COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68033 & 68145 IN RE: ESTATE OF CARL M. : BORGH, DECEASED : : : JOURNAL ENTRY : : AND : : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 4, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Probate Division, Case No. 1038496. JUDGMENT: DISMISSED IN PART AND JUDGMENTS AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant Owen C. Neff: Owen C. Neff, Esq., Pro se, Snyder, Neff & Chamberlin, 1648 Hanna Building, 1422 Euclid Avenue, Cleveland, Ohio, 44115-2001. For Betty Cushman: Paul M. Greenberger, Esq., 24500 Chagrin Boulevard, #101, Beachwood, Ohio, 44122. For Marian Borgh: Angela Carlin, Esq., 960 Illuminating Building, 55 Public Square, Cleveland, Ohio, 44113. For Appellee Gerald M. Porter, Admin.: Eileen Kelley, Esq., Gerald M. Porter, Esq., Pro se, Thomas J. Scanlon, Esq., Donahue & Scanlon, 3300 Terminal Tower, 50 Public Square, Cleveland, Ohio, 44113. SWEENEY, JAMES D., J.: Appellant Owen Neff appeals from certain orders which adversely affect his pecuniary interests in relation to his legal representation in a probate case. For the reasons adduced below, we dismiss in part and affirm the judgments. The factual history of this case is convoluted, requiring a summary to place the parties in proper context within the proceedings. Carl M. Borgh, the decedent, died testate on September 22, 1989, leaving a surviving spouse and two adult children. The daughter of the decedent, Ms. Betty Cushman, was appointed as the executrix of her father's estate and trustee of a testamentary trust which had been incorporated within the decedent's Last Will and Testament. The trust, which consisted of the estate assets (personal property and realty valued at approximately $2,000,000.00) and was additionally funded by income from approximately $1,500,000.00 in securities and stock funds, provided the decedent's surviving spouse, Marian Borgh, with income during her lifetime. Upon the death of Marian Borgh, the trust was to terminate, with the remaining res of the trust to be distributed first to certain bequests, and the remainder of the trust and estate assets to be divided equally between Ms. Cushman and her brother, Carl W. Borgh. Appellant Owen C. Neff, an attorney, - 3 - represented Ms. Betty Cushman, in her representative capacity toward the estate of Mr. Borgh, and her brother, Carl W. Borgh. Thereafter, Marian Borgh, the surviving spouse, retained attorney Angela Carlin and filed on April 3, 1991, an application to enforce the provisions of the testamentary trust to determine whether certain income from some of the stock funds was to be reinvested in the stock funds to preserve the assets, as advanced by the executrix and her counsel, or distributed by the trustee as income to the surviving spouse, as sought by the surviving spouse. Mrs. Borgh also caused to be filed the following in the estate: (1) exceptions to the first partial account completed by the executrix [filed April 26, 1991]; (2) a motion to remove the testamentary trustee [filed June 5, 1991]; and, (3) a motion to remove the executrix [filed June 5, 1991]. These four matters were 1 heard by referee John Polito on July 26, 1991. Referee Polito issued his report and recommendations on June 3, 1992, finding in favor of the surviving spouse on the application to enforce the trust provisions, granting the removal of Ms. Cushman as the executrix and the trustee, and sustaining the exceptions to the first partial account. The referee specifically noted that both parties had notified him that a tentative settlement had been reached and that an agreed judgment entry had been promised to be prepared and submitted to the court, but no 1 A transcript of the hearing conducted by the referee is not in the record. - 4 - such judgment entry had been forthcoming, thereby indicating that no settlement had been reached and thus prompting the referee to decide the matters before him. The executrix/trustee filed objections to this referee's report. On August 19, 1992, the probate court overruled the objections, approved the referee's report and removed Ms. Cushman from her duties as executrix and trustee. The probate court then appointed attorney Gerald M. Porter as the successor administrator for Mr. Borgh's estate on August 28, 1992. Appellant Neff then filed notices of appeal on September 15, 1992, on behalf of Ms. Cushman. See Cuyahoga App. Nos. 64379 and 64380. Appellant Neff was then discharged by Ms. Cushman, who retained the services of attorney Paul M. Greenberger for future representation. The surviving spouse died in April of 1993. On February 15, 1994, Mr. Porter, the successor administrator, filed a motion to withdraw the consent of beneficiaries to approximately $45,000.00 in attorney fees that had been paid to appellant Neff from the estate assets of Mr. Borgh while Ms. Cushman was the executrix of the estate. The basis of this motion is that the attorney fees disbursed to Mr. Neff had not been approved by the trial court prior to disbursement as required by C.P.Sup.R. 40 and Loc.R. 40.1 of the Court of Common Pleas of Cuyahoga County, Probate Division, and that the consents of the two adult children had been obtained by Mr. Neff through a misrepresentation of the local rules of court for the determination - 5 - 2 of reasonable attorney fees. This motion was