IN THE MATTER OF THE ESTATE OF JOEY WEINER
Appellate Case No. 27278
Trial Court Case No. 1998 EST 322246
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
June 14, 2019
2019-Ohio-2354
TUCKER, J.
(Appeal from Common Pleas Court, Probate Division)
OPINION
Rendered on the 14th day of June, 2019.
. . . . . . . . . . .
DAVID P. WILLIAMSON, Atty. Reg. No. 0032614 and JUSTINE Z. LARSEN, Atty. Reg. No. 0095525, 6 North Main Street, Suite 400, Dayton, Ohio 45402
Attorneys for Appellant/Cross-Appellee, Harry Weiner
DAN D. WEINER, Atty. Reg. No. 0008179, 4848 Marshall Road, Kettering, Ohio 45429
Appellant/Cross-Appellee, pro se
ROBIN D. MILLER, Atty. Reg. No. 0074375, 600 Vine Street, Suite 2800, Cincinnati, Ohio 45202
Attorney for Appellee/Cross-Appellant, the Estate of Joey Weiner
. . . . . . . . . . . . .
TUCKER, J.
{¶ 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
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
{¶ 5} On May 18, 2000, Dan Weiner initiated a wrongful death action pursuant to
{¶ 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
{¶ 9} On April 25, 2001, Ted voluntarily dismissed the wrongful death action
{¶ 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
{¶ 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
{¶ 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
{¶ 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,
{¶ 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.
{¶ 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.
{¶ 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
{¶ 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
{¶ 24} The Estate‘s sixth account covered the period running from March 28, 2003,
{¶ 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
{¶ 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 assets to pay attorney‘s fees incurred in defense of the account. The court sustained the motion on October 30, 2014.
{¶ 30} On May 18, 2016, a magistrate entered a decision recommending that the final account be approved. The Probate Court largely adopted the magistrate‘s recommendations in its judgment of August 30, 2016, leaving its earlier rulings on attorney‘s fees undisturbed. See Entry Sustaining in Part and Overruling in Part the Objections to the Magistrate‘s Decision 24-28, Aug. 30, 2016; compare with Entry on the Sixth Account 24-55. Dan Weiner filed his notice of appeal on September 26, 2016, followed by Harry Weiner on September 28, 2016, and the Estate on October 7, 2016. After considerable litigation in this court, oral arguments were held on March 12, 2019.
II. Analysis
{¶ 31} We first address the Estate‘s cross-assignment of error because its disposition affects the disposition of assignments of error raised by Dan and Harry Weiner. For its cross-assignment of error, the Estate contends that:
THE TRIAL COURT ERRED BY DENYING THE ESTATE‘S REQUEST FOR REASONABLE ATTORNEYS’ FEES BECAUSE THE SERVICES UNDERLYING THE REQUESTED FEES ARE PART OF ESTATE ADMINISTRATION.
{¶ 32} In its application of August 25, 2010, the Estate requested authorization to
{¶ 33} Under
{¶ 34} The decision whether to approve or disapprove an estate‘s payment of attorney‘s fees is within the “probate court‘s sound discretion.” In re Estate of Davidson, 2d Dist. Montgomery No. 22943, 2009-Ohio-3014, ¶ 30, citing Estate of Kendall at ¶ 25; see also In re Estate of Brady, 8th Dist. Cuyahoga No. 88107, 2007-Ohio-1005, ¶ 18; In re Estate of Lazar, 11th Dist. Geauga No. 2003-G-2509, 2004-Ohio-1964, ¶ 15; In re Estate of Fugate, 86 Ohio App.3d 293, 298, 620 N.E.2d 966 (4th Dist.1993). Thus, we employ the abuse-of-discretion standard for our review of the Probate Court‘s rulings. Id. A court abuses its discretion when it exercises its authority in an unreasonable, unconscionable or arbitrary manner. See, e.g., Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7, citing Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1995); Lindsey v. Sinclair Broadcast Group, Inc., 2d Dist. Montgomery No. 19903, 2003-Ohio-6898, ¶ 19.
{¶ 35} In the Entry on the Sixth Account, the Probate Court characterized the withdrawal of the Estate‘s first application for authority to distribute on June 30, 2005, as “the beginning of [Ted Weiner and PWMA‘s] efforts to obtain [attorney‘s] fees incurred in
{¶ 36} We find that the Probate Court unreasonably disregarded the circumstances by characterizing the entirety of Ted and PWMA‘s activity, onward from the withdrawal of the application, as devoted solely to the collection of fees. In the application, Ted Weiner requested that the court hold a hearing “to resolve all outstanding issues with the Estate,” including Dan Weiner‘s then-pending objections to the Estate‘s fifth account, “as prelude to [the] filing of [a] [f]inal account.” Estate‘s First Application to Distribute Assets 1, Jan. 22, 2004. Taken at face value, the filing of the application appears to have been a worthwhile effort to hasten the closure of the Estate, rather than an effort to generate attorney‘s fees by instigating further litigation, and the withdrawal of the application was prompted by a change in the posture of the case—specifically, the
{¶ 37} Like the filing of the first application, the filing of the Estate‘s second application for authority to distribute assets on October 13, 2005, appears to have been a worthwhile attempt to close the Estate, although the proposed order for final distribution filed on January 13, 2006, included a dubious provision related to “the Estate‘s stated intention to pursue” recovery of attorney‘s fees incurred as the result of the alleged “misconduct of Dan Weiner.” Estate‘s Proposed Order of Distribution, Ex. A, Jan. 13, 2006; Transcript of Hearing on Estate‘s Second Application for Distribution of Assets 9-10, July 8, 2009. The provision in question would have authorized the Estate to withhold “Dan Weiner‘s one-third share of the Estate‘s assets” until the expiration of the time in which “any post-distribution motions [and] appeals” could have been filed, or alternatively, until “any such motions [and] appeals” had been adjudicated. Estate‘s Proposed Order of Distribution, Ex. A.
{¶ 38} Unlike the filing of the first application, the filing of the second application did lead to further litigation, and the Probate Court acted on the application by ordering a hearing, which was referred to a magistrate. The hearing, spread over five days, produced a surfeit of strutting and fretting, but it ultimately accomplished nothing. On the first day, the magistrate could not address the substance of the application because
{¶ 39} Forty-three months after it began, the hearing ended on July 8, 2009—its fifth day—with nothing resolved. The Probate Court had failed to serve notice of the hearing on Ted Weiner, who therefore did not appear, and an attorney with PWMA, who was a key witness, could not appear as the result of illness. Moreover, PWMA had not submitted a corresponding application for payment of its attorney‘s fees. Transcript of Hearing on Second Application for Authority to Distribute 9-10, July 8, 2009. Although the Probate Court indicated that the second application, like the first, was later withdrawn, the docket includes no formal notice of withdrawal, and the court itself did not enter a formal decision on the application.
{¶ 40} We find that the filing of the second application was theoretically reasonable from the Estate‘s perspective, but the question of whether PWMA should be paid the full amount of the fees it billed in connection with the application is another matter. The firm, for example, repeatedly failed to submit necessary documentation in support of the application, and its performance throughout the hearing on the application was not wholly
{¶ 41} Nevertheless, we find further that the Probate Court erred by summarily denying authorization for the Estate to pay any of PWMA’s fees incurred after June 22, 2005, without reviewing the nature of the services for which those fees were claimed or the circumstances in which the services were rendered. Even assuming that some or most of such services were not purely related to the administration of the Estate, the Probate Court unfairly absolved Dan and Harry of their responsibility for the protracted, redundant litigation over attorney’s fees and discovery. Furthermore, with all due respect to the court, we note that its ruling on attorney’s fees incurred after June 22, 2005, does not account for administrative issues, such as turnover among court personnel, the intermittent omission of service of notice of proceedings on all parties, and delays in the completion of hearings.
