case number one five dash three eight zero nine ronald sharer sr v james wiles at all and case number one five dash three eight three two ronald share sr v james wiles or argument  judgment in two thousand and eight and affirmed on appeal the under this case was dismissed on colossal collateral estoppel grounds i must start with the fact that there is a certain legal irony here in defendant's  mr scherer had sought in two thousand and eleven to assert again the six the defense to the six point two million dollar adverse judgment and his duty counter claim against the trustee he would have been kicked on kolob little collateral estoppel grounds in two thousand and eleven the fact remains then he did not have under the collateral estoppel a doctrine of full and fair opportunity in two thousand and eleven to litigate the claims for which the defendants are asserting the collateral estoppel doctrine here absent a full in fair opportunity the collateral stoppel doctrine does not apply as to what mr scherer did or did not do in two thousand and eleven also cannot i interrupt you just for a minute recognizing there doesn't seem to be any controversy about this but i was a little puzzled these trials came out of probate court in ohio these are ohio folks that were  ohio law all the way through except for perhaps the federal statute didn't stick where is what what what is the basis for jurisdiction where we hears the question my client my client has a resident floor residen the the basis of diversity the basis of being here was the fact of his being a florida resident he was a florida resident at the time of the lawsuit yes yes  point let's say the this other case had come out the other way and the trust had won ok so ever they get everything they see same claims could your client of the ronald each shearer trust wasn't at issue with mr scheer's claim so if the trusts if if the counter claimants had prevailed mr scherer could have still brought these claims the reason is well because well that goes directly to the privity issue and that goes directly to the litigation issue if the result had been opposite nothing would have changed as to mr scheer because his claims were final and his counter claims were dismissed as a sanction in two thousand and eight and his affirmative claim is the defense of the six point two million dollars judgment that was a sanction in two thousand and eight focus on the thirty million relief yes the ronald trust gets thirty million are right and you're saying robert scheer can come in the next year bring the same claims and get thirty million iran on the trust was not an issue with respect to iran sheer in the second case your honor to clarify for a moment there were two trust issue and you know you keep your only up fifteen minutes yet you  can try to bob and weave or you can get to the heart of my question you understand the point of the thrust of my question i take it i do in the answer is the answer is no the answer is he could not peak if he could not come back and see thirty million the way the trost had sought and hypothetically won thirty million it seems bizarre that the trust could seek thirty million win it and then ronald sheeran is individual capacity come the next year bring similar claims get thirty million again but those are not the facts here your honor that's what hypothetical are but that is the way of testing a principle i mean if that's the case if you know you understand what i'm saying yes yes if you deal with it or you can avoid it it's your call india in the if the ronald trust recovered thirty million yes you're correct but thirty millimeter about what you are correct that here the individual could not come back the next year and bring the same claim and collect thirty million that is that is correct but that is not what is an issue in this case at issue in this case is that in the uk in the two thousand and eleven case linda shearer was the beneficiary who was bringing the claims on behalf of the linda sheer trust  and ronnell sheerest children were remainder beneficiaries of the run of the share trust so the thirty million as you call it is divided up there are some that would go to linda share their son that would go to the children but ronald shearer would still be able to bring the legal malpractise claim because ronald shears interest wasn't protected in the two thousand and eleven trial ronald's or in in the first trial as his rights were protected in no your honor in in the first trial his rights were protected but because of the legal malpractise that's what this case is for in the second trial mr scheer's claims were never an issue just to put it most directly the ronald the claims by the ronald trost did not protect ronald sheer in the trial that's what you're saying that seems a little counterintuitive right were no claims by the ronald trust the reclaims by the beneficiaries so the  ronnie sheer trust was a party in the two thousand lemon case no your honor that's that's that's that's why i was trying to attempt to clarify the beneficiaries were the counterclaim defendants of the counter claimants same as in two thousand and eight it was not the trustee it was the beneficiaries the trustee was the defendant and in both cases what's the effect of that agreement that they all signed for him to represent their interests in the case of the effect of the agreement only resolve the conflict as to mr good representing them going forward if you look at if you look at the judge sure it's holding with respect to the when that issue was raised it only deals with the fact that mr good in the subsequent case can represent them there weren't there were the fact remains that there were no common interest case don't share the same interest in the case of one beneficiary bring a claim in two thousand and eleven and then a year later could another beneficiary of the trust bring you know basically the same claim but just it's protecting that beneficiary correct you keep doing that yes your honor because because they have because the beneficiaries have separate interests they have separate separate damages separate beneficial interests and that's and that's particularly the case here under the collateral estoppel doctrine on the privity issue there has to be in order to provide a client to be dismissed on collateral estoppel grounds they have to have the same legal right the same legal relie propriety or proprietary