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Zimpfer v. Roach

Court of Appeals of Ohio, Third District, Shelby

November 6, 2017


         Appeal from Shelby County Common Pleas Court Probate Division Trial Court No. 2015 CVA 00001

          Richard Kolb for Appellants.

          James L. Thieman for Appellees.


          SHAW, J.

         {¶1} Plaintiffs-appellants, Blake and Courtney Zimpfer ("Appellants"), appeal the February 27, 2017 judgment of the Shelby County Court of Common Pleas, Probate Division, journalizing the jury's verdict in favor of defendants-appellees, Sandra S. Roach and Peggy A. Hall, et al. ("Appellees"), on Appellants' will contest claim, finding that Appellees did not exert undue influence over their father, Robert E. Zimpfer ("Jake"), when he executed his last will three weeks prior to his death. Appellants also appeal the judgment of the same court overruling their motion for a new trial.

         {¶2} On appeal, Appellants assign error to several procedural rulings on discovery matters made by the trial court and argue that the trial court erred in granting summary judgment on their claim that Jake lacked the requisite testamentary capacity to execute the contested will. Some fifteen months after the case had been pending through various phases of discovery and motion practice, Appellants retained new counsel. In many respects, the assignments of error arise from the trial court's responses to the efforts of new counsel to revisit a number of issues pertaining to the prior course of the litigation.

         Relevant Factual Background

         {¶3} Jake died on September 6, 2014. Jake had three children: defendant-appellee, Sandra Roach, defendant-appellee, Peggy Hall, and David Zimpfer, who pre-deceased Jake. Jake had six grandchildren: plaintiffs-appellants, Blake and Courtney Zimpfer, who are David's children; and defendants-appellees Rebecca Roach, Andrea Roach, Bradley Hall, and Heather Hall, who are Sandra's and Peggy's children.

         {¶4} On August 15, 2014, three weeks before his death, Jake executed his Last Will and Testament at the nursing home where he died, revoking his prior existing will. The record indicates that Jake's prior existing will mirrored that of his wife's, Grace, who predeceased him, and divided the residue of his probate estate in equal thirds between the children, Sandra, Peggy, and David, with Appellants receiving their father's share as his heirs. The most valuable asset contained in the residue of Jake's probate estate was the family farmland worth approximately $1, 235, 800, with the total residue being valued at $1, 478, 700.

         {¶5} In his Last Will and Testament, Jake bequeathed $5, 000 to each of his six grandchildren and changed his prior existing will to bequeath the residue of his probate estate equally between his two living children, Sandra and Peggy, who were also appointed as Co-Executors. Thus, in Jake's Last Will and Testament, Appellants were no longer receiving any part of the residue of Jake's probate estate as their Father's heirs.

         Relevant Procedural History

         {¶6} On February 11, 2015, Appellants, represented by their first counsel of record, filed a "Will Contest Complaint" against the other beneficiaries under Jake's August 15, 2014 Will-i.e., their two aunts and four cousins. Appellants asserted three counts in their complaint: (1) that Jake's Last Will and Testament was invalid because it did not comply with the requirements of R.C. 2107.03; (2) that Jake lacked the testamentary capacity to execute his Last Will and Testament; and (3) that Sandra and Peggy exerted undue influence over Jake when he executed his Last Will and Testament, which resulted in Sandra and Peggy receiving a greater share of Jake's probate estate while diminishing what Appellants would have received under Jake's prior existing will as their father's heirs. Appellees timely filed an answer generally denying the allegations contained in the complaint and asserting numerous defenses.

         {¶7} On July 10, 2015, Appellants filed a motion to compel, requesting the trial court issue an order compelling Appellees to fully respond to their previously tendered discovery requests. Specifically, Appellants sought the production of a copy of every will ever drafted for Jake, the attorney's file containing any notes, correspondence, memos, drafts, and copies of any attorneys for Jake showing the drafting and execution of any wills or estate planning documents, as well as Jake's medical records in Appellees' possession and a signed medical authorization form. Appellees objected to producing these items on privilege and/or relevance grounds.

         {¶8} The trial court on its own motion ordered Appellees to make the files related to the contested discovery issue available for an in-camera inspection.

         {¶9} On October 22, 2015, the trial court issued a "Judgment Entry/Orders on Discovery." With respect to the requested materials relating to Jake's prior wills and the attorney's file, the trial court denied Appellants' motion to compel on the grounds that the requests were overbroad and that Appellants had failed to show good cause for an order compelling the production of the requested materials. However, the trial court granted the motion to compel relating to the medical records and necessary authorizations in Appellees' possession.

         {¶10} The record indicates that discovery proceeded to be exchanged between the parties and, on December 29, 2015, Appellees filed a motion for summary judgment. Appellants filed their memorandum in opposition to Appellees' motion for summary judgment on January 26, 2016.

         {¶11} On February 1, 2016, the parties submitted their witness and exhibit list and proposed jury instructions in contemplation of the jury trial scheduled for February 22, 2016, pending the trial court's ruling on Appellees' summary judgment motion. The following day, Appellees filed their reply to Appellants' memorandum in opposition to summary judgment.

         {¶12} On February 25, 2016, Appellants filed a notice of appeal from the trial court's January 26, 2016 Judgment Entry overruling, in part, their motion to quash the Appellees' subpoena for certain items in discovery unrelated to this appeal. Appellees filed a cross-appeal from the same judgment. As a result of the pending appeal, the trial court deferred its ruling on summary judgment and vacated the scheduled trial date.

