In re Estate of Klie

[Cite as In re Estate of Klie, 2017-Ohio-487.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re Estate of Charles W. Klie, :
: No. 16AP-77
(Prob. No. 527992)
[Lawrence R. Glazer, :
(REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on February 9, 2017
On brief: Lane Alton & Horst LLC, and Robert M. Morrow,
for appellee Susan Klie, Fiduciary of the Estate of Charles W.
Klie. Argued: Robert M. Morrow.
On brief: Lawrence R. Glazer, pro se.
APPEAL from the Franklin County Court of Common Pleas,
Probate Division
DORRIAN, J.
{¶ 1} Appellant, Lawrence R. Glazer, appeals from a judgment of the Franklin
County Court of Common Pleas, Probate Division, overruling appellant's objections to a
magistrate's decision and adopting the magistrate's decision awarding attorney fees and
costs to counsel for the Estate of Charles W. Klie ("the Estate"). For the following reasons,
we affirm.
I. Facts and Procedural History
{¶ 2} Charles W. Klie ("decedent") died testate on January 31, 2008, as a resident
of Franklin County, Ohio. His last will and testament was admitted to probate on
March 31, 2008. Appellant and Susan Klie were among the beneficiaries named in the
will. For purposes of determining the present appeal, we need not recount the full history
of the Estate during the nearly eight-year period between admission of the will to probate
and the attorney fees award that gives rise to this appeal. We will, however, highlight
No. 16AP-77 2
several events that are relevant to the issues before the court. On April 1, 2008, Deborah
Klie and Susan were appointed as co-administrators of the Estate. On June 25, 2008, the
co-administrators submitted an inventory and appraisal of the Estate.
{¶ 3} On July 25, 2008, the probate court issued a certificate of transfer
transferring decedent's interest in property located at 2498 Bristol Road, Columbus, Ohio
("the Bristol Road property"), to appellant. Prior to the transfer of decedent's interest in
the Bristol Road property to appellant, Chase Home Finance, LLC, filed a foreclosure
claim against the Bristol Road property. See Chase Home Fin., L.L.C. v. Klie, Franklin
C.P. No. 08CV-8151. The action was later voluntarily dismissed. Although the foreclosure
action is not part of the direct procedural history of this case, it is relevant to the issues
discussed herein.
{¶ 4} On April 20, 2009, the co-administrators filed a first partial fiduciary's
account. On that same date, the probate court issued an entry accepting Deborah Klie's
voluntary resignation as co-administrator. On April 29, 2009, Susan filed the Estate's tax
return. On May 28, 2009, appellant filed exceptions to the first partial fiduciary's
account, which were scheduled for a hearing. On July 16, 2009, Susan filed an amended
inventory and appraisal. Subsequently, an amended first partial fiduciary's account was
filed on August 5, 2009. Appellant and Susan then filed a joint request for entry of an
order withdrawing appellant's exceptions to the first partial fiduciary's account, which was
granted. In March 2010, the Estate filed an amended tax return. Susan filed a second
partial fiduciary's account on May 5, 2010. Appellant filed exceptions to the second
partial fiduciary's account, which were scheduled for a hearing. Following the hearing, a
magistrate of the probate court issued a decision dismissing appellant's exceptions to the
second partial fiduciary account and recommending that the account be approved and
settled. Appellant then filed objections to the magistrate's decision. Following a hearing,
the probate court issued a judgment entry on November 12, 2010, dismissing appellant's
objections, adopting the magistrate's decision, and approving the second partial
fiduciary's account. In each of the years from 2011 through 2014, Susan filed subsequent
partial fiduciary's accounts. Appellant did not file exceptions to these partial fiduciary's
accounts.
No. 16AP-77 3
{¶ 5} On September 5, 2014, counsel for the Estate filed an application for
attorney fees, requesting $63,761.50 in fees and $670.00 in costs. Appellant submitted a
filing disputing the reasonableness of the attorney fees requested. A magistrate of the
probate court conducted a hearing on the application for attorney fees on November 5
and 17, 2014. On August 6, 2015, the magistrate issued a decision overruling appellant's
objection to one of the exhibits introduced at the hearing and holding that $62,705.50 in
attorney fees and $664.25 in costs were proper, reasonable, and necessary for the Estate
and approving payment of those amounts from the assets of the Estate. Appellant
submitted objections to the magistrate's decision. Appellant did not file a transcript of the
hearing before the magistrate in support of his objections to the magistrate's decision. On
January 8, 2016, the probate court issued a judgment entry denying appellant's objections
to the magistrate's decision and adopting the magistrate's decision.
II. Assignments of Error
{¶ 6} Appellant appeals and assigns the following eleven assignments of error for
our review:
[I.] A magistrate has no subject matter jurisdiction to make
factual findings in probate matters.
[II.] Proceedings under R.C. 2113.36 are not subject to Rule
53.
[III.] Probate Court Local Rule 75.11 is void and
unconstitutional as applied to R.C. 2113.36 summary
proceedings.
[IV.] The Summary Invoice, Trial Exhibit 1, was not properly
admitted into evidence because it is a self-serving hearsay
statement prepared in anticipation of and for the purpose of
prevailing in a contested proceeding.
[V.] After finding that Trial Exhibit 1 is a "compilation of
data" the magistrate and probate court failed to apply Evid.
Rule 1006 to determine admissibility.
[VI.] A revised, redacted summary of work performed with
"block billing" cannot satisfy the fee applicant's burden of
proof that "the billed time was fair, proper and reasonable."
No. 16AP-77 4
[VII.] The probate court erred as a matter of law by failing to
address the factors listed in Rule 1.5 in evaluating the
reasonableness of the attorney fees requested.
[VIII.] The finding that unnecessary corrective actions taken
to file an amended inventory and amended tax returns to
appease a beneficiary were necessary and beneficial to the
estate is erroneous as a matter of law.
[IX.] The probate court erred as a matter of law and fact in
finding that the estate was insolvent.
[X.] The probate court's finding that Chase had a properly
filed claim under R.C. 2117.06(A) necessitating that the
estate remain open until the running of the longest possible
statute of limitations is wrong as a matter of law.
[XI.] Since section 2113.36 and tax regulations require that
attorney fees be actually incurred, reasonable, and necessary
for the administration of the estate, the probate court's
award doubling the fees disclosed and allowed as a deduction
on the estate tax return is ultra vires and per se
unreasonable, arbitrary, and capricious.
III. Discussion
{¶ 7} Generally, when objections to a magistrate's decision are filed, a trial court
undertakes a de novo review of the magistrate's decision. McNeilan v. Ohio State Univ.
Med. Ctr., 10th Dist. No. 10AP-472, 2011-Ohio-678, ¶ 19. Pursuant to Civ.R. 53, however,
if an objecting party fails to provide a transcript or affidavit of evidence, the trial court
must accept the magistrate's factual findings and limit its review to the magistrate's legal
conclusions. Phelps v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-70, 2016-Ohio-
5155, ¶ 28; Ramsey v. Ramsey, 10th Dist. No. 13AP-840, 2014-Ohio-1921, ¶ 18.
"Regardless of whether a transcript is filed, the trial court has the authority to determine
whether the magistrate's findings of fact are sufficient to support the conclusions of law
made, and to reach a different legal conclusion as long as that conclusion is supported by
the magistrate's findings of fact." Martin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
07AP-1006, 2008-Ohio-3166, ¶ 10. In this case, appellant submitted objections to the
magistrate's decision but did not provide a transcript; therefore, the probate court
accepted the magistrate's factual findings and conducted an independent review of the
No. 16AP-77 5
magistrate's conclusions of law. The probate court ultimately rejected appellant's
objections and adopted the magistrate's decision as its own.
