[Cite as In re Estate of Stockmaster, 2012-Ohio-41.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

IN THE MATTER OF: 

 THE ESTATE OF CASE NO. 13-11-10 

 STELLA R. STOCKMASTER, 

[HAROLD STOCKMASTER, Executor of 

the Estate of Stella R. Stockmaster, AND O P I N I O N 

RONALD SMITH, ESQ. - APPELLANTS]. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 20071114 

Judgment Reversed and Cause Remanded 

Date of Decision: January 9, 2012 

 

APPEARANCES: 

John A. Coble, Joseph F. Albrechta and Brad Culbert for 

 Appellants 

James H. Ellis, III for Appellee, Harold J. Stockmaster 

Francis Stockmaster, Appellee 

Virginia Ruffing, Appellee
Case No. 13-11-10 

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SHAW, J.

{¶1} Appellants, Harold Stockmaster (“Harold”), executor of the estate of 

Stella Stockmaster, and Ronald Smith (“Attorney Smith”), attorney for the estate 

of Stella Stockmaster (“the estate”), appeal the February 28, 2011 judgment of the 

Common Pleas Court, Probate Division, of Seneca County, Ohio, determining the 

total amount of attorney’s fees to be paid by the estate.1

{¶2} The decedent, Stella Stockmaster (“Stella”), died testate on November 

20, 2006. At the time of her death, Stella was not married but was survived by her 

four children, Harold, Dorothy Hossler (“Dorothy”), Virginia Ruffing 

(“Virginia”), and Francis Stockmaster (“Francis”), each of whom were named as 

beneficiaries under various provisions of Stella’s will. By far, the largest portion 

of the estate consisted of real property. According to the terms of this will, Harold 

and Dorothy were named as the co-executors of the estate. 

{¶3} Upon his mother’s death, Francis hired an attorney to represent him in 

the estate proceedings. Initially, this attorney filed an application in the Probate 

 

1

 In the notice of appeal filed in this Court, Harold is named as an appellant in his capacity as executor for 

the estate, along with Attorney Smith, both of whom appear to be represented by the same counsel in this 

appeal. The sole assignment of error raises the issues that the amount of attorney fees chargeable to the 

estate is too low and is impermissibly capped. Thus, it appears that Harold, as executor, is contending that 

the estate should have to pay more in attorney’s fees. However, “[i]t is well established in Ohio that an 

appeal lies only on behalf of a party aggrieved. Such party must be able to show that he has been 

prejudiced by the judgment of the lower court.” Love v. Tupman (1969), 19 Ohio St.2d 111, 113, 249 

N.E.2d 794; see, also, Dawson v. Dawson, 3rd Dist. Nos. 14-09-08, 14-09-10, 14-09-11, 14-09-12, 2009-

Ohio-6029, ¶ 27. Certainly, the estate has not been aggrieved by an award of a lesser amount of attorney 

fees, which is also capped. Therefore, Harold, in his capacity as executor, has no legal interest in this 

appeal as an appellant. 
Case No. 13-11-10 

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Division of the Erie County Common Pleas Court to probate Stella’s will in that 

court. However, on April 13, 2007, Attorney Smith, who was retained by the coexecutors to represent the estate, filed an application to probate the will in Seneca 

County, Ohio. Eventually, the probate case in Erie County was dismissed, and the 

estate action instituted in Seneca County proceeded. 

{¶4} A number of claims against the estate were made, and both Harold and 

Dorothy filed motions to purchase a portion of the real property belonging to the 

estate. Some claims were allowed by the co-executors, some were rejected, and an 

inventory and appraisal of the estate’s assets was filed. In addition, a computation 

of the fees of the co-executors in accordance with the provisions of R.C. 2113.35, 

which reflected a total amount of $9,799.73, was filed on September 14, 2007. On 

that same date, the co-executors also filed a computation of attorney fees for the 

estate, pursuant to Local Rule 71.4 of the Seneca County Probate Court, which 

reflected a total amount of $17,778.23.2

 

{¶5} Francis opposed Dorothy’s motion to purchase a portion of the real 

property belonging to the estate because of her position as co-executor and 

because the will did not contain a provision that specifically permitted her to 

 

2

 Local Rule 71.4 provides that the computation set forth in Appendix B-1 of the Rules is to serve “as a 

guide in determining fees to be charged to the estate for legal services of an ordinary nature rendered as 

attorney for the executor * * * in the complete administration of a decedent’s estate. * * * SUCH 

SCHEDULES, HOWEVER, ARE NOT TO BE CONSIDERED AS SCHEDULES OF MINIMUM OR 

MAXIMUM FEES TO BE CHARGED, NOR WILL THEY BE AUTOMATICALLY APPROVED.” 
Case No. 13-11-10 

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purchase any of the property, as it did for Harold. The trial court held a hearing on 

this matter, and on October 11, 2007, it overruled Dorothy’s motion. 

{¶6} In March of 2009, Francis filed a motion to compel Harold, as 

executor, to sell one of the parcels of property belonging to the estate. Shortly 

thereafter, Attorney Smith filed a memorandum on behalf of the estate opposing 

Francis’ motion to compel. That same day, Attorney Smith also filed a motion on 

behalf of the estate to extend the time for filing an accounting in the estate because 

Dorothy was seriously ill, had been hospitalized, and lost her husband in late 

January, all of which necessitated additional time for her to complete the 

accounting. 

{¶7} On September 4, 2009, Dorothy died. As a result, Attorney Smith 

filed a motion to have Harold appointed as the sole executor. After conducting a 

hearing on this matter, the trial court appointed Harold as the sole executor on 

December 4, 2009. 

{¶8} In June of 2010, Attorney Smith filed a motion for extraordinary fees 

and attached an itemized statement of the number of hours and a description of the 

work he performed for the estate. On that same day, Harold, acting in his 

individual capacity, filed a motion for the trial court to permit him to purchase two 

of the parcels of real estate belonging to the estate, as provided in the will. Francis 
Case No. 13-11-10 

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opposed both motions, and a hearing was conducted by the trial court on these 

matters. 

{¶9} At the conclusion of the hearing, the trial court found that it was 

unable to determine what attorney fees were for ordinary activities of the estate 

administration, for extraordinary fees of the estate administration, and for executor 

activities ordinarily conducted by the executor but that were conducted by 

Attorney Smith. Thus, the court ordered Attorney Smith to file additional 

information to assist the court in ascertaining these amounts and noted that it 

would set the matter for further hearing once the additional information was filed. 

In addition, the trial court denied Harold’s request to purchase the two parcels of 

real property belonging to the estate. 

{¶10} Harold timely appealed the trial court’s judgment denying his request 

to purchase the real property belonging to the estate. While that matter was 

pending in this Court, Attorney Smith filed a “Notice of Filing”, which contained 

the additional information requested by the trial court, delineating which fees 

Attorney Smith believed were ordinary (134.3 hours x $130.00/hr. = $17,459.00), 

extraordinary (186.7 hours x $130.00/hr. = $24,271.00), and which were incurred 

because he conducted activities normally performed by the executor (24 hours x 

$130.00/hr. = $3,120.00). The total amount sought by Attorney Smith totaled 

$44,850.00. 
Case No. 13-11-10 

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{¶11} A hearing was held on Attorney Smith’s motion for extraordinary 

fees on December 15, 2010. At that time, Attorney Smith testified and submitted 

two exhibits in support of his motion. Virginia, who was unrepresented, crossexamined Attorney Smith but only asked questions regarding whether Attorney 

Smith had done anything to help resolve any of the problems surrounding Harold’s 

attempt to exercise his option to purchase the real property belonging to the estate. 

Counsel for Francis did not cross-examine Attorney Smith, and no other testimony 

and/or exhibits were presented by Attorney Smith or any of the parties. 

