Court of Appeals of Ohio, Eleventh District, Portage
ESTATE OF: ELEANOR FAYE BRUNGER, a.k.a. ELEANOR F. BRUNGER, a.k.a. ELEANOR BRUNGER, DECEASED.
Appeal from the Portage County Court of Common Pleas, Probate
Division. Case No. 2016 ES 537.
Kohli, pro se, (Appellant).
TIMOTHY P. CANNON, J.
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.
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.
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
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.
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
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.
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)).
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
* * *
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,
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 ...