Bangor v. Amato, 14 CO 9.

• Decision Date: 08 December 2014
• Docket Number: No. 14 CO 9.,14 CO 9.
• Citation: 25 N.E.3d 386
• Parties: Christine BANGOR, Plaintiff–Appellant, v. Charles AMATO, Defendant–Appellee.
• Court: D.C. Court of Appeals

25 N.E.3d 386

Christine BANGOR, Plaintiff–Appellant

v.Charles AMATO, Defendant–Appellee.

No. 14 CO 9.

Court of Appeals of Ohio, Seventh District, Columbiana County.

Dec. 8, 2014.

Andrew Simon, James Simon, Independence, OH, for plaintiff-appellant.

Stephen Griffin, Michael Kahlenberg, North Canton, OH, for defendant-appellee.

JOSEPH J. VUKOVICH, J., GENE DONOFRIO, J., and CHERYL L. WAITE, J.

OPINION

VUKOVICH

, J.

{¶ 1} Plaintiff-appellant Christine Bangor appeals the decision of the Columbiana County Common Pleas Court granting defendant-appellee Charles Amato's motion for summary judgment and motion to dismiss the fraud claim. In granting summary judgment for Amato, the trial court found that Bangor's expert's credentials were lacking pursuant to Evid.R. 702

and excluded his testimony as an expert. In this appeal we are asked to answer two questions. First, did the trial court abuse its discretion in excluding Bangor's expert's testimony? Second, did the trial court err when it dismissed the fraud claim because of its conclusion that there was no legal authority to support such a claim?

{¶ 2} For the reasons espoused below, the trial court's decisions are hereby affirmed.

The trial court did not abuse its discretion in excluding Bangor's expert's testimony. Likewise, the trial court did not err in dismissing the fraud claim.

Statement of the Facts and Case

{¶ 3} This case is a legal malpractice and fraud case that was initiated by Christine Bangor against her divorce attorney, Charles Amato. 11/26/12 Pro se Legal Malpractice Complaint; 03/11/13 Amended Complaint.

{¶ 4} On November 18, 2010, Christine Bangor retained Amato to represent her in her divorce action against Richard Bangor; it was a flat fee agreement. On November 23, 2011, with the help of their attorneys, Christine and Richard Bangor entered into a Separation Agreement. At the time of the agreement, Christine and Richard had been married 17 years and one of their children was still a minor. The agreement set forth custody, child support, division of property, and spousal support. That agreement was reviewed and found to be fair and equitable. 11/28/11 Magistrate's Decision; 11/28/11 J.E.

{¶ 5} The portions of the separation agreement that are at issue in a legal malpractice action are spousal support, marital debt, and the division of Richard Bangor's 401(K). The separation agreement provided that Richard would pay Christine $1,200 a month in spousal support for 59 months. The agreement indicated that Richard would pay the majority of the marital debt, which according to his attorney, was close to $250,000. As to the 401(K), which was valued at approximately $611,000, the marital portion of the plan was determined to be $105,245.72 “by way of a present value determination conducted by Pension Evaluators, A division of QDRO Consultants Co., LLC.” 11/23/11 Separation Agreement. Fifty percent of the marital portion was awarded to Christine.

{¶ 6} The allegation in the legal malpractice action is that if Christine Bangor had gone to trial rather than settle, the outcome would have been more favorable to her; she claims that she would have gotten a larger portion of her ex-husband's pension and received a larger spousal support award. Specifically, she contended that had Amato been aware of current case law of this district she would have received a larger spousal support award. She claimed that given the duration of the marriage and the disparity in earning ability, she should have received spousal support in the amount of $4,000 a month for 68 months instead of receiving $1,200 a month for 59 months. As to the 401(K), she claimed that Amato should not have relied on Richard's pension evaluator. She asserted that had a separate evaluation been done it would have shown that she was entitled to half of the entire pension.

{¶ 7} As to her fraud claim, Christine argued that Amato had a duty to disclose his prior relationship with Richard's divorce attorney, Attorney Hartford. Christine claimed that Attorney Hartford had represented Amato on at least four prior occasions, one of which was for Amato's divorce. She argued that the alleged conflict of interest affected Amato's ability to adequately represent her.

