In re Conservatorship of Adamosky

Citation: 2011 Ohio 3166Docket: 09 MA 178

Court: Ohio Court of Appeals; June 21, 2011; Ohio; State Appellate Court

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Timothy Maloney, the appellant, appeals the Mahoning County Probate Court's decision regarding attorney fees in the conservatorship case of Anne Adamosky. Initially, a magistrate awarded him $1,747.04, significantly less than the $13,194.57 he requested. Upon review, the probate court increased the award to $6,144.57. 

In his first assignment of error, Maloney claims the probate court committed plain error by not granting the full amount requested. He asserts three points: (1) Bias against him, evidenced by the magistrate's reliance on a now-defunct probate rule he had established, which limited attorney fees; (2) A limitation on the probate court’s authority under R.C. 2111.021 regarding oversight of fees; and (3) A contractual agreement on his hourly rate that he believes should exempt him from probate court jurisdiction over fee determinations. 

The appellee, Anne Adamosky, counters that these arguments are unfounded. She argues that the reference to the prior probate rules merely reflected Maloney's past views on reasonable fees, that the limitations under R.C. 2111.021 do not restrict the probate court’s authority to settle accounts, and that the court has jurisdiction to assess the reasonableness of attorney fees despite any contractual agreements.

In his second assignment of error, Maloney argues that the fee reduction represents an abuse of discretion, citing confusion in the court's judgment. The appellee responds that the probate court acted within its discretion because the disallowed fees pertained to services that could have been performed by the conservator rather than requiring attorney involvement.

Arguments presented by the appellant were deemed meritless, with no evidence of bias from the probate court. The conservatorship petition restricted the court's powers under R.C. 2111.021 but did not limit its authority to determine reasonable attorney fees. The contract for attorney fees also did not restrict the court’s jurisdiction. Additionally, the appellant did not object to the magistrate’s award of attorney fees, leading to no error found in the probate court’s determination of those fees. The probate court's judgment was affirmed.

The case involved the appellee's home, which was declared uninhabitable, resulting in her removal. Appellee, represented by Attorney Maloney, applied for a conservator, leading to the appointment of Cheryl M. Lynn. A magistrate confirmed the voluntary nature of the petition and the suitability of the conservatorship, which the trial court adopted, issuing 'Letters of Conservatorship.' 

Subsequent filings included a Report of Inventory and a judgment entry transferring the conservatorship to Trumbull County Probate Court due to appellee's change of residence. This transfer was appealed, with the court finding a hearing was required to determine residency, thus remanding the case. The Trumbull County court later returned the case to Mahoning County, stating it lacked jurisdiction.

In June 2009, the appellant filed a partial account revealing expenditures for cleaning the property and attorney fees, which the probate court held in abeyance due to the lack of prior court authorization and failure to comply with rules regarding the itemization and reasonableness of attorney fees. A subsequent motion for payment approval for various expenditures and attorney fees was filed, but it lacked the required signatures from the conservator and conservatee, leading to a request for a hearing continuation on the exceptions raised by the probate court.

On the hearing date for the exceptions, the appellant submitted an 'Amended Motion to Allow Payment of Attorney’s Fees' for services rendered from April 7, 2009, to August 5, 2009, which supplemented a previous motion. Both the appellant and the conservator resigned. The magistrate's decision on August 24, 2009, determined that an $8,820 disbursement to the appellant violated a prior probate court order and was excessive, awarding only $1,640 for legal services and $150 for costs from February 19 to April 6, 2009. The magistrate deemed a $3,680 payment for property cleanup necessary but found an $870 security expense unnecessary, reducing the appellant's legal fees to $920 for that period. For the later period, the appellant sought $4,374.57 in fees and $164.57 in costs but was awarded $662.50 and $164.57 respectively. The appellant did not contest this decision, and on September 24, 2009, the probate court partially adopted and modified the magistrate's findings, reiterating that the prior fee disbursement was improper but acknowledging that many services were beneficial to the conservatorship. Attorney Maloney was ultimately awarded $5,145.00 for the first period and $999.57 for the second, with a $2,990.00 overpayment ordered to be repaid to the conservatorship. The court rejected the magistrate's deduction of the $870 security expense, asserting that the cleanup was necessary. The appellant claims that the probate court's decisions contain plain errors that undermine the integrity of the judicial process, despite admitting to not objecting to the magistrate's findings. The plain error doctrine is rarely applied and only in exceptional circumstances where uncorrected errors materially affect public confidence in judicial proceedings.

Appellant's standard legal fee was $200 per hour. The magistrate, while determining attorney fees, referenced an outdated local rule (71.4(A)), which set fees for guardian appointments at $450 and $150 for necessary applications. This rule, authored by the appellant during his time as a probate court judge, was cited to illustrate what he deemed fair for conservatorships. However, the probate court did not adopt the magistrate’s fee recommendation and instead increased the fees significantly, indicating no bias against the appellant. 

