Shore v. Hards
2017 Ohio 7123
| Ohio Ct. App. | 2017Background
- Michael A. Shore Co., L.P.A. (Shore) and attorney Daniel S. White represented the guardianship/estate of Bertina Hards in litigation against Dean Witter; fees of $5,000 (from the guardianship) and $10,573.69 (from an inter vivos trust) were paid, and Shore later sought an additional $12,861.90.
- Shore sued Jacqueline and Kenneth Adams (Jacqueline had been guardian and later administrator) individually in state court to collect the $12,861.90, alleging an oral promise by Jacqueline to personally repay fees not paid by the guardianship/estate.
- The guardianship/probate proceedings previously reviewed and rejected portions of Shore’s fee requests; Shore submitted fees to probate and sought approval for payment from the estate and trustee.
- The trial court granted the Adams summary judgment on Shore’s fee claim, denied Shore summary judgment on the Adams’ accounting claim, and later found Shore’s individual- liability suit frivolous under Ohio’s frivolous-conduct statute, awarding the Adams $10,000 in sanctions.
- On appeal this court affirmed summary judgment for the Adams (Shore failed to present competent evidence of an oral promise lifting guardian immunity), reversed the frivolous-conduct finding and sanctions (Shore had a non-frivolous legal/factual basis to sue), and affirmed the denial of an accounting (no record evidence funds were limited to specific non-fee uses).
Issues
| Issue | Plaintiff's Argument (Shore) | Defendant's Argument (Adams) | Held |
|---|---|---|---|
| Whether Jacqueline Adams is personally liable for attorney fees based on an alleged oral promise while she was guardian | Shore: oral agreement and subsequent conduct (retainer letter; hourly arrangement) show Jacqueline agreed to be personally liable; "leading object" rule could make promise an original obligation avoiding the statute of frauds | Adams: as guardian she is generally immune from ward’s debts absent a clear personal promise; no written contract or competent affidavit proving personal promise | Court: Summary judgment for Adams affirmed — Shore failed to present competent evidence (affidavit) that Jacqueline personally assumed liability, so guardian immunity remains in place |
| Whether Shore’s suit constituted frivolous conduct under R.C. 2323.51 | Shore: suit was based on a plausible legal theory (possible personal obligation; "leading object" argument) and factual allegations that could have evidentiary support | Adams: filing against them individually was improper and without merit given prior probate determinations and lack of evidence | Court: Frivolous-conduct finding reversed — Shore’s claim had arguable legal and factual bases, so sanctions were not warranted |
| Appropriateness and amount of sanctions ($10,000) | Shore: sanctions improper because suit not frivolous; amount excessive | Adams: $10,000 was reasonable compensation for costs from defending a frivolous suit | Court: Because frivolous finding was reversed, sanctions award vacated (assignments regarding amount moot) |
| Whether Adams (as successor) are entitled to an accounting for funds paid to Shore from the guardianship/ trust | Adams: they seek accounting to determine unused retainers/costs and recover funds if misapplied | Shore: payments were approved by probate/trust authority and used for legal services; accounting belongs to probate/trust forum | Court: Denial of an accounting affirmed — record lacks evidence that approved payments were restricted to non-fee expenses or misused; standing/relief insufficient on this record |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (standard for appellate de novo review of summary judgment)
- Judd v. City Trust & Savings Bank, 133 Ohio St. 81 (Ohio 1937) (historical statement that executors and administrators generally are personally liable for attorneys’ services)
- Thomas v. Moore, 52 Ohio St. 200 (Ohio 1894) (authority on personal liability of fiduciaries for debts)
- Wolf v. Friedman, 20 Ohio St.2d 49 (Ohio 1969) ("leading object" rule and exceptions to statute of frauds)
- Drake, Phillips, Kuenzli & Clark v. Skundor, 27 Ohio App.3d 337 (Ohio Ct. App.) (application of leading-object doctrine to defeat statute of frauds)