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In Re: Estate of Richard Hohler v. Roxanne Hohler

September 26, 2011


CHARACTER OF PROCEEDINGS: Civil Appeal from Probate Court, Case No. 081109.

The opinion of the court was delivered by: DeGenaro, J.

Cite as Estate of Hohler v. Hohler,


JUDGMENT: Affirmed in Part and Reversed in Part.

JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Joseph J. Vukovich

{¶1} Plaintiff-Appellant, Estate of Richard Hohler, appeals the June 13, 2010 judgment of the Carroll County Probate Court, following a remand from this court, which ruled in favor of Defendant-Appellee, Roxanne Keiffer Hohler, who is the surviving spouse. The trial court concluded that certain items in the decedent's client file are either not attorney work product, or if they do constitute work product, are subject to discovery pursuant to the good-cause exception to the work product doctrine. On appeal, the Estate argues that the trial court erred by failing to differentiate in its judgment entry between ordinary and opinion work product, in contravention of this court's directive in our earlier opinion. The Estate also contends that the court's substantive determination regarding the discoverability of the documents in the file constitutes an abuse of discretion.

{¶2} The Estate's arguments are meritorious in part. Although the trial court did not provide a detailed judgment entry, most of the court's determinations regarding the discoverability of the documents were proper and not an abuse of discretion. Although several of the documents contain attorney opinion work product, they are discoverable as Hohler has demonstrated good cause; they contain opinion that is directly at issue in this case, the need for the information is compelling, and the evidence cannot be obtained elsewhere. However, the trial court abused its discretion with regard to one of the documents, which contains ordinary fact work product that is not relevant to the issues in this case. Accordingly, the judgment of the trial court is affirmed in part and reversed in part.

Facts and Procedural History

{¶3} This is the second interlocutory appeal in this case, which involves a dispute between the Estate and Hohler regarding the validity of a prenuptial agreement. That agreement was signed by the decedent and Hohler on June 25, 2007, and the two were married 13 days later. The agreement was prepared by the decedent's counsel, Attorney Robert Roland of the Day Ketterer law firm. Hohler was represented by separate counsel.

{¶4} The decedent died on September 8, 2008. His son filed an application to probate the decedent's will, which left nothing to Hohler. Hohler then filed an election to take against the will. A different attorney from Day Ketterer represented the Estate.

{¶5} The Estate filed a complaint for a declaratory judgment regarding the prenuptial agreement, and Hohler filed an action to void the prenuptial agreement on the grounds that there was not full disclosure of assets and that she believed the agreement dealt with divorce but not death. These actions were consolidated in the probate court.

{¶6} A discovery dispute ensued concerning the decedent's legal file. Hohler issued a subpoena to Attorney Roland to testify as a witness and to bring any and all files related to the decedent. Hohler contended that she needed the documents to invalidate the prenuptial agreement. The Estate filed a motion for a protective order and to quash the subpoena, arguing that the files relating to the decedent were protected by attorney- client privilege. The Estate later added an argument that the files pertaining to preparation of the prenuptial agreement were protected by the work-product privilege, which belongs to the attorney.

{¶7} Hohler responded and filed a motion to compel. Hohler contended that she herself was waiving the decedent's attorney-client privilege pursuant to R.C. 2317.02(A) and argued that this statute contains no limits on the scope of the waiver. In response to the work-product argument, she urged that the prenuptial agreement was not prepared in anticipation of imminent litigation.

{¶8} On March 31, 2009, the trial court issued a judgment concluding that R.C. 2317.02(A) allows Hohler to waive the attorney-client privilege for her deceased spouse without limitation. The court did not discuss the Estate's argument concerning work product. The court thus granted the motion to compel Attorney Roland to testify and to bring all the decedent's files to deposition.

{ΒΆ9} The Estate appealed to this court, arguing, inter alia, that the trial court erred by ruling that Hohler could waive her deceased husband's attorney-client privilege and that the decedent's legal file pertaining to the preparation of a prenuptial agreement specifically anticipates litigation and ...

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