{¶ 42} Dan and Harry’s dogged pursuit of litigation against the Estate, coupled with an inconsistent administrative response, left Ted and PWMA with two options, both of which presented potential problems. First, they could have declined to participate actively in the litigation after a certain date, hoping that any exceptions or motions filed subsequently by Dan and Harry would not be sustained by default; or, second, they could have chosen to continue with the litigation, hoping to close the Estate through a proceeding that would yield a final, appealable order. Many executors and their attorneys might view the former option, whether rightly or wrongly, as less than true to the spirit of
{¶ 43} Strictly as it relates to the categorical denial of authorization to use assets of the Estate to pay attorney’s fees incurred after June 22, 2005, by Ted Weiner, as executor, we sustain the Estate’s cross-assignment of error in part and remand this case to the Probate Court; otherwise the Estate’s cross-assignment of error is overruled in part. On remand, the court must evaluate all services that were rendered after June 22, 2005, and on or before June 30, 2009, indicating in each instance the reason for which payment is authorized or not authorized, whether in part or whole. Having already held a hearing and received evidence on these fees, the court, in its discretion, may determine that no further hearing or submission of evidence is necessary.
{¶ 44} For the first of his two assignments of error, Harry Weiner contends that:
THE TRIAL COURT ERRED IN ALLOWING PAYMENT OF ATTORNEY FEES THAT WERE NOT REASONABLE, NECESSARY, OR FOR THE BENEFIT OF THE ESTATE.
{¶ 45} Harry argues that all, or nearly all, of the time billed by PWMA represented work that did not benefit the Estate, which he maintains “should have been closed in 2000.” See Brief of H.Weiner 11-12. In Harry’s accounting, PWMA spent its time either on matters “unrelated to [the] administration [of the Estate],” such as the wrongful death
{¶ 46} Harry adds that he does “not object to all of [the] attorney[’s] fees [incurred by Ted Weiner], [but] only to those [fees for services] that did not benefit the [E]state.” (Emphasis in original.) See, e.g., Brief of H.Weiner 22. Even so, Harry reasons that because the Estate “should have been closed in 2000,” the Probate Court erred by approving payment of any attorney’s fees billed after that date, or at the latest, after March 26, 2001.15 See id. at 11-12. Billing for dates subsequent to March 26, 2001, in Harry’s opinion, “was all [for] time spent [by PWMA] defending [its] fees.” See id. He directs his request for relief, however, only to the foregoing provisions of the Entry on the Sixth Account. Id. at 23.
{¶ 47} In the first part of his argument, Harry faults the Probate Court for authorizing payment of PWMA’s fees specifically for work related to the wrongful death lawsuit instituted by Dan, because an “attorney[’s] time spent in pursuit of or ancillary to
{¶ 48} An “iron-clad rule[,] other than the [rule] that [the] reasonable value [of an attorney’s services] must be substantiated by the evidence,” is “impossible” to enforce because the “facts and circumstances vary so much from case to case.” In re Love’s Estate, 1 Ohio App.2d 571, 579, 206 N.E.2d 39 (10th Dist.1965). In place of an invariably applicable rule, a probate court is invested with “sole discretion” to authorize the use of an estate’s assets for “[t]he payment of reasonable attorney[’s] fees.” See In re Keller, 65 Ohio App.3d 650, 655-656, 584 N.E.2d 1312 (8th Dist.1989). The “only limitation is that the attorney’s services [must be] beneficial to the estate.” See In re Estate of Coleman, 55 Ohio App.3d 261, 262, 564 N.E.2d 116 (6th Dist.1988).
