Cunningham v. Cunningham, 2009 Ohio 4648 (Ohio App. 9/8/2009), No. 08AP-1049.
| Decision Date | 08 September 2009 |
| Docket Number | No. 08AP-1049. |
| Citation | 2009 Ohio 4648 |
| Parties | James R. Cunningham, Plaintiff-Appellant, v. Paul R. Cunningham et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Appeal from the Franklin County Court of Common Pleas, C.P.C. No. 05CVC-10-11770.
White & Fish, LPA, and Arnold S. White, for appellant.
Lane Alton & Horst, LLC, Rick E. Marsh and Melissa M. Ferguson, for appellees Stebelton, Aranda and Snider, LPA, James C. Aranda, Esq., and Rick L. Snider, Esq.
DECISION
{¶1} Plaintiff-appellant, James R. Cunningham, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendants-appellees, Stebelton, Aranda and Snider, LPA ("SAS"), James Aranda, and Rick Snider (collectively, "defendants") on plaintiff's claims of intentional interference with expectancy of inheritance ("IIEI"), legal malpractice, and conversion. Because the trial court did not err in granting summary judgment to defendants, we affirm.
{¶2} The parties do not dispute the basic facts underlying plaintiff's case. Sometime in August or September of 2004, plaintiff's brother, Paul R. Cunningham, contacted Rick Snider, a partner in the law firm of SAS, concerning an estate plan for plaintiff's and Paul's mother, Gladys Cunningham. After meeting with both Gladys and Paul, Snider prepared a Last Will and Testament, a General Warranty Deed, a Transfer on Death Deed, and a Health Care Power of Attorney. On October 13, 2004, Paul took Gladys to Snider's office, where she executed the documents. Gladys died of a heart attack nine days later. The October 13, 2004 will was filed with the Franklin County Probate Court on November 13, 2004, and Paul retained Snider to represent his interests before that court.
{¶3} Unbeknownst to Paul, plaintiff filed on November 9, 2004 an earlier will that Gladys executed on July 10, 1997. Consolidating consideration of both wills, the trial court on August 25, 2005 vacated the 1997 will and ordered Gladys' estate to be administered pursuant to the 2004 will. As a result, plaintiff filed this action, naming Paul, SAS, Aranda and Snider as defendants and asserting claims for IIEI, legal malpractice, and conversion. Plaintiff subsequently filed a will contest with the probate court.
{¶4} Plaintiff's action in the common pleas court was stayed pending the outcome of the will contest. On November 6, 2007, a settlement agreement resolving the will contest reinstated the terms of the 1997 will. After the trial court granted defendants' petition to lift the stay, defendants filed a motion for summary judgment on all of plaintiff's claims. Plaintiff filed a response, and on September 16, 2008, the trial court granted defendants' motion.
{¶5} More specifically, with regard to plaintiff's IIEI claim, the trial court determined plaintiff failed to demonstrate he suffered damages since the reinstated 1997 will restored plaintiff's original expectancy. Similarly, the trial court concluded plaintiff suffered no damages when the beneficiary on one of Gladys' life insurance policies was changed, as the settlement agreement made plaintiff once again the beneficiary on that policy. On plaintiff's legal malpractice claim, the trial court decided plaintiff failed to demonstrate defendants owed any duty to him. Finally, the trial court ruled plaintiff's conversion claim lacked merit. Although plaintiff claimed defendants converted Gladys' lease refund by depositing it into the SAS client trust account, the trial court concluded not only that defendants remitted the money to Gladys' estate after the probate court appointed the estate's fiduciary, but that at the time of the alleged conversion, plaintiff had no legal right to the money because it was the property of the estate.
{¶6} Plaintiff appeals, assigning three errors:
[1.] THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND BY RULING THAT APPELLANT, IN SETTLING A WILL CONTEST, AS BENEFICIARY OF HIS MOTHER'S LIFE INSURANCE, BANK ACCOUNTS, REAL ESTATE, AND OTHER PROPERTY, COULD NOT THEREAFTER PROVE ANY DAMAGES FOR THE INTENTIONAL INTERFERENCE WITH EXPECTANCY OF INHERITANCE, INCLUDING HIS LOSS OF RENT, LOSS OF VALUE, LOSS OF INTEREST FOR 3 YEARS AND HIS MENTAL ANGUISH ALL OF WHICH WAS CAUSED BY THE FRAUD AND MALICE OF APPELLEES.