R.C. 2111.021 allows a physically infirm competent adult to petition the probate court for a conservatorship over their person or property. The petition must detail the property involved, the powers granted to the conservator, and any limitations on those powers. After a hearing, if the court finds the petition valid and the conservator suitable, an order of conservatorship is issued, applying relevant guardianship laws unless otherwise specified in the petition. Both parties acknowledged that the conservatee cannot restrict the probate court's authority regarding bond requirements and account settlements. The petition granted the conservator powers akin to those of a guardian while limiting the court's authority to what is specified under R.C. 2111.021.

The probate court has jurisdiction to determine reasonable attorney fees in conservatorship cases, even when the conservatorship petition limits its power to "those items reserved to the Court under O.R.C. 2111.021" regarding "all property." The court's authority to settle accounts within the conservatorship extends to reviewing attorney fees, which were paid from a conservatorship account. The argument that a contract governs attorney fees is not reviewed for plain error, as jurisdictional issues can be raised at any time, and while there are scenarios where probate courts lack jurisdiction over attorney fee contracts, this case is distinct. The funds in question were part of the conservatorship, thus falling under the court's jurisdiction. The Ohio Supreme Court has previously established that probate courts have jurisdiction over all matters related to guardianships and conservatorships, including the disbursement of settlement funds and attorney fees. Consequently, while the appellant could contract for attorney fees, the probate court retained the authority to review and adjust those fees. The second assignment of error claims that the trial court acted arbitrarily and unreasonably in denying reasonable legal fees to Maloney for representing Adamosky.

Probate courts have the discretion to award reasonable attorney fees, which can be reviewed for abuse of discretion—defined as an unreasonable, arbitrary, or unconscionable attitude. The appellant did not challenge a magistrate's fee reduction, meaning that only plain error can be examined. The probate court adopted a magistrate decision stating that certain expenditures violated prior court judgments and specific Ohio Revised Code sections but were largely beneficial to the conservatorship. The court found a payment of $8,820 to Attorney Maloney unauthorized, noting some services were unnecessary, yet many were in the conservatorship's best interests. The appeal's focus is on the fee reduction, not the broader context of the expenditures.

To assess if the fee reduction constituted an abuse of discretion, the court referenced Sup.R. 71(A) and Rule 1.5 of the Ohio Rules of Professional Conduct, which outlines factors for determining reasonable attorney fees, including time and labor required, locality fees, and results obtained. The magistrate acknowledged the appellant’s $200 hourly rate as legitimate, although concerns arose regarding the time taken for tasks that could have been performed by the conservator. The probate court’s adjustments suggest it concurred with the magistrate on the non-legal services performed by the conservator and had no issues with the hourly rate charged.

A review of the attorney fees indicates that many of the tasks for which the appellant billed fees were responsibilities of the conservator. Specific instances include the appellant's meetings with police for security arrangements, supervision of home cleaning, and coordination for assisted living, which should have been managed by the conservator. Additionally, the appellant's fees were sometimes bundled with legal services, making it challenging to identify charges for non-legal work. The magistrate reduced some of the appellant's fees, asserting that his extensive experience in probate law should have allowed him to complete tasks more efficiently. For example, he billed nine hours for preparing several motions and orders, which the magistrate deemed excessive given the relatively short length of the documents involved. The magistrate expressed skepticism about the time claimed by the appellant, particularly in light of his qualifications. While it is unclear which specific fees the probate court accepted or modified, the court did not find an abuse of discretion in adopting or altering parts of the magistrate's recommendations. Regarding the appeal in case 09MA58, the magistrate also reduced the time billed for drafting the notice of appeal, establishing that the time should be consistent across districts due to the simplicity of the required documents.

Fees for writing the brief were detailed in the 'Amended Motion to Allow Payment of Attorney Fees.' The magistrate initially awarded $662.50 in legal fees, which the probate court later modified to $835. The appellant billed for 9.75 hours at $200 per hour, totaling $1,462.50, but the magistrate did not award any fees for this brief, citing that further legal research was necessary and indicating that the Conservatorship did not benefit from these hours. The attorney requested $675 for services on June 1, 2009, $300 for June 10, and $487.50 for July 2, 2009, but the court noted that prior approval for these requests was not sought, which contributed to the denial. The magistrate believed the appeal was moot due to a jurisdiction transfer, and the probate court did not indicate any award for appellate work, only a minor increase in fees. The appellant's failure to object to the magistrate's decision limited his ability to contest it, and the court determined that there was no plain error in the magistrate's findings. Consequently, the probate court's modification of attorney fees was deemed not an abuse of discretion, and the judgment of the trial court was affirmed.