[Cite as Berkmyer v.Serra, 2011-Ohio-5901.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




JILL BERKMYER ET AL.,                              JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Appellants,                                Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
v.

ROSEMARY C. SERRA ET Al.,                      Case No. 2011CA00068


        Appellees.                       OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 2010CV002264



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  November 14, 2011



APPEARANCES:

For Plaintiffs-Appellants                          For Defendants-Appellees

FRANK J. WITSCHEY                                  STEVEN G. JANIK
CRAIG S. HORBUS                                    COLIN P. SAMMON
405 Rothrock Road, Ste. 103                        SEAN T. NEEDHAM
Akron, OH 44321                                    9200 South Hills Boulevard, Ste. 300
                                                   Cleveland, OH 44147

Farmer, J.
Stark County, Case No. 2011CA00068                                                      2


      {¶ 1} On June 15, 2010, appellants, Jill Berkmyer, Gretchen Lab, Kimberly

Lewis, and Gretchen Lab as Trustee of the Tanya L. Green Trust, filed a complaint

against appellee, Rosemary Serra, Esq., claiming legal malpractice for negligence,

breach of fiduciary duty, and intentional interference with expectancy of inheritance.

The complaint arose from appellee's representation of Merelyn M. Molder-Hirst in

drafting her estate planning documents namely, the Merelyn M. Hirst Revocable Trust

Agreement and subsequent amendments. Appellants were named beneficiaries under

the agreement.

      {¶ 2} On November 15, 2010, appellants filed an amended complaint adding

new claims of legal practice for negligence plus conduct, conversion, unjust enrichment,

and declaratory judgment for constructive trust, and new party defendants, all

beneficiaries under the aforementioned trust agreement.

      {¶ 3} On December 30, 2010, appellee filed a motion to dismiss under Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted. Appellee argued

appellants did not have standing to bring the lawsuit as privity did not exist between the

parties, and the negligence plus conduct allegation did not rise to the level of malice

necessary to circumvent the privity requirement in legal malpractice actions. By order

filed March 8, 2011, the trial court granted the motion and dismissed appellants' claims

for legal malpractice for negligence, legal malpractice for negligence plus conduct, and

intentional interference with expectancy of inheritance. Appellants voluntarily dismissed

the remaining claims on March 28, 2011.

      {¶ 4} Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:
Stark County, Case No. 2011CA00068                                                     3


                                           I

      {¶ 5} "WITH       SUFFICIENT      ALLEGATIONS       PLEAD     IN   APPELLANTS'

COMPLAINT TO PLACE AT ISSUE WHETHER APPELLANTS SUFFERED DAMAGES

AS A PROXIMATE RESULT OF APPELLEE'S PROFESSIONAL NEGLIGENCE, THE

TRIAL COURT ERRED BY FINDING OTHERWISE AND SUSTAINING APPELLEE'S

MOTION TO DISMISS."

                                           I

      {¶ 6} Appellants claim the trial court erred in granting appellee's motion to

dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be

granted. We disagree.

      {¶ 7} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228. A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber

(1991), 57 Ohio St.3d 56.

      {¶ 8} Appellants argue despite the lack of privity between the parties, their claim

for legal malpractice is sustainable.    As the June 15, 2010 complaint sets forth,

appellants are named beneficiaries of the Molder-Hirst Trust.      Appellant Lab is the

trustee of the Tanya L. Green Trust established by the Molder-Hirst Trust.          See,

Complaint at ¶1-4. Appellee is an attorney hired as the drafter of the Merelyn M. Hirst
Stark County, Case No. 2011CA00068                                                        4


Revocable Trust Agreement and subsequent amendments.                 Complaint at ¶7-11.

Appellee represented Merelyn M. Molder-Hirst. Complaint at ¶12-14. In Counts One

and Two, appellants affirmatively state that an attorney-client relationship existed

between appellee and Mrs. Molder-Hirst.