heard by referee 2 The motion provided in pertinent part the following: 1. That the fees collected by Owen Neff for his representation of Betty Cushman were not approved by the Court in accordance with C.P.Sup.R. 40 and Cuyahoga County Division of Probate Rule 40.1; 2. That Mr. Neff obtained the consents of the two beneficiaries of the Estate by a misrepresentation of the rules of this Court in the determination of the reasonable value of legal services rendered to a fiduciary, in that Mr. Neff represented to the beneficiaries that the Court rule allowed the computation of fees using a percentage scale based upon the assets and income of the Estate; 3. That the method for determining legal fees used by Mr. Neff is no longer approved by this Court; 4. That Mr. Neff charged and was paid $39,039.52 as fees that were calculated by using the improper method, plus he received an additional $2,048.78 in fees based upon the use of improper percentage method for increases in asset values. The consents of the residuary beneficiaries were not obtained for these latter fees; 5. That Mr. Neff submitted a time statement for extraordinary services rendered in the amount of $3,750.00 for which he was paid, but the residuary beneficiaries do not believe they signed a consent to those fees, nor did Mr. Neff submit this fee application to the Court for its approval; 6. That all of the foregoing allegations are supported by the Affidavits of Carl W. Borgh and Betty Cushman attached hereto and marked Exhibits 1 and 2. - 6 - 3 Polito on February 28, 1994. Appellant Neff did not appear at this hearing. On March 3, 1994, appellant Neff filed a brief in opposition to the motion to withdraw consent of beneficiaries to the attorney fees of appellant Neff. On March 4, 1994, the referee issued his report and recommendation on the motion to withdraw consent. In this report by the referee, which specifically noted that Mr. Neff's brief in opposition was considered by the referee, it was recommended that Mr. Neff file an application for attorney fees within fifteen days or, failing to do so, return the fees paid to him to the estate of Mr. Borgh. Appellant Neff did not file this application for fees or return the fees previously paid him, and did not file an objection to the referee's report. On March 30, 1994, the trial court approved the recommendations of the referee, granted the motion to withdraw consent, denied attorney fees to Mr. Neff and ordered Mr. Neff to return to the estate any attorney fees previously paid to him. On April 7, 1994, the then-pending appeals in Cuyahoga App. Nos. 64379 and 64380 were dismissed by new counsel Greenberger at appellant's costs. On April 12, 1994, appellant Neff filed a motion for a new trial relative to the order of March 30, 1994, and a hearing date was tentatively set for June 10, 1994, and then reset for July 15, 1994. On July 15, 1994, Mr. Porter, the successor administrator, 3 A transcript of the hearing conducted by the referee is not in the record. - 7 - filed a motion to strike the motion for a new trial, arguing that attorney Neff had failed to properly notify opposing counsel of the hearing dates or serve the motion on opposing counsel thereby depriving the court of jurisdiction to rule on the motion for new trial. The trial court scheduled the motion for new trial and motion to strike to be heard on August 22, 1994. On August 12, 1994, appellant Neff filed an objection to the planned hearing, arguing that the trial court was without jurisdiction to hear the motion for new trial and informing the trial court that he had filed a writ of mandamus and prohibition in the appellate court seeking to prevent the trial court from exercising jurisdiction in 4 the case. Also on August 12, 1994, appellant Neff filed a "Response to Motion to Withdraw Consent of Beneficiaries to Attorney Fees" and a "Brief in Support of Motion for New Trial." The record indicates that the motions for new trial and to strike were heard and submitted on August 22, 1994. Mr. Neff did not appear at the hearing despite being served with notice. On September 16, 1994, the trial court overruled appellant Neff's objection to hearing, granted Mr. Porter's motion to strike 4 The writ of mandamus and prohibition, alleging a scheme of corruption and fraud in the trial court in an effort to somehow defraud Mr. Neff of his attorney fees, was filed by Mr. Neff on June 13, 1994. This court denied relator Neff's writ. See State, ex rel. Neff v. Corrigan (January 30, 1995), Cuyahoga App. No. 67421, unreported. This court subsequently denied relator Neff's varied motions for postjudgment relief. Relator Neff filed a notice of appeal to the Ohio Supreme Court on March 15, 1995. On March 20, 1995, the Ohio Supreme Court granted certification of the record. See Supreme Court No. 95-553. - 8 - the motion for new trial, denied the motion for new trial based on a lack of jurisdiction due to failure of service of the motion for new trial, and again ordered Mr. Neff to return the attorney fees paid to him for services performed in the estate of Mr. Borgh (plus interest from March 30, 1994). On October 14, 1994, appellant Neff filed a motion to vacate and strike from the file the court's orders of September 16, 1994, repeating his previous arguments that the trial court was without jurisdiction. The trial court