[Cite as In re Guardianship of Nauth, 2018-Ohio-892.]


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

IN RE: THE GUARDIANSHIP OF                                   C.A. No.    17CA0010-M
LOREN NAUTH


                                                             APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
                                                             COURT OF COMMON PLEAS
                                                             COUNTY OF MEDINA, OHIO
                                                             CASE No.   2011 05 GI 00031


                                DECISION AND JOURNAL ENTRY

Dated: March 12, 2018



        CALLAHAN, Judge.

        {¶1}    Appellant, Shorain McGhee as the guardian of Loren Nauth (“the Guardian”),

appeals the judgment of the Medina County Common Pleas Court, Probate Division, which

denied the Guardian’s attorney fees and reduced the Guardian’s earned fees. For the reasons set

forth below, this Court affirms in part and reverses in part.

                                                        I.

        {¶2}    After considering competing applications by Loren Nauth’s wife (“Wife”) and

daughter in 2011, the probate court found Loren Nauth (“the Ward”) to be incompetent and

appointed a third-party, Shorain McGhee, as the guardian of the Ward’s person. Three years

later, Wife filed a motion to terminate the guardianship or, in the alternative, to substitute Wife

as the guardian. Wife did not assert any allegations of dereliction of duty by the Guardian as a

basis to substitute the guardian. However, around this time an article appeared in the Medina

Gazette wherein Wife complained about the guardianship and criticized the Guardian’s conduct.
                                                 2


       {¶3}    The Guardian retained counsel (“the Attorney”) to represent her in the hearing.

The probate court issued a notice to the Guardian that the guardianship would not pay the

Guardian’s legal fees. On the first day of the hearing, the Attorney filed a motion to withdraw as

counsel because the Guardian was unable to pay the legal fees. After conducting an inquiry at

the hearing, the probate court denied the motion to withdraw as counsel, but permitted the

Guardian to file a motion for reconsideration as to the payment of the legal fees.

       {¶4}     Prior to the start of the hearing, Wife clarified “that she was only seeking to

terminate the guardianship, not remove the present guardian.” In re Nauth, 9th Dist. Medina No.

15CA0025-M, 2016-Ohio-5089, ¶ 5. The hearing took place over a period of four days and the

Attorney was present on behalf of the Guardian the entire time. The probate court ultimately

denied Wife’s motion to terminate the guardianship because the Ward “‘[was] not competent’

and ‘require[d] a guardian.’” Id. Wife appealed that decision, which was affirmed. Id. at ¶ 1.

       {¶5}    The Guardian filed a motion to reconsider the payment of her legal fees through

the guardianship and submitted an application for attorney fees and guardian fees. Wife opposed

the motion to reconsider the payment of legal fees and objected to some of the guardian fees.

Following a hearing, the probate court denied attorney fees for the trial work, approved attorney

fees for the prior appeal, granted the guardian fees with the exception of $1,350.00, and reduced

the future hourly rate of the Guardian.

       {¶6}    The Guardian has timely appealed, raising one assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE COURT’S FINDING AND ORDER DENYING ATTORNEY FEES AND
       REDUCING THE GUARDIAN’S FEE WAS AN ABUSE OF DISCRETION[.]
                                                  3


       {¶7}     The Guardian asserts that the probate court abused its discretion when it denied

the Guardian’s attorney fees and reduced the Guardian’s earned fee. This Court agrees as to the

attorney fees, but disagrees as to the Guardian’s fee.

       {¶8}     A trial court’s decision regarding attorney fees and guardian fees in a

guardianship is reviewed for an abuse of discretion. In re Guardianship of Escola, 41 Ohio

App.3d 42, 47 (5th Dist.1987); In re Guardianship of Thacker, 11th Dist. Portage No. 2008-P-

0023, 2008-Ohio-5951, ¶ 17. “A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by evidence, or grossly unsound.”

(Citations and quotation marks omitted.) Tustin v. Tustin, 9th Dist. Summit No. 27164, 2015-

Ohio-3454, ¶ 21.

