[Cite as Collier v. Conley,
2014-Ohio-2609.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOAN E. COLLIER JUDGES:
Hon. W. Scott Gwin, P. J.
Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 2013 CA 00166
JAMES M. CONLEY, et al.
Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Probate Division, Case No. 195704
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 16, 2014
APPEARANCES:
For Appellant For Appellees
CRAIG T. CONLEY STANLEY R. RUBIN
604 Huntington Plaza 437 Market Avenue North
220 Market Avenue South Canton, Ohio 44702
Canton, Ohio 44702
Stark County, Case No. 2013 CA 00166 2
Wise, J.
{¶1}. Appellant Joan E. Collier appeals the decision of the Stark County Court
of Common Pleas, Probate Division, which granted a reduced amount of requested
trustee fees and made other related orders. Appellees James Conley, et al. are
beneficiaries of the testamentary trust at issue herein. The relevant facts leading to this
appeal are as follows.
{¶2}. Kathleen Conley, who passed away in 1996, was the testator of a will
establishing a testamentary trust naming Daniel Conley (her son) as trustee and
Appellant Joan E. Collier as successor trustee. In 1997, Daniel, the named trustee, was
killed in an automobile accident. However, Appellant Collier did not apply to the probate
court (hereinafter "trial court") to be appointed trustee until 2005. The trial court
appointed her as such on February 16, 2006. Kathleen's will did not provide for specific
compensation for the trustee, but allowed “reasonable compensation for services
rendered."
{¶3}. On March 6, 2012, Appellant Collier filed a partial account covering the
time period of January 6, 1998 to January 31, 2012. The account did not contain any
deduction for or calculation of trustee fees. The trial court issued an entry setting April
11, 2012 as the date for a hearing on appellant's partial account. Appellant filed a notice
of service, stating copies of the March 6, 2012 partial account were mailed to all trust
beneficiaries and the counsel of record for appellees. No exceptions to the account
were filed and no one appeared at the hearing on April 11, 2012 to oppose the account.
On April 11, 2012, the trial court issued an entry approving and settling the account,
stating the partial account had been "lawfully administered."
Stark County, Case No. 2013 CA 00166 3
{¶4}. On May 8, 2012, appellant filed an application for approval of trustee fees,
seeking court approval of the sum of $39,512.60 in trustee fees for the period covered
by the March 6th partial account. Appellees requested additional time to respond or
object to appellant's fee application by filing an application to extend time. On May 23,
2012, the trial court granted appellees’ application to extend time and extended the
response and objection date to June 8, 2012. Appellees did not file a response or
objection by June 8 and filed a motion to file a response to the application for trustee
fees instanter on June 14, 2012. The trial court granted appellees leave to file a
response to the application for trustee fees instanter on June 15, 2012.
{¶5}. Appellant filed a motion for reconsideration of the trial court's judgment
entry granting appellees leave to file a response instanter to the application for trustee
fees. The trial court denied appellant's motion for reconsideration on June 25, 2012.
{¶6}. On July 10, 2012, the trial court sua sponte vacated its April 11th approval
of the partial account to “correct a clerical error.” The trial court stated the March 6,
2012 account filing “should not have been approved as objections have been filed to the
Trustee's Fees contained therein and are still pending before the Court.”
{¶7}. Appellant thereupon filed an appeal of the trial court's June 15, 2012, June
25, 2012, and July 10, 2012 judgment entries. She therein raised three assigned errors.
In a decision filed April 22, 2013, this Court first found that the trial court, in its July 10,
2012 decision, had abused its discretion by sua sponte vacating the April 11, 2012
judgment entry approving and settling the account. See In re Testamentary Trust of
Kathleen B. Conley, 5th Dist. Stark No. 2012-CA-00133, 2013-Ohio-1631, ¶ 18. We
therefore reversed the trial court's July 10, 2012 decision.