{¶ 49} Moreover, if “the executor of an estate * * *, being under no obligation to participate in litigation involving principally the interests of the beneficiaries under the will,” chooses to participate “at the request of [the] beneficiaries in order to protect their interests,” then the executor “is entitled to compensation for extraordinary services.” Doty v. Peters, 106 Ohio App. 435, 155 N.E.2d 239 (12th Dist.1958), paragraph four of the syllabus; see
{¶ 50} Regardless of whether Harry has presented a cognizable challenge to the Probate Court’s approval of such fees—most of which were incurred before November 18, 2002—we find that the Probate Court did not abuse its discretion by approving the Estate’s payment of attorney’s fees to PWMA for the firm’s work in relation to the lawsuit.16 As executor of the Estate, Ted Weiner was Joey Weiner’s personal representative. Although he did not have an affirmative obligation, as executor, to participate in the lawsuit on behalf of the Estate, he did have the option to involve the Estate at Dan’s request inasmuch as the “litigation involv[ed] principally the interests of the beneficiaries under [Joey Weiner’s] will.” See Doty at paragraph four of the syllabus. Ted’s eventual decision to dismiss the lawsuit makes no difference; he cannot have had an affirmative obligation to pursue claims for relief that were unsupported by the available evidence or otherwise lacked merit. See Entry and Order 1, Aug. 6, 2002. Thus, the Probate Court’s approval of fees related to the lawsuit was neither contrary to law, nor in disregard of the evidence.
{¶ 51} In the second part of his argument, Harry attempts to illustrate generally that none of PWMA’s work benefitted the Estate. See Brief of H.Weiner 9-17. He suggests that because “the majority of the work necessary for the administration of the [E]state” was completed before Ted engaged PWMA to replace Dan, the services provided by PWMA—particularly those provided after March 26, 2001—were unnecessary. See id. at 10-11.
{¶ 53} Likewise, we find that the Probate Court did not abuse its discretion by authorizing the payment of attorney’s fees incurred before November 18, 2002. Harry argues that the Estate should not have been authorized to pay PWMA’s fees for answering “questions Ted had concerning certain joint and survivor accounts in his mother and Dan’s name[,] [or for providing] an analysis of law concerning undue influence.” Brief of H.Weiner 10. Yet, as executor, Ted had the duty, among others, “to marshal the assets of the decedent,” making his inquiries reasonable, even if not absolutely necessary, from the Estate’s perspective. Reinhard v. Peck, 159 Ohio St. 116, 121, 111 N.E.2d 262 (1953); see also Long v. Long, 11th Dist. Trumbull No. 2007-T-0047, 2007-Ohio-5909, ¶ 47, citing Reinhard at 121.
{¶ 54} Harry also argues that “[n]one of the work” itemized in the Estate’s application of June 26, 2001, for authorization to pay attorney’s fees “was time spent on behalf of the [E]state or in assisting the executor to discharge his fiduciary duties.” Brief of H.Weiner 10. Apart from the foregoing inquiries, the application lists services
{¶ 55} In the third and final part of his argument, Harry discusses Ted’s conditional offer to resign as executor, and to consent to Dan’s appointment, in exchange for a release of liability. See Brief of H.Weiner 18-21. Harry criticizes the Probate Court’s approval of PWMA’s fees in this respect because Ted sought the release “for his personal benefit,” and not for the benefit of the Estate as a whole. Id. at 18. As well, Harry emphasizes that, pursuant to the terms of the proposed release, he and Dan would have been required not only to release Ted from liability arising from the management of the Estate, but also to indemnify Ted against such liability, even though the Probate Court’s entry of August 6, 2002, stated that Ted had “had cause to demand a written release prior to stepping down as [e]xectuor,” not that Ted had had cause to demand a written indemnification agreement. Id. at 20; Entry and Order 2, Aug. 6, 2002. In plain language, Harry accuses Ted of “attempt[ing] to leverage his position by refusing to close the [E]state” until the release was executed. Brief of H.Weiner 19.
{¶ 57} Furthermore, rather than refusing to close the Estate until the release was executed, Ted simply exercised his right to remain executor, as designated by Joey Weiner in her will. Harry complains, regardless, that “Ted had no right to demand” indemnification from him for “any action which Dan might [have brought].” Brief of H.Weiner 20. Yet, Ted had no obligation to resign, and despite the fact that Ted’s
{¶ 58} We find that the Probate Court did not abuse its discretion by authorizing the Estate to pay PWMA for its services related to the wrongful death lawsuit instituted by Dan Weiner; for its services rendered from its initial engagement through June 22, 2005; or for its services with respect to the release of liability proposed by Ted Weiner. Harry’s first assignment of error is overruled.
