Roush v. Blazek , 2023 Ohio 3917 ( 2023 )

[Cite as Roush v. Blazek, 2023-Ohio-3917.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
FRANCES ROUSH, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiffs-Appellants : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2023 CA 0009
JAMES N. BLAZEK :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of
Common Pleas, Case No. 2020 CI 0266
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: October 27, 2023
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
OWEN J. RARRIC CRAIG G. PELINI
4775 Munson Street, Box 36963 8040 Cleveland Avenue N.W., Ste 400
Canton, OH 44735 North Canton, OH 44720
[Cite as Roush v. Blazek, 2023-Ohio-3917.]
Gwin, P.J.
{¶1} Appellant appeals the March 3, 2023 judgment entry of the Coshocton
County Court of Common Pleas granting appellee’s motion for summary judgment.
Facts & Procedural History
{¶2} The following facts are adduced from the depositions, exhibits attached to
the depositions, and other materials submitted in support and opposition to the motion for
summary judgment in this case, a legal malpractice action filed by appellant Frances
Roush against appellee James Blazek, an attorney.
Underlying Complaint and Litigation
{¶3} On May 3, 2019, appellant Frances Roush, on behalf of herself and her
three grandchildren, filed a complaint against realtor Carly Thompson, HER Realtors, and
Carly’s husband Jason Thompson (collectively “the Thompson Defendants”) for fraud,
breach of fiduciary duty, breach of contract, intentional inflection of emotional distress,
civil conspiracy, and respondeat superior.
{¶4} Appellant alleged in her complaint that, during her home search, Carly
Thompson suggested appellant purchase the home located at 102 Main Street in
Warsaw, Ohio. Further, that Carly Thompson informed appellant the inspections on the
home were “all good,” and she did not need to have further inspections. Finally, appellant
alleged that, subsequent to appellant’s purchase of the home, she discovered a bat
infestation and bat guano in the attic of the home.
{¶5} The Thompson Defendants filed a motion to compel discovery responses
from appellant on August 12, 2019. Appellee (Blazek) was served with the motion, but
appellant was not. On September 3, 2019, the trial court granted the motion to compel.
Coshocton County, Case No. 2023 CA 0009 3
The entry granting the motion to compel was served on appellee, but not appellant. On
September 13, 2019, appellee filed a document entitled “attorney withdrawal.” The
Thompson Defendants filed a motion to dismiss the fraud complaint on September 24,
2019. The motion was served on appellee, but not on appellant. Appellee filed an
“amended notice of withdrawal” on October 4, 2019. The trial court granted the motion
to dismiss, with prejudice, on October 15, 2019. The judgment entry of dismissal was
sent to appellee, but not appellant.
Representation by Blazek Prior to August 1, 2019
{¶6} The appellee in this case, attorney James Blazek, filed the case against the
Thompson Defendants as appellant’s attorney. Appellant and appellee initially met in
person to discuss the case on October 6, 2017. Appellant paid appellee $250 that day.
Appellant believed this was the amount necessary to retain appellee to represent her.
Appellee testified the $250 was for the consultation and for him exploring the case.
Appellee later applied the $250 towards the filing fee for the complaint. In February of
2019, appellant and appellee executed a contingency fee agreement. Appellee testified
he did not want to bill appellant hourly because appellant did not have the money to pay
an hourly rate.
{¶7} Both appellant and appellee testified they communicated about the case
primarily via phone, text, or e-mail. Both detailed communication issues they had with
each other.
{¶8} Appellant testified she would call appellee to see what was going on in the
case against the Thompson Defendants, but she never had a lot of conversation with him
about the status of the case. Appellant was upset because it took appellee over two years
Coshocton County, Case No. 2023 CA 0009 4
to file the complaint. Appellant stated that, during many of her phone calls with appellee,
he told her he would call her back, or he needed copies of something. Appellant stated,
“it was too much of a struggle” to communicate with appellee, she felt it was taking too
long, and she felt like appellee was stalling.
{¶9} Appellee stated he needed information he was not getting from appellant.
