[Cite as In re Guardianship of Beaty, 2019-Ohio-2116.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


IN RE: GUARDIANSHIP OF
NORMAN BEATY                                             :
                                                                          No. 107682
[Appeal by Richard A. Oviatt]



                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED IN PART AND
                          REVERSED IN PART
                RELEASED AND JOURNALIZED: May 30, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                   Probate Division
                              Case No. 2015 GRD 205115


                                            Appearances:

                Richard A. Oviatt, pro se

                L. Bryan Carr and Joseph                          F.   Shucofsky,   for
                appellee/cross-appellant.


LARRY A. JONES, SR., J.:

                  Appellant/cross-appellee,                  attorney Richard   Oviatt (“Oviatt”),1

appeals the decision of the Cuyahoga County Common Pleas Court, Probate


        1Oviattpassed away on December 31, 2018, while this appeal was pending. No
motion for substitution of a personal representative has been filed. See App.R. 29(A). If
there is no representative, then the proceedings shall be had as the court of appeals may
direct. Id. Counsel for appellee/cross-appellant Norma Beaty filed a notice of suggestion
Division, granting him attorney fees.        Appellee/cross-appellant, Norma Beaty

(“Beaty”), filed a cross-appeal challenging the amount of attorney fees paid to Oviatt.

For the reasons that follow, we affirm in part and reverse in part.

Procedural History and Facts

               In February 2015, Oviatt filed an application for appointment of

guardian on behalf of Beaty to oversee the affairs of her father, Norman Beaty, who

suffered from Alzheimer’s disease. After Beaty was appointed guardian, Oviatt filed

an application with probate court for attorney fees, claiming that from February 18

to July 13, 2015, he had spent 43.75 hours on the case at the rate of $200 per hour,

plus $285 in costs, for a total due of $8,750.

               Oviatt subsequently compromised his fee bill and the court granted

attorney fees in the amount of $7,503.75.

               Oviatt then filed an adversarial action on behalf of the guardianship.

The matter proceeded to a hearing. Beaty did not appear at the hearing but Oviatt

asked for the hearing to proceed in her absence. The magistrate recommended the

complaint be dismissed.

               In 2016, Beaty obtained new counsel and filed a motion to vacate the

judgment for fees. The court granted the motion after a hearing.

               Oviatt filed a second application for attorney fees in the amount of

$8,442 for services from July 15, 2015 to March 10, 2016. The matter proceeded to


of death and a motion to waive oral argument that this court granted. We direct that this
appeal proceed and be determined as if Oviatt was not deceased. See Keeton v. Telemedia
Co., 98 Ohio App.3d 405, 407, 648 N.E.2d 856 (4th Dist.1994), fn. 1.
a hearing in front of a magistrate. The magistrate subsequently issued a decision

recommending that the first application for attorney fees and expenses filed on

November 9, 2015, be granted in part and denied in part and the second application

for attorney fees and expenses filed on September 12, 2017, be denied in its entirety,

except for costs and expenses.

              With regard to the first application for attorney fees, filed in

November 2015, the magistrate found that the hours represented in the first fee bill

were unreasonable and unnecessary for a guardianship matter “that was not of

particular complexity or novelty.”      The magistrate concluded, based on the

testimony at the hearing, that Oviatt and Beaty had both acknowledged an initial fee

agreement of $2,000 with a $500 retainer, but the agreement was never reduced to

writing. The magistrate found that Oviatt failed to communicate with Beaty in

writing; failed to communicate additional fees within a reasonable time; failed to

provide any monthly or quarterly invoices; and failed to communicate the change in

the fee when it exceeded the initial $2,000 agreement. As such, the magistrate

recommended that Oviatt receive $2,000 in attorney fees plus $285 for

reimbursement of expenses for the November 2015 application.

              As to the September 2017 application, the magistrate concluded that

the work Oviatt performed was not related to establishing the guardianship and

much of the work was performed after a conflict arose between Beaty and Oviatt.

The magistrate noted that while testimony indicated Beaty was at least somewhat

aware of the work represented in the second fee bill, she did not authorize Oviatt to
conduct the work.       The magistrate found that Oviatt failed to adequately

communicate to Beaty regarding billing and progress of the case and recommended

that Oviatt only be reimbursed $642 for costs and expenses. The magistrate

concluded that Oviatt should receive $2,000 for services rendered plus $285 in

costs, less the $500 retainer, pursuant to the initial application plus $642 on the

second application, for a total of $2,427.

               Oviatt filed objections to the magistrate’s decision. The trial court

granted the objections in part, allowing attorney fees on the November 2015

application for $5,200 plus $285 for costs, minus the $500 retainer, and, on the

September 2017 application, attorney fees in the amount of $2,500 plus $642 for

costs.

               The trial court agreed with the magistrate’s findings that Oviatt billed

for excessive and unreasonable hours. The trial court further agreed that the

guardianship estate had modest means and very limited resources to pay “such

extraordinary and unreasonable attorney fees.”

               The court disagreed with the magistrate’s recommendation that the

September 2017 application for fees be denied. The court found that although it had

concerns over Oviatt’s actions, “the Guardianship did receive minimal benefit from

the services rendered in the second fee bill and therefore should be reasonably

compensated.”

               The court modified the magistrate’s decision as follows:             (1)

November 2015 application ─ 26 hours at $200 per hour for a total of $5,200, plus
$285 for costs, less the $500 retainer; and (2) September 2017 application – 12.75

hours at $200 per hour for a total of $2,550, plus $642 for costs. In sum, the trial

court ordered the guardianship to pay a total of $8,177 in attorney fees.

               Oviatt filed a notice of appeal, contesting the amount the trial court

awarded to him. He raises nine assignments of error, which will be combined for

review (see appendix).      Beaty filed a notice of cross-appeal and raises one

assignment of error, in which she argues that the trial court abused its discretion in

increasing the amount of attorney fees owed to Oviatt.

Analysis and Law

               Oviatt appeals from the trial court’s decision overruling his objections

to the magistrate’s decision. In accordance with Civ.R. 53, the trial court is required

to conduct an independent review of the case, having the “ultimate authority and

responsibility over the [magistrate’s] findings and rulings.” Hartt v. Munobe, 67

Ohio St.3d 3, 5, 615 N.E.2d 617 (1993). The trial court must decide “whether the

[magistrate] has properly determined the factual issues and appropriately applied

the law, and where the [magistrate] has failed to do so, the trial court must substitute

its judgment for that of the [magistrate].” Inman v. Inman, 101 Ohio App.3d 115,

118, 655 N.E.2d 199 (2d Dist.1995).

               In light of this discretion, a trial court’s ruling on objections to a

magistrate’s decision will not be reversed absent an abuse of discretion.

CS/RW Westlake Indoor Storage, L.L.C. v. Kesi, L.L.C., 8th Dist. Cuyahoga No.

102535, 2015-Ohio-4584, ¶ 12, citing Remner v. Peshek, 7th Dist. Mahoning No. 97-
C.A.-98, 1999 Ohio App. LEXIS 4802 (Sept. 30, 1999). This standard requires more

than a determination by the reviewing court that there was an error of judgment,

but rather that the trial court acted unreasonably, arbitrarily, or unconscionably. Id.

               A trial court must determine whether attorney fees are reasonable

based upon the actual value of the necessary services performed by the attorney, and

evidence must exist in support of the court’s determination. Koblentz & Koblentz v.

Summers, 8th Dist. Cuyahoga No. 94806, 2011-Ohio-1064, ¶ 9, citing In re Hinko,

84 Ohio App.3d 89, 95, 616 N.E.2d 515 (8th Dist.1992).           A court should then

calculate the number of hours reasonably expended and multiply that sum by a

reasonable hourly fee. Koblentz & Koblentz at id.

               The probate court may consider the factors set forth in Prof.Cond.R.

1.5, which sets forth general principles applicable to determining the reasonableness

of attorney fees. In re Guardianship of Schwarzbach, 10th Dist. Franklin No. 17-

AP-247, 2018-Ohio-1712, ¶ 33, citing In re Estate of Born, 10th Dist. Franklin No.

06AP-1119, 2007-Ohio-5006.

               Prof.Cond.R. 1.5 includes the following factors for consideration in

determining the reasonableness of a fee:

      (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.

      (8) Whether the fee is fixed or contingent.

              In addition, Loc.R. 71.3 of the Court of Common Pleas of Cuyahoga

County, Probate Division, provides:

      (A) The following provisions apply to attorney fees allowed as part of
      the expense for administering a guardianship.

      (1) Attorney fees shall be based upon the actual services performed
      and the reasonable value of the services.

      (2) All applications for attorney fees shall set forth an itemized
      statement of the services performed, the date services were
      performed, the time spent in rendering the services, and the rate
      charged per hour.

      (3) In determining the reasonableness of the requested attorney fees,
      the court shall consider the following: the prior experience of the
      attorney; the complexity of the matter presented; any special
      problems that may have presented themselves during the
      representation; the time spent by the attorney; and, for guardianship
      and trust cases, the amount of assets and income available for the
      payment of attorney fees.

              This court has held that “attorney fees are not justified merely

because the lawyer has charged his [or her] professional time and expenses at

reasonable rates; a legitimate purpose must also explain why the lawyer spent that

time and incurred those costs.” Lillie & Holderman v. Dimora, 8th Dist. Cuyahoga
No. 99271, 2013-Ohio-3431, ¶ 12, citing Disciplinary Counsel v. Johnson, 113 Ohio

St.3d 344, 2007- Ohio-2074, 865 N.E.2d 873, ¶ 71. “[I]n an action for attorney fees

the burden of proving that the time was fairly and properly used and the burden of

showing the reasonableness of work hours devoted to the case rest on the

attorney.” Koblentz & Koblentz v. Ferrante, 8th Dist. Cuyahoga No. 86969, 2006-

Ohio-1740, ¶ 24, quoting Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter,

100 Ohio App.3d 313, 653 N.E.2d 1245 (10th Dist.1995).

               It is with these concepts in mind that we review the assigned errors.

November 2015 Application for Attorney Fees

               In his assignments of error, Oviatt claims that he is owed a total of

$17,192 plus costs under the two fee bills and the trial court abused its discretion in

awarding him only $8,177.

               The trial court found the following:

      The Magistrate found, and this Court agrees, that this matter was not
      of particular complexity or novelty. Attorney Oviatt testified to
      practicing law for 50 years, spending approximately half of that time
      practicing probate law. While this court finds the hourly rate of $200
      per hour charged by Attorney Oviatt to be customary, the hours
      expended in both of the Applications for Attorney Fees are excessive
      and unreasonable. Specifically, in the November of 2015 fee bill,
      Attorney Oviatt represented 1.5 hours to amend the complaint where
      the only change made was correcting a misspelled name. He further
      represented 3.75 hours to review the guardianship file and appear for
      a brief pretrial hearing. In consideration of Attorney Oviatt’s
      substantial experience in practicing law, these hours billed, as others
      represented in both applications, are excessive and unreasonable
      upon review of this Court.

               The trial court went on to support its findings as follows:
      This Court further takes notice of Local Rule 71.3 which requires this
      Court take into consideration the assets and income available from the
      guardianship estate to be used when compensating attorney fees. The
      Magistrate found, and this Court agrees, that the guardianship estate
      has modest means and very limited resources to pay such
      extraordinary and unreasonable attorney fees as requested by
      Attorney Oviatt.

               The trial court then determined, upon review of the file, that Oviatt

should be compensated for 26 hours instead of the 43 hours he originally requested.

               As to the November 2015 fee bill, it is clear that the trial

court thoroughly analyzed the attorney fees request and determined the necessity

and reasonableness of the fees in accordance with Prof.Cond.R. 1.5 and Loc.R. 71.3.

