[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: ESTATE OF EARL E. JUDGES: 

SCHOENEMAN Hon. William B. Hoffman, P.J. 

 Hon. Sheila G. Farmer, J. 

 Hon. John W. Wise, J. 

 

 Case No. 2010CA00340 

 

 O P I N I O N

 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Probate Division, Case No. 

204531 

JUDGMENT: Reversed 

DATE OF JUDGMENT: October 11, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GERALD L. BAKER DONALD GALLICK 

3711 Whipple Avenue, NW 190 North Union Street 

Canton, OH 44718 Suite 102 

 Akron, OH 44304 

 
Stark County, Case No. 2010CA00340 

 2 

Farmer, J. 

{¶1} On November 3, 2008, appellee, Louis W. Schoeneman, as Executor, 

opened the Estate of Earl E. Schoeneman (Case No. 204531). 

{¶2} On March 15, 2010, appellee filed an asset concealment complaint 

against appellant, Robin Minor (Case No. 208428). 

{¶3} On July 12, 2010, an agreement was journalized memorializing the 

parties' agreement over the disputed assets (Case No. 208428). 

{¶4} On September 3, 2010, appellee filed an application to approve attorney 

fees (Case No. 204531). By judgment entry filed November 24, 2010, the trial court 

approved the requested fees which included fees incurred in the asset concealment 

action. 

{¶5} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶6} "THE PROBATE COURT ERRED BY AWARDING ATTORNEY'S FEES 

IN A CONCEALMENT ACTION WITHOUT MAKING A DETERMINATION OF GUILT 

AS REQUIRED UNDER §2109.52 OR A FINDING OF BAD FAITH." 

II 

{¶7} "OHIO REVISED CODE §2113.36 DOES NOT AUTHORIZE A PROBATE 

COURT TO AWARD AND APPORTION ALL ATTORNEYS' FEES TO BE PAID FROM 

THE SHARE OF THE BENEFICIARY WHOSE ACTIONS NECESSITATED THE 

ESTATE'S HIRING OF AN ATTORNEY." 
Stark County, Case No. 2010CA00340 

 3 

I 

{¶8} Appellant claims the trial court erred in awarding attorney fees in the asset 

concealment action without making a finding of guilty pursuant to R.C. 2109.52 or bad 

faith. We agree. 

{¶9} On March 15, 2010, appellee filed an asset concealment complaint in 

Case No. 208428. R.C. 2109.52 governs judgment on an asset concealment complaint 

and states the following in pertinent part: 

{¶10} "When passing on a complaint made under section 2109.50 of the 

Revised Code, the probate court shall determine, by the verdict of a jury if either party 

requires it or without if not required, whether the person accused is guilty of having 

concealed, embezzled, conveyed away, or been in the possession of moneys, chattels, 

or choses in action of the trust estate. If such person is found guilty, the probate court 

shall assess the amount of damages to be recovered or the court may order the return 

of the specific thing concealed or embezzled or may order restoration in kind.*** In all 

cases, except when the person found guilty is the fiduciary, the probate court shall 

forthwith render judgment in favor of the fiduciary or if there is no fiduciary in this state, 

the probate court shall render judgment in favor of the state, against the person found 

guilty, for the amount of the moneys or the value of the chattels or choses in action 

concealed, embezzled, conveyed away, or held in possession, together with ten per 

cent penalty and all costs of such proceedings or complaint; except that such judgment 

shall be reduced to the extent of the value of any thing specifically restored or returned 

in kind as provided in this section." 
Stark County, Case No. 2010CA00340 

 4 

{¶11} The matter sub judice was settled via an agreed judgment entry filed July 

12, 2010: 

{¶12} "This matter came before the Court for a hearing on July 12, 2010 on the 

action for concealment. Prior to the hearing, the parties reached a settlement 

agreement as follows: 

{¶13} "1) On Saturday, July 17, 2010 at 10:30 a.m., the Defendant, Robin Minor, 

('Defendant') will have the subject boat, motor and trailer available for pick up by the 

Executor, Louis Schoeneman ('Executor') at the cul de sac near the Defendant's home 

located at 3304 Chagrin Ave SW, Canton, OH. 