{¶ 8} On appeal, we review a trial court's adoption of a magistrate's decision for
abuse of discretion. McNeilan at ¶ 19. Appellant sought to supplement the record on
appeal by filing a transcript of the proceedings before the magistrate. We denied the
motion to supplement; because the probate court did not have the opportunity to review
the transcript when ruling on appellant's objections to the magistrate's decision, we are
precluded from considering it on appeal. Sanders v. Wamco Inc., 10th Dist. No. 10AP-
548, 2011-Ohio-1336, ¶ 10. See also State ex rel. Duncan v. Chippewa Twp. Trustees, 73
Ohio St.3d 728, 730 (1995) ("When a party objecting to a referee's report has failed to
provide the trial court with the evidence and documents by which the court could make a
finding independent of the report, appellate review of the court's findings is limited to
whether the trial court abused its discretion in adopting the referee's report, and the
appellate court is precluded from considering the transcript of the hearing submitted with
the appellate record. In other words, an appeal under these circumstances can be
reviewed by the appellate court to determine whether the trial court's application of the
law to its factual findings constituted an abuse of discretion."). (Citations omitted.) An
abuse of discretion occurs when a trial court's decision is "unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 9} Appellant's first three assignments of error challenge certain procedural
aspects of the proceedings in the probate court and will be addressed together. In his first
assignment of error, appellant asserts the magistrate lacked authority to make factual
findings, arguing that the probate court lacked statutory authority to delegate this task to
a magistrate.1 In his second assignment of error, appellant claims that proceedings for
attorney fees under R.C. 2113.36 are not subject to Civ.R. 53. In his third assignment of
1 We note that appellant's first assignment of error is phrased as a challenge to the probate court's subject-
matter jurisdiction, perhaps in an attempt to avoid the waiver resulting from having failed to raise this
argument before the probate court. See State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 78 (1998) ("Subject
matter jurisdiction may be raised at any time because a court that lacks subject matter jurisdiction lacks the
power to hear the case."). On review, however, it is clear that the argument presented in the first assignment
of error is a challenge to the procedure employed by the probate court—i.e., referral of the case to a
magistrate to make a preliminary determination, including findings of fact—rather than a challenge to the
probate court's authority to hear the case. See Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-
4275, ¶ 19 ("Subject-matter jurisdiction is the power of a court to entertain and adjudicate a particular class
of cases.").
No. 16AP-77 6
error, appellant argues that former Loc.R. 75.11 of the Franklin County Court of Common
Pleas, Probate Division, is unconstitutional as applied to proceedings for attorney fees
under R.C. 2113.36.2 Appellant asserts each of these alleged errors for the first time on
appeal; they were not presented to the probate court in his objections to the magistrate's
decision.
{¶ 10} " 'Ordinarily, reviewing courts do not consider questions not presented to
the court whose judgment is sought to be reversed.' " State ex rel. Quarto Mining Co. v.
Foreman, 79 Ohio St.3d 78, 81 (1997), quoting Goldberg v. Indus. Comm., 131 Ohio St.
399, 404 (1936). See also State v. Awan, 22 Ohio St.3d 120 (1986), syllabus ("Failure to
raise at the trial court level the issue of the constitutionality of a statute or its application,
which issue is apparent at the time of trial, constitutes a waiver of such issue and a
deviation from this state's orderly procedure, and therefore need not be heard for the first
time on appeal.").
{¶ 11} Accordingly, we overrule appellant's first, second, and third assignments of
error.
{¶ 12} Appellant's remaining eight assignments of error address various
conclusions reached by the magistrate and the probate court in overruling appellant's
objections and adopting the magistrate's report. We will consider each of these
arguments in turn. As noted above, we apply an abuse of discretion standard in reviewing
the probate court's adoption of the magistrate's decision.