Id. at ¶ 26 We further
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determined that the June 15, 2012 and June 25, 2012 entries did not constitute final
appealable orders, reasoning that "[n]either of the entries disposes of appellant's
application for trustee fees as the trial court has not yet ruled on the application for
fees." Id. at ¶ 24.
{¶8}. The trial court, on July 18, 2013, scheduled a hearing to approve trustee
fees on August 7, 2013. After conducting said hearing, the trial court issued a judgment
entry on August 15, 2013, approving $5,379.00 of appellant's trustee fee application but
disallowing the remainder. In the meantime, appellant filed a motion to strike appellees'
objection to the fee application. On August 15, 2013, the trial court issued an additional
judgment entry denying appellant's motion to strike.
{¶9}. Appellant filed a notice of appeal on August 26, 2013. She therein listed
the judgment entries of June 15, 2012, June 25, 2012, August 15, 2013 (no. 1), and
August 15, 2013 (no. 2). She herein raises the following four Assignments of Error:
{¶10}. “I. THE TRIAL COURT ERRED IN GRANTING, VIA ITS JUNE 15, 2012
JUDGMENT ENTRY NOW ON APPEAL, OBJECTORS/APPELLEES (SIC) LEAVE TO
FILE INSTANTER, WITHOUT DEMONSTRATION OF EXCUSABLE NEGLECT, A
TARDY OBJECTION/RESPONSE TO TRUSTEE'S/APPELLANT'S MAY 8, 2012
APPLICATION FOR APPROVAL OF TRUSTEE'S FEES.
{¶11}. II. THE TRIAL COURT ERRED IN DENYING, VIA ITS JUNE 25, 2012
JUDGMENT ENTRY NOW ON APPEAL, TRUSTEE'S/APPELLANT'S JUNE 20, 2012
MOTION FOR RECONSIDERATION OF THE JUNE 15, 2012 JUDGMENT ENTRY
REFERRED TO IN ASSIGNMENT OF ERROR NO. 1 HEREINABOVE.
Stark County, Case No. 2013 CA 00166 5
{¶12}. III. THE TRIAL COURT ERRED IN DENYING (IN SUBSTANTIAL PART),
VIA ITS AUGUST 15, 2013 JUDGMENT ENTRY NOW ON APPEAL,
TRUSTEE'S/APPELLANT'S MAY 8, 2012 APPLICATION FOR TRUSTEE'S FEES.
{¶13}. IV. THE TRIAL COURT ERRED IN DENYING, VIA ITS (OTHER)
AUGUST 15, 2013 JUDGMENT ENTRY NOW ON APPEAL,
TRUSTEE'S/APPELLANT'S AUGUST 8, 2013 MOTION TO STRIKE
OBJECTORS'/APPELLEES' TARDY RESPONSE (AND ATTENDANT ORAL
ARGUMENT) IN OPPOSITION TO THE APPLICATION REFERRED TO IN
ASSIGNMENT OF ERROR NO. 3 HEREINABOVE.
I., II., IV.
{¶14}. Appellant's First, Second, and Fourth Assignments of Error all pertain to
the issue of appellees' tardy response/objection to appellant's application for attorney
fees of May 8, 2012. In her First Assignment of Error, appellant argues the trial court
erred, in its June 15, 2012 judgment entry, in granting appellees leave to file, instanter,
the tardy response/objection to said application for approval of trustee fees. In her
Second Assignment of Error, appellant contends the trial court erred in denying her
motion to reconsider the aforesaid June 15, 2012 judgment entry. Finally, in her Fourth
Assignment of Error, appellant maintains the trial court erred in denying her motion to
strike appellees' tardy response/objection to the application for approval of trustee fees.
We disagree on all counts.
{¶15}. R.C. 2109.33 states in pertinent part: " … Any person interested in an
estate or trust may file exceptions to an account or to matters pertaining to the
execution of the trust. All exceptions shall be specific and written. Exceptions shall be
Stark County, Case No. 2013 CA 00166 6
filed and a copy of them furnished to the fiduciary by the exceptor, not less than five
days prior to the hearing on the account. The court for cause may allow further time to
file exceptions. …." (Emphasis added).
