[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




IN RE: ESTATE OF EARL E.                                JUDGES:
SCHOENEMAN                                              Hon. William B. Hoffman, P.J.
                                                        Hon. Sheila G. Farmer, J.
                                                        Hon. John W. Wise, J.


                                                        Case No. 2010CA00340


                                                        OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Probate Division, Case No.
                                                        204531


JUDGMENT:                                               Reversed




DATE OF JUDGMENT:                                       October 11, 2011




APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

GERALD L. BAKER                                         DONALD GALLICK
3711 Whipple Avenue, NW                                 190 North Union Street
Canton, OH 44718                                        Suite 102
                                                        Akron, OH 44304
Stark County, Case No. 2010CA00340
                                                                                      2
Farmer, J.

          {¶1}   On November 3, 2008, appellee, Louis W. Schoeneman, as Executor,

opened the Estate of Earl E. Schoeneman (Case No. 204531).

          {¶2}   On March 15, 2010, appellee filed an asset concealment complaint

against appellant, Robin Minor (Case No. 208428).

          {¶3}   On July 12, 2010, an agreement was journalized memorializing the

parties' agreement over the disputed assets (Case No. 208428).

          {¶4}   On September 3, 2010, appellee filed an application to approve attorney

fees (Case No. 204531). By judgment entry filed November 24, 2010, the trial court

approved the requested fees which included fees incurred in the asset concealment

action.

          {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

          {¶6}   "THE PROBATE COURT ERRED BY AWARDING ATTORNEY'S FEES

IN A CONCEALMENT ACTION WITHOUT MAKING A DETERMINATION OF GUILT

AS REQUIRED UNDER §2109.52 OR A FINDING OF BAD FAITH."

                                             II

          {¶7}   "OHIO REVISED CODE §2113.36 DOES NOT AUTHORIZE A PROBATE

COURT TO AWARD AND APPORTION ALL ATTORNEYS' FEES TO BE PAID FROM

THE SHARE OF THE BENEFICIARY WHOSE ACTIONS NECESSITATED THE

ESTATE'S HIRING OF AN ATTORNEY."
Stark County, Case No. 2010CA00340
                                                                                            3
                                              I

       {¶8}   Appellant claims the trial court erred in awarding attorney fees in the asset

concealment action without making a finding of guilty pursuant to R.C. 2109.52 or bad

faith. We agree.

       {¶9}   On March 15, 2010, appellee filed an asset concealment complaint in

Case No. 208428. R.C. 2109.52 governs judgment on an asset concealment complaint

and states the following in pertinent part:

       {¶10} "When passing on a complaint made under section 2109.50 of the

Revised Code, the probate court shall determine, by the verdict of a jury if either party

requires it or without if not required, whether the person accused is guilty of having

concealed, embezzled, conveyed away, or been in the possession of moneys, chattels,

or choses in action of the trust estate. If such person is found guilty, the probate court

shall assess the amount of damages to be recovered or the court may order the return

of the specific thing concealed or embezzled or may order restoration in kind.*** In all

cases, except when the person found guilty is the fiduciary, the probate court shall

forthwith render judgment in favor of the fiduciary or if there is no fiduciary in this state,

the probate court shall render judgment in favor of the state, against the person found

guilty, for the amount of the moneys or the value of the chattels or choses in action

concealed, embezzled, conveyed away, or held in possession, together with ten per

cent penalty and all costs of such proceedings or complaint; except that such judgment

shall be reduced to the extent of the value of any thing specifically restored or returned

in kind as provided in this section."
Stark County, Case No. 2010CA00340
                                                                                       4
      {¶11} The matter sub judice was settled via an agreed judgment entry filed July

12, 2010:

      {¶12} "This matter came before the Court for a hearing on July 12, 2010 on the

action for concealment.     Prior to the hearing, the parties reached a settlement

agreement as follows:

      {¶13} "1) On Saturday, July 17, 2010 at 10:30 a.m., the Defendant, Robin Minor,

('Defendant') will have the subject boat, motor and trailer available for pick up by the

Executor, Louis Schoeneman ('Executor') at the cul de sac near the Defendant's home

located at 3304 Chagrin Ave SW, Canton, OH.

