from Shelby County Common Pleas Court Probate Division Trial
Court No. 2015 CVA 00001
Richard Kolb for Appellants.
L. Thieman for Appellees.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
On July 5, 2016, while the intervening appeal was still
pending, Appellants filed a notice of substitution of new
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.
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).
On August 1, 2016, this Court issued its decision on the
appeal involving the unrelated discovery matter.
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
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.
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.
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
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.
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.
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. 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,
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.
Appellants now bring this appeal, asserting the following
assignments of error.
OF ERROR NO. 1
TRIAL COURT ERRED BY DENYING DISCOVERY OF DOCUMENTS ESSENTIAL
TO PROVING PLAINTIFFS' CASE, CONTRARY TO THE LIBERAL
DISCOVERY ALLOWED UNDER CIVIL RULE 26(A).
OF ERROR NO. 2
TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT AS TO
PLAINTIFFS' THEORY OF INCOMPETENCY.
Assignment of Error
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) ...