For example, appellant told appellee there was a real estate agent that came to
appellant’s door and informed appellant the Thompson Defendants knew about the bat
infestation prior to appellant purchasing the home. However, appellant could not
remember the agent’s name or number, so it took appellee time to track down the agent
and get information from her. In addition, though he received a few responses to his
questions from appellant, she often could not get her computer to work. Appellee stated
he had many telephone conversations with appellant. Frequently, appellant would not
call appellee back, so he would resort to calling her son. Appellee stated there was a
lack of communication that was frustrating for him. Appellee testified he mailed appellant
interrogatories and requests for admissions. After this, he attempted to contact appellant
multiple times to get information to respond to the interrogatories, but “I could not get her
to respond or mail me anything.”
{¶10} Both parties testified as to settlement offers made during the original case.
Appellant was asked, “do you know if a settlement offer was ever made on behalf of Carly
Thompson and those defendants to settle the lawsuit you filed?” She responded, “I did
not know of any settlements.” Appellant testified she was not aware of the settlement
offers to (1) take care of the problem or (2) buy the house back. Appellant stated she
was not interested in selling the house back because she and her grandchildren were
Coshocton County, Case No. 2023 CA 0009 5
settled in the home. Appellant “didn’t believe there was a dollar amount that they would
just offer to take care of the problem.” Appellant stated she never told appellee to make
a settlement demand on her behalf for a specific monetary amount.
{¶11} Appellee testified the Thompson Defendants offered to buy the house back.
He stated he relayed this offer to appellant. However, appellant told appellee she liked
the house, and did not want to move out of the house. Appellee stated he personally
discussed settlement offers with appellant of $1,500, $3,000, $3,500, the amount to repair
the infestation, and buying the house back, via telephone. However, appellant refused
all of these settlement offers. As to an e-mail from counsel for the Thompson Defendants
regarding a settlement offer that went unanswered, appellee stated, “because the answer
was no. I mean, I probably called him and said no, but, I mean, I – the answer was still
no. We had to keep going.”
The Events of August 1, 2019, and Blazek’s Representation Subsequent to
August 1, 2019
{¶12} Appellant testified she terminated appellee on August 1, 2019. She first told
him he was fired via telephone, as she stated, “I’m done,” and hung up the phone on him.
Later that afternoon, she sent appellee a text stating, “I Frances Roush, will no longer be
needing attorney James (Jay) Blazek as of August 1, 2019 at 2:30 p.m.” Appellant
testified appellee did not tell her she needed to find another lawyer. However, appellant
was aware that, after she fired appellee, she was going to need to find another lawyer to
represent her in the litigation against the Thompson Defendants. Appellant had no
expectation that appellee was going to continue working on her case because she fired
him. Appellant “didn’t think there was anything else he could do. He was – I was done.”
Coshocton County, Case No. 2023 CA 0009 6
Appellant had no further contact with appellee after August 1, 2019, except for one phone
call she made in July of 2020 to ask for her legal paperwork. Appellant never received a
bill from appellee.
{¶13} Subsequent to terminating appellee, appellant did not contact another
attorney for several months. Appellant stated she discovered the case was dismissed
sometime in October of 2019. In November of 2019, she contacted another attorney in
Zanesville. She was supposed to have a meeting with the other attorney, but he cancelled
three times, so appellant “was done.”
{¶14} Appellee sent a letter to appellant on November 5, 2019, notifying her that
her case was dismissed, advising her to hire new counsel, and to move to reopen the
proceedings immediately. Appellee testified he followed the rules of professional
responsibility after appellant terminated him on August 1, 2019. Appellee stated he did
not file the discovery responses because, at that point, appellant had fired him.
Inspection & Damages
{¶15} Appellant testified she knew she had the right to have the home inspected,
but Carly Thompson told her she did not need an inspection. Thus, she chose not to
have her own inspection until after the purchase of the home, and after she discovered
the bat guano. Appellant admitted that if she had done an inspection of the home, she
would have discovered the bat guano, because it had been there for some time. Appellant
stated if she had known about the bat guano, she would not have purchased the property.
