[Cite as Gehlmann v. Gehlmann, 2014-Ohio-4990.]


STATE OF OHIO                  )                       IN THE COURT OF APPEALS
                               )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA               )

JAMES C. GEHLMANN and FRANCES
M. GEHLMANN (Susan L. Funk,                            C.A. No.    13CA0015-M
Guardian)

       Appellant
                                                       APPEAL FROM JUDGMENT
       v.                                              ENTERED IN THE
                                                       COURT OF COMMON PLEAS
JAMES C. GEHLMANN, et al.                              COUNTY OF MEDINA, OHIO
                                                       CASE No.   2011-03-CA-00010
       Appellees
                               DECISION AND JOURNAL ENTRY

Dated: November 10, 2014



       HENSAL, Judge.

       {¶1}    Appellant, Susan L. Funk, in her capacity as guardian of James C. Gehlmann and

Frances M. Gehlmann, appeals a judgment of the Medina County Court of Common Pleas

Probate Division. For the following reasons, this Court affirms.

                                                  I.

       {¶2}    Mr. and Mrs. Gehlmann owned real estate located at 905 Seasons Pass Drive in

Brunswick Hills Township. In 2005, the Gehlmanns granted a mortgage on the property to BAC

Home Loans Servicing, LP (“BAC”). Ms. Funk was appointed guardian of the person and estate

of both Mr. and Mrs. Gehlmann in 2011. Approximately one month after her appointment as

guardian, Ms. Funk filed a complaint seeking the court’s authority to sell the property as the

“maintenance and upkeep of [the] * * * property [had] become a burden upon the [Gehlmanns’]
                                                2


estate[.]” BAC answered and pleaded its mortgage lien in the amount of $177,928.94.1 The

court ordered the property sold at a private sale in the amount of $177,900. The net proceeds

available for distribution after the payment of the closing costs were $159,558.40. Ms. Funk

filed a motion under Revised Code Section 2127.38 to distribute the net proceeds of the sale.

Therein, she sought to pay her law firm $20,000 for fees, which was discounted from the total

billed amount of $24,677.50, prior to satisfaction of BAC’s lien. The requested fees included

payment for services rendered in providing care to the Gehlmanns in Ms. Funk’s capacity as

their guardian. The fees also included preparation of paperwork and attendance at hearings in

the guardianship cases, conversations and correspondence with creditors other than BAC, and

meetings with Mr. and Mrs. Gehlmann and others concerning their future living arrangements.

Under Ms. Funk’s motion, BAC would receive $138,928.15 in satisfaction of its lien.

       {¶3}    BAC opposed Ms. Funk’s motion on the basis that only the attorney’s fees

associated with the sale of the property should be entitled to priority over its lien. It advocated

that the court should reduce the attorney’s fee portion to $3,700 which, by its calculations, was

incurred in connection with the land sale. Ms. Funk argued that BAC’s assertion was founded on

an overly narrow construction of Revised Code Section 2127.38 that restricted the court’s ability

to determine the appropriate amount of fees within the unique confines of a guardianship case.

No formal request for fiduciary fees was filed by Ms. Funk in the land sale proceeding. The

court’s magistrate issued a decision that approved Ms. Funk’s requested attorney’s fees in the




       1
          We note that Bank of America is the named defendant in the complaint. The parties and
the trial court reference Bank of America and BAC Home Loans Servicing, LP at various points
throughout the case. At the point in the proceedings where there is a brief in opposition filed to
the guardian’s motion to distribute, it is filed by Bank of America, N.A. as successor by merger
to BAC Home Loans Servicing, LP. The order of distribution lists only Bank of America, N.A.
                                                3


amount of $20,000 after reviewing the itemized bill and deducting several charges that the

magistrate found were not related to the land sale proceeding.

