[Cite as In re West, 2017-Ohio-7128.]
                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


IN THE MATTER OF:                 )                CASE NO. 16 JE 0017
                                  )
        THE ESTATE OF:            )
        WILLARD V. WEST aka       )                OPINION
        W. VINCENT WEST, Deceased )
                                  )
                                  )



CHARACTER OF PROCEEDINGS:                          Civil Appeal from the Court of Common
                                                   Pleas, Probate Division, of Jefferson
                                                   County, Ohio
                                                   Case No. 2000 ES 126

JUDGMENT:                                          Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                           Monte L. Smith, Pro se
                                                   237 Frostview Drive
                                                   Steubenville, Ohio 43952

For Defendant-Appellee:                            Atty. Lawrence T. Piergallini
                                                   131 Third Street
                                                   P.O. Box 7
                                                   Tiltonsville, Ohio 43963


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                   Dated: August 4, 2017
[Cite as In re West, 2017-Ohio-7128.]
WAITE, J.


        {¶1}     Appellant Monte L. Smith appeals the decision of the Jefferson County

Common Pleas Court, Probate Division, denying his motion to reopen the estate of

Willard V. (aka W. Vincent) West (“Decedent”). Based on this record and previous

litigation on the issues raised in this matter, Appellant’s claim is barred by res

judicata. Even if Appellant’s claims were not barred, Appellant presents no new

additional evidence of fraud warranting reopening the estate. The judgment of the

trial court is affirmed.

                                  Factual and Procedural History

        {¶2}     On July 8, 1993, Decedent and his wife, Nettie West (collectively “the

Wests”) entered into two contracts with their neighbors, Robert and Dona Omaits

(“the Omaits”). The contracts were prepared by Attorney Lawrence Piergallini. In the

first, the Wests sold 80 acres of land in Smithfield Township to the Omaits for

$50,000. A deed of transfer was executed on April 26, 1994 and recorded on May 5,

1994. In a separate, second contract, the Wests granted the Omaits an option to

purchase an adjacent 38 acres of land for $25,000. The option was exercisable

within 90 days of June 1, 2003. It could be exercised earlier if Mr. West died or if the

Wests or their heirs gave notice that they desired to sell the property. The option was

contingent on completion of the purchase contract.

        {¶3}     Decedent died testate on February 22, 2000. An estate was opened in

March of 2000. Pursuant to the Decedent’s will, Appellant was appointed executor

and Attorney Piergallini was hired as the estate’s attorney. Appellant and his brother,

Craig Smith (“Craig”), were stepsons of the Decedent and each received a bequest of
                                                                                    -2-

$2,000 in the will. Decedent’s daughter was the primary beneficiary under the will

and listed as next of kin. She was bequeathed the Decedent’s house, an acre of

property and the residue of his estate.

      {¶4}   On May 16, 2000, Appellant signed a fiduciary deed transferring the 38

acres subject to the option contract with the Omaits and acknowledging their

payment of $25,000. The deed was recorded the following day.

      {¶5}   In February of 2012, twelve years after Decedent’s death, Craig filed

two civil actions against Attorney Piergallini which were consolidated in the Jefferson

County Court of Common Pleas. Those actions, relating to both the 80-acre parcel

and the 38-acre parcel respectively, asserted claims for breach of contract and legal

malpractice. Craig contended that Piergallini committed legal malpractice in allegedly

hiding $25,000 in funds from the estate and colluding with the Omaits to draft deeds

which failed to reserve the mineral rights in both transactions against the wishes of

the Wests.    The trial court granted summary judgment in favor of Piergallini,

concluding that no contract existed between Craig and Piergallini and that they did

not have an attorney-client relationship.    The trial court also concluded that the

statute of limitations had run on these claims. Craig did not file an appeal of that

decision but filed a complaint with the Ohio Supreme Court Disciplinary Council,

which concluded that disciplinary action against Piergallini was not warranted.

      {¶6}   In March of 2015, Craig filed two civil actions against the Omaits (15 CV

88; 15 CV 113). In the first, Craig sought to recover the 38 acres and nullify the

fiduciary deed. The complaint alleged that Attorney Piergallini filed false documents
                                                                                      -3-

in court and that the estate was owed an additional $25,000 from the Omaits

pursuant to the option to purchase contract. In the second action, Craig sought to

recover the 80-acre parcel of land and nullify the 1993 purchase agreement and

deed. In both complaints, Craig alleged the Wests never intended to relinquish their

mineral rights in the property and that the Omaits colluded with Attorney Piergallini to

deceive the Wests into signing contracts that failed to reserve these mineral rights.

In addition to seeking recovery of the land, Craig sought to recover any oil and gas

proceeds generated from the property since the date of transfer. The two civil cases

were consolidated. The trial court entered summary judgment in favor of the Omaits,

concluding, among other things, that Craig lacked standing and that the claims were

barred by the statute of limitations. Craig appealed to this Court and we affirmed the

trial court’s decision. Smith v. Omaits, 7th Dist. No. 15 JE 0018, 2016-Ohio-1442.

       {¶7}   Appellant filed his pro se motion to reopen the estate on May 16, 2016.

In it, he alleged that a handwritten document introduced into evidence by the Omaits

in Craig’s previous civil action “clearly and convincingly describes the [mineral] rights

to be reserved, and a reasonable person could easily infer that the only reason why

the Omaits and Piergallini would have kept this information from Applicant was to

obtain the property upon more favorable terms than those to which Applicant would

have otherwise agreed.”       (5/16/16 Application to Reopen Estate and Appoint

Fiduciary, p. 5.) Appellant claimed that, but for the alleged fraud by Piergallini and

the Omaits, he would not have signed off on the fiduciary deed drafted by Piergallini

when the Omaits exercised their option to purchase the additional acres. Appellant
                                                                                    -4-

also asserted that the handwritten document served as evidence that the 1993 deed

signed by the Wests was fraudulently drafted by Piergallini as it purposefully left out

the reservation of mineral rights desired by the Wests.

       {¶8}     A hearing was held on June 21, 2016 at which Piergallini, Craig and

Appellant were present. At the outset of the hearing, Piergallini orally moved to

withdraw as counsel for the estate, should there be a question as to his role in the

matter. Neither Craig nor Appellant objected. The trial court granted Piergallini’s

request and Piergallini excused himself from the hearing. The trial court asked the

brothers if they wished to make any statements on the record. Appellant stated that

he was the executor of the estate and that newly discovered evidence had been

found which warranted a reopening, namely, the handwritten document which had

been submitted by the Omaits in Craig’s previous action.        This was an undated

handwritten paper allegedly written by Decedent in which he agreed to transfer the

80-acre parcel for $50,000 and the 38-acre parcel for $25,000. The trial court noted

that this was not newly discovered evidence as it had been presented in the previous

civil action.

       {¶9}     Appellant requested that his brother, Craig, speak on behalf of the

estate and be appointed executor due to Appellant’s “health, education and delivery

skills.” (6/21/16 Tr., p. 5.) Even though he was not a named party to this matter,

Craig was allowed to speak. Craig presented the court with arguments similar to

those he asserted in his earlier attempts at litigation: that the Wests intended to

retain the mineral rights to the property and that the handwritten document supported
                                                                                   -5-

that contention. The trial court expressed the view that the handwritten document

actually supports the notion that all of the mineral rights were intended to pass with

the 80-acre parcel except the rights to coal. These rights would revert to the owner

of the property after 15 years, at the expiration of the coal lease.       The court

calculated that expiration occurred in 2009. The court noted that the Wests signed

the original deed in 1993 and that this deed contained the provision addressing the

lease of the coal rights. The court also stated that absent a showing of fraud, the

deed would be deemed valid. Craig contended that Piergallini did commit fraud

when he drafted the 1993 deed that did not conform to the Wests’ desires. The court

responded that Craig’s allegations amounted to “a separate action against Mr.

Piergallini, which by the way has already occurred but that’s where the action would

be. The action would be against the attorney, not against the people that accepted

the deed that these folks signed.” (6/21/16 Tr., p. 14.)

       {¶10} Again, it was Craig who presented all of the arguments in this matter to

the trial court. Aside from his initial request, Appellant never again addressed the

trial court other than to confirm his address and request that he be removed as

fiduciary of the estate and that his brother be appointed as his replacement. The

court informed Appellant that he was no longer the fiduciary, as he had been

discharged upon the closing of the estate, and that if the estate were reopened an

appointment of fiduciary would be made.

       {¶11} The trial court issued a judgment entry in this matter on June 23, 2016.