{¶ 59} For his second assignment of error, Harry Weiner contends that:
THE TRIAL COURT ERRED IN DENYING HARRY WEINER’S REQUEST FOR ATTORNEY FEES[.]
{¶ 60} Here, Harry argues that the Probate Court should have ordered the Estate
{¶ 61} Our finding that the Probate Court abused its discretion by categorically disallowing the payment of any of PWMA’s fees incurred after June 22, 2005, renders this assignment of error moot. Even otherwise, Harry’s argument disregards the fact that the objections he raised in his filing of January 18, 2013, were largely duplicative of the objections Dan had raised in his filing of November 2, 2012, which means that the Probate Court’s refusal to authorize payment of the full amount of PWMA’s application of August 25, 2010, is not necessarily traceable to Harry’s objections of January 18, 2013. Harry’s second assignment of error is overruled.
{¶ 62} For his first assignment of error, Dan Weiner contends that:
THE PROBATE COURT ERRED BY DENYING DAN DISCOVERY OF DOCUMENTS ON THE CLAIM OF ATTORNEY CLIENT AND/OR WORK PRODUCT PRIVILEGE.
{¶ 63} Dan requested production of an exhaustive array of documents in support of his objections to the Estate’s payment of attorney’s fees to PWMA. See, e.g., Brief of D.Weiner 6-11. Here, Dan refers to the documents listed on “the Weiner Estate Privilege Log,” arguing, alternatively, that all of these documents should have been subject to
{¶ 64} Aside from his reference to the Weiner Estate Privilege Log, which lists 317 documents, Dan has not specified exactly which of the documents listed in the log were disclosed to him in discovery and which were not, but a cursory inspection of the log suggests that many of the documents were actually disclosed, at least in redacted form—for example, the first listing in the privilege log is “[i]temized [b]reakdown of [h]ours and [t]otals,” of which several copies appear in the record. The log likewise lists the firm’s invoices, all or nearly all of which appear to have been attached to the Estate’s applications for authorization to pay attorney’s fees, as well as correspondence directed to Dan himself.
{¶ 65} We find, as a result, that Dan has not satisfied his burden on appeal to demonstrate error on the part of the Probate Court because he has not specified which of the documents, or portions thereof, in the Weiner Estate Privilege Log were improperly deemed by the court to be subject to privilege, or for that matter, which of his requests for production were improperly deemed to relate to privileged materials. See generally
{¶ 66} Similarly, with respect to the work-product exception to the attorney-client privilege, Dan bore the burden to establish his need for the documents he sought, meaning that he had to demonstrate that they were relevant to the issue of PWMA’s fees and were otherwise unavailable to him. Squire, Sanders & Dempsey at ¶ 56-57, citing Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16; see also
{¶ 67} For his second assignment of error, Dan Weiner contends that:
THE PROBATE COURT ERRED AS A MATTER OF LAW AND/OR
ABUSED ITS DISCRETION WHEN IT FOUND THAT THE EXECUTOR COULD REFUSE TO CLOSE THE ESTATE UNTIL THE BENEFICIARIES EXECUTED A RELEASE WHEN THE DEMANDED RELEASE ALSO INCLUDED INDEMNIFICATION, CONTRARY TO PUBLIC POLICY.
{¶ 68} On June 10, 2002, Dan moved the Probate Court under
{¶ 69} Despite the apparent implication of his assignment of error, Dan actually argues that the Probate Court erred in its entry of July 29, 2013, by finding that the issue of the release was res judicata as a result of this court’s opinion affirming the decision entered by Judge Gounaris. Brief of D.Weiner 16-17; see also In re Estate of Weiner, 2d Dist. Montgomery Nos. 19533 & 19564, 2003-Ohio-3408, ¶ 10-17. Dan maintains that because “the parties never fully and actually litigated the issue” of the release before the Probate Court, our decision had no “preclusive effect” because the issue of the release was beyond the scope of his appeal. Brief of D. Weiner 17-18. He also argues that our earlier opinion was not dispositive because we based the holding “solely on [his] failure to obtain a transcript of the hearing” on his motion for Ted’s removal, rather than on a review of the merits of Judge Gounaris’s decision. Id. at 18.