{¶ 13} Appellant's fourth assignment of error asserts that appellee's exhibit 1
should not have been admitted into evidence because it was a self-serving hearsay
statement prepared in anticipation of litigation. The magistrate's decision indicates that
appellee's exhibit 1 consisted of the application for fees and attached schedule A. The
magistrate found that schedule A, as attached to appellee's exhibit 1, was the culmination
of the ordinary business records for the law firm representing the Estate and was
representative of the request for fees. The magistrate concluded that exhibit 1, including
schedule A, was admissible under the business records exception to the hearsay rule
because it met the four essential elements necessary to qualify for admission under that
2Appellant's main brief on appeal was filed May 5, 2016. Effective August 2016, the Local Rules of the
Probate Division were amended. The relevant provision governing objections to a magistrate's decision is
now contained in Loc.R. 75.18.
No. 16AP-77 7
exception. The magistrate noted that two attorneys who represented the Estate,
Johnathon Murphy and Robert Morrow, testified with respect to the creation and
maintenance of the records used to create schedule A. The magistrate's decision cited
testimony from Murphy that the law firm's case management software, which was used to
track hours worked on the Estate, reflected a substantially higher number of hours, and
that Murphy and Morrow reduced the hours to reflect work performed from January 31,
2008 through May 16, 2014.
{¶ 14} Appellant argues that appellee's exhibit 1 was inadmissible because it was a
document prepared in anticipation of litigation, citing the magistrate's finding that
Murphy testified to the effect that he and Morrow reduced the number of hours reflected
in the case management software in preparing the fees request. Appellant asserts that
document was prepared in anticipation of litigation and asserts that documents prepared
in anticipation of litigation are inadmissible under the business records exception to the
hearsay rule. However, appellant's argument misconstrues this limitation on the business
records exception to the hearsay rule.
{¶ 15} Generally, hearsay evidence is not admissible. Evid.R. 802. Evid.R. 803(6)
provides an exception to the rule against hearsay:
A memorandum, report, record, or data compilation, in any
form, of acts, events, or conditions, made at or near the time
by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the
custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
As the Supreme Court of Ohio has held, in the context of a predecessor to the modern
rules of evidence, the exception to the hearsay rule for business records is based on the
assumption that records made in the regular course of business by those with competent
knowledge of the facts recorded and an interest in the accuracy of the records are accurate
and trustworthy. Weis v. Weis, 147 Ohio St. 416, 425-26 (1947). As Evid.R. 803(6) states,
records satisfying the requirements of the business records exception are admissible
No. 16AP-77 8
"unless the source of information or the method or circumstances of preparation indicate
lack of trustworthiness." (Emphasis added.)
{¶ 16} In the present case, the magistrate concluded that the testimony from
Murphy and Morrow established that the itemized fee statement included in appellee's
exhibit 1 was recorded as part of regularly-conducted law firm business at or near the time
of the acts it recorded and that Murphy and Morrow had knowledge of the acts recorded
and made the records. In reviewing appellant's objection, the probate court found there
was a proper foundation for the evidence and that the testimony supporting it was
trustworthy. The probate court further concluded that the exhibit was not prepared in
anticipation of litigation because it was a compilation of data prepared throughout the
course of representation. Thus, it appears that the probate court thoroughly considered
appellant's objection and rejected the argument that exhibit 1 should have been excluded
under the hearsay rule. Under these circumstances, the probate court did not abuse its
discretion by denying this objection.
{¶ 17} Accordingly, we overrule appellant's fourth assignment of error.
{¶ 18} Appellant's fifth assignment of error asserts the magistrate and the probate
court erred by failing to apply Evid.R. 1006 in determining the admissibility of appellee's
exhibit 1. Appellant argues that Murphy referred to monthly attorney fee statements in
his testimony and that, because these monthly fee statements were not produced, the
court should have considered Evid.R. 1006 to determine whether exhibit 1 was
admissible. Evid.R. 1006 provides that "[t]he contents of voluminous writings,
recordings, or photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation." As noted above, the
magistrate's decision indicated that appellee's exhibit 1 consisted of the application for
fees and attached schedule. Although appellee's exhibit 1 is not part of the record before
us because appellant did not file a copy of the transcript and exhibits with the probate
court, the fee application is part of the record. A review of the fee application indicates
that it would not be the type of summary evidence contemplated under Evid.R. 1006. The
application for fees sets forth the fees and costs associated with services provided to the
Estate between January 31, 2008 and May 6, 2014. Assuming for purposes of analysis
that the application for fees was based on monthly attorney fee records kept over this six-
No. 16AP-77 9
year period, the fact that it was presented in the form of a single document covering the
entire period rather than multiple monthly records does not make the fee application a
summary of those monthly records. Moreover, it was the application for fees itself, not the
underlying monthly billing records, that was at issue before the court. The probate court
did not directly address this argument, which was contained in appellant's first objection
to the magistrate's decision, but implicitly rejected it by overruling the objection. Based
on our review of the record, the trial court did not abuse its discretion by rejecting this
argument in support of the first objection.
{¶ 19} Accordingly, we overrule appellant's fifth assignment of error.
{¶ 20} Appellant's sixth and seventh assignments of error are interrelated, and we
will consider them together. In his sixth assignment of error, appellant asserts the
probate court erred by concluding that the attorney fees request was fair, proper, and
reasonable because it was based on billing records that used block billing. Appellant
asserts there was no expert testimony on the reasonableness, necessity, or propriety of the
services provided on behalf of the Estate. In his seventh assignment of error, appellant
asserts the probate court erred as a matter of law by failing to address the factors provided
in Prof.Cond.R. 1.5 in determining the reasonableness of the attorney fees request.
{¶ 21} Reasonable attorney fees paid by the executor or administrator of an estate
are allowed as part of the expenses of administration and the probate court is authorized
to fix the amount of such fees. R.C. 2113.36. See also In re Estate of Haller, 116 Ohio
App.3d 866, 870 (10th Dist.1996) ("R.C. 2113.36 gives exclusive original jurisdiction to
the probate court to determine the reasonableness of attorney fees."). The attorney
seeking fees bears the burden of proving the reasonableness of the fees. In re Estate of
Born, 10th Dist. No. 06AP-1119, 2007-Ohio-5006, ¶ 18. In determining the
reasonableness of attorney fees, the probate court must consider the facts and
circumstances of each case. Id. at ¶ 19. The probate court may also consider the factors
set forth in Prof.Cond.R. 1.5, which sets forth general principles applicable to determining
the reasonableness of attorney fees. Id. See also Loc.R. 71.7 of the Probate Division ("The
burden is upon the attorney to prove the reasonableness of the fee as governed by
Prof.Cond.R. 1.5.").
No. 16AP-77 10
{¶ 22} With respect to the need for expert testimony as to the reasonableness and
necessity of attorney fees, this court has previously held that although the better practice
may be to introduce expert testimony regarding the reasonableness of fees, a probate
court judge is qualified to make a determination of the reasonable attorney fees to be paid
from an estate without the necessity of expert testimony, based on evidence of the fees
incurred. Born at ¶ 21; Haller at 870. The Supreme Court has held that when a court has
statutory authority to award attorney fees, the amount of such fees is within the discretion
of the court. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). " 'Unless
the amount of fees determined is so high or so low as to shock the conscience, an appellate
court will not interfere.' " Id., quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23
Ohio App.3d 85, 91 (12th Dist.1985).
{¶ 23} The magistrate noted that Morrow and Murphy "each testified at length
regarding their services as counsel for the Estate." (Aug. 6, 2015 Mag. Decision at 13.)
The magistrate further noted that the request for fees was supported with a detailed
billing invoice encompassing services performed from January 31, 2008 through May 6,
2014, and that the billing invoice contained sufficient detail to justify that each entry was
necessary, reasonable, and beneficial to the Estate. Although not expressly identified as
such in this portion of the magistrate's decision, presumably this invoice was the invoice
included in the application for fees, which was admitted as appellee's exhibit 1. The
magistrate also expressly cited the factors contained in Prof.Cond.R. 1.5 and found that, in
consideration of those factors, the fees requested were generally proper, necessary,
reasonable, and beneficial to the Estate. Moreover, it is noteworthy that the magistrate
went on to identify 16 specific entries from the fees request and 4 specific items from the
cost request that he concluded were not necessary, reasonable, or beneficial to the Estate
and deducted those amounts from the fees and costs awarded. Thus, it is clear that the
magistrate thoroughly analyzed the attorney fees request and determined the necessity
and reasonableness of the fees.