[2.] THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND BY RULING THAT APPELLANT'S SETTLEMENT OF A WILL CONTEST PREVENTED HIM FROM PROVING ANY DAMAGES FOR THE INTENTIONAL INTERFERENCE WITH EXPECTANCY OF INHERITANCE INCLUDING OVER $100,000 IN ATTORNEY FEES INCURRED IN PROTECTING HIS RIGHTS AS BENEFICIARY OF HIS MOTHER'S ESTATE AND OF HER LIFE INSURANCE POLICIES ALL OF WHICH WAS JEOPARDIZED BY THE FRAUD AND MALICE OF APPELLEES.
[3.] THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND BY RULING THAT APPELLANT COULD NOT PROVE HIS ALLEGATIONS CONTAINED IN PARAGRAPH 51 OF THE COMPLAINT, BY REASON OF LACK OF PRIVITY BETWEEN APPELLANT AND THE ATTORNEY APPELLEES.
{¶7} An appellate court's review of summary judgment is conducted de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. We apply the same standard as the trial court and conduct an independent review without deference to the trial court's determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107, Brown, supra, at 711. We must affirm the trial court's judgment if any of the grounds the movant raised in the trial court support the judgment. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶8} Summary judgment is appropriate only where (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. A party seeking summary judgment "bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107.
{¶9} For ease of discussion, we address plaintiff's assignments of error out of order.
{¶10} In his third assignment of error, plaintiff argues that the trial court erred in concluding the lack of privity between plaintiff and SAS bars plaintiff's malpractice claim. While conceding he was not SAS's client, plaintiff maintains the "special circumstances" exception to attorney immunity applies, vitiating the need for privity. The special circumstances exception was set forth in Simon v. Zipperstein (1987), 32 Ohio St.3d 74, 76, and reaffirmed in Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012.
{¶11} Attorneys in Ohio are qualifiedly immune from liability to a third party arising out of actions they take in representing a client. Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057, ¶69. In Shoemaker, beneficiaries of a will sued the testator's attorney for legal malpractice based on negligence. Finding no privity between the parties, the trial court granted the attorney's summary judgment motion. The beneficiaries appealed, but both the intermediate appellate court and the Supreme Court of Ohio upheld the trial court's decision. Despite maintaining the general rule that privity is required in order to bring a legal malpractice claim, the Supreme Court's decision noted special circumstances, such as fraud, bad faith, collusion or other malicious conduct, could override the necessity for privity. Shoemaker, at ¶11. Because the appellants in Shoemaker had not pled fraud, bad faith, collusion or malice, the lack of privity was fatal to their claim.
{¶12} In contrast, plaintiff's complaint alleges in paragraph 47 that defendants "intentionally and through fraud, duress, undue influence and/or otherwise tortious means" interfered with plaintiff's inheritance and expected inheritance. (Complaint, 9.) Similarly, paragraph 51 asserts the acts and omissions of defendants in representing Gladys were "willful and with malice and in conscious disregard for" plaintiff's rights. (Complaint, 10.) Plaintiff further contends the record contains sufficient information to support the allegations and to overcome summary judgment, claiming the evidence demonstrates defendants were aware that Gladys was not competent to execute the 2004 will and, armed with that information, assisted Paul in his efforts to remove plaintiff as executor.
{¶13} "The contours of the malice exception for attorney immunity to third party claims are not brightly drawn." Wilkey v. Hull (S.D.Ohio 2009), 598 F.Supp.2d 823, 832 (). This court defined "malice" in the context of legal malpractice actions to include those acts of an attorney taken with an ulterior motive separate and apart from the good-faith representation of the client's interests. Ryan v. Wright, 10th Dist. No. 06AP-962, 2007-Ohio-942, citing Hahn, supra, at ¶67. In this context, malice may also imply "`[a] condition of mind which prompts a person to do a wrongful act willfully, that is, on purpose, to the injury of another without justification or excuse.'" Id. at ¶19, quoting Moffitt v. Litteral, 2d Dist. No. 19154, 2002-Ohio-4973, ¶82, quoting Black's Law Dictionary (6th ed.1990) 956.
{¶14} Plaintiff suggests defendants acted with malice because...
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