       {¶4}    BAC filed an objection to the magistrate’s decision and Ms. Funk filed a response

to BAC’s objection. After a non-oral hearing, the court sustained BAC’s objection and ordered

that $3,700 in attorney’s fees were rendered in connection with the land sale and were entitled to

priority of payment before BAC’s lien. Ms. Funk appealed and raises two assignments of error

for this Court’s review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE JUDGMENT ENTRY DATED FEBRUARY 26, 2013[,] SUSTAINING
       DEFENDANT’S OBJECTION AND REDUCING ATTORNEY FEES IN A
       LAND SALE PROCEEDING MUST BE REVERSED BECAUSE IT IS BASED
       ON AN IMPROPER ANALYSIS OF THE RELEVANT STATUTE, TO WIT:
       R.C. 2127.38.

       {¶5}    Ms. Funk argues in her first assignment of error that the trial court incorrectly

applied Revised Code Section 2127.38 in sustaining BAC’s objection to the magistrate’s

decision. We disagree.

       {¶6}    BAC maintains that this Court should review the trial court’s judgment under an

abuse of discretion standard since it was reviewing a magistrate’s decision. We note that,

“[a]lthough the trial court has discretion when finding facts and applying those facts to the law,”

the central issue in Ms. Funk’s appeal concerns the trial court’s interpretation and application of

a statute. Swedlow v. Riegler, 9th Dist. Summit No. 26710, 2013-Ohio-5562, ¶ 7, quoting Foster

v. Foster, 9th Dist. Wayne No. 09CA0058, 2010-Ohio-4655, ¶ 6. Accordingly, this Court

reviews such judgments de novo. See In re. Piesciuk, 9th Dist. Summit No. 26274, 2012-Ohio-

2481, ¶ 6. “A de novo review requires an independent review of the trial court’s decision
                                                     4


without any deference to the trial court’s determination.” Id., quoting State v. Consilio, 9th Dist.

Summit No. 22761, 2006-Ohio-649, ¶ 4.

       {¶7}    Proceedings initiated by a guardian to sell land are governed by Chapter 2127 of

the Ohio Revised Code. Section 2127.38 sets forth the manner in which the proceeds from a

land sale should be distributed. It provides that:

       The sale price of real property sold following an action by a[ ] * * * guardian
       shall be applied and distributed as follows:

           (A) To discharge the costs and expenses of the sale, including reasonable
           fees to be fixed by the probate court for services performed by attorneys
           for the fiduciary in connection with the sale, and compensation, if any, to
           the fiduciary for services in connection with the sale as the court may fix,
           which costs, expenses, fees, and compensation shall be paid prior to any liens
           upon the real property sold and notwithstanding the purchase of the real
           property by a lien holder;

           (B) To the payment of taxes, interest, penalties, and assessments then due
           against the real property, and to the payment of mortgages and judgments
           against the ward * * * according to their respective priorities of lien, so far as
           they operated as a lien on the * * * estate of the ward at the time of the sale,
           that shall be apportioned and determined by the court * * * [.]

(Emphasis added.)

       {¶8}     “[W]hen construing a statute, we first must look to the plain language of its

provisions.” Morgan v. Community Health Partners, 9th Dist. Lorain No. 12CA010242, 2013-

Ohio-2259, ¶ 33, citing Hewitt v. L.E. Myers, 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 16.

Accordingly, we must read words and phrases in context and according to grammatical rules and

common usage. Id., quoting Hewitt at ¶ 16. If the statute’s meaning is clear and unambiguous,

we apply the statute “as written.” Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510,

2010-Ohio-2550, ¶ 20, quoting Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493,

2008-Ohio-6323, ¶ 9.      “[S]tatutes ‘may not be restricted, constricted, qualified, narrowed,

enlarged or abridged; significance and effect should, if possible, be accorded to every word,
                                                   5


phrase, sentence and part of an act.’” Id. at ¶ 21, quoting Weaver v. Edwin Shaw Hosp., 104

Ohio St.3d 390, 2004-Ohio-6549, ¶ 13.

           {¶9}   Although both parties argue that the statute is not ambiguous, they disagree on the

meaning of the phrase “in connection with the sale.” Ms. Funk maintains that this phrase

requires that the court determine the reasonableness of the requested attorney’s fees on a case-

by-case basis taking into account the unique circumstances of guardianship cases wherein the

wards are residing in the subject real estate and contesting their placement in alternate living

arrangements. BAC contends that the trial court correctly interpreted the phrase to limit the

priority of attorney’s fees to only those that are attendant to the land sale case rather than those

incurred while performing the general duties of a guardian in caring for the wards and their

estates.

           {¶10} In the present case, Ms. Funk submitted a motion to distribute the net proceeds of

the sale under Section 2127.38. One of the “[c]osts of [a]dministration” listed in the motion was

$20,000 in “attorney[’s] fees” dating back to November 19, 2010, which is when Ms. Funk

initiated emergency legal proceedings to be declared the guardian of both Mr. and Mrs.

Gehlmann. We note that the land sale complaint was not filed until March 24, 2011. Ms. Funk

moved to have these fees paid under Section 2127.38(A) prior to payment of BAC’s lien under

Section 2127.38(B). The result of such a distribution was that BAC would receive only a portion

of the balance due on its mortgage.

           {¶11} In its judgment sustaining BAC’s objection to the magistrate’s decision, the trial

court found that the magistrate erroneously interpreted Section 2127.38 to allow the cost of legal

work completed both in the guardianship cases and the land sale case to be paid prior to the
                                                 6


mortgage. It found that “[t]he plain language of the statute indicates that only legal and fiduciary

services connected with the land sale receive priority over taxes and liens.”

       {¶12} Applying the principals of statutory construction to the attorney’s fees awarded in

the present case, we must first look to the plain language of the contested phrase, “in connection

with the sale.” A “connection” is defined as “the state of being connected or linked” and a

“relationship or association in thought (as of cause and effect, logical sequence, mutual

dependence or involvement).” Webster’s Third New International Dictionary 481 (1993). Thus,

we conclude that the plain language of Section 2127.38 indicates that attorney’s fees incurred “in

connection with the sale” are fees that are linked to or dependent on the land sale proceedings.

       {¶13} We also note that the plain language of the statute vests the trial court with the

authority to “fix” what it determines are reasonable attorney’s fees. R.C. 2127.38(A). This

would mean that in “fixing” the fee, the trial court would have discretion and, therefore, any

review of that determination would employ the abuse of discretion standard. The Ohio Supreme

Court has noted that the probate court’s authority to determine attorney’s fees is solely within its

jurisdiction. See In re Murnan’s Estate, 151 Ohio St. 529, 531 (1949).

       {¶14} In reviewing the magistrate’s decision, the trial court cited to the case of Aranda

v. Tammac Holdings Corp., 184 Ohio App.3d 11, 2009-Ohio-4781 (2d Dist.) in support of its

finding that only legal and fiduciary services connected to the land sale are entitled to priority of

payment under Section 2127.38(A). In Aranda, the executor of an estate filed a land sale

complaint to sell real estate in order pay the decedent’s debts, which included a mortgage owed

to the defendant. The executor sought to pay the attorney’s and executor’s fees associated with

the estate proceedings from the net proceeds of the land sale prior to payment of the mortgage.

The executor’s motion for distribution of the net proceeds separately itemized the attorney’s and
                                                 7


executor’s fees in the estate proceeding from the attorney’s fees associated with the land sale.

The Second District concluded that the trial court erred in granting payment of the estate fees

prior to payment of the mortgage as they were not earned in connection with the sale of the real

estate. Id. at ¶ 24. The Court also found that it could not determine which executor’s fees were

associated with the sale based upon the record before it and, therefore, remanded the case for a

determination by the trial court. Id. at ¶ 22.

       {¶15} We note that Aranda did not involve a statutory construction analysis of the

phrase “in connection with the sale.” There are also factual differences between this case and

Aranda which involved an executor’s rather than a guardian’s land sale. Finally, unlike the

executor in Aranda, Ms. Funk did not separately itemize her attorney’s and guardian’s fees.

       {¶16} Nevertheless, the trial court’s reliance on Aranda was well-suited and this Court

concludes that it did not err in its construction of Revised Code Section 2127.38(A) in finding

that “only legal and fiduciary services connected with the land sale receive priority over taxes

and liens.” This is a correct recitation of the applicable statute. Accordingly, Appellant’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE JUDGMENT ENTRY DATED FEBRUARY 26, 2013[,] OVERRULING
       THE MAGISTRATE’S FINDINGS RELATED TO [THE] ALLOWANCE OF
       ATTORNEY FEES MUST BE REVERSED BECAUSE IT IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE[.]

       {¶17} Ms. Funk argues in her second assignment of error that the trial court’s judgment

was against the manifest weight of the evidence. She reiterates her same argument in the first

assignment of error that the trial court’s misapplication of Section 2127.38(A) resulted in an

overly narrow interpretation of how much of her requested fees were entitled to priority over

BAC’s mortgage. Ms. Funk further maintains that the trial court should have held an oral
                                                8


hearing prior to issuing its decision and that it is unclear from the judgment what evidence it

relied on in making its decision.

       {¶18} While Ms. Funk’s assignment of error is couched in terms of challenging the

manifest weight of the evidence, the substance of her argument suggests that the trial court

lacked any evidence from which it could conclude that only $3,700 of the requested attorney’s

fees were entitled to priority before BAC’s mortgage. As such, this Court will analyze her

argument using the sufficiency standard. See Swedlow, 2013-Ohio-5562, at ¶ 29.

       {¶19} The Ohio Supreme Court has explained that “[t]he sufficiency of the evidence is

quantitatively and qualitatively different from the weight of the evidence.” Eastley v. Volkman,

132 Ohio St.3d 328, 2012-Ohio-2179, paragraph two of the syllabus. “[S]ufficiency” has been

defined as

       “a term of art meaning that legal standard which is applied to determine * * *
       whether the evidence is legally sufficient to support the [judgment] as a matter of
       law.” * * * In essence, sufficiency is a test of adequacy. Whether the evidence is
       legally sufficient to sustain a verdict is a question of law.

Id. at ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶20} Section 2127.38(A) permits the probate court to grant both attorney’s and

guardian’s fees rendered in connection with the land sale. While Ms. Funk listed the requested

expenditure as an “[a]ttorney[’s] [f]ee” and described the “[a]ttached itemized billing statement

for attorney[’s] fees,” it is clear from our review of the record that the substance of the billing

statement included both attorney’s and guardian’s fees. The majority of the itemized legal

services included on the statement attached to the motion to distribute were performed by Ms.

Funk. In addition to being the Gehlmanns’ guardian, she is also a licensed attorney.

       {¶21}    The magistrate’s decision specifically found that “this Court allows both

attorney[‘s] fees and guardian’s compensation” and discussed the various factors supporting an
                                                9


award of “attorney[’s] fees” that included services more akin to guardian’s fees. In ruling on Ms.

Funk’s motion to distribute the net proceeds of the sale, the magistrate found that the land sale

proceedings and the Gehlmanns’ guardianship cases were connected for several reasons. First,

under the court’s local rules, the land sale complaint could not be filed until the guardianship

cases were filed. See Med Prob L R 78.1(II)(A). Second, the magistrate noted that “[r]elated * *

* guardianship files are always considered by the [c]ourt whenever a hearing is heard and

decided in a civil [land sale] action.” Third, the court allows both legal and guardian’s fees for

attorneys who also serve as guardians. See Med Prob L R 71.2. Finally, the magistrate noted

that the Gehlmanns’ guardianship cases originated from a need to appoint a guardian to manage

their finances after allegations were made that they were not paying their bills, received utility

disconnection notices and had insufficient assets to pay their debt.       These findings by the

magistrate were upheld by the trial court. Absent from the record is a designation of what the

fiduciary fees in connection with the sale would be, separate and apart from the attorney’s fees.2

There was no request made upon the trial court for the separate “fixing” of fiduciary fees.

       {¶22} Ms. Funk’s request, contained within her motion to distribute, is labeled solely as

attorney’s fees, even though, clearly, she sought fiduciary fees. The magistrate, in granting the

motion to distribute, approved attorney’s fees because that is how the motion is worded, but it

also clearly awarded fiduciary fees, which the magistrate thought were permissible as being “in

connection with the sale.” R.C. 2127.38(A). Further, BAC objected to attorney’s fees but also

engaged in the argument regarding guardian’s fees as it was responsive to the magistrate’s

       2
          Further absent from the record is any indication that “Bank of America,” who was
named in the complaint or “Bank of America, NA,” who was listed in the amended entry for
distribution of the sale’s net proceeds, is a party to this land sale proceeding. In fact, BAC Home
Loan Servicing, LP filed an answer noting that it was “improperly named in [the] Complaint as
‘Bank of America’” and that Bank of America erroneously received leave to plead, but never
asked to be made a party to the proceeding.
                                                 10


decision. Finally, the trial court found merit in BAC’s objections and determined that Ms. Funk

was entitled to attorney’s fees in the amount of $3,700. It further stated that the magistrate had

dispensed with all “non-legal services” by denying those fees in its decision. The trial court’s

entry states:

        IT IS ORDERED that the objection to magistrate’s decision is sustained as to the
        amount of attorney fees to be paid under R.C. 2127.38(A). Upon independent
        review and consideration, the balance of the magistrate’s decision contains no
        error of law or fact and is adopted by the Court.

        IT IS FURTHER ORDERED that reasonable attorney fees for services performed
        in connection of the sale of the real estate shall be fixed at $3,700.

(Emphasis deleted.) The court then orders, pursuant to the motion, distribution of the proceeds

from the sale. Therein it awards Ms. Funk $3,700 in attorney’s fees associated with the sale. The

trial court next entered an amended judgment entry to distribute the net proceeds of the sale.

This entry allowed for attorney’s fees in the amount of $3,700 and gave priority for these fees

over BAC’s lien.

        {¶23} We previously addressed Ms. Funk’s assertion that the trial court misapplied the

statute in her first assignment of error and determined that it did not err. Regarding her argument

that it is unclear how the trial court decided on the $3,700 in attorney’s fees that were entitled to

priority before BAC’s mortgage, the court concluded that, other than the magistrate’s erroneous

interpretation of the statute, “the balance of the magistrate’s decision contains no error of law or

fact.” The court further stated that it undertook an independent review of the objection and

found that the reasonable attorney’s fees rendered in connection with the sale totaled $3,700. In

opposition to Ms. Funk’s motion to distribute, BAC detailed the legal fees, which amounted to

$3,700, that it argued were connected to the land sale proceedings. Regarding Ms. Funk’s

argument that the trial court should have set the matter for a hearing rather than deciding the
                                                11


objection on the record alone, we note that neither she nor BAC requested a hearing even though

the local rules allow for such a request to be made. See Med Prob L R 78.11.

       {¶24} After a careful review of the evidence, this Court concludes that there was

sufficient evidence to support the trial court’s judgment. Ms. Funk’s second assignment is

overruled.

                                                III.

       {¶25} Ms. Funk’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.


                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                               12


       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



MOORE, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶26} I respectfully dissent.

       {¶27} I agree with the majority that the trial court’s interpretation and application of a

statute is reviewed de novo. State Farm Mut. Automobile Ins. Co. v. Jiles, 9th Dist. Summit No.

26841, 2014-Ohio-2512, ¶ 21.       I further agree that statutory construction begins with a

consideration of the plain language of the provisions, which, if clear and unambiguous, must

simply be applied as written. In re K.E.M., 9th Dist. Summit No. 26307, 2012-Ohio-5652, ¶ 11.

However, if a statute is ambiguous, the court must construe it, giving effect to the legislature’s

intent. Family Medicine Found., Inc. v. Bright, 96 Ohio St.3d 183, 2002-Ohio-4034, ¶ 9. The

court may determine the intent of the legislature by considering such factors as the objective of

the statute; the circumstances under which the statute was enacted; the legislative history;

common law or former versions of the statute, including laws pertaining to the same or similar

subjects; the consequences associated with a particular construction of the statute; and the

administrative construction of the statute.    R.C. 1.49.   “‘A statute is ambiguous when its

language is subject to more than one reasonable interpretation.’” Lang v. Dir., Ohio Dept. of Job
                                                 13


& Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, ¶ 14, quoting Clark v. Scarpelli, 91 Ohio

St.3d 271, 274 (2001).

       {¶28} While both parties argue that the statute is not ambiguous, they disagree as to the

meaning of a phrase critical to determining for which services the fiduciary may receive priority

compensation. Specifically, they propose significantly different meanings for the phrase “in

connection with the sale.” It is hard to imagine how, under these circumstances, the statute

cannot be considered ambiguous. I would conclude that the phrase “in connection with the sale”

is subject to more than one reasonable interpretation and is, therefore, ambiguous. Moreover, I

would conclude that the trial court too narrowly construed the phrase.

       {¶29} I agree with the majority that inherent in the plain meaning of the statute is the

legislature’s imbuing of discretion upon the trial court in determining fees and compensation for

services performed. The trial court may “fix” those amounts as it deems reasonable and in

consideration of services performed “in connection with the sale” of the property. In this case,

the trial court construed the statute too narrowly and concluded that it had no discretion to award

more expansive fees, i.e., anything beyond fees necessary with regard to the preparation of

paperwork related to the sale of the property.

       {¶30} The legislature clearly indicated its intent to compensate the attorney for the

fiduciary and the fiduciary herself for services performed in connection with the sale of real

property prior to all others, even prior to paying taxes and assessments against the property.

Reasonably, any creditor who received payment would do so solely as a result of the efforts of

the fiduciary and/or her attorney. Priority compensation under those circumstances is just. In

this same vein, by using a broad phrase like “in connection with the sale,” the legislature

recognized that the sale of a decedent’s or ward’s real property necessarily implicates more than
                                                 14


mere preparation and execution of documents immediately related to the sale to effect a just

compensation. For example, expenses to create a guardianship imposed out of necessity in the

interest of preserving a ward’s assets would reasonably be attributed in connection with the sale

of real property. But for the existence of a guardian, an incompetent’s real property could not be

sold. In such a case, the filing of the application for a guardianship would lay the necessary

groundwork for managing assets, including selling real property.

       {¶31} By construing the phrase “in connection with the sale” too narrowly and

determining that it had no discretion to award fees or compensation beyond the scope of

documentation immediately related to the sale transaction, the trial court ignored the intent of the

legislature to justly compensate attorneys and fiduciaries for services associated with the sale.

Accordingly, I would reverse and remand the matter to the trial court to determine which

services by the attorney/guardian were associated with the sale, i.e., which services laid the

necessary groundwork for the sale. Only then could the trial court fix an amount in its discretion

to reasonably compensate the attorney for fees and the guardian for services rendered in

connection with the sale of the real property.


APPEARANCES:

S. FORREST THOMPSON, Attorney at Law, for Appellant.

JAMES S. WERTHEIM and MELANY K. FONTANAZZA, Attorneys at Law, for Appellee.
