Niederst v. Kohrman, Jackson & Krantz, L.L.P.

[Cite as Niederst v. Kohrman, Jackson & Krantz, L.L.P., 2022-Ohio-2579.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
BRENDA NIEDERST, ET AL., :
Plaintiffs-Appellants, :
No. 110913
v. :
KOHRMAN, JACKSON
& KRANTZ, L.L.P., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-943747
Appearances:
Burkes Law, LLC, and John F. Burke, III, for appellants.
Reminger Co., L.P.A., Holly Marie Wilson, and Brianna
Marie Prislipsky, for appellees.
EILEEN T. GALLAGHER, J.:
Plaintiffs-appellants, Wynn Investments, L.L.C. and Brenda Niederst
(“Brenda”) (collectively “Appellants”), appeal an order granting summary judgment
in favor of defendants-appellees, Korhman, Jackson & Krantz, L.L.P. (“KJK”) and
several lawyers of that firm, who were also named as defendants. Brenda claims the
following error:
The trial court erred when it granted summary judgment to
defendants-appellees.
We affirm the trial court’s judgment.
I. Facts and Procedural History
Appellants retained KJK and its attorneys to represent their interests
in litigation brought against them by Mark Niederst (“Mark”) and Niederst Portage
Towers, L.L.C. The dispute involved a disagreement between Brenda and her
brother, Mark, over their respective obligations relating to their joint ownership of
two apartment buildings known as “Portage Towers” and “Cross Creek.” Through
private mediation, the parties reached a settlement on December 5, 2016, wherein
they agreed to divide the properties at issue, with Brenda receiving the entire
interest in Cross Creek, and Mark receiving the entire interest in Portage Towers
along with a payment from Brenda in the amount of $650,000. Niederst v.
Niederst, 2018-Ohio-5320, 128 N.E.3d 800 (9th Dist.).
The parties’ settlement agreement outlined the general terms of the
agreement with the understanding that the parties would enter into a more
definitive agreement within seven days, at which time they would execute and
record the deeds to complete the transfers of real estate and dismiss the case with
prejudice. Approximately one month later, in January 2017, Mark filed a motion to
enforce the settlement, alleging that Brenda refused to sign the more definitive
settlement agreement. Following a hearing, the parties entered into a new
settlement agreement that provided a timeline for performance and designated a
closing date for the transfer of properties.
The parties’ settlement agreement required Mark and Brenda to
transfer their interests in both properties under section 1031 of the Internal Revenue
Code, 26 U.S.C. 1031, which provides a narrow exception to the general rule that
taxpayers are required to recognize all gains from the sale or exchange of property
in the year of realization. Thus, the parties and their lawyers had to consider the tax
consequences resulting from the transfer of the properties, which were of disparate
value, while negotiating the transaction.
In February 2017, Mark filed another motion to enforce the settlement
agreement against Brenda, who had still not signed the more definitive statement of
the agreement. This time, Mark requested sanctions and attorney fees. Although
the closing date had not yet passed, Mark argued that Brenda failed to cooperate by
refusing to sign loan-extension documents, which were needed because Portage
Towers was then in default. In response, Brenda argued that she was excused from
performance because Mark, himself, had breached the settlement by failing to
timely transfer employee files, bank stubs, and his interest in two money-market
accounts.
Following a hearing, a magistrate found that Brenda had breached the
settlement agreement by failing to sign the loan-extension documents for the
mortgage on Portage Towers. As a result of the breach, the magistrate found that
Mark was entitled to attorney fees and bank fees totaling $46,204.06. The
magistrate did not award sanctions against Brenda because her motive for
withholding the signature on the loan documents was “unclear.” Niederst, 2018-
Ohio-5320, 128 N.E.3d 800, at ¶ 6.
Both Brenda and Mark filed objections to the magistrate’s decision.
