[Cite as Hodge v. Callinan, 2019-Ohio-1836.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




RACHEL HODGE, et al.,                            :

        Appellants,                              :     CASE NO. CA2018-07-073

                                                 :            OPINION
    - vs -                                                     5/13/2019
                                                 :

MAUREEN CALLINAN d.b.a.                          :
MAUREEN CALLINAN,
ATTORNEY AT LAW,                                 :

        Appellee.                                :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             PROBATE DIVISION
                            Case No. 20141486.01



F. Harrison Green Co., LPA, F. Harrison Green, 4015 Executive Park Drive, Executive Park,
Suite 230, Cincinnati, Ohio 45241, for appellants

Schroeder, Maundrell, Barbiere & Powers, John W. Hust, 5300 Socialville-Foster Road, Suite
200, Mason, Ohio 45040, for appellee



        RINGLAND, J.

        {¶ 1} Appellants, Rachel Hodge and Danielle Arnold, appeal from the decision of the

Warren County Court of Common Pleas, Probate Division, granting summary judgment in

favor of Maureen Callinan. For the reasons detailed below, we affirm.

        {¶ 2} This matter has previously been discussed by this court in a prior appeal.
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Hodge v. Callinan ("Hodge I"), 12th Dist. Warren No. CA2017-07-114, 2018-Ohio-227. The

underlying issues concern the administration of Victoria Arnold's estate. In pertinent part,

Arnold died leaving three heirs, the two appellants and a non-party. The sole asset in

Arnold's estate was a condominium. Arnold owned an undivided one-half interest in the

condominium with her brother, Dennis Brooks. Callinan served as the estate's administrator

and attorney.

       {¶ 3} The condominium originally listed for $180,000. Several offers were made on

the condominium and eventually Callinan accepted an offer of $160,000. On March 13,

2015, the probate court approved the estate inventory, valuing the property at $163,060.

Appellants did not object to the inventory.

       {¶ 4} Appellants allege that they had trouble communicating with Callinan regarding a

final accounting for the estate. Appellants further allege they visited Callinan's office on June

1, 2015 where "Callinan held their checks in the air and told them if they wanted the money

they would need to sign consent forms [to sell the property] before she would disburse the

funds." Appellants signed the consent forms to sell the condominium and Callinan provided

them with their distributive portion of the proceeds. Callinan then filed the consent forms and

final account in the probate court.

       {¶ 5} Appellants filed exceptions to the final account and later filed a complaint in the

Warren County Court of Common Pleas on March 31, 2016. The amended complaint

alleged claims of breach of fiduciary duty and legal malpractice against Callinan and a quiet

title claim against the purchasers of the condominium ("Purchasers"). On September 19,

2016, the general division transferred the case to the probate division.

       {¶ 6} On May 19, 2017, the Purchasers moved for declaratory judgment to declare

the rights of all parties as to their interests in the condominium they purchased from the

estate. On June 20, 2017, the probate court granted the Purchasers' motion for declaratory
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judgment and the Purchasers were declared the lawful owners of the condominium.

Appellants appealed.

      {¶ 7} On appeal, appellants challenged the probate court's conclusion that they

ratified the sale of the condominium. This court overruled appellants' arguments and found

that Callinan met the statutory requirements to dispose of the property. Hodge I, 2018-Ohio-

227 at ¶ 23. This court also found that appellants consented and ratified the sale of the

condominium. Id. ¶ 25-27. As a result, this court affirmed the probate court's decision

granting declaratory judgment in favor of the Purchasers. Id. at ¶ 30.

      {¶ 8} Thereafter, Callinan moved for summary judgment on the claims asserted in

appellants' amended complaint, including breach of fiduciary duties and legal malpractice.

The probate court granted summary judgment in favor of Callinan. Appellants now appeal,

raising three assignments of error for review.

      {¶ 9} Assignment of Error No. 1:

      {¶ 10} THE TRIAL COURT'S APPLICATION OF THE LAW OF THE CASE

DOCTRINE TO THE MOTION FOR SUMMARY JUDGMENT INVOLVING DIFFERENT

LEGAL ISSUE AGAINST DIFFERENT PARTY IS NOT PROPER. (sic)

      {¶ 11} Assignment of Error No. 2:

      {¶ 12} THERE WAS A BREACH OF FIDUCIARY DUTY BY MS. CALLINAN, AS SHE

FAILED TO PROTECT THE BEST INTEREST OF PLAINTIFFS-APPELLANTS, THE

BENEFICIARIES.

      {¶ 13} Assignment of Error No. 3:

      {¶ 14} THE PLAINTIFFS-APPELLANTS LEGAL MALPRACTICE CLAIM IS NOT

BARRED BY R.C. 5815.16(A) BECAUSE MS. CALLINAN'S CONDUCTS WERE

MALICIOUS IN NATURE. (sic)

      {¶ 15} In their first assignment of error, appellants argue the probate court erred by
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applying the law-of-the-case doctrine and granting summary judgment. In their second and

third assignments of error, appellants address the specific claims against Callinan for breach

of fiduciary duty and legal malpractice. Appellants' arguments are without merit.

       {¶ 16} This court reviews summary judgment decisions de novo, which means we

review the trial court's judgment independently and without deference to the trial court's

determinations, using the same standard in our review that the trial court should have

employed. Ludwigsen v. Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008,

2014-Ohio-5493, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1)

there is no genuine issue of any material fact, (2) the moving party is entitled to judgment as

a matter of law, and (3) the evidence submitted can only lead reasonable minds to a

conclusion which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82

Ohio St.3d 367, 369-70 (1998).

       {¶ 17} The moving party bears the initial burden of informing the court of the basis for

the motion and demonstrating the absence of a genuine issue of material fact. Robinson v.

Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden is

met, the nonmoving party has a reciprocal burden to set forth specific facts showing there is

some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Vanderbilt v. Pier 27, L.L.C., 12th Dist. Butler No. CA2013-

02-029, 2013-Ohio-5205, ¶ 8.

       {¶ 18} The law-of-the-case doctrine provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan, 11 Ohio St.3d

1, 3 (1984). The rule is necessary to ensure consistency of results in a case, to avoid

endless litigation by settling the issues, and to preserve the structure of superior and inferior
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courts as designed by the Ohio Constitution. Id; Clarke v. Warren Cty. Bd. of Commrs., 12th

Dist. Warren No. CA2005-04-048, 2006-Ohio-1271, ¶ 21. The law-of-the-case doctrine is a

rule of practice rather than a binding rule of substantive law and will not be applied so as to

achieve unjust results. Washington Mut. Bank v. Wallace, 12th Dist. Warren Nos. CA2014-

02-024 and CA2014-02-031, 2014-Ohio-5317, ¶ 20.

       {¶ 19} Appellants argue the probate court improperly relied on the law-of-the-case

doctrine to resolve the merits of their claims. In so doing, appellants maintain that the

doctrine is inapplicable because this court's prior decision is different from the prior appeal

involving the Purchasers. Appellants argue that the appeal in this instance involves different

legal issues and different parties, and therefore the law-of-the-case doctrine is inapplicable.

       {¶ 20} We find the probate court did not err by granting summary judgment in favor of

Callinan. In this case, the probate court did not solely rely on the law-of-the-case doctrine to

resolve the claims against Callinan.      Rather, we find the probate court appropriately

considered the law-of-the-case doctrine and considered other relevant evidence in

determining that no genuine issue of material fact remained as to the claims against Callinan.

The result is just and furthers the judicial interest of consistency as designed by the Ohio

Constitution. Because we find that the probate court only partially relied on the law-of-the-

case doctrine, and did so appropriately, we will address appellants' remaining arguments in

light of the summary judgment evidence presented to the probate court. As a result, we find

appellants' first assignment of error is without merit and is hereby overruled.

                                  Breach of Fiduciary Duty

       {¶ 21} Appellants claim Callinan breached her fiduciary duties with respect to the sale

of the condominium. Appellants allege that Callinan sold the condominium for less than

market value, failed to obtain court approval, and failed to obtain their consent to the sale.

       {¶ 22} "A claim of a breach of fiduciary duty is basically a claim of negligence, albeit
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involving a higher standard of care." Puhl v. U.S. Bank, N.A., 12th Dist. Butler No. CA2014-

08-171, 2015-Ohio-2083, ¶ 27. "To succeed on a claim for breach of fiduciary duty, a party

must show (1) the existence of a duty arising from a fiduciary relationship; (2) a failure to

observe the duty; and (3) an injury resulting proximately therefrom." D&H Autobath v. PJCS

Properties I, Inc., 12th Dist. Fayette No. CA2012-05-018, 2012-Ohio-5845, ¶ 28.

