[Cite as Berkmyer v.Serra, 2011-Ohio-5901.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JILL BERKMYER ET AL., JUDGES: Hon. W. Scott Gwin, P.J. Appellants, Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. v.
ROSEMARY C. SERRA ET Al., Case No. 2011CA00068
Appellees. OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV002264
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 14, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
FRANK J. WITSCHEY STEVEN G. JANIK CRAIG S. HORBUS COLIN P. SAMMON 405 Rothrock Road, Ste. 103 SEAN T. NEEDHAM Akron, OH 44321 9200 South Hills Boulevard, Ste. 300 Cleveland, OH 44147
Farmer, J. Stark County, Case No. 2011CA00068 2
{¶ 1} On June 15, 2010, appellants, Jill Berkmyer, Gretchen Lab, Kimberly
Lewis, and Gretchen Lab as Trustee of the Tanya L. Green Trust, filed a complaint
against appellee, Rosemary Serra, Esq., claiming legal malpractice for negligence,
breach of fiduciary duty, and intentional interference with expectancy of inheritance.
The complaint arose from appellee's representation of Merelyn M. Molder-Hirst in
drafting her estate planning documents namely, the Merelyn M. Hirst Revocable Trust
Agreement and subsequent amendments. Appellants were named beneficiaries under
the agreement.
{¶ 2} On November 15, 2010, appellants filed an amended complaint adding
new claims of legal practice for negligence plus conduct, conversion, unjust enrichment,
and declaratory judgment for constructive trust, and new party defendants, all
beneficiaries under the aforementioned trust agreement.
{¶ 3} On December 30, 2010, appellee filed a motion to dismiss under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted. Appellee argued
appellants did not have standing to bring the lawsuit as privity did not exist between the
parties, and the negligence plus conduct allegation did not rise to the level of malice
necessary to circumvent the privity requirement in legal malpractice actions. By order
filed March 8, 2011, the trial court granted the motion and dismissed appellants' claims
for legal malpractice for negligence, legal malpractice for negligence plus conduct, and
intentional interference with expectancy of inheritance. Appellants voluntarily dismissed
the remaining claims on March 28, 2011.
{¶ 4} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Stark County, Case No. 2011CA00068 3
I
{¶ 5} "WITH SUFFICIENT ALLEGATIONS PLEAD IN APPELLANTS'
COMPLAINT TO PLACE AT ISSUE WHETHER APPELLANTS SUFFERED DAMAGES
AS A PROXIMATE RESULT OF APPELLEE'S PROFESSIONAL NEGLIGENCE, THE
TRIAL COURT ERRED BY FINDING OTHERWISE AND SUSTAINING APPELLEE'S
MOTION TO DISMISS."
{¶ 6} Appellants claim the trial court erred in granting appellee's motion to
dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be
granted. We disagree.
{¶ 7} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber
(1991), 57 Ohio St.3d 56.
{¶ 8} Appellants argue despite the lack of privity between the parties, their claim
for legal malpractice is sustainable. As the June 15, 2010 complaint sets forth,
appellants are named beneficiaries of the Molder-Hirst Trust. Appellant Lab is the
trustee of the Tanya L. Green Trust established by the Molder-Hirst Trust. See,
Complaint at ¶1-4. Appellee is an attorney hired as the drafter of the Merelyn M. Hirst Stark County, Case No. 2011CA00068 4
Revocable Trust Agreement and subsequent amendments. Complaint at ¶7-11.
Appellee represented Merelyn M. Molder-Hirst. Complaint at ¶12-14. In Counts One
and Two, appellants affirmatively state that an attorney-client relationship existed
between appellee and Mrs. Molder-Hirst.
{¶ 9} In granting the motion to dismiss, the trial court found no privity between
the parties and no claim of malice against appellee. See, Order filed March 8, 2011. In
support, the trial court relied on the case of Simon v. Zipperstein (1987), 32 Ohio St. 3d
74, 76, wherein the Supreme Court of Ohio stated the following:
{¶ 10} "It is by now well-established in Ohio that an attorney may not be held
liable by third parties as a result of having performed services on behalf of a client, in
good faith, unless the third party is in privity with the client for whom the legal services
were performed, or unless the attorney acts with malice."
{¶ 11} The trial court also relied on this court's opinion in Schlegel v.
Gindlesberger, Holmes App. No. 05 CA 11, 2006-Ohio-6917, ¶15, wherein this court
stated, "[w]e are bound by precedent to follow the Ohio Supreme Court's decision in the
Simon v. Zipperstein case." This court went on to state the following at ¶16:
{¶ 12} "Despite our conclusion, we invite the Ohio Supreme Court to revisit this
issue because there should always be a remedy to any wrong. We find Justice Brown's
dissent in Simon v. Zipperstein, supra, persuasive as he correctly notes that, '***the use
of privity as a tool to bar recovery has been riddled***to the extent that we are left with
legal malpractice as perhaps, the only surviving relic.' Id. at 77, 512 N.E.2d 636.
Without relaxing the concept of privity, intended beneficiaries may suffer damages Stark County, Case No. 2011CA00068 5
without any remedy and an attorney who negligently drafts a will is immune from liability
to those persons whom the testator intended to benefit under his or her will."
{¶ 13} Appellants invite us to revisit the issue of privity in legal malpractice
actions. In doing so, appellants ask this court to embrace Justice Brown's dissent in
Zipperstein, and the concurring opinion of former Chief Justice Thomas Moyer in
Shoemaker v. Gindlesberger, 118 Ohio St. 3d 226, 2008-Ohio-2012, ¶33:
{¶ 14} "I am persuaded that, as Justice Brown argued, the issue of an attorney's
conflict of interest does not arise if an intended beneficiary has a cause of action in
negligence for an attorney's preparation of a will. I am also persuaded that there is a
strong need for attorney accountability in preparing wills. It serves no purpose to
continue to invoke a strict rule of privity to protect the malpractice of a lawyer when we
have abrogated that rule with respect to the liability of other professionals, such as
accountants and architects. For this reason, if presented with a different set of facts, I
would be in favor of revisiting our decision in Zipperstein in the context of the holding of
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256."
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Berkmyer v.Serra, 2011-Ohio-5901.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JILL BERKMYER ET AL., JUDGES: Hon. W. Scott Gwin, P.J. Appellants, Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. v.
ROSEMARY C. SERRA ET Al., Case No. 2011CA00068
Appellees. OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2010CV002264
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 14, 2011
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
FRANK J. WITSCHEY STEVEN G. JANIK CRAIG S. HORBUS COLIN P. SAMMON 405 Rothrock Road, Ste. 103 SEAN T. NEEDHAM Akron, OH 44321 9200 South Hills Boulevard, Ste. 300 Cleveland, OH 44147
Farmer, J. Stark County, Case No. 2011CA00068 2
{¶ 1} On June 15, 2010, appellants, Jill Berkmyer, Gretchen Lab, Kimberly
Lewis, and Gretchen Lab as Trustee of the Tanya L. Green Trust, filed a complaint
against appellee, Rosemary Serra, Esq., claiming legal malpractice for negligence,
breach of fiduciary duty, and intentional interference with expectancy of inheritance.
The complaint arose from appellee's representation of Merelyn M. Molder-Hirst in
drafting her estate planning documents namely, the Merelyn M. Hirst Revocable Trust
Agreement and subsequent amendments. Appellants were named beneficiaries under
the agreement.
{¶ 2} On November 15, 2010, appellants filed an amended complaint adding
new claims of legal practice for negligence plus conduct, conversion, unjust enrichment,
and declaratory judgment for constructive trust, and new party defendants, all
beneficiaries under the aforementioned trust agreement.
{¶ 3} On December 30, 2010, appellee filed a motion to dismiss under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted. Appellee argued
appellants did not have standing to bring the lawsuit as privity did not exist between the
parties, and the negligence plus conduct allegation did not rise to the level of malice
necessary to circumvent the privity requirement in legal malpractice actions. By order
filed March 8, 2011, the trial court granted the motion and dismissed appellants' claims
for legal malpractice for negligence, legal malpractice for negligence plus conduct, and
intentional interference with expectancy of inheritance. Appellants voluntarily dismissed
the remaining claims on March 28, 2011.
{¶ 4} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows: Stark County, Case No. 2011CA00068 3
I
{¶ 5} "WITH SUFFICIENT ALLEGATIONS PLEAD IN APPELLANTS'
COMPLAINT TO PLACE AT ISSUE WHETHER APPELLANTS SUFFERED DAMAGES
AS A PROXIMATE RESULT OF APPELLEE'S PROFESSIONAL NEGLIGENCE, THE
TRIAL COURT ERRED BY FINDING OTHERWISE AND SUSTAINING APPELLEE'S
MOTION TO DISMISS."
{¶ 6} Appellants claim the trial court erred in granting appellee's motion to
dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be
granted. We disagree.
{¶ 7} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber
(1991), 57 Ohio St.3d 56.
{¶ 8} Appellants argue despite the lack of privity between the parties, their claim
for legal malpractice is sustainable. As the June 15, 2010 complaint sets forth,
appellants are named beneficiaries of the Molder-Hirst Trust. Appellant Lab is the
trustee of the Tanya L. Green Trust established by the Molder-Hirst Trust. See,
Complaint at ¶1-4. Appellee is an attorney hired as the drafter of the Merelyn M. Hirst Stark County, Case No. 2011CA00068 4
Revocable Trust Agreement and subsequent amendments. Complaint at ¶7-11.
Appellee represented Merelyn M. Molder-Hirst. Complaint at ¶12-14. In Counts One
and Two, appellants affirmatively state that an attorney-client relationship existed
between appellee and Mrs. Molder-Hirst.
{¶ 9} In granting the motion to dismiss, the trial court found no privity between
the parties and no claim of malice against appellee. See, Order filed March 8, 2011. In
support, the trial court relied on the case of Simon v. Zipperstein (1987), 32 Ohio St. 3d
74, 76, wherein the Supreme Court of Ohio stated the following:
{¶ 10} "It is by now well-established in Ohio that an attorney may not be held
liable by third parties as a result of having performed services on behalf of a client, in
good faith, unless the third party is in privity with the client for whom the legal services
were performed, or unless the attorney acts with malice."
{¶ 11} The trial court also relied on this court's opinion in Schlegel v.
Gindlesberger, Holmes App. No. 05 CA 11, 2006-Ohio-6917, ¶15, wherein this court
stated, "[w]e are bound by precedent to follow the Ohio Supreme Court's decision in the
Simon v. Zipperstein case." This court went on to state the following at ¶16:
{¶ 12} "Despite our conclusion, we invite the Ohio Supreme Court to revisit this
issue because there should always be a remedy to any wrong. We find Justice Brown's
dissent in Simon v. Zipperstein, supra, persuasive as he correctly notes that, '***the use
of privity as a tool to bar recovery has been riddled***to the extent that we are left with
legal malpractice as perhaps, the only surviving relic.' Id. at 77, 512 N.E.2d 636.
Without relaxing the concept of privity, intended beneficiaries may suffer damages Stark County, Case No. 2011CA00068 5
without any remedy and an attorney who negligently drafts a will is immune from liability
to those persons whom the testator intended to benefit under his or her will."
{¶ 13} Appellants invite us to revisit the issue of privity in legal malpractice
actions. In doing so, appellants ask this court to embrace Justice Brown's dissent in
Zipperstein, and the concurring opinion of former Chief Justice Thomas Moyer in
Shoemaker v. Gindlesberger, 118 Ohio St. 3d 226, 2008-Ohio-2012, ¶33:
{¶ 14} "I am persuaded that, as Justice Brown argued, the issue of an attorney's
conflict of interest does not arise if an intended beneficiary has a cause of action in
negligence for an attorney's preparation of a will. I am also persuaded that there is a
strong need for attorney accountability in preparing wills. It serves no purpose to
continue to invoke a strict rule of privity to protect the malpractice of a lawyer when we
have abrogated that rule with respect to the liability of other professionals, such as
accountants and architects. For this reason, if presented with a different set of facts, I
would be in favor of revisiting our decision in Zipperstein in the context of the holding of
Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256."
{¶ 15} Unlike Shoemaker, this case does not include a claim for fraud, collusion,
or deception by appellee in her representation of Mrs. Molder-Hirst or a claim of faulty
legal advice. Appellants by innuendo raise a specter of undue influence exerted by Mrs.
Molder-Hirst's now deceased husband, Robert R. Hirst.
{¶ 16} As we stated in Schlegel, supra, it is our belief that Zipperstein is binding
under the theory of stare decisis. Because of this state's long standing embrace of this
theory, we are not inclined to take a step into the abyss by going against the Supreme Stark County, Case No. 2011CA00068 6
Court of Ohio in a case that does not demonstrate the need when other remedies were
available to appellants.
{¶ 17} The sole assignment of error is denied.
{¶ 18} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and Delaney, J. concur.
_s/ Sheila G. Farmer______________
_s/ W. Scott Gwin________________
_s/ Patricia A. Delaney____________
JUDGES [Cite as Berkmyer v.Serra, 2011-Ohio-5901.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JILL BERKMYER ET AL., : : Appellants, : : v. : JUDGMENT ENTRY : ROSEMARY C. SERRA ET AL., : : Appellees. : CASE NO. 2011CA00068
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellants.
JUDGES