Firestone v. Galbreath, 92-1925

Decision Date11 August 1993
Docket NumberNo. 92-1925,92-1925
PartiesFIRESTONE et al. v. GALBREATH et al.
CourtOhio Supreme Court

Samuel I. Burstyn, for petitioners Douglas B. Firestone and Amy Firestone del Valle.

Joan E. O'Dell, 1 Charles Schneider and Locke McKenzie, for petitioner Russell A. Firestone, III.

Strauss & Troy and Richard S. Wayne, for petitioners Jeffrey and David Firestone.

Squire, Sanders & Dempsey, David J. Young, C. Craig Woods and Gary M. Simon, for respondents Bricker & Eckler, John Eckler, Estate of David C. Cummins, Charles H. Waterman, III, and John W. Phillips.

Baker & Hostetler, Robert M. Kincaid, Jr. and John F. Winkler, for respondents Daniel M. Galbreath, John W. Galbreath Trust, Estate of John W. Galbreath, Estate of Dorothy B. Galbreath, Dorothy Bryan Galbreath Family Trust, Darby Dan Farm, John W. Galbreath Darby Dan Farm Trust, Joan Galbreath Phillips, James W. Phillips, Lizanne Galbreath, John W. Galbreath & Co., Inc., Galbreath-Ruffin Corp., Akron Redevelopment Corp., and Delores I. Dutoit.

Denmead & Maloney, Craig Denmead and Kevin M. Maloney, for respondent Bolon, Hart & Buehler, Inc.

With regard to certified question No. 1, the federal court order uses the language, " * * * with expectancy or inheritance * * * [.]" (Emphasis added.) The briefs of the parties present different versions of this phrase: Petitioners Jeffrey Firestone and David Firestone state, "with expectancy of inheritance * * * " (emphasis added); respondents Daniel M. Galbreath et al. use the language, "with expectancy of an inheritance * * * " (emphasis added); respondent Bolon, Hart & Buehler, Inc. states, "with an expected inheritance" (emphasis added); and respondents Bricker & Eckler et al. track the language of the federal court order to-wit, "with expectancy or inheritance" (emphasis added).

Assuming that the various versions of certified question No. 1 are all meant to present exactly the same issue, 2 we answer this certified question in the affirmative ("yes"). See, generally, Morton v. Petitt (1931), 124 Ohio St. 241, 177 N.E. 591. We find particularly instructive Restatement of the Law 2d, Torts (1979) 58, Section 774B, which provides:

"Intentional Interference with Inheritance or Gift.

"One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."

We also find Comment d to Section 774B, at 59, enlightening.

In response to certified question No. 2, we advise that any person who can prove the elements of the tort of intentional interference with expectancy of inheritance has the right to maintain the cause of action. We further advise that the elements of the tort are: (1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference.

While the parties have raised other issues, such as exhaustion of other possible remedies, the federal court has not certified these issues to us nor do we deem it necessary to discuss those issues to resolve the two questions certified to us by the federal court. Accordingly, we confine our answers to the foregoing.

A. WILLIAM SWEENEY, DOUGLAS, RESNICK, FRANCIS E. SWEENEY, Sr. and PFEIFER, JJ., concur.

MOYER, C.J., and EVANS, J., concur in part and dissent in part.

JOHN R. EVANS, J., of the Third Appellate District, sitting for WRIGHT, J.

JOHN R. EVANS, Judge, concurring in part and dissenting in part.

While I concur in the answer of the majority to the first question, I respectfully dissent from the answer of the majority to the second question certified by the United States Court of Appeals for the Sixth Circuit. To the second question the majority responds, "that any person, who can prove the elements of the tort of intentional interference with expectancy of inheritance, has the right to maintain the cause of action." I believe the response is...

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69 cases
  • Firestone v. Galbreath
    • United States
    • U.S. District Court — Southern District of Ohio
    • August 9, 1995
    ...would recognize this tort and that anyone who could prove the elements of the tort could bring such an action. Firestone v. Galbreath, 67 Ohio St.3d 87, 616 N.E.2d 202 (1993). On May 31, 1994, the Sixth Circuit remanded the claims of tortious interference with an expectancy to this court fo......
  • Wellin v. Wellin
    • United States
    • U.S. District Court — District of South Carolina
    • September 30, 2015
    ...(1981) ; Morrill v. Morrill, 712 A.2d 1039 (Me.1998) ; Doughty v. Morris, 117 N.M. 284, 871 P.2d 380 (1994) ; Firestone v. Galbreath, 67 Ohio St.3d 87, 616 N.E.2d 202 (1993) ; Wickert v. Burggraf, 214 Wis.2d 426, 570 N.W.2d 889 (1997) ; see also Restatement (Second) of Torts § 74B (1979).Id......
  • Barclay v. Castruccio
    • United States
    • Court of Special Appeals of Maryland
    • June 30, 2020
    ...will); Minton v. Sackett , 671 N.E.2d 160 (Ind. Ct. App. 1996) ; Plimpton v. Gerrard , 668 A.2d 882 (Me. 1995) ; Firestone v. Galbreath , 67 Ohio St.3d 87, 616 N.E.2d 202 (1993) ; Allen v. Hall , 328 Or. 276, 974 P.2d 199 (1999) ; Barone v. Barone , 170 W.Va. 407, 294 S.E.2d 260 (1982).9 A ......
  • Fell v Rambo
    • United States
    • Tennessee Court of Appeals
    • May 5, 2000
    ...v. Posner, 743 A.2d 247, 255 (Md. Ct. Spec. App. 1999); Doughty v. Morris, 871 P.2d 380, 384 (N.M. Ct. App. 1994); Firestone v. Galbreath, 616 N.E.2d 202, 203 (Ohio 1993); Harris v. Kritzik, 480 N.W.2d 514, 517 (Wis. Ct. App. So far, at least eleven jurisdictions have expressly adopted the ......
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