Although Oviatt argues that he should have been compensated for 43 hours of his

time, we find no support for his argument. Beaty testified that she agreed to pay

Oviatt a $2,000 flat fee to establish the guardianship. Oviatt never provided Beaty

with a written fee agreement or informed her that the fee on the case may exceed the

$2,000 that was originally agreed on. Beaty further testified that she paid Oviatt

$500 for a retainer plus the filing fee but he never gave her a receipt for the payment.

According to Beaty, she thought that the $2,000 flat fee would cover the costs of

establishing the guardianship and, when Oviatt told her he was going to file an

additional lawsuit (the adversarial suit), she assumed the flat fee would cover those

costs also.2



      2Astoundingly,     during cross examination, Oviatt placed the onus on Beaty, the
client, to ask Oviatt, the attorney for a written fee agreement. Oviatt asked Beaty if she
had a written fee agreement with him. Beaty said that she was not given a written
              Based on the foregoing, we find that the trial court’s determination as

to November 2015 attorney fee application was not an abuse of discretion.

September 2017 Application for Attorney Fees

              We find, however, that the trial court erred and abused its discretion

in awarding Oviatt $3,142 on the September 2017 application.

              The trial court found the following:

      This Court further finds that the work performed in the second fee bill
      filed on September 12, 2017, was not related to establishing the
      guardianship but separate litigation involving the guardianship.
      Pursuant to Ohio Rules of Professional Conduct Rule 1.4, a lawyer is
      required to keep their client reasonably informed, and to reasonably
      consult with their client as to the means of achieving the client goals.

      While Ms. Beaty was marginally aware of the work performed by
      Attorney Oviatt represented in the second fee bill, Attorney Oviatt
      continued to act on Ms. Beaty’s behalf despite clear conflict between
      them. This conflict hindered Attorney Oviatt from keeping Ms. Beaty
      reasonably informed or consulting with her as to the progress of her
      case. The conflict is evident from the testimony of Ms. Beaty and her
      lack of participation in the matter. Specifically, Ms. Beaty stopped
      responding to Attorney Oviatt letters, did not respond to phone calls,
      and failed to appear at scheduled depositions and hearings.

      Not only did Ms. Beaty discontinue participation in this case, but
      Attorney Oviatt continued to bill for services rendered without
      communicating change in the rate of the fee and expenses as required
      by [Prof.Cond.R.] 1.5(b).

      While this Court has concern regarding Attorney Oviatt actions, this
      Court finds the Guardianship did receive minimal benefit from the
      services rendered in the second fee bill and therefore should be
      reasonably compensated.




agreement and Oviatt inquired as to why she did not ask for a written agreement. Beaty
responded, “No, I didn’t ask you. I just believed you.”
               The court concluded that Oviatt should be compensated for 12.75

hours at a rate of $200 an hour, plus $642 for costs “to reflect reasonable

compensation for his services rendered.”

               Prof.Cond.R. 1.5(b) provides that:

      The nature and scope of the representation and the basis or rate of the
      fee and expenses for which the client will be responsible shall be
      communicated to the client, preferably in writing, before or within
      a reasonable time after commencing the representation, unless the
      lawyer will charge a client whom the lawyer has regularly represented
      on the same basis as previously charged. Any change in the basis or
      rate of the fee or expenses is subject to division (a) of this rule and
      shall promptly be communicated to the client, preferably in writing.

(Emphasis sic.)

               The trial court, in this instance, does not support its reasoning for

increasing the amount owed other than finding that “the Guardianship did receive

minimal benefit from the services rendered.” After a thorough review of the record,

we disagree and find that Oviatt’s conduct outweighs any minimal benefit the

guardianship may have received.

               Although the trial court may have made a reasoned and supported

decision for increasing the amount the magistrate awarded Oviatt, i.e., finding

additional activity in the fee bill to be compensable or determining, we simply are

unable to determine and, therefore, can only guess at the court’s rationale based

upon the record and judgment entry before us. Thus, while the trial court’s final

dollar amount is specific, it is also, by definition, arbitrary because on its face it is a
random amount that is neither consistent with the evidence in the record nor the

findings made by the trial court.

              The magistrate found that the fees being charged to the guardianship

were excessive and represented work for which Beaty did not authorize or

participate. The magistrate noted that the September 2017 fee bill was filed “nearly

two years after the work was performed with no explanation from Mr. Oviatt as to

the delay in filing,” and that much of the work Oviatt claimed he performed was after

a clear conflict existed between him and Beaty. The magistrate further noted that

the burden was on Oviatt to establish that the work he performed on the case was

authorized but Oviatt failed to do so because he did not produce any written

communication or a fee agreement and Beaty did not participate in the litigation.

The magistrate further found that Oviatt admitted he never discussed any additional

fees with Beaty. The magistrate acknowledged that Beaty knew that Oviatt “was

pursuing these actions and did nothing to stop it,” but the guardianship did not

derive a benefit from Oviatt’s work. The magistrate concluded that Oviatt’s second

application should be denied, except for $642 for costs and expenses based on

Beaty’s minimal knowledge of the work Oviatt had performed.

              The record reflects that Oviatt filed the second action without

communicating to Beaty that he was going to do so (from the record we glean that

Beaty had minimal knowledge of the adversarial lawsuit and was not

communicating with Oviatt at the time). Oviatt admitted that he was no longer

representing Beaty as of December 2015 and filed a motion to remove her as
guardian because she refused to pay his fee bill. He did not, however, file a motion

with the court to withdraw his representation. Oviatt also went to trial on the matter

even though Beaty had not responded to his communications and did not appear for

the hearing. The magistrate subsequently dismissed the complaint, finding, in part,

that the “burden of proof was not met because * * * [Beaty] did not testify.” Oviatt

further admitted that he never billed Beaty with regard to the services he alleges he

rendered on the second fee bill, because “she wouldn’t pay the bills anyway.” Finally,

we note that Oviatt did not submit his application for attorney fees until almost two

years had elapsed.

              After a thorough review of the record, we find that the record supports

the magistrate’s finding that $642 was the proper amount for recovery on Oviatt’s

September 2017 application for attorney fees. The magistrate’s judgment took into

consideration all the necessary factors and findings in support of its decision.

              The assignments of error are overruled. The cross-assignment of

error is sustained in part and overruled in part. The case is remanded to the trial

court to enter judgment in accordance with this opinion.

      It is ordered that appellant/cross-appellee and appellee/cross-appellant split

the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



LARRY A. JONES, SR., JUDGE

MARY EILEEN KILBANE, A.J., and
ANITA LASTER MAYS, J., CONCUR
                                  APPENDIX

Appellant’s Assignments of Error

     I. Whether the probate court abused its discretion when awarding
     attorney fees in the sum of $8,677.00 when the record clearly showed
     that attorney fees were $17,192.00.

     II. Whether the probate court can disregard court [Loc.R.] 71.3 when
     rendering a decision when awarding attorney fees.

     III. Whether the probate court can rely upon the erroneous findings
     of facts of the magistrate as opposed to the facts as set forth in the
     hearing transcript.

     IV. When an applicant for attorney fees is cross-examined during the
     hearing on these fees, it is error for the court to rule fees were
     excessive and unnecessary when such fact does not appear in the
     record.

     V. Whether the probate court can make an unsupportable finding that
     the guardianship assets cannot justify attorney fees as requested.

     VI. Whether the probate court can make a determination that certain
     legal services were clerical, excessive and unnecessary and not
     justified when the court is unable to identify those services which were
     clerical, excessive and unnecessary and not justified.

     VII. Whether the probate court can completely deny specific legal
     services rendered as being clerical in nature and hold that these
     services had no value.

     VIII. Whether the probate court can ignore objections to the
     magistrate’s findings and not address the issues raised.

     IX. Whether the probate court was in error in not awarding applicant
     his costs when objecting to the magistrate’s report.