interest and this in a mutuality of interest so if the result were different in the underlying case for example if bank one as the trustee in two thousand and eleven had prevailed i'm sorry had the counter claimed had the counter claim it's prevailed the tax case that was just that just came down it just came down i do not know whether it was a guy not his counsel in that case i have to go check to see if it was that so let's just say it's accurate that the trust is the alter ego for ronald sure what does that do to this case i don't think it does anything to this case sure i think we move forward as we stand in this that's because the trust was only a defendant and not a counterclaim in two thousand and eleven the the the trust was not a party in two thousand  it was wrong was sheer who was a defendant as to the final accounting matter and the other counter claimants which were linda shear and the children who were counter claimants pursuing affirmative claims against the trust so that actual trusts weren't defendants or that perceiving was that just to find out how much money was involved and where it is they were there well in part yes that was the final accounting the the other beneficiaries asserted there counter claims the sharon the other beneficiaries objected to the final accounting there is a difference there's a six point two million dollar adverse judgment against against mr shear what happens if if you prevail here where does it go to go back if i if i have if i prevail here what's important to know your honour's is the is the whole concept of did he have a fair opportunity to litigate this is claims it was a one quick other question is anyone trying to collect the six point two million against ronald shear no so at this point now what are your damages when he saw as the adverse judgment against him your honor he still has that he still has the judgment against a six point two million dollars judgment finally on appeal that they want to execute on the second they pick up the phone the second they file something that they can pursue their judgment at any time why should we mean but why should we it sounds like an abstract question we're being asked to consider why should we resolve this without knowing that someone's going to try to collect that well here's a six point two million dollar judgment rendered against him your honor it would also have threat listen to both parts of the question but we also have a record that says no one's trying to collect it at this point but that  that can happen at any time your honor but i mean just because somebody's not trying to collect and now they can collect it tomorrow they can click to the next day just because at a point in time no one's trying to collect it it's just it's still an adverse judgment rendered against him it still affects his credit it still affects the whole metally of things it comes up all t but the but we're not here on the damages question at the end of the day your honor we're here we're here on the question of whether my client had a full and you have to have damaged have a claim ok so that's why i'm asking the point and i don't understand why we should insist on a record in which someone says we're actually going to try to collect this but we have a we have a judgment john there's a statute limit put in probably a statue limitations at some point well that and collecting it but to but those judgments can be written ohio they can be renewed every five years and so the judgment was rendered in two thousand and eight and they can continue to unbend i believe ten years to try to to why is no one collecting it because he doesn't have the money to  collect i don't know why no one is collecting it your honor i don't know i mean their family members and their trust but they could still try to collect of the fact remains that the plaintiff is that if they try to collect it what is the effect of this conflict of interest waiver the fact that they these at that potentially would be a defense my client would have maybe but the fact remains that he has a judgment asserted again against him and the judgment is enough to be damaged i mean he has six point two million dollars judgment against that's damage sufficient to cognizable claim your honor and the the beneficiaries of that judgment are family members at this point are the beneficiaries of the judgment of the trusts so if the if the trust controlled by family members of the are controlled by the trustee and and they're controlled by the trustee the family members have to go back and check i the bank is no longer the trustee right bank one is no longer the trustee drives a successor who is the trustee  point two million dollars judgment anyone can attempt to enforce it if they choose i see my time is up i'm going to continue to answer questions from this why don't we hear from a friend on the other side we haven't talked about the statue of limitations we may talk about that in a bottle thank you  summary judgment rendered on cotterell stoppel and my client's favor my clients have an appeal pending from the court's lower court's denial of our summary judgment on the statue limitations defense in the legal malpractise claim we don't even get to collateral  limitations has run and your honors the lower court committed a clear factual error when determining that a reasonable juror could conclude that the legal or that the attorney client relationship between mr scherer and my clients determination is an abuse of discretion and that's what we're arguing in ohio a legal malpractise claim has to be brought within one year of the the date of the cause of action arises in this case of determination of the attorney client relationship clear relationship can terminate by an affirmative clear and unambiguous act by either party in this case we have both parties making those acts but of most relevance is the fact that mr scheer in two thousand and ten july nineteen of two thousand  retain the law firm of chirping in good and pandora to represent his interests as well as the unified trust beneficiaries in proceeding with the underlying litigation in probate court from that point forward but why is it follow that the hiring of an additional firm proves you fired the other one i mean it happens all the time that someone wants to firms to help them or even if they eventually want to fire the first firm there's a transition period because you want to use the first ten the wiles firm never once appeared in the probate court never once via withdraw it did not file withdraw but that's not required in ohio for terminations already pretty normal practice it is normal  mean heck that's o c it leaves a firm you know you usually have to file something with the court to say make it clear that associates no longer working on the case your honor i agree with you actually there was a local rule of the probate court in franklin county that a motion to  should have been filed however the law in ohio does not require that as a term as a prerequisite to to terminate the attorney client relationship but your best proof that there was a west draw  the court never once again communicated with the whilst firm the court had held the wiles from in contempt for failure to appear a certain hearings if the court believe a while sure was in the case and they never once appeared again after july nineteen of two thousand and ten i'm pretty sure the court would have held them in contempt by that of it or maybe just to make sure we're pointing at the same question the question of whether this attorney client relationship probably is ultimately a fact question i think that's probably true it doesn't mean you lose but it's probably a fact question and i'm not sure this fact question as to whether the client an attorney think they have an attorney client relationship turns and what the court thinks i guess i'm i'm struggling with what that has to do with it i mean the question those emails are a little i think a little ambiguous i don't think so your honor says we are out and i think the facts prove that after that after mr while said that mr scherer stopped communicating with mr wiles for six months and then in the with each other they do communicate about that but that's not related to the trust litigation the related to test in this district for subsequent work and i would submit the facts on human conclude that the december two thousand e mails nothing that was going to correct anything in the trust litigation by filing a grievance actions against mr or against judge the the charming firm had been hired by mr scheer and the unified trust beneficiary us clear an affirmative act to terminate the attorney client relationship and ohio law is very clear that hiring an attorney to prosecute the exact claims that the other lawyer prosecuted or defended that is a clear terminations of  district courts in ohio that are cited in the brief and you understand the point i'm making clients hire two firms all the time i do start with one they're like whoa these there's a lot of firepower on the other side we're bringing in another firm it's not that's not an insult that's not automatic firing of the first firm but your honor when you hire a new firm to entirely take over the case when you're not using the old firm at all which mr scherer was not using the the wiles firm and all of the trust litigation he relied entirely upon the troponin firm in fact so but i mean i'm not i'm asking the questions to make sure i understand the best points you have but what this looks like is a case where it's just not clear when it happened i mean the premise of judge mo decision is it's a fact question in the senate to a jury there's some stuff pointing in both directions but the one thing we don't have is some date where you can just say yeah that's when it happened i'm not even sure the parties know when this thing terminated i believe we do have a date your honor and i believe it's july nineteenth two thousand they hired the second firm that's correct because again the wiles from had nothing to do with the case afterwards and in fact mr scheer he's fighting legal malpractise case against the wiles firm none of it includes any claims for anything that happened after july of two thousand and ten he's filed a separate legal malpractise claim against the jordanian firm and that claim is from july ten on if if the wildstorm the troponin former co counsel working together then they would be in the same case and there would be allegations in both cases what's this i cut you off when you were going to tell me there were some district court cases that say you know under ohio law the hiring of a second firm is automatically the terminations of the first firm well in  let me be clear automatic i don't know that that's the law but it does say that a clear act in hiring a new lawyer can be sufficient to terminate the attorney client relationship so there are there are cases out of the courts in the te and so the i think i think i think we get i think we get your statue limitations argument i mean i understand i do think it's a hard question but do you want to defend the ground i'm with you one i want you i want  honor i did i do and i want to remind the court that this is not the first time that mr scherer has been before this court and not the first time that a collateral stoppel argument has been before this court on mr scheer he was here in two thousand and twelve and this court held were a factual predicate of or essential element of the claim being asserted has already been determined collateral stoppel applies so here we have a legal malpractise case and everybody agrees that the case with thirty million went to other beneficiaries but none of it went to his interests like i said i would disagree with that ok because both the counter claims about thirty million dollars figure comes from in january of two thousand seven when mr weill's was representing mr shear mr wiles and another lawyer filed joint counter claims for all defendants there was no individual counterclaim for any individual defendants they were together when the case was kicked back to the probate court and the troponin firm steps in in two thousand and eleven and they pursue the exact same counter claims the unified trust beneficiary group including mr scherer hired the troponin firm to pursue those very same counter claims and mr scherer was a party in the two thousand and eleven case to the trust accounting and the trust accounting is in part what the six point two million dollars judgment was based on the transactions that make up a six point two million dollars judgment that he upset or sad to six point two million dollars judgment against him and that twenty eleven case the judgment was finally your honor in a prison and affirmed by the district court so i don't think he could have set it aside but