{¶ 8} Amato filed an answer and counterclaim asserting breach of contract because Christine has failed to pay the balance of the fee. 12/24/12 Answer and Counterclaim. He also moved to dismiss the fraud claim arguing that there is no recognized duty upon which a fraudulent concealment claim can be applied to the facts at hand. 03/06/13 Motion to Dismiss.

{¶ 9} After considering the motions, the trial court granted the motion to dismiss the fraud claim; “the Court finds that there is no legal authority to support such a claim and that to permit discovery would only result in a true ‘fishing expedition.’ ” 05/28/13 J.E.

{¶ 10} Thereafter, Amato moved for summary judgment on his counterclaim and on Christine's remaining claims. 09/19/13, 11/08/13 Motions. In the November summary judgment motion, Amato sought to exclude Peter Sackett, Christine's witness, as an expert. Christine opposed Amato's motions and moved for leave to file her own summary judgment motion. 10/02/13; 11/15/13 Motions. Attached to her motion for leave was a copy of her summary judgment motion. 11/15/13 Motion. On January 22, 2014, the trial court granted Christine's motion for leave. 1/22/14 J.E.

{¶ 11} That same day, the trial court considered the opposing motions for summary judgment and the request to exclude Christine's expert. The trial court concluded that Christine's expert did not qualify as an expert under Evid.R. 702

and excluded his testimony. The court then found that Christine had not presented any credible evidence that she would have received a better result had she gone to trial rather than to settle. Thus, the court overruled Christine's motion for summary judgment. It then granted summary judgment for Amato on Christine's malpractice claim and granted him summary judgment on his counterclaim for unpaid attorney fees. 01/22/14 J.E.

{¶ 12} Christine timely appealed the trial court's rulings.

First Assignment of Error

{¶ 13} “The trial court erred in making factual determinations regarding the correctness of the opinions of Ms. Bangor's expert, Peter Sackett, rather than leaving those factual determinations for the jury.”

{¶ 14} In Ohio, the general rule of law regarding a legal malpractice claim is that the plaintiff alleging legal malpractice must present expert testimony on professional standards of conduct. McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984)

; Perotti v. Beck, 7th Dist. No. 00CA249, 2001 WL 1198987 (Sept. 24, 2001). Summary judgment in favor of the attorney is mandated when the plaintiff fails to supply expert testimony on the alleged negligence. See

Bloom v. Dieckmann , 11 Ohio App.3d 202, 464 N.E.2d 187 (1st Dist.1983) ; Polivka v. Cox, 10th Dist. No. 01AP–1023, 2002-Ohio-2420, 2002 WL 1013057, ¶ 9.

{¶ 15} Therefore, in order to survive summary judgment, Christine was required to offer expert testimony. Her expert was Attorney Peter Sackett. Sackett testified that he has practiced law actively in Ohio since 1984 and that 60 to 65 percent of his practice is divorce work. Sackett Depo. 6. Sackett opined that Attorney Amato was negligent in his representation of Christine Bangor in advising her to enter into the settlement agreement. Sackett asserted that had she gone to trial, rather than settle, she would have received more in spousal support and more of the 401(K).

{¶ 16} Attorney Amato challenged Sackett's credentials as an expert witness. After discussing Sackett's report, the court stated that it found “Mr. Sacketts' [sic] credentials lacking as a matter of law pursuant to Evid.R. 702

.” 01/22/14 J.E.

{¶ 17} We are asked to review that determination. Thus, we are asked to determine whether the trial court abused its discretion in executing its gatekeeper function. Theis v. Lane, 6th Dist. No. WD–12–047, 2013-Ohio-729, 2013 WL 791871, ¶ 12

(Trial court excluded expert testimony during summary judgment because it was determined not qualified under Evid.R. 702. The appellate court reviewed that decision under an abuse of discretion standard of review.). Discretion in determining the admissibility of expert testimony generally lies with the trial court. Valentine v. Conrad, 110 Ohio St.3d 42, 43, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9

. “ ‘Abuse of discretion’ suggests unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not the role of [the] court to substitute its judgment for that of the trial court.” Id.

{¶ 18} Evid.R. 702

states that a witness may testify as an expert if all of the following factors apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

Evid.R. 702

.

{¶ 19} It is undisputed that division (A) of Evid.R. 702

is met; expert testimony is needed to discuss spousal support and division of Richard's 401(K). Thus, our focus is on divisions (B) and (C) and whether Sackett's opinions regarding spousal support and the 401(K) met...