Personal Service Insurance v. Quandt

Being unable to agree with the majority, I respectfully dissent.

The majority concludes that, by overruling appellants' first assignment of error, it is not necessary to address the remaining issues; however, I feel it is appropriate to consider the first assignment of error on cross-appeal. The Quandt firm contends that the trial court erred by finding the firm committed malpractice by failing to file a brief in case No. 89-116, in which discretionary review had been granted, because the same issues were raised in case No. 89-277, the case certified by the Eighth District Court of Appeals. I disagree.

In deciding a case certified to the Ohio Supreme Court, pursuant to Section 3(B)(4), Article IV, Ohio Constitution, the court must first decide whether "an actual conflict between appellate judicial districts [exists] on a rule of law before certification of a case to the Supreme Court for review and final determination is proper." Whitelock v. Gilbane Bldg. Co. (1993),66 Ohio St. 3d 594, 613 N.E.2d 1032, paragraph one of the syllabus. Absent such a conflict, the case must be dismissed by the court. Thus, the threshold issue to be addressed in 89-277, and the only issue decided by the Supreme Court, was the existence or non-existence of a conflict. Given the frequency with which cases are dismissed on the basis of a finding that no conflict exists among the various appellate districts (see discussion in Whitelock, generally), it was reasonably foreseeable this case would also be dismissed. The Quandt firm's failure to file a brief in case No. 89-116 was clearly malpractice. The Supreme Court overruled a motion to consolidate these two appeals and considered the cases as separate matters to be determined by the court. The Quandt firm's failure to file a brief prevented appellants from having their case reviewed by the court. The first assignment of error on cross-appeal should be overruled.

The majority concludes that the statute of limitations for appellants' claim for legal malpractice began to run November 4, 1991, at the earliest. While this could be found to be the correct date, it is not a decision to be made in the first instance by this court. In Omni-Food Fashion, Inc. v. Smith (1988), 38 Ohio St. 3d 385,528 N.E.2d 941, the court held the statute of limitations for legal malpractice starts to run on the date of discovery or at the termination of the attorney-client relationship for the particular transaction or undertaking, whichever is later. Here, the termination rule would appear to be applicable and the court in Omni-Food stated, at 388, 528 N.E.2d at 944:

"[I]t should be pointed out that the question of when an attorney-client relationship for a particular undertaking or transaction has terminated is necessarily one of fact."

The affidavits submitted on behalf of the parties create conflicting facts from which different reasonable conclusions could be drawn as to the scope of services for which appellants retained appellee, and when the services terminated. Therefore, the matter should be remanded to the trial court for determination of this factual issue.

I further disagree with the majority as to the issue of whether appellants showed they were damaged by the Quandt firm's malpractice. In the decision the majority states:

"In order to avoid a defense verdict as a result of the filing of a defense motion for summary judgment, PSIC and Parma had the burden of going forward with evidence which showed that damage had resulted from the malpractice of the Quandt firm. * * *"

However, whether or not appellants were damaged is not a question of fact for which appellants had the burden of producing evidence so as to avoid summary judgment; rather, it is a question of law to be decided by the trial court and now by this court. Jablonski v. Higgins (1983), 6 Ohio Misc.2d 8, 6 OBR 548, 453 N.E.2d 1296; Tohline v. Cent. Trust Co., N.A. (1988),48 Ohio App. 3d 280, 549 N.E.2d 1223. Whereas malpractice at the trial level creates an anomaly of an "trial within a trial," malpractice at the appellate level creates an "appeal within an appeal." Thus, whether or not Lloyd Nicol would qualify as an expert to "forecast the future rulings of appellate courts on new legal issues" is not the standard by which the trial court's grant of summary judgment should be reviewed. Rather, this court must address the issues raised in appellants' appeal to the Supreme Court and decide those issues.

In Belfer v. Spiegel (1984), 18 Ohio App. 3d 64, 18 OBR 178,480 N.E.2d 825, the court stated that a plaintiff in an action for appellate malpractice must show a reasonable possibility of a favorable decision.

In Eberly v. A-P Controls, Inc. (1991), 61 Ohio St. 3d 27,572 N.E.2d 633, the court held, at paragraph three of the syllabus:

"Former R.C. 2315.19 provided for several, or allocated, liability among joint tortfeasors party to an action based upon comparative fault; however, several liability is triggered only upon a finding of negligence attributable to the plaintiff."

The court further stated, at 35, 572 N.E.2d at 639:

"R.C. 2315.19 provided for several, or allocated, liability among joint tortfeasors who are parties to an action based upon comparative fault; however, several liability was triggered only upon a finding of negligence on the part of the plaintiff. R.C.2315.19(A). Accordingly, R.C. 2315.19(B) required interrogatories allocating fault whenever the plaintiff's contributory negligence was pled as a defense. * * *"

While the court did state that cross-claims for contributionshould be pled, such pleading was not made mandatory by the decision in Eberly. Here, apparently Parma did not raise the issue of decedent's contributory negligence, but its codefendant did. There is nothing in Eberly to say that the failure of one codefendant to raise the issue of contributory negligence in any way lessens the duty of the trial court to properly instruct the jury and to provide interrogatories to require an allocation of negligence between defendants when the issue of contributory negligence has been raised by another party to the action and the issue was tried throughout the case. In fact, decedent here had been found to be thirty percent contributorily negligent. Thus, while Eberly is not necessarily determinative, the issues raised therein suggest that, had the Quandt firm timely filed a brief, a favorable result could have been obtained on behalf of appellants.

For the same reasons, I disagree with the majority's conclusion as to the issue of whether the plaintiffs, in the underlying litigation, would have been limited in their recovery to the amount of damages set forth in their prayer, $11,000. Again, the majority finds Nicol's affidavit insufficient to create an issue to be tried and, therefore, insufficient to avoid summary judgment. This is the incorrect standard, as the issues presented are questions of law to be determined by the court.

In Bishop v. Grdina (1985), 20 Ohio St. 3d 26, 28-29, 20 OBR 213, 214-215, 485 N.E.2d 704, 706, the Supreme Court stated:

"Civ.R. 54(C) does not draw a distinction between compensatory and punitive damages. Both types of damages are subject to the rule. A major purpose of the limitation in the rule is to put the defendant on notice prior to trial as to his potential liability. The Ohio rule was specifically drafted to be distinguished from its federal counterpart which permits an award that exceeds the prayer. * * *"

Thus, even if appellants would not have succeeded on their claim as to an allocation of negligence between defendants, they could have succeeded on their Civ.R. 54(C) claim and the judgment would have been reduced. Therefore, appellants were damaged by the Quandt firm's failure to file a brief.

I further disagree with the majority that, in determining these issues, it is the function of the court to decide how individual justices of the Ohio Supreme Court, or individual judges of an appellate court, would rule on a particular issue. Rather, it is the function of the court to analyze the legal principles involved and apply them to the facts of a particular case. It is not the court's function to second-guess the outcome in the Ohio Supreme Court. Regardless, the Ohio Supreme Court has not addressed the issues raised by a claim for legal malpractice at an appellate level. Therefore, it would be suggested that this is an appropriate case for the Ohio Supreme Court to address these issues.

Therefore, I would sustain appellants' first assignment of error and remand this matter to the trial court to make a factual determination as to when the statute of limitations began to run. If the trial court finds the action was timely brought, I would instruct the trial court to enter judgment in favor of appellants. The assignments of error on cross-appeal should be overruled.