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Estate of Hards

Court of Appeals of Ohio, Eleventh District, Geauga

August 21, 2017

ESTATE OF: BERTINA HARDS, DECEASED.

         Civil Appeal from the Geauga County Court of Common Pleas, Probate Division. Case No. 02 PE 000194.

          Frank J. Witschey, Craig S. Horbus, and Daniel E. Kandray, Witschey Witschey & Firestine Co., LPA, (For Appellant).

          Jacqueline Adams, pro se, (Appellee).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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.

         {¶2} 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.[1] 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.

         {¶3} 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. 4705.01.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} WWF was permitted to file certain documents in support of its application for fees under seal.

         {¶9} 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.

         {¶10} WWF filed a timely appeal and assigns one ...


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