       {¶ 9} In granting the motion to dismiss, the trial court found no privity between

the parties and no claim of malice against appellee. See, Order filed March 8, 2011. In

support, the trial court relied on the case of Simon v. Zipperstein (1987), 32 Ohio St. 3d

74, 76, wherein the Supreme Court of Ohio stated the following:

       {¶ 10} "It is by now well-established in Ohio that an attorney may not be held

liable by 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."

       {¶ 11} The trial court also relied on this court's opinion in Schlegel v.

Gindlesberger, Holmes App. No. 05 CA 11, 2006-Ohio-6917, ¶15, wherein this court

stated, "[w]e are bound by precedent to follow the Ohio Supreme Court's decision in the

Simon v. Zipperstein case." This court went on to state the following at ¶16:

       {¶ 12} "Despite our conclusion, we invite the Ohio Supreme Court to revisit this

issue because there should always be a remedy to any wrong. We find Justice Brown's

dissent in Simon v. Zipperstein, supra, persuasive as he correctly notes that, '***the use

of privity as a tool to bar recovery has been riddled***to the extent that we are left with

legal malpractice as perhaps, the only surviving relic.'      Id. at 77, 512 N.E.2d 636.

Without relaxing the concept of privity, intended beneficiaries may suffer damages
Stark County, Case No. 2011CA00068                                                        5


without any remedy and an attorney who negligently drafts a will is immune from liability

to those persons whom the testator intended to benefit under his or her will."

       {¶ 13} Appellants invite us to revisit the issue of privity in legal malpractice

actions. In doing so, appellants ask this court to embrace Justice Brown's dissent in

Zipperstein, and the concurring opinion of former Chief Justice Thomas Moyer in

Shoemaker v. Gindlesberger, 118 Ohio St. 3d 226, 2008-Ohio-2012, ¶33:

       {¶ 14} "I am persuaded that, as Justice Brown argued, the issue of an attorney's

conflict of interest does not arise if an intended beneficiary has a cause of action in

negligence for an attorney's preparation of a will. I am also persuaded that there is a

strong need for attorney accountability in preparing wills.      It serves no purpose to

continue to invoke a strict rule of privity to protect the malpractice of a lawyer when we

have abrogated that rule with respect to the liability of other professionals, such as

accountants and architects. For this reason, if presented with a different set of facts, I

would be in favor of revisiting our decision in Zipperstein in the context of the holding of

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256."

       {¶ 15} Unlike Shoemaker, this case does not include a claim for fraud, collusion,

or deception by appellee in her representation of Mrs. Molder-Hirst or a claim of faulty

legal advice. Appellants by innuendo raise a specter of undue influence exerted by Mrs.

Molder-Hirst's now deceased husband, Robert R. Hirst.

       {¶ 16} As we stated in Schlegel, supra, it is our belief that Zipperstein is binding

under the theory of stare decisis. Because of this state's long standing embrace of this

theory, we are not inclined to take a step into the abyss by going against the Supreme
Stark County, Case No. 2011CA00068                                                 6


Court of Ohio in a case that does not demonstrate the need when other remedies were

available to appellants.

       {¶ 17} The sole assignment of error is denied.

       {¶ 18} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

                                                                        By Farmer, J.

Gwin, P.J. and Delaney, J. concur.




                                            _s/ Sheila G. Farmer______________



                                            _s/ W. Scott Gwin________________



                                            _s/ Patricia A. Delaney____________

                                                         JUDGES
[Cite as Berkmyer v.Serra, 2011-Ohio-5901.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT



JILL BERKMYER ET AL.,                         :
                                              :
        Appellants,                           :
                                              :
v.                                            :        JUDGMENT ENTRY
                                              :
ROSEMARY C. SERRA ET AL.,                     :
                                              :
        Appellees.                            :        CASE NO. 2011CA00068




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellants.




                                              _s/ Sheila G. Farmer______________



                                              _s/ W. Scott Gwin________________



                                              _s/ Patricia A. Delaney____________

                                                           JUDGES