A nunc pro tunc entry was issued on June 30, 2016 because the court had incorrectly
                                                                                    -6-

named Craig as the petitioner on the application to reopen. The court held that the

issues of fraud and improper representation raised by Appellant had been

adjudicated in previous legal proceedings and that reopening of the estate was not

warranted.

      {¶12} Appellant filed this pro se appeal, setting forth two assignments of error.

                          ASSIGNMENT OF ERROR NO. 1

      THE PROBATE COURT ERRED BY DENYING APPELLANT'S

      APPLICATION TO REOPEN DECEDENT'S ESTATE, BASED UPON

      AN INCORRECT FINDING THAT THE ISSUES APPELLANT SEEKS

      TO LITIGATE ON BEHALF OF THE ESTATE WERE ALREADY

      DECIDED ON THE MERITS IN A PRIOR CIVIL ACTION.

      {¶13} In his first assignment of error, Appellant contends the trial court erred

in denying his motion to reopen Decedent’s estate based on the conclusion that

Appellant’s claims were decided in a prior civil action. Appellant argues that: (1) the

previous litigation was brought by Craig and resolved based on Craig’s lack of

standing to sue. Because Appellant does have standing, that same rationale does

not apply to Appellant and his claims are not barred by res judicata, and (2) as

Appellant was not a party to the previous action nor is Appellant in privity with his

brother, res judicata does not apply.

      {¶14} The decision on whether to grant a motion to reopen an estate is within

the sound discretion of a probate court. In re Estate of Smith, 3d Dist. No. 13-02-37,

2003-Ohio-1910, ¶ 11. The decision of the trial court will not be disturbed absent an
                                                                                     -7-

abuse of discretion. Pyle v. Pyle, 11 Ohio App.3d 31, 463 N.E.2d 98 (1983). An

abuse of discretion is one in which the decision of the trial court is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶15} R.C. 2109.35 governs reopening of a settled fiduciary estate and reads,

in pertinent part:

       The order of the probate court upon the settlement of a fiduciary’s

       account shall have the effect of a judgment and may be vacated only as

       follows:


       (A) The order may be vacated for fraud, upon motion of any person

       affected by the order or upon the court’s own order, if the motion is filed

       or order is made within one year after discovery of the existence of the

       fraud.


       ***


       An order settling an account shall not be vacated unless the court

       determines that there is a good cause for doing so, and the burden of

       proving good cause shall be upon the complaining party.

       {¶16} Thus, Appellant had the burden to demonstrate by clear and convincing

evidence that a fraud was committed with regard to the estate and was required to

bring that claim within one year after the discovery of the existence of the fraud.

Appellant alleges fraud occurred based on the fact that a document allegedly written
                                                                                    -8-

by the Decedent which predates the purchase agreement and option to purchase

contract in this matter shows an intent to preserve mineral rights in the subject

property but the deed executed by the Wests and the purchase option for the second

parcel of land failed to preserve these rights for the Decedent. Appellant alleges

Attorney Piergallini and the Omaits colluded to have the Wests sign the purchase

agreement that lacked a reservation of mineral rights provision. Further, Appellant

alleges that because the 38-acre parcel in the purchase option was worth $50,000

but was sold for only $25,000, Piergallini may have retained an additional $25,000

and not included it in the final accounting of the estate.

       {¶17} The defects in Appellant’s case are twofold. Most notably, the claims

raised in this matter are identical to those brought by Appellant’s brother in the two

civil actions filed against Attorney Piergallini, as well as in the two civil actions

brought against the Omaits.       While this latest attempt may have been filed by

Appellant, not Craig, the record shows the underlying claims are identical and the

arguments advanced at hearing were all made by Craig and not Appellant.

       {¶18} Res judicata pertains to claim preclusion. A valid final judgment on the

merits bars all further actions based on any claim that arises (or could arise) out of

the transaction or occurrence which formed the subject matter of the previous action.

Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. Res

judicata serves to bar any further litigation of a claim once a final judgment on the

merits of the claim has been issued. The doctrine of res judicata bars a claim when

the following four elements are met: (1) there is a final, valid decision on the merits
                                                                                     -9-

by a court of competent jurisdiction; (2) there is a second action that involves the

same parties, or their privies, as the first action; (3) the second action raises claims

that were or could have been litigated in the first action; and (4) the second action

arises out of a transaction or occurrence that was the subject matter of the first

action. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954,

¶ 84.

        {¶19} Appellant now seeks to reopen this estate based on the same claims

and allegations asserted by his brother in four previous civil actions.       Appellant

contends that as Craig was never a fiduciary of the estate and was never

represented by Piergallini, these claims could not have been properly raised in the

prior cases. Appellant also contends that he could not have joined the previous

Omaits litigation and named Piergallini as a defendant in those cases because he

was unaware he had a claim against Piergallini at that time. He says he did not know

about the handwritten document until he engaged in a conversation with his brother

after summary judgment had been granted to the Omaits.               Finally, Appellant

contends res judicata should not apply because he is seeking a monetary judgment

and not the return of the property. These arguments are not persuasive.

        {¶20} Based on a review of the record, the trial court was correct in

concluding that Appellant’s fraud claim is barred because the claims alleged have all

been previously litigated in prior civil actions. Appellant ignores the fact that in the

first set of consolidated cases, Smith v. Piergallini, Jefferson Co. Case No. 12 CV 96

and 12 CV 103, Craig alleged that in Piergallini’s capacity as attorney for the Wests
                                                                                      -10-

and in the handling of the estate Piergallini committed legal malpractice.            The

complaints contained claims for breach of contract, negligence due to legal

malpractice, and intentional conduct due to legal malpractice. As the defendant in

those actions, Piergallini denied all allegations and set forth affirmative defenses that

included failure to state a claim, statute of limitations, res judicata, and lack of

standing by Craig to bring the action. The trial court granted summary judgment in

favor of Piergallini in those previous civil actions based on a number of reasons.

While Craig’s breach of contract claims failed because there was no contract

between Craig and Piergallini, the trial court also held that the statute of limitations to

bring the claim had run, and that Craig failed to demonstrate any basis for his legal

malpractice claims against Piergallini. Craig did not appeal any part of that decision,

instead filing a complaint with the Office of Disciplinary Counsel in which it was

determined that an investigation was not warranted.

       {¶21} In the second set of consolidated cases, Craig filed against the Omaits

alleging essentially the same claims. Craig sought to recover the 38-acre parcel and

nullify the fiduciary deed prepared pursuant to the option to purchase, arguing that

Piergallini filed false documents in the probate court because the estate was owed an

additional $25,000 from the Omaits under the option to buy contract. Craig also

sought to recover the original 80-acre parcel and nullify the 1993 deed because he

claimed the Omaits colluded with Piergallini to defraud the Wests into relinquishing

their mineral rights. The trial court granted judgment in favor of the Omaits, and it

was affirmed on appeal to this Court. While the trial court did rule, in part, that Craig
                                                                                    -11-

lacked standing to raise certain of his claims, the court also ruled that the statute of

limitations had run. Thus, the courts in both sets of earlier cases issued rulings on

the merits of the claims. We also note that Craig relied on the same handwritten

document to advance his claims that Appellant now attempts to use.

       {¶22} At the hearing on this matter, it was Craig and not Appellant who

argued to the court all of these same issues, although Craig is not a party in the

present action. Apparently attempting to circumvent the determination that he lacked

standing, Craig instead enlisted his brother to file the instant action, alleging all the

same claims he had earlier raised against the same parties, Piergallini and the

Omaits, in the long history of this matter. This case is also based on the identical

evidence from the earlier litigation. Based on the foregoing, the trial court did not

abuse its discretion in determining that the claims alleged in the instant action are

barred by the doctrine of res judicata. Appellant’s first assignment of error is without

merit and is overruled.

                          ASSIGNMENT OF ERROR NO. 2

       THE      PROBATE         COURT        ERRED        BY       REPEATEDLY

       ACKNOWLEDGING           THE     POSSIBILITY      OF     A   FRAUD      BY

       APPELLANT'S        PROBATE     ATTORNEY,       AND      THEN    DENYING

       APPELLANT'S APPLICATION TO REOPEN DECEDENT'S ESTATE.

       {¶23} In his second assignment of error, Appellant alleges the trial court erred

in denying Appellant’s motion to reopen the case because the “judicially imposed

‘burden of proof’” required should not apply. (Appellant’s Brf., p. 13.) Essentially,
                                                                                  -12-

Appellant argues he should be subject to a lower burden of proof than clear and

convincing.

      {¶24} Appellant contends the trial court, at hearing, repeatedly noted that a

possibility of fraud may exist. As such, Appellant claims that the clear and convincing

burden of proof should not apply in the instant case but rather an “abuse of

discretion” standard, likening the matter to a Civ.R. 60(B) motion.