Brenda objected to the magistrate’s failure to find that Mark materially breached the
settlement agreement, the magistrate’s finding that Mark was damaged by Brenda’s
breach, and the magistrate’s finding that Mark was entitled to $11,176.45 in damages
for bank fees. Id. Mark objected to the magistrate’s finding on damages, arguing
that damages should also be awarded for attorney fees incurred from December
2016 through January 2017, for attending two hearings, and for sanctions due to
Brenda’s bad faith and repeated breaches. Id. The trial court adopted the
magistrate’s ruling, with a modification finding that Mark had been improperly
awarded $11,176.45 in bank fees that were precluded by the agreement. Niederst v.
Niederst, Summit C.P. No. CV-2016-07-3026, 2017 Ohio Misc. LEXIS 13399 (Oct.
12, 2017). The Ninth District affirmed the trial court’s judgment. Niederst, 2018-
Ohio-5320, 128 N.E.3d 800.
Following the appeal, Brenda filed a legal malpractice action against
KJK, alleging that various individually named attorneys at the firm failed to
subpoena “essential documents,” improperly drafted the settlement agreement,
failed to call witnesses to testify, and failed to call Brenda as a witness in her own
defense. The complaint alleged that as a result of KJK’s negligence, Brenda was
forced to settle litigation with unfavorable terms that did not reflect her damages.
Brenda dismissed her complaint against KJK without prejudice
pursuant to Civ.R. 41(A) within a month of filing it and refiled the complaint shortly
thereafter. At a case-management conference in March 2021, the court set the fact-
discovery deadline for June 4, 2021, and plaintiff’s expert report deadline for June
10, 2021. The court also granted the parties leave until July 19, 2021, to file
dispositive motions.
On June 8, 2021, four days after the fact-discovery deadline had passed
and two days before Brenda’s expert report deadline, Brenda filed a motion to
extend her expert-report deadline, asserting that the parties had not yet completed
fact discovery. KJK filed a response to the motion, requesting a similar extension of
its expert deadline because it was still waiting for discovery responses from Brenda.
The trial court denied both motions, noting that “all parties have been noncompliant
with the discovery schedules” and that “neither side filed a motion to compel.”
(Journal entry dated June 12, 2021.) The court’s journal entry further stated that
the court would review the request to extend expert deadlines if the parties complied
with the new dates set forth in the order.
Both parties produced their outstanding discovery and filed a joint
notice that discovery had been exchanged in compliance with the court order.
Although the court had indicated that it would revisit the request to extend expert
deadlines, Brenda did not file a renewed motion to extend her expert deadline. KJK
later filed a motion for summary judgment, arguing that Brenda could not support
a claim for legal malpractice without expert testimony because the allegations set
forth in her complaint described actions involving legal strategy that a layperson
could not fully comprehend or appreciate without the assistance of an expert
witness.
Brenda opposed the motion for summary judgment, arguing that
expert testimony was not necessary to maintain her legal-malpractice claim because
KJK’s negligence was so obvious that it could be determined from the ordinary
knowledge of a layperson. Brenda submitted an affidavit setting forth her own
account of KJK’s negligence in support of her brief in opposition to the motion for
summary judgment. In her brief in opposition, Brenda argued, in relevant part:
Here the undisputed facts contained in the Affidavit of Brenda Niederst
clearly outline multitudes of failures of the defendants on numerous
occasions, as outlined in the affidavit of Brenda Niederst, the
defendants failed to follow the plaintiff’s instructions, failed to conduct
depositions, failed to communicate with plaintiffs and failed to obtain
documents that would have demonstrated the fraud of Mark.
Defendants were aware of this fraud yet failed to follow up and obtain
the evidence requested by the plaintiff. They failed to conduct a single
deposition or obtain any of the requested documents.
These failures are clear and obvious legal malpractice which require no
expert testimony.
(Plaintiff’s brief in opposition to defendants’ motion for summary judgment p. 19.)
KJK moved to strike Brenda’s affidavit, arguing it was not in
compliance with Civ.R. 56(C) because it was improperly executed, relied on hearsay
statements, and quoted extensively from materials that were not in the record.
Brenda did not oppose the motion to strike, and the court granted the motion as
unopposed. (Journal entry dated Aug. 25, 2021.) Brenda later filed another affidavit
that included copies of emails, financial statements, draft contracts, and other
documents filed in the underlying lawsuit by KJK.
At a subsequent pretrial conference, neither Brenda, or the parties
jointly, suggested filing a joint motion to dismiss the case without prejudice,
presumably to allow Brenda time to obtain an expert. Because Brenda had already
voluntarily dismissed her case pursuant to Civ.R. 41(A), only a dismissal by the court
would prevent a dismissal with prejudice. The court’s docket indicates that the court
granted the parties leave until September 20, 2021, to file the joint motion. (See
journal entry dated Sept. 14, 2021.) No joint motion was ever filed. Consequently,
on September 21, 2021, the court issued an order granting summary judgment in
favor of KJK. Brenda now appeals the trial court’s judgment.
II. Law and Analysis
In her sole assignment of error, Brenda argues the trial court erred in
granting KJK’s motion for summary judgment on her legal-malpractice claim.
We review a trial court’s ruling on a motion for summary judgment de
novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
The party moving for summary judgment bears the burden of demonstrating the
absence of a genuine issue of material fact as to the essential elements of the case
with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280,
292, 662 N.E.2d 264 (1996). Once the moving party demonstrates entitlement to
summary judgment, the burden shifts to the nonmoving party to produce evidence
related to any issue on which the party bears the burden of production at trial. Civ.R.
56(E). Summary judgment is appropriate when, after construing the evidence in a
light most favorable to the party against whom the motion is made, reasonable
minds can only reach a conclusion that is adverse to the nonmoving party. Zivich v.
Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
To prevail on a legal malpractice claim, the plaintiff must establish “(1)
an attorney-client relationship, (2) professional duty arising from that relationship,
(3) breach of that duty, (4) proximate cause, (5) and damages.” Shoemaker v.
Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, 887 N.E.2d 1167, ¶ 8, citing
Vahila v. Hall, 77 Ohio St.3d 421, 427, 674 N.E.2d 1164 (1997). Because the
elements of a legal-malpractice claim are stated in the conjunctive, the failure to
establish any one element of the claim is fatal. Estate of Hards v. Walton, 8th Dist.
Cuyahoga No. 93185, 2010-Ohio-3596, ¶ 7; Williams-Roseman v. Owen, 10th Dist.
Franklin No. 99AP-871, 2000 Ohio App. LEXIS 4254 (Sept. 21, 2000).
It is undisputed that Brenda and KJK had an attorney-client
relationship and that KJK owed her a professional duty arising from that
relationship. KJK argued in its motion for summary judgment that Brenda could
not establish that KJK breached its professional duty to her without expert
testimony. As a general rule, legal malpractice must be established with expert
testimony. Bloom v. Dieckmann, 11 Ohio App.3d 202, 203, 464 N.E.2d 187 (1983).
Except in unusual circumstances, an action in legal malpractice may
not be maintained without expert testimony that supports the
plaintiff’s theory that his attorney failed to exercise the standard of care
ordinarily exercised by attorney in handling the matter in question.
Rice v. Johnson, 8th Dist. Cuyahoga No. 63648, 1993 Ohio App. LEXIS 4109, 5 (Aug.
26, 1993); see also Kent’s Excavating Servs. v. Leneghan, 8th Dist. Cuyahoga No.
104820, 2017-Ohio-1371, ¶ 16, citing C&K Indus. Servs. v. McIntyre, Kahn & Kruse
Co., L.P.A., 2012-Ohio-5177, 984 N.E.2d 45, ¶ 34 (8th Dist.) and McInnis v. Hyatt
Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984) (“Generally, in order
to survive summary judgment in a claim of legal malpractice, the plaintiff must
provide expert testimony in order to demonstrate the breach of an attorney’s
standard of care.”).
