IN THE OHIO SUPREME COURT

IN THE MATTER OF THEGUARDIANSHIP OF:VINA BESS

CASE NO. ® 7- 2®

ON APPEAL FROM THESUMMIT COUNTY COURTOF APPEALS, NINTHAPPELLATE DISTRICT

COURT OF APPEALSCASE NO. 23411

I

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT JAMES T. STIMLER

JAMES T. STIMLER (Counsel of Record)Reg. No. 0011835822 Portage Trail, Suite 2Cuyahoga Falls, OH 44221Telephone: (330) 252-0300Facsimile: (330) 252-0303j stimler@stimlerlawoffi ces.com

COUNSEL FOR APPELLANT, JAMES T. STIMLER

MARK W. BERNLOHR (Counsel ofRecord)Reg. No. 0038640SARAH B. CAVANAUGH (Counsel of Record)Reg. No. 007845423 S. Main Street, Suite 301Akron, Ohio 44308Telephone: (330) 434-1000Facsimile: (330) 434-1001

^^^ ^ 6 e'U07

SUPREME it;UUq ^p^ ®FIfO

COUNSEL FOR APPELLEE, GEORGE R. WERTZ,GUARDIAN OF THE PERSON AND ESTATE OF VINA BESS

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC AND GREAT GENERAL INTEREST .........................................

STATEMENT OF THE CASE AND FACTS ..............................................

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .....................

Proposition of Law I:

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Civ. R. (53)(D)(3)(b)(iii) Does Not Permit A Reviewing Court To Refuse ToConsider A Hearing Transcript Before The Court Below Simply Because It Was FiledFirst By The Non-Objecting Party Months Before The Decision Being Appealed AndThe Objecting Party Did Not File A Redundant Copy Of That Transcript With TheReviewing Court, Especially When: 1) The Record Shows That Hearing TranscriptWas Specifically Argued Below By All Parties; 2) There Was No Objection RaisedBy Any Party Regarding The Accuracy Or Completeness Of That Hearing Transcript;3) The Objecting Party Also Filed An Affidavit Regarding The Same HearingTestimony Before That Transcript Was Available; And 4) The Transcript Of TheExhibits From That Hearing Was At All Times With The Court Below. 9

Proposition of Law II:

An Unjustifiable Restatement Of An Assignment Of Error By An Appellate Court InOrder To Overrule It Is Synonymous With Failing To Decide And Give Reasons ForIts Decision Regarding The Assignment Of Error Actually Before The Court So AsTo Violate App. R. 12(A)(1)(c); An Appellate Court Errs And Must Be ReversedUnder App. R. 12(A)(1)(c) When In Its Decision It Materially Misstates The ReliefRequested In An Assignment Of Error Then Decides That The Appellant Is PrecludedFrom Relief As To The Assignment Of Error Actually Stated On The Basis That TheAppellant Did Not Appeal For The Relief Unjustifiably Injected Into The Appeal ByThe Appellate Court In Its Decision ....................................................... 13

CONCLUSION .............................................................................................

PROOF OF SERVICE ...................................................................................

APPENDIX Anpx. Paee

Decision and Journal Entry of the Sununit CountyCourt of Appeals, Ninth Judicial District, (September 26, 2007) ..... A-1

PAGE(S)

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15

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II

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC AND GREAT GENERAL INTEREST

This Honorable Court should accept jurisdiction in this case to prevent further damage

to the rights of citizens and the administration of justice in Ohio being caused by the

inappropriate, formalistic and wrongftilly manipulative application of administrative agendas

in direct violation of the substantive law by two courts. The Ninth District Court of Appeals is

abusing Civ. R. (53)(D)(3)(b)(iii) and App. R. 12(A)(1)(c) so as to avoid its obligation to

provide a fair review under substantive law and to deny Appellant his right to a fair and

informed review of his objections to the proceedings below. The Summit County Probate

Court is denying citizens their material and very personal right to nominate their own guardian

under R.C. §2111.121 and that probate court was most willing to ignore additional substantive

legal and ethical guidelines and the established facts in evidence in order to punish and to

retaliate against Appellant in his application for attorney's fees regarding his opposition on

behalf of his incompetent client to that probate court's administrative agenda.

The Ninth District Court of Appeals erred and abused Civ. R. (53)(D)(3)(b)(iii) in the

Decision being appealed herein through its refusal to consider the transcript of the hearing on

attorney fees in a guardianship matter solely because the Appellant had not filed a redundant

copy of the hearing transcript since that hearing transcript had already been filed by the

opposing party, even though that hearing transcript was specifically argued before the probate

court before the probate court's decision and the Appellant also filed an Affidavit regarding

that hearing testimony with the probate court prior to the availability of that hearing transcript.

Oddly, the Ninth District Court of Appeals even went so far in its Decision as to deny the

Appellant had even filed the Affidavit, which is clearly before the Ninth District as it quoted

from the pleading containing the Affidavit filed with the probate court on January 13, 2006

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titled "Objections to Magistrate's Decision of December 30, 2005 with Attached ALTidavit"

(Emphasis Added).

The Ninth District Court of Appeals erred and abused App. R. 12(A)(1)(c) in its

manipulation of Appellant's Assignment of Error I by announcing in its Decision without

justification that Appellant's objection to the probate court's refusal to apply the correct legal

standards respecting its evaluation of the reasonableness and value of Appellant's legal

services was really a request by Appellant that the guardian appointed below be removed. The

appellate court provided no excerpt from any argument presented by Appellant to support its

gross misstatement of Appellant's Assignment Of Error I. The Appellate Court's Decision can

only be viewed as a transparent attempt to avoid its obligation under App. R. 12(A)(1)(c) to

"decide each assignment of error and give reasons in writing for its decision."