however like it smaller or whatever he don't see how he could have done anything to make well like that go away the that the final accounting included that six point two million dollars judgment in the probate court was very clear and it's findings of fact in conclusions law in two thousand and eleven the mr scheer as a party and jointly with the other beneficiaries filed joint objections to the final accounting and stated very clearly that we are going to prove that mr scherer did not misappropriate those six point two million dollars and so the issue in collateral stop will is whether facts in issues have actually been litigated in the underlying case and people had a form fair opportunity to do it in the probate court was very clear that mr shear had full and fair opportunity with new lawyers with no discovery sanctions to actually challenge those six point two million dollars judgment those transactions that it's based upon the probate court say that in and language that  before us here it did it's actually paragraph two hundred thirty on the findings of fact and conclusions of law of two thousand and eleven i think i cited very clearly a few times but that the probate court said he had a foreign fair opportunity to challenge the transactions that make up the six point two million dollars judgment and he failed to do so mr sure argues in this case that in two thousand and seven because of discovery sanctions he was unable to call mr dean an accountant that worked for mr thompson who was accountant work for him they were precluded from testifying as to surf matters he was precluded from entering evidence none of those preclusion occurred in two thousand and eleven for one fair opportunity to present evidence whatever witnesses and he failed to do so the so for the six point two million dollar judgment the facts and issues that make up that six point two million dollars judgment were litigated by mr scherer in two thousand and eleven and under the case within a case doctor and he has to prove in this legal malpractise case that b for the alleged negligence he would have been more successful in the underlying case so he would have to prove but for the alleged negligence i would have successfully defended that six point two million dollar judgment that he had that for one fair opportunity in two thousand and eleven to do so via the trust accounting and he failed to do so and that's why the court was right in granting summary judgment in our favor now may go to the second part of the argument by appellant and that is the p it's true he was not a party to the counter claims but plaintiff marks pardon me the count in its brief and i quote says the factual and legal issues were identical and they witness is available in two thousand and be identical witness is available in two thousand and seven to the wiles firm were available to subsequent counsel for prosecution of the counter claims in two thousand and eleven there is no dispute that the facts in issues in the counter claims in two thousand and eleven were identical in the interest of the parties the unified trust beneficiary group were identical and that's clear when they stood before the probate court in march twenty fourth two thousand and eleven every beneficiary said we stand together we have a common interest we have a common goal we have a collective goal and we appoint mr scherer to actually prosecute this case for us to be our representative was he a party in this second case he was of he was to the final accounting he actually was a name party he was not a named party to the counter claims but our argument as the trial court found correctly was out i don't understand how trial court can ban it if you're not a party in the counter climate you can recover and have all these findings of fact i don't understand that because collateral stoppel applies not only to parties but also pretties to the parties so if there is an interest that is identical to the parties in the case and there are certain standards of property both defined by ohio law and the circuit in the trial court correctly found a few of those that number one his interests were aligned if if his interests were not aligned not at the beneficiaries would have stood together they wouldn't of put arm in arm with with mr sheer they waived any separate interest they may have ever had that they never sought any separate interests they sought counterclaims as a joint group to get money back to the trusts that's what their counterfeiters were and then by appointing mr scherer to service their representative to plan and coordinate strategy of the prosecution of the counter claims with the troponin firm the exercise control over those counterclaims on behalf of the beneficiary group what impact if any does it have this recent district court finding that the ronnie she trusts is the alter ego for ronald shear i thought i agree with that and i think i'm sure you do but i'm asking what pull the thread to pull the threads together what how does that affect the argument i think it is up or that is true i think it further shows that mr shear w and in control distrust and in control the beneficiaries from the get go but their interests have always been and will always be aligned and they were and all the trust means you control the beneficiaries i believe he does and i believe that's why all the beneficiaries stood together and said we don't think you did anything wrong we're not going to ask the trustee to pursue six point two million dollars we're not going to do that we stand together they've not permanently so i mean not entered they've not committed for all time not to pursue the six point two as of today they have not that struck can't i can't look into the future and know if they will or not but as of today i know they have not but one of the just do that and we can just walk away enough is enough in this case been going on a long trial court was correct in granting summary judgment on the collateral stoppel inhabit i mean this takes you back to coming up with a theory that solves the problem and it's not easy to pull these together it's a lot easier to say are you going to ask for the six point two are not or not is actually one of the plaintiff's experts in this case so that's what i wondered i saw a bank name somewhere in there but it looked to me like the whole thing with in control of the people that they're going to have a great one that it