         {¶13} On July 5, 2016, while the intervening appeal was still pending, Appellants filed a notice of substitution of new counsel.

         {¶14} On July 11, 2016, new counsel for Appellants sought leave to file an amended complaint in order to assert an additional claim seeking to set aside certain inter vivos transfers of assets based upon their assertions that they had only recently learned about the bank accounts and insurance policies in question. The trial court ultimately overruled Appellants' motion for leave to amend their complaint on July 21, 2017, finding that Appellants were aware of these accounts and policies, which were included in the inventory when the contested will was admitted to probate and that Appellants failed to timely amend their complaint.

         {¶15} On July 22, 2016, new counsel for Appellants filed a "Motion for Extension of Time to Respond to Defendants' Motion for Summary Judgment" pursuant to Civ.R. 56(F). The Civ.R. 56(F) motion contained an affidavit of Appellants' new counsel stating that more time was needed to conduct discovery to respond to Appellees' motion for summary judgment, despite the fact that Appellants' prior counsel had already filed a response to the summary judgment motion several months earlier. Appellees filed a response opposing the Civ.R. 56(F) motion; specifically contending that new counsel was simply attempting to get "a second bite at the apple" on discovery matters and other issues that had already been unsuccessfully argued by his predecessor and were resolved by the trial court's October 22, 2015 Judgment Entry. (Doc. No. 84 at 3).

         {¶16} On August 1, 2016, this Court issued its decision on the appeal involving the unrelated discovery matter.

         {¶17} On August 3, 2016, without leave of court and while their Civ. R. 56(F) request was still pending, Appellants filed "Plaintiffs' Supplement to Memorandum in Opposition to Defendant's Motion for Summary Judgment." Approximately a week later, the trial court overruled Appellants' Civ.R. 56(F) motion for extension of time finding "no good cause exists to grant Plaintiffs relief at this advanced stage in the proceedings." (Doc. No. 88 at 2).

         {¶18} On September 12, 2016, the trial court issued a decision on Appellees' motion for summary judgment on the three claims asserted in Appellants' original complaint. The trial court found: (1) that the admission of Jake's Last Will and Testament by the Probate Court represented prima facie evidence that the will was valid and complied with the requirements of R.C. 2107.03. The trial court also found that Appellants did not present any evidence to rebut this presumption; and (2) that Appellants failed to present evidence establishing that Jake did not possess the requisite testamentary capacity at the time he executed the August 15, 2014 Will. Therefore, as to these two claims the trial court found that no genuine issue of material fact existed and granted Appellees' motion for summary judgment.

         {¶19} However, as to claim (3) of the original complaint, the trial court found that a genuine issue of material fact existed as to whether Sandra and Peggy exerted undue influence over Jake when he executed the August 15, 2014 Will. The trial court found Appellants' claim that Sandra and Peggy had a confidential and fiduciary relationship with Jake by virtue of the Power of Attorney that was granted to them created a presumption of undue influence, which was a question of fact that must be resolved by the jury. Accordingly, the trial court overruled Appellees' motion for summary judgment with respect to Appellants' claim of undue influence.

         {¶20} On September 16, 2016, Appellants filed numerous subpoenas duces tecum for the attorney who drafted Jake's wills, including the August 15, 2014 Will, and for various financial and/or insurance institutions where Jake maintained accounts and policies. The subpoenas requested the production of specific items related to Jake's estate planning and his financial accounts and were reminiscent of prior counsel's broad request for material that was previously denied by the trial court. In response, Appellees' filed a "Motion for Protective Order and Motion to Quash" the subpoenas, which was granted, in part, by the trial court.

         {¶21} The trial court ordered that all discovery on the permitted matters, relative to the claim of undue influence, be completed by October 31, 2016. The trial court also scheduled a jury trial to commence on January 10, 2017.

         {¶22} On January 10, 11, and 12, 2017, the case was heard before a jury. Several witnesses testified, including the attorneys who drafted Jake's August 15, 2014 Will and handled the estate planning of both Jake and his wife, Grace, for several years, as well as the legal assistant from the law office who witnessed the signing of Jake's August 15, 2014 Will in the nursing home.

         {¶23} The evidence at trial established that after Grace's death in the Spring of 2013, Jake had spent a significant amount of time and money purchasing fractional shares of the family farmland from relatives and tiling the land to improve drainage. During conversations regarding his estate planning in 2013 and 2014, Jake had expressed concern with Appellants receiving a partial share of the land and wanted to avoid the risk of fractional ownership of the land.[1] Accordingly, Jake decided to change his will to leave the farmland to Appellees Sandra and Peggy. The record also indicates that Sandra's husband had at one time farmed the land. Moreover, even though the claim of testamentary capacity was not tried before the jury, the record contains ample evidence upon which the jury could have found that Jake possessed the requisite testamentary capacity to execute the August 15, 2014 Will.

         {¶24} On January 12, 2017, the jury entered its verdict in favor of Appellees, finding that Jake's Last Will and Testament was not the product of undue influence. Appellants' subsequently filed a motion for a new trial, which was overruled by the trial court.

         {¶25} Appellants now bring this appeal, asserting the following assignments of error.





         First Assignment of Error

         {¶26} In their first assignment of error, Appellants contend that the trial court's procedural rulings violated the liberal discovery permitted under Civ.R. 26(A) and inhibited their ability to prove their case. Specifically, Appellants assign error to the trial court: (1) overruling their motion to compel the Appellees' production of all documents relating to Jake's estate planning, including any and all drafts, codicils and wills ever made, and the attorney's file containing those documents and relevant communications with Jake, (2) ...

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