[Cite as In re Estate of Weiner , 2020-Ohio-1527.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY IN THE MATTER OF: THE ESTATE OF JOEY WEINER, DECEASED : : : : : : : : : : Appellate Case No. 28585 Trial Court Case No. 98-EST-322246 (Appeal from Common Pleas Court – Probate Division)

. . . . . . . . . . . O P I N I O N Rendered on the 17th day of April, 2020.

. . . . . . . . . . . ROBIN D. MILLER, Atty. Reg. No. 0074375, 600 Vine Street, Suite 2800, Cincinnati, Ohio 45202 Attorney for Appellee Estate of Joey Weiner DAVID P. WILLIAMSON, Atty. Reg. No. 0032614 & JUSTINE Z. LARSEN , Atty. Reg. No. 0095525, 6 North Main Street, Suite 400, Dayton, Ohio 45402 Attorneys for Appellant Harry Weiner

. . . . . . . . . . . . .

HALL, J.-2- {¶ 1} Harry Weiner (Harry) 1 appeals the order of the Montgomery County Court of Common Pleas, Probate Division, authorizing the executor of the Estate of Joey Weiner to pay attorney’s fees for services rendered to the estate afte r June 22, 2005, and on or before June 30, 2009. The probate court had categorically disal lowed these fees in a prior judgment, but we reversed the court’s judgment as it related to this determination and remanded with instructions for the probate court to evaluate th e services individually. See In re Estate of Weiner , 2019-Ohio-2354, 138 N.E.3d 604 (2d Dist.). The probate court had already held an evidentiary hearing on the matter, and we l eft it to the court to decide whether another hearing was needed. Harry argues that the proba te court failed to comply with our instructions and also argues that the court should hav e held another hearing. We disagree with both arguments, and we affirm the probate court’s order. I. FACTUAL AND PROCEDURAL BACKGROUND {¶ 2} Joey Weiner died in May 1998. In her will, she made her three s ons, Dan Weiner, Harry Weiner, and Ted Weiner, the beneficiaries of her estate, and she nominated Ted to serve as executor. The will was admitted to pr obate in June 1998 with Ted as executor. Ted later retained an attorney with the law fi rm of Porter, Wright, Morris & Arthur (PWMA) to help administer the estate. {¶ 3} The brothers have been fighting over their mother’s estate for over 20 years now. We need not rehash the whole history here. We begin in Aug ust 2010, when Ted filed the estate’s sixth account and an application for authori ty to pay attorney’s fees. The application for authority to pay attorney’s fees {¶ 4} In the application, Ted sought permission to pay PWMA $282,353. 75 for

1 Because several family members are involved in this case, we us e first names for clarity.-3- services rendered from November 18, 2002, to May 27, 2009, and to pay another law firm, Graydon Head & Ritchey LLP, $10,842 for services rendered between July 2008 and June 30, 2009. Harry and Dan jointly, in addition to submit ting exceptions to the sixth account, objected to the application for authority to pay attor ney’s fees. A hearing was held before a magistrate over six days, beginning in December 2 010 and ending in February 2011. The magistrate recommended that the account and the application be approved, and Harry and Dan each filed objections with the prob ate court. {¶ 5} The probate court sustained some of the objections and overrule d others. As to the application for authority to pay attorney’s fees, the co urt approved paying attorney’s fees of $116,828.68, less than half of the requested amount. Th e court categorically disapproved all fees for services rendered after June 22, 2005. The court explained in its Entry on the Sixth Account that at the end of June 2005, Ted an d PWMA began trying “to obtain [attorney’s] fees incurred in litigating” the estate’s f ifth account, in which Ted and PWMA had already “sought [recovery of the attorney’s] fees incu rred in administering the Estate.” The probate court said that the “fees incurred from th at point forward were ‘fees on fees on fees,’ or [in other words,] a second regression of * * * litigation” over attorney’s fees. The court called “these ‘fees on fees on fees’ unreasonab le from the Estate’s perspective” because the filing of multiple applications for au thority to distribute “resulted in additional discovery disputes and hearings, further complica ting and delaying * * * the closing of the Estate” for “another ten years.” Appeal of the attorney’s fees decision {¶ 6} In August 2016, the probate court approved a final account for the estate. Harry and Dan appealed, and the estate cross-appealed. The esta te argued in its cross--4- assignment of error that the probate court erred by denying it authority to pay all the attorney’s fees requested in its August 2010 application, inclu ding the categorical denial of all fees for services rendered after June 22, 2005. We overr uled Harry’s and Dan’s assignments of error, but we found merit in the estate’s cross- assignment of error: “Regarding attorney’s fees incurred by Ted Weiner, as executor, we find that the Probate Court erred when it summarily denied authorization for the Esta te to pay any attorney’s fees incurred after June 22, 2005; otherwise, we affirm the cou rt’s rulings on the Estate’s payment of attorney’s fees.” Weiner , 2019-Ohio-2354, 138 N.E.3d 604, at ¶ 78. We found that the court had “unreasonably disregarded the circumstances by characterizing the entirety of Ted and PWMA’s activity * * * as devoted solely to the collection of fees.” Id. at ¶ 36. We said the probate should not have summarily disappro ved the fees “without reviewing the nature of the services for which those fees were claimed or the circumstances in which the services were rendered.” Id. at ¶ 41. {¶ 7} Consequently, we reversed the described part of the trial court ’s judgment and remanded the case. “On remand,” we instructed, “the court m ust evaluate all services that were rendered after June 22, 2005, and on or before June 3 0, 2009, indicating in each instance the reason for which payment is authorized or not authorized, whether in part or whole.” Id. at ¶ 43. “Having already held a hearing and received evidence on these fees,” we continued, “the court, in its discretion, may determi ne that no further hearing or submission of evidence is necessary.” Id

. Remand in the probate court {¶ 8} On remand, the probate court determined that no additional hear ing or submission of additional evidence was necessary. The court revi ewed all the services-5- that were rendered by the estate’s attorneys during the pertine nt time period. In a written order, the court listed the services that it determined were re asonable and rendered for the benefit of the estate. The court also listed the services t hat it determined should be paid only in part or should be denied altogether and stated the reason for each partial payment or denial. Lastly, the court reviewed the costs that th e attorneys charged the estate and allowed a portion of them. In all, for the services rendered after June 22, 2005, and on or before June 30, 2009, the probate court authorized th e estate to pay attorney’s fees of $100,984.87. {¶ 9} Harry Weiner appeals. II. ANALYSIS {¶ 10} Harry assigns two errors to the probate court. The first claims that the court failed to comply with our remand instructions, and the second c hallenges the probate court’s decision not to hold another hearing. A. Remand instructions {¶ 11} The first assignment of error alleges: THE PROBATE COURT ERRED BY FAILING TO COMPLY WITH THIS COURT’S INSTRUCTIONS ON REMAND. Harry argues that in its decision authorizing the payment of at torney’s fees, the probate court failed to follow our remand instructions. {¶ 12} In our opinion, we concluded that the probate court erred by ca tegorically disapproving those attorney’s fees claimed for services rendere d after June 22, 2005. We instructed the court to “evaluate all services” that were rende red during the period and to “indicat[e] in each instance the reason for which payment is au thorized or not authorized,-6- whether in part or whole.” Weiner , 2019-Ohio-2354, 138 N.E.3d 604, at ¶ 43. Upon review of the probate court’s order, we conclude that this is w hat the court did. {¶ 13} The court attached five exhibits to its order that support its decision. The first (Exhibit 1) is comprised of a copy of the invoice from PW MA and the invoice from Graydon Head & Ritchey LLP that were submitted with the estate’ s August 2010 application for authorization to pay attorney’s fees. Together the invoices list over 300 services that the firms rendered the estate after June 22, 2005 , and on or before June 30, 2009, as well as the costs and expenses the firms charged the e state during that time period. For each service listed, there is stated the date, a pe rson’s name, a brief description, and the hours billed. Portions of numerous descrip tions are redacted. On the PWMA invoice, after the list of services, there is a fee summar y listing the names of the service providers, an hourly rate, and the number of hours bill ed at that rate. The list shows that the hourly rate of some PWMA service providers chang ed over the time period. Finally, each invoice ends with a list of costs or expe nses that the law firm charged to the estate. {¶ 14} The next four exhibits contain the probate court’s analysis of the services and costs. Since PWMA charged varying hourly rates, in one exhi bit (Exhibit 4), the court calculated an average hourly rate for each service provider. In another exhibit (Exhibit 2), the court listed the services that it determined were “reasonab le and necessary services rendered for the benefit of the estate.” The allowed services w ere organized by service provider and state the date, t he hours billed, and the hours th at the court approved. The court then added up the approved hours for the service provider and multiplied the sum by the person’s hourly rate (averaged for PWMA service provider s) to arrive at the total-7- fees allowed for each person. In Exhibit 3, the court listed th e services that it disapproved entirely and those for which it reduced the hours. For each dis approval or reduction, the court stated the reason—most often “Information Redacted” or “P reparation of Bill.” In its order, the court said that “most of the partial denials were ca used by the full or partial redaction of the services rendered in each item. These redactio ns made it impossible for the Court to determine if the service rendered was for the bene fit of the estate. Therefore, the redacted item was determined not reasonable and necessary f or the estate and deducted from the total allowable fee or cost.” The court also noted that it “deducted all items that were associated with the preparation of the attorney fee submission” based on a local rule. 2 A final exhibit (Exhibit 5) states the costs and expenses that the court allowed. {¶ 15} Harry argues that these findings were insufficient. He says tha t for those fees that the probate court approved, our instructions required more than just a blanket statement that the fees were incurred for “reasonable and neces sary services rendered for the benefit of the estate.” Harry appears to think that for each approved service, the court had to state a particular reason for approving the servic e. {¶ 16} We believe that the probate court complied with our instruction s. We said in our opinion: “Under R.C. 2113.36, if the executor of an estate engages an attorney to assist with the administration of the estate, then reasonable a ttorney’s fees ‘paid by the

2 The probate court cited Loc.R. 66.1 of the Montgomery County Co mmon Pleas Court, Probate Division, which appears to be a mistake. It is L oc.R. 71.1 that governs attorney fees and pertinently states that “ [t]ime expended by Counsel to prepare a representation agreement, to prepare and file an Application fo r Attorney Fees or to prepare and file an Appendix B have been determined by this Cou rt to be the costs of counsel[ ’ ]s doing business and shall not be approved for compensation fr om the assets of the underlying case. ”-8- executor * * * shall be allowed as a part of the expenses of ad ministration.’ The probate court must consider the factors set forth in Prof.Cond.R. 1.5(a )(1)-(8) in determining whether, or to what extent, the amount to be paid by the execut or is reasonable.” (Citations omitted.) Weiner , 2019-Ohio-2354, 138 N.E.3d 604, at ¶ 33. It is clear that the probate court here examined each service, as we instructed. And as we instructed, for each service the court gave its reason for approving or disappr oving. Those services that the court approved were approved because the court determined t hat they were reasonable, which is the legal standard. We further believe tha t, in making its determination, the court would have considered the relevant fac tors in Prof.Cond.R. 1.5. The probate court was not required to discuss each factor that it considered for each of the 300 plus services. The law does not require such a pedantic written decision from a probate court, and neither did we. Our goal was to get the prob ate court to consider the services rather than simply reje cting them all categorically. T his the court did. {¶ 17} The first assignment of error is overruled. B. Another hearing {¶ 18} The second assignment of error alleges: THE PROBATE COURT ERRED BY OPTING TO FOREGO A HEARING ON FEES BEFORE ENTERING ITS DECISION. {¶ 19} The probate court originally held an evidentiary hearing on the relevant attorney’s fees over six days, from December 2010 to February 2 011. We left it in the court’s discretion whether to hold another hearing or to take a dditional evidence on remand. “Having already held a hearing and received evidence on these fees,” we said, “the court, in its discretion, may determine that no further he aring or submission of-9- evidence is necessary.” Weiner , 2019-Ohio-2354, 138 N.E.3d 604, at ¶ 43. The probate court decided not to do either, finding that “no additional hea ring or submission of additional evidence is necessary.” {¶ 20} Harry argues that another hearing was necessary. He says that t he probate court’s reliance on the original hearing was improper and resul ted in it approving fees inconsistently and approving fees that should have been denied. Harry gives several examples of what he means, but it is unclear how another hearin g would have helped. Harry does not assert that there was new information or additio nal evidence that the probate court should have considered, which could have been pre sented at a hearing. Nor does he assert that the original hearing was invalid. Furth ermore, raising this as a problem now would itself be a problem, because Harry should hav e raised any inadequacy of the previous hearing in his first appeal from the final account. {¶ 21} The probate court had before it the original fee application it emizing the services for which attorney’s fees were sought and the transcri pt from the original hearing. Harry fails to convince us that the trial court abused its disc retion by not holding another hearing on remand. {¶ 22} The second assignment of error is overruled. C. Motion for sanctions {¶ 23} As a final matter, we note that the estate has filed a motion f or sanctions under App.R. 23 asking us to award attorney’s fees and costs ag ainst Harry Weiner in connection with this appeal. The rule allows an appellate court to require the appellant to pay reasonable fees if the court determines that an appeal is f rivolous, that is, “ ‘presents no reasonable question for review.’ ” Springfield Venture, L.L.C. v. U.S. Bank, N.A. , 2015--10- Ohio-1983, 33 N.E.3d 85, ¶ 51 (2d Dist.), quoting Taylor v. Franklin Blvd. Nursing Home, Inc. , 112 Ohio App.3d 27, 32, 677 N.E.2d 1212 (8th Dist.1996). Afte r consideration, we decline to award attorney’s fees for this appeal. The motion fo r attorney’s fees is overruled. III. CONCLUSION {¶ 24} We have overruled both of the assignments of error presented. T he trial court’s judgment is therefore affirmed.

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TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to: Robin D. Miller David P. Williamson Justine Z. Larsen Dan Weiner Hon. Alice O. McCollum