{¶16} Appellant also testified to the damages she incurred as a result of the
actions by the Thompson Defendants. She spent approximately $1,000 of her own
money out-of-pocket to fix the attic, much of it going to Terminix. She also paid $500 for
Coshocton County, Case No. 2023 CA 0009 7
a dumpster to get rid of items in the attic. Appellant did not receive any bodily injury as a
result of the presence of the bat guano, and did not claim any medical or psychological
amounts as damages. A new roof has been installed on the home. Appellant did not pay
out-of-pocket for the roof because she received a grant from the Community Housing
Impact & Preservation (CHIP) Program that covered the entire cost of the new roof.
Appellant has not hired anyone to do any work on the attic area since the roof was
replaced two years ago. Appellant confirmed she has not incurred any costs as a result
of what appellee failed to do other than the damages she sought to obtain in the complaint
against the Thompson Defendants.
{¶17} When asked if the underlying case was a strong case, appellee stated he
felt it was a strong case on the issues of negligence and fraud. Appellee stated he knew
he could get the amount to fix the attic, which he estimated at $10,000, but he was unsure
if he could obtain punitive damages or attorney fees. Appellee felt the weakness in the
case was “whether [they] could get any damages in excess of the actual cost of mitigating”
the bat issue. Appellee felt $75,000 would be a good result since he was unsure whether
the case would warrant punitive damages, and because the monetary damages were low.
Legal Malpractice Case
{¶18} On October 13, 2020, appellant, on behalf of herself and her grandchildren,
filed a complaint for legal malpractice against appellee. The legal malpractice case is the
case currently on appeal before this Court. Appellee filed an amended answer to the
complaint on November 25, 2020.
{¶19} Appellee filed a motion for summary judgment on December 21, 2022.
Appellant filed a response to the motion for summary judgment. She attached several
Coshocton County, Case No. 2023 CA 0009 8
affidavits and reports to her response, including the expert report of Attorney F. Richard
Heath (“Heath”). Appellee filed a reply in support of the motion for summary judgment.
{¶20} The trial court issued a judgment entry on March 3, 2023, granting
appellee’s motion for summary judgment. As to appellant’s argument that appellee failed
to exercise due diligence in not timely filing the complaint, the trial court found no issue
of fact because the complaint was filed within the statute of limitations and because
appellant did not argue that any delay in the filing resulted in a loss of witnesses or loss
of evidence. In regards to appellant’s argument that she did not receive any settlement
offers, the trial court found that, even if appellee did not communicate the settlement offer
to appellant, she was not damaged by any lack of communication because the undisputed
evidence demonstrates appellant was not interested in selling the house to the Thompson
Defendants.
{¶21} As to appellant’s claim that appellee failed to respond to discovery requests,
the trial court found as follows: appellant terminated the services of appellant on August
1, 2019 via text message at 2:30 p.m.; appellant was aware appellee was no longer her
lawyer; appellant did not rescind the termination text; appellant knew she needed to hire
a new lawyer; appellant knew when she fired appellee, he would not be doing any more
work for her; appellant did not contact another lawyer until November of 2019; in
November and December, appellant made two appointments with lawyers, but cancelled
them both; appellant made no further attempts to hire new counsel; once appellee was
terminated, he had no authority to take action on behalf of appellant; appellant became
aware of the dismissal in October; on November 5, 2019, appellee informed appellant
that her complaint was dismissed and told her if she wished to hire new counsel and
Coshocton County, Case No. 2023 CA 0009 9
reopen the proceedings, she had to do so immediately and failure to do so would result
in a permanent bar to refiling; when appellant terminated appellee, she knew the
discovery responses were due; appellant had over seven weeks from August 1, 2019 to
September 23, 2019 to retain new counsel, but failed to do so; and appellee’s lack of
response to the interrogatories and requests for production was not a proximate cause to
damage to appellant because the damages were caused by appellant’s seven-week lack
of response, her failure to hire new counsel, and failure to failure a motion.
{¶22} Finally, the trial court addressed appellant’s argument that appellee failed
to properly withdraw from representation and failed to adequately prevent prejudice to
appellant’s interests. The trial court found: after appellee was terminated, he had no
authority to proceed with filings on appellant’s behalf; appellee informed appellant her
case had been dismissed and she should hire new counsel; appellant failed to take any
steps to appeal or file a Civil Rule 60(B) motion despite having adequate time to do so;
there is no evidence that appellant would have done anything differently if appellee had
filed his withdrawal notices differently; the attorney-client relationship terminated when
she terminated appellee on August 1, 2019; a violation of a Rule of Professional Conduct
does not itself create grounds for an action against an attorney and the rules are not
designed to be the basis for civil liability; and local rules providing for withdrawal of
attorneys are administrative rules designed to notify the court that the relationship has
ended.
{¶23} Appellant appeals the March 3, 2023 judgment entry of the Coshocton
County Court of Common Pleas, and assigns the following as error:
Coshocton County, Case No. 2023 CA 0009 10
{¶24} “I. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT TO APPELLEE BECAUSE: (1) GENUINE ISSUES OF MATERIAL FACT
EXIST AS TO THE DUTIES OWED BY APPELLEE TO APPELLANT, WHETHER HE
BREACHED THOSE DUTIES, AND WHETHER APPELLANT WAS DAMAGED AS A
RESULT, (2) THE TRIAL COURT DID NOT CONSTRUE THE FACTS IN A LIGHT MOST
FAVORABLE TO THE NON-MOVING PARTY, AND (3) THE TRIAL COURT
ERRONEOUSLY FAILED TO RECOGNIZE THAT VIOLATIONS OF THE RULES OF
PROFESSIONAL CONDUCT MAY BE EVIDENCE OF BREACH OF THE APPLICABLE
STANDARD OF CONDUCT.
{¶25} II. IN GRANTING APPELLEE’S MOTION FOR SUMMARY JUDGMENT,
THE TRIAL COURT IMPROPERLY RELIED ON AN EXPERT REPORT THAT
APPELLEE SUBMITTED AFTER SUMMARY JUDGMENT BRIEFING CONCLUDED.”
Summary Judgment Standard
{¶26} Civil Rule 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
Coshocton County, Case No. 2023 CA 0009 11
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶27} A trial court should not enter summary judgment if it appears a material fact
is genuinely disputed, nor if, construing the allegations most favorably towards the non-
moving party, reasonable minds could draw different conclusions from the undisputed
facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The
court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer
Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A
fact is material if it affects the outcome of the case under the applicable substantive law.
Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.
1999).
{¶28} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
I.
{¶29} In her first assignment of error, appellant contends the trial court committed
error in granting appellee’s motion for summary judgment.
{¶30} Appellant’s complaint is an action in legal malpractice. To state a cause of
action for legal malpractice in Ohio, a plaintiff must show: (1) the attorney owed a duty or
Coshocton County, Case No. 2023 CA 0009 12
obligation to the plaintiff; (2) there was a breach of that duty or obligation and the attorney
failed to conform to the standard required by law; and (3) there is a causal connection
between the conduct complained of and the resulting damage or loss.” Vahila v. Hall, 77
Ohio St.3d 421, 674 N.E.2d 1164 (1997). With regard to the second element (breach), a
plaintiff must establish a failure to conform to the applicable standard of care. R&J
Solutions, Inc. v. Moses, 10th Dist. Franklin No. 19AP-703, 2021-Ohio-1315. “The duty
of an attorney to his client is to * * * exercise the knowledge, skill, and ability ordinarily
possessed and exercised by members of the legal profession similarly situated, and to
be ordinarily and reasonably diligent, careful, and prudent in discharging the duties he
has assumed.” Id.Representation Prior to August 1, 2019
{¶31} Appellant first contends the trial court committed error in granting appellee’s
motion for summary judgment because there are questions of fact as to whether appellee
breached his duty and caused damages in his representation of appellant prior to August
1, 2019. We agree.
{¶32} The trial court found no genuine issue of material fact as to whether
appellee breached the standard of care by failing to present appellant with settlement
offers. The trial court reasoned that, even if appellee failed to present appellant with
settlement offers, the undisputed evidence demonstrates that appellant would not have
accepted the settlement because she did not want to sell the home.
{¶33} We find the testimony of appellant and appellee demonstrates a genuine
issue of material fact as to whether appellee breached his duty to appellant by failing to
present her with settlement offers. Appellant testified she was not aware of the settlement
Coshocton County, Case No. 2023 CA 0009 13
offers to take care of the problem or buy the house back. Appellant additionally presented
evidence of breach and proximate damages in the form of the affidavit of Heath, who
offered his expert opinion that appellee’s failure to convey to appellant an offer by the
Thompson Defendants to settle the dispute by repurchasing the property was a breach
of appellee’s duty, and was the proximate cause of damages. Appellee testified he
personally advised appellant of all of the settlement offers in the case, including the offer
to fix the problem and/or buy the house back, and that she refused all of the settlement
offers.