      {¶25} Appellant’s contentions are problematic for many reasons.            First,

Appellant filed a motion to reopen the estate based on fraud pursuant to R.C.

2109.35(A). As such, Appellant is bound by the statutory requirements.

      The elements of fraud are:


      (a) a representation or, where there is a duty to disclose, concealment

      of a fact,


      (b) which is material to the transaction at hand,


      (c)     made falsely, with knowledge of its falsity, or with such utter

      disregard and recklessness as to whether it is true or false that

      knowledge may be inferred,


      (d) with the intent of misleading another into relying upon it,


      (e) justifiable reliance upon the representation or concealment, and


      (f) a resulting injury proximately caused by the reliance.
                                                                                  -13-

Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986),

paragraph two of the syllabus.     Fraud must be shown by clear and convincing

evidence.   Mathe v. Fowler, 13 Ohio App.3d 273, 275, 469 N.E.2d 89 (1983).

Although Appellant argues for a lower burden of proof, in Ohio, it has long been the

standard that allegations of fraud must be shown by clear and convincing evidence.

In re Estate of Nyhuis, 113 N.E.2d 700, 704 (8th Dist.1952). Appellant incorrectly

contends that R.C. 2109.35 does not specifically require the standard to be clear and

convincing. R.C. 2109.35(A) provides only three ways to vacate a probate court

order settling a fiduciary’s account: (1) a showing of fraud, by motion of any person

affected by the order or on the court's own order; (2) a showing of good cause, other

than fraud, by motion of any person affected by the order who was not a party to the

proceeding in which the order was made and who had no knowledge of the

proceeding in time to make an appearance; and (3) good cause shown on motion of

the fiduciary. R.C. 2109.35.

      {¶26} Appellant has brought his claim against Piergallini under the first option,

alleging fraud. As such, Appellant is bound to adhere to the requirements for proving

fraud. Appellant contends that since this matter does not involve a fraud by the

fiduciary, which he contends is usually the case, the usual requirements in a fraud

matter do not apply.

      {¶27} We have held that fraud must be shown by clear and convincing

evidence. In re Estate of Ramun, 7th Dist. No. 08 MA 124, 2010-Ohio-6405, ¶ 29

citing Mathe. In Ramun, we held that the probate court did not err in overruling the
                                                                                  -14-

appellant’s fraud claim when it was based on broad allegations of fraud with no

evidentiary support. Id. at ¶ 66.

       {¶28} Appellant mischaracterizes the trial court in arguing that the judge

“acknowledged the possibility of fraud” by Piergallini. Actually, the court was merely

pointing out that Appellant’s claims, such as they are, are not really directed towards

any action or inaction of the Omaits but, instead, are directed at the estate’s lawyer.

Regardless, Appellant’s claims against the lawyer fell woefully short. Appellant did

not offer any new evidence to demonstrate that the purchase agreement, deed, and

option contract were fraudulently drafted or that Decedent was unlawfully coerced

into entering into them. At the hearing on the reopening, Appellant attempted to

utilize a handwritten document, allegedly drafted by Decedent and submitted into

evidence by the Omaits at their previous hearing against Craig, as evidence of

fraudulent conduct by Piergallini.     However, as noted by the trial court, the

handwritten document was not new evidence and, if anything, proved that Decedent

intended to enter into the purchase agreement and option contract with the Omaits.

Several years passed after the filing of Craig’s case against Piergallini. Appellant

had plenty of time in which to look for and produce any evidence that Piergallini

fraudulently drafted the purchase documents or option contract. If he had any direct

knowledge of wrongdoing, Appellant could have submitted a sworn affidavit as to

these issues, but did not. This record reflects that in his attempt to vacate the final

distribution of the estate, Appellant failed to establish any fraud by clear and
                                                                                -15-

convincing evidence. Appellant’s second assignment of error is without merit and is

overruled.

      {¶29} Based on the foregoing, as Appellant’s claims were raised and decided

on the merits in prior legal proceedings involving the same issues, defendants, and

evidence, they are barred by res judicata. Moreover, the trial court did not err in

concluding that Appellant failed to present clear and convincing evidence warranting

a reopening of the estate on the basis of some alleged fraud pursuant to R.C.

2109.35(A). The judgment of the trial court is affirmed.


DeGenaro, J., concurs.

Robb, P.J., concurs.
