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Estate of Brunger

Court of Appeals of Ohio, Eleventh District, Portage

September 3, 2019


          Civil Appeal from the Portage County Court of Common Pleas, Probate Division. Case No. 2016 ES 537.

         Judgment: Affirmed.

          S. Kim Kohli, pro se, (Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Attorney S. Kim Kohli, appeals from the decision of the Portage County Court of Common Pleas, Probate Division, denying her motion for extraordinary attorney fees following a hearing upon remand from this court. Appellant's motion relates to services she performed during the administration of the Estate of Eleanor Faye Brunger, a.k.a. Eleanor F. Brunger, a.k.a. Eleanor Brunger, Deceased. The probate court's judgment is affirmed.

         {¶2} On December 1, 2017, appellant filed a motion for extraordinary attorney fees and an application/computation of estate attorney fees totaling $2, 395.01. The value of the estate, adjusted for the real value of personal property sold, is $11, 987.85. For an estate of that value, Portage County Probate Court Local Rule 71.2(B) and (K) provides that attorney fees are presumed reasonable and allowable at a rate of 4%. Thus, according to that rate, appellant requested $479.51 in ordinary fees. Appellant requested an additional $1, 915.50 in extraordinary fees.

         {¶3} Attached to the motion and application was an itemized fee bill detailing the dates and types of services provided to the estate and the hourly rate for those services. Appellant calculated the fees and costs for the services she provided to the estate from October 2016 through October 2017 at $2, 819.09 for 12.25 hours of work. Appellant indicated she would accept $2, 395.01 as total payment, presumably because, as stated in the First Partial Account, this is the amount remaining in the estate after all other disbursements have been made.

         {¶4} Simultaneously, a "consent to payment of attorney fees outside court guidelines" was filed by each beneficiary of the estate: Glenna L. Hovatter (fiduciary of the estate and decedent's daughter); Cheryl D. Lutes (decedent's daughter); Jennifer McPherson (decedent's granddaughter); and a representative of the Medicaid Division of the Ohio Attorney General's Office. Also accompanying these documents was a Final Account, Receipts, and Disbursements.

         {¶5} On December 14, 2017, the probate court summarily denied appellant's motion for extraordinary fees, without a hearing, finding the "attorney's fees requested are not extraordinary."

         {¶6} The clerk of courts returned the Final Account, Receipts, and Disbursements for appellant to make corrections that would reflect the probate court's ruling. Appellant filed the First Partial Account on January 10, 2018, which reflects an undistributed balance of $2, 395.01.

         {¶7} On January 12, 2018, appellant filed a notice of appeal from the probate court's summary denial of her motion for extraordinary fees. Appellant first argued the probate court abused its discretion by denying her motion without holding a hearing. This court concluded the probate court did not abuse its discretion in failing to hold a hearing, because the affected parties did not challenge appellant's motion or the contents of the itemized fee bill and they approved the application for attorney fees. In re Estate of Brunger, 11th Dist. Portage No. 2018-P-0003, 2018-Ohio-4474, ¶10 (relying on Portage County Probate Court Local Rule 71.2(E)&(G)).

         {¶8} This court found merit, however, with appellant's second argument, that the probate court abused its discretion in denying her motion without determining whether the requested fees were necessary and reasonable. We remanded the matter to the probate court, stating:

The probate court summarily denied the request for extraordinary fees, stating, without analysis or discussion, that 'the fees requested are not extraordinary.' The probate court was not bound to accept appellant's itemization of services she performed on behalf of the estate. It is impossible, however, to discern whether the probate court analyzed the reasonable value of the ordinary and necessary services appellant did provide to the estate. Without more of an indication as to the probate court's reasoning for denying all the requested fees, over and above the $479.51 presumed reasonable, we must remand for further proceedings.
* * *
It appears from the information contained in appellant's itemized bill that there were at least two significant matters to address in relation to the size of the estate. The first was the resolution of a significant debt related to the mobile home owned by the decedent. The second was a negotiation with the Ohio Attorney General's office with regard to a Medicaid lien. Finally, it is not clear how the balance of the estate would be distributed based on the disapproval of appellant's requested fees. This may be relevant to an assessment of the reasonableness in relation to the size of the estate.
We conclude the denial of appellant's motion without determining the reasonable value of legal services provided by appellant to the estate was an abuse of discretion.

Brunger, supra, at ¶21-24, citing In re Estate of Murray, 11th Dist. Trumbull No. 2004-T- 0030, 2005-Ohio-1892, ¶24.

         {¶9} Following remand, on December 13, 2018, the probate court held a hearing on appellant's motion. Appellant was present, as well as Glenna L. Hovatter, fiduciary of the estate. Appellant submitted she was entitled to extraordinary attorney fees because of the following:

. Opening the estate with a purported will at the executor's request and attempting to locate witnesses to validate the will
. Modifying the paperwork to proceed intestate after the will was deemed invalid
. Preparing a bill of sale and requesting the court's consent to sell a used television
. Contacting the decedent's nursing home multiple times to obtain a refund of overpayment
. Corresponding with the funeral home for a refund of prepaid ...

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