[Cite as In re Estate of Weiner, 2019-Ohio-2354.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 IN THE MATTER OF THE ESTATE                        :
 OF JOEY WEINER                                     :
                                                    :   Appellate Case No. 27278
                                                    :
                                                    :   Trial Court Case No. 1998 EST
                                                    :   322246
                                                    :
                                                    :   (Appeal from Common Pleas Court,
                                                    :   Probate Division)
                                                    :

                                               ...........

                                               OPINION

                             Rendered on the 14th day of June, 2019.

                                               ...........

DAVID P. WILLIAMSON, Atty. Reg. No. 0032614 and JUSTINE Z. LARSEN, Atty. Reg.
No. 0095525, 6 North Main Street, Suite 400, Dayton, Ohio 45402
      Attorneys for Appellant/Cross-Appellee, Harry Weiner

DAN D. WEINER, Atty. Reg. No. 0008179, 4848 Marshall Road, Kettering, Ohio 45429
     Appellant/Cross-Appellee, pro se

ROBIN D. MILLER, Atty. Reg. No. 0074375, 600 Vine Street, Suite 2800, Cincinnati, Ohio
45202
      Attorney for Appellee/Cross-Appellant, the Estate of Joey Weiner

                                               .............



TUCKER, J.
                                                                                           -2-




       {¶ 1} Appellants and cross-appellees, Dan Weiner and Harry Weiner, appeal from

the final judgment of the Montgomery County Court of Common Pleas, Probate Division

(the “Probate Court”) entered on August 30, 2016. Raising four assignments of error,

Dan Weiner argues that the Probate Court erred: (1) by finding that a substantial quantity

of documents he requested in discovery from the Estate of Joey Weiner (the “Estate”)

was protected by attorney-client privilege; (2) by finding that the executor could require a

release of liability as a condition of voluntarily resigning; (3) by approving the Estate’s

payment of attorney’s fees incurred by the executor without having determined whether

the corresponding services were beneficial to the Estate; and (4) by regulating the

proceedings at a hearing on his exceptions to the Estate’s sixth account such that his

right to due process was violated.      Raising two assignments of error, Harry Weiner

argues that the Probate Court erred by authorizing the Estate to pay attorney’s fees

incurred by the executor for services that were not beneficial to the Estate, and

conversely, that the Probate Court erred by refusing to authorize the Estate to pay

attorney’s fees that he himself incurred in challenging the fees incurred by the executor.

For its part, the Estate—the appellee and cross-appellant—raises a single cross-

assignment of error in which it argues that the Probate Court erred by authorizing payment

of only a portion of the attorney’s fees incurred by the executor, rather than the full amount

for which the executor requested approval in the Estate’s application of August 25, 2010.

       {¶ 2} We find that Dan Weiner has not satisfied his burden on appeal to

demonstrate that the Probate Court erred in its resolution of his discovery disputes with

the Estate.   Further, we find that the Probate Court did not err by holding that the
                                                                                         -3-


executor could demand a release of liability in exchange for his voluntary resignation; that

the Probate Court did not violate Dan’s right to due process at the hearing on his

exceptions to the Estate’s sixth account; and that the Probate Court did not err by

overruling Harry Weiner’s application for payment of his attorney’s fees. Regarding the

Estate’s application for payment of attorney’s fees, however, we find that the Probate

Court erred when it summarily denied the Estate authorization to pay any fees incurred

by the executor after June 22, 2005. Therefore, the Probate Court’s judgment of August

30, 2016, is affirmed in part and reversed in part, and the case is remanded for additional

proceedings consistent with this opinion.

                            I. Facts and Procedural History

       {¶ 3} Joey Weiner died on May 27, 1998. In her will, she made her three sons,

Dan Weiner, Harry Weiner and Ted Weiner, the beneficiaries of the Estate, and she

nominated Ted to serve as executor. Other than Dan, Harry and Ted, Ms. Weiner left

no survivors who would have been entitled to inherit under the statute of descent and

distribution.1

       {¶ 4} Having engaged his brother, Dan, to represent him in his capacity as

executor of the Estate, Ted Weiner filed an application on June 4, 1998, for the admission

of his mother’s will to probate, along with an application for authority to administer the

Estate. Both of the applications were granted by the Probate Court on the day they were

filed. Ted thereafter submitted the Estate’s first account on June 11, 1999, covering the


1 Ms. Weiner seems to have had one or more living grandchildren when she died, though
none of them would have been entitled to inherit under the statute of descent and
distribution because her three children also survived her. See R.C. 2105.06(A);
Complaint, Montgomery C.P. No. 2000 CV 02429 (May 18, 2000), ¶ 10.
                                                                                       -4-


period running from May 27, 1998, to April 30, 1999; no attorney’s fees or fiduciary fees

had been paid at that time. The Probate Court approved the first account on August 27,

1999.

        {¶ 5} On May 18, 2000, Dan Weiner initiated a wrongful death action pursuant to

R.C. 2125.01 by filing a complaint in the Montgomery County Court of Common Pleas.

The complaint, in Case No. 2000 CV 02429, identified Ted Weiner—in his capacity as the

executor of the Estate—as the plaintiff, and a nursing home and a physician as the

defendants.

        {¶ 6} On June 20, 2000, in response to an “oral motion [made by] Ted Weiner,” the

Probate Court entered an order in which it substituted C. Terry Johnson, an attorney with

the firm of Porter, Wright, Morris & Arthur (“PWMA”), to act as attorney for the executor

in place of Dan Weiner, whom Ted had dismissed. Entry Substituting Counsel 1, June

20, 2000. One week later, Ted filed the Estate’s second account, covering the period

running from May 1, 1999, through April 28, 2000; again, no attorney’s fees or fiduciary

fees had yet been paid. The Probate Court approved the second account on August 1,

2000.

        {¶ 7} Effective August 24, 2000, Johnson replaced Dan Weiner as the plaintiff’s

attorney in the wrongful death action. By that time, both of the defendants had filed

answers to the complaint, but none of the parties had filed any further pleadings or

motions.    At a pretrial hearing, held on January 19, 2001, the common pleas court

scheduled a jury trial to begin in February of the following year.

        {¶ 8} Ted and Dan, meanwhile, seem to have been embroiled in an ongoing

dispute regarding the administration of the Estate in general, and the handling of the
                                                                                             -5-

wrongful death action in particular, as Ted’s dismissal of Dan suggests. See, e.g., Entry

and Order Overruling Dan Weiner’s Motion for Removal of Ted Weiner 1-2, Aug. 6, 2002;

Exceptor’s Exhibits 11-12, Sept. 10, 2003.2 In a letter dated March 26, 2001, Ted offered

to resign as executor in favor of Dan on condition that Dan and Harry execute a release

relieving him of any liability arising from his management of the Estate’s affairs. See

Exceptor’s Exhibit 9, Sept. 10, 2003; Entry and Order Overruling Dan Weiner’s Motion for

Removal of Ted Weiner 1-2. According to the terms of the proposed release, each of

the three siblings would have “release[d] [the others] from, and agree[d] to indemnify [the

others] against,” all liability “arising from the administration of the Estate of Joey Weiner.”3

See Exceptor’s Exhibit 9, Sept. 10, 2003. The release was not executed, and Ted

continued to serve as executor.

