IN THE SUPREME COURT OF 0I6. Plaintiff-Appellant, Court of Appeals Case No.: 06AP O 7' 8" JAMES L. RYAN,

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1 IN THE SUPREME COURT OF 0I6 JAMES L. RYAN, 7 O 7' 8" V. Plaintiff-Appellant, On Appeal from the 10`t' District Court of Appeals Franklin County, Ohio PAUL L. WRIGHT, et al. Defendants-Appellees, Court of Appeals Case No.: 06AP-962 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT JAMES L. RYAN Robert G. Palmer ( ) Robert Gray Palmer Co., LPA 140 East Town Street, Suite 1200 Columbus, Ohio (614) (614) Fax bobgrgp almerlaw. com COUNSEL FOR APPELLANT JAMES L. RYAN David A. Herd John C. Nemeth & Associates 21 East Frankfort Street Columbus, Ohio (614) (614) Fax herd a nemethlaw.com COUNSEL FOR DEFENDANTS-APPELLEES PAUL L. WRIGHT and PAUL L. WRIGHT CO., LPA

2 TABLE OF CONTENTS Paee EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTIONS... STATEMENT OF THE CASE AND FACTS... 4 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 7 Proposition of Law No. 1: An attorney is not immune from liability to third persons named in a will arising from his performance as attorney for the testator where the attorney's negligence prior to the testator's death and without the testator's knowledge is a proximate cause of the invalidation or contesting of the will Proposition of Law No. 2: An attorney is not inunune from liability to third persons named in a will arising from his performance as attorney for the testator where the attorney's malicious or bad faith actions prior to or after the testator's death is a proximate cause of the invalidation or contesting of the will CONCLUSION PROOF OF SERVICE APPENDIX Appx. Page Opinion of the Franklin County Court of Appeals (Mar. 6, 2007)... Judgment Entry of the Franklin County Court of Appeals (Mar. 6, 2007) i

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST Ohio citizens are repeatedly encouraged to have a will so that their property is passed on to those they want to receive it. Lawyers encourage them to become their clients. The clients trust and pay the lawyers to prepare a valid will in order to ensure that their intentions will be carried out. These clients rightfully expect that their last will and testament will be both valid and not subject to challenge due to their lawyer's negligence in the execution or safekeeping of their wills. These clients rightfully expect that their testamentary scheme would actually work lest their beneficiaries be deprived of their intended share. The very interest that the lawyer was hired and paid to protect is vitiated when their lawyer's negligence in the execution or safekeeping of their will causes the testator's intended beneficiaries to lose all or part of the property devised or bequeathed to them. How then will the testator's intentions be fulfilled? Obviously, the deceased testator can do nothing. The intended beneficiary is not a beneficiary of the estate. And, at what surely would be a great surprise to the testator, the lawyer is not accountable to the intended beneficiary. But there is nothing that the beneficiary can do to recoup his loss. Cheated out of the property devised to him, he has absolutely no recourse. The lawyer is untouchable for his negligence, and knows it. This is wrong. The law assiduously protects the right of Ohio citizens to dispose of their property by will. Legal malpractice that destroys that right should not be protected by this Court. This issue is an important matter of public and great general interest to all present and future Ohio testators and their beneficiaries. It is also a matter of public and great general interest that testators be represented by lawyers unafraid of being sued by someone not his client, the third party beneficiary. If the lawyer acts appropriately in the best interests of his client and with the client's knowledge, the 1

4 lawyer has done what he was hired to do and cannot be sued by an intended beneficiary. He has a"qualifted immunity" from such third-party suits. Scholler v. Scholler (1984), 10 Ohio St.3d 989. This case raises the issue of how this Court will balance these two matters of law and public policy in order to fashion a clear rule of when the intended beneficiary has standing to sue the testator's lawyer for negligence and for "malicious" acts occurring before the testator dies and without the testator's knowledge. In Scholler, the original rule of "qualified immunity" for lawyers against third party suits was stated in Syllabus 1: 1. An attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously. Id. Since Scholler, this Court has explained, if not expanded, the concept of "privity" in these types of cases. Simon v. Zipperstein (1987), 32 Ohio St.3d 74, 77, 512 N.E.2d 636, which, applying Scholler, found no "privity" since the will beneficiary was not "vested;" Elam v. Hyatt Legal Serv., Inc. (1989), 44 Ohio St.3d 175, 177, 541 N.E.2d 616), where the Simon beneficiary was described as "vested" for legal malpractice purposes; and, Arpadi v. First MSP Corp. (1994), 68 Ohio St.3d 453, 628 N.E.2d 1335, where fiduciary duty between the client and the third party created "privity". In this case, the Tenth Appellate District adopted the definition of "privity" described in Sayyah v. Cutrell, 143 Ohio App.3d 102, 111, 757 N.E.2d 779 (12th Dist. 2001). Citing Scholler, that court held that "privity" exists when the interest of the client and the interest of the third party were mutual or concurrent. Id. at However, even though Ludwick's interest and Ryan's, his intended beneficiary, interest are clearly concurrent and mutual -- both wanted 2

