[Cite as McNelis v. Crain, 2016-Ohio-8523.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


MARCIA MCNELIS, et al.,                        :        OPINION

                 Plaintiffs-Appellants,        :
                                                        CASE NO. 2016-T-0065
        - vs -                                 :

FREDERICK CRAIN, et al.,                       :

                 Defendants-Appellees.         :


Appeal from the Trumbull County Court of Common Pleas, Probate Division, Case No.
2016 CVA 0002.

Judgment: Affirmed.


Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Plaintiffs-Appellants).

Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East,
#926, Youngstown, OH 44503 (For Defendants-Appellees).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellants, Marcia McNelis, et al., appeal from the judgments of the

Trumbull County Court of Common Pleas, Probate Division, denying their motion for

summary judgment as well as the trial court’s entry of directed verdict entered in favor of

appellees, Frederick Crain, et al. For the reasons set forth in this opinion, we affirm

both judgments of the probate court.
      {¶2}   The parties to this matter are the children of Ralph Crain (“the decedent”),

who passed away on June 9, 2014. Prior to the decedent’s death, Attorney Douglas

Neuman represented him and executed his will on April 29, 2013 (“prior will”). The

decedent instructed Attorney Neuman to keep the will in his personal possession. Under

this will, each of decedent’s six children stood to inherit from his estate equally. Later,

the decedent requested Attorney Neuman to prepare and execute a second will, which

he did, on August 19, 2013.       Under this instrument, appellants were bequeathed

$10,000 each, and real property and any remainders in the estate were devised and/or

bequeathed to appellees. Attorney Neuman advised the decedent the new will could

result in a will-contest action following his death. Rather than destroy the earlier will,

they agreed that Attorney Neuman would retain the April will, along with the August will

in his possession.

      {¶3}   After decedent passed, in June 2014, Attorney Neuman admitted the

August 2013 will to probate.     Shortly after the decedent’s death, Attorney Neuman

began representing appellees in matters relating to the decedent’s estate.             On

September 3, 2014, appellants filed a will-contest action against appellees in the

Trumbull County Probate Court. Appellants challenged the validity of the August 2013

will, asserting the decedent was under appellees’ undue influence when it was

executed. The matter proceeded to jury trial, during which Attorney Neuman testified to

the existence of the prior will. The parties to the underlying matter asserted they had no

knowledge of the will prior to this disclosure.    After trial, the jury entered a verdict

invalidating the August 2013 will and the trial court entered judgment in appellants’




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favor. The matter was appealed and, in Sferra v. Shepherd, 11th Dist. Trumbull No.

2014-T-0123, 2015-Ohio-2902, this court affirmed the judgment of the trial court.

      {¶4}   On February 1, 2016, appellants filed the underlying action seeking a

declaration that appellees withheld the prior will in violation of R.C. 2107.10(A), which

provides:

      {¶5}   No property or right, testate or intestate, shall pass to a beneficiary
             named in a will who knows of the existence of the will for one year
             after the death of the testator and has the power to control it and,
             without reasonable cause, intentionally conceals or withholds it or
             neglects or refuses within that one year to cause it to be offered for
             or admitted to probate. The property devised or bequeathed to that
             beneficiary shall descend to the heirs of the testator, not including
             any heir who has concealed or withheld the will.

      {¶6}   Appellants claimed that appellees knew of the prior will for a year after the

decedent’s death, had control of the will, and without reasonable cause failed to admit it

to probate. Appellees filed an answer. Each party subsequently moved for summary

judgment.

      {¶7}   In their motion, appellees maintained appellants could not establish

appellees knew of the existence of the will within the relevant timeframe and, hence,

could not establish they had the ability to control it. Moreover, they argued that, even

after they became aware of its existence (during the will-contest proceedings), they had

reasonable cause for not admitting it to probate because they had a reasonable

expectation of prevailing in the underlying proceedings or on appeal.          Thus, they

concluded, there was no genuine issues of material fact for litigation and they were

entitled to judgment as a matter of law.

      {¶8}   In their motion, appellants asserted that, regardless of whether appellees

had actual knowledge of the will, knowledge can be imputed to them because Attorney



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Neuman, as their lawyer and agent, did have knowledge of its existence within the

relevant timeframe. Similarly, appealing to agency principles, appellants asserted that

because Attorney Neuman was in possession of the prior will, appellees had the power

to control the same. Finally, they contended there was no reasonable cause for

appellees to withhold the will from probate because, once the August will was deemed

void, they failed to seek a stay of that judgment. As a result, appellants maintained, the

April will was the only valid will and, regardless of the appellate proceedings, appellees

had no “reasonable cause for sitting on the 4/13 will.”             Accordingly, appellants

contended there were no genuine issues of material fact and they were entitled to

judgment as a matter of law.

       {¶9}   After considering the motions, the trial court determined there were

genuine issues to be litigated and therefore denied the respective pleadings.            The

matter proceeded to jury trial, at which appellants called Attorney Neuman who testified

to most of the facts set forth above. Appellants rested without presenting additional

witnesses.

       {¶10} Appellees subsequently moved for a directed verdict, asserting appellants

failed to establish appellees had any knowledge of the prior will until the will-contest trial

in November 2014; and, furthermore, even after they became aware of the instrument,

appellants failed to establish they had any control over the same.             In response,

appellants attorney admitted “[i]f this Court is not going to impute Mr. Neuman’s

knowledge to these two defendants here, then I agree with [defense counsel]. We

cannot show that these two defendants knew of the existence of the April - - these two

defendants knew of the existence of the April ’13 will from June 9 of ’14 to June 9 of




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’15.” Appellants’ counsel nevertheless argued that if the court imputes knowledge, then

appellees had the power to control the instrument by virtue of Attorney Neuman’s status

as appellees’ agent. And, because they could have admitted the April will, irrespective

of the appellate proceedings in the will-contest case, they had no reasonable cause to

withhold the same.

       {¶11} The trial court determined that appellants offered no authority, under these

circumstances, to support an imputation of knowledge from Attorney Neuman to

appellees.    The court observed that, although knowledge of an attorney is imputed to

his or her client, where, as here, the attorney gained the subject knowledge while

representing a separate client, imputation did not apply. Thus, the trial court granted

appellees’ Civ.R. 50 motion for a directed verdict. Appellant now appeals and assigns

two errors. Because the assignments of error present interrelated issues, we shall

address them together. They state:

       {¶12} “[1.] The trial court erred in denying plaintiffs’ motion for summary

judgment.

       {¶13} “[2.] The trial court erred in granting defendants’ motion for directed verdict

at the conclusion of plaintiffs’ case-in-chief.”

       {¶14} Under their assignments of error, appellants argue appellees had imputed

knowledge of the prior will as soon as they retained Attorney Neuman.            Moreover,

appellants contend that, because Attorney Neuman was their agent, they had the ability

to control the will. Finally, they contend appellees had no reasonable cause to withhold

the will from probate during the pendency of the appeal of the successful will-contest

action. We do not agree.




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       {¶15} An appellate court analyzes the denial of a motion for summary judgment

under a de novo standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, (2000).

Similarly, a motion for a directed verdict presents a question of law, and, as a result, we

review the trial court’s judgment on the motion de novo. White v. Leimbach, 131 Ohio

St.3d 21, 2011-Ohio-6238, ¶ 22.

       {¶16} In order to prevail under R.C. 2107.10(A), appellants were required to

produce evidence that appellees: (1) knew of the existence of the April 2013 will for one

year after the testator’s death; (2) had the power to control the will; and (3) without

reasonable cause, intentionally concealed or neglected to offer the will to probate within

that year.

       {¶17} Here, the decedent entrusted the prior will to Attorney Neuman in the

course of the latter’s representation of the former. And, it is undisputed that Attorney

Neuman did not disclose the existence of the prior will until appellants’ will-contest

action went to trial. Because the decedent executed a later will, the prior will was

presumptively superseded or revoked and Attorney Neuman would have had no reason

to disclose the existence of the prior will before the will-contest proceedings. See R.C.

2107.33(A)(4) (a will is revoked by “some other written will or codicil, executed as

prescribed by this chapter.”) And simply because appellees retained Attorney Neuman

after their father’s passing is insufficient for the imputation of knowledge. Although

Attorney Neuman’s knowledge of the will had some ultimate impact on appellants, they

can only be bound by or charged with knowledge of information received “in the course

of or within the scope of his employment.” Nickschinksi v. Sentry Ins. Co., 88 Ohio

App.3d 185, 193 (8th Dist.1993); see also Jewell v. Underwood, 2d Dist. Greene Co.




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No. 2000-CA-61, 2000 WL 1867565, *4 (Dec. 22, 2000). Hence, “a client will not be

affected by notice or knowledge of facts acquired by an attorney while acting on behalf

of another client.” Gerl Constr. Co. v. Medina Cty. Bd. of Commrs., 24 Ohio App.3d 59,

66 (8th Dist.1985).

         {¶18} Because Attorney Neuman acquired knowledge of the prior will while

representing the decedent, prior to appellees retaining him, that knowledge was

acquired outside the scope of Attorney Neuman’s representation of appellees and

cannot be imputed to them.       All parties gained knowledge of the will during the

November 2014 will-contest hearing and the prior will was probated within a year of the

disclosure.   On this basis alone, the trial court neither erred in denying appellant’s

motion for summary judgment nor erred in granting appellees’ motion for directed

verdict.

         {¶19} For purposes of a comprehensive analysis, we shall address the

remaining issues raised by appellants. With respect to the control prong of the statute,

an attorney’s duty to preserve a client’s confidences survives the termination of the

attorney-client relationship. Kala v. Aluminum Smelting & Refining Co., Inc., 81 Ohio

St.3d 1, 4 (1998). And, the attorney-client privilege does not cease upon the client’s

death.     Kelley v. Buckley, 193 Ohio App.3d 11, 2011-Ohio-1362, ¶36 (8th Dist.).

Attorney Neuman had a responsibility to maintain the decedent’s confidence relating to

the existence and his possession of the prior will. Attorney Neuman, not appellees,

retained and had control over the will at the decedent’s behest. Thus, even though

Attorney Neuman was retained by appellees, appellees had no authority to direct

Attorney Neuman’s actions as they related to the prior will.




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       {¶20} Finally, even if appellants could establish the initial elements of the

statute, appellees would have possessed reasonable cause to withhold admission of

the prior will to probate because the validity of the August 2013 will was an issue on

appeal with this court. Had appellees prevailed in that appeal, the August 2013 will

would have been reinstated. Accordingly, appellees possessed a reasonable basis for

withholding the admission of the prior will from probate.

       {¶21} Appellants’ assignments of error lack merit.

       {¶22} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas, Probate Division, is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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