COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68632 IN RE: ESTATE OF MIRL L. MINTZER : ACCELERATED [John M. Widder and Peggy M. Widder] : JOURNAL ENTRY Appellants : and : OPINION : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION : JULY 17, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Probate Division : Case No. 1080337 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For appellants, pro se: JOHN M. WIDDER PEGGY MURPHY WIDDER Attorneys at Law 18224 Sherrington Road Shaker Heights, Ohio 44122 For Executrix : MICHAEL T. CONWAY Attorney at Law 18848 Canyon Road Fairview Park, Ohio 44126 For Estate of Benjamin SHIA N. SHAPIRO Jaffe : Attorney at Law Rockefeller Building, #1401 Cleveland, Ohio 44113 (Cont.) (Continued) For appellee James Spitz, ALAN J. RAPOPORT Administrator DBN, WWA Attorney at Law Estate of Mirl Mintzer: 1621 Euclid Avenue, #716 Cleveland, Ohio 44115-2198 - 3 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel. The appellants appeal from the judgment of the Cuyahoga County Court of Common Pleas, Probate Division, awarding attorney fees in the amount of $8,100 for appellants' representation of the Estate of Mirl L. Mintzer. I. The executrix of Mirl Mintzer's estate, Diane R. Kutnick, hired appellants John M. Widder and Peggy M. Widder to represent the interests of the estate. On or about April 25, 1994, the Widders and Ms. Kutnick entered into a contract which indicated that the Widders' charge for legal services was $150 per hour, to be secured by a $5,000 retainer from Ms. Kutnick. Ms. Kutnick, as sole heir and executrix of the estate, agreed to these fee arrangements and signed the contract to retain the Widders. At the time the Widders were hired, they were aware that several other attorneys had previously been involved with the estate. These attorneys had been fired by Ms. Kutnick when she became dissatisfied with their service. - 4 - During the course of the Widders' representation of Ms. Kutnick, they were involved in all aspects of Ms. Mintzer's estate. A large portion of the Widders' time was spent representing the estate in a land sale proceeding regarding a half-interest piece of real property owned by Ms. Mintzer. In addition to the matters directly related to Ms. Mintzer's estate, appellants spent considerable time consulting with Ms. Kutnick with regard to her various legal concerns. As a result of appellants' efforts, Ms. Mintzer's estate was able to obtain a selling price of $20,000 more than the previously negotiated price. However, in late July of 1994, Ms. Kutnick fired the Widders as counsel for the estate and hired a new attorney. On October 6, 1994, appellants filed with the probate court their Application for Payment of Attorney Fees and Expenses. Appellants requested $20,470.50 in attorney fees and $100 in expenses, stating they had spent a total of 136.47 hours representing Ms. Mintzer's estate. On October 31, 1994, a hearing was had before a referee of the 1 probate court with regard to appellants' application. During the hearing, counsel for Ms. Kutnick requested that the referee strike all charges made by the Widders after Ms. Kutnick fired them in 1 During the hearing, the referee estimated that ten of the 136.47 hours related to a separate civil commitment in which appellants also represented Ms. Kutnick. In their brief before this court, appellants stipulate that, in reality, thirty-six of the 136.47 hours related to this civil commitment. Appellants are seeking compensation for these thirty-six hours in a separate forum, leaving only 100.47 hours for our consideration herein. - 5 - late July of 1994. In addition, counsel for Ms. Kutnick objected to the majority of the Widders' charges as being "telephone time." The Widders argued that, on the contrary, the 136.47 hours were well documented and encompassed a fair and accurate representation of their time spent representing Ms. Kutnick and the estate. On December 5, 1994, the referee issued his report finding the appellants were entitled to a lump sum of $8,100 in attorney fees and expenses. Appellants filed objections to the referee's report and, on February 3, 1995, the trial court adopted the referee's findings and conclusions and ordered attorney fees in the amount of $8,100, including the $5,000 retainer paid by Ms. Kutnick, plus $100 court costs to be paid to the Widders. The Widders timely appealed the finding of the trial court and raise the following assignment of error for our review: THE CUYAHOGA COUNTY PROBATE COURT ERRED IN MAKING A DISTINCTION BETWEEN AN ATTORNEY'S TELEPHONE HOURS AND NON-TELEPHONE HOURS AND IN ARBITRARILY AND CAPRICIOUSLY DETERMINING THAT SAID TELEPHONE HOURS ARE NOT COMPENSIBLE (SIC). II. The determination of a fair amount of attorney fees is within the sound discretion of the trial court. Swanson v. Swanson (1976), 48 Ohio App.2d 85; Local R. 40.1. The determination by a probate court of attorney fees surrounding the administration of an estate will not be reversed absent a showing the award is against - 6 - the manifest weight of the evidence or contrary to law. In re Estate of Zeichmann (1989), 63 Ohio App.3d 717, 719. Furthermore, it is well settled that in addressing whether a judgment is against the manifest weight of the evidence, an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial judge. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. With these standards in mind, we begin our review of the referee's findings as adopted by the trial court. A. When a judicial determination is required to fix an amount to be paid an attorney, the determining factor should be the reasonableness of the petition for fees. In re Estate of Secoy (1984), 19 Ohio App.3d 269. In determining the reasonableness of attorney fees, it is useful for the trial court to refer to DR 2- 106(B). Swanson, supra. DR 2-106(B) offers the following guidelines for determining the reasonableness of attorney fees: (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. - 7 - (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services. (4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services. (8) Whether the fee is fixed or contingent. Ohio case law has consistently held that the burden is upon the attorney seeking the fees to introduce into the record sufficient evidence of the services performed and the reasonable value of such services. Imler v. Cowan (1989), 65 Ohio App.3d 359, 361; In re Estate of Verbeck (1962), 173 Ohio St. 557. In the present case, the report of the referee specifically states that his decision in granting attorney fees was guided by the principles of DR 2-106(B). Therefore, a strong presumption arises that these guidelines were followed in reaching the referee's decision. It is appellants' burden to prove otherwise. Appellants' assignment of error challenges the trial court's decision to summarily dismiss the attorney fees relevant to - 8 - telephone consultations without giving specific consideration to the reasonableness of the fees as itemized. In their filings made to the trial court, the appellants introduced an exhaustive list meticulously detailing their time spent in relation to Ms. Mintzer's estate. The list included all filings, meetings, letters and telephone conversations relating to the appellants' representation. During the hearing before the referee, the appellants more thoroughly explained the necessity of these hours in order to properly represent the estate. In addition, the appellants presented expert testimony showing that their fee of $150 per hour was a reasonable fee for their services. Regarding this testimony, the referee stated the following: The testimony of John Widder as a former Referee of this Court and by Richard Klein, also a former Referee, was as to [the Widders'] expertise in probate matters, not only as to the necessity of services rendered but also as to their reasonable value. The Court acknowledges their testimony as relevant and material to the Application for Fees. Both Widder and Klein testified that a rate of $150.00 per hour for the matters hereinbefore set forth is not unreasonable. (Referee's Report, p.4) A review of the referee's findings shows that the referee did not find the hourly fee of $150.00 to be unreasonable. This point is not contested by the parties nor can we find any error in this finding. Rather, the gist of appellants' appeal takes issue with the referee's specific findings relating to appellants' billing for time spent on the telephone. Of the 100.67 hours in question - 9 - before the referee, approximately fifty hours were telephone calls which appellants listed as related to the estate. With regard to these telephone hours, the referee made the following determination: This referee has no doubts that the telephone calls were necessary and of benefit to Kutnick and the many and diverse problems she has, not only legally, but personally. However, the Court will not approve $150 per hour for telephone calls even if necessary and productive. (Referee's Report, p.4) Appellants are correct in stating that the referee's report does not specify what amount of telephone time, if any, was reasonable. However, we do not agree with appellants' contention that the referee denied all of appellants' fees relating to "telephone time." Rather, considering the entire record as a whole and being cognizant that the referee specifically relied upon DR 2- 106(B), we find that the record demonstrates the referee did include some of the telephone time requested by appellants in the final award of $8,100. Clearly, the better practice would be for the referee to differentiate between the fees charged by appellants that he found reasonable and those which he found unreasonable. However, the mere failure of the referee to be thorough does not, per se, amount to an abuse of discretion. Therefore, after a thorough review of the record before this court, and considering the unique and particular facts of this case, we find that there exists competent and credible evidence to - 10 - support the trial court's award of attorney fees in the amount of $8,100.00. Accordingly, appellants' first assignment of error is overruled. - 11 - This cause is affirmed. It is, therefore, considered that said appellee recover of said appellants her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRES. JUDGE DONALD C. NUGENT, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .