Tobin v. Steptoe & Johnson, P.L.L.C.

[Cite as Tobin v. Steptoe & Johnson, P.L.L.C., 2018-Ohio-2957.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
James M. Tobin, Individually and as :
Administrator of the Estate of
Bruce Tobin, Deceased, :
Plaintiff-Appellant, : No. 17AP-821
(C.P.C. No. 17CV-4040)
v. :
(ACCELERATED CALENDAR)
Steptoe & Johnson, PLLC, :
Defendant-Appellee. :
D E C I S I O N
Rendered on July 26, 2018
On brief: James M. Tobin, pro se. Argued: James M. Tobin.
On brief: Porter Wright Morris & Arthur, LLP, and
Robert W. Trafford, for appellee. Argued: Robert W.
Trafford.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, James M. Tobin, individually and as administrator of the
estate of Bruce Tobin, deceased, appeals from the judgment of the Franklin County Court
of Common Pleas granting summary judgment in favor of defendant-appellee, Steptoe &
Johnson, PLLC ("Steptoe & Johnson"). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On April 28, 2017, Tobin, individually and as administrator of the estate of
his deceased son, Bruce Tobin, initiated a pro se action against Steptoe & Johnson alleging
legal malpractice in connection with the unsuccessful prosecution of a wrongful death claim
against the hospital where Bruce died, University Hospital East ("Hospital"). In September
No. 17AP-821 2
2017, Steptoe & Johnson moved for summary judgment, arguing that the action was barred
by the applicable statute of limitations, and that the action also failed as a matter of law
because Steptoe & Johnson, the only named defendant, cannot be directly liable for legal
malpractice. The trial court granted Steptoe & Johnson's motion for summary judgment
and dismissed Tobin's complaint with prejudice. Tobin timely appeals.
II. Assignment of Error
{¶ 3} Tobin's appellate merit brief does not expressly set forth any assignment of
error as required under App.R. 16(A)(3). His failure to comply with the requirements of
App.R. 16(A) is grounds to dismiss the appeal. CitiMortgage, Inc. v. Asamoah, 10th Dist.
No. 12AP-212, 2012-Ohio-4422, ¶ 5, citing App.R. 3(A) and App.R. 18(C). However, it is
within our discretion to review the matter on the merits. Tonti v. Tonti, 10th Dist. No.
06AP-732 (May 31, 2007). Accordingly, here we will construe Tobin's brief as setting forth
the following sole assignment of error:
The trial court erred in granting summary judgment in favor of
Steptoe & Johnson.
III. Discussion
{¶ 4} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12. Pursuant to Civ.R. 56(C),
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 as
to any material fact and that the moving party is entitled to judgment as a matter of law."
Accordingly, summary judgment is appropriate only when the moving party demonstrates
(1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as
a matter of law, and (3) reasonable minds could 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 most strongly construed in its favor. Civ.R.
56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 183 (1997).
{¶ 5} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St. 3d 280,
No. 17AP-821 3
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case; the
moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St. 3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with
specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430;
Civ.R. 56(E).
{¶ 6} Here, Tobin sued Steptoe & Johnson for allegedly committing legal
malpractice. To 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. Goldberg v.
Mittman, 10th Dist. No. 07AP-304, 2007-Ohio-6599, ¶ 10. " 'The term "malpractice" refers
to professional misconduct, i.e., the failure of one rendering services in the practice of a
profession to exercise that degree of skill and learning normally applied by members of that
profession in similar circumstances.' " (Emphasis omitted.) Natl. Union Fire Ins. Co. of
Pittsburgh, PA v. Wuerth, 122 Ohio St. 3d 594, 2009-Ohio-3601, ¶ 15, quoting Strock v.
Pressnell, 38 Ohio St. 3d 207, 211 (1988), citing 2 Restatement of the Law 2d, Torts, Section
299A (1965); see Illinois Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner Co.,
L.P.A., 10th Dist. No. 10AP-290, 2010-Ohio-5872, ¶ 15 ("Claims arising out of an attorney's
representation, regardless of their phrasing or framing, constitute legal malpractice
claims.").
{¶ 7} Pursuant to an engagement agreement signed in May 2012, Tobin retained
Steptoe & Johnson in connection with the administration of the estate of Bruce Tobin for
the purpose of evaluating and prosecuting a wrongful death claim. In November 2012, and
by separate agreement, Tobin retained Steptoe & Johnson to prosecute the wrongful death
claim on behalf of the estate of Bruce Tobin. Soon thereafter, an attorney with Steptoe &
Johnson filed a complaint on behalf of the estate against the Hospital in the Court of Claims
No. 17AP-821 4
of Ohio. After a four-day trial in February 2015, the Court of Claims granted judgment in
favor of the Hospital. On March 2, 2015, a Steptoe & Johnson attorney timely filed a notice
of appeal from the Court of Claims' judgment on behalf of the estate. Approximately two
weeks later, Steptoe & Johnson and its attorneys moved to withdraw as appellate counsel
for the estate, which this court granted. A few days before that withdrawal, Tobin accused
Steptoe & Johnson of committing malpractice at trial and he informed the firm he had
begun drafting a complaint against it. Thereafter, Steptoe & Johnson provided no
additional legal services to Tobin in connection with the wrongful death claim.
{¶ 8} Tobin's claim against Steptoe & Johnson fails because he did not name any
individual attorney as a defendant in his lawsuit against the firm. A law firm does not
engage in the practice of law and therefore cannot directly commit legal malpractice.
Wuerth at paragraph one of the syllabus. But a law firm may be vicariously liable for the
legal malpractice of its principals or associates based on the agency relationship between a
law firm and its attorneys. Wuerth at ¶ 22.1 " '[T]he liability for the tortious conduct flows
through the agent by virtue of the agency relationship to the principal.' " Id., quoting Comer
v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, ¶ 20, citing Losito v. Kruse, 136 Ohio St. 183
(1940), and Herron v. Youngstown, 136 Ohio St. 190 (1940). Consequently, "a law firm
may be vicariously liable for legal malpractice only when one or more of its principals or
associates are liable for legal malpractice." Wuerth at ¶ 26. Thus, any liability of Steptoe &
Johnson for legal malpractice would necessarily depend on Tobin proving that one or more
firm attorneys committed malpractice. Because Tobin did not sue any individual attorney,
Steptoe & Johnson is entitled to judgment as a matter of law.
{¶ 9} Additionally, Tobin's claim against Steptoe & Johnson is barred by the
applicable statute of limitations. A party must file a claim for legal malpractice within one
year of the time the cause of action accrues. R.C. 2305.11(A); Smith v. Conley, 109 Ohio
St.3d 141, 2006-Ohio-2035, ¶ 4. An action for legal malpractice accrues "when there is a
cognizable event whereby the client discovers or should have discovered that his injury was
1 Also, as noted in former Chief Justice Thomas Moyer's concurring opinion in Wuerth, the Supreme Court's
holding in that case did not "foreclose the possibility that a law firm may be directly liable on a cause of
action other than malpractice." Wuerth at ¶ 35. But that possibility of a viable cause of action pursued
directly against a law firm is not at issue here because Tobin's claim against Steptoe & Johnson is for legal
malpractice.
No. 17AP-821 5
related to his attorney's act or non-act and the client is put on notice of a need to pursue his
possible remedies against the attorney or when the attorney-client relationship for that
particular transaction or undertaking terminates, whichever occurs later." Zimmie v.
Calfee, Halter & Griswold, 43 Ohio St. 3d 54 (1989), syllabus.
{¶ 10} Here, Steptoe & Johnson's representation of Tobin in the wrongful death
matter formally ceased on March 18, 2015, when this court granted the firm's request to
withdraw as counsel in the appeal. Further, the evidence before the trial court
demonstrated that, a few days before that withdrawal, Tobin sent a communication to
Steptoe & Johnson essentially alleging malpractice by its attorneys in connection with the
prosecution of the wrongful death action. Thus, the statute of limitations required Tobin
to file his legal malpractice action by March 18, 2016. He filed his action against Steptoe &
Johnson on April 28, 2017. Therefore, Tobin's legal malpractice claim against Steptoe &
Johnson is time-barred.
{¶ 11} Accordingly, Tobin's legal malpractice claim against Steptoe & Johnson fails
as a matter of law on two independent bases. Because the trial court properly granted
summary judgment in favor of Steptoe & Johnson, we overrule Tobin's sole assignment of
error.
IV. Disposition
{¶ 12} Having overruled Tobin's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and SADLER, JJ., concur.