Cannell v. Bulicek

• Decision Date: 06 January 1983
• Citation: 8 Ohio App.3d 331,457 N.E.2d 891
• Parties: , 8 O.B.R. 441 CANNELL, Appellee, v. BULICEK, Exrx., Appellant.
• Court: Ohio Court of Appeals

Page 331

8 Ohio App.3d 331

457 N.E.2d 891, 8 O.B.R. 441

CANNELL, Appellee, v. BULICEK, Exrx., Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 6, 1983.

Syllabus by the Court

1. The three-month presentment requirement of R.C. 2117.06 is mandatory.

2. Where sufficient evidence is presented to the trial court that a claim was mailed to the executor of an estate, well within the three-month presentment requirement of R.C. 2117.06, and was correctly addressed

and posted, and sufficient evidence is presented that the delivery rate for such a letter is one hundred percent within three days of mailing, it is within the court's discretion to weigh the evidence and determine that the claim was timely presented pursuant to R.C. 2117.06, notwithstanding the executor's protest that the letter was received beyond the three-month period.

3. While there exists an implied duty on the part of an attorney to keep an account of the time involved in a matter under consideration for the determination of his fees, such time records are not absolutely mandatory.

J. Ross Haffey, Jr., Lyndhurst, for appellee.

Julien C. Renswick, Cleveland, for appellant.

PATTON, Presiding Judge.

This is an appeal from the Court of Common Pleas of Cuyahoga County in which the appellant, Jean Bulicek, Executrix of the Estate of Kenneth C. Beck, contests the judgment of the trial court, which granted appellee, John D. Cannell, attorney's fees for services rendered the decedent. Bulicek had refused to accept appellee's claim for payment, contending that the presentation of such claim had fallen outside the statutorily conferred period for presentment (R.C. 2117.06), and that the amount of such fee was excessive. The facts giving rise to this appeal are essentially as follows.

The decedent, Kenneth C. Beck, had sought the legal services of appellee for purposes of tending to his estate, and to develop a living memorial to the arts in the decedent's name. The initial contact by Beck with appellee was in 1958. Though appellee was requested to tend to Beck's estate affairs during his lifetime, Beck requested that all fees due and owing appellee be deferred until the time of his death, with payment to be made from the Beck Estate.

Appellee rendered legal services to Kenneth C. Beck for a period of approximately twenty years. During this time, numerous drafts of wills and codicils were made and executed, and appellee assumed the instrumental role in establishing the charitable memorial sought by the decedent to perpetuate his name. During the early 1970's, appellee, after extensive discussion with numerous charitable organizations, entered into negotiations with the Lakewood Little Theatre. As a result of these negotiations and discussions, Lakewood Little Theatre became the beneficiary of Kenneth C. Beck's Estate and was renamed the Kenneth C. Beck Center for the Cultural Arts.

During the course of these negotiations, Beck became acquainted with Howard Egert, an attorney who served on behalf of, and represented the interests of the Lakewood Little Theatre. The testimony adduced at trial established that Egert, while representing the Lakewood Little Theatre, also assumed representation of Beck for purposes of executing a new will. The provisions of this will removed appellee as the estate's attorney and placed Egert in that position. Though this information was not conveyed to appellee, the record reveals that Egert sought to discover the amount of attorney's fees due appellee for services rendered to Beck, so that the Beck Center had knowledge of the full amount of money it was entitled to upon Beck's death. The decedent, pursuant to this demand, sometime in the latter half of 1976 therefore requested that appellee provide him with a statement of the amount due for legal services rendered.

In December 1976, appellee rendered a bill for $50,000, to be paid from the Estate of Kenneth C. Beck. Written correspondence contained in the record revealed that Beck did not contest the amount, that Egert was fully aware of the amount owed appellee, and that Egert had attempted to have appellee donate a portion of such fees to the Kenneth C. Beck Center.

In September 1977, Kenneth C. Beck expired. On September 21, 1977, Jean Bulicek, a long-time friend of the decedent, was named as Executrix of the Beck Estate. It was not until after the death of Beck that appellee became aware of the new will drafted by Egert, which dismissed him as the estate's attorney and placed Egert in that position. On September 28, 1977, appellee therefore notified Egert by written correspondence that attorney J. Ross Haffey, Jr., had been retained to protect appellee's financial interests in the amount owed by the Beck Estate.