5 the will to be carried out - the Tenth Appellate District, applying Simon, found no "privity" since the legal malpractice occurred before the testator died. There is reluctance, if not disagreement, among several Ohio courts of appeal on applying Simon in this way. It eliminates entirely legal malpractice suits by third parties if the malpractice occurred prior to the testator's death and, contrary to Scholler, without the testator's knowledge. In this case, the court of appeals suggested that the law on "privity" is unclear owing to rulings after Simon by this Court, specifically Elam, which stated that the Simon beneficiary actually appeared to be "vested". Elam at 177 (including fn.2). The court of appeals reminded readers that it had previously suggested that this Court issue a clear ruling that balances the public policy in favor of testators with the public policy that lawyers are under the duty to represent his client's interests, not those of another. Dykes v. Gayton, 139 Ohio App. 3d 395 (10' Dist. 2000). Although certiorari was granted, the appeal was later dismissed on joint application. Dykes v. Gayton (2000), 90 Ohio St.3d 1442, 736 N.E.2d 903; Dykes v. Gayton (2001), 91 Ohio St.3d 1466, 743 N.E.2d 921. It is a matter of public and great general interest that this Court issue such a clear rule now by accepting jurisdiction of this case. There is also disagreement among Ohio courts of appeals on the meaning of the "malice, bad faith, fraud or collusion" exception to qualified immunity for lawyers in these circumstances. Some of these courts, including the Tenth Appellate District in this case, have added a required element of "ulterior motive" by the attorney before the "malice" exception applies to allow a third party to sue. As a result, these courts require proof of an intentional act with animus of ill will before a third party can enforce the testator's intentions by holding the testator's lawyer accountable for his "malicious" conduct. This requirement is contrary to the express rulings by this Court. 3

6 If allowed to stand, the decision of the court of appeals in this case would gut the established right of intended beneficiaries to hold accountable a testator's lawyer, who through malicious or negligent actions, caused the beneficiary to lose all or part of the property he was to receive. Only this Court can clarify the current uncertainty about the meaning of "privity" for these types of legal malpractice cases. Only this Court can state clearly the elements of "malice" for these types of legal malpractice cases. Thus, this case places squarely before this Court the issue of whether an Ohio testator, with a valid will, can truly die in peace knowing that his property will pass to those he intended to receive it. If that testator dies without knowing that his lawyer has done or not done something which then causes his will to fail, that testator's intentions should be fulfilled by making his lawyer accountable and liable to his intended beneficiaries. There is no compelling reason to cloak the lawyer with immunity from these beneficiaries. There are compelling reasons to allow these beneficiaries to sue the lawyer. The lawyer's misconduct should not be shielded from the public. The lawyer should be held accountable by those adversely affected. That is the only way that his deceased client's interests can be protected. This Court should grant jurisdiction to hear this case and review the erroneous and unjust decision of the court of appeals. STATEMENT OF THE CASE AND FACTS This case arises from the attempt of appellant James Ryan to sue appellee Paul Wright and his law firm for legal malpractice. Ryan was a devisee in Tom Ludwick's will. Wright, who was Ludwick's lawyer, drafted and had Ludwick execute the will. It was done properly. Thereafter, before Ludwick died, Wright defaced the will with words calling Ludwick's competency into question when it was executed. A will contest by heirs not named in the will 4

7 ensued. As a result, Ryan did not receive the property devised or its full value. Ryan sued Wright for legal malpractice seeking to recover the balance of the value of the lost property. Facts Paul Wright, an Ohio lawyer since 1978, represented Thomas Ludwick for estate planning purposes from 1994 to In October 1996, Ludwick advised Wright that he wanted to make some changes to his will. The change was significant in that he wanted specifically to devise a 705 acre farm to James Ryan and another of his farms to John Trimmer. Ryan and Trimmer took care of Ludwick and ran his farming business during his later years. Ludwick wanted to take care of them. From the spring of 1996 until he died on February 18, 1997, Ludwick's health began to fail, having good days and bad days. In October, Wright met with Ludwick for purposes of drafting the new will. Wright believed Ludwick to be competent and drafted a will to carryout his intention to give Ryan and Trimmer their respective farms. Ludwick, as many elderly people in failing health do, would have good days and bad days. Wright was looking for a time when he believed Ludwick was competent to sign the new will. That day came on January 22, Consistent with Wright's practice, he spent 45 minutes and maybe an hour and 15 minutes going over the provisions of the will in detail and making sure that he believed Ludwick was competent to sign the will. Wright believed Ludwick was competent on that date and secured the services of the nursing home director, who also witnessed the will. Despite the fact that Ludwick was competent when he properly executed the will on January 22, 1997, Wright permitted Ludwick to be examined for competency by a psychologist, Dr. Robert Fathman, on January 25, To Wright's surprise, Fathman concluded that Ludwick was not competent to execute a will on January 25, Wright had decided not to 5

8 tell Fathman that Ludwick had already executed a will three days before. Wright had hoped that Fathman would find Ludwick competent and that he would have Ludwick execute the same will again. Instead, Wright felt that he was under a great deal of "pressure" due to Fathman's finding that Ludwick was incompetent on January 25, Significantly, Fathman never told Wright that he believed that Ludwick was incompetent on January 22, 1997, the day Wright had Ludwick execute his will. Two days later, on January 27, 1997, Wright instructed his assistant to write "VOID" on each page of the will. Then, on the first page, Wright personally wrote "Void since incompetent per Dr. Fathman on 1/25/97. Paul L. Wright." He now says that "I just overreacted." However, Wright never talked with his client again. And, Wright did not provide that will to the executors for administration after Ludwick's death. After protracted litigation over admission of the 1997 will, a will contest ensued. Wright admits that his actions of defacing Ludwick's will with the word "VOID" certainly suggested to Ludwick's heirs that Wright believed Ludwick was not competent at the time he signed the will. The will contest action alleging Ludwick's incompetency was settled in Ryan did not get the 705 acre farm that Ludwick wanted him to receive. The value of this farm was 1.16 million dollars. Ryan received $466,500.00, making his economic losses likely between $397, and $700, On these facts the trial court granted summary judgment stating that Ryan did not have standing to sue for negligence and that there was no evidence of "malice" by Wright. The Tenth Appellate District affirmed the summary judgment. 6

9 Ryan now timely seeks this court to accept jurisdiction to review this erroneous and unjust opinion from the court of appeals since these issues are of public and great general interest. Proposition of Law No. 1. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW An attorney is not immune from liability to third persons named in a will arising from his performance as attorney for the testator where the attorney's negligence prior to the testator's death and without the testator's knowledge is a proximate cause of the invalidation or contesting of the will. This Court in both Simon and Elam embraced the syllabus of Scholler which stated that: An attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third party is in privity with the client or the attorney acts maliciously. Emphasis added. Thus, "qualified immunity" only attaches if the attorney's performance is (1) in good faith on behalf of the client and (2) with the client's knowledge. Since Scholler and Simon, this court has broadened the concept of "privity" for legal malpractice purposes to include situations where there is a fiduciary duty between the client and the third-party. Elam, supra (executor and beneficiary); Arpadi, supra (general partner and limited partners). The issue of "privity" based upon the fiduciary duty between majority and minority shareholders in close corporations is not the pivotal question in LeRoy v. Allen Yurasek & Merklin, 162 Ohio App.3d 155 (Ohio Ct. App.3d Dist. 2005), 832 N.E.2d 1246, cert. granted, (Feb. 8, 2006) and consolidated under case No Rather, LeRoy concerns whether the complaint adequately pled "collusion" in order to defeat the attorney's claim of qualified immunity. In Elam, this Court pointedly explained that contrary to its holding in Simon, the Simon testamentary beneficiary appeared to be "vested" and was not a mere "potential" beneficiary. It 7

10 did so apparently to insure that readers, who thought at "first blush" that Elam was inconsistent with Simon, would understand that it was not. Elam at 177 (including fn.2). In this case the court of appeals followed In re Edward T. Lombardo, a decision by the Bankruptcy Appellate Panel of the United States Sixth Circuit Court of Appeals. That case is presently on appeal. United States Court of Appeals for the Sixth Circuit, Case No In its Opinion, the BAP characterized the statement in Elam that the beneficiary in Simon was "vested" as "troublesome," but then dismissed it. The court of appeals in this case agreed, although more reluctantly. It also disregarded the analysis in Brinkman v. Doughty, 140 Ohio App.3d 494 (Ohio Ct. App. 2"d Dist. 2000), which held that through Elam and Arpadi, the Ohio Supreme Court had in essence abandoned the Simon "privity" rule. Id. at 498. The Brinkman court relied upon the statement in Elam, at 177 (including fn. 2), that the Simon beneficiary was "vested", which the Lombardo court dismissed as "equivocal" and "dicta." Brinkman was published after the two cases relied upon by the court of appeals and the BAP in Lombardo, namely, Lewis v. Star Bank, N.A., Butler Cty., 90 Ohio App.3d 709 (Ohio Ct. App. 12`h Dist. 1993), and Smith v. Brooks, No , 2000 Ohio App. LEXIS 4167 (Ohio Ct. App. 8`h Dist. Sept. 14, 2000), both of which strictly applied Simon to bar third party claims of malpractice that occurted prior to the testator's death. This conflict among Ohio courts of appeals was acknowledged by the court of appeals in this case when it referred to its Dykes decision and its more recent decision in Lutz v. Balch, No. 06AP-247, 2006 Ohio App. LEXIS 4479 (Ohio Ct. App. 10`h Dist. Aug. 31, 2006), cert denied 112, Ohio St.3d 1445 (Jan. 24, 2007), in which it also applied Simon to preclude suit by decedent's children from suing the decedent's attorney for malpractice in estate tax planning. In Lombardo, the appellant (Mingus) was clearly the intended beneficiary of the testator, who did not know that his will had been improperly executed by his attorney, Lombardo. The 8

