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In re Estate of Campbell12/15/2003
. This matter comes for consideration upon the record in the trial court, the two Appellants' briefs and their oral arguments before this court. Because this is a consolidated case, there are two sets of assignments of error stemming from the same journal entry. Both Appellants appealed the decision of the Mahoning County Court of Common Pleas, Probate Division, reducing their requested attorney fees. The issue we must decide is whether the trial court abused its discretion by reducing the fees of all the attorneys involved in this case.
. A probate court abuses its discretion in awarding attorney fees where the court's decision is not supported by the record. Because the trial court gave little or no justification in the record for reducing the fees of both Appellants, we must remand this case so that the trial court may indicate on the record the reasons why it found the requested fees to be unreasonable.
Facts and Standard of Review
. Administration of the Estate of Clinton Campbell, the deceased, began on March 5, 1996. Although Campbell had no assets at the time of his death, he was a plaintiff in litigation regarding his asbestos related injuries. The probate proceedings were commenced so that the wrongful death settlements could be collected and distributed.
. Attorney Chad Kelligher, as attorney of record and successor administrator, filed an application to approve settlement and distribution of $53,954.83. This amount was received on behalf of Campbell's Estate by the litigation Firm Goldberg, Persky, Jennings & White. Kelligher also filed a motion for approval of attorney fees requesting $11,642.75 for 99.85 hours of services to the estate over four years. Likewise, the Firm requested a 33 percent contingent fee of $17,979.17 and $1,351.68 to cover litigation expenses. The probate court's chief magistrate found all of the requested fees to be reasonable and issued an order approving them. However, the probate court sua sponte reduced Kelligher's fees to $3,600 and the Firm's fees to $8,896.04 in addition to completely denying the Firm's litigation expenses. The probate court explained that many of the fees Kelligher requested were for out of court services. The probate court further explained that there would be a $5,103.96 recoupment from the Firm's requested fees and allocated it to the estate because it determined more interest could have been made on the wrongful death proceeds.
. It is within the sole discretion of the probate court to award reasonable attorney fees. In re Estate of Fugate (1993), 86 Ohio App.3d 293, 298, citing In re Keller (1989), 65 Ohio App.3d 650. In Watters v. Love (1965), 1 Ohio App.2d 571, 579, the court set out the standard of review:
. "Exclusive original jurisdiction to determine reasonable attorney fees being in the Probate Court, the only questions before the Court of Appeals on appeal on questions of law are whether the judgment awarding fees is against the manifest weight of the evidence or contrary to law. If either against the manifest weight of the evidence or contrary to law, final judgment of modification cannot be rendered on reversal, but the cause must be remanded to the Probate Court for further proceedings according to law." Id. See, also, In re Estate of York (1999), 133 Ohio App.3d 234.
. An abuse of discretion will be found where the probate court's decision is not supported by the record or is contrary to law. Keller at 655. Thus, the decision of the probate court must be based upon the actual services performed by the attorneys and upon the reasonable value of those services. Id.
Fee Request of Estate Attorney
. B
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