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In re Estate of Schwenker

Court of Appeals of Ohio, Tenth District

June 27, 2019

In the Matter of: The Estate of Charles V. Schwenker: William V. Schwenker, Co-Fiduciary of the Estate of Charles V. Schwenker, Appellant.

          Appeal from the Franklin County Court of Common Pleas, Probate Division Prob. No. 573773.

         On brief:

          Fisher, Skrobot & Sheraw, LLC, Matthew J. Kunsman, and David A. Skrobot, for appellant.

          Bailey Cavalieri, LLC, Dan L. Cvetanovich, and Robert R. Dunn, for appellee.

         Argued:

          Robert R. Dunn.

          DECISION

          DORRIAN, J.

         {¶ 1} Appellant, William V. Schwenker, co-fiduciary of the Estate of Charles V. Schwenker ("decedent"), appeals from an entry of the Franklin County Court of Common Pleas, Probate Division, approving in part the application for attorney fees submitted by appellee Bailey Cavalieri, LLC, attorneys for the estate.

         {¶ 2} Decedent died intestate in Franklin County on February 17, 2015. His two adult children, William V. Schwenker and Diana S. Anderson, shared the estate equally. After a brief period in which the probate court appointed a creditors' agent as administrator, several versions of the will were located and filed, and the court appointed decedent's children, William and Diana, as co-executors on October 15, 2015. Discovery and submission of a later will and codicils followed, but there was ultimately no controversy over which effective documents would govern distribution.

         {¶ 3} The co-executors retained Attorney Robert R. Dunn of the law firm Bailey Cavalieri, LLC, to administer the estate, pursuant to an hourly fee agreement payable upon closing the estate. Eventually, each co-executor retained personal counsel as well. On June 1, 2017, the co-executors and Attorney Dunn submitted the first partial accounting for the estate. On June 27, 2017, Attorney Dunn filed an application for attorney fees and costs requesting the court approve his application in the amount of $73, 995.00 in fees and $941.96 in costs for services for the period September 2, 2015 through June 20, 2017. The fee application included the final estimated cost to close the estate.

         {¶ 4} William contested the fee application, asserting it was excessive given the straightforward nature of the estate and the number of non-probate assets. The application was heard before a magistrate on July 28 and August 15, 2017. The parties, William on one hand and Attorney Dunn and his firm on the other, presented contrasting expert testimony regarding the reasonable amount of fees for a comparable estate. The magistrate rendered a decision on September 15, 2017 approving fee application in the slightly reduced amount of $73, 291.00 and $941.96 in costs. The magistrate found factually that, to the extent that attorney fees exceeded the expectation of the beneficiaries, the fees were partially the result of contentious conduct between the co-executors and their difficulty in cooperating to perform their fiduciary duties.

         {¶ 5} William filed objections to the magistrate's decision on September 29, 2017. On April 3, 2018, the probate court entered judgment overruling William's objections for the most part, sustaining them in minor respects, and reducing the fee award by $5, 000.

         {¶ 6} Attorney Dunn requested permission on January 19, 2018 to resign as counsel for the co-executors. The probate court conditioned the resignation upon the filing of a final account. When the co-executors refused to sign the final account as presented, Attorney Dunn requested the court lift this condition, which was granted and Attorney Dunn's resignation was accepted on April 16, 2018.

         {¶ 7} William filed his notice of appeal from the probate court's final judgment on May 3, 2018. Diana has neither appealed nor appeared before this court. ...


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