       {¶ 9} On April 25, 2001, Ted voluntarily dismissed the wrongful death action



2 Dan introduced these exhibits at the hearing on his exceptions to the Estate’s fifth
account, which began on September 10, 2003, and ended on October 4, 2004.
3 Harry Weiner had not yet entered an appearance in the case. At oral arguments,
Harry’s counsel averred that the release would have required his client, and Dan Weiner,
to approve the payment of attorney’s fees incurred by Ted as executor. Counsel did not
mention that Ted submitted two drafts of the proposed release to Dan. Pursuant to what
appears to be the first of the two drafts, sent by facsimile from PWMA to Dan on March
1, 2001, Ted and Dan would have “waive[d] [their] right[s] to receive * * * fee[s]” for their
respective services as executor of the Estate and counsel for the executor. Exceptor’s
Exhibit 8, Sept. 10, 2003. During arguments, counsel seems to have been referring to
what appears to be the second of the two drafts. Pursuant to the second draft, which
was attached to Ted’s letter of March 26, 2001, Dan, Harry and Ted would have approved
the payment of attorney’s fees “to Dan D. Weiner and [PWMA], and [the payment of]
executor fees for Ted.” Exceptor’s Exhibit 9, Sept. 10, 2003. In the letter, Ted also
expressed his intention “to split his executor fee with * * * Harry,” and added that attorney’s
fees for Dan and PWMA alike would be paid from the “$60,000 * * * [tax] deduction [for
attorney’s fees claimed by the Estate] on [Form] 706,” the United States Estate (and
Generation-Skipping Transfer) Tax Return. See id.
                                                                                        -6-


pursuant to Civ.R. 41(A). He then filed the Estate’s third account on June 26, 2001,

which covered the period running from April 29, 2000, to February 23, 2001, as well as

an application for authority to pay attorney’s fees in the amount of $15,191.18 for the

period running from September 17, 1999, to November 30, 2000. On its first page, the

third account indicated that no attorney’s fees or fiduciary fees had been paid, though the

second page listed a disbursement for attorney’s fees in the amount of $15,191.18—the

same amount specified in the application. Third and Partial Fiduciary’s Account 1-2,

June 26, 2001; Application for Authority to Pay Attorney’s Fees 1, June 26, 2001. The

application was granted by the Probate Court on the day it was filed, and the third account

was approved on July 31, 2001.

       {¶ 10} On March 26, 2002, Dan Weiner notified Ted that he intended to reopen the

wrongful death action, in Ted’s name, before the expiration of the one-year savings period

under R.C. 2305.19. Ted sent a response to Dan on April 2, 2002, in which he indicated

that Dan had never been authorized to commence the action; that Dan likewise did not

have his permission to reopen the matter; and that he remained willing to resign

voluntarily as executor in Dan’s favor on condition that Dan and Harry execute the release

he had proposed in March 2001. Once again, the release was not executed, and Ted

did not resign.

       {¶ 11} Ted filed the Estate’s fourth account on April 12, 2002, which purported to

cover the period running from April 29, 2000, to March 28, 2002, as well as an application

for authority to pay attorney’s fees in the amount of $15,539.51 for the period running
                                                                                        -7-


from December 1, 2000, to June 28, 2001.4 No fiduciary fees had been paid, but the

account listed a disbursement for attorney’s fees in the amount of $15,539.51, the same

amount specified in the application. The application was granted on the day it was filed,

and the fourth account was approved on May 13, 2002.

       {¶ 12} On June 10, 2002, Dan Weiner moved the Probate Court for Ted’s removal

as executor, contending that Ted should be removed because he “refused to re-file the

[w]rongful [d]eath action in the Montgomery County Common Pleas Court[,] although

[asked] to do so.”5 Application for Removal of Fiduciary 1, June 10, 2002. The Probate

Court overruled Dan’s motion in its entry and order of August 6, 2002. In the order, the

Probate Court found that Ted had not violated “any fiduciary duty in his administration” of

the Estate; that Ted “was justified in dismissing the wrongful death lawsuit,” which “was

filed without [his] permission and without the necessary prima facie evidence to support


4 The statement of the fourth account’s coverage period appears to have been a mistake.
In the Estate’s fifth account, filed on April 25, 2003, the fourth account was described as
covering the period running from February 24, 2001, to March 28, 2002. Given that the
Estate’s third account covered the period running from April 29, 2000, to February 23,
2001, we surmise that the fifth account accurately stated the period covered by the fourth
account, and that the fourth account was incorrect in this respect.
5 Identifying himself as the plaintiff, Dan had filed a second complaint pursuant to R.C.
2125.01 on April 24, 2002. In the first complaint, Dan had named a nursing home and a
physician as the defendants; the second complaint named only the nursing home. The
second complaint’s caption-page indicated that it was a “[r]efiling of Case Number [20]00
[CV] [0]2429,” which the common pleas court docketed as a new action under Case No.
2002 CV 02672. On June 24, 2002, the nursing home moved to dismiss the second
complaint. Dan did not respond, and the common pleas court sustained the nursing
home’s motion on November 20, 2002. On November 19, 2003, Dan refiled the second
complaint, giving rise to Case No. 2003 CV 08442, and on January 18, 2005, Dan again
refiled the second complaint, giving rise to Case No. 2005 CV 00425. The common
pleas court sustained Dan’s motion to dismiss the complaint in Case No. 2003 CV 08442
on January 15, 2004, and it sustained the nursing home’s motion to dismiss the complaint
in Case No. 2005 CV 00425 on October 7, 2005.
                                                                                          -8-


such a lawsuit”; that Dan “unreasonably and without basis” refused to execute the

aforementioned release of liability; and that Ted “had cause to demand a written release”

because Dan “had threatened to sue [him] on numerous occasions.” Entry and Order 1-

2, Aug. 6, 2002.

       {¶ 13} After unsuccessfully moving the Probate Court to vacate its order of August

6, 2002, Dan filed two notices of appeal to this court—the first on September 4, 2002,

relating to the order, and the second on September 30, 2002, relating to the Probate

Court’s order overruling his motion to vacate. With these appeals pending, Ted filed the

Estate’s fifth account on April 25, 2003, covering the period running from March 28, 2002,

to March 28, 2003, along with an application for authority to pay attorney’s fees.

According to the account’s list of disbursements, attorney’s fees had been paid in the

amount of $23,735.13, and fiduciary fees had been paid in the amount of $46,453.00. In

the application, Ted requested authority to pay attorney’s fees in the amount of

$23,547.50 for the period running from November 19, 2001, to October 29, 2002.6 The

application was approved on the date of its filing, but partly as a consequence of Dan’s

submission of exceptions on May 28, 2003, the fifth account would not be approved for

more than a year. On June 27, 2003, we affirmed the orders of the Probate Court in both

of Dan’s appeals. In re Estate of Weiner, 2d Dist. Montgomery Nos. 19533 & 19564,




6 The previous application for authority to pay attorney’s fees related to the period running
from December 1, 2000, to June 28, 2001. Although the Estate never filed an application
for authority to pay attorney’s fees for the period running from June 29, 2001, to November
18, 2001, the record suggests that PWMA did not render any billable services during that
interval.
                                                                                         -9-


2003-Ohio-3408, ¶ 10-14 and 17.7

       {¶ 14} The Probate Court’s hearing on the exceptions to the fifth account began

on September 10, 2003. On January 22, 2004, Ted Weiner filed an application for

authority to distribute the Estate’s remaining assets, averring that he had discharged all

of the Estate’s obligations other than those owed to the beneficiaries. The Probate Court

did not rule on this application, and the hearing on Dan’s exceptions to the fifth account

was reconvened for a second day on January 30, 2004, for a third day on March 22, 2004,

and for a fourth day on July 21, 2004.

       {¶ 15} Thirteen months after it began, the hearing was closed at the end of its fifth

day, October 4, 2004. A magistrate then issued a decision on November 24, 2004,

finding that none of the exceptions had merit and recommending that the fifth account be

approved in its entirety.    The Probate Court adopted the magistrate’s decision on

December 8, 2004, but on January 28, 2005, the magistrate filed an amended decision

in response to Dan’s request for more detailed findings of fact and conclusions of law.

On June 20, 2005, the Probate Court affirmed the magistrate’s amended decision.

       {¶ 16} Ten days later, Ted Weiner withdrew his application for an order authorizing

the distribution of the Estate’s remaining assets, only to file a second such application on

October 13, 2005, in which he requested that the Probate Court hold “a hearing to resolve

any outstanding issues * * *, with the objective of terminating the Estate.” As requested,

the court ordered that a hearing be held, scheduling it to begin on December 7, 2005.