{¶34} An attorney’s failure to disclose a settlement offer to a client may expose
the attorney to a claim of legal malpractice. Krahn v. Kinney, 43 Ohio St.3d 103, 538
N.E.2d 1058 (1989). Whether appellant would have accepted the settlement offer is not
determinative of whether appellee breached his duty as her attorney to present her the
offer, particularly on a summary judgment motion, when the allegations must be
construed most favorably towards appellant.
{¶35} The trial court further found no genuine issue of material fact as to whether
appellee breached the standard of care by failing to act with due diligence in not filing the
complaint and starting discovery in a timely manner.
{¶36} We find the testimony of appellant and appellee demonstrates there is a
genuine issue of material fact as to whether appellee breached his duty by failing to act
with reasonable diligence. Appellant testified she would call appellee, but appellee did
not have any case updates, and communication with appellee was a struggle. Further,
Heath opined appellee breached his duty to appellant by failing to exercise due diligence
in the timely filing of a complaint and timely issuance of a demand letter. Appellee stated
Coshocton County, Case No. 2023 CA 0009 14
he needed information to file the complaint from appellant that he was not getting, and
that, despite his multiple attempts to contact her, appellant would not return his calls.
{¶37} The trial court found no genuine issue of material fact as to whether
appellee breached the standard of care by failing to property respond to discovery
requests prior to August 1, 2019.
{¶38} We find the testimony of appellant and appellee demonstrates there is a
genuine issue of material fact as to whether appellee breached his duty by failing to
properly respond to discovery requests prior to August 1, 2019. Appellant testified she
provided appellee with documents he requested multiples times, and he continued to ask
her for these documents. Heath opined that appellee breached his duty to appellant by
failing to properly respond to discovery requests from opposing counsel. Appellee
testified appellant would not respond to his questions regarding the interrogatories, even
after he mailed the interrogatories to her and called her multiples times.
{¶39} Based on the foregoing, we find there are genuine issues of material fact as
to whether appellee breached his duty to appellant prior to August 1, 2019, and whether
any alleged breach was the proximate cause of damages.
Representation After August 1, 2019
{¶40} Appellant also argues the trial court committed error in granting appellee’s
motion for summary judgment because there are questions of fact as to when appellee’s
representation of appellant terminated. Alternatively, appellant contends the trial court
committed error in granting summary judgment because, even if appellee’s
representation of appellant terminated on August 1, 2019, there are questions of fact as
to whether appellee breached his duty to appellant and proximately caused appellant
Coshocton County, Case No. 2023 CA 0009 15
damages by his actions post-termination. We agree with appellee that there are
questions of fact as to whether appellee breached his duty to appellant and proximately
caused appellant damages due to his actions or inactions after August 1, 2019 when
appellant discharged appellee as her attorney.
{¶41} The trial court and appellee focus on appellant’s testimony that she knew
she needed to get another lawyer and knew appellee would not do any work for her after
August 1, 2019 because she fired him. However, simply because appellant terminated
appellee on August 1, 2019 does not automatically equate to a summary judgment finding
in favor of appellee. As detailed below, a Rule of Professional Conduct is one factor that
can be considered in determining whether a lawyer breached the standard of care. Rule
1.16(d) provides that, “as part of the termination of representation, a lawyer shall take
steps, to the extent reasonably practicable, to protect a client’s interest.” The comments
to Rule 1.16(d) provide, “even if the lawyer has been unfairly discharged by the client, a
lawyer must take all reasonable steps to mitigate the consequences to the client.”
{¶42} The evidence demonstrates there are genuine issues of material fact as to
whether appellee took reasonable steps to mitigate the consequences to appellant after
August 1, 2019. Jackson v. McKinney, 2nd Dist. Montgomery No. 26288, 2015-Ohio-
1977. The motion to compel filed on August 12, 2019, the judgment entry granting the
motion to compel and ordering responses by September 23, 2019, and the October 10,
2019 judgment entry of dismissal were served only on appellee, not on appellant.
Appellee testified that once he was terminated, he had no authority to act on behalf of
appellant. Further, that on November 5, he notified appellant the case had been
Coshocton County, Case No. 2023 CA 0009 16
dismissed, and advised her to immediately hire new counsel. Finally, appellee stated
appellant was aware the interrogatories were due.
{¶43} Appellant testified she was not aware of the entry granting the motion to
compel or the show cause order because appellee did not contact her to tell her about
them. Further, appellant stated appellee did not send her or offer to send her the file for
the case until she called him in July of 2020 to ask for her file. Heath opined that appellee
did not take steps to protect appellant’s interest after the August 1, 2019 termination
because he did not give notice to the client of the motions and orders, and he did not
allow reasonable time for employment of other counsel. Heath concluded appellee
“fail[ed] to take adequate measures to prevent prejudice to Mrs. Roush’s interests.” Heath
stated this breach of duty proximately damaged appellant.
{¶44} The trial court focuses on whether appellant would have done something
differently had she been aware of the motions or orders. However, this is not
determinative of whether appellee breached his duty to appellant. Further, we find the
cases cited by the trial court and appellee deal with when the statute of limitations accrues
on a legal malpractice claim, which is not at issue in this case.
{¶45} We find the evidence and testimony demonstrates a genuine issue of
material fact exists as to whether appellee breached his duty to appellant upon his
termination, and whether any alleged breach proximately caused damages to appellant.
Rules of Professional Conduct
{¶46} In their response to the motion for summary judgment, appellant included
and cited several Rules of Professional Conduct that appellee allegedly violated in his
representation of appellant to demonstrate that appellee breached the standard of care.
Coshocton County, Case No. 2023 CA 0009 17
Appellant also submitted the expert report of Heath, who opined that appellee violated
several of the Rules of Professional Conduct in his representation of appellant, and thus
breached the duty of care owed to appellant by appellee. The trial court based its
judgment, in part, on its determination that a violation of a Rule of Professional Conduct
does not create grounds for an action against an attorney for legal malpractice.
{¶47} While the trial court is correct that a violation of the disciplinary rules does
not, in itself, create a private cause of action against an attorney, because the rules
establish standards of conduct for lawyers, the rules can be utilized as evidence to
establish a breach of the standard of care. Jackson v. McKinney, 2nd Dist. Montgomery
No. 26288, 2015-Ohio-1977; Revolaze LLC v. Dentons US LLP, 8th Dist. Cuyahoga No.
109742, 2022-Ohio-1392 (utilized professional conduct rule to determine if breached
duty). As the Ohio Supreme Court has stated, “while the failure to comply with general
rules of conduct, like the rules of [professional] conduct involved in the case before us,
will not ordinarily constitute negligence per se, it is a circumstance that can be considered,
along with other facts and circumstances, in determining whether the actor has acted with
reasonable concern for the safety and welfare of others – that is, with due care.”
Krischbaum v. Dillon, 58 Ohio St.3d 58, 567 N.E.2d 1291 (1991). Accordingly, the
summary judgment evidence presented by appellant that appellee violated several Rules
of Professional Conduct is one circumstance that can be considered, along with other
facts and circumstances, in determining whether appellee breached the standard of care.
Because this evidence creates a genuine issue of material fact as to whether appellee
violated the standard of care, we find summary judgment inappropriate.
Coshocton County, Case No. 2023 CA 0009 18
II.
{¶48} In her second assignment of error, appellant contends the trial court
improperly relied on an expert report in its summary judgment entry that appellee
submitted after summary judgment briefing concluded.
{¶49} In reviewing the trial court’s judgment entry, we find no mention of the expert
report appellant contends was improperly utilized. However, based upon our
determination in the first assignment of error that there are genuine issues of material fact
on the issue of legal malpractice, we find appellant’s second assignment of error is moot.
{¶50} Based on the foregoing, appellant’s first assignment of error is sustained.
Appellant’s second assignment of error is moot. The March 3, 2023 judgment entry of
the Coshocton County Court of Common Pleas is reversed and remanded for
proceedings consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur