[Cite as In re Caltrider, 2013-Ohio-1757.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

 CONNOR JOSEPH CALTRIDER 

IRREVOCABLE TRUST 

 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 12 CA 27 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Probate Division, Case No. 

00067228 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: April 24, 2013 

APPEARANCES: 

For Appellee For Appellant 

MICHAEL J. JOHRENDT JUDITH E. GALEANO 

JOHRENDT, COOK & EBERHART JAMES S. MOWERY, JR. 

250 East Broad Street NICHOLAS W. YAEGER 

Suite 200 MOWERY YOUELL & GALEANO 

Columbus, Ohio 43215 425 Metro Place North, Suite 420 

 Dublin, Ohio 43017 
Fairfield County, Case No. 12 CA 27 2

Wise, J. 

{¶1} Appellant Mowery, Youell & Galeano, Ltd. appeals the May 8, 2012, 

decision of the Fairfield County Probate Court granting Appellees’ Motion to Dismiss all 

Pending Motions including Appellants’ Motion to Set Aside the Agreed Judgment Entry 

filed April 11, 2011. 

{¶2} Appellees in this matter are B. Wayne Caltrider, individually and as 

Executor of the Estate of Jay A. Caltrider, Patsy Caltrider and Jennifer Caltrider-Adams. 

STATEMENT OF THE FACTS AND CASE

{¶3} This appeal arises out of a will contest action that was filed by Appellant 

Mowery, Youell & Galeano, Ltd. ("MYG") on behalf of its client at the time, Megan 

Osterman and her two children, Cora Ann Caltrider and Joseph Caltrider. 

{¶4} On May 13, 2009, Decedent Jay Caltrider's Estate was admitted to the 

Probate Court in Fairfield County. Prior to his death, the Decedent had been engaged to 

be married to Megan Osterman and the parties had two children together: Cora Ann 

Caltrider and Connor Joseph Caltrider. At the time of his death, Decedent had been 

established to be the father of one of the Children but not the other. MYG was hired by 

Osterman to represent her and her Children to contest the Decedent's will so that the 

Children and she could inherit from the Decedent's Estate. 

{¶5} On August 13, 2009, MYG, on behalf of Osterman and her children, filed a 

Will Contest in the Fairfield County Probate Court, challenging the administration of the 

Decedent's Estate.(Case Nos. 00065860-A, 00065860-B, and 00065860-C). 

{¶6} MYG’s legal services were provided to Osterman and the children 

pursuant to an hourly fee agreement. 
Fairfield County, Case No. 12 CA 27 3

{¶7} In March, 2010, after approximately eight months of representation, 

Osterman and the children retained the law firms of Brunner and Quinn and Kettlewell 

and Donchatz, LLC (now defunct). Brunner entered an appearance substituting as 

counsel for MYG. 

{¶8} Ultimately, the parties reached a settlement in the will contest action which 

resulted in an Agreed Judgment Entry being filed on April 11, 2011. 

{¶9} On April 27, 2011, Osterman, through Brunner, filed a new action with 

Fairfield County Probate Court (Case Nos. 00067228 and 00067229), known 

collectively as the "Trust Case." Osterman then filed a motion with the Fairfield County 

Probate Court in the Trust Case requesting the probate court: (a) reduce the amount of 

attorney fees incurred by Osterman and the Children resulting from MYG's 

representation of the Children in the Will Contest; and, (b) order that such fees be paid 

from the Children's Trusts. 

{¶10} Upon learning of the filing of the Trust case and the motions filed therein, 

MYG moved to intervene in the Trust Case and be made a party. MYG was permitted to 

intervene and made a party to the action. 

{¶11} MYG also moved to intervene as a necessary party in the Will Contest 

Case and filed a 60(B) motion to set aside the Agreed Judgment Entry filed April 11, 

2011, in order to protect its interests. 

{¶12} On July 15, 2011, the Defendants in the underlying estate litigation, B. 

Wayne Caltrider, Patsy Caltrider and Jennifer Caltrider-Adams filed a "Motion to 

Dismiss and/or Memorandum in Opposition to All Pending Motions Concerning Attorney 

Fees." The motion was joined by the Estate. 
Fairfield County, Case No. 12 CA 27 4

{¶13} In their motion, the Caltrider Defendants asserted that the probate court 

lacked jurisdiction over a fee dispute between attorneys and that such dispute should be 

referred to the bar association. The Caltrider Defendants further asserted that the 

probate court had not retained jurisdiction over the issue of attorney fees when it 

approved the Agreed Judgment Entry on April 11, 2011, and that it was not appropriate 

for a probate court to entertain what had now essentially become a dispute between 

private parties over the division of legal fees. 

