Bohan v. Dennis C. Jackson Co.

935 N.E.2d 900, 188 Ohio App. 3d 446
CourtOhio Court of Appeals
DecidedJuly 22, 2010
DocketNo. 93756
StatusPublished
Cited by3 cases

This text of 935 N.E.2d 900 (Bohan v. Dennis C. Jackson Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bohan v. Dennis C. Jackson Co., 935 N.E.2d 900, 188 Ohio App. 3d 446 (Ohio Ct. App. 2010).

Opinion

Melody J. Stewart, Presiding Judge.

{¶ 1} Plaintiff-appellant, Robert G. Bohan, appeals from a Civ.R. 12(B)(6) dismissal of his complaint for legal malpractice, breach of contract, and fraud against defendant-appellee, law firm Dennis C. Jackson Co., L.P.A. (the “firm”). Bohan, a beneficiary of a revocable trust established by his father, George H. Bohan, alleged that the firm had been retained to modify the terms of a trust, but failed to do so before the father died. The court held that Bohan lacked standing to bring a legal-malpractice claim because, as the beneficiary of a revocable trust, he was not in privity of contract. The court likewise dismissed the contract and fraud claims by finding that they were attempts to circumvent the lack of privity. We find no error and affirm.

I

{¶ 2} Civ.R. 12(B)(6) allows a complaint to be dismissed for failure to state a claim only when it appears “beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1996), 76 Ohio St.3d 521, 524, 668 N.E.2d 889, citing O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 327 N.E.2d 753. “[W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party.” Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584. The complaint cannot be dismissed unless it appears beyond all doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O’Brien, 42 Ohio St.2d at 245, 71 O.O.2d 223, 327 N.E.2d 753.

II

{¶ 3} The complaint alleged that Bohan’s father held his property in a revocable trust. The trust agreement provided that upon the death of the last survivor of Bohan’s father or mother, the assets of the trust would be distributed ten percent to the Watch Tower Bible and Tract Society and 90 percent to Bohan.

{¶ 4} On May 9, 2006, Bohan and James Kennedy, an attorney with the firm, traveled to a nursing home to meet with the father. The complaint states that Kennedy “was aware of Bohan’s father’s severe medical conditions,” but does not [449]*449otherwise state the nature of those conditions. The father indicated his desire to amend the trust by removing Watch Tower as a beneficiary with the intent of making Bohan the sole beneficiary of the trust. The father executed a handwritten statement directing the firm to amend the trust agreement to make Bohan the sole beneficiary. Bohan “believed that the Statement was an instrument sufficient to make him the sole beneficiary and to remove Watch Tower as a beneficiary.”

{¶ 5} When the father died two days later on May 11, 2006, the firm had not yet amended the trust agreement. Bohan and Kennedy later met on a different matter, at which time Kennedy reviewed the father’s statement of intent to amend the trust. He told Bohan it was “invalid” because it was “not a legal document.”

Ill

{¶ 6} Although not stated by the court as a ground for dismissing the legal-malpractice claim, we find dismissal warranted under authority of paragraph one of the syllabus to Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939: “A law firm does not engage in the practice of law and therefore cannot directly commit legal malpractice.”

{¶ 7} Bohan’s complaint named “Dennis C. Jackson Co., L.P.A.” as the sole defendant. As stated by Wuerth, only an individual may practice law. Id. at ¶ 16. Individual attorneys may associate in law firms, but law firms are merely “business entities] through which one or more individual attorneys practice their profession.” Id. at ¶ 18. Law firms do not “engage in the practice of law and therefore cannot directly commit legal malpractice.” Id. By naming only the firm as a defendant in this action, Bohan failed to name a party against whom relief in legal malpractice could be granted.

{¶ 8} Bohan acknowledges the principle set forth in Wuerth, but argues that it does not apply to this case because it was established after he filed his complaint.

{¶ 9} The rule governing application of a change in law to a case is that an intervening decision by the Supreme Court is applied retroactively unless the Supreme Court specifically decrees that the change in the law has only prospective application. State ex rel. Bosch v. Indus. Comm. (1982), 1 Ohio St.3d 94, 98, 1 OBR 130, 438 N.E.2d 415. An earlier decision is not considered to be bad law, but that it never was the law. Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 210, 57 O.O. 411, 129 N.E.2d 467. The decision in Wuerth may have been released just days before the court dismissed Bohan’s complaint, but that timing does nothing to diminish the applicability of the decision to this case. Bohan [450]*450sued a law firm and did not name any individual of the firm as a defendant. Because a law firm does not practice law, it could not be liable to Bohan for legal malpractice. Dismissal is justified on this basis.

IV

{¶ 10} Even without the rule of law set forth in Wuerth, we conclude that the court did not err by dismissing Bohan’s legal-malpractice claim.

{¶ 11} Attorneys “are not liable to a third party for the good-faith representation of a client, unless the third party is in privity with the client for whom the legal services were performed.” (Citation omitted.) Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, 887 N.E.2d 1167, at ¶ 9. See also Scholler v. Scholler (1984), 10 Ohio St.3d 98, 10 OBR 426, 462 N.E.2d 158, paragraph one of the syllabus.

{¶ 12} Privity is defined as “[t]he connection or relationship between two parties, each having a legally recognized interest in the same subject matter.” (Citation omitted.) Shoemaker at ¶ 10. In Simon v. Zipperstein (1987), 32 Ohio St.3d 74, 512 N.E.2d 636, the Supreme Court held that the beneficiary of a will whose interest had not vested lacked privity to bring a legal-malpractice action in the drafting of the will. The justification for this rule was set forth in W.D.G., Inc. v. Mut. Mfg. & Supply Co. (Nov. 4, 1976), 10th Dist. No. 76AP-366, 5 O.O.3d 397:

{¶ 13} “Some immunity from being sued by third persons must be afforded an attorney so that he may properly represent his client. To allow indiscriminate third-party actions against attorneys of necessity would create a conflict of interest at all times, so that the attorney might well be reluctant to offer proper representation to his client in fear of some third-party action against the attorney himself.” See also Simon,

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935 N.E.2d 900, 188 Ohio App. 3d 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohan-v-dennis-c-jackson-co-ohioctapp-2010.