{¶ 1} Plaintiff-appellant Lynn Arko Kelley, individually and as executor of the estate of Michael Vincent Kelley (collectively, “the Kelleys”), appeals the trial court’s grant of summary judgment in favor of defendants-appellees, Brent M. Buckley and the law firm Buckley King, L.P.A., on all claims asserted in her complaint. Lynn Kelley also appeals the trial court’s denial of her motion to delay ruling on Buckley’s motion for summary judgment pending Lynn Kelley’s receipt of discovery pursuant to Civ.R. 56(F). We find merit to the appeal and reverse.
{¶ 2} This legal-malpractice case arises from the death of Michael Kelley, one of the founding partners of the law firm Kelley & Ferraro, L.L.P. (“K & F”), an Ohio limited law partnership. The facts, as set forth in the affidavits and depositions in the record, are as follows:
{¶ 4} At her deposition, Lynn Kelley testified that over the next nine years, Brent Buckley and the Buckley firm represented both herself and her late husband and K & F on a wide variety of legal, business, and personal matters. The Kelleys considered Brent Buckley to be their family’s attorney and sought his counsel numerous times over the years. For example, after entering into the partnership agreement with Ferraro, Michael Kelley became concerned that his former employer might commence legal proceedings against him. He was also anxious to convince his former employer to release client files, which were necessary to commence operations at K & F. The Buckley firm opened, a file for Michael Kelley and encoded it with the firm’s client-identification number beginning with “5020,” the four-digit number reserved for all the Kelleys’ files.
{¶ 5} The Buckley firm also defended Michael Kelley against contempt charges in the case of Morgan v. Owens Corning Fiberglass Corp., Cuyahoga C.P. No. CV-328407. The Buckley firm also represented Michael Kelley in at least one other case referred to as “the Margaritis matter.” The firm performed estate planning for the Kelleys, assisted Lynn Kelley with issues in her judicial campaign, advised Michael Kelley on issues involving his offshore accounts, and assisted Lynn Kelley in the formation of her two businesses, Lindyco and Kellco, Inc.
{¶ 6} The Buckley firm not only represented the Kelleys in their personal and business affairs; Brent Buckley also continued to represent Michael Kelley’s interests in K & F. In late 1999, Michael Kelley and Ferraro began renegotiating their existing partnership agreement to explore the possibility of merging K & F with Ferraro & Associates, Ferraro’s own separate law firm in Miami, Florida. Michael Kelley and Ferraro discussed this possibility over the next two years. Ferraro was counseled by his own attorney, William Rafferty, and his Florida accountant, Henry Schade. Brent Buckley and business consultant Michael DiCorpo represented Michael Kelley. The parties drafted several proposed agreements, but the merger was never accomplished.
{¶ 7} Notwithstanding the Kelleys’ relationship with Brent Buckley and the Buckley firm, Ferraro retained the firm to represent his interests in an anticipat
And he told me, in good confidence he told me, “I’m going to help you through this. I want you to settle this, get out as soon as possible. You know that Jimmy is, you know, not to be trusted.” And that Jimmy is Mr. Ferraro.
{¶ 8} Lynn Kelley testified that Buckley withheld documents and information from her, including a copy of the K & F partnership agreement, which she repeatedly requested for several weeks. Lynn Kelley further testified that without the benefit of reviewing the K & F partnership agreement to assess her legal status, Buckley advised her to settle quickly. She also claims that he used his knowledge of her financial condition and state of mind to assist those who had interests adverse to hers. Prior to Michael Kelley’s death, the Kelleys’ son Christopher was injured in a car accident and sustained a traumatic brain injury. Lynn Kelley testified:
Mr. Buckley knew of the constant care that was entailed around keeping Christopher at home, caring for him as a quadriplegic and in a vegetative state. Christopher was 6 foot 4, hovered around 190 pounds, and I — -we, both Mike and I, had to have around-the-clock care for him. He knew how difficult this was, how emotionally damaging it was to our family.
But he certainly knew that when Michael passed away, that I had to shoulder that then all by myself, and the costs involved and the emotional wear and tear, * * * he knew, he talked to us personally.
{¶ 9} Although Brent Buckley contended at deposition that he did not represent Ferraro until Lynn Kelley sued K & F in April 2006, Theodore Dunn, a partner at the Buckley firm, admitted in a letter to Lynn Kelley’s lawyer that the Buckley firm had “been representing James Ferraro and Kelley & Ferraro, LLP (‘K & F’) in connection with the resolution of the financial interest of the Estate of Michael V. Kelley (the ‘Estate’) since January 2006.” Sheila Thorne, Michael Kelley’s former secretary, testified that on the day of Michael Kelley’s death,
A: What I understood honestly was he was representing Jim Ferraro that night. That’s what I understood.
Q: Which night?
A: The night of Michael’s death.
Q: How did you come to that understanding?
A: I actually did not understand it until the next day. Well, because Jimmy called, and he was flying into town and they were going to have a meeting at Buckley’s office. They were having it there because if Lynn came to the office, they didn’t want her to see anybody there.
{¶ 10} Lynn Kelley testified that Brent Buckley and the Buckley firm also withheld copies of two employment contracts they drafted between K & F and attorney John Sivinski (“Sivinski”), which subsequently became the subject of litigation against Lynn Kelley, i.e., Sivinski v. Kelley, Cuyahoga C.P. No. CV-595064. In June 2006, Sivinski sued Lynn Kelley, individually and as executor of Michael Kelley’s estate, and K & F alleging that pursuant to an employment agreement executed in July 1997, he was owed a percentage of Michael Kelley’s half of K & F’s profits. The Buckley firm, as counsel for Ferraro and K & F, filed a cross-claim for indemnification against Lynn Kelley as executor of Michael Kelley’s Estate.
{¶ 11} However, another agreement executed in 1999 superseded the first contract and greatly reduced the terms of Sivinski’s compensation at K & F. Sivinski denied the existence of the 1999 contract, and the Buckley firm failed to produce a copy of the 1999 agreement, which would have proved that Sivinski’s claim was fraudulent. When Lynn Kelley later obtained a copy of the 1999 Sivinski contract from Ferraro, she was able to prove that Sivinski’s case was fraudulent. Lynn Kelley ultimately won a directed verdict on Sivinski’s claims, as well as $200,000 in compensatory damages, $400,000 in punitive damages, and $296,000 in attorney fees on her counterclaims for spoliation of evidence and abuse of process against Sivinski.
{¶ 12} Although the Buckley firm denied drafting these agreements, the firm’s partner, Theodore Dunn, admitted that the first Sivinski agreement was generated on the Buckley firm’s computers, as evidenced by the tracking codes on the document. The Buckley firm claims that Michael DiCorpo, a nonlawyer with access to the Buckley firm’s computers, drafted the 1999 agreement on the firm’s computers without its knowledge. DiCorpo denies any involvement in the
{¶ 13} In November 2006, Lynn Kelley filed the instant malpractice complaint against Brent Buckley and the Buckley firm, alleging five counts of legal malpractice, spoliation of evidence, breach of fiduciary duty, tortious interference with the estate of Michael Kelley’s relationship with K & F, civil conspiracy, and abuse of process. In February 2007, Brent Buckley and the firm withdrew as counsel for Ferraro and K & F in the cases of Kelley v. Ferraro and Sivinski. In his affidavit, Brent Buckley stated that the firm withdrew as counsel “for reasons unrelated to this case.” In February 2010, the trial court granted Brent Buckley and the Buckley firm’s motion for summary judgment without opinion or explanation. Lynn Kelley now appeals, raising two assignments of error.
{¶ 14} In the first assignment of error, Lynn Kelley argues that the trial court erred in granting summary judgment in favor of Buckley and the Buckley firm on all of her claims. An appellate court reviews a trial court’s decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
Legal Malpractice
{¶ 15} Lynn Kelley argues that the trial court erred in granting summary judgment in favor of Buckley on her legal-malpractice claims. To establish a cause of action for legal malpractice, the plaintiff must show (1) that the attorney owed a duty or obligation to plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is causal connection between the conduct complained of and the resulting damage or loss. Vahila v. Hall (1997),
{¶ 16} Buckley contends that summary judgment in their favor was proper because (1) Michael Kelley limited the scope of the attorney-client relationship regarding the formation of K & F, and the firm did not breach any duty owed to
Legal Duty
{¶ 17} Buckley argues that the firm did not breach any duty of care owed to Michael Kelley when it negotiated the K & F partnership agreement on Michael Kelley’s behalf in 1997 because Michael Kelley had limited the scope of its representation on that undertaking. At deposition, Brent Buckley testified:
At that time as well as a few times after that first phone call he said that we were “fucking up the transaction” to, “don’t fuck up” the transaction. “We’re fucking everything up.” That he needed to “get this deal done.” He “didn’t care how it got done.” He “didn’t care what it took” and finally it was either that, I think it was that phone call but may have been the following phone call where he said, “stay out of it. I’m negotiating this thing. I don’t need you coming up with all kinds of crazy documents and crazy structures. You just do what I tell you to do in terms of forming the entity.”
{¶ 18} Buckley claims these instructions ended the attorney-client relationship between him and Michael Kelley and extinguished any duty of care. However, Buckley admitted that these instructions were never “memorialized.” Brent Buckley also admits that he and his firm were responsible for ensuring the legality of K & F as an Ohio law partnership, even after the scope of their engagement was allegedly curtailed.
{¶ 19} Moreover, Buckley’s entire defense is dependent upon the hearsay statements of the late Michael Kelley. Evid.R. 804(B)(5), which governs hearsay exceptions, provides that a decedent’s declarations are admissible only to rebut testimony of an adverse party. Eberly v. A-P Controls, Inc. (1991),
{¶ 20} Buckley also argues that this court’s decision in Kelley v. Ferraro,
{¶ 21} Buckley contends that they had no involvement in either of the Sivinski contracts. However, the record contains conflicting evidence on this issue. As previously mentioned, Dunn admitted that the first Sivinski agreement was generated on the Buckley firm’s computers as evidenced by tracking codes on the document. Although the Buckley firm claims that DiCorpo drafted the subsequent agreement on the Buckley firm’s computers without its knowledge, DiCorpo denied any involvement in the creation of either Sivinski contract. DiCorpo testified that Brent Buckley must have been the drafter of the second contract. Yet Buckley defended Ferraro and K & F in the Sivinski case and asserted a cross-claim against Lynn Kelley for indemnification.
{¶ 22} Thus, there is a genuine issue of material fact as to whether Brent Buckley and the Buckley firm created the Sivinski contracts that became the subject of litigation against Lynn Kelley and whether they could have swiftly ended that litigation by producing the second Sivinski contract. Yet it is undisputed that the Buckley firm never produced the second contract, which suggests the possibility, as Lynn Kelley alleges, that they concealed the existence of the second Sivinski agreement to put pressure on Lynn Kelley so she would compromise and abandon her claims against Ferraro and K & F. Based on the conflicting evidence in the record, we find that the trial court erred in finding no genuine issues of fact on these very serious allegations.
Waiver of Conflict of Interest
{¶ 23} Brent Buckley contends that Lynn Kelley consented to the Buckley firm’s representation of Ferraro and K & F in her claims against them.
{¶ 24} Rule 1.9 of the Rules of Professional Conduct, which governs an attorney’s duties to former clients, provides:
(а) Unless the former client gives informed consent, confirmed in uniting, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.
(Emphasis added.)
{¶ 25} Similarly, DR 5-105 of the Code of Professional Responsibility, which preceded the Rules of Professional Conduct and was in effect until February 2007, provided:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment * * *
* * *
(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.
[б] {¶ 26} The primary purpose behind the prohibition in DR 5-105 against dual representation of clients with adverse interests is to ensure that confidences or secrets of a client imparted to an attorney in the course of their attorney-client relationship will not be revealed to an adverse party or used to the client’s disadvantage. Sarbey v. Natl City Bank, Akron (1990), 66 Ohio App.Sd 18, 26,
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
{¶ 28} Sarbey further explained that to establish a “substantial relationship”: “[T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.”
Id., quoting T.C. Theatre Corp. at 268.
{¶ 29} In Cinema 5, Ltd. v. Cinerama, Inc. (C.A.2, 1976),
{¶ 30} It is not clear when the attorney-client relationship between Buckley and the Kelleys ended. Lynn Kelley testified that after her husband died in January 2006, Brent Buckley advised her to settle quickly with Ferraro because
{¶ 31} Nevertheless, the record clearly indicates that Brent Buckley was engaged in a conflict of interest by representing an interest adverse to Lynn Kelley and the estate of Michael Kelley. In Sarbey, the court noted that “[t]he concept of implied consent or waiver is closely akin to the equitable concepts of estoppel and laches.” Id.,
Where dual representation is involved, the court should apply the implied consent or waiver remedy with caution. A motion to disqualify counsel for conflict of interest stemming from dual representation of adverse clients should be denied on the basis of implied consent or waiver only where there is substantial proof that the movant’s delay has resulted in serious prejudice to the opposing party, or where litigation has proceeded to the point where disqualification would create substantial hardship to the opposing party * * *.
Id.,
{¶ 32} No one has suggested that any prejudice resulted from Lynn Kelley’s delay in objecting to Buckley’s representation of Ferraro or K & F. Moreover, the client, Ferraro and/or K & F is the party who would have standing to assert prejudice, not the lawyer. Therefore, we find Buckley’s claim of implied waiver or consent to be without merit.
{¶ 33} Buckley argues that Lynn Kelley’s legal-malpractice claims could not survive summary judgment because her claim for breach of Michael Kelley’s confidences lapsed with his death. In other words, Buckley claims that Michael Kelley’s death freed them to reveal any confidences shared during the attorney-client relationship between Michael Kelley and the Buckley firm to parties with adverse interests or anyone else. Buckley asserts that disclosure of a person’s confidences amounts to a claim of “invasion of privacy” and that a claim for invasion of privacy is personal to the individual whose privacy is allegedly invaded and lapses with the death of that person. We disagree.
{¶ 34} In support of their argument, Buckley relies on Kutnick v. Fischer, Cuyahoga App. No. 81851,
{¶ 35} However, the holding in Kutnick is limited to the facts of that particular case and does not preclude a legal-malpractice claim involving breach of confidences under different circumstances. Kutnick explained that although an attorney’s breach of professional obligations under the disciplinary rules does not necessarily translate into tort duties the attorney owes his client, “[t]he existence of a duty in tort depends upon the relationship of the parties and the foreseeability of injury to someone in [the] plaintiffs position.” Id. at ¶ 17 and 21, citing Simmers v. Bentley Constr. Co. (1992),
{¶ 36} It is well settled that the lawyer’s duty to preserve the client’s confidences survives the termination of the attorney-client relationship. Kala v. Aluminum Smelting & Refining Co., Inc. (1998),
{¶ 87} Buckley argues that Lynn Kelley’s legal-malpractice claims fail because she failed to demonstrate a genuine issue as to whether the alleged malpractice proximately caused any damages. Buckley asserts that Lynn Kelley was already awarded $600,000 in damages and $296,000 in attorney fees on her counterclaims in Sivinski, and this court reversed the trial court’s ruling in favor of Ferraro on the validity of the partnership agreement and “remanded with instructions that K & F be dissolved and wound up, with an accounting and settlement of the estate’s interests in accordance with the agreement, and a new trial held regarding the damages.” Kelley v. Ferraro,
{¶ 38} Lynn Kelley’s legal expert, Amelia A. Bower, opined that Lynn Kelley suffered damage as a result of Buckley’s actions. In her report, Bower states: “At a minimum, damage to the estate is the cost and expense of discovering information, files and documents that should have been made immediately available to the Estate upon the death of Michael V. Kelley.” Although Lynn Kelley recovered damages on her counterclaims against Sivinski, Lynn Kelley can still pursue a judgment for damages against Buckley if Buckley contributed to Lynn Kelley’s damages.
{¶ 39} Further, Lynn Kelley testified that Buckley’s failure to produce the K & F partnership agreement and his advice to settle quickly with Ferraro caused her emotional distress. Lynn Kelley testified as follows:
So what I’m saying is that he knew what harm, hurt, all of the work involved in this, the financial work involved in this, and yet he wasn’t assisting us, as our lawyer should have, as he was, and I thought he would, in getting the wherewithal to keep my son at home and to feel comfortable about knowing that we could pay for this type of care.
Not knowing how I’m going to pay for my son’s care. What do you mean, how does that affect me emotionally? Of course, it affected me emotionally. * * * Sleepless nights, worry about where I’m going to get the money, worry about, am I going to have to put my son into a nursing home, of course, all of that. And he knew that Michael paid for this, that I would have to continue paying for this. He didn’t assist me in that.
{¶ 40} Thus, there is evidence in the record showing uncompensated damages for which a jury should determine the value.
{¶ 41} Buckley argues that Lynn Kelley’s legal-malpractice claims are barred by the statute of limitations. The statute of limitations for an action for legal malpractice is one year. R.C. 2305.11(A). A legal-malpractice action accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney’s act or nonact, and the client is put on notice of the need to pursue his possible remedies against the attorney, or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. Zimmie v. Calfee, Halter & Griswold (1989),
{¶ 42} A “cognizable event” is an event sufficient to alert a reasonable person that in the course of legal representation, his attorney committed an improper act. Wozniak v. Tonidandel (1997),
{¶ 43} Oftentimes, the question of when an attorney-client relationship for a particular undertaking or transaction has terminated is a fact question. Omni-Food & Fashion, Inc. v. Smith (1988),
{¶44} As previously explained, Ohio law provides that the statute of limitations in malpractice cases commences upon the later of the termination of the relationship or the discovery of the underlying malpractice. Omni-Food & Fashion, Inc.,
Expert Evidence
{¶ 45} Buckley argues that Lynn Kelley’s legal-malpractice claims fail because her expert failed to state the facts supporting her opinions. In support of this assertion, Buckley cites Jarrett v. Forbes, Fields & Assoc. Co., L.P.A., Cuyahoga App. No. 88867,
Based upon my review of those documents, my knowledge of the law and of the field of practice involved in plaintiffs personal injury claims, it is my opinion to a reasonable degree of probability that the further prosecution of the claims of Errol Jarrett in the matter of Jarrett v. Edmund [sic] Elevator Co., Inc., would have resulted in the payment of Errol Jarrett of monies by the Defendant, Edmond [sic] Elevator, and/or its insurer.
{¶ 46} Jarrett concluded that the expert failed to display any knowledge of the facts pertaining to the underlying case and was properly excluded. Id.
{¶ 47} Here, Bower’s preliminary report includes statements of relevant facts in her conclusions. Indeed, many of Bower’s conclusions are findings of fact. For example, in her preliminary report she states:
1. Brent Buckley, while an attorney at Buckley King, represented Michael V. Kelley, personally.
2. Brent Buckley, while an attorney at Buckley King, was engaged by Michael V. Kelley to draft partnership documents for the formation of Kelley & Ferraro, LLP. Mr. Ferraro was represented by separate counsel at the time. Neither Mr. Buckley or the Buckley King firm ever represented James L. Ferraro.
* * :|:
*31 7. As a result of accepting the engagement to represent James L. Ferraro and Kelley & Ferraro, LLP, Brent Buckley and the Buckley King firm foreclosed the Estate of Michael V. Kelley from obtaining documents, files and information that would otherwise have been readily available to the estate.
{¶ 48} Thus, Bower’s preliminary opinion included relevant facts upon which to base her expert opinion. Moreover, Bower later submitted another expert report that included an expanded version of the facts. Therefore, we find that Bower’s expert report included sufficient facts to support her opinions.
{¶ 49} Having determined that there are genuine issues of material fact relating to all elements of Lynn Kelley’s legal-malpractice claims, we find that summary judgment on those claims was erroneous.
Spoliation of Evidence
{¶ 50} Buckley argues that summary judgment was proper on Lynn Kelley’s spoliation claim because she “only made a passing reference to spoliation” in her complaint. To support this argument, Buckley relies on Williams v. W. Res. Transit Auth., Mahoning App. No. 06-MA-137,
{¶ 51} Because Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity. Cincinnati v. Beretta U.S.A. Corp.,
{¶ 52} Lynn Kelley’s complaint alleges:
In the course of defendants’ legal representation of James L. Ferraro and the firm of Kelley & Ferraro, L.L.P. in that litigation, they have * * * participated in the spoliation or wrongful disclosure and/or nondisclosure of evidence, all contrary to the interests of the plaintiff.
{¶ 53} Each of the counts enumerated in the complaint incorporates these allegations “as if fully rewritten” and further allege:
As a direct and proximate result of the professional negligence, malpractice and other misconduct of the defendants, plaintiff has sustained and will continue to sustain significant economic damages and other compensable loss.
(Emphasis added.)
{¶ 54} We find that these allegations contain a plain statement of specific facts showing that Lynn Kelley is entitled to relief.
Tortious Interference
{¶ 55} Buckley argues that summary judgment should be affirmed on Lynn Kelley’s claims for tortious interference -with her commercial and contractual relationships with K & F and Ferraro because she did not produce any evidence that Buckley’s legal fees were paid out of the 40 percent profits that K & F owed to Michael Kelley’s Estate. Buckley also contends that their receipt of the fees was privileged because the fees were received while they were acting as counsel for K & F and Ferraro.
{¶ 56} To prevail on a claim for tortious interference with a business relationship, the plaintiff must prove “(1) a business relationship; (2) the wrongdoer’s knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom.” Wolf v. McCullough-Hyde Mem. Hosp., Inc. (1990),
{¶ 58} Since Brent Buckley and several other lawyers of the Buckley firm were involved in drafting the partnership agreement, they knew that the estate of Michael Kelley was entitled to 40 percent of the K & F firm’s gross revenues under that agreement. By representing Ferraro and K & F against Lynn Kelley and the estate, Buckley was involved in K & F’s breach of the partnership agreement by opposing Lynn Kelley’s rights under the partnership agreement. As a result, Lynn Kelley testified that she suffered emotional distress, and her legal expert opined that the estate suffered “the cost and expense of discovering information, files and documents that should have been made immediately available to the Estate upon the death of Michael V. Kelley.” Thus, the record contains ample evidence to withstand a motion for summary judgment on Lynn Kelley’s claim for tortious interference with a business relationship.
{¶ 59} Despite knowing that Lynn Kelley was entitled to K & F revenues, Buckley admitted that Lynn Kelley was not paid because the K & F firm had other priorities for its cash above Lynn Kelley’s entitlement. Although Buckley asserts that his fees were not paid out of Lynn Kelley’s share of the K & F revenues, it is undisputed that Buckley accepted fees from K & F. During this same time, Lynn Kelley received nothing, even though the partnership agreement that Buckley had drafted for Michael Kelley provided that Michael Kelley’s estate was to receive 40 percent of all gross revenues within 30 days of receipt. See Kelley v. Ferraro,
{¶ 60} Buckley argues that Lynn Kelley cannot establish that the fees were taken from the estate’s 40 percent share. Yet while Ferraro was using K & F assets to pay Buckley’s fees, he was also claiming that he was not legally obligated to pay Lynn Kelley’s 40 percent share of K & F revenues. Id. Thus, there is a genuine issue as to whether Buckley could have believed that their fees
{¶ 61} Finally, Buckley claims that his actions were privileged because the alleged misconduct occurred while he was acting as counsel for K & F and Ferraro. “[A] defendant’s interference with a contract is not actionable when the defendant is vested with a privilege.” Andrews v. Carmody (2001),
{¶ 62} Moreover, Buckley’s claim of privilege in the context of this case is contrary to public policy and a perversion of the purpose of qualified privilege. Buckley’s misconduct (in representing Ferraro’s interests against his clients) would create the privilege and provide immunity from liability for the harm he allegedly caused Lynn Kelley as a result of that misconduct. Therefore, summary judgment should not have been granted on Lynn Kelley’s tortious-interference claim.
Abuse of Process
{¶ 63} Buckley argues that summary judgment on Lynn Kelley’s abuse-of-process claim should be affirmed because he filed a cross-claim against her and the estate on behalf of K & F for a legitimate purpose in Sivinski, and because Lynn Kelley failed to raise a genuine issue as to whether Buckley’s conduct was privileged and/or Michael Kelley’s estate was damaged. Buckley asserts that the cross-claim for indemnification in Sivinski was not the product of improper motivation, but simply an attorney representing the interests of his client.
{¶ 64} “The three elements of the tort of abuse of process are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.” Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994),
{¶ 65} Buckley argues that by asserting that they filed the cross-claim in Sivinski “when they knew that the Kelley estate could not be held personally liable,” refutes the first element of the abuse-of-process claim that requires that
{¶ 66} Buckley further argues that even if the elements for abuse of process were met, “an attorney * * * may only be held hable if he acts maliciously and has an ulterior purpose which is completely separate from his client’s interest.” Wolfe v. Little (Apr. 27, 2001), Montgomery App. No. 18718,
{¶ 67} There is evidence creating a genuine issue as to whether Buckley benefitted from a “kickback scheme” from K & F. Lynn Kelley testified at her deposition that her husband, Michael Kelley, gave Brent Buckley money in exchange for settling asbestos claims with K & F. Therefore, Lynn Kelley claims, Buckley used the Kelley v. Ferraro and Sivinski cases to pressure her into an unfavorable settlement that might preserve K & F.
{¶ 68} Buckley again argues that Lynn Kelley’s abuse-of-process claim must fail because there is no evidence that she or the estate suffered any damage. However, as previously discussed, Lynn Kelley’s expert opined that damage to the estate includes the cost and expense of discovering information and files. Lynn Kelley also testified that she suffered emotional distress as a result of the other two eases. Therefore, there is a genuine issue regarding the amount of damage the estate suffered from the alleged abuse of process. Consequently, the court erred in granting summary judgment on Lynn Kelley’s abuse-of-process claim.
Aiding and Abetting and Civil Conspiracy
{¶ 69} Buckley argues that summary judgment was properly granted as to Lynn Kelley’s aiding-and-abetting and civil-conspiracy claims because (1) Lynn Kelley abandoned those claims, (2) Ohio does not recognize a claim for aiding and abetting, (3) Buckley’s conduct was privileged, (4) Buckley could not conspire
{¶ 70} Lynn Kelley argues these claims in her appellate brief and has therefore not abandoned them on appeal. Further, aiding and abetting and civil conspiracy are cognizable claims in Ohio. O’Brien v. Olmsted Falls, Cuyahoga App. Nos. 89966 and 90336,
{¶ 71} Lynn Kelley’s aiding-and-abetting and conspiracy claims allege that Buckley assisted Ferraro, K & F, and Sivinski in the Kelley v. Ferraro and Sivinski cases by withholding information and files from Lynn Kelley that belonged to Michael Kelley’s estate. Lynn Kelley testified that Brent Buckley withheld the K & F partnership agreement for weeks after Michael Kelley’s death while urging her to settle with Ferraro, whom Brent Buckley was secretly counseling without Lynn Kelley’s knowledge. Buckley also denied knowledge of the Sivinski agreements even though they were generated on the Buckley Firm’s computers. Thus, there is evidence that Brent Buckley and the Buckley firm breached a fiduciary duty to Michael Kelley’s estate, as a former client, which would be actionable absent the conspiracy. Therefore, we find that summary judgment on Lynn Kelley’s aiding-and-abetting and civil-conspiracy claims was improper.
Punitive Damages
{¶ 72} Lynn Kelley argues that summary judgment on her punitive-damage claims was erroneous because there is evidence in the record creating a genuine issue as to whether Brent Buckley and the Buckley firm acted with malice. Courts may award punitive damages in a tort action only upon a finding
{¶ 73} Here, there is evidence in the record to support Lynn Kelley’s allegations that Brent Buckley and the Buckley firm engaged in conflicts of interest and wrongfully concealed documents and information to which Lynn Kelley was entitled for the purpose of assisting Ferraro and K & F, Lynn Kelley’s adversaries, and their own interest in continuing a business relationship with K & F. It may be inferred from the evidence that Buckley revealed confidential communications of his former clients, Michael Kelley and Lynn Kelley, to Ferraro for purposes of aiding and abetting Ferraro. Under these facts, we find that there are genuine issues as to whether Buckley acted with malice.
{¶ 74} Therefore, we find that because there are genuine issues of material fact relating to all of Lynn Kelley’s claims, summary judgment should not have been granted in Buckley’s favor. Accordingly, the first assignment of error is sustained.
Civ.R. 56(F) Discovery Motion
' {¶ 75} In the second assignment of error, Lynn Kelley argues that the trial court erred by not allowing her to obtain discovery related to issues raised in Buckley’s two motions for summary judgment. She contends that Buckley obstructed the discovery process and failed to produce relevant discovery. Buckley, on the other hand, argues that much of the requested discovery was privileged.
{¶ 76} The scope of discovery is broad. Civ.R. 26(B)(1) permits discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” The information sought need not be admissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence. Roe v. Planned Parenthood S.W. Ohio Region,
{¶ 77} Pursuant to Civ.R. 56(F), a party opposing a motion for summary judgment may obtain a continuance pursuant to Civ.R. 56(F) by submitting affidavits that state a factual basis and that provide sufficient reasons for the lack of supporting affidavits and the need for additional time to permit affidavits to be obtained or further discovery to be had. Gates Mills Invest. Co. v. Pepper Pike
{¶ 78} Here, because we have previously determined that the trial court erred in granting summary judgment in favor of Buckley on all claims, this assignment of error is moot. Thus, summary judgment in favor of Brent Buckley and the firm is reversed, and the case is remanded. Additional discovery may be conducted in preparation for trial consistent with Civ.R. 26(B).
Judgment reversed and cause remanded.
Notes
. This court reviewed Sivinski in appeal No. 94296, argued in January 2011.