Attorney fees

       {¶9}     The Guardian argues that the probate court abused its discretion when it failed to

apply the three-part test in In re Wolfe, 29 Ohio Law Abs. 184 (P.C.1938), regarding the

payment of attorney fees arising from a motion to terminate the guardianship. The Guardian

relied upon this three-part test in her briefs and at the hearing requesting attorney fees.

       {¶10} In In re Guardianship of Allen, 50 Ohio St.3d 142 (1990), the Ohio Supreme

Court held that,

       [i]n an action to terminate a guardianship, the probate court should apply a three-
       part test to determine if payment of attorney fees from the guardianship estate is
       merited: whether the attorney acted in good faith, whether the services performed
       were in the nature of necessities, and whether the attorney’s actions benefited the
       guardianship.

Id. at paragraph three of the syllabus, citing In re Wolfe. Because the trial court and the appellate

court failed to apply the three-part test set forth in Wolfe, the Ohio Supreme Court remanded the
                                                  4


matter to the trial court to decide whether to grant attorney fees based upon the three-part test in

Wolfe. In re Guardianship of Allen at 146.

       {¶11} This case is akin to In re Guardianship of Allen because it involves a request for

attorney fees in a proceeding to terminate a guardianship and a probate court’s failure to apply

the three-part test in Wolfe to decide if attorney fees are merited. In this case, the trial court

made no reference to the three-part test in Wolfe and how the Guardian’s experience as an

attorney, the Guardian’s reason for hiring the Attorney, the scope of the Attorney’s

representation, and the nature of the proceedings applied to the three factors necessary for

consideration under Wolfe. Instead of deciding the merit of the attorney fees request under the

three-part test in Wolfe, the probate court ultimately denied the attorney fees because “[h]iring

trial counsel was needlessly redundant and not solely for the benefit of the ward.”

       {¶12} Based on the foregoing, the probate court abused its discretion when it failed to

apply the three-part test in Wolfe to render a decision regarding attorney fees. The Guardian’s

assignment of error as to the issue of attorney fees is sustained and the matter is remanded to the

probate court to apply the three-part test in Wolfe.

       Guardian fees

       {¶13} The Guardian contends that the probate court abused its discretion when it denied

$1,350.00 in earned guardian fees as being a double entry. The Guardian argues she testified

during the hearing that one of the December 16, 2014 entries was a mistake and the probate court

was aware of the correct date of the hearing.

       {¶14} The Guardian filed an application for payment of guardian fees incurred between

April 2014 through January 2015. Included in these time entries were four entries regarding the
                                                 5


hearing on the motion to terminate the guardianship. These entries included the following dates,

descriptions, times, and amounts:

        11/4/2014       Full hearing on Motion       3.50 [hrs.]     [$]700.00
                        to Terminate
        12/16/2014      Hearing on Motion to         6.50 [hrs.]     [$]1,300.00
                        Terminate
        12/16/2014      Hearing on Motion to         6.75 [hrs.]     [$]1,350.00
                        Terminate Guardianship
        1/27/2015       Hearing on Motion to         2.50 [hrs.]     [$]500.00
                        Terminate Guardianship

However, the transcripts reflect that the hearing occurred on November 4, 2014, November 19,

2014, December 16, 2014, and January 27, 2015.

        {¶15} In the hearing, the Guardian brought to the probate court’s attention that there was

an error in the application for guardian fees: “I do see there is something that’s incorrect. I have

two dates for December 16th, 2014. Actually, one of those should have been November 19th,

your Honor. I apologize. I made a mistake on that date.”

        {¶16} The Guardian argued that the probate court was aware of the correct dates for the

hearing and should have awarded her guardian fees for all appearances at the hearing despite her

typo. While the Guardian pointed out the error to the probate court, she did not specify at the

hearing or in a subsequent filing which of the December 16, 2014 entries was in fact for

November 19, 2014. Instead, the Guardian addressed this point for the first time in her appellate

brief, which was too late. See JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit

No. 27104, 2014-Ohio-2746, ¶ 12 (“Arguments that were not raised in the trial court cannot be

raised for the first time on appeal.”).