{¶14} In its Entry filed on May 8, 2012, the Fairfield County Probate Court 

granted the Caltrider Defendants' Motion to Dismiss all Pending Motions 

{¶15} Appellant now appeals, assigning the following assignments of error. 

ASSIGNMENTS OF ERROR

{¶16} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED 

ITS DISCRETION BY FINDING IT LACKED JURISDICTION TO GRANT MOWERY 

YOUELL & GALEANO, LTD.'S MOTION TO SET ASIDE THE AGREED JUDGMENT 

ENTRY JOURNALIZED WITH THIS COURT ON APRIL 11, 2011 AS THE COURT DID 

HAVE JURISDICTION OVER ALL ISSUES SURROUNDING FEES. 

{¶17} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO 

GRANT MYG'S MOTION TO SET ASIDE THE APRIL 11, 2011 SETTLEMENT 

AGREEMENT AS MOWERY YOUELL & GALEANO, LTD. ESTABLISHED EACH 

REQUIRED ELEMENT UNDER OHIO LAW OR IN THE ALTERNATIVE TO AT LEAST 

CONDUCT AN EVIDENTIARY HEARING ON THE CIVIL RULE 60(B) MOTION.” 

 
Fairfield County, Case No. 12 CA 27 5

I. 

{¶18} In its First Assignment of Error, Appellant argues that the trial court erred 

in finding that it lacked jurisdiction to consider Appellant’s motion to set aside the 

settlement entry in this matter. We agree. 

{¶19} R.C. §2113.36 vests the probate court with exclusive jurisdiction to 

determine reasonable attorney fees. In re Guardianship of Papuska, Stark App. No. 

2004-CA-0150, 2005-Ohio-741. In re Estate of Secoy, 19 Ohio App.3d 269, 274 (2d 

Dist.1984). In re Estate of Cercone, 18 Ohio App.2d 26, 246 N.E.2d 578 (7th 

Dist.1969). 

{¶20} Pursuant to R.C. §2113.36: 

{¶21} “If an attorney has been employed in the administration of the estate, 

reasonable attorney fees paid by the executor or administrator shall be allowed as a 

part of the expenses of administration. The court may at any time during administration 

fix the amount of such fees * * *.” 

{¶22} “[R]easonable attorney fees shall be based upon the actual services 

performed by the attorneys and upon the reasonable value of those services.” In re 

Estate of Verbeck, 173 Ohio St. 557, 558, 184 N.E.2d 384 (1962). “In all cases, 

the probate court must look at all the evidence to determine the reasonable value of an 

attorney['s] services.” In re Estate of York, 133 Ohio App.3d 234, 243, (12th Dist.1999). 

{¶23} “ ‘It is well established that the payment of reasonable attorneys fees rests 

within the probate court's sound discretion.’ ” In re Estate of Keytack, 2008–T–0039, 

2008–Ohio–6563, at ¶ 28, citing In re Estate of Fugate (1993), 86 Ohio App.3d 293, 

298, 620 N.E.2d 966. 
Fairfield County, Case No. 12 CA 27 6

{¶24} “The extent of a probate court's discretion includes the ability to, sua 

sponte, vacate an erroneous order fixing attorney's fees for services rendered for an 

estate and file a new judgment entry for a lesser amount which the court finds to be the 

reasonable value of the services rendered for the benefit of the estate.” In re Estate of 

Clark, 11th Dist. No. 97–G–2060, (Dec. 19, 1997). 

{¶25} A probate court's determination of reasonable fees is a question of fact 

and will not be reversed by a reviewing court unless manifestly against the weight of the 

evidence. Kern v. Heilker & Heilker, 56 Ohio App. 371, (1st Dist.1937). 

{¶26} In the case before this Court, the probate court, in the April 11, 2011, 

Agreed Judgment Entry, stated: 

{¶27} “The Court further finds that the attorney for both sides provided significant 

legal services beneficial to the entire Estate, including the procurement of voluminous 

financial and medical records, the filing and answering of Interrogatories, the assembly 

and submission of documents in response to Requests for Production of Documents, 

the presentation of numerous substantive legal issues for determination by the Court, 

the taking of deposition of witnesses on each side of the dispute and the engagement of 

expert witnesses expressing conflicting opinions on the issues in this case. 

{¶28} “As a result of this effort, a resolution was achieved which more likely 

reflects the intent of the Decedent and the operation of law. 

{¶29} “The Court finds that the settlement results in a more equitable distribution 

of the Decedent’s assets and that said litigation was essential to the proper 

administration and distribution of Decedent’s Estate.” 