{¶12} During closing statements, Francis’ attorney informed the trial court 

that he had no objection to the documents showing Attorney Smith’s time and the 

nature of the work he performed in this case, specifically stating that Attorney 

Smith was a “fine attorney”, that he had no concerns that Attorney Smith actually 

performed the work as described in the documentation, and that he should be 

compensated. (Hrg., 12/15/10, pp. 59, 62.) Nevertheless, counsel for Francis 

expressed his concern as to who should have to compensate Attorney Smith as he 

believed some of the matters Attorney Smith handled were issues between the 

beneficiaries and their respective attorneys, not matters for the estate to address. 

Counsel for Francis also raised concerns over the fees for duties of the executor 

that Attorney Smith performed because the entire amount of executor fees had 

already been determined and dispersed to Harold and Dorothy’s estate and 
Case No. 13-11-10 

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apparently one or both of them did not entirely fulfill their obligations. Counsel 

for Francis did not provide the trial court with any specific amounts that he 

believed were not compensable from the estate or otherwise present any evidence 

contrary to the evidence presented by Attorney Smith. 

{¶13} On February 28, 2011, the trial court rendered its decision on this 

issue. The court found that the following amounts were reasonable attorney’s 

fees: $17,459.00 for ordinary fees, and $17,778.23 for extraordinary attorney’s 

fees and fees for performing executor duties. The trial court further noted that 

three estate matters were not complete: (1) the issue regarding Harold’s option to 

purchase the real property that was pending in this Court; (2) the sale/disposition 

of that property in a manner consistent with this Court’s future decision; and (3) 

the final accounting of the estate. The trial court then ordered the estate to pay 

Attorney Smith $17,459.00 for his ordinary fees incurred to date and to pay 

Attorney Smith $17,778.23 as extraordinary fees after the filing of the final 

account and noted that this amount would represent the full payment for the 

remainder of Attorney Smith’s fees for the completion of the entire estate. 

{¶14} This appeal followed, and Attorney Smith now asserts one 

assignment of error for our review. 

THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION BY ARBITRARILY REDUCING 

APPELLANT’S ATTORNEY FEES AND BY EFFECTIVELY 
Case No. 13-11-10 

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CAPPING ALL FUTURE ATTORNEY FEES FOR SERVICES 

APPELLANT WILL RENDER TO THE ESTATE.

{¶15} Revised Code section 2113.36 allows the estate to reimburse the 

executor for the cost of reasonable attorney fees. The burden of production on the 

issue of whether the attorney fees proposed to be paid by the estate are reasonable 

is upon the party seeking to obtain the fees. In re Estate of Verbeck, 173 Ohio St. 

557, 558-559, 184 N.E.2d 384 (1962). The determination of whether the attorney 

fees are reasonable and the amount of those fees are matters within the probate 

court’s discretion and will not be reversed on an appeal absent an abuse of that 

discretion. In re Estate of Wirebaugh, 84 Ohio App.3d 1, 5, 616 N.E.2d 245 

(1992). 

{¶16} Attorney fees in all matters are governed by the Rules of Professional 

Conduct, which provide: 

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

collect an illegal or clearly excessive fee. A fee is clearly 

excessive when, after a review of the facts, a lawyer of ordinary 

prudence would be left with a definite and firm conviction that 

the fee is in excess of a reasonable fee. 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; 
Case No. 13-11-10 

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(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; 

(8) whether the fee is fixed or contingent. 

Prof. Cond. R. 1.5. 

