Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Guardianship of Bess

Court of Appeals of Ohio, Ninth District

September 26, 2007

IN THE MATTER OF THE GUARDIANSHIP OF: VINA BESS

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2004 GA 224

JAMES T. STIMLER, Attorney at Law, for appellant.

MARK W. BERNLOHR and SARAH B. CAVANAUGH, Attorneys at Law, for appellee.

DECISION AND JOURNAL ENTRY

DONNA J. CARR

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

{¶1} Appellant, James T. Stimler, appeals the decision of the Summit County Court of Common Pleas, Probate Division, awarding him $5, 000 in attorney fees. This Court affirms.

I.

{¶2} Vina Bess is an 88-year-old woman currently under guardianship in the Summit County Probate Court. Mrs. Bess has two children: a daughter Phyllis A. Croghan, and a son, Paul Bess. Prior to the appointment of a guardian, the financial affairs of Mrs. Bess were handled by Phyllis Croghan pursuant to a power of attorney. When Mrs. Bess's health deteriorated, Mrs. Croghan filed an application seeking to be appointed her mother's guardian. Mr. Bess objected to his sister's appointment as guardian. Prior to a hearing on the appointment of a guardian, the court appointed attorney Scott A. Stevenson as guardian ad litem to render a report as to the best interests of Mrs. Bess. The guardian ad litem recommended that an independent third party be appointed as guardian.

{¶3} According to the guardian ad litem's report, there were three cases pending in the Summit County court system involving the parties in the present matter. The first case was the guardianship that is the subject of this appeal. The second case was a civil action brought by Phyllis Croghan against Paul Bess seeking the return of $75, 000 that Mr. Bess withdrew from a joint and survivorship account titled in the names of Vina Bess and Paul Bess, and that is also the subject of this appeal. The third case was a lawsuit filed by Paul Bess against appellant for libel, slander, intentional infliction of emotional harm and malicious prosecution. Eventually, the parties withdrew their motions and the probate court appointed attorney George Wertz as Mrs. Bess's guardian. Mr. Wertz dismissed appellant and hired a different attorney to handle the collection case.

{¶4} Appellant remitted a fee application for the amount of $46, 892.71 for handling the collection case and the guardianship proceeding. This amount does not include fees received by appellant through earlier requests. Previously, appellant was paid $33, 389.00 for services rendered on the collection case, the guardianship case, and basic estate planning. Payment was made from the assets of Mrs. Bess prior to the appointment of a guardian pursuant to a power of attorney with Phyllis Croghan as the agent. A hearing on appellant's fee application was held on May 5, 2005. Following the hearing, the magistrate issued an order recommending that appellant be awarded $5, 000.00 for his services.

{¶5} Appellant filed objections to the magistrate's decision, appellee filed a response to appellant's objections, and both sides filed proposed findings of fact and conclusions of law. The magistrate issued a second decision, setting forth his findings of fact and conclusions of law, and again appellant filed objections. Appellant failed to file a transcript of the fee application hearing. This Court notes that appellee attached a transcript of the fee application hearing to his response to appellant's objections to the magistrate's decision. However, as the party objecting to the magistrate's decision, it was appellant's duty to provide a transcript of the fee application hearing.

{¶6} The probate court held a hearing on appellant's objections on April 3, 2006. The probate court overruled appellant's objections and adopted the magistrate's decision, finding that appellant's services were reasonably worth an additional sum of $5, 000.00. In its decision, the probate court noted that appellant, the objecting party, had failed to provide a transcript as required by Civ.R. 53.

{¶7} Appellant timely appealed the probate court's award, setting forth four assignments of error for review. Some of the assignments of error have been combined ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.