COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71636 FREDERICK H. GOFF, BENEFICIARY Plaintiff-appellant JOURNAL ENTRY vs. AND KEY TRUST COMPANY OF OHIO, ET AL. OPINION Defendant-appellees DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDINGS: Civil appeal from the Probate Division of the Common Pleas Court, Case No. 959383 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellees: BERNARD J. STUPLINSKI, ESQ. MARK F. SWARY, ESQ. JOHN Z. SZABO, ESQ. ROYCE R. REMINGTON, ESQ. 5432 Mayfield Road HAHN, LOESER & PARKS Suite 103 3300 BP-America Building Cleveland, Ohio 44124 200 Public Square Cleveland, Ohio 44114 -2- KARPINSKI, J.: Appellant, Frederick H. Goff, one of the beneficiaries of the estate of Caroline B. Goff, appeals from the judgment of the probate court granting co-executors' application for attorney fees to be paid from the estate. The executors sought attorney fees based on (1) having to defend themselves in a lawsuit brought by Goff alleging the executors breached their fiduciary duty and (2) the general administration of the estate. Arguing on appeal that the executors are not entitled to attorney fees for personally defending allegations of a breach of fiduciary duty, Goff points out that the executors' actions did not benefit the estate because the estate was not named a defendant in the matter. Furthermore, Goff contends that the request for fees for the administration of the estate should not have been awarded, because the request was too vague and duplicative and was for services not yet performed. Because the trial court did not abuse its discretion in awarding fees for the defense of the Goff lawsuit and for the general administration of the estate, we overrule both assignments of error. The relevant facts follow. On January 17, 1984, the will of Caroline Goff was presented to probate court. Ameritrust Company, now known as Key Trust Company of Ohio, N.A., and Edward A. Eisele were named as co- executors. The law firm of Hahn, Loeser & Parks was retained as counsel for the co-executors. From 1984 to 1994, the law firm received over $90,000 in attorney fees from the estate. -3- On March 13, 1992, appellant filed in common pleas court a complaint against the executors, but did not name the estate as a defendant. The complaint alleged that the executors breached their fiduciary duty in handling the estate. The trial court dismissed the case for lack of subject matter jurisdiction, and this court affirmed the dismissal. Goff v. Ameritrust (May 5, 1994), Cuyahoga App. No. 65196, unreported. Thereafter, appellees filed three applications for attorney fees in probate court. The first application sought $26,976.88 in attorney fees for representing the co-executors in the suit brought by appellant. The second application sought $16,214.53 in attorney fees for representation of the estate from 1989 to 1994 and for closing the estate in the future. A third application seeking extraordinary fees was denied by the probate court and is not a part of this appeal. After hearing testimony from the parties, the probate court magistrate denied the application for fees relating to the common pleas lawsuit and stated as follows: In determining whether the estate should bear the fees associated with the defense of the Goff lawsuit, the court is guided by the principle that the fees must generate a benefit to the estate in order to be reasonable. In Re Estate of Hayes (1946), 78 Ohio App. 143. The services rendered by the applicant in defense of the Goff lawsuit created no benefit for the estate. In addition, had the Plaintiff prevailed in the Goff lawsuit, the estate would not have suffered due to the fact that the estate was not a party to the action. Clearly the fees generated in defense of the Goff case should not be borne by the estate. Magistrate's report at 6. (Attached as Exhibit D of appellant's brief.) The magistrate approved, however, the application for -4- attorney fees in the amount of $14,100.00 and $337.93 in expenses for administering the estate. Appellants filed objections to the report. The probate court then reversed the magistrate and awarded additional attorney fees for defending the common pleas lawsuit as follows: The Court finds that Objection #1 is well taken for the reason that the Court Magistrate should have allowed attorney fees for the defense of the Co-Executors for actions arising out of the Estate of Caroline B. Goff. However, the Court finds that the amount $26,976.88 for fees is not reasonable. The fees were based upon having a matter dismissed for lack of subject matter jurisdiction and having the dismissal upheld on appeal. After reviewing the entire record, including the Application for Authority to Pay Attorney Fees and the transcript of the hearing before the Magistrate, the Court finds that a reasonable fee should be $6,584.70 plus expenses of $854.68. The amount of $6,584.70 is based on 46.7 hours of work at a rate of $141 an hour. The probate court also found that $14,100 for attorney fees, as well as $337.97 in expenses, was a fair and reasonable amount to pay for attorney fees rendered in the handling of the estate matters. Appellant timely appealed, raising two assignments of error. The first states as follows: I. THE PROBATE COURT ERRED AS A MATTER OF LAW WHEN IT AWARDED ATTORNEY FEES TO COUNSEL FOR REPRESENTING CO- EXECUTORS OF AN ESTATE IN AN ACTION FOR BREACH OF FIDUCIARY DUTY BROUGHT AGAINST THE CO-EXECUTORS BY A BENEFICIARY OF THE ESTATE. Generally, in order to warrant attorney fees, the attorney's action must benefit the estate. In re Colosimo (1957), 104 Ohio App. 342. Appellant contends that the estate did not benefit from the executors' defense in the common pleas matter. In support of this argument, appellant points out that the estate was not named -5- in the lawsuit, nor were any claims made against the estate. Thus, appellant argues, if the executors were found to have breached their fiduciary duty, they could not recover from the estate. The decision to award attorney fees to an executor is reviewed under the abuse of discretion standard. In re Estate of Ziechman (1989), 63 Ohio App.3d 717. See also, In Re Keller (1989), 65 Ohio App.3d 650, noting the equitable powers of probate court. The phrase [a]buse of discretion *** implies that the court's attitude is unreasonable, arbitrary or unconscionable. Tracy v. Merrell Dow Pharmaceuticals (1991), 58 Ohio St.3d 147 at 152. In Zeichman, this court approved an award of attorney fees to an executrix who, inter alia, had been sued in her individual capacity by beneficiaries. A common but unstated criterion in cases involving the award of attorney fees in probate dispute is whether the party seeking fees was successful. In In re Estate of Fugate (1993), 86 Ohio App.3d 293, the court affirmed the probate court's denial of attorney fees requested by a beneficiary who unsuccessfully tried to remove the executor. Similarly, this court in In re Keller (1989), 65 Ohio App.3d 650, affirmed the probate court's grant of attorney fees to the attorney of a beneficiary who was successful in defeating excessive claims by the administrator. Finally, the court in In re Guardianship of Escola (1987), 41 Ohio App.3d 42, denied attorney fees to a guardian who was unsuccessful in defending a removal action. -6- In the case at bar, it was not an abuse of discretion for the probate court to find that the estate benefitted from the actions of appellees' successful defense of the lawsuit appellant brought. Ziechman, supra. The lawsuit in common pleas court was initiated not by the co-executors, but by one of the beneficiaries. More importantly, the lawsuit was not successful. Goff continues to argue that the executors breached their fiduciary duty, but no court made any finding. The successful defense of the lawsuit thus allowed the executors to continue in their administration. When executors are not found guilty of wrongdoing, honoring the decedent's choice of executors is properly deemed a benefit to the estate. Answering allegations of a breach of fiduciary duty, moreover, is part of the administration of an estate. It is not an abuse of discretion, therefore, to reimburse an executor for successfully defending allegations of misconduct. In Wagstaff v. ManufacturersNat. Bank of Detroit (1984), 588 F.Supp. 1389, 1391, the court expressed this principle as follows: It appears imminently logical, then, to permit reim- bursement from the corpus in the case of testamentary trust when a trustee who is without fault is required to answer charges of misconduct in the administration of the estate. Having no cushion of profit and not having reduced the corpus by annually approved fees which included such potential expenses, the trustee should not be called upon to pay from his own pocket the reasonable expenses incurred by claims of misfeasance. Following the same principle, courts allow a trustee to recover attorney fees from the trust after the trustee successfully defends allegations of a breach of fiduciary duty, 76 American Jurisprudence2d (1992, Supp. 1997), Trusts, Section 737, or after -7- an action to remove the trustee. Bogert The Law of Trusts and Trustees (2nd Ed. Rev. 1993), 46-47, section 525; 91 Ohio Jurisprudence 3d (1989, Supp. 1997), Trusts, Section 449. We believe the same principle applies to an executor. Accordingly, because the decision to award fees to the co- executors was not an abuse of discretion, the first assignment of error is overruled. Appellant's second assignment of error states as follows: THE PROBATE COURT ERRED WHEN IT AWARDED ATTORNEY FEES TO COUNSEL FOR CO-EXECUTORS OF AN ESTATE FOR SERVICES RENDERED WHEN THE SERVICES DESCRIBED IN THE APPLICATION WERE NON-DESCRIPTIVE, DUPLICATIVE, CONJECTURAL AND NOT FOR THE BENEFIT OF THE ESTATE. Whether the court abused its discretion is also the standard by which we review the attorney fees the court ordered to be paid from the estate. In Re Keller, supra; In Re Estate of Secoy (1984), 19 Ohio App.3d 269. Appellant contends that the attorney fees requested for the further administration of the estate were for legal services that were duplicative, conjectural, and unnecessary. We disagree. A review of the record reveals that the probate court was well within its discretion to approve the application for attorney fees based on the continuing administration of the estate. Local Rule 40.1 of the Cuyahoga County Rules of Probate Court governs those fees: (A) Counsel fees allowed as part of the expense for administering a decedent's estate, trust or guardianship, shall be based upon the actual services performed by the attorney and the reasonable value of the services. (B) All applications for the allowance of attorney fees shall set forth an itemized statement of the -8- services performed, the date services were performed, the time spent in rendering the services, and the rate charged per hour. Attached to the application (Exhibits A and B of Appellees' brief) is a detailed description of services the attorneys rendered for the estate. Goff has not met his burden, because he failed to support his claim by specifically delineating which services were duplicative or unnecessary. We will not second-guess a probate judge's determination as to what are reasonable fees for a complex estate such as the one at bar. Additionally,as part of the request for additional fees, the trial court awarded fees for 25 hours of estimated time to complete the administration of the estate. At the average hourly rate of $141.00 an hour, this amount accounts for $3,525.00 of the fee award. During the administration of an estate, an attorney must comply with Local Rule 40.1, which requires that fees be based upon actual services the attorney performs. As a practical matter, however, it may be reasonable for the court to award fees based on estimated expenditures, but only at or near the end of the estate. Otherwise, a series comparable to Zeno's paradox would result. That is, in attending a hearing on attorney fees, an attorney would expend further time that would necessitate another request for fees that would, in turn, generate another hearing, et cetera. The law does not require an absurd result. Under this special circumstance of closing the estate, the court did not abuse its discretion in awarding attorney fees for estimated time. -9- We also reject appellant's argument that the fees were for services that could have been performed at a lower cost by the executors as opposed to the attorneys. Merely being more expensive does not make a cost unreasonable. Here again, we defer to the probate court's discretion in deciding what are the proper duties of the executors as opposed to the attorneys. Judgment affirmed. -10- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Probate Division of the Common Pleas 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. DAVID T. MATIA, P.J., and HOLMES*, J., CONCUR. DIANE KARPINSKI JUDGE *Retired Justice Robert E. Holmes of the Ohio Supreme Court, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .