DiCuccio v. Lindsmith

Citation: 2018 Ohio 2320Docket: 17AP-77

Court: Ohio Court of Appeals; June 14, 2018; Ohio; State Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

N. Gerald DiCuccio, the plaintiff-appellant, appeals a December 29, 2016 judgment from the Franklin County Court of Common Pleas that granted sanctions against him. The case involves DiCuccio and Attorney Alphonse P. Cincione, partners in the law firm Butler, Cincione, DiCuccio, who drafted several legal documents, including a Will and Trust for Dr. Helmut Gante. Following Dr. Gante's death on February 17, 2013, his widow, Anne Marie Gante, became the sole trustee and beneficiary of the Trust. A key issue arose with a Second Amendment to the Trust, executed in 2005, which appointed DiCuccio as successor-trustee. Mrs. Gante contested this amendment, claiming it was invalid and that she did not wish for DiCuccio to serve as trustee.

The Trust, originally executed in 1993, underwent a Second Amendment that removed Mrs. Gante from her trustee role, a decision made by Dr. Gante during a period of health concerns. Later, Dr. Gante sought a limited Power of Attorney (POA) for Mrs. Gante to help her stay in their home, but the draft provided by DiCuccio and Cincione was deemed too broad. Consequently, Dr. Gante sought out another attorney, Karen Moore, to draft new estate plans, without informing her of the Second Amendment, which they did not recall executing. The appellate court ultimately affirmed the lower court's ruling regarding sanctions against DiCuccio.

Moore created a draft Last Will and a draft Amended and Restated Trust Agreement, naming Mrs. Gante as executor and Dr. Gante and Mrs. Gante as co-trustees, with Clayton R. Jones as successor trustee, omitting Cincione and the appellant. Due to changes in estate tax laws, these drafts were finalized in January 2013, but Dr. Gante died before signing them. Following his death, Mrs. Gante assumed the role of trustee with assistance from Jones, Moore, and attorney Quintin Lindsmith. 

In October 2013, Cincione reminded the appellant of his nomination as successor-trustee per a signed Second Amendment at Butler, Cincione, DiCuccio law firm. The appellant hired attorney Thomas Taneff to administer the Trust and represented himself, billing at $400 per hour, accumulating approximately $33,703 in legal fees by October 2014. Despite Mrs. Gante's and Ms. Griffiths' clear opposition to his trusteeship, the appellant refused to step down.

On April 8, 2014, the appellant filed a Complaint for Declaratory Judgment in Probate Court, asserting his status as trustee and seeking injunctive relief against Mrs. Gante, along with naming Cincione and Ms. Griffiths as defendants. Mrs. Gante counterclaimed on May 6, 2014, arguing that Dr. Gante lacked mental capacity for the Second Amendment and that the appellant was unfit to serve as trustee. 

In October 2014, settlement discussions occurred, but tensions escalated when Lindsmith criticized the appellant's fee statements, alleging conflicts of interest and breaches of fiduciary duty. Following this, the appellant directed Taneff to prepare for a tortious interference suit against Mrs. Gante's attorneys, engaging in discussions with Taneff and attorney Gary Hammond regarding the potential lawsuit.

On November 4, 2014, Taneff informed Lindsmith that the settlement draft was unacceptable. Concurrently, appellant and Hammond were preparing to sue Mrs. Gante's lawyers after several meetings and phone calls from October 29 to November 7, 2014. Appellant and Hammond entered an agreement stating that all legal fees from the lawsuit against Mrs. Gante's lawyers would be covered by the Gante Trust, of which Mrs. Gante was the sole beneficiary. Consequently, Mrs. Gante would pay her lawyers to defend against the lawsuit while also covering appellant's attorney fees for suing her lawyers.

On November 7, 2014, Hammond filed a complaint in the Franklin County Court of Common Pleas (case No. 14CV-11538) for legal malpractice and tortious interference against opposing counsel in the probate case, including Lindsmith and others. The complaint included interrogatories and requests for document production. Following this, Merrill Lynch stopped releasing funds for Mrs. Gante's expenses, leading to financial distress and overdraft fees until the Probate Court authorized fund deposits on April 10, 2015.

In early January 2015, the defendants filed motions to dismiss, arguing they had not represented appellant and were immune from liability under Ohio law. Despite this, appellant opposed the motions and continued discovery, leading to a trial date set for April 1, 2015. However, on February 26, 2015, appellant voluntarily dismissed the case without prejudice. Subsequently, a Probate Court hearing on July 28 and 29, 2015, resulted in a judgment on August 31, 2015, finding that appellant had rejected the trusteeship and failed to fulfill his moral obligations, which resulted in his removal as trustee. No appeal was filed against this judgment.

On June 19, 2015, appellee filed a motion for sanctions against appellant DiCuccio and Hammond, leading to a hearing on November 3 and 14, 2016. The trial court found that DiCuccio, an attorney, abused the judicial process by initiating a lawsuit against the elderly widow’s attorneys without legal or factual merit after facing resistance in a declaratory judgment action. The court determined that DiCuccio's motive was to intimidate Mrs. Gante and her counsel, disrupt their attorney-client relationship, and gain a tactical litigation advantage. The court condemned the act of suing opposing counsel as an unacceptable obstruction of justice.

DiCuccio's actions were characterized as self-serving, undermining his credibility as a witness, particularly as evidence indicated he had a financial interest in the trust action amounting to approximately $100,000. DiCuccio’s unsuccessful litigation attempts and opposing counsel's allegations of overbilling motivated him to consult Hammond and file the tortious interference claim. Furthermore, significant evidence demonstrated that both DiCuccio and Hammond were aware, from prior litigation involving similar claims, that the new claims were meritless. In a referenced case, Morrow v. Reminger, the court had previously granted summary judgment for defendants against claims led by DiCuccio, confirming the lack of merit in such lawsuits.

In the case of Swiss Reinsurance America Corp. Inc. v. Roetzel, the court addressed attorney immunity and determined that DiCuccio and Hammond acted willfully and in bad faith by filing a complaint lacking legal merit. DiCuccio was found to have motivated the lawsuit to manipulate the attorney-client relationship and gain leverage, while Wrightsel's obligations remained solely to his client. The court deemed the attorney fees sought by Wrightsel, totaling $41,523.60, to be reasonable and allocated responsibility for the sanctions as follows: DiCuccio was liable for 80% of the fees and Hammond for 20%. Consequently, DiCuccio was ordered to pay $33,274.43 in attorney fees and $55.56 in expenses, and Hammond was ordered to pay $8,318.61 in attorney fees and $13.88 in expenses. Hammond complied with the payment and did not appeal. In his appeal, DiCuccio contended that the trial court erred in imposing fees, arguing that the case was initiated on his counsel's advice, that the American Rule regarding attorney fees should apply, and that the appellee was not a prevailing party. The court found these arguments unmeritorious. The court's imposition of sanctions is reviewed for abuse of discretion, which involves an unreasonable or arbitrary judicial attitude.

When applying the abuse of discretion standard, a reviewing court must not simply replace the trial court's judgment but operate under a presumption that the trial court's findings are correct due to its unique ability to assess witness credibility. A trial court's factual determinations are afforded deference and will only be overturned if there is insufficient competent evidence in the record. 

In this case, the trial court determined that appellant could not be sanctioned under Civ. R. 11 because he had not signed any relevant documents in the common pleas case; any sanctions must stem from the court's inherent authority to address interference with justice. Courts can sanction parties for actions that disrupt judicial processes, even when they are represented by counsel.

Appellant filed claims of legal malpractice and tortious interference against appellees, who represented a trust beneficiary contesting appellant's role as trustee. The trial court concluded that both claims were unfounded, noting that to succeed in a legal malpractice claim, a plaintiff must demonstrate that the attorney owed them a duty, which was not the case here since appellees did not represent appellant. There was no privity between appellant and appellees, and the assertion of malice by appellees was unsupported by evidence, especially since they prevailed in the underlying trust dispute.

Additionally, case law indicates that attorneys are immune from tortious interference claims, further undermining appellant's allegations. The trial court conducted a two-day hearing on appellees' motion for sanctions, during which testimony was taken and numerous exhibits were presented.

The trial court determined that the appellant had a wrongful motive in filing a case in common pleas, aiming to intimidate Mrs. Gante and her attorney, disrupt their attorney-client relationship, and gain a tactical advantage in ongoing Probate litigation. The court ruled that the appellant willfully abused the judicial process through actions taken by his attorney, Hammond, finding no legitimate basis for the legal malpractice and tortious interference claims, which were pursued in bad faith and with oppressive intent. Furthermore, the court noted that both the appellant and Hammond were aware that the claims lacked merit based on prior litigation.

The appellant contended that he acted on counsel's advice, arguing that this should shield him from liability for attorney fees, referencing Ohio case law that supports this defense in frivolous conduct cases. However, the court clarified that the cited cases did not apply to his situation, emphasizing that they dealt specifically with frivolous conduct under R.C. 2323.51 and did not exempt clients from sanctions based on counsel's advice. Unlike the relator in the Davis cases, the appellant did not disavow his lawyer's actions or assert that he was misled by Hammond regarding the merits of the claims. His active involvement in preparing the lawsuit undermined his reliance on counsel's advice as a defense against sanctions.

Additionally, the appellant referenced the American rule regarding attorney fees, which states that a prevailing party cannot recover such fees in civil actions, citing Wilborn v. Banc One Corp. However, this argument does not impact the court's sanction ruling.

Appellant concedes that exceptions to the American Rule allow for attorney fee awards in cases of bad faith or abuse of the judicial process. Despite claiming the trial court's decision lacked a bad faith basis, the court found appellant engaged in intimidation tactics and manipulative behavior aimed at undermining Mrs. Gante's counsel, constituting bad faith. Appellant's assertion that attorney fees require a prevailing party status is incorrect; no such requirement exists for sanctions related to abuse of process. The court referenced cases demonstrating that attorney fees can be awarded without a prevailing party designation. Appellant contested the trial court's 80% fee allocation against him, arguing insufficient evidence linking him to misconduct; however, the court established that he was the primary instigator of the litigation and had abused judicial processes, justifying the allocation. Trial judges' assessments of witness credibility are given deference, and the court found no abuse of discretion in its decision. Ultimately, the evidence supported the trial court's findings of judicial abuse, leading to the affirmation of the judgment by the Franklin County Court of Common Pleas.