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Jill Berkmyer et al v. Rosemary C. Serra et al

November 14, 2011

JILL BERKMYER ET AL.,
APPELLANTS,
v.
ROSEMARY C. SERRA ET AL.,
APPELLEES.



Appeal from the Court of Common Pleas, Case No. 2010CV002264

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

Cite as Berkmyer v. Serra,

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT:

Affirmed

{¶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:

I

{ΒΆ5} "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 ...


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