{¶17} In the present case, Attorney Smith testified as to the reasonableness 

of his fees and explained the contents of Exhibits 1 and 2, which listed all of the 

time he spent on matters related to the estate. These exhibits were also coded: 

items that were not underlined indicated that this was an ordinary activity on 

behalf of the estate, items that were underlined in red indicated that this was an 

extraordinary activity on behalf of the estate, and items that were underlined in 

blue indicated that this was an activity conducted by Attorney Smith for the estate 

that an executor would normally have performed. 
Case No. 13-11-10 

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{¶18} As previously noted, none of the beneficiaries questioned that 

Attorney Smith performed all of these activities or that these were reasonable 

attorney fees. The only issues were raised by counsel for Francis. These issues 

concerned (1) the fact that the co-executors were paid in full from the estate, a 

total amount in excess of $9,000.00, yet Attorney Smith fulfilled some of these 

duties and also sought payment from the estate for his performance and (2) that 

some of Attorney Smith’s activities appeared to have been related to matters 

between the beneficiaries rather than on behalf of the estate. However, Francis did 

not indicate any specific items listed in the exhibits that he found to be 

questionable or otherwise provide a total amount that he thought were not 

chargeable to the estate. 

{¶19} In its judgment entry as to the amount of attorney fees properly 

chargeable to the estate, the trial court found that a caustic relationship existed 

between the beneficiaries of the estate, which made the administration of the estate 

difficult and time consuming. The trial court also found that a high level of 

mistrust and dysfunction existed between the beneficiaries, which caused delays in 

the administration of the estate and “invariably led to [Attorney] Smith spending 

inordinate amounts of time and effort administering the Estate.” The court further 

noted that there were multiple contested motions and hearings in the estate and 
Case No. 13-11-10 

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that the dispute regarding the option to purchase made the administration of the 

estate time consuming. 

{¶20} The trial court then considered the factors provided in Prof. Cond. R. 

1.5 and found as follows. As to the first factor regarding the difficulty of the 

questions involved in this case, although the court found that the issues presented 

did not exceed the knowledge or ability of an attorney of ordinary competence, the 

court found that the poor relationships of the beneficiaries, the death of one of the 

co-executors, and the dispute arising out of Harold’s option to purchase the real 

estate caused Attorney Smith to expend substantial time and labor in his legal 

representation. 

{¶21} As to the second factor regarding Attorney Smith’s ability to accept 

other employment, the trial court noted that Attorney Smith testified that his 

representation of the estate limited his ability to pursue other clients’ matters, but 

he presented no evidence as to any specific clients/matters that he was unable to 

handle because of the time he spent on this estate. As to the third factor regarding 

the customary fee charged in the area, the trial court noted that no expert 

testimony was presented about the customary fee for estates in Seneca County. 

Attorney Smith’s exhibits reflected that he charged $130.00 per hour for each 

activity performed by him. 
Case No. 13-11-10 

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{¶22} As to the fourth factor regarding the amounts involved and the results 

obtained, Attorney Smith testified that he facilitated the sale of one tract of real 

estate and attempted to facilitate the sale of the remaining parcels. The trial court 

found that four years after Stella’s death, a majority of the real estate had not been 

transferred, that the final account had not been completed, and that a substantial 

amount of Attorney Smith’s time was spent negotiating and facilitating potential 

deals between the beneficiaries regarding the disputed option to purchase. The 

trial court found that there was no evidence regarding the fifth factor related to the 

time limitations imposed by the estate or by the circumstances. 

{¶23} The trial court found in regards to the sixth factor, the nature and 

length of the professional relationship, that Attorney Smith was a neighbor and 

friend with Stella’s family, that no fee agreement was ever entered into between 

the co-executors and Attorney Smith, and that Attorney Smith simply began 

working on the estate for the co-executors and tracked his time and activities. The 

trial court found this “troubling” because neither the co-executors nor the 

beneficiaries seemed to have any “meaningful concept” of what the attorney fees 

for the estate would be, which could have been prevented with a written fee 

agreement. 

{¶24} The trial court found that the seventh factor, the experience, 

reputation, and ability of Attorney Smith, was shown through Attorney Smith’s 
Case No. 13-11-10 

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“self-serving assertion that he is experienced, competent and reputable.” Lastly, 

the trial court found as to the eighth factor regarding fixed or contingent fees, that 

there was no evidence of any such agreement between Attorney Smith and the coexecutors. 

{¶25} Based on these findings, the trial court allowed the amount requested 

by Attorney Smith of $17,459.00 for ordinary attorney fees but only allowed an 

additional $17,778.23 for extraordinary fees and attorney fees for executor duties 

to be paid to Attorney Smith upon the filing of the final account. This amount 

created a difference of $9,612.77 between the amount requested by Attorney 

Smith and the amount allowed by the trial court.3

 The trial court further ordered 

that this amount was to represent the full payment for the remainder of Attorney 

Smith’s fees for the future completion of the estate, which was awaiting this 

Court’s decision on Harold’s option to purchase, the sale and/or disposition of the 

real estate once our decision was rendered, and a final accounting. 

{¶26} While the trial court made a number of detailed findings to support 

its allowance of extraordinary fees, all of which were supported by the 

uncontroverted evidence before it, the court failed to provide any basis for 

 

3

 In his brief to this Court, Attorney Smith noted that this was a difference of $8,806.77, based upon his 

request for a total amount of fees of $44,044.00. While this was the total amount originally requested in his 

June 3, 2010 motion for fees, in his notice of filing of November 19, 2010, and in his exhibits, Attorney 

Smith noted that he omitted 6.2 hours of time, which were also extraordinary fees, from his original request 

but had now included those hours in his fee request. These hours account for the $806.00 difference 

between Attorney Smith’s brief to this Court and the exhibits submitted to the trial court. 
Case No. 13-11-10 

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reducing the amount of this allowance to the extent that it did. There is nothing 

evident from the record or from the trial court’s findings that demonstrates in any 

way a basis for the trial court to conclude that only $17,778.23 was a reasonable 

amount for extraordinary fees and executor duties, particularly considering that 

none of the beneficiaries and/or the executor presented any evidence contrary to 

the documentation and testimony presented by Attorney Smith. 

{¶27} Although the trial court may have made a reasoned and supported 

decision for reducing the amount requested by Attorney Smith, i.e. finding some 

activity and/or time spent to not be compensable or determining that $130.00 per 

hour for some and/or all items was an unreasonable amount, we simply are unable 

to determine and, therefore, can only guess at its rationale based upon the record 

and judgment entry before us. Thus, while the trial court’s final dollar amount is 

specific, it is also, by definition, arbitrary because on its face it is a random 

amount that is neither consistent with the evidence in the record nor the findings 

made by the trial court. As such, we have no choice but to find that the trial court 

abused its discretion by simply setting a lump sum and unexplained amount of 

$17,778.23 for extraordinary fees and fees for executor duties.4

 

 

4

 We note that this figure is the same amount as the figure originally determined in September of 2007, by 

Local Rule 71.4 as the expected amount of ordinary attorney fees for the estate. This would appear to be 

the source of the trial court’s total allowance for extraordinary fees. However, the fact that this may be the 

source of the dollar amount, thus rendering it less random, does not render this amount any less arbitrary in 

regards to the allowance of extraordinary fees in light of the record before this Court. 
Case No. 13-11-10 

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{¶28} In addition, we find that the trial court’s purported decision to allow 

no future attorney fees despite the fact that Attorney Smith may be needed again to 

provide legal assistance in the administration of the estate, as there are still 

outstanding matters that must be addressed before the estate may be closed, is also 

an abuse of discretion. If Attorney Smith renders services to the estate after the 

date of his request for fees, the trial court is obligated to review any request for 

fees for such services to determine whether they are reasonable. See In re Estate 

of Kendall, 171 Ohio App.3d 109, 2007-Ohio-1672, 869 N.E.2d 728, ¶ 32. “To 

conclude summarily that no further fees will be considered, without first 

determining whether they are reasonable and necessary, is premature and 

constitutes an abuse of discretion.” Id. 

{¶29} For all of these reasons, the assignment of error is sustained, and the 

judgment of the Common Pleas Court, Probate Division, of Seneca County, Ohio, 

is reversed and the cause remanded for further proceedings consistent with this 

opinion. 

 Judgment Reversed and 

Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur. 

/jlr