“Expert testimony is required so that the trier of fact does not have to
speculate on the standard of care, particularly in a complex case involving real estate
transactions which are normally not within the realm of understanding of the
layman.” Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 512, 573
N.E.2d 159 (10th Dist.1989).
Brenda argues expert testimony was not necessary in this case because
the malpractice was so clear and obvious that it could be determined from the
ordinary knowledge of a layperson. Indeed, where the claimed malpractice is “so
simple and obvious,” expert testimony is not required to demonstrate the breach of
the attorney’s standard of care. Kent’s Excavating Servs., 8th Dist. Cuyahoga No.
104820, 2017-Ohio-1371, ¶ 16, citing Hirschberger v. Silverman, 80 Ohio App.3d
532, 538, 609 N.E.2d 1301 (6th Dist.1992); Cross-Cireddu v. Rossi, 8th Dist.
Cuyahoga No. 77268, 2000 Ohio App. LEXIS 5480 (Nov. 22, 2000).
Brenda relies on Harris v. Rossi, 2018-Ohio-4573, 123 N.E.3d 284(11th Dist.), and Estate of Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-
Ohio-3596, in support of her argument that expert testimony was not necessary to
establish her legal-malpractice claim against KJK. In Harris, plaintiffs filed a legal-
malpractice action against their attorney, alleging the attorney negligently failed to
notify them of the dismissal of their case and of their right to appeal before the notice
of appeal deadline had passed. In Walton, the plaintiff sued her attorney, alleging
that he negligently failed to file a response to a motion for judgment on pleadings,
“causing the court to grant it as unopposed.” Walton at ¶ 1. In both cases, the alleged
malpractice arose from the attorneys’ failure to meet court deadlines, for which
there was no strategic justification, and the courts found that expert testimony was
not necessary to establish the malpractice in those cases.
Niederst’s allegations of malpractice are more complex than merely
missing a court deadline. Her allegations of malpractice involve tactical decisions
such as whether to call certain witnesses, what documents to request in discovery,
and whether to pursue a fraud claim in the midst of contentious litigation and
settlement negotiations. Evaluating the propriety of such decisions is more
complicated than determining whether an attorney missed a deadline and are
beyond the knowledge of a layperson. Niederst needed expert testimony in order to
establish her claim that KJK committed legal malpractice and Niederst’s affidavit,
by itself, was not sufficient. Therefore, the trial court properly granted summary
judgment in favor of KJK.
Niederst blames the trial court’s narrow discovery schedule for her
failure to produce an expert. However, “[a] trial court has discretion to set a
deadline by which the parties have to disclose their expert witnesses and to enforce
its order by excluding all testimony from experts not disclosed by the deadline.”
Huffman v. Pioneer Basement Water Proofing Co., 5th Dist. Tuscarawas No. 2007
AP 08 0048, 2008-Ohio-7032, ¶ 33, citing Paugh & Farmer, Inc. v. Menorah Home
for Jewish Aged, 15 Ohio St.3d 44, 45-46, 472 N.E.2d 704 (1984), and Huffman v.
Hair Surgeon, Inc., 19 Ohio St.3d 83, 84-85, 482 N.E.2d 1248 (1985).
Niederst did not request an extension of the expert report deadline
until after the discovery deadline had already passed and the expert deadline was
four days away. Although the trial court initially denied her request for an extension,
it noted that it would reconsider the request if the parties completed discovery by
new dates set forth in the court’s order. Although the parties completed fact
discovery by the new deadlines, Niederst never filed a second motion to extend the
discovery deadlines. Therefore, it cannot be said that Niederst’s failure to produce
an expert report was the trial court’s fault.
Niederst did not have the expert testimony necessary to establish her
legal malpractice action against KJK. Therefore, the trial court properly granted
summary judgment in favor of KJK.
The sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry
this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, J., CONCURS;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE ATTACHED
OPINION)
MARY EILEEN KILBANE, P.J., DISSENTING:
I respectfully dissent and would reverse the trial court's grant of
summary judgment because of multiple questions of fact.