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In re Estate of Campbell11/29/2005
racting the hours spent on the appeal was clearly reasonable. However, neither the magistrate nor the probate court gave any explanation as to how it determined that only 63.34 of the remaining 122.4 hours were reasonable, other than the comment about the excessiveness of the telephone calls and 17.6 hours spent on a normal estate. Even subtracting that time altogether from Kelligher's requested 122.4 hour still leaves 90.8 hours of services. That leaves 27.46 hours of services rendered that the court chose to simply wipe out without explanation.
{ } In the probate court's judgment entry that led to the first appeal in this case, it stated, as support for its reduction of fees,
{ } "Upon the Court's thorough review of the itemization of services rendered by Attorney Kelligher, its review of the entire record of this case, and in considering the factors delineated under DR2-106 as well as Sup.R. 71 and Local R. 71.1, at seq., the Court finds that Attorney Kelligher has reasonably expended forty (40) hours of service in the administration of this Estate and its related wrongful death claim and that a reasonable hourly rate for such services, which involve chiefly out of court services, amounts to $90.00 per hour. The Court therefore finds that a reasonable fee for all services rendered to date pursuant to Attorney Kelligher's motion of April 12, 2002 amounts to $3,600."
{ } Despite our comment that the court arbitrarily made its decision, the court has again failed to provide reasons with support from the record as to why it reduced Kelligher's fees by so much. Once again, the court again simply determined that the requested fees were unreasonable despite the evidence to the contrary.
{ } While this time the magistrate held a hearing on the issue of fees, most, if not all, of the uncontradicted evidence was disregarded. The magistrate did note that he found DeRhodes' testimony to be unpersuasive. However, it is the only evidence on the record as to the reasonableness of the fees, other than the OSBA reference book, which also supports the reasonableness of the requested fees. It was Kelligher's burden to produce evidence demonstrating the reasonableness of his fees. Campbell, 7th Dist. Nos. 02-CA-186, 02-CA-187, at . It seems that he met this burden. All of the evidence on record supports the reasonableness of his fees.
{ } Thus, the probate court's decision is against the weight of the evidence. The court again acted arbitrarily in reducing Kelligher's fees by such a large amount. Accordingly, Kelligher's assignments of error have merit.
{ } Goldberg-Persky raises two assignments of error, the first of which states:
{ } "THE PROBATE COURT ERRED BY RETROACTIVELY ASSESSING PENALTY INTEREST AGAINST APPELLANT'S ATTORNEY'S FEES."
{ } Goldberg-Persky argues that we have held on numerous occasions that the probate court may not assess penalty interest against settlement monies received before the effective date of Mahoning County Probate Court Local Rule 70.6.
{ } This assignment of error challenges the penalty that the probate court imposed upon Goldberg-Persky's fees. It does not challenge whether the fees themselves were reasonable. In fact, the probate court determined that Goldberg-Persky's requested fee of $17,979.17 was reasonable. It then subtracted the sanction from this fee.
{ } Whether or not the probate court had the authority to impose monetary sanctions is a legal question that is reviewed de novo on appeal. In re Estate of Traylor, 7th Dist. Nos. 03-MA-253, 03-MA-254, 03-MA-255, 03-MA-256, 03-MA-257, 03-MA-258, 03-MA-259, 03-MA-262, 2004-Ohio-6504, at . If the court had auth
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