E.B.P., Inc. v. Cozza & Steuer

• Decision Date: 14 April 1997
• Docket Number: No. 70397,70397
• Citation: 119 Ohio App.3d 177,694 N.E.2d 1376
• Parties: E.B.P., INC., d.b.a. Epic Steel, Appellant, v. COZZA & STEUER et al., Appellees.
• Court: Ohio Court of Appeals

Page 177

119 Ohio App.3d 177

694 N.E.2d 1376

E.B.P., INC., d.b.a. Epic Steel, Appellant, v. COZZA & STEUER et al., Appellees.

No. 70397.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided April 14, 1997.

Carol B. Adelstein, Cleveland, for appellant.

Cozza & Steuer, Robert C. Wentz and John T. Price, Cleveland, for appellees.

BLACKMON, Presiding Judge.

E.B.P., Inc. appeals a decision from the trial court granting summary judgment in favor of Cozza & Steuer et al. on E.B.P.'s legal malpractice claim. E.B.P. assigns the following four errors for our review:

"I. The trial court erred to the prejudice of the appellant by denying its motion to amend its response to the first set of admissions.

"II. The trial court erred to the prejudice of the appellant by determining issues of credibility in deciding on the merits of the appellees' motion for summary judgment.

"III. The trial court erred to the prejudice of the appellant because the appellant's claims of legal malpractice were not barred by the applicable statute of limitations.

"IV. The trial court erred to the prejudice of the appellant because the reversal of the trial court's decision by this court does not absolve the appellees of legal malpractice."

After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.

E.B.P., Inc., d.b.a. Epic Steel, hired the law firm of Cozza & Steuer to represent the company in the defense of an action filed by one of its former employees, Catherine Czubaj. Czubaj named as defendants Epic Steel, Neff Fremont (founder and president of Epic Steel), and Neff's son, Gary Fremont (vice president and corporate treasurer of Epic Steel). Gary Fremont was Czubaj's immediate supervisor.

Czubaj's action alleged age discrimination and intentional infliction of emotional distress. The intentional tort claim named only Epic Steel and Gary Fremont as culpable parties. (This according to the court of appeals' opinion, Czubaj v. E.B.P., Inc. [Oct. 12, 1995], Cuyahoga App. No. 65517, unreported, at 9, 1995 WL 601201.) The jury denied Czubaj's age-discrimination claim but found in favor of Czubaj on the claim of intentional infliction of emotional distress. Czubaj was awarded damages of $31,275 against Gary Fremont, her direct supervisor at Epic Steel, and $177,225 against Epic Steel.

On March 31, 1993, Cozza & Steuer filed a motion for judgment notwithstanding the verdict in the Czubaj case. The trial court denied the motion and reduced the jury verdict to judgment on May 3, 1993.

On May 12, 1993, a notice of appeal was filed in the Czubaj case by David Horvath, an associate at Cozza & Steuer. On July 6, 1993, Kevin Young and Josh Friedman of Benesch, Friedlander, Coplan & Arnoff ("BFCA") filed a notice of appearance as co-counsel for Epic Steel and Gary Fremont. On March 10, 1995, while the appeal was pending, Epic Steel entered into a settlement agreement with Czubaj. This court reversed the trial court's decision in the Czubaj case. Czubaj v. E.B.P., Inc. (Oct. 12, 1995), Cuyahoga App. No. 65517, unreported, 1995 WL 601201.

On February 10, 1995, E.B.P. filed the instant legal malpractice action against Cozza & Steuer and its member attorneys, Arlene Steuer, Daniel Horvath, and John Price. The complaint alleged that "defendants individually, jointly, and/or severally negligently failed to exercise due care in their representation of E.B.P., Inc. by inter alia negligently failing to depose plaintiff's experts prior to trial, prepare proper jury instructions and interrogatories, object to improper testimony, jury instructions and interrogatories, secure expert witnesses on behalf of E.B.P., Inc. and raise appropriate objections to the verdict in postverdict motions."

E.B.P. alleged that it had been damaged in the amount of $500,000 (the value of the judgment obtained against E.B.P. by Czubaj), the cost and expense of the bankruptcy filing, punitive damages, attorney fees, and costs. Cozza & Steuer answered the complaint and alleged that the complaint failed to state a claim upon which relief could be granted. It also asserted the lack of proximate cause and that the claim was barred by the statute of limitations and by laches.

On March 10, 1995, Cozza & Steuer filed notice of service of a request for admissions upon E.B.P., Inc. E.B.P. filed notice of service of its answers to the request on May 11, 1995. On September 15, 1995, Cozza & Steuer filed its motion for summary judgment, alleging that E.B.P.'s claim was barred by the applicable statute of limitations, R.C. 2305.11(A). On October 24, 1995, Cozza & Steuer supplemented its motion for summary judgment by asking for a dismissal of the case on its merits in light of the court of appeals' reversal of the judgment in favor of Czubaj. Cozza & Steuer argued that since Epic Steel's legal position had been vindicated, the trial court could not find that Cozza & Steuer had committed legal malpractice.

On November 24, 1995, Epic Steel moved for permission to amend its responses to Cozza & Steuer's request for admissions. Epic Steel asserted that its response to Request for Admission No. 16 was incorrect. Request for Admission No. 16 read as follows:

"16. No attorney-client relationship existed between and among E.B.P. Inc., dba Epic Steel, and Cozza & Steuer, Arlene B. Steuer, David J. Horvath also referred to as Daniel J. Horvath and/or John T. Price after February 3, 1994.

"ANSWER: Admit."

Epic Steel asserted that its attorney, Rubin Guttman, had unilaterally prepared the responses to the requests for admissions without submitting them to Epic Steel for review. Epic Steel asserted that the attorney-client relationship between Epic and Cozza & Steuer lasted until December 1994. In its brief in opposition to the motion for summary judgment, Cozza & Steuer alleged that the motion to withdraw filed by Cozza & Steuer on March 9, 1994 confirmed the existence of an attorney-client relationship between the parties.

The trial court granted E.B.P.'s motion for permission to amend its responses to Cozza & Steuer's request for admissions on December 8, 1995. Cozza & Steuer filed its motion in opposition to E.B.P.'s motion to amend. On December 21, 1995, E.B.P. filed notice of service of its amended and supplemental response to Cozza & Steuer's requests for admissions. However, the trial court denied the motion on December 22, 1995.

On February 20, 1996, the trial court granted Cozza & Steuer's motion for summary judgment. We uphold the granting of summary judgment on the ground that E.B.P. failed to prove damages.

To establish its legal malpractice claim, E.B.P. had to show that there was an attorney-client relationship between E.B.P. and Cozza & Steuer that gave rise to a duty, that Cozza & Steuer breached that duty, and that E.B.P. suffered damages proximately caused by that breach. Estate of Callahan v. Allen (1994), 97 Ohio App.3d 749, 752, 647 N.E.2d 543, 544-545; Treft v. Leatherman (1991), 74 Ohio App.3d 655, 600 N.E.2d 278...