Hinton v. Masek , 2014 Ohio 2890 ( 2014 )

[Cite as Hinton v. Masek, 2014-Ohio-2890.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ALAN HINTON, : OPINION
Plaintiff-Appellant, :
CASE NO. 2013-T-0110
- vs - :
RAYMOND MASEK, ESQ., :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CV
02788.
Judgment: Affirmed.
Alan Hinton, pro se, 278 Crandall Avenue, Youngstown, OH 44504 (Appellant).
Matthew T. Norman and Alan M. Petrov, Gallagher, Sharp, Fulton & Norman, Sixth
Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, OH 44115-2108 (For
Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Alan Hinton, appeals from the judgment of the Trumbull County
Court of Common Pleas, granting appellee, Raymond Masek, Esq., summary judgment.
At issue is whether the trial court erred in entering judgment against appellant for his
failure to enlist an expert to establish his claim for legal malpractice. We affirm the
judgment of the trial court.
{¶2} Trinity Highway Products, LLC, employed appellant between August 1993
and January 2012, most recently as a “kettle helper.” Appellant’s duties as a kettle
helper included cleaning a large kettle filled with molten zinc and assisting the
“kettleman.” On January 25, 2012, appellant’s supervisor instructed him to clean the
kettle on two separate occasions. Appellant stated he would not clean the kettle and
admitted he intentionally left the kettle dirty because a co-worker left the kettle dirty for
his shift. Appellant was subsequently terminated for insubordination. Appellant filed a
grievance regarding his termination. Appellant’s union recommended that appellant
enter into a last chance agreement with Trinity; appellant rejected the advice and the
termination was upheld.
{¶3} In February 2012, appellant retained appellee to pursue a potential claim
for age discrimination against Trinity. The parties entered into a fee agreement for legal
services and, on March 26, 2012, appellee filed a complaint on appellant’s behalf
against Trinity in the Trumbull County Court of Common Pleas, alleging appellant was
terminated due to his age, in violation of R.C. Chapter 4112. Trinity subsequently filed a
notice of removal to federal court. As a result, in May 2012, the case was removed to
the United States District Court, Northern District of Ohio.
{¶4} Through August 2012, appellee, on behalf of appellant, and Trinity
engaged in settlement negotiations. The negotiations culminated in an August 21, 2012
oral agreement to settle appellant’s claim. The terms of the settlement required Trinity to
pay appellant $7,000 in exchange for his dismissal of the case and release of all claims
against Trinity. When appellee advised appellant a settlement had been reached,
appellant objected to the terms of the agreement, claiming he did not authorize appellee
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to settle the matter. Despite appellant’s protests, Trinity sought to enforce the
agreement.
{¶5} Due to appellee’s and appellant’s disagreement over appellee’s authority
to settle the case, the trial court granted appellee’s motion to withdraw as appellant’s
counsel. Appellant continued pro se in the Trinity litigation and the trial court ultimately
denied Trinity’s motion to enforce the settlement agreement. The case proceeded on
the merits and, ultimately, the district court entered summary judgment in Trinity’s favor.
{¶6} Meanwhile, on December 14, 2012, appellant filed a pro se complaint
against appellee for legal malpractice. The complaint alleged appellee was retained to
represent appellant in the Trinity litigation, but failed to effectively do so and, eventually,
appellee withdrew as appellant’s counsel. In January 2013, appellee filed an answer
and counterclaim. Appellee denied any wrongdoing and further sought recovery of
unpaid legal fees. The trial court entered an order setting forth a litigation schedule
according to which appellant was required to disclose any experts and their reports by
July 11, 2013. Appellant failed to meet this deadline. And, on September 3, 2013,
appellee filed his motion for summary judgment.
{¶7} In late September and early October 2013, appellant filed various letters
and other documents which, in his view, included an “expert opinion” in support of the
malpractice allegation. The documents, however, related to an ancillary grievance
proceeding filed by appellant and included no expert report that would support
appellant’s allegation that appellee committed legal malpractice.
{¶8} On October 21, 2013, the trial court entered summary judgment in
appellee’s favor. The court determined that appellant’s late filings, purporting to include
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an expert opinion, were both inadequate under Civ.R. 56(E) and subject to
confidentiality under the rules governing the disciplinary process in Ohio. The court
further emphasized that the purported expert opinion failed to address the primary
issues in the underlying action; namely, the standard of care that was breached which
proximately caused appellant’s alleged damages. The court acknowledged that an
expert report may be unnecessary if the alleged malpractice is so manifest as to be
within the ordinary ken and experience of a layperson. The court determined, however,
that the circumstances of the underlying case did not present such an obvious case of
malpractice to place it outside the general rule requiring an opinion of an expert.
{¶9} The trial court consequently concluded that, although an attorney-client
relationship was established, there was no evidence to support appellant’s allegation
that appellee breached any professional obligation he owed appellant that proximately
caused appellant harm. The court therefore determined there was no genuine issue of
material fact to be litigated regarding appellee’s professional negligence. This appeal
followed.
{¶10} Appellant assigns two apparent errors for this court’s review. His first
assignment of error reads simply:
{¶11} “Breach of contract of attorney/client relationship”
{¶12} Appellant contends the trial court erred in awarding appellee summary
judgment because his legal malpractice claim did not require expert testimony to
establish whether appellee breached his professional duty.
{¶13} 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;
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(2) “the moving party is entitled to judgment as a matter of law;” and (3) “it appears from
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.” 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 (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.
{¶14} To establish a claim for legal malpractice a plaintiff must show: (1) an
attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3)
damages suffered by a client as a result of that attorney’s breach of duty. Sprague v.
Simon, 144 Ohio App. 3d 437, 441 (11th Dist.2001), citing Krahn v. Kinney, 43 Ohio
St.3d 103, 105 (1989). Failure to prove any one of these elements entitles a defendant
to summary judgment on a legal malpractice claim.
{¶15} “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 (1st Dist.1983). In all but a few
cases, expert testimony is required to support allegations of legal malpractice.
Brunstetter, supra.
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{¶16} In his motion for summary judgment, appellee presented an affidavit
averring he breached no professional duty to appellant; he further argued that, even if a
breach could be inferred from the facts, appellant suffered no resulting prejudice.
Appellee’s motion was sufficient to shift the burden requiring appellant to establish a
genuine issue of material fact. For the reasons that follow, we hold he failed to do so.
{¶17} In his brief, appellant blankly asserts his claim for malpractice does not
require expert testimony because appellee’s conduct was so obviously negligent that an
expert opinion was unnecessary. We do not agree.
{¶18} Appellant asserts that appellee “allowed” the case to be removed to
federal court without his consultation or consent. The record suggests Trinity, not
appellee, sought removal to the federal court. And, even if appellant wished to contest
the removal, we fail to see how appellee’s decision not to seek appellant’s input on the
matter is such an obvious error that it would rise to the level of a breach of his
professional duty. Further, the record indicates that appellee’s oral settlement of the
case may have been unauthorized; while, in the abstract, this might be an obvious
breach of appellee’s professional duty, the potential breach caused appellant no
damage. The trial court eventually determined that appellant was not bound by the
settlement and he continued to prosecute the matter pro se. Moreover, the fact that
appellee negotiated appellant a $7,000 settlement on a case in which Trinity was
awarded summary judgment further supports the conclusion that appellee’s
representation was consistent with his professional obligations. Appellant’s actions,
consequently, do not constitute negligence as a matter of law.
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{¶19} Despite appellant’s conclusory statement, we fail to discern what aspect
of appellee’s representation was so obviously negligent that appellant was not required
to submit an expert report. Under the circumstances, an expert was necessary to opine
on the manner in which appellee’s representation allegedly fell below professional
standards of conduct as well as how the alleged breach proximately caused appellant
damage. Because appellant failed to submit an expert report, appellee was entitled to
judgment as a matter of law.
{¶20} Appellant’s first assignment of error is without merit.
{¶21} Appellant’s second assignment of error reads:
{¶22} “Diversity jurisdiction and Remand”
{¶23} Appellant offers no argumentation in support of this assignment of error.
Pursuant to App.R. 16(A)(7), it is not well taken.
{¶24} Appellant’s second assignment of error lacks merit.
{¶25} For the reasons discussed above, the judgment of the Trumbull County
Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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