7 Dan moved to consolidate the cases on October 25, 2002, and we sustained his motion
in our entry of June 3, 2003. Our decision, on the other hand, stated that “this court [had]
sua sponte consolidated [the] appeals.” In re Estate of Weiner, 2d Dist. Montgomery
Nos. 19533 & 19564, 2003-Ohio-3408, ¶ 14.
                                                                                           -10-


       {¶ 17} In anticipation of the hearing, Dan Weiner served a subpoena duces tecum

on C. Terry Johnson—the PWMA attorney representing Ted in his capacity as executor

of the Estate—on or about November 2, 2005. The subpoena instructed Johnson to

appear at the hearing with his “entire file pertaining to the [E]state * * *, including but not

limited to copies of all correspondence, and interoffice memorand[a].”            Presumably

because Dan had previously—and unsuccessfully—attempted on several occasions to

obtain the same material from Johnson and PWMA, he filed a motion on November 18,

2005, asking the Probate Court to compel Johnson’s compliance with the subpoena.

       {¶ 18} With Dan’s motion to compel pending, the hearing on Ted Weiner’s second

application for authority to distribute began on December 7, 2005, as scheduled. The

hearing, however, was adjourned without being concluded; reconvened for a second day

on January 27, 2006, for the purpose of addressing Dan’s motion to compel; and

adjourned again without being concluded. Further discovery disputes ensued, and the

Estate moved for a protective order on March 10, 2006.8 None of these matters had

been resolved by June 1, 2006, when the parties appeared for the third day of the hearing

on Ted’s application. A magistrate thereafter entered a decision on June 21, 2006,

requiring Ted to produce the documents implicated by Dan’s motion to compel within 14

days for an inspection in camera, though the decision otherwise implicitly deferred any

resolution of the discovery disputes until the inspection had been completed. Dan filed

a motion on June 27, 2006, in which he offered objections to the decision.



8 On February 14, 2006, Harry Weiner filed a list of documents he intended to request
from PWMA. Harry had participated at times in the hearing on Dan’s exceptions to the
Estate’s fifth account, though the foregoing was Harry’s first filing.
                                                                                       -11-


       {¶ 19} On August 11, 2006, the Probate Court entered an order converting the

fourth day of the hearing on the application, which was scheduled for August 15, 2006, to

“a [s]ettlement [c]onference.” The settlement conference took place as the court had

directed, though unsurprisingly, nothing was settled.       For seven months after the

conference, the case became effectively inactive, and nearly three years would pass

before the hearing was reconvened for its fifth and final day.

       {¶ 20} In response to Dan Weiner’s motion of June 27, 2006, the Probate Court

issued an order on March 14, 2007, adopting the magistrate’s decision of June 21, 2006,

and in addition, granting the Estate a protective order with respect “to discovery which

request [sic] information prior to November 2002 and which requests attorney-client

privileged information or the attorney work product [sic].”9 Dan Weiner filed a notice of

appeal from this order on April 4, 2007. We dismissed the appeal on June 26, 2007, for

want of a final, appealable order.

       {¶ 21} On January 11, 2008, following six months of further inactivity, the Probate

Court scheduled a status conference for February 11, 2008.         The docket does not

establish whether the status conference occurred, but on March 6, 2008, Dan submitted

a copy of a 2005 opinion from this court in an unrelated case, arguing that the opinion

demonstrated his right to discovery of all of PWMA’s records related to the Estate,

irrespective of attorney-client privilege. PWMA responded on behalf of the Estate on


9 The full caption of the magistrate’s decision of June 21, 2006, was “Magistrate’s
Decision Denying Motion to Compel Discovery; Ordering In Camera Inspection of
Documents[;] and Issuing Protective Order.” As the Probate Court noted in its decision
of March 14, 2007, the caption of the magistrate’s decision was mostly inaccurate
because the magistrate did not actually rule on either Dan’s motion to compel or the
Estate’s motion for a protective order.
                                                                                          -12-


March 25, 2008, and Dan replied on April 15, 2008. For 14 months afterward, the case

again came to a standstill.

       {¶ 22} On June 10, 2009, Dan submitted objections to the Estate’s proposed order

for final distribution, which Ted had filed more than three years earlier in connection with

his second application for authority to distribute the Estate’s assets. Harry submitted his

own objections on June 29, 2009, and on July 8, 2009, the parties appeared for the final

day of the hearing on the second application.          Dan then filed discovery requests

addressed to Ted, individually and as executor, on August 4, 2009, after which the case

became dormant for another year.

       {¶ 23} The Probate Court broke the silence on August 3, 2010, when it cited Ted

pursuant to R.C. 2109.31 for failing to file a partial account as required by R.C.

2109.301(B)(4).10 Although Ted had not filed a partial account since he filed the Estate’s

fifth account on April 25, 2003, the Probate Court had granted him several extensions of

time throughout 2004, and in an order issued on February 22, 2005, the court had

indefinitely extended his time “pending completion of the litigation” pertaining to the fifth

account. Ted nevertheless responded to the citation by filing the Estate’s sixth account,

optimistically captioned as the Estate’s “Sixth Final and Distributive Fiduciary’s Account,”

on August 25, 2010, as well as an application for authority to pay attorney’s fees and an

application for authority to pay fiduciary fees.

       {¶ 24} The Estate’s sixth account covered the period running from March 28, 2003,


10 In relevant part, R.C. 2109.301(B)(4) states that “[a]fter [an estate’s] initial account is
rendered or a waiver of a partial account is filed, every * * * executor shall, at least once
each year, render further accounts or file waivers of partial accounts until the estate is
closed.”
                                                                                            -13-


to May 31, 2009; listed a disbursement for attorney’s fees in the amount of $263,178.31;

and further listed a disbursement for fiduciary fees in the amount of $3,547.00. In the

application for authority to pay attorney’s fees, Ted sought permission to pay $282,353.75

to PWMA for services rendered from November 18, 2002, through June 30, 2009, and in

the application for authority to pay fiduciary fees, Ted requested that he be paid

$50,000.00 for his service to the Estate.11 Dan and Harry jointly moved to strike the

application for authority to pay attorney’s fees on September 3, 2010; jointly filed

discovery requests on September 15, 2010; and jointly submitted exceptions to the sixth

account on September 20, 2010, in which they also objected to the application for

authority to pay attorney’s fees and the application for authority to pay fiduciary fees.

       {¶ 25} Beginning on December 14, 2010, the Probate Court held a hearing on the

Estate’s sixth account and the related applications. The hearing concluded at the end of

its sixth day, on February 25, 2011, and on July 27, 2011, a magistrate entered a decision

recommending that the account and the applications be approved. In a pair of entries

dated August 9, 2011, Dan and Harry were granted extensions of time in which to file

objections to the magistrate’s decision, with any objections being due within 30 days from

the date on which the Probate Court served the parties with notice that the transcript of


11  Ted’s previous application for authority to pay attorney’s fees was filed with the Estate’s
fifth account on April 25, 2003, and referred to services rendered from November 19,
2001, through October 29, 2002; presumably, PWMA did not render any billable services
from October 30, 2002, through November 17, 2002. Ted’s application for authority to
pay fiduciary fees did not specify the period for which he sought compensation. Through
the date of the application, the Estate’s accounts indicated that a total of $50,000.00 had
already been disbursed for payment of fiduciary fees. The Probate Court thus construed
the application as a request for retroactive approval of the Estate’s disbursements for
fiduciary fees, which the court granted. Entry Sustaining Objections in Part and
Rejecting Magistrate’s Decision 23 fn.1, July 29, 2013.
                                                                                        -14-


the hearing had been filed. The transcript was filed 14 months later, on October 4, 2012.

      {¶ 26} Dan filed objections on November 2, 2012, and on January 18, 2013, after

being granted several additional extensions of time, Harry filed objections of his own. On

July 29, 2013, the Probate Court sustained the objections in part and overruled the

objections in part. Among other things, the court overruled all of Dan’s discovery-related

objections; overruled Dan’s exceptions to the Estate’s payment of attorney’s fees during

the periods covered by the third, fourth and fifth accounts; approved the Estate’s payment

of $50,000.00 in fiduciary fees; and with respect to the application for authority to pay

attorney’s fees that the Estate had filed on August 25, 2010, reduced the approved

amount of attorney’s fees from $282,353.75 to $116,828,68.          See Entry Sustaining

Objections in Part and Rejecting Magistrate’s Decision 12-13, 17-21, 23-24 and 28-56,

July 29, 2013 [hereinafter Entry on the Sixth Account]. The court also ordered Ted to file

an amended sixth and final account in accord with its decision.