{¶16}. "[T]rial courts are afforded wide discretion to grant extensions of time and
permit untimely pleadings when there is excusable neglect." United Studios of America
v. Laman, Stark App.No. 2007CA00277, 2008-Ohio-3497, ¶ 24. We have likewise
recognized that a trial court has the inherent authority to manage its own proceedings
and control its own docket. Love Properties, Inc. v. Kyles, Stark App.No. 2006CA00101,
2007-Ohio-1966, ¶ 37, citing State ex rel. Nat. City Bank v. Maloney, Mahoning App.No.
03 MA 139,
2003-Ohio-7010, ¶ 5.
{¶17}. In light of the overall duration of this matter and the delayed formal
appointment of a successor trustee, we are unpersuaded that a six-day extension to
allow appellees to respond to the request for trustee fees constituted an abuse of
discretion.
{¶18}. Appellant's First, Second, and Fourth Assignments of Error are overruled.
III.
{¶19}. In her Third Assignment of Error, appellant contends the trial court erred in
denying her May 8, 2012 application for trustee fees of $39,152.60, save for the sum of
$5,379.00. We disagree.
{¶20}. A probate court's decision denying trustee fees will not be disturbed on
appeal in the absence of an abuse of discretion. In re Estate of Veroni, 11th Dist. Lake
No. 98-L-024, 1998WL964527, citing In re Estate of Winograd (1989), 65 Ohio App.3d
76, 82,
582 N.E.2d 1047. In order to find an abuse of discretion, we must determine the
Stark County, Case No. 2013 CA 00166 7
trial court's decision was unreasonable, arbitrary or unconscionable, and not merely an
error of law or judgment. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217.
{¶21}. R.C. 2109.303(A) states in pertinent part as follows: "Except as provided
in division (B) of this section, every testamentary trustee shall, and every other fiduciary
not subject to section 2109.301 or 2109.302 of the Revised Code may, render an
account of the trustee's or other fiduciary's administration of the estate or trust at least
once in each two years. …."
{¶22}. Stark County Local Rule 74.2(A) sets forth certain percentage fees which
may be charged by a testamentary trustee. Subsection (B) of the Rule states as follows:
{¶23}. "If by reason of the application of the above percentages to values of
assets a disparity or injustice results, such disparity or injustice may be reviewed on the
Court's own motion in respect of any account reflecting such compensation or upon
exceptions to such an account."
{¶24}. Appellant essentially urges that our refusal in the first appeal to allow the
trial court to revisit, via Civ.R. 60(A), its original judgment entry of April 11, 2012, which
found the partial account to have been lawfully administered, presently invites
application of the res judicata doctrine. In other words, appellant argues, because the
request for trustee fees is "arithmetically predicated" on the judgment entry approving
the partial account on April 11, 2012, the trial court was barred from deviating from the
requested fees. The trial court in this instance indeed noted in its decision to reduce the
fees that it was not reasonable to compensate appellant for her voluntary acts as
trustee for eight years prior to her appointment. Judgment Entry at 4. The court also
stated that appellant had failed to file an inventory or accounting until more than four
Stark County, Case No. 2013 CA 00166 8
years after her appointment. Id. The court further noted that despite being sent a notice
of delinquent account in 2008, appellant did not file her account until September 2010;
accordingly, fees were approved for 2008, 2009, 2010, and 2011 only. Id. at 5. While
the court's reasoning appears to contradict its earlier determination of lawful
administration of the partial account, we hold the trial court maintained the discretion to
determine if the fees calculation resulted in a disparity or injustice under Loc.R. 74.2(B).
{¶25}. Therefore, upon review, we find no abuse of discretion in the trial court's
decision regarding the award of trustee fees under the circumstances presented.
Appellant's Third Assignment of Error is overruled.
{¶26}. For the foregoing reasons, the judgment of the Court of Common Pleas,
Probate Division, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/d 0529
Stark County, Case No. 2013 CA 00166 9