{¶ 24} In reviewing appellant's objections to the magistrate's decision, the probate
court concluded that "[t]he record in this matter clearly reflects the fact that there was
extensive and detailed testimony fully explaining the legal services performed, the reasons
why they were necessary, and the hourly rate charged by the attorneys." (Jgmt. Entry at
No. 16AP-77 11
11-12.) The probate court concluded that the fees charged and the hourly rate were
consistent with those for attorneys with similar experience who practiced before the
probate court and that the record of contested matters with respect to the Estate
demonstrated the reasonableness and necessity of the fees. The probate court rejected
appellant's argument that the magistrate did not consider the Prof.Cond.R. 1.5 factors,
noting that the magistrate specifically cited those factors and reviewed them in his
evaluation of the reasonableness of the fees. Under these circumstances, the probate
court did not abuse its discretion in denying appellant's objections and adopting the
magistrate's decision with respect to the reasonableness and necessity of the attorney fees
and costs.
{¶ 25} Accordingly, we overrule appellant's sixth and seventh assignments of error.
{¶ 26} Appellant's eighth assignment of error asserts the magistrate erred by
concluding that corrective actions taken by filing an amended estate inventory and
amended tax returns were necessary and beneficial to the Estate. In support of this
argument, appellant asserts that he argued before the magistrate that portions of the
billed time sought in the fee request did not benefit the Estate because the services were
provided to correct errors committed in the administration of the Estate. As noted above,
because appellant did not provide a transcript, the probate court was required to accept
the magistrate's findings of fact and was limited to review of the magistrate's conclusions
of law. Phelps at ¶ 28. We review the probate court's adoption of the magistrate's decision
for abuse of discretion. McNeilan at ¶ 19.
{¶ 27} The magistrate found that on April 20, 2009, the administrators filed the
first partial fiduciary account, and on April 29, 2009, Susan filed the Estate tax return.
The magistrate further found that appellant filed exceptions to the first partial fiduciary
account on May 28, 2009. Susan then filed an amended inventory and appraisal on July
16, 2009, and an amended partial fiduciary account on August 5, 2009. The magistrate
found that on August 26, 2009, Susan and appellant filed a joint request for an entry
approving the withdrawal of appellant's exceptions to the partial account because all of
the exceptions were addressed and resolved. Based on these factual findings, the
magistrate concluded that the corrective actions taken in response to appellant's
objections were necessary and beneficial to the Estate. Reviewing appellant's objections
No. 16AP-77 12
to the magistrate's decision, the probate court concluded that the legal services performed
were necessary and beneficial to the Estate.
{¶ 28} An administrator seeking attorney fees under R.C. 2113.36 must
demonstrate that the legal services provided benefitted the estate, not the administrator
personally. In re Estate of Hathaway, 10th Dist. No. 13AP-152, 2014-Ohio-1065, ¶ 9. The
magistrate found that certain filings were amended after appellant filed exceptions, and
that appellant withdrew his exceptions after the amendments were filed. Thus, it appears
that the magistrate concluded the amendments were necessary and beneficial to the
Estate by eliminating any errors or omissions appellant perceived to exist in the original
filings. Under these circumstances, the probate court did not abuse its discretion by
adopting the magistrate's conclusion that the attorney fees related to these amendments
were necessary and beneficial to the Estate.
{¶ 29} Accordingly, we overrule appellant's eighth assignment of error.