      {¶ 27} On August 26, 2013, Dan filed a notice of appeal from the order, followed

by the Estate on August 27, 2013, and by Harry on August 28, 2013. All three of these

appeals were dismissed for want of a final, appealable order on December 16, 2013.

      {¶ 28} With the appeals dismissed, the Probate Court entered an order on March

18, 2014, requiring Ted to file the Estate’s final account within 60 days. Ted did not meet

the court’s deadline, but on September 2, 2014, he moved for leave to file a non-

distributive final account, arguing that because objections to the final account would

almost certainly be forthcoming, the Estate should be permitted to retain assets to pay

attorney’s fees incurred in defense of the account. The court sustained the motion on

October 30, 2014.
                                                                                       -15-


       {¶ 29} On March 18, 2015, Ted filed the Estate’s final, non-distributive account.

Dan filed exceptions on April 27, 2015, and Harry filed exceptions on April 29, 2015.

Harry then filed a motion on July 31, 2015, asking that the Probate Court order the Estate

to pay the attorney’s fees he incurred in offering objections to the magistrate’s decision

of July 27, 2011. The Probate Court overruled Harry’s motion on August 20, 2015, and

four days later, it held a hearing on the exceptions to the Estate’s final account.

       {¶ 30} On May 18, 2016, a magistrate entered a decision recommending that the

final account be approved.       The Probate Court largely adopted the magistrate’s

recommendations in its judgment of August 30, 2016, leaving its earlier rulings on

attorney’s fees undisturbed. See Entry Sustaining in Part and Overruling in Part the

Objections to the Magistrate’s Decision 24-28, Aug. 30, 2016; compare with Entry on the

Sixth Account 24-55. Dan Weiner filed his notice of appeal on September 26, 2016,

followed by Harry Weiner on September 28, 2016, and the Estate on October 7, 2016.

After considerable litigation in this court, oral arguments were held on March 12, 2019.

                                        II. Analysis

       {¶ 31} We first address the Estate’s cross-assignment of error because its

disposition affects the disposition of assignments of error raised by Dan and Harry

Weiner. For its cross-assignment of error, the Estate contends that:

              THE TRIAL COURT ERRED BY DENYING THE ESTATE’S

       REQUEST FOR REASONABLE ATTORNEYS’ FEES BECAUSE THE

       SERVICES UNDERLYING THE REQUESTED FEES ARE PART OF

       ESTATE ADMINISTRATION.

       {¶ 32} In its application of August 25, 2010, the Estate requested authorization to
                                                                                          -16-


pay $282,353.75 in attorney’s fees to PWMA for the period running from November 18,

2002, to May 27, 2009, as well as $10,842.00 in attorney’s fees billed “for the period of

July, 2008 [sic] through June 30, 2009,” by another law firm, Graydon Head & Ritchey

LLP. A magistrate entered a decision on July 27, 2011, recommending in relevant part

that the application be approved, but in its subsequent entry, the Probate Court declined

to follow this recommendation. Instead, the court authorized payment of a portion of the

attorney’s fees billed by PWMA between November 18, 2002, and June 22, 2005, and

categorically disapproved the payment of any attorney’s fees incurred between June 23,

2005, and June 30, 2009.12 See Entry on the Sixth Account 28-55. According to the

Estate, the court erred by refusing to grant the application in its entirety. See Appellee’s

Brief 4-5 and 14.

       {¶ 33} Under R.C. 2113.36, if the executor of an estate engages an attorney to

assist with the administration of the estate, then reasonable attorney’s fees “paid by the

executor * * * shall be allowed as a part of the expenses of administration.” The probate

court must consider the factors set forth in Prof.Cond.R. 1.5(a)(1)-(8) in determining

whether, or to what extent, the amount to be paid by the executor is reasonable. See

Sup.R. 71(A); In re Estate of Kendall, 171 Ohio App.3d 109, 2007-Ohio-1672, 869 N.E.2d

728, ¶ 16-17 (2d Dist.). These factors include the amount of the attorney’s time required;

the difficulty of the issues presented; the expertise required of the attorney; the extent to


12 Ruling on the objections of Dan and Harry Weiner to the magistrate’s recommendation,
the Probate Court sustained the objections to the extent that they related “to the approval
of [any] attorney’s fees incurred between November 2, 2002, and June 30, 2009, that
[were] not specifically approved [by the court] in [the] Entry.” Entry on the Sixth Account
54-55. The court, however, did not specifically approve any attorney’s fees incurred
before November 18, 2002, or after June 22, 2005. See id. at 24-54.
                                                                                          -17-


which the attorney could not accept other employment while engaged by the executor;

the fee customarily charged for similar services in the locality; the amount billed to the

estate by the attorney; the results actually obtained by the attorney; the time limitations,

if any, imposed by the executor or by the circumstances; the nature and duration of the

attorney’s professional relationship with the executor; the attorney’s experience,

reputation and ability; and whether the attorney’s fee is fixed or contingent.          See

Prof.Cond.R. 1.5(a)(1)-(8); Estate of Kendall at ¶ 17.

       {¶ 34} The decision whether to approve or disapprove an estate’s payment of

attorney’s fees is within the “probate court’s sound discretion.” In re Estate of Davidson,

2d Dist. Montgomery No. 22943, 2009-Ohio-3014, ¶ 30, citing Estate of Kendall at ¶ 25;

see also In re Estate of Brady, 8th Dist. Cuyahoga No. 88107, 2007-Ohio-1005, ¶ 18; In

re Estate of Lazar, 11th Dist. Geauga No. 2003-G-2509, 2004-Ohio-1964, ¶ 15; In re

Estate of Fugate, 86 Ohio App.3d 293, 298, 620 N.E.2d 966 (4th Dist.1993). Thus, we

employ the abuse-of-discretion standard for our review of the Probate Court’s rulings.

Id. A court abuses its discretion when it exercises its authority in an unreasonable,

unconscionable or arbitrary manner. See, e.g., Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983); Feldmiller v. Feldmiller, 2d Dist. Montgomery No.

24989, 2012-Ohio-4621, ¶ 7, citing Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482

N.E.2d 1248 (1995); Lindsey v. Sinclair Broadcast Group, Inc., 2d Dist. Montgomery No.

19903, 2003-Ohio-6898, ¶ 19.

       {¶ 35} In the Entry on the Sixth Account, the Probate Court characterized the

withdrawal of the Estate’s first application for authority to distribute on June 30, 2005, as

“the beginning of [Ted Weiner and PWMA’s] efforts to obtain [attorney’s] fees incurred in
                                                                                             -18-


litigating” the Estate’s fifth account, in which Ted and PWMA had already “sought

[recovery of the attorney’s] fees incurred in administering the Estate.” Entry on the Sixth

Account 54. Thus, the court determined that the “fees incurred from that point forward

[were] ‘fees on fees on fees,’ or [in other words,] a second regression of * * * litigation”

over attorney’s fees.       Id.   The court deemed “these ‘fees on fees on fees’ [to be]

unreasonable from the Estate’s perspective” because the filing of the first application for

authority to distribute, the filing of the second application for authority to distribute, and

the filing of the proposed order for final distribution “resulted in additional discovery

disputes and hearings, further complicating and delaying * * * the closing of the Estate”

for “another ten years.” Id. Worse still, in the court’s view, “[t]he eventual withdrawal of

each of these filings rendered them and their associated disputes and hearings

duplicative and of minimal value, given that the [f]inal [a]ccount and [f]ee [a]pplications

resulted in disputes and hearings covering virtually the same ground.” Id.

       {¶ 36} We     find    that   the   Probate   Court   unreasonably     disregarded     the

circumstances by characterizing the entirety of Ted and PWMA’s activity, onward from

the withdrawal of the application, as devoted solely to the collection of fees. In the

application, Ted Weiner requested that the court hold a hearing “to resolve all outstanding

issues with the Estate,” including Dan Weiner’s then-pending objections to the Estate’s

fifth account, “as prelude to [the] filing of [a] [f]inal account.” Estate’s First Application to

Distribute Assets 1, Jan. 22, 2004. Taken at face value, the filing of the application

appears to have been a worthwhile effort to hasten the closure of the Estate, rather than

an effort to generate attorney’s fees by instigating further litigation, and the withdrawal of

the application was prompted by a change in the posture of the case—specifically, the
                                                                                           -19-


entry of the court’s decision on Dan Weiner’s exceptions to the fifth account.13 The court,

moreover, never acted on the application, which in any event produced no additional

litigation.