       {¶ 23} The probate court found there was no evidence that Callinan breached her duty

by failing to communicate with appellants and by failing to keep them informed on the state of

the sale of the condominium.      In so doing, the probate court referred to this court's

determination in Hodge I wherein this court found that appellants "fail[ed] to demonstrate

they lacked full knowledge of the sale of the property before signing the written consents."

Hodge I, 2018-Ohio-227 at ¶ 26. Even assuming the communication between appellants and

Callinan fell below appellants' expectations, this court found that the evidence "does not

demonstrate they lacked full knowledge of the sale before signing the written consents." Id.

       {¶ 24} We also find the probate court appropriately granted summary judgment in

favor of Callinan on appellants' claim for breach of fiduciary duties. As this court found in

Hodge I, the sale of the condominium was proper and the improprieties alleged in that action

with respect to market value, court approval, and their consent were without merit. We

decline to alter findings of fact and conclusions of law that have previously been affirmed by

this court.

       {¶ 25} A review of the summary judgment evidence reveals that Callinan did not

breach any fiduciary duties. There was no evidence that Callinan had a conflict of interest.

Callinan testified about the various offers received on the condominium and the negotiation

process.      Callinan explained that she believed the $160,000 purchase price of the

condominium was fair and in the best interests of the estate.          Moreover, appellants

consented to the sale of the condominium despite their protests that they did not read the
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release or willfully sign. It is well-established that "[p]arties to contracts are presumed to

have read and understood them and * * * a signatory is bound by a contract that he or she

willingly signed." Preferred Capital, Inc. v. Power Engineering Group, Inc., 112 Ohio St.3d

429, 2007-Ohio-257, ¶ 10. The record reflects that appellants were motivated to receive their

distribution checks and Hodge was anxious to "be done" with the estate process. Though

appellants may now regret their decision, that does not alter the willful nature of their

signatures or allow them to undo the agreement.

       {¶ 26} Finally, appellants claim they signed the written consents under duress because

Callinan allegedly waved their distribution checks in the air and said that she would not

release the checks to them until the consent forms were signed. However, the actions

alleged do not amount to duress. To establish a right to relief upon a claim of economic

duress, one must show (1) that one side involuntarily accepted the terms of another; (2) that

circumstances permitted no other alternative; and (3) that said circumstances were the

results of coercive acts of the opposite party. Blodgett v. Blodgett, 49 Ohio St. 3d 243, 246

(1990).

       {¶ 27} Here, appellants voluntarily accepted the terms of the agreements and signed

the consent forms. Appellants had an alternative in that they could have refused to sign the

consent forms or agree to the terms negotiated by Callinan and there is no evidence that

their assent was the result of any coercive act. Conditioning the proceeds of the sale on the

signing of necessary consent forms does not amount to economic duress. As a result, we

find the probate court did not err by granting summary judgment on appellants' claim that

Callinan breached her fiduciary duties. Therefore appellants' second assignment of error is

overruled.




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                                                                     Warren CA2018-07-073

                                      Legal Malpractice

       {¶ 28} In their third assignment of error, appellants argue the probate court erred by

granting summary judgment on their claim for legal malpractice.            Pursuant to R.C.

5815.16(A):

              Absent an express agreement to the contrary, an attorney who
              performs legal services for a fiduciary, by reason of the attorney
              performing those legal services for the fiduciary, has no duty or
              obligation in contract, tort, or otherwise to any third party to
              whom the fiduciary owes fiduciary obligations.

       {¶ 29} As correctly found by the probate court, appellants failed to present any

evidence of an express agreement between themselves and Callinan. Rather, appellants'

claims are based upon implication or "words and actions" that they perceived throughout the

course of the administration of the estate. Therefore, the probate court appropriately found

that appellants failed to satisfy R.C. 5815.16(A). Furthermore, appellants' claim that Callinan

acted with malice in the administration of the estate is completely unsupported by the record.

As a result, appellants' third assignment of error is overruled.

       {¶ 30} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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