{¶ 30} In his ninth assignment of error, appellant asserts the probate court erred
by finding that the Estate was insolvent. Appellant claims the magistrate made no factual
finding or conclusion of law regarding the solvency of the Estate but that the probate
court found the Estate was not solvent at the time reinstatement of the mortgage on the
Bristol Road property was an option. In support of his argument, appellant cites to
various trial testimony and exhibits which he asserts demonstrate that the Estate could
have prevented the foreclosure action against the Bristol Road property. Absent a
transcript of the trial proceedings, neither the probate court nor this court can evaluate
the accuracy of those assertions. Therefore, we have no basis to conclude that the probate
court abused its discretion.
{¶ 31} Accordingly, we overrule appellant's ninth assignment of error.
{¶ 32} In his tenth assignment of error, appellant asserts the probate court erred
by concluding that Chase Home Finance had a properly filed claim under R.C. 2117.06,
requiring the Estate to remain open until the longest statute of limitations expired. In
June 2008, Chase Home Finance filed a complaint for judgment on the note and
foreclosure on the mortgage of the Bristol Road property. See Chase Home Finance,
Franklin C.P. No. 08CV-8151. The complaint sought judgment and interest from
January 1, 2008. Chase Home Finance ultimately voluntarily dismissed that foreclosure
No. 16AP-77 13
action without prejudice on November 6, 2009. The probate court concluded that it was
necessary to keep the Estate open until Spring 2014 because Chase Home Finance could
refile the foreclosure complaint until that time. Appellant argues that this conclusion was
wrong as a matter of law because Chase Home Finance only had one year after the
voluntary dismissal to refile its claim pursuant to the savings statute.
{¶ 33} R.C. 2305.19(A) provides that if an action "fails otherwise than upon the
merits," the plaintiff "may commence a new action within one year after the date of * * *
the plaintiff's failure otherwise than upon the merits or within the period of the original
applicable statute of limitations, whichever occurs later." (Emphasis added.) The statute
of limitations for a claim on a promissory note payable at a definite time is six years after
the accelerated due date. R.C. 1303.16(A). Chase Home Finance was not required to re-
file its complaint within one year of November 6, 2009 because the original statute of
limitations extended beyond that date. See, e.g., Deutsche Bank Natl. Trust Co. v Carter,
12th Dist. No. CA2014-01-001, 2014-Ohio-5193, ¶ 26 (holding that bank was not required
to re-file foreclosure complaint within one year of voluntary dismissal because statute of
limitations had not run on original action). Thus, the probate court did not err by
concluding that it was proper to keep the Estate open during the period in which Chase
Home Finance could have re-filed the foreclosure action.
{¶ 34} Accordingly, we overrule appellant's tenth assignment of error.
{¶ 35} In his eleventh assignment of error, appellant argues the probate court's
decision adopting the attorney fees award was unreasonable, arbitrary, and capricious
because the fees sought exceeded the amount of attorney fees claimed as a deduction on
the Estate's amended tax return. Appellant asserts that under tax law, the Estate was only
able to claim actual and necessary attorney fees as deductions on its tax return. Appellant
claims that the amended tax return claimed a $25,000 deduction for attorney fees, but
that the documents associated with the attorney fee request indicated that approximately
$47,000 in attorney fees had been accrued by that time. Appellant argues that the
attorneys were unable to reconcile this alleged discrepancy at the hearing.
{¶ 36} Appellant's argument in support of his eleventh assignment of error relies
solely on purported hearing testimony and two exhibits introduced at the hearing. As
noted above, appellant failed to provide the probate court with a transcript of the hearing
No. 16AP-77 14
before the magistrate or the associated exhibits, and we are therefore precluded from
considering those materials on appeal. Absent any other material in support of
appellant's argument, we are unable to conclude that the probate court abused its
discretion by adopting the magistrate's decision with respect to attorney fees on this basis.
{¶ 37} Accordingly, we overrule appellant's eleventh assignment of error.
IV. Conclusion
{¶ 38} For the foregoing reasons, we overrule appellant's eleven assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas, Probate
Division.
Judgment affirmed.
TYACK, P.J., and BRUNNER, J., concur.