Sericola v. Johnson , 98 N.E.3d 874 ( 2017 )

[Cite as Sericola v. Johnson, 2017-Ohio-8200.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
FRANK SERICOLA, : OPINION
Plaintiff-Appellant, :
CASE NO. 2016-T-0060
- vs - :
ROBERT L. JOHNSON, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV
00651.
Judgment: Affirmed.
Charles E. McFarland, 338 Jackson Road, New Castle, KY 40050 (For Plaintiff-
Appellant).
Robert L. Johnson, pro se, 1400 Ohio Avenue, McDonald, OH 44437 (Defendant-
Appellee).
DIANE V. GRENDELL, J.
{¶1} Plaintiff-appellant, Frank Sericola, appeals from the judgment of the
Trumbull County Court of Common Pleas, granting summary judgment in favor of
defendant-appellee, Robert L. Johnson, on Sericola’s claims arising from alleged legal
malpractice. The issues to be determined by this court are whether summary judgment
is proper in a legal malpractice case when the damages that occurred were a result of
actions taken by the plaintiff rather than the attorney, and whether the trial court abuses
its discretion in denying a motion to reconsider the denial of the plaintiff’s request for
summary judgment when the evidence supports granting the defendant’s motion for
summary judgment. For the following reasons, we affirm the decision of the lower court.
{¶2} Sericola was previously involved in litigation in Trumbull County Court of
Common Pleas Case No. 2011 CV 1717, where he was represented by appellee,
Attorney Robert Johnson. The case related to Sericola’s alleged involvement in running
a Ponzi scheme and defrauding plaintiffs out of their investments. In that matter,
summary judgment was granted against Sericola and he purportedly entered into a
settlement agreement in March 2013 to sign over an annuity worth approximately
$328,000 in exchange for a release of all claims. On April 24, 2013, at a hearing on a
motion to enforce the settlement agreement, Sericola signed an Agreed Judgment Entry
to give up that annuity.
{¶3} Sericola subsequently filed an appeal with this court, which held that the
settlement constituted a waiver of “the right to appeal any issues other than those
related to the formation or acceptance of the settlement.” Carbone v. Sericola, 11th
Dist. Trumbull No. 2013-T-0053, 2014-Ohio-3526, ¶ 13. Also Carbone v. Sericola, 11th
Dist. Trumbull No. 2014-T-0109, 2015-Ohio-4025 (affirming judgment on a Civ.R. 60(B)
motion on similar grounds).
{¶4} In the present case, on March 28, 2014, Sericola filed a Complaint against
Johnson, raising counts of Legal Malpractice, Intentional and Negligent
Misrepresentation, Intentional and Negligent Infliction of Emotional Distress, Breach of
Fiduciary Duty, and Fraud. These arose from allegations that Johnson failed to provide
competent representation in the aforementioned legal proceedings. Among Sericola’s
complaints were Johnson’s failure to file various motions and responses, as well as the
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failure to communicate with Sericola. Sericola alleged that Johnson “fraudulently
advise[d]” him to settle without disclosing that summary judgment had already been
granted and agreed to a settlement without Sericola’s consent.
{¶5} On June 12, 2014, Johnson’s counsel filed a Notice of Appearance and
Request for Leave to Plead. On June 20, 2014, Sericola filed an Application for Default
Judgment. The trial court issued a Judgment Entry on July 17, 2014, granting
Johnson’s Request for Leave, with the Application for Default Judgment rendered moot.
{¶6} Johnson filed an Answer on July 22, 2014.
{¶7} Sericola filed a Motion for Admission of Facts Per Rule 36 on May 20,
2015, arguing that certain facts should be deemed admitted due to Johnson’s failure to
respond to discovery requests.
{¶8} On June 26, 2015, Sericola filed a Motion for Summary Judgment.
Attached to the Motion was Sericola’s affidavit, in which he averred that Johnson did not
communicate with him about possible defenses, did not inform him that the court had
granted summary judgment against him, told him that the case could not be won, and
agreed to sign over the annuity against Sericola’s wishes. The affidavit also explained
that Sericola later signed over the annuity during an April 2013 hearing at which the
“magistrate * * * told [Sericola] that [he] would be sanctioned if [he] did not sign over the
annuity.” Sericola stated that, as a result of this, he has “been in serious emotional
distress over [his] finances.”
{¶9} Johnson filed a Motion for Summary Judgment on June 29, 2015,
attached to which was his affidavit, in which he averred that he had been in repeated
contact with Sericola during the prior proceedings, that he had advised Sericola of the
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motion for summary judgment, that Sericola refused to comply with requests for
information to defend the motion for summary judgment, that he discussed settlement
with Sericola based upon factors including his violation of a preliminary injunction, and
that Sericola had orally agreed to the settlement. Also attached was an April 24, 2013
Agreed Judgment Entry in 2011 CV 1717, signed by Sericola, in which he agreed to
settle the matter and sign over his annuity.
{¶10} On July 22, 2015, the trial court issued a Judgment Entry granting
Johnson’s Motion for Summary Judgment and denying Sericola’s Motion for Summary
Judgment, finding no genuine issue of material fact existed.
{¶11} Sericola appealed to this court in Sericola v. Johnson, 11th Dist. Trumbull
No. 2015-T-0091, 2016-Ohio-1164, raising multiple errors. This court held that the trial
court had failed to give Sericola proper notice of a hearing date for Johnson’s Motion for
Summary Judgment and reversed in part and remanded “to give Sericola notice of the
date of the hearing on Johnson’s Motion for Summary Judgment (whether it be oral or
non-oral) and to allow him time to respond to the Motion prior to that date.” Id. at ¶ 37.
{¶12} On April 26, 2016, Sericola filed a Motion for Summary Judgment, which
states that it is a “Response to Johnson’s Motion for Summary Judgment that was filed
on June 29, 2015.” Attached was an affidavit containing the same averments outlined
above.
{¶13} On April 28, 2016, Sericola filed a Motion for Reconsideration of the July
22, 2015 Judgment Entry as it related to the denial of his Motion for Summary
Judgment.
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{¶14} The trial court issued a May 19, 2016 Judgment Entry, in which it denied
Sericola’s Motion for Reconsideration, given this court’s reversal of the July 22, 2015
Judgment Entry. As to summary judgment, it found that “Sericola entered into a
settlement agreement with the Plaintiffs in the first litigation on the sound advice of his
legal counsel. Sericola then terminated his legal counsel and again entered into the
same agreement of his own free will and volition and without any undue influence.” The
court noted that prior attempts to invalidate the settlement had been denied by the trial
court and the appellate court, and Sericola’s suggestion that the magistrate “strong
arm[ed]” Sericola into signing an Agreed Judgment Entry was false. Finding that there
were no genuine issues of material fact under dispute, the court granted Johnson’s
Motion for Summary Judgment.
{¶15} Sericola timely appeals and raises the following assignments of error:
{¶16} “[1.] The trial court for the Trumbull County Court of Common Pleas erred
in denying Sericola’s Motion for Reconsideration of the denial of Sericola’s Motion for
Summary Judgment.
{¶17} “[2.] The trial court for the Trumbull County Court of Common Pleas erred
in granting a motion for summary judgment in favor of the defendant.”
{¶18} For ease of discussion, we will address Sericola’s assignments of error in
reverse order. In his second assignment of error, Sericola argues that the trial court
erred in granting summary judgment in Johnson’s favor.
{¶19} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows “that there is no genuine issue as to any material fact” to be litigated,
(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from
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the evidence * * * that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence * * * construed most strongly in the
party’s favor.”
{¶20} A trial court’s decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “A de novo review requires the appellate
court to conduct an independent review of the evidence before the trial court without
deference to the trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist.
Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27.
{¶21} Sericola argues that genuine issues of material fact exist as to his claims,
given that the only evidence presented by Johnson was a “self-serving” affidavit that is
contradicted by statements in Sericola’s affidavit and admissions made by Johnson.
{¶22} Multiple claims were filed by Sericola, although he generally refers in his
brief only to “legal malpractice.”
{¶23} “[T]he Ohio Supreme Court has held that ‘[t]o establish a cause of action
for legal malpractice based on negligent representation, a plaintiff must show (1) that
the attorney owed a duty or obligation to the 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 a causal connection between the conduct complained of and
the resulting damage or loss.’” Garland v. Simon-Seymour, 11th Dist. Geauga No.
2009-G-2897, 2009-Ohio-5762, ¶ 47, quoting Vahila v. Hall, 77 Ohio St.3d 421, 674
N.E.2d 1164 (1997), syllabus. “Failure to prove any one of these elements entitles a
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defendant to summary judgment on a legal malpractice claim.” Hinton v. Masek, 11th
Dist. Trumbull No. 2013-T-0110, 2014-Ohio-2890, ¶ 14.
{¶24} For Sericola’s claims for Fraud and Misrepresentation, it was necessary to
prove: “(a) a representation or, where there is a duty to disclose, concealment of a fact,
(b) which is material to the transaction at hand, (c) made falsely, with knowledge of its
falsity, or with such utter disregard and recklessness as to whether it is true or false that
knowledge may be inferred, (d) with the intent of misleading another into relying upon it,
(e) justifiable reliance upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance.” Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d
54, 55, 514 N.E.2d 709 (1987).
{¶25} Finally, to succeed on the Breach of Fiduciary Duty claim, Sericola “must
establish the existence of a fiduciary duty, a breach of that duty, and an injury
proximately resulting therefrom.” Kirila v. Kirila Contrs., Inc., 11th Dist. Trumbull No.
2015-T-0108, 2016-Ohio-5469, ¶ 31.
{¶26} We recognize that there are factual disputes on several issues in this case
relating to Johnson’s representation of Sericola. Sericola’s and Johnson’s affidavits
present conflicting versions of the events, including whether Johnson was truthful in his
assertions that he discussed the summary judgment motion and the court’s ruling on the
motion with Sericola, and whether Johnson misrepresented Sericola’s intention to settle.
Generally, “[i]n the summary judgment process, when a genuine issue of fact is
presented by conflicting affidavits, the trial court must reserve its judgment on the
credibility of the affiants by setting the matter for trial.” Wells Fargo Bank, N.A. v. Scott,
2d Dist. Montgomery No. 26552, 2015-Ohio-3269, ¶ 26. Thus, it would be improper at
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this stage to grant summary judgment solely on the grounds that Johnson has denied
the allegations about his conduct made by Sericola. As is evident from further review,
however, these factual disputes are solely on issues unnecessary for proper resolution
of this case.
{¶27} For the Malpractice, Fraud/Misrepresentation, and Breach of Fiduciary
Duty claims, a critical element that must be proven to prevail is that Johnson’s conduct,
even when viewed in a light most favorable to Sericola, caused the damages that he
requests. Sericola contends that Johnson’s conduct caused him to sign over his
annuity. A review of the undisputed facts, however, supports a conclusion that
Johnson’s conduct did not cause the damage/loss requested by Sericola.
{¶28} In March 2013, the possibility of settlement in 2011 CV 1717 was
discussed. Both parties state in their affidavits that there was an agreement
communicated to the plaintiffs that Sericola would sign over his annuity. Sericola’s
affidavit indicated that he told Johnson he did not want to do so but that Johnson “went
ahead and agreed for me to sign over the annuity against [my] wishes.” Johnson’s
affidavit indicates that, following settlement discussions in March, “the trial court was
advised of all of the details of the settlement agreement and a signed entry by the
parties was to be submitted to the court,” however, Sericola did not agree to sign it.
“Upon [Sericola] refusing to sign the settlement agreement, a request to enforce
settlement agreement was filed.” On the date that the enforceability of the settlement
was set for a hearing, April 24, 2013, Sericola signed an Agreed Judgment Entry, in
which he agreed to surrender his annuity to settle the claims against him.
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{¶29} As this court held in Carbone, at the time Sericola signed that Agreed
Judgment Entry, he “affirmatively stated that he understood the settlement terms and
that settlement was of his own free will.” 2014-Ohio-3526, at ¶ 17.
{¶30} Considering these facts, which are not disputed in the opposing affidavits,
it cannot be determined that Johnson was responsible for the signing over of the
annuity. Sericola, after indicating displeasure and concern with Johnson’s
representation, had terminated him at the time he signed the April 24 Agreed Judgment
Entry. Sericola did not show that the court would have enforced the settlement
agreement at that hearing, had he himself not decided to sign the Agreed Judgment
Entry. Sericola chose to do this on his own, while no longer represented by Johnson,
and that Judgment Entry resulted in Sericola’s liability. In March 2013, when the parties
apparently reached an agreement but Sericola did not sign it, the plaintiffs properly
requested that the court enforce settlement and, the court was entitled to determine
whether that agreement was enforceable. In such circumstances, the trial court could
have and would have considered whether the parties had actually even agreed to a
settlement, as well as evaluating “whether the parties’ expressions are uncertain due to
or ‘in light of accompanying factors and circumstances’ arising in the particular case.”
Jones v. Mellinger, 7th Dist. Columbiana No. 13 CO 11, 2014-Ohio-722, ¶ 26, citing
Rulli v. Fan Co., 79 Ohio St.3d 374, 376, 683 N.E.2d 337 (1997). Here, it is impossible
to determine whether the trial court would have even enforced the initial settlement
agreement since Sericola voluntarily chose to sign an Agreed Judgment Entry at the
hearing on the motion to enforce.
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{¶31} In relation to Sericola’s claim that Johnson failed to respond to the
plaintiffs’ summary judgment motion in 2011 CV 1717, which led to the court’s ruling in
the plaintiffs’ favor, he provides no argument as to how this caused his injury, or
whether filing a response would have changed the outcome of the proceedings below.
He could have presented expert testimony through a deposition to address this issue.
“Summary judgment in favor of the attorney is appropriate when a plaintiff fails to supply
expert testimony on alleged negligence that is ‘neither within the ordinary knowledge of
the layman nor so clear as to constitute negligence as a matter of law.’” Brunstetter v.
Keating, 11th Dist. Trumbull No. 2002-T-0057, 2003-Ohio-3270, ¶ 16, quoting Bloom v.
Dieckmann, 11 Ohio App.3d 202, 203, 464 N.E.2d 187 (1st Dist.1983). “In all but a few
cases, expert testimony is required to support allegations of legal malpractice.” Hinton,
2014-Ohio-2890, at ¶ 15. Sericola did not prove that the failure to file a Motion for
Summary Judgment amounted to malpractice.
{¶32} Sericola also raised claims for Intentional and Negligent Infliction of
Emotional Distress. “In a case for intentional infliction of emotional distress, a plaintiff
must prove (1) that the defendant intended to cause the plaintiff serious emotional
distress, (2) that the defendant’s conduct was extreme and outrageous, and (3) that the
defendant’s conduct was the proximate cause of plaintiff’s serious emotional distress.”
Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994). Recovery
on a claim of negligent infliction of emotional distress has been limited “to such
instances as where one was a bystander to an accident or was in fear of physical
consequences to his own person” and there is “cognizance of a real danger.” (Citations
omitted.) Frazier v. Kent, 11th Dist. Portage No. 2006-P-0082, 2007-Ohio-5782, ¶ 71.
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{¶33} There is no indication in this matter that serious or severe emotional
distress occurred, that Johnson’s conduct caused such distress, or that Johnson’s
conduct was “extreme and outrageous.” While the affidavit claimed “serious distress”
based on Sericola “wondering how he will make it through retirement,” there is no
evidence to support a claim that he suffered “mental anguish * * * so severe and
debilitating that ‘a reasonable person, normally constituted, would be unable to cope
adequately with the mental distress engendered by the circumstances of the case.’”
Valentino v. Bd. of Edn., 11th Dist. Lake Nos. 2009-L-083 and 2009-L-089, 2010-Ohio-
5515, ¶ 48, citing Paugh v. Hanks, 6 Ohio St.3d 72, 78, 451 N.E.2d 759 (1983). Such
distress, even if present, was not adequately linked to the alleged actions of Johnson.
{¶34} Sericola argues that the trial court’s grant of summary judgment in favor of
Johnson was based on the prior settlement rather than the issues raised in his response
to Johnson’s Motion for Summary Judgment. For the reasons outlined above, the
settlement was a relevant consideration in determining whether a grant of summary
judgment was proper in this case.
{¶35} Sericola also contends that Johnson’s affidavit supporting summary
judgment was in conflict with “facts already admitted by him” due to his failure to
respond to requests for admissions in the present case.
{¶36} A review of the record shows that on May 20, 2015, Sericola filed a Motion
for Admission of Facts Per Rule 36, in which he alleged that he received no response to
a Request for Admissions sent to Johnson’s attorney. He also raised this issue in his
summary judgment pleadings. The trial court ruled that it would “not allow a procedural
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mechanism in the Civil Rules to rewrite history in favor of Sericola under these
circumstances.”
{¶37} Even if, for the sake of argument, we concluded that these facts were
admitted, it would not change the result in this case. None of the alleged admissions
relate to the facts necessary to reach a determination that summary judgment was
warranted given the lack of a relationship between Johnson’s alleged conduct and the
“injury” of Sericola signing over his annuity.
{¶38} The second assignment of error is without merit.
{¶39} In his first assignment of error, Sericola argues that the trial court
improperly rejected his Motion for Reconsideration of the judgment denying his Motion
for Summary Judgment.
{¶40} “It is well established that the filing of a motion for reconsideration from a
final order in the trial court is a nullity.” Kuss v. Clements, 11th Dist. Portage No. 2012-
P-0023, 2012-Ohio-1678, ¶ 4, citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378,
379, 423 N.E.2d 1105 (1981). However, appellate courts have reviewed “[a] trial court’s
decision whether to reconsider a previous interlocutory order * * * under an abuse of
discretion standard.” Savage v. Kucharski, 11th Dist. Lake No. 2005-L-141, 2006-Ohio-
5165, ¶ 37.
{¶41} This court previously reversed and remanded the grant of summary
judgment in Johnson’s favor, since Sericola was not given the proper opportunity to
respond to Johnson’s Motion for Summary Judgment. Sericola argues that this
rendered the court’s ruling denying his Motion for Summary Judgment in the same
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Judgment Entry not final, which allowed him to file a Motion for Reconsideration upon
remand.
{¶42} Even presuming this to be the case, it was not error to deny the Motion for
Reconsideration. The Motion lacked merit since a grant of summary judgment in
Johnson’s favor was warranted for the reasons discussed above. Sericola’s Motion for
Summary Judgment was properly denied on these grounds and reconsideration was
unwarranted.
{¶43} The first assignment of error is without merit.
{¶44} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, granting summary judgment in favor of Johnson, is affirmed. Costs to
be taxed against appellant.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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