Lourdes College of Sylvania v. Bishop

703 N.E.2d 362, 94 Ohio Misc. 2d 51, 1997 Ohio Misc. LEXIS 349
CourtLucas County Court of Common Pleas
DecidedJune 4, 1997
DocketNo. CI95-3574
StatusPublished
Cited by10 cases

This text of 703 N.E.2d 362 (Lourdes College of Sylvania v. Bishop) is published on Counsel Stack Legal Research, covering Lucas County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lourdes College of Sylvania v. Bishop, 703 N.E.2d 362, 94 Ohio Misc. 2d 51, 1997 Ohio Misc. LEXIS 349 (Ohio Super. Ct. 1997).

Opinion

Charles J. Doneghy, Judge.

This declaratory judgment and tortious interference action is before the court on the separate motions for partial summary judgment filed by plaintiffs Lourdes College of Sylvania, Ohio (“Lourdes”), University of St. Michael’s College (“St. Michael’s”),- and Catholic University of America (“Catholic University”),1 and on the motion for summary judgment filed by defendant J. James Bishop II. Upon review of the pleadings, evidence, memoranda of the parties, and applicable law, the court finds that the plaintiffs’ motions should be granted and that Bishop’s motion should be denied. The court also finds that, as a result of our decision on the plaintiffs’ motions for partial summary judgment, the plaintiffs’ claims against Bishop for tortious interference are moot and should be dismissed.

I. FACTS

This case addresses the validity of a purported third amendment (“the third amendment”) to a revocable inter vivos trust (“the Trust” or “the trust agreement”) established by the elderly grantor/settlor, Rita O’Grady, on or about February 22, 1990. The Trust provided for income to be paid to O’Grady during her lifetime. Upon her death and after the payment of debts and taxes owed by her or her estate, the Trust provided for certain specific bequests and allocated the residue of her estate to four designated recipients.2

On or about August 28, 1991, O’Grady executed a first amendment (“first amendment”) to the Trust. Among other changes, O’Grady made the following changes to the residual beneficiary clause: (1) deleted the prior gifts and (2) added bequests to Lourdes (sixty percent of residual), Catholic University (twenty percent), and St. Michael’s (twenty percent).

On or about September 21, 1992, O’Grady executed a second amendment (“second amendment”) to the Trust. The second amendment made changes to the specific bequests but left the residual bequests to Lourdes, Catholic University, and St. Michael’s intact.

On or about October 7, 1998, O’Grady allegedly executed the third amendment. At the time she was convalescing in the Toledo Hospital. Earlier in the day, she had received treatment in that hospital’s intensive care unit, where she had been under soft wrist restraints after she had tried to remove a feeding tube against [55]*55the instructions of her physician. Pertinent to this case, the third amendment revoked the bequests to Catholic University and St. Michael’s, and decreased the bequest to Lourdes from sixty to fifty percent. The third amendment also purports to make Bishop a fifty-percent beneficiary of the Trust. Bishop was a family friend and, according to O’Grady’s responses on the hospital’s admissions documents, Bishop was her attorney. Bishop drafted the second amendment, served as an advisor to the Trust, and was O’Grady’s attorney-in-fact for purposes of her living will. Another attorney, Paul McCrory, claims to have drafted the third amendment. McCrory contends that he had asked Bishop to take the document to O’Grady in the hospital for her to execute it. O’Grady appears to have executed the third amendment on October 7, 1993, with Bishop looking on and two hospital employees serving as witnesses.

O’Grady died on October 25, 1993. McCrory’s office delivered the third amendment to the trustee, Key Bank (or its predecessor Society Bank),3 on October 26, 1993. The trustee brought a declaratory judgment action in the probate division of this court4 on April 6, 1995, to determine the validity of the third amendment. That case brought into question the timeliness of the delivery of the purported amendment and related questions. That action named the trustee as plaintiff and the beneficiaries listed in the Trust and the three amendments as defendants. Subsequently, Lourdes filed the instant case in this court against defendant J. James Bishop II, alleging that he exercised undue influence over O’Grady and, thereby, unlawfully and tortiously interfered with Lourdes’s expected gift from O’Grady by procuring the third amendment. Catholic University and St. Michael’s joined this action. Subsequently, the probate action was consolidated with the instant case, permitting a joint disposition of these related disputes.

. The plaintiffs and Bishop now seek a summary judgment regarding the validity of the third amendment. Bishop also seeks a summary judgment on the plaintiffs’ tortious interference claims.

II. SUMMARY JUDGMENT STANDARD

The general rules governing motions for summary judgment filed pursuant to Civ.R. 56 are well established. In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, the Supreme Court of Ohio stated the requirements that must be met before a Civ.R. 56 motion for summary judgment can be granted:

[56]*56“The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
“The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment.”

A party who claims to be entitled to summary judgment on the grounds that a nonmovant cannot prove its case bears the initial burden of (1) specifically identifying the basis of its motion and-(2) identifying those portions of the record that demonstrate the absence of a genuine issue of material fact regarding an essential element of the nonmovant’s case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, 273-274; see, also, Dresher, 75 Ohio St.3d at 299, 662 N.E.2d at 277-278 (Pfeifer, J., concurring in judgment only). The movant satisfies this burden by calling attention to some competent summary judgment evidence, of the type listed in Civ.R. 56(C), affirmatively demonstrating that the nonmovant has no evidence to support his or her claims. Id. Once the movant has satisfied this initial burden, the burden shifts to the nonmovant to set forth specific facts, in the manner prescribed by Civ.R. 56(E), indicating that a genuine issue of material fact exists for trial. Id. at 293, 662 N.E.2d at 273-274. Accord Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164, 1170-1172; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 114-115, 526 N.E.2d 798, 800-802.

III. DISCUSSION

A. DECLARATORY JUDGMENT — VALIDITY OF THE THIRD AMENDMENT

The plaintiffs and Bishop each seek summary judgment as to the validity of the third amendment. Bishop seeks a declaration that the third amendment is a valid and enforceable amendment, and the plaintiffs seek a declaration that the document is invalid.

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Bluebook (online)
703 N.E.2d 362, 94 Ohio Misc. 2d 51, 1997 Ohio Misc. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lourdes-college-of-sylvania-v-bishop-ohctcompllucas-1997.