{¶30} The court then ordered: 
Fairfield County, Case No. 12 CA 27 7

{¶31} “6. The Court holds that the attorneys’ fees arising from both Defendants’ 

counsel on the one hand, and Brunner Quinn and Kettlewell & Donchatz LLC 

(hereinafter, “Plaintiffs’ Counsel”) on the other, were actually and necessarily incurred 

for the benefit of and were essential to the proper administration and settlement of 

Decedent’s Estate. In that the attorneys’ fees incurred by Defendants’ and Plaintiffs’ 

Counsel were both reasonable in amount and necessary in determining the property 

distribution of the property of the Estate among the beneficial interests of the entire 

Estate, the Court finds it both equitable and proper that they be, and are, allowable as a 

cost of administration, and it is ordered that the Decedents’ Estate shall pay Plaintiffs’ 

Counsel for Connor J. Caltrider the sum of $168,241.00 as and for their attorneys’ fees 

and expenses of litigation from the Estate; it is ordered that the Decedent’s Estate shall 

pay Plaintiffs’ Counsel for Cora Ann Caltrider the sum of $168,241.00 as and for their 

attorneys’ fees and expenses of litigation from the Estate; it is ordered that the 

Decedent’s Estate shall pay Plaintiffs’ Counsel for Megan A. Osterman $83,335 when 

Osterman has complied with the Settlement Agreement, and specifically Section Three, 

Paragraph 13, as and for their attorneys’ fees and expenses of litigation from the Estate; 

it is ordered that the Decedent’s Estate shall pay Defendants’ counsel for Patsy 

Caltrider, Jennifer Caltrider, Kerry Adams, Kaitlin Adams, Jordyn Adams and Morgan 

Adams the sum of $64,827.80 as and for their attorneys’ fees and expenses of litigation 

from the Estate.” 

{¶32} After receiving MYG’s motion to set aside the above Agreed Judgment 

Entry, in its May 8, 2012, Entry, the trial court stated that it “lacks subject matter 

jurisdiction over the pending motions.” The court further stated that the “pending 
Fairfield County, Case No. 12 CA 27 8

motions all relate to a dispute over attorney fees between current and former counsel” 

for the parties. The court finally stated it “approved a settlement ...and did not retain 

jurisdiction over attorney fees.” 

{¶33} Appellee argues that the issue as to attorney fees is tantamount to a feesharing agreement or fee dispute between the two law firms and as such should be 

determined before the Bar Association pursuant to DR 2-107. See In Re Estate of 

Southard, 10th Dist. App. 10AP-409, 2011-Ohio-836. 

{¶34} Upon review, we find that no fee sharing agreement existed between the 

parties. MYG provided legal services to Osterman and her children prior to Brunner’s 

representation. Brunner continually provided reassurance to MYG that it would protect 

their fees. Nowhere is there a record that Brunner agreed to pay MYG out of its fees or 

that MYG expected to be paid out of Brunner’s fees. 

{¶35} Instead, this Court finds that the issue and determination of MYG’s fees 

was not presented to the probate court, whether such was a mistake, inadvertence or 

otherwise, we cannot say. However, we can say that the probate court herein has the 

authority to determine the attorney fees for the services provided by MYG in this case. 

Further, the probate court certainly has the authority to consider and rule upon 

Appellant’s Motion to Set Aside the Agreed Judgment Entry in this case and to vacate 

an erroneous order if necessary. 

{¶36} Appellant’s First Assignment of Error is sustained. 

II.

{¶37} In their Second Assignment of Error, Appellants argue that the trial court 

erred in not granting its Civ.R. 60(B) Motion for Relief from Judgment. 
Fairfield County, Case No. 12 CA 27 9

{¶38} Based on our disposition of Appellant’s First Assignment of Error, and our 

remand to the trial court, we find this assignment of error to be premature as the trial 

court has not yet considered and/or ruled upon Appellant’s Civ.R. 60(B) motion to set 

aside the settlement entry in this matter. 

{¶39} Appellants’ Second Assignment of Error is overruled. 

{¶40} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Probate Division, Fairfield County, Ohio, is reversed and this matter is remanded for 

further proceedings consistent with the law and this opinion. 

By: Wise, J. 

Hoffman, P. J., and 

Farmer, J., concur. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES 

JWW/d 0409 
Fairfield County, Case No. 12 CA 27 10

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: : 

 : 

 : 

 CONNOR JOSEPH CALTRIDER : JUDGMENT ENTRY 

 : 

 : 

 IRREVOCABLE TRUST : Case No. 12 CA 27 

 

 

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

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

reversed and remanded for further proceedings consistent with this opinion. 

 Costs assessed to Appellee. 

 ___________________________________ 

 ___________________________________ 

 ___________________________________ 

 JUDGES