11 testator never changed that will before his death. In this case, the appellant (Ryan) was clearly the intended beneficiary of the testator, who did not know that his will had been defaced and not properly kept safe by his attorney, Wright. The testator never changed that will before his death. Contrary to Lewis and Smith, the court in Sayyah v. Cutrell, 143 Ohio App.3d 102, , 757 N.E.2d 779 (12`h Dist. 2001) held, citing Scholler and Arpadi, that: For legal malpractice purposes privity between a third person and a client exists where the client and a third person share a mutual or successive right of property or other interests. Id. at 17. Scholler required the courts to compare the interests of the client and the third party. There, the mother's interest in negotiating a separation agreement regarding marital assets was deemed different from her child's interest in the father paying appropriate child support. Scholler at 104. The child could not sue the mother's lawyer for negligence. Applying this type of analysis to the instant case, Ryan's interest and Ludwick's interest were the same or "mutual" or "concurrent". They both wanted Ludwick's will to be carried out. As such, Ryan should have standing to sue Wright. This test of a"concurrent" or "mutual" interest between the third-party and the client was adopted in Swiss Reinsurance Am. Corp., Inc. v. Roetzel & Andress, 163 Ohio App.3d 336 (Ohio Ct. App. 9`h Dist. 2005) and the court of appeals in this case. If the mutual interest test is applied to the Simon facts, clearly the beneficiary in Simon had the same type of mutual interest as Ryan had as a result of Ludwick's will. In other words, if the beneficiary in Simon is "vested" for legal malpractice purposes, so is Ryan. Under the Sayyah test, Ryan and Ludwick clearly had concurrent interests and shared a mutuality of interest. Wright was to protect Ludwick's interest so as to ensure that his intended beneficiary, Ryan, received a particular farm. Ryan would have received that farm had Wright not been negligent. 9

12 In Brinkman, the court found that the wrongful death beneficiaries' rights would have been "vested" under Simon when the auto accident occurred. That was the tort which gave rise to their potential recovery. The wrongful death beneficiaries' right to recover was already vested since the tort had already occurred. Brinkman at 501. Since the underlying tort was complete, the wrongful death beneficiaries' claims were not contingent. The fact that a potential wrongful death beneficiary could have predeceased the mother before she died from her injuries did not defeat that beneficiary's recovery. Here, the tort of legal malpractice occurred before Ludwick's death. There is nothing contingent about this tort. As in both Lombardo and this case, the fact that the testator could have changed his will should not be determinative. In Brinkman, the fact that a potential wrongful death beneficiary could have predeceased the person wrongfully killed did not defeat that beneficiary's recovery. Similarly, in both Lombardo and this case, the fact that the testator could have changed his will should not be determinative. Two policy considerations require balancing. The Dykes court put it this way: "We believe, however, that appellant's raise a persuasive public policy argument which requests that we balance the public policy that supports the right of the testator to make a will and have its provisions carried out with the public policy that favors some imnmunity for attorneys, as against lawsuits by third-parties so that the attorney may properly represent his client without the fear of indiscriminate third-party actions. Scholler, Simon. This case may indeed be appropriate for review by our state's highest court, and we would respectively invite the same." Dykes, 139 Ohio App.3d at 398. This Court should now hold clearly that: An attorney is not immune from liability to third persons named in a will arising from his performance as attorney for the testator where the attorney's negligence prior to the testator's death and without the testator's knowledge is a proximate cause of the invalidation or contesting of the will. 10

13 This rule would not open any floodgates to or allow "indiscriminate third-party actions," which the Simon court sought to preclude. See also, Restatement of the Law, Third, The Law Governing Lawyers 51. Rather, it properly provides to the very person to whom the testator devised or bequeathed his bounty a remedy to seek redress against the testator's lawyer if, without the testator's knowledge, that lawyer failed to ensure that the will is properly executed or negligently caused the will to be challenged. Proposition of Law No. 2. An attorney is not immune from liability to third persons named in a will arising from his performance as attorney for the testator where the attorney's malicious or bad faith actions prior to or after the testator's death is a proximate cause of the invalidation or contesting of the will. The court of appeals held that "malice" requires proof of "ulterior motive" by the lawyer. Contrary to its statement, this holding was in fact a departure from that court's previous decision in Hahn v Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057 at 67. In Hahn, that court actually noted that there was a spilt of authority in Ohio on whether "ulterior motive" needs to be shown. It did not adopt the "ulterior motive" requirement then. Id. However, it did so in this case. Thus, the court of appeals dispensed with Ryan's allegations of both malicious and bad faith acts by Wright since Ryan testified that he did not think Wright tried to "hurt" anyone by what he did. Ryan's testimony is hardly dispositive on the issue of Wright's malice and bad faith. Actions speak louder than words. Yet, the court of appeals found that since there was no evidence that Wright acted "intentionally," there is no issue of fact that malice or bad faith had been presented. This holding joins two other courts of appeals that improperly restricted this Court's rulings regarding the elements of the "malice, bad faith, fraud and collusion" exception to an attorney's "qualified immunity." Id. 11

14 Wright's conduct at the very least raises a question of fact as to whether it was done maliciously or in bad faith. Wright's repeated and specific efforts to invalidate his client's will was wholly contrary to his client's interest and Ryan's interest in having the will carried out. Wright did so by determining to and having his client evaluated for competency after the will was properly executed, by defacing his client's will, by personally writing on the will "Void since incompetent per Dr. Fathman on 1/25/97. Paul L. Wright," by his failure to communicate his actions to his client, and, tellingly, by his conscious attempt to keep the defaced will from the co-executors. Moreover, Wright's subsequent file notes and testimony suggest that Wright was more worried about his personal liability than carrying out his client's interests during the postexecution and pre-death period. This is conduct evidencing malice and bad faith as contemplated by Simon and Scholler. Wright's actions were done without his client's knowledge. Thus, "qualified immunity" cannot attach. The fact that some of these malicious and bad faith acts were done before and some after Ludwick died demonstrates why standing for third parties to sue for both pre and post death actions is essential. CONCLUSION This case is of public and great general interest because both present and future Ohio testators' wills are subject to ruination if their lawyer, without their knowledge, has committed or commits malpractice before they die. Named beneficiaries are "in privity" with the testator because their interests in having the will carried out is concurrent and mutual. Those beneficiaries should have standing to sue the testator's lawyer for negligently causing loss of all or part of the intended property. Those beneficiaries should also have standing to sue the 12

15 testator's lawyer for acts done "maliciously" or in bad faith without having to prove that the lawyer had an ulterior motive in committing malpractice. Respectfully submitted, Rob4rt G. Palmer ( ) Robert Gray Palmer Co., LPA 140 E. Town Street, Suite 1200 Columbus, Ohio (614) (614) Fax Attorney for Appellant CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served by regular U.S. Mail, postage prepaid upon the following this 20th day of April, David A. Herd John C. Nemeth & Associates 21 East Frankfort Street Columbus, Ohio Attorney for Defendants-Appellees Paul L. Wright and Wright Law Co., LPA Robe 13

16 James L. Ryan, IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT c(erif cou^ ^^^ ^ "ipr(of 1; l^ ofi URTZ^ S V. Paul L. Wright et al., Ptaintiff-Appellant, No. 06AP-962 (C.P.C. No. 04CVA ) (REGULAR CALENDAR) Defendants-Appellees. 0 P I N I O N Rendered on March 6, 2007 Robert Gray Palmer Co., LPA, and Robert G. Palmer, for appellant. John C. Nemeth appellees. & Associates, and David A. Herd, for APPEAL from the Franklin County Court of Common Pleas. BROWN, J. {11} James L. Ryan, plaintiff-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court granted summary judgment to Paul L, Wright (individually "Wright") and Wright Law Co., L.P.A., defendants-appellees (collectively "appellees"). {12} Wright is an attorney for Wright Law Co., L.P.A. In July 1994, Wright prepared a will for Thomas Ludwick. In October 1996, Wright met with Ludwick at the nursing home where Ludwick resided to discuss the drafting of a new will. Wright drafted 1

17 No. O6AP the will, in which Ludwick devised a 705-acre farm to appellant. During this period, Ludwick was more lucid on some days than others, as a result of his advanced age, medications, and overall medical condition. On January 22, 1997, Wright received a telephone call from staff at Ludwick's nursing home informing him that Ludwick was lucid that day. Wright returned to the nursing home, and, after adjudging Ludwick to be competent, had Ludwick sign the new will ("1997 will"), with a nursing home director acting as a witness. { 3} On January 25, 1997, Wright had Ludwick examined for competency by Dr. Robert Fathman, whom Wright had scheduled to examine Ludwick prior to the January 22, 1997 signing. Wright had intended to have Ludwick sign the will again after Dr. Fathman found Ludwick to be competent. Dr. Fathman determined that Ludwick was not competent on that day, but Wright did not tell Dr. Fathman that Ludwick had signed the 1997 will three days prior. On January 27, 1997, Wright instructed one of his employees to write on every page of Ludwick's 1997 will "void," and Wright wrote "void since incompetent per Dr[.] Fathman on 1/25/97" on the first page. Wright never spoke to Ludwick again, and Ludwick died three weeks later. {14} Litigation ensued with regard to the defaced 1997 will, with certain of Ludwick's heirs contesting its admission to probate. The probate court did not admit the 1997 will to probate, and appellant in the present case appealed in that case. In In re Ludwick (May 24, 1999), Fayette App. No. CA , the court of appeals reversed the probate court and found that the 1997 will should have been admitted to probate. In 2003, appellant settled the matter with Ludwick's heirs. As part of the settlement, appellant received $466,500. The value of the 705-acre farm was over $1,000,000. 2

18 No. 06AP {151 On October 8, 2004, appellant brought a legal malpractice action against appellees, arguing that Wright acted maliciously and negligently when he indicated on the 1997 will that the will was void and Ludwick was incompetent. On June 19, 2006, appellees filed a motion for summary judgment, asserting: (1) appellant did not have standing to sue appellees; (2) writing "void" on the will did not render it invalid; thus, such could not serve as a basis for appellant's damages; and (3) appellant chose to settle with the heirs rather than obtain a judicial determination of his rights; thus, appellant was estopped from pursuing the action for malpractice. On September 1, 2006, the trial court granted the motion for summary judgment, finding that appellant did not have standing to assert a claim for malpractice against appellees. Appellant appeals the judgment of the trial court, asserting the following assignments of error [I.] THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. [II.] THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT BY FINDING THAT PLAINTIFF-APPELLANT PRESENTED NO EVIDENCE THAT DEFENDANT-APPELLEE ACTED MALICIOUSLY AFTER THE TESTATOR EXECUTED HIS WILL SO AS TO CREATE FOR PLAINTIFF-APPELLANT STANDING TO SUE DEFENDANT-APPELLEE. [III.] THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT BY FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER DEFENDANT-APPELLEE ACTED MALICIOUSLY AFTER THE TESTATOR EXECUTED HIS WILL[.] [IV.] THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT BY HOLDING THAT AN INTENDED, NON-RELATIVE BENEFICIARY IN AN OHIO WILL DOES NOT HAVE STANDING TO SUE THE 3

19 No. 06AP TESTATOR'S LAWYER FOR NEGLIGENCE WHICH PROXIMATELY CAUSES THE WILL TO FAIL. (16} We will address appellant's second, third, and fourth assignments of error together, as they are related. In these assignments of error, appellant argues that the trial court erred in finding that he had no standing to bring a cause of action for legal malpractice against appellees. Appellate courts consider an appeal from summary judgment-under a de novo standard of review, which requires an independent review of the trial courts decision. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Thus, this court applies the same standard as the trial court, viewing the facts of the case in a light most favorable to the non-moving party. Civ.R. 56(C); Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. Summary judgment is proper under Civ.R. 56 when: (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-moving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. To prevail on a motion for summary judgment, the moving party must be able to point to evidentiary materials that show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burf (1996), 75 Ohio St.3d 280, 293. Civ.R. 56(E) provides that, after the moving party has satisfied its burden of supporting its motion for summary judgment, the non-moving party may overcome summary judgment by demonstrating that a genuine issue exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447,

20 No. 06AP {17} To establish a case for legal malpractice one must prove three elements: (1) the attorney owed a duty; (2) there was a breach of that duty and the attorney failed to conform to the standard of care required by law; and (3) there was a causal connection between the conduct complained of and the resulting damage. Vahila v. Hal! (1997), 77 Ohio St.3d 421, 427. If a plaintiff fails to establish a genuine issue of material fact as to any of the foregoing elements, the defendant is entitled to summary judgment on a legal malpractice claim. Advanced Analytics Laboratories v. Kegler, Brown, Hil! & Ritter, 148 Ohio App.3d 440, 2002-Ohio-3328, at 34. {18} Appellant asserts he sustained damages as a result of appellees' negligent actions regarding the 1997 will and that he is entitled to damages as a result of appellees' conduct. Attorneys in Ohio enjoy a qualified immunity from liability to a third party arising out of acts he or she takes while representing a client. Hahn v. Satullo, 156 Ohio App.3d 412, 2004-Ohio-1057, at 69. An attorney is immune from liability to 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. Scholler v. Scholler (1984), 10 Ohio St.3d 98, paragraph one of the syllabus. The rationale for this tenet is that "[t}he obligation of an attorney is to direct his attention to the needs of the client, not to the needs of a third party not in privity with the client." Simon v. Zipperstein (1987), 32 Ohio St.3d 74, 76. The fear of indiscriminate third-party suits against attorneys would make attorneys reluctant to offer zealous client representation. ld. 119} Appellant concedes that he had no attorney-client relationship with Wright, and, therefore, appellant must demonstrate that either he was in privity with Ludwick or 5

21 No. 06AP Wright acted with malice. With regard to privity, "[f]or legal malpractice purposes, privity between a third person and the client exists where the client and the third person share a mutual or successive right of property or other interest." Sayyah v. Cutrell (2001), 143 Ohio App.3d 102, , citing Arpadi v. First MSP Corp. (Apr. 23, 1992), Cuyahoga App. No , and Black's Law Dictionary (7th Ed.Rev.1999) 1217 (defining privity as "[t]he connection or relation between two parties, each having a legally recognized interest in the same subject matter"). In determining privity, the trial court must first examine the interest that the original attorney-client relationship was intended to protect and then compare it to the interest of the third person bringing suit for the alleged legal malpractice. Sayyah, at 112, citing Scholler, at 104. Privity exists if the interest of the client is concurrent with the interest of the third person. Id. {110} This court recently addressed privity undercircumstances similar to those in the present case in Lutz v. Balch, Franklin App: No. 06AP-247, 2006-Ohio In Lutz, an attorney prepared a will and trust agreement for the parents of the plaintiff, their son. Each of the parents' revocable trusts became irrevocable upon their deaths. The mother died, her will was admitted to probate, and the trust was administered for the benefit of the father. The attorney then prepared, and the father executed, an updated will and an amended trust. The father died several months later, and his will was admitted to probate. The son filed a malpractice action against the attorney with regard to her preparation of his parents' wills and trusts. The attorney filed a motion for summary judgment, which the trial court granted, concluding the son lacked the necessary privity to maintain a legal malpractice claim. 6

22 No. 06AP {111} This court affirmed the trial courk's granting of summary judgment, relying upon the Ohio Supreme Court's decision in Simon, in which the court held that, in the absence of fraud, collusion, or malice, the potential beneficiary under a wiil cannot sue the testator's lawyer for legal malpractice in the drafting of the will because the beneficiary, a son, did not have a vested interest and was not in privity. Citing Simon, we concluded privity was likewise lacking in Lutz. Id., at 19. We found that the son was only a potential beneficiary because his parents reserved the right to revoke or amend their trusts during their lifetimes. Because the mother's trust was administered for the benefit of the father, the son was still only a potential beneficiary until the death of his father, at which point the son's interest in his father's estate vested. The attorney provided no legal services subsequent to the death of the husband, when the son had a vested interest. Thus, we determined the son lacked the necessary privity to maintain a legal malpractice action against the attorney. Id., at 11, citing Lewis v. Star Bank, N.A. (1993), 90 Ohio App.3d 709, and Smith v. Brooks (Sept. 14, 2000), Cuyahoga App. No {9t12} This court has followed Simon and reached the same conclusion as that reached in Lutz in at least one similar case, albeit with some reservation. In Dykes v. Gayton (2000), 139 Ohio App.3d 395, we found the intended beneficiaries of a will who filed a malpractice action against the drafting attorney lacked privity to bring the action. Id. However, we noted that the intended beneficiaries raised a persuasive public policy argument that may be appropriate for review by the state's highest court. Id. Other appellate courts are in agreement with our decision in Lutz and cite Simon as authority, although at least one court has expressed similar reservations as did this court in Dykes. See, e.g., Schlegel v. Gindlesberger, Holmes App. No. 05 CA 10, 2006-Ohio

23 No. 06AP (finding that a beneficiary or purported beneficiary of a will lacks privity in an action for legal malpractice against attomey who drafted a will and survivorship deed on behalf of the decedent, but inviting the Ohio Supreme Court to revisit this issue because intended beneficiaries should have a remedy for damages suffered against attorney who negligently drafts a will); Lewis, supra (noting that, as long as the decedent retained the power to revoke the trust during her lifetime, her children had no absolute entitlement to anything, as their interests were subject to complete divestment while the decedent was alive, resulting in the decedent's children lacking the necessary privity to sue for mistakes arising from pre-death advice to the decedent); Smith, supra (concluding that, because plaintiffs' interests were not vested under the revocable trust until the decedent's death, piaintiffs lacked privity to maintain a legal malpractice action against defendant attorneys). {113} The Ohio Supreme Court has injected some uncertainty into the authority of Simon. In Elam v. Hyatt Legal Serv., Inc. (1989), 44 Ohio St.3d 175, the Ohio Supreme Court held that the executor of an estate, as a fiduciary of the estate, owed a duty to beneficiaries to act in a manner that protected the beneficiaries' interests, thus placing the beneficiaries in privity with the executor: Id., at 176. Although the court stated that, "[ajt first blush," this holding appeared to contradict Simon, the court distinguished Simon by pointing to the lack of doubt about the status of the beneficiaries in its current case, as the beneficiaries were remaindermen with a clearly vested interest. In a footnote, though, the court went on to note "without comment" that, "while the holding in [Simon], supra, was based largely on the fact that the person in question was only a potential beneficiary, a review of the facts seems to indicate that the person's interest was vested." Id., at 177, fn. 2. Elam was followed by the Second District Court of Appeals in Brinkman v. Doughty 8

24 No. 06AP (2000), 140 Ohio App.3d 494, to conclude that the statutory wrongful death beneficiaries were in p(vity with the executor of the decedent's estate, and, thus, the beneficiaries could maintain an action against an attorney who represented the decedent's estate and wrongful death action, alleging the attorneys failed to represent their interests in settling the wrongful death action. {9[14) Notwithstanding the footnote in Elam, the Ohio Supreme Court has never extended Simon to a third party who was an intended beneficiary of a will but who had no "vested" interest. Both Elam and Brinkman still relied upon the general holding of Simon that the interest of the third party must be "vested," though both courts broadened the definition of that term. This case is dissimilar to Elam and Brinkman in that appellant was neither Ludwick's wrongful death beneficiary with a statutorily vested interest or a remainderman with a clearly vested interest. As in Simon, appellant's interest was merely contingent at the time of the alleged malpractice. Appellant contends that his right as a beneficiary of Ludwick's will was vested prior to his death because Ludwick was incompetent from the date of Dr. Fathman's incompetency finding on January 25, 1997, until the date of his death February 18, 1997, and, thus, could not change his will during this period. However, Dr. Fathman's incompetency finding was only pertinent to the date of the examination, as Ludwick had days that were more lucid than others, and there is no evidence that Ludwick remained incompetent for the remainder of his life. Clearly, the bequest in Ludwick's will was still potentially subject to possible divestment as long as Ludwick remained alive. Therefore, the present circumstances are akin to those in Simon, which has never been overruled, rather than to those in Elam and Brinkman. 9

25 No. 06AP {115} We agree with the comments of the United States Bankruptcy Appellate Panel for the Sixth Circuit in In re Lombardo (6th Cir.BAP June 9, 2006), 347 B.R. 115, which discussed the "vested" issue in Simon and Elam in affirming the bankruptcy courts order to disallow a beneficiary's claim against a debtor attorney for legal malpractice arising out of the execution of the will of the debtor's client. The court (n fn re Lombardo concluded the beneficiary did not have standing to sue the debtor as the beneficiary was not in privity with the testator. In so finding, the court followed Simon and was unable to conclude that Elam constituted a repudiation of Simon because: (1) the comment in Elam was in a footnote and was equivocal ("a review of the facts seems to indicate"). In re Lombardo, quoting Elam, at 177, fn. 2; (2) the comment was dicta because the cases involved disparate facts: in Simon, the issue was whether a potential beneficiary under a will was in privity with the will's testator, while.elam involved the question of whether privity arises as a result of a fiduciary relationship; (3) although the footnote in Elam suggests a questioning of Simon, the body of the Elam decision upholds Simon, with the court explaining how its ruling is consistent with Simon. In re Lombardo, quoting Elam, at 177 ("[a}t first blush, today's holding would seem to contradict this court's holding in Simon v. Zipperstein, supra. In the case before us, however,"); and (4) most importantly, Ohio courts have continued to recognize the validity of Simon, notwithstanding the "cryptic" Elam footnote, citing this court's case in Dykes, supra, as a "faithful application" of Simon, as well as Lewis, supra; and Smith, supra. ty[16} In addition, we note the Twelfth District Court of Appeals in Lewis followed Simon and found Simon and Elam were actually consistent with each other, in that both cases required the beneficiaries to be vested at the time of the alleged malpractice. That 10

26 No. 06AP court pointed out that the error by the attorney in Elam occurred as a post-death error, that is, the attorney made an error in estate administration after the death of the testator by negligently transferring the entire fee in real estate to the life tenant, thereby divesting the beneficiaries/remaindermen under the will. Thus, the right of these remaindermen in Elam to sue the attorney was for a post-death error, and their interests were fully vested after the death of the testator. {117} Consistent with Lewis, to the extent appellant argues he had a mutuality of interest with Ludwick, we agree with the courts comments in In re Lombardo. The court in In re Lombardo, quoting Lewis, noted that the status of those seeking to sue must be examined at the time the claimed mistakes occurred. As in In re Lombardo, in the present case, at the time the negligent execution of the will took place, the testator was still alive and had the right to change his will or completely give. away his estate during his lifetime, regardless of its effect on the named beneficiaries in his will. Thus, while it may be true that the interests of appellant and Ludwick became mutual upon Ludwick's death, mutuality was lacking at the time the alleged cause of action arose here. Thus, in this respect, our decision is consistent with Elam. {118} For these reasons, based upon Simon, Lutz, and Dykes, we find appellant had no vested interest in Ludwick's estate until Ludwick's death. Therefore, privity was lacking because appellant was merely a potential beneficiary of Ludwick's estate at the time of the alleged malpractice. {119} Pursuant to Scholler, appellant can still have standing to bring an action against appellees if he demonstrates Wright acted with malice. The Ohio Supreme Court suggested in Simon that an attorney acts maliciously when special circumstances "such 11

27 No. 06AP as fraud, bad faith, [or] collusion" are present. Id., at This court has defined "malice" in the context of these types of cases to include actions taken by the attorney with an ulterior motive separate and apart from the good-faitii representation of the client's interests. Hahn, supra, at 67, citing Thompson v. R & R Srvc. Sys., Inc. (June 19, 1997), Franklin App. No. 96APEIO-1277; see, also, Wolfe v. Little (Apr. 27, 2001), Montgomery App. No ; Fallang v. Hickey (Aug. 31, 1987), Butler App. No. CA Malice has also been defined in this context to 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.' " Moffrtt v. Litteral, Montgomery App. No , Ohio-4973, at 82, quoting Black's Law Dictionary (6u' Ed.1990) ] In his complaint, appellant claims that Wright's alleged malice was demonstrated by Wright.writing. "void" and. other words on Ludwick's 1997 will and by asserting that Ludwick was not competent per Dr. Fathman without any reasonable basis and contrary to his own belief. After a review of the record, we find appellant has failed to raise a genuine issue of material fact that Wright acted with malice. While Wright's actions may support a claim for negligence, they do not, in themselves, demonstrate malice, and, in fact, appellant concedes as much in his deposition' testimony. When appellant was asked, with regard to his claim of maiice, whether he had "any facts or evidence that Paul Wright was trying to hurt someone here, that Paul [W]right meant or intended to really hurt someone here?" appellant replied, "No, I don't have any - not intentionally." Appellant also fails to suggest in his testimony that Wright undertook his actions with an ulterior motive apart from the good-faith representation of the client or to purposefully injure another. Specifically, appellant stated he had no evidence that Wright having Dr. 12

28 No. 06AP Fathman examine Ludwick or writing "void" on the will was done for Wright's benefit either monetarily or otherwise. Further, appellant testified that Wright told him during a probate hearing that he had made a mistake, which may indicate of negligence, but not malice. {121} The other testimony submitted also fails to establish the requisite malice on Wright's behalf. Wright testified that the pressure was very high to execute Ludwick's wishes in the 1997 will, and when he heard Dr. Fathman's opinion, he "just overreacted" by having his assistant write "void" on the pages. Also, although appellant points to the testimony of his legal expert, Kevin Heban, that, when Wright wrote "void" on the will he seemed "more interested in "** protecting himself against a case like this than advancing his client's interest," such evidence fails to indicate that Wright sought purposely to injure anyone or acted with ill will. Another of appellant's legal experts, Jon Hoffheimer, testified that it appeare.d to him that Wright thought he had made a "mistake" and, "for whatever reason," wrote "void" on the will after "los[ing] his confidence" and "thinking that the will should not have been signed." {9[22} Further, although Wright may have considered his own liability in writing "void" on the will, this act did not have a motive "separate and apart" from the good-faith representation of Ludwick's interests, as discussed in Hahn, supra. Wright's act of writing "void" was inseparably connected to his belief that Ludwick's will was invalidly executed and would not carry out Ludwick's intentions. Although possibly misguided, Wright's actions were based upon his sincere belief that Ludwick had been incompetent at the time of the signing. There is no evidence in the record Wrights actions were undertaken with purpose to disregard Ludwick's rights or wishes. Therefore, we find no genuine issue as to any material fact exists, and the trial court was correct in finding appeilant lacked 13