went to park national bank and now i it's with a i'm going to say an investment company i don't want to hear time limit on how much how long there is to force a judgment and is there a point at which this case really does get moo honor if there is i'm i'm i'm not i don't know the timeframe i know that judgments do you know high oh do go dormant after five years and the judgment was in two thousand and eight and we're now in two thousand  sarcasm i want to touch on a couple of things as to the six point two million dollars judgment the council is attempting to there's a distinction between the fact of how much money was left in the trusts for the for the final accounting and how the monies were allegedly taken away or absconded with so the issue in this legal malpractise case with respect to the six point two million dollar adverse judgment is not what was left in the trust by the way what was left in after all of this is there anything there i mean there were two companies that i probably should know that sitting here today on the issues on appeal i don't have that at the at the tip of my fingers there is there is there are some there is some there was something left in the trust because there was an accounting done but there certainly are a lot of lawyers that are running against whatever was left at this point is well well i wish we represent the  liable or not liable was not litigated and again under the collateral estoppel rule the mutuality of interest which is the which is part of the privy requirement if the result was the opposite had the counter claimants prevailed mr scherer still would have been on the  hook mr scherer could not inforce anything as to bank one and bank one could not enforce anything as to him for six points that's what you're going to when you say that yes yes your honor didn't the district court find that it could have been l have privity one issue is mutuality of interest and the test for mutuality of interest under the a b s case and under the price case is if the result would have been opposite what would happen to my client my client would have still been on the hook so if you would still be on the hook how can he be bound and that's the analysis i believe that's the analysis on in our brief on page forty six we go through that entire analysis which response to your part of the other side says the gesture was two thousand and eight and after five years these things you said earlier they can be renewed was this judgment renewed at within five years and i do i do not know whether it can be renewed it can be written for it can be read five years and then it could prune up to up to ten years i'm asking did that happen i am not aware of whether it happened or not your honor so from getting this straight here's the thing that seems to be happening that just does not seem right there's an intra family judgment money potentially out from some family members potentially to others no one wants to collect that but they want to use that factual predicate to bring money from outside the family into the family that seems wrong well your honor i think i'm right about what i just said the on the facts right right you know it about what i just said no one's trying to get the money within the family from each other that is correct your hand at the same time they're using the predicate of that on in force judgment to try to pull money from outside the family into the family e g from the wyles farm that just seems wrong you know i mean if there's a want to if you want to collect on this not practice have the family members prove that they care as opposed to using as a predicate to put more money into the family and there's been frankly a lot of misbehavior in this case by this family i don't i don't like that but your honor that would be a defense they would have to the legal malpracti claim if they wish and that would be something that would be litigated before judge marbury if there's an offensive if you when what i fear is happening could happen not a single dime from the six point two million is ever exchanged among family members they they pull more money into the family and that they collect i have a strong suspicion if they get a judgment that goes against someone outside the family i don't think they're going to wait too long to collect on that one am i right about that assumption i think so when they collect on on a judgment against a while from yes they would they would attempt to get a life and the concern the concern the concern about up and that just doesn't seem right but but yeah that would be a defense that could be asserted by the law firm should they wish to to search that defense  at the trial court level number one and number two there's still this is an abstract debate there's no case or controversy and tell anyone enforces that but your honor you but you do have you do have a judgment there's a judgment rendered against the client so that that's an adverse issues here but they have the ability it should they wish to renew the judgment for up to ten years under though i have statutes number one i don't know whether it's been renewed or whether it's not been renewed i don't know but those for renewal is done the case over yes but they can do but they can renew it up to five years i don't know whether the judgment has been renewed or whether it has not been renewed but those aren't facts that are at issue on this appeal so if they want to know the information about that will  parties but i'm pretty confident we're going to want to know that information well anyway i want to hear both sides have gone over do you have any other things you want to directly respond to you know i would just i want to touch on one just started limitations real quick  abusive disrupts question standard there facts abound and something that ought to go to a jury i don't understand why the contention is we have the letters in two thousand and thirteen the e mails in to december of two thousand and ten we have additional counsel we have we are out but it was a conditional we are out we are out if you are out my client was obviously not out so that that goes careening to a jury from our perspective your honor and the most important issue on the collateral estoppel i'd like to reiterate this one more time your honor the mutuality of interest on the we appreciate it we may have a question or two after argument for you all the answer and we'll take a brief