        {¶ 37} Like the filing of the first application, the filing of the Estate’s second

application for authority to distribute assets on October 13, 2005, appears to have been

a worthwhile attempt to close the Estate, although the proposed order for final distribution

filed on January 13, 2006, included a dubious provision related to “the Estate’s stated

intention to pursue” recovery of attorney’s fees incurred as the result of the alleged

“misconduct of Dan Weiner.” Estate’s Proposed Order of Distribution, Ex. A, Jan. 13,

2006; Transcript of Hearing on Estate’s Second Application for Distribution of Assets 9-

10, July 8, 2009. The provision in question would have authorized the Estate to withhold

“Dan Weiner’s one-third share of the Estate’s assets” until the expiration of the time in

which “any post-distribution motions [and] appeals” could have been filed, or alternatively,

until “any such motions [and] appeals” had been adjudicated. Estate’s Proposed Order

of Distribution, Ex. A.

        {¶ 38} Unlike the filing of the first application, the filing of the second application

did lead to further litigation, and the Probate Court acted on the application by ordering a

hearing, which was referred to a magistrate.          The hearing, spread over five days,

produced a surfeit of strutting and fretting, but it ultimately accomplished nothing. On the

first day, the magistrate could not address the substance of the application because



13 Had the application been granted, the result would have been a final, appealable order,
and the issuance of a final, appealable order in 2004 or 2005 would likely have forced an
end to the litigation many years ago. See R.C. 2109.36 (stating that a probate court’s
“order of distribution shall have the effect of a judgment”).
                                                                                          -20-


PWMA had failed to attach the necessary exhibits. In addition, PWMA reported that it

had inadvertently accepted a payment of fees from the Estate before the Probate Court

formally approved the payment. 14      The second day of the hearing was devoted to

pending discovery issues, instead of the application itself; the third day amounted to little

more than a status and scheduling conference; the fourth day was devoted, by order of

the court, to a predictably fruitless settlement conference.

       {¶ 39} Forty-three months after it began, the hearing ended on July 8, 2009—its

fifth day—with nothing resolved. The Probate Court had failed to serve notice of the

hearing on Ted Weiner, who therefore did not appear, and an attorney with PWMA, who

was a key witness, could not appear as the result of illness. Moreover, PWMA had not

submitted a corresponding application for payment of its attorney’s fees. Transcript of

Hearing on Second Application for Authority to Distribute 9-10, July 8, 2009. Although

the Probate Court indicated that the second application, like the first, was later withdrawn,

the docket includes no formal notice of withdrawal, and the court itself did not enter a

formal decision on the application.

       {¶ 40} We find that the filing of the second application was theoretically reasonable

from the Estate’s perspective, but the question of whether PWMA should be paid the full

amount of the fees it billed in connection with the application is another matter. The firm,

for example, repeatedly failed to submit necessary documentation in support of the

application, and its performance throughout the hearing on the application was not wholly



14 This discrepancy was later rectified. See Transcript of Hearing on Second Application
for Authority to Distribute 30-32, June 1, 2006; Transcript of Hearing on Second
Application for Authority to Distribute 62-66, July 8, 2009.
                                                                                         -21-


above reproach.

       {¶ 41} Nevertheless, we find further that the Probate Court erred by summarily

denying authorization for the Estate to pay any of PWMA’s fees incurred after June 22,

2005, without reviewing the nature of the services for which those fees were claimed or

the circumstances in which the services were rendered. Even assuming that some or

most of such services were not purely related to the administration of the Estate, the

Probate Court unfairly absolved Dan and Harry of their responsibility for the protracted,

redundant litigation over attorney’s fees and discovery. Furthermore, with all due respect

to the court, we note that its ruling on attorney’s fees incurred after June 22, 2005, does

not account for administrative issues, such as turnover among court personnel, the

intermittent omission of service of notice of proceedings on all parties, and delays in the

completion of hearings.

       {¶ 42} Dan and Harry’s dogged pursuit of litigation against the Estate, coupled with

an inconsistent administrative response, left Ted and PWMA with two options, both of

which presented potential problems.       First, they could have declined to participate

actively in the litigation after a certain date, hoping that any exceptions or motions filed

subsequently by Dan and Harry would not be sustained by default; or, second, they could

have chosen to continue with the litigation, hoping to close the Estate through a

proceeding that would yield a final, appealable order.         Many executors and their

attorneys might view the former option, whether rightly or wrongly, as less than true to the

spirit of Prof.Cond.R. 1.3 and, perhaps, as posing a risk of malpractice liability, though in

this case, it would doubtless have resulted in lower fees. On the other hand, many

executors and their attorneys might view the latter option, whether rightly or wrongly, as
                                                                                          -22-


a professional obligation, though it led the Estate to incur fees that, to some extent, were

potentially avoidable. PWMA, at times, failed to capitalize on opportunities to close the

Estate, yet such failures notwithstanding, the entirety of the Estate’s participation in the

litigation in this case after June 22, 2005, cannot fairly be characterized as exclusively the

pursuit of “fees, on fees, on fees,” even though the dispute over attorney’s fees was the

most contentious of the parties’ disputes, or at any rate, the longest-lived.

       {¶ 43} Strictly as it relates to the categorical denial of authorization to use assets

of the Estate to pay attorney’s fees incurred after June 22, 2005, by Ted Weiner, as

executor, we sustain the Estate’s cross-assignment of error in part and remand this case

to the Probate Court; otherwise the Estate’s cross-assignment of error is overruled in part.

On remand, the court must evaluate all services that were rendered after June 22, 2005,

and on or before June 30, 2009, indicating in each instance the reason for which payment

is authorized or not authorized, whether in part or whole. Having already held a hearing

and received evidence on these fees, the court, in its discretion, may determine that no

further hearing or submission of evidence is necessary.

       {¶ 44} For the first of his two assignments of error, Harry Weiner contends that:

              THE TRIAL COURT ERRED IN ALLOWING PAYMENT OF

       ATTORNEY FEES THAT WERE NOT REASONABLE, NECESSARY, OR

       FOR THE BENEFIT OF THE ESTATE.

       {¶ 45} Harry argues that all, or nearly all, of the time billed by PWMA represented

work that did not benefit the Estate, which he maintains “should have been closed in

2000.” See Brief of H.Weiner 11-12. In Harry’s accounting, PWMA spent its time either

on matters “unrelated to [the] administration [of the Estate],” such as the wrongful death
                                                                                          -23-


lawsuit instituted by Dan Weiner and the release sought by Ted Weiner, or “defending

[its] own fees.” See id. at 6-10 and 14-18. Accordingly, Harry asks that the Probate

Court’s judgment of August 30, 2016, be reversed to the extent that it incorporated that

part of the Probate Court’s earlier Entry on the Sixth Account in which the court approved

payment of some of the attorney’s fees billed to the Estate by PWMA. Id. at 23; see also

Entry on the Sixth Account 24-55.

       {¶ 46} Harry adds that he does “not object to all of [the] attorney[’s] fees [incurred

by Ted Weiner], [but] only to those [fees for services] that did not benefit the [E]state.”

(Emphasis in original.) See, e.g., Brief of H.Weiner 22. Even so, Harry reasons that

because the Estate “should have been closed in 2000,” the Probate Court erred by

approving payment of any attorney’s fees billed after that date, or at the latest, after March

26, 2001.15 See id. at 11-12. Billing for dates subsequent to March 26, 2001, in Harry’s

opinion, “was all [for] time spent [by PWMA] defending [its] fees.” See id. He directs

his request for relief, however, only to the foregoing provisions of the Entry on the Sixth

Account. Id. at 23.

       {¶ 47} In the first part of his argument, Harry faults the Probate Court for

authorizing payment of PWMA’s fees specifically for work related to the wrongful death

lawsuit instituted by Dan, because an “attorney[’s] time spent in pursuit of or ancillary to


15 Ted offered to resign as executor in his letter to Dan of March 26, 2001. Harry remarks
earlier in his brief that the Estate could have been closed in April 2002, at which point the
“administration work [was] already completed for $6,247.00” in attorney’s fees. Brief of
H.Weiner 13. Harry might have meant that the corresponding services were of benefit
to the Estate. But see id. at 10 (stating that after June 20, 2000, when Dan was replaced
by C. Terry Johnson as counsel for Ted in his capacity as executor, “time entries began
to appear [for work] related to [the] [E]state’s business,” but “by that time, the majority of
the work necessary for the administration of the [E]state was done”).
                                                                                               -24-

a wrongful death claim is not chargeable to [the decedent’s] estate.” See id. at 6. This

proposition is not necessarily a correct statement of the law.

       {¶ 48} An “iron-clad rule[,] other than the [rule] that [the] reasonable value [of an

attorney’s services] must be substantiated by the evidence,” is “impossible” to enforce

because the “facts and circumstances vary so much from case to case.” In re Love’s

Estate, 1 Ohio App.2d 571, 579, 206 N.E.2d 39 (10th Dist.1965). In place of an invariably

applicable rule, a probate court is invested with “sole discretion” to authorize the use of

an estate’s assets for “[t]he payment of reasonable attorney[’s] fees.” See In re Keller,

65 Ohio App.3d 650, 655-656, 584 N.E.2d 1312 (8th Dist.1989). The “only limitation is

that the attorney’s services [must be] beneficial to the estate.” See In re Estate of

Coleman, 55 Ohio App.3d 261, 262, 564 N.E.2d 116 (6th Dist.1988).

       {¶ 49} Moreover, if “the executor of an estate * * *, being under no obligation to

participate in litigation involving principally the interests of the beneficiaries under the will,”

chooses to participate “at the request of [the] beneficiaries in order to protect their

interests,” then the executor “is entitled to compensation for extraordinary services.”

Doty v. Peters, 106 Ohio App. 435, 155 N.E.2d 239 (12th Dist.1958), paragraph four of

the syllabus; see R.C. 2113.36; see also, e.g., Uniform Probate Code (1987), Section 3-

720 (stating that a “personal representative [who] defends or prosecutes any proceeding

in good faith[,] whether successful or not,” is entitled to payment “from the estate” of the

“necessary expenses and disbursements[,] including reasonable attorney’s fees”). In

this case, the beneficiaries of the Estate and the prospective beneficiaries of the wrongful

death lawsuit were the same three persons: Dan Weiner, Harry Weiner and Ted Weiner.

Dan requested authorization to commence the lawsuit in Ted’s name, and when Ted
                                                                                          -25-


refused, Dan simply proceeded in Ted’s name without authorization.

       {¶ 50} Regardless of whether Harry has presented a cognizable challenge to the

Probate Court’s approval of such fees—most of which were incurred before November

18, 2002—we find that the Probate Court did not abuse its discretion by approving the

Estate’s payment of attorney’s fees to PWMA for the firm’s work in relation to the lawsuit.16

As executor of the Estate, Ted Weiner was Joey Weiner’s personal representative.

Although he did not have an affirmative obligation, as executor, to participate in the lawsuit

on behalf of the Estate, he did have the option to involve the Estate at Dan’s request

inasmuch as the “litigation involv[ed] principally the interests of the beneficiaries under

[Joey Weiner’s] will.”   See Doty at paragraph four of the syllabus.         Ted’s eventual

decision to dismiss the lawsuit makes no difference; he cannot have had an affirmative

obligation to pursue claims for relief that were unsupported by the available evidence or

otherwise lacked merit.     See Entry and Order 1, Aug. 6, 2002.         Thus, the Probate

Court’s approval of fees related to the lawsuit was neither contrary to law, nor in disregard

of the evidence.

       {¶ 51} In the second part of his argument, Harry attempts to illustrate generally that

none of PWMA’s work benefitted the Estate. See Brief of H.Weiner 9-17. He suggests

that because “the majority of the work necessary for the administration of the [E]state”

was completed before Ted engaged PWMA to replace Dan, the services provided by

PWMA—particularly those provided after March 26, 2001—were unnecessary. See id.

at 10-11.


16 As noted, Harry formally requests the reversal of only that part of the Entry on the Sixth
Account in which the Probate Court approved a portion of PWMA’s fees for the period
running from November 18, 2002, to June 30, 2009.
                                                                                          -26-


       {¶ 52} On review of the Estate’s cross-assignment of error, however, we have

found that the Probate Court did not abuse its discretion with respect to its approval of

the majority of the fees billed by PWMA for the period running from November 18, 2002,

through June 22, 2005. The court reviewed the fees in question under the correct legal

standard and accurately cited the record in support of its conclusions pursuant to that

standard. Harry simply disagrees with the court’s application of the law, arguing in effect

that the court construed the concepts of “necessity” and “benefit” too liberally. See Brief

of H.Weiner 10-17; see also Entry Sustaining Objections in Part and Rejecting

Magistrate’s Decision 24-26.

       {¶ 53} Likewise, we find that the Probate Court did not abuse its discretion by

authorizing the payment of attorney’s fees incurred before November 18, 2002. Harry

argues that the Estate should not have been authorized to pay PWMA’s fees for

answering “questions Ted had concerning certain joint and survivor accounts in his

mother and Dan’s name[,] [or for providing] an analysis of law concerning undue

influence.” Brief of H.Weiner 10. Yet, as executor, Ted had the duty, among others, “to

marshal the assets of the decedent,” making his inquiries reasonable, even if not

absolutely necessary, from the Estate’s perspective. Reinhard v. Peck, 159 Ohio St.

116, 121, 111 N.E.2d 262 (1953); see also Long v. Long, 11th Dist. Trumbull No. 2007-

T-0047, 2007-Ohio-5909, ¶ 47, citing Reinhard at 121.

       {¶ 54} Harry also argues that “[n]one of the work” itemized in the Estate’s

application of June 26, 2001, for authorization to pay attorney’s fees “was time spent on

behalf of the [E]state or in assisting the executor to discharge his fiduciary duties.” Brief

of H.Weiner 10.     Apart from the foregoing inquiries, the application lists services
                                                                                          -27-


rendered for the preparation of the Estate’s second account, the substitution of Dan

Weiner as counsel for the executor, and the withdrawal of the wrongful death lawsuit

commenced by Dan. This was certainly “time spent * * * assisting the executor [with the]

discharge [of] his fiduciary duties,” and as executor, Ted had the discretion to replace

Dan. Id. Furthermore, we have determined that the Estate’s assets could properly be

used to compensate PWMA for its work on the lawsuit. We find, then, that Harry has not

offered any meritorious objections to the attorney’s fees incurred by Ted, as executor of

the Estate, before November 18, 2002, assuming for sake of analysis that Harry has

presented a cognizable challenge to such fees.17

        {¶ 55} In the third and final part of his argument, Harry discusses Ted’s conditional

offer to resign as executor, and to consent to Dan’s appointment, in exchange for a

release of liability. See Brief of H.Weiner 18-21. Harry criticizes the Probate Court’s

approval of PWMA’s fees in this respect because Ted sought the release “for his personal

benefit,” and not for the benefit of the Estate as a whole. Id. at 18. As well, Harry

emphasizes that, pursuant to the terms of the proposed release, he and Dan would have

been required not only to release Ted from liability arising from the management of the

Estate, but also to indemnify Ted against such liability, even though the Probate Court’s

entry of August 6, 2002, stated that Ted had “had cause to demand a written release prior

to stepping down as [e]xectuor,” not that Ted had had cause to demand a written

indemnification agreement.      Id. at 20; Entry and Order 2, Aug. 6, 2002.         In plain

language, Harry accuses Ted of “attempt[ing] to leverage his position by refusing to close

the [E]state” until the release was executed. Brief of H.Weiner 19.


17   See note 16.
                                                                                          -28-


        {¶ 56} Assuming for sake of analysis that Harry’s request for relief encompasses

the approval of such fees, we find that the Probate Court did not abuse its discretion.18

The Probate Court issued its entry of August 6, 2002, in response to “the motion of Dan

D. Weiner for [the] removal of Ted Weiner” as executor of the Estate. (Emphasis added.)

Entry and Order 1, Aug 6. 2002. In his motion, Dan stated that Ted should be removed

for “refus[ing] to re-file the [w]rongful [d]eath action,” and in his memorandum in support,

Dan argued that if the original “lawsuit had not been timely filed, [he] as [a]ttorney for the

Estate would have subjected Ted * * *, as [e]xecutor, to a probable lawsuit by the heirs

and next of kin for fail[ing] to * * * protect their legal rights under the wrongful death

statute.” (Emphasis added.) Motion of D.Weiner for Removal of T.Weiner 1, June 10,

2002; Memorandum of D.Weiner in Support of Motion for Removal of T.Weiner 2, July 9,

2002. Given that Dan, Harry and Ted would have been the exclusive beneficiaries of the

proceeds of a wrongful death action, Dan effectively represented to the Probate Court

that he and Harry were planning to sue Ted for refusing to proceed with the lawsuit.

Memorandum of D.Weiner in Support of Motion for Removal of T.Weiner 2; see also R.C.

2125.02(A)(1) (indicating that an action for wrongful death is “for the exclusive benefit of

the surviving spouse, the children, and the parents of the decedent”).

        {¶ 57} Furthermore, rather than refusing to close the Estate until the release was

executed, Ted simply exercised his right to remain executor, as designated by Joey

Weiner in her will. Harry complains, regardless, that “Ted had no right to demand”

indemnification from him for “any action which Dan might [have brought].”            Brief of

H.Weiner 20. Yet, Ted had no obligation to resign, and despite the fact that Ted’s


18   See note 16.
                                                                                         -29-


proposed release included indemnification provisions not expressly endorsed by the

Probate Court, Harry fails to demonstrate that the provisions were incompatible with the

Probate Court’s entry and order, or that Ted somehow violated the entry and order merely

by proposing the provisions.      The proposed provisions, for that matter, would have

required each of the heirs to indemnify both of the others, meaning that the release would

not have favored any individual heir to the detriment of the other two.        In essence,

PWMA’s work on the release was a defense of Joey Weiner’s choice of executor, and

because the successful defense of a decedent’s choice of executor is beneficial to the

decedent’s estate, the Probate Court neither committed an error of law nor disregarded

the evidence by approving the payment of PWMA’s fees with respect to the release,

particularly in the absence of any citation to the record demonstrating that the fees were

unreasonable in terms of the amount of hours billed, the hourly rate, or any other criterion

set forth in Prof.Cond.R. 1.5(a)(1)-(8). See Goff v. Key Trust Co. of Ohio, 8th Dist.

Cuyahoga No. 71636, 1997 WL 781793, *3 (Dec. 18, 1997).

       {¶ 58} We find that the Probate Court did not abuse its discretion by authorizing

the Estate to pay PWMA for its services related to the wrongful death lawsuit instituted by

Dan Weiner; for its services rendered from its initial engagement through June 22, 2005;

or for its services with respect to the release of liability proposed by Ted Weiner. Harry’s

first assignment of error is overruled.

       {¶ 59} For his second assignment of error, Harry Weiner contends that:

              THE TRIAL COURT ERRED IN DENYING HARRY WEINER’S

       REQUEST FOR ATTORNEY FEES[.]

       {¶ 60} Here, Harry argues that the Probate Court should have ordered the Estate
                                                                                          -30-


to pay the attorney’s fees he incurred for his filing of January 18, 2013, in which he raised

objections to the magistrate’s recommendation of July 27, 2011, that the Probate Court

approve the payment of the full amount of attorney’s fees stated in PWMA’s application

of August 25, 2010.19 Brief of H.Weiner 21. He implies that he is solely responsible for

convincing the Probate Court to authorize only a portion of the attorney’s fees sought by

PWMA. Id. at 21-22 (referring to the Probate Court’s decision of July 29, 2013).

         {¶ 61} Our finding that the Probate Court abused its discretion by categorically

disallowing the payment of any of PWMA’s fees incurred after June 22, 2005, renders this

assignment of error moot. Even otherwise, Harry’s argument disregards the fact that the

objections he raised in his filing of January 18, 2013, were largely duplicative of the

objections Dan had raised in his filing of November 2, 2012, which means that the Probate

Court’s refusal to authorize payment of the full amount of PWMA’s application of August

25, 2010, is not necessarily traceable to Harry’s objections of January 18, 2013. Harry’s

second assignment of error is overruled.

         {¶ 62} For his first assignment of error, Dan Weiner contends that:

               THE PROBATE COURT ERRED BY DENYING DAN DISCOVERY

         OF DOCUMENTS ON THE CLAIM OF ATTORNEY CLIENT AND/OR

         WORK PRODUCT PRIVILEGE.

         {¶ 63} Dan requested production of an exhaustive array of documents in support

of his objections to the Estate’s payment of attorney’s fees to PWMA. See, e.g., Brief of

D.Weiner 6-11. Here, Dan refers to the documents listed on “the Weiner Estate Privilege

Log,” arguing, alternatively, that all of these documents should have been subject to


19   The application covered the period running from November 18, 2002, to June 30, 2009.
                                                                                          -31-


discovery: (1) because Ted expressly waived attorney-client privilege “by testifying on the

issue of * * * attorney’s fees”; (2) because Ted’s applications for permission to pay

PWMA’s fees from the Estate’s assets constituted an implied waiver; or (3) because the

filing of objections to the Estate’s payment of attorney’s fees constituted good cause for

discovery of the documents, privilege notwithstanding. See Brief of D.Weiner 1 and 14-

15.

       {¶ 64} Aside from his reference to the Weiner Estate Privilege Log, which lists 317

documents, Dan has not specified exactly which of the documents listed in the log were

disclosed to him in discovery and which were not, but a cursory inspection of the log

suggests that many of the documents were actually disclosed, at least in redacted form—

for example, the first listing in the privilege log is “[i]temized [b]reakdown of [h]ours and

[t]otals,” of which several copies appear in the record. The log likewise lists the firm’s

invoices, all or nearly all of which appear to have been attached to the Estate’s

applications for authorization to pay attorney’s fees, as well as correspondence directed

to Dan himself.

       {¶ 65} We find, as a result, that Dan has not satisfied his burden on appeal to

demonstrate error on the part of the Probate Court because he has not specified which

of the documents, or portions thereof, in the Weiner Estate Privilege Log were improperly

deemed by the court to be subject to privilege, or for that matter, which of his requests for

production were improperly deemed to relate to privileged materials.         See generally

App.R. 16(A)(7); Camp v. Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-

3650, ¶ 67 (noting that an “appellant bears the burden of affirmatively demonstrating error

on appeal”); see also Transcript of Hearing on Second Application for Authority to
                                                                                       -32-


Distribute 16-22, June 1, 2006.    Even otherwise, Dan’s arguments lack merit.       The

statutory attorney-client privilege may be waived only expressly, and not by implication,

but assuming for sake of analysis that Ted Weiner expressly waived the statutory privilege

to permit PWMA to testify regarding the value of its fees, the scope of the waiver would

have been limited to the same subject—that is, the nature of the fees themselves—rather

than applying indiscriminately to all work product or attorney-client communications

between Ted and PWMA. See, e.g., R.C. 2317.01(A)(1); Civ.R. 26(B); Squire, Sanders

& Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937

N.E.2d 533, ¶ 18-21, 33-40 and 54-60; Zimpfer v. Roach, 2017-Ohio-8437, 99 N.E.3d

1169, ¶ 28-37 (3d Dist.); Hollingsworth v. Time Warner Cable, 157 Ohio App.3d 539,

2004-Ohio-3130, 812 N.E.2d 976, ¶ 63-65 (1st Dist.).

      {¶ 66} Similarly, with respect to the work-product exception to the attorney-client

privilege, Dan bore the burden to establish his need for the documents he sought,

meaning that he had to demonstrate that they were relevant to the issue of PWMA’s fees

and were otherwise unavailable to him. Squire, Sanders & Dempsey at ¶ 56-57, citing

Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16; see also

Civ.R. 26(B). Given the considerable quantity of documents produced to Dan after the

magistrate’s in camera inspection of PWMA’s files, the record of this case provides no

support for a finding that the Probate Court erred by failing to consider whether any

documents not produced were relevant and otherwise unavailable.            For all of the

foregoing reasons, Dan’s first assignment of error is overruled.

      {¶ 67} For his second assignment of error, Dan Weiner contends that:

             THE PROBATE COURT ERRED AS A MATTER OF LAW AND/OR
                                                                                          -33-


       ABUSED ITS DISCRETION WHEN IT FOUND THAT THE EXECUTOR

       COULD REFUSE TO CLOSE THE ESTATE UNTIL THE BENEFICIARIES

       EXECUTED A RELEASE WHEN THE DEMANDED RELEASE ALSO

       INCLUDED INDEMNIFICATION, CONTRARY TO PUBLIC POLICY.

       {¶ 68} On June 10, 2002, Dan moved the Probate Court under R.C. 2113.18 to

remove Ted from his position as executor for “refus[ing] to re-file the [w]rongful [d]eath

action in the Montgomery County Common Pleas Court[,] although [asked] to do so.”

Application for Removal of Fiduciary 1, June 10, 2002. Following a hearing, Judge

Gounaris overruled the motion in a decision filed on August 6, 2002. Judge Gounaris

found, among other things, that Ted “had cause to demand a written release prior to

stepping down as [e]xectuor” because Dan “had threatened to sue [Ted] on numerous

occasions.” Entry and Order 2, Aug. 6, 2002.

       {¶ 69} Despite the apparent implication of his assignment of error, Dan actually

argues that the Probate Court erred in its entry of July 29, 2013, by finding that the issue

of the release was res judicata as a result of this court’s opinion affirming the decision

entered by Judge Gounaris. Brief of D.Weiner 16-17; see also In re Estate of Weiner,

2d Dist. Montgomery Nos. 19533 & 19564, 2003-Ohio-3408, ¶ 10-17. Dan maintains

that because “the parties never fully and actually litigated the issue” of the release before

the Probate Court, our decision had no “preclusive effect” because the issue of the

release was beyond the scope of his appeal. Brief of D. Weiner 17-18. He also argues

that our earlier opinion was not dispositive because we based the holding “solely on [his]

failure to obtain a transcript of the hearing” on his motion for Ted’s removal, rather than

on a review of the merits of Judge Gounaris’s decision. Id. at 18.
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       {¶ 70} We find that these arguments lack merit. The record establishes that Ted

requested a release of liability in exchange for his voluntary resignation as executor, not

as a condition precedent for closing the Estate. See Entry and Order 1-2, Aug. 6, 2002;

Exceptor’s Exhibit 9, Sept. 10, 2003. As we have observed, Ted’s mere proposal of the

indemnification provisions, which Judge Gounaris did not address, was not of itself a

violation of the law or otherwise improper, and for that matter, Ted would have been

obligated to indemnify Dan and Harry.

       {¶ 71} In any event, our earlier opinion is dispositive, irrespective of the fact that

we relied on Dan’s failure to meet his burden on appeal. See, e.g., App.R. 10(A); Knapp

v. Edwards Laboratories, 61 Ohio St.2d 197, 199-200, 400 N.E.2d 384 (1980). Dan’s

second assignment of error is overruled.

       {¶ 72} For his third assignment of error, Dan Weiner contends that:

              THE PROBATE COURT ERRED WHEN IT AWARDED ATTORNEY

       FEES WITHOUT          DETERMINING WHETHER               THE    FEES     WERE

       INCURRED FOR THE BENEFIT OF THE ESTATE.

       {¶ 73} Dan argues that the Probate Court erred by authorizing the payment of the

attorney’s fees reflected in the Estate’s fifth and sixth accounts, which were “not beneficial

to the [E]state.” Brief of D.Weiner 20. Our disposition of the Estate’s cross-assignment

of error, however, resolves this issue. Dan’s third assignment of error is overruled.

       {¶ 74} For his fourth assignment of error, Dan Weiner contends that:

              THE PROBATE COURT ERRED BY DENYING DAN WEINER HIS

       CONSTITUTIONAL DUE PROCESS RIGHTS DURING THE SIXTH

       ACCOUNT EXCEPTION HEARINGS.
                                                                                          -35-


       {¶ 75} Finally, Dan argues that the Probate “Court violated [his] constitutional

rights to due process by, inter alia, failing to bring the boxes containing the record as

promised; curtailing his cross[-]examination of Mr. Hallinan[, an attorney with PWMA];

impeding his cross[-]examination of Ted because [he] did not have sufficient copies of the

exhibits, even though a projector was available to display the exhibits * * *; and refusing

to admit relevant and probative exhibits.” Brief of D.Weiner at 24. We find that this

argument has no merit.

       {¶ 76} The Probate Court, like all trial courts, had “the inherent power to regulate

the practice before it and [to] protect the integrity of its proceedings.” Royal Indem. Co.

v. J.C. Penney Co., Inc., 27 Ohio St.3d 31, 33-34, 501 N.E.2d 617 (1986), citing D.H.

Overmyer Co. v. Robson, 750 F.2d 31 (6th Cir.1984), and Smith v. Brock, 532 P.2d 843

(Okla.1975). Regardless of whether the Probate Court gratuitously promised to provide

Dan with copies of items already on record, the court had no such obligation as a matter

of law, and its alleged failure to provide copies of items on record does not constitute a

violation of Dan’s right to due process. Having reviewed the transcript of the court’s

hearing on the exceptions to the Estate’s sixth account, we find that the court reasonably

limited Dan’s cross-examination to relevant matters, and that the court reasonably

expected Dan to provide copies of exhibits he intended to introduce for the court itself

and opposing counsel, as well as for any witnesses he intended to examine using such

exhibits.   Furthermore, despite Dan’s assertion that he was prevented from “fully

litigating” the attorney’s fees reflected in the Estate’s third and fourth accounts, he did

have “the opportunity to elicit testimony and present evidence” in support of his

exceptions to those accounts “at the hearing on [his objections to] the [f]ifth [a]ccount,” as
                                                                                         -36-


the court observed in its decision of July 29, 2013. Entry on the Sixth Account 20-21;

Brief of D.Weiner 24.

       {¶ 77} Most importantly, Dan has not demonstrated that he was prejudiced by the

Probate Court’s regulation of the proceedings. See, e.g., Blevins v. Blevins, 2d Dist.

Greene No. 2018-CA-23, 2019-Ohio-297, ¶ 36-37. Dan’s fourth assignment of error is

overruled.

                                      III. Conclusion

       {¶ 78} Regarding attorney’s fees incurred by Ted Weiner, as executor, we find that

the Probate Court erred when it summarily denied authorization for the Estate to pay any

attorney’s fees incurred after June 22, 2005; otherwise, we affirm the court’s rulings on

the Estate’s payment of attorney’s fees. We find further that the Probate Court did not

err by overruling Harry Weiner’s application for payment of his attorney’s fees or by finding

that Ted Weiner could demand a release of liability in exchange for his voluntary

resignation as executor of the Estate. Finally, we find that Dan has not met his burden

on appeal to demonstrate that the Probate Court erred in its resolution of his discovery

disputes with the Estate, and that the court did not violate Dan’s right to due process at

the hearing on the exceptions to the Estate’s sixth account.

       {¶ 79} The Probate Court’s final judgment of August 30, 2016, is therefore affirmed

in part and reversed in part, and the case is remanded to the court for further proceedings

consistent with this opinion. As a matter of law, all rulings made previously by the court

were merged into the final judgment upon its entry. Consequently, with the exception of

the single issue to be considered by the court on remand, the court is divested of the

ability to review or reconsider any questions of law or fact on which it has not been
                                                -37-


reversed.



                                .............



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

David P. Williamson
Justine Z. Larsen
Dan D. Weiner
Robin D. Miller
Hon. Alice O. McCollum