        {¶17} Further compounding the Guardian’s error is the fact that the court appearances

were billed for essentially identical time, but the record does not reflect identical time being

spent in court for the hearing on those days. The November 19, 2014 transcript is 94 pages,
                                                 6


whereas the December 16, 2014 transcript is 264 pages. Nor do the entries indicate that the time

spent was for anything other than attendance at the hearing.

       {¶18} The probate court questioned the Guardian at length regarding her guardian work

being in the capacity of a lay person rather than legal guardian work. The Guardian was insistent

that there was no distinction, because she was “working, as a guardian, as a lawyer in this

matter.” The Guardian testified that she was “a lawyer and [she could not] separate [her]

knowledge and [] experience from everything that [she does] when [she is] working.” Despite

the Guardian’s strong reliance on being an attorney, she made errors in recording her guardian

fees and did not correct the errors.1

       {¶19} Based on the foregoing, this Court cannot say that the probate court abused its

discretion in denying earned guardian fees of $1,350.00. The Guardian’s assignment of error as

to the issue of guardian fees is overruled.

       Other arguments

       {¶20} The Guardian also argues that the probate court exhibited “passion or bias” when

it relied upon information outside the record and incorrect information regarding the Guardian’s

other employment, and made statements regarding the Guardian’s work as a paralegal to deny

the attorney fees and the earned guardian fees. These arguments are misplaced. The probate

court only referenced these facts in support of its decision to reduce the Guardian’s hourly rate




1
  The Guardian continued to make errors relative to these dates in her appellate brief. Despite
Wife noting these errors in her appellee brief, the Guardian repeated the erroneous dates in her
reply brief. She first stated that it “should have been November 29, 2014 which was a full day of
hearing at 6.75 hours.” She then stated that the “hearing occurred on November 19, 2015.”
Based on the transcripts, both of these dates are incorrect. The first date has the wrong day,
while the second date has the wrong year.
                                                 7


for future work, and not to deny the attorney fees and past guardian fees. The Guardian,

however, did not challenge the probate court’s decision to reduce her future hourly rate. Because

this issue is not properly before this Court on appeal, we decline to address this portion of the

Guardian’s argument.

                                                III.

       {¶21} The Guardian’s assignment of error is sustained in part and overruled in part. The

judgment of the Medina County Common Pleas Court, Probate Division, is affirmed in part,

reversed in part, and this matter is remanded for proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       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.
                                                  8


       Costs taxed equally to both parties.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



CARR, J.
CONCURS.

HENSAL, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶22} I respectfully dissent, in part, from the majority’s resolution as to the issue of

attorney fees. While the probate court in this case did not cite to or set forth the three-part test in

Wolfe, it nonetheless applied the test to determine the appropriateness of an attorney fee award

arising from a motion to terminate a guardianship.

       {¶23} The probate court’s application of the Wolfe test is evident in its denial of attorney

fees on the basis that “[h]iring trial counsel was needlessly redundant and not solely for the

benefit of the ward.” In reaching this conclusion, the probate court set forth the evidence in the

record that was relevant to deciding whether the Attorney’s services were necessary as it

pertained to the motion to terminate the guardianship. See In re Guardianship of Allen, 50 Ohio

St.3d 142 at paragraphs two and three of the syllabus.

       {¶24} As such, I respectfully dissent, in part, as I find the trial court did apply the Wolfe

test and I would proceed to consider whether the probate court acted within its discretion in

refusing to award the Guardian’s trial counsel fees.

       {¶25} I concur with the remainder of the majority’s opinion.
                                         9


APPEARANCES:

SHORAIN L. MCGHEE, Attorney at Law, for Appellant.

A. CLIFFORD THORNTON, JR., Attorney at Law, for Appellee.