{¶ 71} In any event, our earlier opinion is dispositive, irrespective of the fact that we relied on Dan’s failure to meet his burden on appeal. See, e.g.,
{¶ 72} For his third assignment of error, Dan Weiner contends that:
THE PROBATE COURT ERRED WHEN IT AWARDED ATTORNEY FEES WITHOUT DETERMINING WHETHER THE FEES WERE INCURRED FOR THE BENEFIT OF THE ESTATE.
{¶ 73} Dan argues that the Probate Court erred by authorizing the payment of the attorney’s fees reflected in the Estate’s fifth and sixth accounts, which were “not beneficial to the [E]state.” Brief of D.Weiner 20. Our disposition of the Estate’s cross-assignment of error, however, resolves this issue. Dan’s third assignment of error is overruled.
{¶ 74} For his fourth assignment of error, Dan Weiner contends that:
THE PROBATE COURT ERRED BY DENYING DAN WEINER HIS CONSTITUTIONAL DUE PROCESS RIGHTS DURING THE SIXTH ACCOUNT EXCEPTION HEARINGS.
{¶ 76} The Probate Court, like all trial courts, had “the inherent power to regulate the practice before it and [to] protect the integrity of its proceedings.” Royal Indem. Co. v. J.C. Penney Co., Inc., 27 Ohio St.3d 31, 33-34, 501 N.E.2d 617 (1986), citing D.H. Overmyer Co. v. Robson, 750 F.2d 31 (6th Cir.1984), and Smith v. Brock, 532 P.2d 843 (Okla.1975). Regardless of whether the Probate Court gratuitously promised to provide Dan with copies of items already on record, the court had no such obligation as a matter of law, and its alleged failure to provide copies of items on record does not constitute a violation of Dan’s right to due process. Having reviewed the transcript of the court’s hearing on the exceptions to the Estate’s sixth account, we find that the court reasonably limited Dan’s cross-examination to relevant matters, and that the court reasonably expected Dan to provide copies of exhibits he intended to introduce for the court itself and opposing counsel, as well as for any witnesses he intended to examine using such exhibits. Furthermore, despite Dan’s assertion that he was prevented from “fully litigating” the attorney’s fees reflected in the Estate’s third and fourth accounts, he did have “the opportunity to elicit testimony and present evidence” in support of his exceptions to those accounts “at the hearing on [his objections to] the [f]ifth [a]ccount,” as
{¶ 77} Most importantly, Dan has not demonstrated that he was prejudiced by the Probate Court’s regulation of the proceedings. See, e.g., Blevins v. Blevins, 2d Dist. Greene No. 2018-CA-23, 2019-Ohio-297, ¶ 36-37. Dan’s fourth assignment of error is overruled.
III. Conclusion
{¶ 78} Regarding attorney’s fees incurred by Ted Weiner, as executor, we find that the Probate Court erred when it summarily denied authorization for the Estate to pay any attorney’s fees incurred after June 22, 2005; otherwise, we affirm the court’s rulings on the Estate’s payment of attorney’s fees. We find further that the Probate Court did not err by overruling Harry Weiner’s application for payment of his attorney’s fees or by finding that Ted Weiner could demand a release of liability in exchange for his voluntary resignation as executor of the Estate. Finally, we find that Dan has not met his burden on appeal to demonstrate that the Probate Court erred in its resolution of his discovery disputes with the Estate, and that the court did not violate Dan’s right to due process at the hearing on the exceptions to the Estate’s sixth account.
{¶ 79} The Probate Court’s final judgment of August 30, 2016, is therefore affirmed in part and reversed in part, and the case is remanded to the court for further proceedings consistent with this opinion. As a matter of law, all rulings made previously by the court were merged into the final judgment upon its entry. Consequently, with the exception of the single issue to be considered by the court on remand, the court is divested of the ability to review or reconsider any questions of law or fact on which it has not been
. . . . . . . . . . . . .
WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
David P. Williamson
Justine Z. Larsen
Dan D. Weiner
Robin D. Miller
Hon. Alice O. McCollum