denied this motion without opinion on October 14, 1994. On October 17, 1994, appellant Neff filed his notice of appeal from the final orders entered on September 16, 1994. See Cuyahoga App. No. 68033. On November 14, 1994, appellant Neff filed his notice of appeal from the October 14, 1994 denial of his motion to vacate and strike. See Cuyahoga App. No. 68145. Upon motion of the appellant, these two appeals were consolidated for briefing, hearing and disposition. Two assignments of error are presented for review. I THE "MOTION TO WITHDRAW CONSENT OF BENEFICIARIES" FILED IN THE PROBATE COURT BY THE SUCCESSOR ADMINISTRATOR IS A LEGAL NULLITY WHICH THE SUCCESSOR ADMINISTRATOR HAD NO STANDING TO FILE AND THE PROBATE COURT HAD NO JURISDICTION TO HEAR OR DETERMINE. This assignment argues alleged infirmities in the March 30, 1994 ruling on the motion to withdraw consent of beneficiaries, namely, the standing of counsel Porter to file the motion and the - 9 - jurisdiction of the probate court to determine the motion. Yet, the notices of appeal are from orders unrelated to that particular motion ruling. A similar situation, wherein the appellant seeks review of an order which was not listed on the notice of appeal, was recently attempted in State v. Church (November 2, 1995), Cuyahoga App. No. 68590, unreported, wherein this court stated the following at page 3: This type of "bootstrapping" to wit., the utilization of a subsequent order to indirectly and untimely appeal a prior order (which was never directly appealed) is procedurally anomalous and inconsistent with the appellate rules which contemplate a direct relationship between the order from which the appeal is taken and the error assigned as a result of that order. See Appellate Rules 3(D), 4(A), 5 and 16(A)(3). Also see Parks v. Baltimore & Ohio R.R. (Cuyahoga, 1991), 77 Ohio App.3d 426 (an appellate court lacks jurisdiction to review a judgment or order which is not designated in the notice of appeal). Accordingly, the putative appeal from the March 30, 1994 order granting the motion to withdraw consent of beneficiaries is dismissed due to lack of appellate jurisdiction. II JUDGE JOHN E. CORRIGAN ERRED IN FAILING TO RECUSE HIMSELF FROM HEARING AND DECIDING A MOTION AFFECTING THE RIGHTS OF THE APPELLANT AFTER THE APPELLANT, AS RELATOR, HAD BROUGHT AND WAS PROSECUTING AN ACTION IN MANDAMUS AND PROHIBITION AGAINST THE JUDGE IN WHICH THE APPELLANT CHARGES THE JUDGE WITH CORRUPTION AND FRAUD INVOLVING THE VERY MATTER UPON WHICH HE PURPORTED TO ACT IN HIS JUDICIAL CAPACITY. - 10 - The merits of the denial of the October 14, 1994 motion to vacate and strike, arguably presented pursuant to Civ.R. 60(B), are not argued in this appeal. Instead, this assignment argues that the trial court judge erred in not recusing himself from ruling on the October 14, 1994 motion to vacate and strike. Appellant believes recusal was mandated because Neff had filed the writ of mandamus and prohibition prior to the trial court ruling on the motion to vacate and strike. Appellant relies upon Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152. This reliance is misplaced as the facts of that case are not analogous to the present case. In Volodkevich, the trial court judge refused to recuse himself after the defendant-appellant-wife had filed an affidavit of prejudice against the trial judge. The affidavit of prejudice was based upon the trial judge having had a history of close personal and professional involvement with the parties prior to the filing of the divorce action. Despite the failure of the trial judge to voluntarily recuse himself, and the finding of no prejudice by the supreme court, the supreme court removed the trial judge from the case to avoid an appearance of impropriety. Subsequent to the case being reassigned, the wife filed for relief from the previous judge's judgment of divorce and division of marital assets based on his failure to recuse pursuant to Civ.R. 60(B)(5). The subsequent judge granted the relief from judgment and ordered a trial de novo. The appellate court reversed the granting of relief from judgment. The supreme court affirmed the - 11 - appellate court judgment using a classic Civ.R. 60(B) three-step standard of review pursuant to GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, concluding that appellant (1) had demonstrated grounds for relief under Civ.R. 60(B)(5) and (2) made a showing of a meritorious claim, but (3) had failed to demonstrate the timeliness of the motion for relief from judgment. In the present appeal before this panel, unlike the appellant in Volodkevich, supra, appellant Neff did not file a predicate affidavit of prejudice against the trial court judge. See R.C. 2101.39 and 2701.03. Also, Mr. Neff did not seek, and this appellate court did not issue, a stay of proceedings in the trial court during the pendency of the writ of mandamus and prohibition in the appellate court. Accordingly, the trial court was acting within its discretion in exercising its jurisdiction over the motion for relief from judgment. The second assignment of error is overruled. Dismissed in part and Judgments affirmed. - 12 - It is ordered that appellee recover of appellant his costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, P.J., and SARA J. HARPER, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .