[Cite as In re Estate of Green v. Alter, 2019-Ohio-2862.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF THE ESTATE : JUDGES: 

OF MATTHEW GREEN, DECEASED : Hon. W. Scott Gwin, P.J. 

 : Hon. Craig R. Baldwin, J. 

 Plaintiff-Appellant : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

MITCHELL ALTER AND : Case No. 18-CA-70 &18-CA-106 

MARK FROEHLICH : 

 : 

 Defendant-Appellees : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County 

Probate Court, Case No. 2017-0562 

 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: July 11, 2019 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

ALETHA M. CARVER PAUL GIORGIANNI 

4775 Munson Street NW 1538 Arlington Avenue 

P.O. Box 36963 Columbus, OH 43212-2710 

Canton, OH 44735-6963 

PATRICK D. MAGUIRE GUARDIAN AD LITEM 

1650 Lake Shore Drive S. CRAIG PREDIERI 

Suite 150 925 River Road 

Columbus, OH 43204 Granville, OH 43023 
Licking County, Case No. 18-CA-70 &18-CA-106 2 

Wise, Earle, J.

{¶ 1} Administrator-Appellant Alexis Green appeals the July 31, 2018 judgment 

of the Licking County Probate Court approving requested attorney fees. Appellees are 

attorneys Mitchel Alter and Mark Froehlich. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} On October 9, 2016, decedent Matthew Green was a passenger in Douglas 

Matthew Morrison's race-modified Audi R8. Morrison was believed to be travelling well in 

excess of 100 miles per hour when he lost control, crashed the Audi, and killed Green. 

The air bags in the vehicle never deployed. 

{¶ 3} The men were close friends. Green was a mechanic specializing in highperformance vehicles, and the two shared a love for "high-end exotic cars." Following the 

crash, when officers from the New Albany Police Department spoke with appellant, who 

is Green's surviving spouse, she advised there was nothing officers could tell her that she 

did not already know. She advised she knew what kind of car they were driving, that they 

liked driving it for obvious reasons, and that it could have been either one of them driving 

that day, so she did not blame Morrison for her husband's death. 

{¶ 4} Before seeking counsel, in January 2016, appellant met with a 

representative of Westfield Insurance, Morrison's insurer. The representative provided 

appellant with an advance payment for expenses, but advised her that there could be no 

discussion of settlement until she opened an estate for Green. Appellant was not the sole 

potential beneficiary. Beneficiaries included Green's two minor children as well as his 

parents. 
Licking County, Case No. 18-CA-70 &18-CA-106 3 

{¶ 5} On May 1, 2017, appellant spoke with appellees Alter and Froehlich 

regarding representation for wrongful death and survivorship action as well as probate. 

Appellant shared her biggest concern with the attorneys -- that she did not want Morrison 

to go to jail and wished no criminal charges upon him. She further advised she would be 

satisfied with less than Morrison's policy limits and desired no personal payment from 

Morrison as he had already pledged his willingness to take care of her and her children 

for the rest of their lives. Appellant did not sign a contract with Alter and Froehlich that 

day. She was, however advised that the typical attorney fee was one-third of any 

recovery. 

{¶ 6} On June 5, 2017, Attorney Steve Teetor, counsel for Morris through 

Westfield, disclosed Morrison's policy limits of $2.5 million. Appellant signed a probate 

fee contract with attorney Froehlich only on July 27, 2017, and decedent's estate was 

opened on August 1, 2017. On August 15, 2017, however, appellant signed a contingent 

fee contract to cover the services of both attorneys which stated the attorneys would 

receive one-third of the gross amount recovered whether “by settlement, arbitration, civil 

suit, trial or any other manner.” On September 1, 2017, in accordance with Sup.R. 71(I), 

the contingent fee contract was filed with and approved by the probate court. 

{¶ 7} On August 31, 2017, criminal charges were filed against Morrison, 

specifically, one count of vehicular manslaughter, a misdemeanor of the second degree. 

Morrison's arraignment took place on September 28, 2017. He entered a no contest plea 

the same day and received no jail time. 

{¶ 8} On October 6, 2017 counsel for Westfield Insurance proposed mediation to 

settle the wrongful death action. On October 9, attorney Alter demanded policy limits of 
Licking County, Case No. 18-CA-70 &18-CA-106 4 

$2.5 million plus $500,000 personal payment. On October 24, Westfield offered policy 

limits and appellant directed Alter to accept the same on October 25. 

{¶ 9} On May 9, 2018, appellant through Froehlich, filed with the probate court an 

Application to Approve Settlement and Distribution of Wrongful Death and Survival 

Claims. The application indicated attorney fees were disputed. The settlement Statement 

set forth the following: 

Funds Received: $2,500,000.00 

Less Advance to Alexis Green: - 20,816.87 

 $2,479,183.13 

Attorney Fees: - 826,394.37 

Medical Expenses: 

 $13,171.69 

Attorney Expenses 

David Boyd, PhD $ 2,200.00 

IOD, Inc. 58.00 

Auto Check Report 26.99 

Filing Fees 325.00 

 $2,610.39 

Total Expenses: $15,782.08 

Balance to Client: $1,637,006.68 

 
Licking County, Case No. 18-CA-70 &18-CA-106 5 

{¶ 10} Also in May, 2019 the court appointed a guardian ad litem for appellant’s 

two minor children. 

{¶ 11} On June 1, 2018 attorneys Froehlich and Alter filed a Rule 71(G) Statement 

of Services Rendered. On June 15, 2018, appellant through new counsel filed a response 

on June 15, 2018 arguing that the agreed upon one-third attorney’s fee was per se 

unreasonable. 

{¶ 12} On June 19, 2018, a hearing was held on the matter. Appellees each 

testified on their own behalf and presented testimony from attorney Teetor and expert 

testimony from Attorney Michael Rourke. Appellant testified on her own behalf. At the 

conclusion of the hearing the trial court found the requested fee was neither illegal nor 

thoroughly excessive. On July 31, 2018, the trial court issued its Decision and Final Order 

which approved the attorney’s fees and expenses of attorneys Froehlich and Alter, but 

did not rule on the May 9, 2018 application to approve settlement and distribution. 

{¶ 13} Appellant filed a timely notice of appeal initiating case number 18CA-0070. 

On October 22, 2018, we granted appellant’s motion to remand the matter to the probate 

court to rule on the May 9, 2018 application. On November 1, 2018, the probate court 

filed its entry approving settlement and distribution of wrongful death and survival claims. 

The trial court stayed determination of distribution pending the outcome of appellant’s 

appeal. On November 9, 2018, appellant filed a second notice of appeal initiating case 

number 18CA-0106. On December 4, 2018, we consolidated the cases. The matter is 

now before us for consideration. Appellant raises three assignments of error as follow: 

I 
Licking County, Case No. 18-CA-70 &18-CA-106 6 

{¶ 14} "UNDER PROFESSIONAL CONDUCT RULE 1.5, THE PROBATE COURT 

ABUSED ITS DISCRETION WHEN IT FOUND APPELLEES' REQUESTED ATTORNEY 

FEES IN THE AMOUNT OF $826,394.37 REASONABLE AND NOT EXCESSIVE AS 

REQUESTED IN THE APPLICATION TO APPROVE SETTLEMENT AND 

DISTRIBUTION OF WRONGFUL DEATH AND SURVIVAL CLAIMS." 

II 

{¶ 15} "THE PROBATE COURT'S DECISION CONCLUDING ATTORNEY FEES 

IN THE AMOUNT OF $826,394.37 ARE REASONABLE AND NOT EXCESSIVE IS 

AGAINST THE MANIFEST WEIGHT OF EVIDENCE." 

III 

{¶ 16} "THE PROBATE COURT ABUSED ITS DISCRETION WHEN IT 

DETERMINED THE REQUESTED ATTORNEY FEES ARE REASONABLE AND NOT 

EXCESSIVE WHERE ATTORNEY FROEHLICH BREACHED FIDUCIARY DUTIES 

OWED MRS. GREEN THEREBY RESULTING IN A FAILURE OF SERVICES." 

I, II 

{¶ 1} We address appellant’s first and second assignments of error together. In 

her first assignment of error, appellant contends the trial court abused its discretion in 

finding the requested attorney fees reasonable because appellees failed to produce 

adequate evidence to demonstrate the one-third contingency fee was reasonable and not 

excessive pursuant to Professional Conduct Rule 1.5(a). Appellant’s second assignment 

of error argues the probate court’s decision finding the attorney fees reasonable and not 

excessive is against the manifest weight of the evidence. We disagree. 
Licking County, Case No. 18-CA-70 &18-CA-106 7 

Attorney’s Fees 

{¶ 2} Prof.Cond.R. 1.5(a) provides: 

(a) A lawyer shall not make an agreement for, charge, or collect an 

unreasonable fee or an unreasonable amount for expenses. The 

factors to be considered 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; 

(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; and 

(8) whether the fee is fixed or contingent.” 
Licking County, Case No. 18-CA-70 &18-CA-106 8 

{¶ 3} As set forth in our statement of facts, the instant case involved a contingent 

fee contract which provided Alter and Froehlich would receive one-third of whatever gross 

amount was recovered “whether by settlement, arbitration, civil suit, trial, or any other 

manner.” Appellee’s exhibit C. On the subject of contingent fee contracts, the 6th District 

Court of appeals in Landis v. Grange Mut. Ins. Co. 6th Dist. No. E-96-034, 1997 WL 77546 

(Feb. 21, 1997) stated: 

Contingency fee agreements serve an important function in 

American life. Such agreements permit persons of ordinary means 

access to a legal system which can sometimes demand 

extraordinary expense. Central Trust Co. v. Warburg (1995), 104 

Ohio App.3d 186, 190 [661 N.E.2d 275]. The mechanism by which 

this is accomplished is a contract between client and attorney 

whereby some or all of the risk involved in litigation is shifted to the 

attorney. The quid pro quo for relieving the client of this risk is that 

the agreement normally calls for the attorney to receive a percentage 

of any possible recovery. This would result, generally, in a somewhat 

greater compensation than the attorney might ordinarily receive. * * 

* To be sure, the contingency percentage is an arbitrary figure but, 

like liquidated damages in other contracts, is proper because it is a 

bargained for result. 
Licking County, Case No. 18-CA-70 &18-CA-106 9 

{¶ 4} It is well recognized that the typical contingent fee is one-third of the total 

recovery. Landis, fn. 5. 

{¶ 5} In In re Estate of Johnson, 178 Ohio App.3d 594, 2008-Ohio-5328, 899 

N.E.2d 198 at ¶ 64, this court noted: 

A probate court is not bound by a prior agreement of the parties and 

may, in fact, when necessary, alter and reduce a contingent-fee 

agreement. In re Estate of York (1999), 133 Ohio App.3d 234, 243, 

727 N.E.2d 607. The payment of reasonable attorney fees lies within 

the sound discretion of the probate court. In re Estate of Fugate

(1993), 86 Ohio App.3d 293, 298, 620 N.E.2d 966. An abuse of 

discretion will be found where the probate court's decision is not 

supported by the record or is contrary to law. In re Keller (1989), 65 

Ohio App.3d 650, 655, 584 N.E.2d 1312. Thus, the decision of the 

probate court must be based upon evidence of the actual services 

performed by the attorneys and upon the reasonable value of those 

services. Id. 

Manifest Weight 

{¶ 6} On review for manifest weight, the standard in a civil case is identical to the 

standard in a criminal case: a reviewing court is to examine the entire record, weigh the 

evidence and all reasonable inferences, consider the credibility of witnesses and 

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly 
Licking County, Case No. 18-CA-70 &18-CA-106 10 

lost its way and created such a manifest miscarriage of justice that the conviction 

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). State v. Thompkins, 78 Ohio St.3d 380, 387, 

678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme 

Court of Ohio explained the following: 

Weight of the evidence concerns "the inclination of the greater 

amount of credible evidence, offered in a trial, to support one side of 

the issue rather than the other. It indicates clearly to the jury that the 

party having the burden of proof will be entitled to their verdict, if, on 

weighing the evidence in their minds, they shall find the greater 

amount of credible evidence sustains the issue which is to be 

established before them. Weight is not a question of mathematics, 

but depends on its effect in inducing belief." (Emphasis sic.) 

{¶ 7} In weighing the evidence, however, we are always mindful of the 

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St 

.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. 

{¶ 8} The probate court’s judgment entry included an extensive analysis finding 

the one-third contingency fee was reasonable and not excessive, and we agree with the 

probate court’s analysis. 

{¶ 9} In the matter before us, it is undisputed that the contingent fee contract was 

signed by all parties and properly filed with the probate court. The probate court noted 
Licking County, Case No. 18-CA-70 &18-CA-106 11 

that before signing the contract, appellant consulted with other attorneys who also quoted 

a fee of one-third the gross amount recovered. The court further found that appellant was 

not the sole potential beneficiary, thus counsel needed to consider the interests of all 

involved, not just appellant’s wishes regarding Morrison’s liability. The court further found 

that the case was far more complicated that it appeared on its face due to statements 

made by appellant to police, possible assumption of the risk and/or comparative 

negligence issues, a possible product liability case involving the failure of the airbags, an 

issue regarding lapse in proper protocol by responding EMS personnel, and collusion 

between appellant and Morrison to “shut down” the wrongful death claim and keep the 

claim at policy limits to protect Morrison’s personal assets. 

{¶ 10} The probate court was further persuaded by Attorney Rourke, appellee’s 

expert witness, who testified a one-third contingency fee is standard practice in the legal 

profession, and a means by which a plaintiff can pursue meritorious claims which 

otherwise might not be pursued. Rourke testified he had reviewed the contingency 

contract in this matter and found it was a standard contract that he himself would use. 

Rourke testified the attorneys worked with appellant for two months before a contract was 

signed, did not charge an extra fee for Froehlich’s services, and thus he saw no evidence 

of any attempt to take advantage of appellant. Although appellant complained that Alter 

did not spend enough time on the case to warrant a one-third fee, Rourke testified that 

contingency fees are results oriented rather that time oriented and that Alter obtained an 

excellent result for appellant despite the slew of landmines the case presented. 
Licking County, Case No. 18-CA-70 &18-CA-106 12 

{¶ 11} Appellant presented no testimony to contradict appellee’s expert, and 

testified she made a conscious decision to hire appellees and understood the fee would 

be one-third of the gross amount recovered plus out-of-pocket expenses. 

{¶ 12} Upon due consideration of appellant’s arguments, we find the probate court 

did not abuse its discretion in finding the requested fees reasonable and not excessive, 

nor are the court’s findings against the manifest weight of the evidence. We therefore 

overrule the arguments contained in appellant’s first two assignments of error. 

III 

{¶ 13} Appellant’s final assignment of error essentially raises an ineffective 

assistance of counsel argument. Appellant argues the probate court abused its discretion 

when it found the attorneys fees reasonable and not excessive because attorney 

Froehlich breached fiduciary duties owed to appellant which resulted in a failure of 

services. Specifically, appellant contends Froehlich was unable to advise her as to 

whether it was in her best interest to sign the contingency agreement for the wrongful 

death claim because he was a party to the agreement and further breached his fiduciary 

duty to her by testifying against her at the hearing on attorney’s fees. 

{¶ 14} Our review of the record reveals appellant never raised this issue in her 

motion to determine the reasonableness of the contingency fee, nor was it developed 

during the hearing. Thus the trial court never ruled on the issue. The matter is therefore 

not properly before us here on appeal. 

{¶ 15} The final assignment of error is overruled. 

{¶ 16} The judgment of the Licking County Probate Court is affirmed. 
Licking County, Case No. 18-CA-70 &18-CA-106 13 

By Wise, Earle, J. 

Gwin, P.J. and 

Baldwin, J. concur. 

EEW/rw