On December 16, 1977, a written claim against the Beck Estate was sent through the course of ordinary mail to Jean Bulicek as Executrix of the Beck Estate. Testimony was provided by Margaret Russo, secretary to Haffey, concerning the posting and mailing of the claim in question, in which Russo stated that the claim was processed as all other office mail and mailed the day prepared.

John Ratica, Manager of Quality Control of the Cleveland Post Office, testified that the stamped postmarked letters mailed from the Cleveland area to destinations within the Cleveland area had a rate of seventy-eight percent for next-day delivery, a rate of ninety-eight percent delivery by the second day after mailing, and a one hundred percent delivery rate by the third day after mailing.

Ratica also indicated that if a letter was misdelivered to the wrong zip code area, the post office procedure was that an endorsement would be put on the envelope and it would be returned to the proper area. However, if a person within the same zip code area received the letter as a result of misdelivery, the letter could be redeposited in a regular mailbox and it would be processed as an original mailing, without any additional markings or cancellations on the envelope.

In support of Bulicek's position that appellee's claim for attorney's fees fell outside the three-month statutory requirement for presentment, she testified that such claim arrived on January 11, 1978. She further testified that upon receipt of this correspondence, she immediately signed and dated the envelope. Stanley Kowalski, the mailman who delivered the correspondence to Bulicek, testified otherwise, however, and stated that no markings were on the letter when presented to him by Egert approximately one week later, concerning his recognition of this letter.

Bulicek also stated that Egert had given her no instructions with regard to appellee's claim. Egert's testimony, however, contradicted this. He stated that he had informed Bulicek to call him immediately upon receipt of a written correspondence from appellee or his attorney, which she did. Egert also stated that when he saw the envelope on January 11, 1978, Bulicek's receipt notations and signature were already on the envelope. Further inconsistencies were present in the testimony of Egert and Bulicek with regard to their knowledge of appellee's claimed fees and presentment thereof.

Evidence was then provided concerning Bulicek's claim that the amount of $50,000 was excessive for the actual work performed. After testimony on this issue by appellee, expert witnesses Michael T. Gavin and Robert O. Fricke provided their opinions concerning the fees charged in conjunction with the nature of the tasks sought by Beck. While Gavin testified that the amount of $50,000 was reasonable in light of services rendered, Fricke stated that the hourly fee charged by appellee was higher than that normally charged.

On December 4, 1981, judgment was rendered in favor of appellee, the trial court determining in pertinent part that:

"The Court finds that this claim was presented, under R.C. 2117.06, when it was mailed within the three month time period and there is evidence that it would be received by the executrix within that same three month period. Under these facts the executrix received notice of the claim when it was mailed. Actual receipt of the claim by the executrix within the three month time period is not necessary to comply with R.C. 2117.06. In re Estate of McCracken (1967), 9 Ohio Misc. 195, 224 N.E.2d 181. In re Estate of Clark [ (1967), 11 Ohio Misc. 103, 229 N.E.2d 122 (40 O.O.2d 347) ]." (Emphasis sic.)

It is upon the foregoing facts and circumstances that Bulicek has sought this court's review, raising four assigned errors for consideration.

"I. The trial court erred in finding that plaintiff had presented his claim within three months of the appointment of the executrix."

It is initially contended by appellant that appellee's claim for attorney's fees was received on January 11, 1978, therefore falling outside the requirements of R.C. 2117.06. The provisions of that statute provide in pertinent part that:

"All creditors having claims against an estate shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within three months after the date of the appointment of the executor or administrator * * *."

Ohio courts have held the presentment requirement of R.C. 2117.06 to be mandatory, In re Estate of Natherson (1956), 102 Ohio App. 475, 134 N.E.2d 852 ; Krash v. Jarvis (App.1962), 90 Ohio Law Abs. 99, 187 N.E.2d 409 ; In re Estate of Andres (1961), 114 Ohio App. 167, 180 N.E.2d 855 ; Beacon Mut. Indemn. Co. v. Stalder (1954), 95 Ohio App. 441, 120 N.E.2d 743 ; In re Estate of Hamlin (P.C.1949), 54 Ohio Law Abs. 257, 87 N.E.2d 691 ; Fortelka v. Meifert (1964), 176 Ohio St. 476, 200 N.E.2d 318 , as the purpose and objective of this law " * * * is manifestly to secure an expeditious and efficient administration of an...