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In re Estate of Weiner

Court of Appeals of Ohio, Second District, Montgomery

June 14, 2019

IN THE MATTER OF THE ESTATE OF JOEY WEINER

          Appeal from Common Pleas Court, Probate Division Trial Court Case No. 1998 EST 322246

          DAVID P. WILLIAMSON, Atty. Reg. No. 0032614 and JUSTINE Z. LARSEN, Atty. Reg. No. 0095525, Attorneys for Appellant/Cross-Appellee, Harry Weiner

          DAN D. WEINER, Atty. Reg. No. 0008179, Appellant/Cross-Appellee, pro se

          ROBIN D. MILLER, Atty. Reg. No. 0074375, Attorney for Appellee/Cross-Appellant, the Estate of Joey Weiner

          OPINION

          TUCKER, J.

         {¶ 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 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 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 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 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 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 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, 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.

         {¶ 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 memoranda]." 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.

         {¶ 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 [conference." 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 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, 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 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 ...


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