also in May, 2019 the court appointed a guardian ad litem for appellant’s

two minor children.

       {¶ 11} On June 1, 2018 attorneys Froehlich and Alter filed a Rule 71(G) Statement

of Services Rendered. On June 15, 2018, appellant through new counsel filed a response

on June 15, 2018 arguing that the agreed upon one-third attorney’s fee was per se

unreasonable.

       {¶ 12} On June 19, 2018, a hearing was held on the matter. Appellees each

testified on their own behalf and presented testimony from attorney Teetor and expert

testimony from Attorney Michael Rourke. Appellant testified on her own behalf. At the

conclusion of the hearing the trial court found the requested fee was neither illegal nor

thoroughly excessive. On July 31, 2018, the trial court issued its Decision and Final Order

which approved the attorney’s fees and expenses of attorneys Froehlich and Alter, but

did not rule on the May 9, 2018 application to approve settlement and distribution.

       {¶ 13} Appellant filed a timely notice of appeal initiating case number 18CA-0070.

On October 22, 2018, we granted appellant’s motion to remand the matter to the probate

court to rule on the May 9, 2018 application. On November 1, 2018, the probate court

filed its entry approving settlement and distribution of wrongful death and survival claims.

The trial court stayed determination of distribution pending the outcome of appellant’s

appeal. On November 9, 2018, appellant filed a second notice of appeal initiating case

number 18CA-0106. On December 4, 2018, we consolidated the cases. The matter is

now before us for consideration. Appellant raises three assignments of error as follow:

                                             I
Licking County, Case No. 18-CA-70 &18-CA-106                                            6


      {¶ 14} "UNDER PROFESSIONAL CONDUCT RULE 1.5, THE PROBATE COURT

ABUSED ITS DISCRETION WHEN IT FOUND APPELLEES' REQUESTED ATTORNEY

FEES IN THE AMOUNT OF $826,394.37 REASONABLE AND NOT EXCESSIVE AS

REQUESTED        IN   THE    APPLICATION           TO   APPROVE    SETTLEMENT        AND

DISTRIBUTION OF WRONGFUL DEATH AND SURVIVAL CLAIMS."



                                            II

      {¶ 15} "THE PROBATE COURT'S DECISION CONCLUDING ATTORNEY FEES

IN THE AMOUNT OF $826,394.37 ARE REASONABLE AND NOT EXCESSIVE IS

AGAINST THE MANIFEST WEIGHT OF EVIDENCE."

                                            III

      {¶ 16} "THE PROBATE COURT ABUSED ITS DISCRETION WHEN IT

DETERMINED THE REQUESTED ATTORNEY FEES ARE REASONABLE AND NOT

EXCESSIVE WHERE ATTORNEY FROEHLICH BREACHED FIDUCIARY DUTIES

OWED MRS. GREEN THEREBY RESULTING IN A FAILURE OF SERVICES."

                                           I, II

      {¶ 1} We address appellant’s first and second assignments of error together. In

her first assignment of error, appellant contends the trial court abused its discretion in

finding the requested attorney fees reasonable because appellees failed to produce

adequate evidence to demonstrate the one-third contingency fee was reasonable and not

excessive pursuant to Professional Conduct Rule 1.5(a). Appellant’s second assignment

of error argues the probate court’s decision finding the attorney fees reasonable and not

excessive is against the manifest weight of the evidence. We disagree.
Licking County, Case No. 18-CA-70 &18-CA-106                                            7


                                     Attorney’s Fees

      {¶ 2} Prof.Cond.R. 1.5(a) provides:



            (a) A lawyer shall not make an agreement for, charge, or collect an

            unreasonable fee or an unreasonable amount for expenses. The

            factors to be considered in determining the reasonableness of a fee

            include the following:

            (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;

            (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; and

            (8) whether the fee is fixed or contingent.”
Licking County, Case No. 18-CA-70 &18-CA-106                                             8


      {¶ 3} As set forth in our statement of facts, the instant case involved a contingent

fee contract which provided Alter and Froehlich would receive one-third of whatever gross

amount was recovered “whether by settlement, arbitration, civil suit, trial, or any other

manner.” Appellee’s exhibit C. On the subject of contingent fee contracts, the 6th District

Court of appeals in Landis v. Grange Mut. Ins. Co. 6th Dist. No. E-96-034, 1997 WL 77546

(Feb. 21, 1997) stated:



             Contingency fee agreements serve an important function in

             American life. Such agreements permit persons of ordinary means

             access to a legal system which can sometimes demand

             extraordinary expense. Central Trust Co. v. Warburg (1995), 104

             Ohio App.3d 186, 190 [661 N.E.2d 275]. The mechanism by which

             this is accomplished is a contract between client and attorney

             whereby some or all of the risk involved in litigation is shifted to the

             attorney. The quid pro quo for relieving the client of this risk is that

             the agreement normally calls for the attorney to receive a percentage

             of any possible recovery. This would result, generally, in a somewhat

             greater compensation than the attorney might ordinarily receive. * *

             * To be sure, the contingency percentage is an arbitrary figure but,

             like liquidated damages in other contracts, is proper because it is a

             bargained for result.
Licking County, Case No. 18-CA-70 &18-CA-106                                                 9


       {¶ 4} It is well recognized that the typical contingent fee is one-third of the total

recovery. Landis, fn. 5.

       {¶ 5} In In re Estate of Johnson, 178 Ohio App.3d 594, 2008-Ohio-5328, 899

N.E.2d 198 at ¶ 64, this court noted:



              A probate court is not bound by a prior agreement of the parties and

              may, in fact, when necessary, alter and reduce a contingent-fee

              agreement. In re Estate of York (1999), 133 Ohio App.3d 234, 243,

              727 N.E.2d 607. The payment of reasonable attorney fees lies within

              the sound discretion of the probate court. In re Estate of Fugate

              (1993), 86 Ohio App.3d 293, 298, 620 N.E.2d 966. An abuse of

              discretion will be found where the probate court's decision is not

              supported by the record or is contrary to law. In re Keller (1989), 65

              Ohio App.3d 650, 655, 584 N.E.2d 1312. Thus, the decision of the

              probate court must be based upon evidence of the actual services

              performed by the attorneys and upon the reasonable value of those

              services. Id.



                                      Manifest Weight

       {¶ 6} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
Licking County, Case No. 18-CA-70 &18-CA-106                                               10


lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme

Court of Ohio explained the following:



              Weight of the evidence concerns "the inclination of the greater

              amount of credible evidence, offered in a trial, to support one side of

              the issue rather than the other. It indicates clearly to the jury that the

              party having the burden of proof will be entitled to their verdict, if, on

              weighing the evidence in their minds, they shall find the greater

              amount of credible evidence sustains the issue which is to be

              established before them. Weight is not a question of mathematics,

              but depends on its effect in inducing belief." (Emphasis sic.)



       {¶ 7} In weighing the evidence, however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St

.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

       {¶ 8} The probate court’s judgment entry included an extensive analysis finding

the one-third contingency fee was reasonable and not excessive, and we agree with the

probate court’s analysis.

       {¶ 9} In the matter before us, it is undisputed that the contingent fee contract was

signed by all parties and properly filed with the probate court. The probate court noted
Licking County, Case No. 18-CA-70 &18-CA-106                                              11


that before signing the contract, appellant consulted with other attorneys who also quoted

a fee of one-third the gross amount recovered. The court further found that appellant was

not the sole potential beneficiary, thus counsel needed to consider the interests of all

involved, not just appellant’s wishes regarding Morrison’s liability. The court further found

that the case was far more complicated that it appeared on its face due to statements

made by appellant to police, possible assumption of the risk and/or comparative

negligence issues, a possible product liability case involving the failure of the airbags, an

issue regarding lapse in proper protocol by responding EMS personnel, and collusion

between appellant and Morrison to “shut down” the wrongful death claim and keep the

claim at policy limits to protect Morrison’s personal assets.

       {¶ 10} The probate court was further persuaded by Attorney Rourke, appellee’s

expert witness, who testified a one-third contingency fee is standard practice in the legal

profession, and a means by which a plaintiff can pursue meritorious claims which

otherwise might not be pursued. Rourke testified he had reviewed the contingency

contract in this matter and found it was a standard contract that he himself would use.

Rourke testified the attorneys worked with appellant for two months before a contract was

signed, did not charge an extra fee for Froehlich’s services, and thus he saw no evidence

of any attempt to take advantage of appellant. Although appellant complained that Alter

did not spend enough time on the case to warrant a one-third fee, Rourke testified that

contingency fees are results oriented rather that time oriented and that Alter obtained an

excellent result for appellant despite the slew of landmines the case presented.
Licking County, Case No. 18-CA-70 &18-CA-106                                           12


       {¶ 11} Appellant presented no testimony to contradict appellee’s expert, and

testified she made a conscious decision to hire appellees and understood the fee would

be one-third of the gross amount recovered plus out-of-pocket expenses.

       {¶ 12} Upon due consideration of appellant’s arguments, we find the probate court

did not abuse its discretion in finding the requested fees reasonable and not excessive,

nor are the court’s findings against the manifest weight of the evidence. We therefore

overrule the arguments contained in appellant’s first two assignments of error.

                                             III

       {¶ 13} Appellant’s final assignment of error essentially raises an ineffective

assistance of counsel argument. Appellant argues the probate court abused its discretion

when it found the attorneys fees reasonable and not excessive because attorney

Froehlich breached fiduciary duties owed to appellant which resulted in a failure of

services. Specifically, appellant contends Froehlich was unable to advise her as to

whether it was in her best interest to sign the contingency agreement for the wrongful

death claim because he was a party to the agreement and further breached his fiduciary

duty to her by testifying against her at the hearing on attorney’s fees.

       {¶ 14} Our review of the record reveals appellant never raised this issue in her

motion to determine the reasonableness of the contingency fee, nor was it developed

during the hearing. Thus the trial court never ruled on the issue. The matter is therefore

not properly before us here on appeal.

       {¶ 15} The final assignment of error is overruled.

       {¶ 16} The judgment of the Licking County Probate Court is affirmed.
Licking County, Case No. 18-CA-70 &18-CA-106   13



By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




EEW/rw