{¶14} "2) The sole remaining estate item, a chandelier in the Defendant's home 

at the address listed in Item 1, will be available for appraisal by the Dimmerling Realty 

and Auctioneer Company until Monday, August 2, 2010. The parties agree that the 

Defendant will pay the Estate the value of the chandelier assigned by the Dimmerling 

Realty and Auctioneer Company. 

{¶15} "Confirmation of the above items is to be provided by the Executor no later 

than August 30, 2010. Failure of the parties to abide by the settlement terms may result 

in a finding of contempt. Court Costs to Defendant." 

{¶16} In a judgment entry filed November 24, 2010 in Case No. 204531, the trial 

court specifically found the request for attorney fees was appropriate as it pertained to 

the concealed assets in Case No. 208428: 

{¶17} "Upon due consideration of the briefs and oral arguments of the parties, 

the Court finds the Motion for Payment of Attorney Fees to be well taken. The fees 

Attorney Baker charged in assisting Executor with the retrieving of the chandelier, boat, 
Stark County, Case No. 2010CA00340 

 5 

motor, and trailer were reasonable, necessary and benefited the estate. Attorney 

Baker's efforts in assisting Executor in retrieving the chandelier, boat, motor, and trailer 

benefited the estate because Executor is responsible for marshaling all of the assets of 

the estate. Minor's failure to turn over the estate items necessitated the involvement of 

Attorney Baker and the filing of the concealment action. The estate case could not 

proceed without the collection of all of the assets of the estate and the beneficiaries 

could not receive their distributions without the collection of all estate assets. 

{¶18} "Accordingly, Executor's Motion for Payment of Attorney Fees against 

Minor is GRANTED in the amount of $3,026.25. The $3,026.25 shall be deducted from 

Minor's share of the Estate of Earl E. Schoeneman to the extent possible." 

{¶19} Nowhere did the trial court make a finding of guilty under R.C. 2109.52 or 

of bad faith. 

{¶20} An award of attorney fees in a concealment action is proper upon a finding 

of guilty or a showing of bad faith. R.C. 2109.52; In the Matter of: The Estate of Lena B. 

Simons, Deceased, Trumbull App. No. 2004-T-0066, 2005-Ohio 2362, ¶26; In re Estate 

of Toth (November 29, 1993), Stark App. No. CA-9312. Further, in In Re: Estate of 

Meyer (1989), 63 Ohio App.3d 454, 457, our brethren from the Twelfth District stated 

the following: 

{¶21} "***Accordingly, the statute [R.C. 2109.52] mandates that specific 

procedural requirements be followed, including the reduction to writing of the 

examination of the accused and any witnesses. The statute also requires a finding of 

guilty or not guilty and the imposition of certain penalties upon a finding of guilty. 
Stark County, Case No. 2010CA00340 

 6 

{¶22} "***The court's conclusion that the account is an asset of the decedent's 

estate does not translate into a finding of guilt. Mere possession of an estate asset 

does not constitute concealment." 

{¶23} Upon review, we find the trial court erred in awarding the attorney fees. 

{¶24} Assignment of Error I is granted. 

II 

{¶25} Based upon our decision in Assignment of Error I, this assignment is 

moot. 

{¶26} The judgment of the Court of Common Pleas of Stark County, Ohio, 

Probate Division is hereby reversed. 

By Farmer, J. 

Hoffman, P.J. and 

Wise, J. concur. 

 

 

 _s/ Sheila G. Farmer_______________ 

 

 _s/ William B. Hoffman_____________ 

 _s/ John W. Wise_________________ 

 JUDGES 

SGF/sg 928
[Cite as In re Estate of Schoeneman, 2011-Ohio-5243.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: ESTATE OF EARL E. : 

SCHOENEMAN : JUDGMENT ENTRY 

 : 

 : 

 : 

 : 

 : CASE NO. 2010CA00340 

 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, Probate Division is 

reversed. Costs to appellee. 

 s/ Sheila G. Farmer_______________ 

 

 _s/ William B. Hoffman_____________ 

 _s/ John W. Wise_________________ 

 JUDGES