The Ninth District Court of Appeals Decision needs to be reversed so that the Summit

County Probate Court's actions below in retaliating against the Appellant for opposing the

probate court's blanket refusal to honor his incompetent client's right to nominate her own

guardian under R.C. §2111.121 can be addressed. Once the Ninth District Court of Appeals

concluded to refuse to look at the hearing transcript or the Affidavit that were timely before it

and the probate court, it concluded it had to treat the magistrate and probate court's findings of

fact as considered established and unable to be attacked on appeal. Therefore, there has been

no review of the many and egregious violations of substantive law, ethical guidelines and the

established facts in the record below by the probate court and its magistrate.

It is of great public and general interest to litigants that our reviewing court's be held

accountable to reliably address the actual cases and evidence that are timely before them. To

do otherwise breeds uncertainty and disrespect for the court which is not expected to act like

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an Alice in Wonderland otherworld or a corrupt third world government tribunal where the

court may, or may not, acknowledge the hearing transcript addressed below in their file

depending upon their whim or self-serving administrative agenda. Additionally, the public

does not want or expect a local probate court to be able to cavalierly refuse to address or

acknowledge the statutory right the legislature gave them to nominate their own guardian, nor

does the public desire that the attorneys the public expects to protect their legal rights to be

financially abused, slandered and intimidated for performing their professional service as

instructed by their ethical guidelines and required by law.

STATEMENT OF THE CASE AND FACTS

This appeal comes to this Court by an attorney seeking vindication of the rule of law

and fair compensation for his reasonable and valuable legal services. This appeal is brought

by James T. Stimler, Esq., a Certified Specialist in Estate Planning, Trust, and Probate Law

and licensed attorney in Ohio for over 30 years, on behalf of his law firm, Stimler Law Offices

(Appellant).

After the onset of the now 88 year old Ward's, Vina E. Bess', dementia and

hallucinations in March 2004, the Ward's daughter, Phyllis Croghan, began managing Vina's

affairs pursuant to a Durable Power of Attomey (DPOA), which was prepared by Attorney

Robert McDowell on November 16, 2002. The DPOA nominated Phyllis Croghan to be the

Guardian of the Ward's person and estate in Paragraph 1(1), GUARDIAN. As part of her

actions as attomey-in-fact for Vina, Phyllis Croghan engaged Appellant to help consolidate the

intangible property and assets the attorney-in-fact discovered within Ward's residence, which

totaled approximately $800,000, including the residence. In the course of consolidating the

Ward's financial assets into a fiduciary account at National City Bank it was discovered that

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Paul Bess, her son in Texas, had withdrawn over $75,000 of the Ward's funds from her three

BFG credit Union Accounts, on which he was placed "J&S" for convenience in 2002 when the

Ward's husband died, in April and May of 2004, without Phyllis Croghan's permission or

knowledge, and without any apparent authority from the Ward.

Per Phyllis Croghan's instruction, Appellant demanded that Paul Bess return the funds

or document his legal authority to remove Ward's funds from the jurisdiction of Summit

County, Ohio. After Paul Bess and his Texas attomey refused to substantively respond to two

written demands, Appellant filed the suit approved by Phyllis Croghan on July 30, 2004,

against Paul Bess for Conversion and Fraud under Summit County Common Pleas Case No.

CV-2004-07-4229 (Collection Case). Appellant continued to try to resolve the matter with

Paul Bess' Texas attorney and then Akron, Ohio Attorney, Philip Kaufman. On August 23,

2004, Appellant received a letter and improper Subpoena and "Notice of Deposition Duces

Tecum" from Attorney Julius Amourgis, Paul Bess' third attorney to contact Appellant.

(Attorney Julius Amourgis has been recently sanctioned by this Court in Akron Bar Assn. V.

Amourgis, 113 Ohio St.3d 32, 2007-Ohio-974). Attorney Amourgis refused to sort out with

Attorney Kaufinann who would be representing Paul Bess in order to avoid violating EC 2-29.

Thus began a constant stream of abusive, illegal, and obstructionist tactics by Attomey

Amourgis and Paul Bess' other attorneys, Attorney Amourgis' partner Susan Reilly and

Attorney Richard Williams. Among the lowest points of the disgraceful, expensive conduct

by Paul Bess and his attorneys, were the scenes and abuses of the Ward and her caregivers at

the nursing home, the Applications to be the Ward's Guardian of Paul Bess' Attorneys Susan

Reilly and Richard Williams, and the frivolous, summarily dismissed lawsuit filed against

4

Appellant under Summit County Common Pleas Case No. 2004-04-5177 regarding the return

demand letter sent to Paul Bess' Texas attorney.

Phyllis Croghan filed her Application to be Guardian and Appellant filed Objections to

the Appointments of Paul Bess' Attorneys Susan Reilly and Richard Williams in order to

protect the Ward and follow the instructions of the Ward's DPOA. At the guardianship pre-

trial the magistrate made it clear that he did not intend to follow the direction of the Ward in

her DPOA to appoint her daughter, Phyllis Croghan, as Guardian regardless of the Ohio's

statutes mandating that Phyllis should be appointed guardian so long as she is suitable,

competent and willing. Both of Paul Bess' attorneys withdrew their application to be guardian

upon the instruction the magistrate, one after the pretrial and one by simply walking out of the

Guardianship Hearing. All parties stipulated that Ward was in incompetent. Again at the

Guardianship Hearing the Magistrate made his displeasure known as to Phyllis Croghan's

Application to be Guardian, but evidence was presented by the Appellant to support that

Phyllis Croghan should be appointed Guardian because Phyllis Croghan was suitable,

competent and willing to be to Guardian as set forth in Vina's DPOA. After the Guardianship

Hearing, Phyllis A. Croghan, believing the magistrate would not follow the law and appoint

her Guardian, Phyllis Croghan withdrew her Application to be Guardian and resigned as the

attorney-in-fact for the Ward. Phyllis Croghan was shaken by the lack of support for the law

by the magistrate and her belief that her brother, who was acting bizarrely, may be a

dangerous sociopath. Phyllis Croghan was fearful and conflicted about continuing to pursue

her instruction from her mother in the DPOA to be her mother's Guardian so that Phyllis

would send the Appellant e-mails saying she wanted to withdraw her Application to be

Guardian then she would encourage Appellant in e-mails saying his legal efforts were "

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awesome" and she would participate in great detail in difficult matters like the Guardianship

Hearing. At the Fee Application Hearing she stated she was afraid her brother, Paul Bess,

would kill her because of her opposition to his taking her mother's money.

Although the Magistrate was informed by Appellant that Attorney George Wertz was

identified in an affidavit filed by Paul Bess in the Collection Case as a Paul Bess consulting

attorney, the Magistrate appointed Attorney George Wertz as the Guardian for the Ward.

Attorney George Wertz dismissed Appellant and hired his partner Attorney Mark Bemlohr.

Appellant promptly met with Attorney George Wertz and turned over to him 105 documents

and items that had been compiled regarding the Ward's Financial Estate. Appellant delivered

the Fee Applications as set forth above. Paul Bess returned about $65,000 of Vina's $75,000

in exchange for the settlement of the Collection Case.

Appellant made application for fees generated on behalf of the Ward below, Vina E.

Bess, in the following matters:

1. Asset Collection Case, Bess v. Bess, Summit County Common Pleas CaseNumber CV-2004-07-4229, for the period October 1, 2004 through December22, 2004- Outstanding unpaid fees: $17,154.00

2. In Re Vina E. Bess, Summit County Probate Court Guardianship Case Number2004 GA 00224, for the period September 1, 2004 through December 17, 2004-Outstanding unpaid fees: $29,738.71

The above outstanding fees in the total amount of $46,892.71 are payable by the

Guardianship Estate of Vina E. Bess (Vina Bess) to Appellant under the law and facts as the

fees were authorized, incurred in good faith, necessary, beneficial to the Ward, Vina Bess, and

reasonable under the Disciplinary Rules.

The Appellant's Fee Application was heard by the magistrate on May 5, 2005. The

magistrate issued the Magistrate's Decision about eight months later on December 30, 2005

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awarding Appellant nothing on the Collection Case and only $5,000 on the Guardianship

Case. The Magistrate's Decision of March 29, 2006-Findings of Fact and Conclusions of Law

were exactly the same as the Guardian's proposed Findings except for one paragraph. On

April 10, 2006, Appellant filed Objections to the Magistrate's Decision of March 29, 2006-

Findings of Fact and Conclusions of Law. The probate court filed its Order Overruling the

Objections of Appellant on September 1, 2006, and confirming the magistrate's award of

nothing on the Collection Case and only $5,000 on the Guardianship Case. Neither the

magistrate nor the probate court had actually reviewed any of the pleadings in the Collection

Case nor did their rulings reflected verifiable, accurate knowledge of the specifics of the

Guardianship Case or either of Appellant's Fee Applications. Appellant filed the Notice of

Appeal with the Ninth District Court regarding the Probate Court Order of September 1, 2006,

and the Magistrate's Decision on September 22, 2006.

It should be noted that, the Exhibit evidence from the Fee Application Hearing was

always in the possession of the probate court as the hearing transcript was prepared from

audiotapes and a hearing transcript was submitted into the record in the probate court by the

Guardian over a month before the oral argument on Appellant's Objections of April 3, 2006

and over six months before the probate court's ruling of September 1, 2006, which was

appealed to the Ninth District. Additionally it should be noted that an affidavit was attached

by Appellant to his Objections filed with the probate court on January 13, 2006 titled

"Objections to Magistrate's Decision of December 30, 2005 with Attached A:davit"

(Emphasis Added). At the time of the filing of the Affidavit, there was no transcript of the

testimony of the Fee Application Hearing of May 5, 2005 before the magistrate in existence.

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In November 2006, by way of a Motion made by the Guardian without any medical

testimony at all and a same-day Order by the magistrate the Ward was turned over to her son

Paul Bess, who had to be previously forced to return $65,000 of the Ward's money through a

lawsuit and who had previously interfered with the Ward's care to the point that the police had

to be called to the nursing home. Under the Guardian's Motion, the Ward was to be cared for

by her son Paul Bess at his home but within several weeks she was placed back in a secure

nursing home setting in Texas, where she is at this time. In May 2007, the Guardian filed a

Motion to change the permanent residency of the Ward to Texas during the pendency of the

appeal below, which would clearly violate the restriction against interfering with the

jurisdiction of the appellate court, to which Appellant objected to the probate court, which

Motion and Objection have not been ruled on or set for a hearing.

Appellant filed his Brief with the Ninth District on November 15, 2006 setting forth

four Assignments of Error summarized as follows: First, complaining that the probate court

failed to apply the correct legal standards regarding the evaluation of the reasonableness and

value of the Appellant's legal services; Second, that the very low fee award to Appellant by

the probate court was contrary to law and against the manifest weight of the evidence; Third,

the probate court committed prejudicial error by overruling the Appellant's Motion to strike

the testimony of the Guardian's Expert Witness, who was not aware of the Ohio law

permitting a citizen to nominate their own guardian and who admitted that had reviewed

virtually none of the actual pleadings in the two cases for which the fees were being evaluated;

and Fourth, the probate court abused its discretion making the very low fee award to

Appellant.

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On September 26, 2007, the Ninth District filed its Decision and Journal Entry which

is being appealed to this Court. In its Decision the Ninth District, without justification decided

that the Appellant's Assignment of Error I was a request to remove the guardian and thereupon

overruled that Assignment stating that the Appellant had not appealed that issue, which ruling

is not only unexplained, but is, frankly, incomprehensible. Thereafter, the Ninth District

incorrectly stated the Appellant had failed to file an affidavit supporting his objections with

the probate court and refused to consider the transcript of the hearing testimony and the exhibit

evidence because the hearing transcript was filed with the probate court by the Guardian

instead of by the Appellant. Having refused to examine any of the evidence before it, the

Ninth District then overruled the remainder of the Appellant's Assignments of En•or.

Appellant filed an Application for Reconsideration with the appellate court on October 4, 2007

grounded in the Propositions of Law set forth in this Memorandum which was opposed by

Appellee on October 15, 2007. The appellate court has not ruled on that Application as of the

time of the sending of this Memorandum.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

PROPOSITION OF LAW I

Civ. R. (53)(D)(3)(a)(ii) Does Not Permit A Reviewing Court To Refuse To Consider AHearing Transcript Before The Court Below Simply Because It Was Filed First By TheNon-Objecting Party Months Before The Decision Being Appealed And The ObjectingParty Did Not File A Redundant Copy Of That Transcript With The Reviewing Court,Especially When: 1) The Record Shows That Hearing Transcript Was SpecificallyArgued Below By All Parties; 2) There Was No Objection Raised By Any PartyRegarding The Accuracy Or Completeness Of That Hearing Transcript; 3) TheObjecting Party Also Filed An Affidavit Regarding The Same Hearing Testimony BeforeThat Transcript Was Available; And 4) The Transcript Of The Exhibits From ThatHearing Was At All Times With The Court Below.

In its Decision of September 26, 2007, in Paragraph 12 the appellate court found:

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"However, appellant failed to file either a transcript or affidavit supporting theobjection filed with the trial court."

Additionally, in its Decision in Paragraph 15 the appellate court found:

"However, the record reflects that appellant failed to provide the probate court with atranscript of the evidence from the fee application hearing until after the probate courthad issued its ruling in the matter. Thus, this Court is precluded from considering thetranscript of the fee application hearing."

These finding are obvious and prejudicial errors because the record conclusively

demonstrates that such findings are neither factually nor legally accurate.

First, an affidavit was attached by Appellant to his Objections filed with the probate

court on January 13, 2006 titled "Objections to Magistrate's Decision of December 30, 2005

with Attached Affidavit" (Emphasis Added). At the time of the filing of the Affidavit, there

was no transcript of the testimony of the Fee Application Hearing of May 5, 2005 before the

magistrate in existence. Additionally, the transcript of all the exhibit evidence presented to the

magistrate at that hearing was at all times with the probate court. Therefore, the Appellant's

Affidavit and the fact that the transcript of all the exhibit evidence was at all times with the

probate court provides complete verbatim technical compliance with Civ. R. 53(D)(3)(b)(iii)

which states:

An objection to a factual finding, whether or not specifically designated as a finding offact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a transcript of all the evidencesubmitted to the magistrate relevant to that finding or an affidavit of that evidence if atranscript is not available.

The record also demonstrates that the imposition of appellate court in its Decision of

the sanction against Appellant that the appellate court refused to review the magistrate's or

probate court's findings of fact is an obvious error of substantive law.

10

In Paragraph 5 the appellate court concedes that the probate court actually had in his

possession the transcript of the testimony of the Fee Application Hearing of May 5, 2005

before the magistrate:

"This Court notes that appellee attached a transcript of the fee application hearing tohis response to appellant's objections to the magistrate's decision."

The record shows that not only did the probate court have a fnll copy of the transcript

of the hearing testimony before the magistrate in an initial filing regarding the objections, that

transcript of the hearing testimony was specifically argued to the probate court by both the

Appellant and the Appellee. For example, the appellant makes numerous references to that

transcript of the hearing testimony in his Objections to Magistrate's Decision of March 29,

2006-Findings of Fact and Conclusions of Law, filed with the probate court on April 10, 2006

before the ruling by the probate court on the matter. Obviously, the Appellee argued that

transcript of the hearing testimony to the probate court in his response to Appellant's

Objections to the magistrate's decisions to which the full hearing transcript was attached and in

other filings before the probate court.

The record before the probate court of the parties specifically addressing the transcript

of testimony taken in conjunction with appellant's Affidavit filed January 13, 2006, which was

also specifically incorporated by reference into Appellant's Objections to Magistrates

Decision of March 29, 2006-Findings of Fact and Conclusions of Law, at page 1, makes it

undeniably true that the probate court had both the transcript of the exhibits and the hearing

tesdmony before it prior to its ruling on the Appellant's objections. It is also important to note

that at no time did the Appellee or probate court file a counter affidavit challenging

Appellant's Affidavit and that probate court did not complain that it did not actually have

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before it a transcript of the hearing testimony, but only that the hearing transcript was not filed

by Appellant.

The appellate court's exclusive focus on who filed the fee hearing transcript of

testimony before the probate court is an obvious error in this case because the substantive legal

requirement that must be followed is that:

"a reviewing court cannot add matter to the record before it, which was not a part ofthe trial court's proceedings, and then decide the appeal on the basis of the newmatter." (See, State v. Ishmael (1978) 54 Ohio St. 2d 402, 377 N.E. 2d 500, paragraph1 of the syllabus, as cited in State ex rel. Duncan v. Chippewa Township Trustees(1995), 73 Ohio St. 3d 728, 730.

In Duncan the Supreme Court of Ohio likewise focused on the substantive

requirement, i.e. the actual record before the trial court below, when it stated:

Therefore, to the extent that the Duncan's rely on evidence from the evidentiaryhearing transcript which was not before the court of apneals in ruling on the Duncan'sobjections to the referee's report, their argument must fail. [Emphasis Added] Id.

The Ninth District itself has previously articulated its understanding that the

substantive requirement has to do with the record actually before the trial court in a case the

appellate court cited in its Decision in Paragraph 13. In footnote 1 of the Ninth District's

decision in Haley v. Wilson, 9`h Dist. No. 20967, 2002-Ohio-3987, that court correctly

articulated that:

The record on appeal may only contain matters that were actually before the trial court.Because the transcript was not before the trial court, it is not properly part of the recordon appeal. [Emphasis Added]

The focus by the courts on what is actually before the trial court when it is examining

objections to a magistrate's ruling is logical and necessary so that a trial court can fulfill its

obligations under Civ. R. 53(3)(d), i.e.:

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In ruling on objections, the court shall undertake an independent review as to theobjected matters to ascertain that the magistrate has properly determined the factualissues and appropriately applied the law.

As stated at the oral argument before the appellate court, the Appellant did review the

transcript of the hearing testimony placed in the record by the Appellee with its response to the

Appellant's objections to the magistrate's decision and determined that such transcript was

complete and accurate. There is no claim in the record that the transcript of testimony filed by

the Appellee was not complete or accurate. Appellant reasonably concluded he had fulfilled

his duty to the probate court to be sure that the probate court actually had before it the

transcript of evidence and testimony presented to the magistrate. As noted at the oral

argument to this Court, Appellant believed that to file a redundant copy of the transcript of the

testimony at the hearing in a different format would tend to create confusion rather than

facilitate matters.

Therefore, this Court should accept jurisdiction in this case and reverse the Ninth

District's Decision regarding its finding that it could not consider the transcript of testimony or

exhibit evidence at the fee hearing and the Affidavit before the probate court simply because

that hearing transcript was filed with the probate court by the Appellee and not by the

Appellant.

Proposition of Law II:

An Unjustifiable Restatement Of An Assignment Of Error By An AppellateCourt In Order To Overrule It Is Synonymous With Failing To Decide And GiveReasons For Its Decision Regarding The Assignment Of Error Actually BeforeThe Court So As To Violate App. R. 12(A)(1)(c); An Appellate Court Errs AndMust Be Reversed Under App. R. 12(A)(1)(c) When In Its Decision It MateriallyMisstates The Relief Requested In An Assignment Of Error Then Decides ThatThe Appellant Is Precluded From Relief As To The Assignment Of ErrorActually Stated On The Basis That The Appellant Did Not Appeal For The ReliefUnjustifiably Injected Into The Appeal By The Appellate Court In Its Decision.

13

In addition to the appellate court's responsibility to review all of Appellant's

Assignments of Error vis-a-vis their challenges to the factual findings of the magistrate and

probate court as set forth in Proposition of Law I herein, the appellate court should have

actually considered Appellant's argument in his Assignment of Error I as to how the probate

court's failure to apply the correct legal standards impermissibly prejudiced the probate

court's evaluation of the reasonableness and value of Appellant's legal services. The appellate

court, without explanation or documentation, restated Appellant's Assignment of Error I in

Paragraph 8 of its Decision as:

"a veiled attempt to attack the underlying order of the probate court which appointed aneutral guardian"

Once having materially changed Appellant's Assignment of Error I to a request to

remove the guardian appointed by the probate court, the Court improperly, summarily

dismissed Appellant's Assignment of Error I as an attempt to change that appointment.

Appellant's Assignment of Error I actually states:

THE PROBATE COURT AND MAGISTRATE COMMITTED PREJUDICIALERROR BY FAILING TO APPLY THE CORRECT LEGAL STANDARDSRESPECTING THEIR EVALUATION OF THE REASONABLENESS ANDVALUE OF THE LEGAL SERVICES OF VINA'S ATTORNEY SET FORTH INTHE FEE APPLICATIONS.

Nowhere in Appellant's Assignment of Error I nor its supporting argument does

Appellant request that the guardian appointed by the probate court be removed pursuant to the

appeal below. Appellant makes no "veiled" attempt in any fashion, but properly requested

that the appellate court actually considered the reasonableness and value of Appellant's legal

services according to the proper legal context under which Appellant was required to perform

those legal services on behalf of the Ward. Therefore, the judgment of the appellate court

should be reversed and remanded since that court did not comply with App. R. 12(A)(1)(c) by

14

passing upon each assignment of error actually made in writing and stating the reasons for its

decision. State v. Jennings (1982) 69 Ohio St. 2d 389,23 Ohio Op. 3d 354, 433 N.E. 2d 157.

CONCLUSION

Based upon the foregoing argument, the Appellant respectfully submits that the Ninth

District Court of Appeals erred in: i) concluding that it could not review the findings of fact

below because the transcript of testimony of the fee hearing was filed by the appellee and not

by the appellant; 2) ignoring the Affidavit before the probate court that was filed by Appellant;

and 3) failing to decide and give reasons in writing for its decision regarding Appellant's

Assignment of Error I as actually stated and argued. The Appellant requests that this Court

take jurisdiction, reverse the judgment of the Ninth District Court of Appeals and remand for

consideration of all of Appellant's Assignments of Error.

Respectfullysubmittec},

y^JAMES T. STIMLER"Reg. No. 0011835822 Portage Trail, Suite 2Cuyahoga Falls, OH 44221Telephone: (330) 252-0300Facsimile: (330) 252-0303jstimler@stimlerlawoffices.com

COUNSEL FOR APPELLANT,JAMES T. STIMLER

PROOF OF SERVICE

I hereby certify that a copy of the foregoing Notice of Appeal was forwarded byregular U.S. First Class mail to Attorneys MARK W. BERNLOHR and SARAH B.CAVANAUGH, 23 S. Main Street, Suite 301, Akron, Ohio 44308 on this t^'r44ay of

^November, 2007. _-4. 1 (--c .j,u. ^1^ --- Y)-, ^ r,

JAMES T. STIMLERCOUNSEL FOR APPELLANT

15

iVni sr- ,-.C 7 11

STATE OF OHIO w•ii IN TBE COURT OF APPEALS)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUIVIAMII ; : ^i` % 5 .:±i i ^ 4 +

,...,:IN THE MATTER OF T3U':;^•^: i vvv^

.: I

GUARDIANSHIP OF:C:.Eci;^ i%^ CC:;'^

VINA BESSS C. A. No. 23411

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. 2004 GA 224

DECISION AND JOURNAL ENTRY

Dated: September 26, 2007

This cause was heard upon the record in the trial court. Each error assigned

has been reviewed and the following disposition is made:

CARR, Judge.

{411} Appellant, James T. Stimler, appeals the decision of the Summit

County Court of Common Pleas, Probate Division, awarding him $5,000 in

attorney fees. This Court affirms.

1.

{1[2} Vina Bess is an 88-year-old woman currently under guardianship in

the Sununit County Probate Court. Mrs. Bess has two children: a daughter Phyllis

A. Croghan, and a son, Paul Bess. Prior to the appointment of a guardian, the

fulancial affairs of Mrs. Bess were handled by Phyllis Croghan pursuant to a

Court of Appeals of Ohio, Ninth Judicial District

Appendix A-1

2

power of attorney. When Mxs. Bess's health deteriorated, Mrs. Croghan filed an

application seeking to be appointed her mother's guardian. Mr. Bess objected to

his sister's appointment as guardian. Prior to a hearing on the appointment of a

guardian, the court appointed attomey Scott A. Stevenson as guardian ad litem to

render a report as to the best interests of Mrs. Bess. The guardian ad litem

recommended that an independent third party be appointed as guardian.

{¶3} According to the guardian ad litem's report, there were three cases

pending in the Summit County court system involving the parties in the present

matter. The first case was the guardianship that is the subject of this appeal. The

second case was a civil action brought by Phyllis Croghan against Paul Bess

seeking the return of $75,000 that NIr. Bess withdrew from a joint and

survivorship account titled in the names of Vina Bess and Paul Bess, and that is

also the subject of this appeal. The third case was a lawsuit filed by Paul Bess

against appellant for libel, slander, intentional infliction of emotional harm and

malicious prosecution. Eventually, the parties withdrew their motions and the

probate court appointed attorney George Wertz as Mrs. Bess's guardian. Mr.

Wertz dismissed appellant and hired a different attorney to handle the collection

case.

{414} Appellant remitted a fee application for the amount of $46,892.71

for handling the collection case and the guardianship proceeding. This amount

does not include fees received by appellant through earlier requests. Previously,

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appellant was paid $33,389.00 for services rendered on the collection case, the

guardianship case, and basic estate planning. Payment was made from the assets

of Mrs. Bess prior to the appointment of a guardian pursuant to a power of

attorney with Phyllis Croghan as the agent. A hearing on appellant's fee

application was held on May 5, 2005. Following the hearing, the magistrate

issued an order recommending that appellant be awarded $5,000.00 for his

services.

{¶5} Appellant filed objections to the magistrate's decision, appellee filed

a response to appellant's objections, and both sides filed proposed findings of fact

and conclusions of law. The magistrate issued a second decision, setting forth his

findings of fact and conclusions of law, and again appellant filed objections.

Appellant failed to file a transcript of the fee application hearing. This Court notes

that appellee attached a transcript of the fee application hearing to his response to

appellant's objections to the magistrate's decision. However, as the party

objecting to the magistrate's decision, it was appellant's duty to provide a

transcript of the fee application hearing.

{1[6} The probate court held a hearing on appellant's objections on April

3, 2006. The probate court overruled appellant's objections and adopted the

magistrate's decision, finding that appellant's services were reasonably worth an

additional sum of $5,000.00. In its decision, the probate court noted that

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appellant, the objecting party, had failed to provide a transcript as required by

Civ.R. 53.

{117} Appellant timely appealed the probate court's award, setting forth

four assignments of error for review. Some of the assignments of error have been

combined to facilitate this Court's review.

II.

ASSIGNMENT OF ERROR I

"THE PROBATE COURT AND MAGISTRATE COM1vIITTEDPREJUDICIAL ERROR BY FAILING TO APPLY THECORRECT LEGAL STANDARDS RESPECTING THEIREVALUATION OF TIIE REASONABLENESS AND VALUE OFTHE LEGAL SERVICES OF VINA'S ATTORNEY SET FORTHIN THE FEE APPLICATIONS."

{1[8} In appellant's first assignment of error, the th:vst of his argument

relates to allegations that the probate court erred in appointing a neutral guardian

when his client withdrew her application for appointment. Appellant's assertions

that his actions were beneficial to the estate are a veiled attempt to attack the

underlying order of the probate court which appointed a neutral guardian. Neither

side appealed the merits of this appointment. As such, appellant is precluded from

attacking this decision in a collateral proceeding such as this one.

{119} Appellant's remaining arguments all assert that his other activities

were reasonable and necessary and that he should therefore be awarded the fees

associated to those activities. This Court addresses appellant's contentions that the

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trial court's fee award was erroneous in our discussion of appellant's following

assignments of error. Appellant's first assignment of error is overruled.

{1[10} Appellant's second, third, and fourth assignments of error raise

common and interrelated issues; therefore, this Court addresses the assignments

together.

ASSIGNMENT OF ERROR II

"THE PROBATE COURT'S ADOPTION AND AFFIRMATIONON SEPTEMBER 1, 2006, OVER OBJECTION, OF THEMAGISTRATE'S RULING OF DECEMBER 30, 2005AWARDING STIMLER LAW OFFICES NOTHING ON THECOLLECTION CASE AND ONLY $5,000 ON [TIM]GUARDIANSHIP CASE UNDER THE FEE APPLICATIONSSUBMITTED JANUARY 3, 2005 TO THE GUARDIAN WASCONTRARY TO LAW AND AGAINST THE MANIFESTWEIGHT OF THE EVIDENCE IN THIS HIGHLY USUAL [sic]AND COMPLEX Iv1A.TTER"

ASSIGNMENT OF ERROR III

"THE PROBATE COURT AND MAGISTRATE COMMITTEDPREJUDICIAL ERROR BY OVERRULING THE MOTION OFVINA'S ATTORNEY TO EXCLUDE AND STRIKE THETESTIMONY OF THE GUARDIAN'S EXPERT WITNESS ATTHE FEE APPLICATION HEARING, AND THEN RELYINGUPON THE TESTIMONY OF THE GUARDIAN'S EXPERTWITNESS TO SEVERELY REDUCE THE AWARD OF FEES TOSTIMLER LAW OFFICES."

ASSIGNMENT OF ERROR IV

"THE PROBATE COURT AND MAGISTRATE ABUSED THEIRDISCRETION BY AWARDING VINA'S ATTORNEY ONLY$5,000 ON THE FEE APPLICATIONS SUBMITTED JANUARY3, 2005 TO T7-IE GUARDIAN IN THIS HIGHLY USUAL [sic]AND COMPLEX MATTER."

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{111} In appellant's second and fourth assignments of error, he challenges

the probate court's decision as being against the manifest weight of the evidence.

Therefore, appellant contends that the trial court abused its discretion in awarding

him only $5,000 in attorney fees for the work he performed in this matter. In his

third assignment of error, appellant contends that the probate. court erred in

overruling his motion to exclude and strike the testimony of the guardian's expert

witness at the fee application hearing and relying on that testimony in reaching its

decision as to the amount to award him in attorney fees.

{4112} In this case, appellant maintains that the trial court erred in affirming

the magistrate's decision. However, appellant failed to fJle either a transcript or

affidavit supporting the objection filed with the trial court.

{¶13} The party who objects to the magistrate's decision has the duty to

provide a transcript to the trial court. Weitzel v. Way, 9th Dist. No. 21539, 2003-

Ohio-6822, at ¶17. In cases where a transcript is not available, however, Civ.R.

53(D)(3)(b)(iii) allows the objecting party to support its objections with an

affidavit of all the relevant evidence adduced at hearing. Id., citing Galewood v.

Terry Lumber & Supply Co. (Mar. 6, 2002), 9th Dist. No. 20770. Civ.R.

53(D)(3)(b)(iii) provides, in relevant part:

"An objection to a factual finding, whether or not specificallydesignated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall besupported by a transcript of all the evidence submitted to themagistrate relevant to that finding or an affidavit of that evidence if atranscript is not available."

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In cases where the objecting party fails to provide a transcript or affidavit, this

Court has held that the magistrate's findings of fact are considered established and

may not be attacked on appeal. Haley v. Wilson, 9th Dist. No. 20967, 2002-Ohio-

3987, at ¶5, citing Hale v. Hale (Jan. 26, 2000), 9th Dist. No. 2935-M.

{1[14} Consequently, while timely objections to factual findings and legal

conclusions preserve those issues for appeal, when no transcript has been filed,

this Court is limited to determining whether the trial court's application of the law

to the magistrate's findings of fact was an abuse of discretion. State ex rel.

Duncan v. Chfppewa Twp. Trustees (1995), 73 Ohio St.3d 728, 730. Moreover,

the probate court is granted discretion to determine the reasonableness of attorney

fees and such determination. will not be overturned absent an abuse of discretion:

In re Guardianship of Patrick (1991), 66 Ohio App.3d 415, 416. An abuse of

discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its raling. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219. An abuse of discretion demonstrates "perversity of

will, passion, prejudice, partiality, or moral delinquency." Pons v. Ohio State

Med. Bd. (1993), 66 Ohio St.3d 619, 621. When applying the abuse of discretion

standard, this Court may not substitute its judgment for that of the trial. court. Id.

{115} In the underlying case, appellant timely filed his objections to the

magistrate's decision. With his objections, appellant requested leave to

supplement the objections with the transcript once it was prepared. However, the

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record reflects that appellant failed to provide the probate court with a transcript of

the evidence from the fee application hearing until after the probate court had

issued its ruling in the matter. Thus, this Court is precluded from considering the

transcript of the fee application hearip.g.

{1[16} When determining the appropriateness of an award of attomey fees,

this Court is guided by the rationale contained in In re Estate of Wood (1977), 55

Ohio App.2d 67. In Wood, the court stated that the ultimate determination of the

reasona.bleness of the requested fees requires an examination of the totality of the

circumstances surrounding the activities performed Id. at 73-74. The attoiney

seeking fees bears the burden of justifying his fees through the introduction of

evidence of the, services perfonned and of their reasonable.value. Id. at 72_

{¶17} In addition, the Supreme Court of Ohio held in Inre Guardianship

of Wonderly (1984), 10 Ohio St.3d 40, 42 that "[a]bsent a specific demonstration

that the actions are beneficial to the estate or ward, a guardian may not be

reimbursed from the estate for legal expenses incurred in proceedings relating

solely to the deterniination of whether the guardian may serve in that capacity." In

Wonderly, grandparents moved for attorney fees and court costs from their

grandchildren's estates incurred by them in several actions through which they

attempted to obtain custody of their grandchildren. In denying fees, the Court

concluded that they had "offered no evidence whatsoever that the proceedings

initiated by them were beneficial to the minors or their estates." Id

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{1[18} In his decision, the magistrate made the following findings of fact

which cannot be attacked on appeal as a result of appellant's Pailure to file a

transcript. Appellant, by billing for the same work as an associate, had an

effective billing rate of $325.00 per hour. This work should have been performed

by one attorney. Moreover, the issues handled by appellant were not complex and

that as a result the amount of time reported by appellant for these tasks was

excessive. The magistrate also found that the work performed by appellant on the

collection matter was "clearly excessive and did not result in any benefit to the

estate of Vina Bess." The probate court further concluded that "[t]he amount of

$33,389.00 already paid to [appellant] for work in connection with the litigation

case against Paul Bess and the guardianship proceeding is adequate in view of the:

fact that [appellant], with regard to the litigation, produced no results and, in fact;

was at least partially responsible for the extraordinary fees charged in that case

and the exacerbation of the litigation."

{1[19} Accepting these facts as true, this Court finds no error in the trial

court's application of the law to the facts. As noted above, generally to recover

fees they must be shown to be reasonable and necessary. The magistrate made a

determination that appellant's fees were neither reasonable nor necessary.

Moreover, to recover fees in an estate or guardianship proceeding it must be

shown that a benefit accrued to the ward of the guardianship or to the estate. The

magistrate found as a fact that no benefit accrued to the estate as a result of

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appellant's activities. This Court finds, therefore, that the trial court did not err in

its application of the law to the facts as found by the magistrate. Rather, the trial

court appropriately applied Wood and Wonderly to reduce appellant's fees to

$5,000. Accordingly, appellant's second, third, and fourth assignments of error

are overruled.

III.

{¶20} Appellant's assignments of error are overruled. The decision of the

Summit County Court of Common Pleas. Probate Division, is affirmed.

Judgment affirmed.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court

of Common Pleas, County of Sumnj4, State of Ohio, to carry this judgment into

execution. A certified copy of this journal entry shall constitute the mandate,

pursuant to App.R. 27.

Immediately upon the filinQ hereof, this document shall constitute the

journal entry of judgment, and it shall be file stamped by the Clerk of the Court of

Appeals at which time the period for review shall begin to run. App.R. 22(E).

The Clerk of the Court of Appeals is instructed to mail a notice of entry of this

Court of Appeals of'Ohio. Ninth Judicial District

Il

judgmer^t to the parties and to make a notation of the mailing in the docket,

pursuant to App.R. 30.

Costs taxed to appellant.

FOR THE COURT

SLABY, P. J.BAIRD, J.CONCUR

(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignmentpursuant to, §6(C), Article IV, Constitution.)

APPEARANCES:

JAMES T. STIMLER, Attorney at Law, for appellant.

MARK W. BERNLOHR and SARAH B. CAVANAUGH, Attorneys at Law,for appellee.

Court ot'Appeals of Ohio. Ninth Judicial District