      {¶14} "2) The sole remaining estate item, a chandelier in the Defendant's home

at the address listed in Item 1, will be available for appraisal by the Dimmerling Realty

and Auctioneer Company until Monday, August 2, 2010. The parties agree that the

Defendant will pay the Estate the value of the chandelier assigned by the Dimmerling

Realty and Auctioneer Company.

      {¶15} "Confirmation of the above items is to be provided by the Executor no later

than August 30, 2010. Failure of the parties to abide by the settlement terms may result

in a finding of contempt. Court Costs to Defendant."

      {¶16} In a judgment entry filed November 24, 2010 in Case No. 204531, the trial

court specifically found the request for attorney fees was appropriate as it pertained to

the concealed assets in Case No. 208428:

      {¶17} "Upon due consideration of the briefs and oral arguments of the parties,

the Court finds the Motion for Payment of Attorney Fees to be well taken. The fees

Attorney Baker charged in assisting Executor with the retrieving of the chandelier, boat,
Stark County, Case No. 2010CA00340
                                                                                           5
motor, and trailer were reasonable, necessary and benefited the estate.              Attorney

Baker's efforts in assisting Executor in retrieving the chandelier, boat, motor, and trailer

benefited the estate because Executor is responsible for marshaling all of the assets of

the estate. Minor's failure to turn over the estate items necessitated the involvement of

Attorney Baker and the filing of the concealment action. The estate case could not

proceed without the collection of all of the assets of the estate and the beneficiaries

could not receive their distributions without the collection of all estate assets.

       {¶18} "Accordingly, Executor's Motion for Payment of Attorney Fees against

Minor is GRANTED in the amount of $3,026.25. The $3,026.25 shall be deducted from

Minor's share of the Estate of Earl E. Schoeneman to the extent possible."

       {¶19} Nowhere did the trial court make a finding of guilty under R.C. 2109.52 or

of bad faith.

       {¶20} An award of attorney fees in a concealment action is proper upon a finding

of guilty or a showing of bad faith. R.C. 2109.52; In the Matter of: The Estate of Lena B.

Simons, Deceased, Trumbull App. No. 2004-T-0066, 2005-Ohio 2362, ¶26; In re Estate

of Toth (November 29, 1993), Stark App. No. CA-9312. Further, in In Re: Estate of

Meyer (1989), 63 Ohio App.3d 454, 457, our brethren from the Twelfth District stated

the following:

       {¶21} "***Accordingly, the statute [R.C. 2109.52] mandates that specific

procedural requirements be followed, including the reduction to writing of the

examination of the accused and any witnesses. The statute also requires a finding of

guilty or not guilty and the imposition of certain penalties upon a finding of guilty.
Stark County, Case No. 2010CA00340
                                                                                          6
        {¶22} "***The court's conclusion that the account is an asset of the decedent's

estate does not translate into a finding of guilt. Mere possession of an estate asset

does not constitute concealment."

        {¶23} Upon review, we find the trial court erred in awarding the attorney fees.

        {¶24} Assignment of Error I is granted.

                                             II

        {¶25} Based upon our decision in Assignment of Error I, this assignment is

moot.

        {¶26} The judgment of the Court of Common Pleas of Stark County, Ohio,

Probate Division is hereby reversed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                              _s/ Sheila G. Farmer_______________



                                              _s/ William B. Hoffman_____________



                                              _s/ John W. Wise_________________

                                                            JUDGES



SGF/sg 928
[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




IN RE: ESTATE OF EARL E.                                :
SCHOENEMAN                                              :        JUDGMENT ENTRY
                                                        :
                                                        :
                                                        :
                                                        :
                                                        :        CASE NO. 2010CA00340




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, Probate Division is

reversed. Costs to appellee.




                                                        s/ Sheila G. Farmer_______________



                                                        _s/ William B. Hoffman_____________



                                                        _s/ John W. Wise_________________

                                                                    JUDGES
