Court of Appeals of Ohio, Eleventh District, Geauga
Appeal from the Geauga County Court of Common Pleas, Probate
Division. Case No. 02 PE 000194.
J. Witschey, Craig S. Horbus, and Daniel E. Kandray, Witschey
Witschey & Firestine Co., LPA, (For Appellant).
Jacqueline Adams, pro se, (Appellee).
TIMOTHY P. CANNON, J.
The law firm of Witschey Witschey & Firestine Co., LPA
("WWF") (appellant herein) appeals from the Geauga
County Court of Common Pleas, Probate Division's, denial
of WWF's application for attorney fees. Jacqueline Adams,
as administrator of the Estate of Bertina Hards (appellee
herein), has not filed a brief on appeal. For the following
reasons, the probate court's judgment is reversed, and
the matter is remanded.
Bertina Hards' estate was opened in the probate court in
2002; Ms. Adams was appointed the administrator. The law firm
of Michael A. Shore Co., L.P.A. ("Shore"), filed a
lawsuit in the Geauga County Court of Common Pleas against
Ms. Adams, as the estate administrator, and against Ms. Adams
and Kenneth Adams, individually, seeking payment for legal
services. In 2004, the Adamses moved for summary
judgment and sought a determination regarding whether
Shore's claims were frivolous. Shore, supra, at
¶10. The final hearing in that matter did not take place
until 2015. Id. at ¶15. On August 20, 2015, the
common pleas court found Shore's complaint was frivolous
and awarded the Adamses $10, 000.00 as reasonable
compensation for the expenses they incurred as a result.
Id. at ¶17.
The Adamses filed a notice of appeal, pro se, from the common
pleas court's decision, and Shore filed a cross-appeal.
Id. at ¶1. This court issued a judgment entry
on December 28, 2015, which held the Adamses were only
permitted to proceed on appeal in their individual
capacities, not on behalf of the estate, as they are not
licensed counsel in Ohio. Citing Kinasz v. S.W. Gen.
Health Ctr, 8th Dist. Cuyahoga No. 100182,
2014-Ohio-402, ¶14 ("Under Ohio law, a non-attorney
personal representative of an estate may not litigate claims
on behalf of the estate pro se because allowing a pro se
litigant to represent others would constitute the
unauthorized practice of law."); see also R.C.
In the case sub judice, WWF represents it was hired by the
estate on an hourly fee basis to resolve procedural issues in
the previous appeal, including Ms. Adams' inability to
represent the estate pro se, and that no portion of the fee
agreement involved contingent fees.
On June 27, 2016, WWF filed an administrative claim in the
probate court, providing notice of its performance of legal
services on behalf of the estate in appellate case No.
2015-G-0038, which occurred prior to this court dismissing
the estate from that appeal. WWF requested that the probate
court allow and instruct Ms. Adams, as administrator of the
estate, to pay its counsel fees from estate assets. WWF
attached a copy of the bill for the court's reference,
which totaled $9, 851.26. Ms. Adams, as administrator, filed
a brief in opposition to WWF's application for fees.
WWF and the Adamses appeared before the probate court on
October 18, 2016. WWF requested the court allow it to present
evidence in support of its application for fees. The court
recessed to research whether the Adamses were permitted to
oppose the claim pro se. Upon return to the bench, the
probate court stated: "I did have a chance to remind
myself that this is a claim by the Witschey Law Firm against
the Estate for attorney's fees that were not - for
attorney services that were not submitted to or approved by
this Court. As far as I'm concerned, that's game,
set, and match. Your motions are denied." Upon WWF's
objection, the probate court stated: "You can't run
up a tab by providing legal services to an administrator
without coming through the Court to get those services
approved. You didn't do it. Your motion's denied. You
want to take it up, you know where to go." No more
discussion was had on the record.
The probate court issued an entry to this effect on October
27, 2016. It held, in relevant part: "The Probate Court
was not informed of the appellate action and was not asked to
approve the estate's retention of attorney Witschey prior
to his providing legal services. Moreover, the Court did not
approve the estate's retention of attorney Witschey or
his firm. Therefore, attorney Witschey's administrative
claim is denied." The probate court cited no case law,
statutory law, or rule in support of its decision.
WWF was permitted to file certain documents in support of its
application for fees under seal.
WWF had also requested findings of fact and conclusions of
law, which the probate court denied on November 4, 2016. In
its entry, the court stated it had "provided sufficient
basis, to wit: The applicant did not get attorney fees
approved [by] the Court, pursuant to the Ohio statute and the
Court's local rules. Therefore, the Court previously
rendered its decision, and that decision sufficiently set
forth the basis of its ruling." It referenced, for the
first time, that it had denied the application on the
authority of R.C. 2117.25 and its own Local Rule 11.
WWF filed a timely appeal and assigns one ...