Davis v. Montenery

• Decision Date: 15 November 2007
• Docket Number: No. 06 JE 48.,No. 06 JE 51.,06 JE 48.,06 JE 51.
• Citation: 880 N.E.2d 488,173 Ohio App.3d 740,2008 Ohio 6221
• Parties: DAVIS, Appellant, v. MONTENERY et al., Appellees.
• Court: Ohio Court of Appeals

880 N.E.2d 488

173 Ohio App.3d 740

2007-Ohio-6221

DAVIS, Appellant, v. MONTENERY et al., Appellees.

No. 06 JE 48.

No. 06 JE 51.

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

Decided November 15, 2007.

David Delk, for appellant.

James Abrams, Columbus, for appellee Matilda Montenery.

Kenneth Abbarno and Holly Wilson, Cleveland, for appellees. Mario Busack, Mario Busack d.b.a. Busack Realty, and Michal Julian.

Charles Bean, St. Clairsville, for appellees Mark Thomas and Thomas Law Offices, L.L.C.

VUKOVICH, Judge.

{¶ 1} Plaintiff-appellant, Roger Davis Jr., appeals the decision of the Jefferson County Common Pleas Court granting summary judgment for defendants-appellees Matilda Montenery, Mario Busack, Busack Realty, Michal Julian, Mark Thomas, and Thomas Law Offices, L.L.C. The issue in this appeal is whether the trial court improperly granted summary judgment to appellees. For the reasons stated below, the grant of summary judgment to Matilda Montenery, Mario Busack, Busack Realty, and Michal Julian is hereby affirmed. Thee grant of summary judgment to Mark Thomas and Thomas Law Offices, L.L.C., is hereby reversed, and the cause is remanded for further proceedings consistent with law.

STATEMENT OF FACTS

{¶ 2} Matilda Montenery and her husband ("the Montenerys") owned a large portion of land in Jefferson County, Ohio. Sometime in the early 1970s, they divided their land and sold a portion of it to Joseph and Margaret Smith ("the Smith property"). In doing so, the Montenerys retained 21 acres, which included a barn, located at 1212 County Road 16, Rayland, Jefferson County, Ohio ("the 1212 property"). They also retained an easement to use a part of the Smith property to access the barn located on the 1212 property; the Smith property contained a roadway that extended from County Road 16 to the barn. The language in the deed indicated that the easement could pass to the Montenerys' heirs and assigns.

{¶ 3} Not long after selling the property to the Smiths, the Montenerys, by recorded deed, released their ability to pass the easement to their assigns and heirs. The Montenerys only retained the right to use the easement for their life. Thus, when the Montenerys sold the 1212 property or when both of them died, which ever came first, the easement would expire.

{¶ 4} In 2001, Davis bought the 1212 property from Matilda Montenery (her husband was now deceased). Davis financed the transaction through Brach Banking & Trust Company ("BB & T"). Matilda listed the property through. Busack Realty, owned by Maria Busack. Michal Julian was contracted by Busack Realty to show the 1212 property., Busack, Busack Realty, and Julian are referred to collectively as Busack. Realty.

{¶ 5} Prior to entering into the sales contract, Davis wanted to know how to access the barn on the 1212 property, that is, if access could be obtained from the roadway on the Smiths' property. Julian asked Matilda and Matilda indicated that she had an easement to use the Smiths' roadway. Julian checked this information at the county recorder's office and found the first deed which granted an easement to use the roadway to access the barn. That deed included language which would allow the easement to be transferred to Matilda's, assigns and heirs. Julian informed Davis of this information, and gave him a copy of the deed. Julian, however, did not find the second deed which released the easement as to Matilda's assigns and heirs. Thus, Davis was not informed, at that time that the right to use the roadway would expire upon conveyance of the land to him.

{¶ 6} Around this time, Mark Thomas and Thomas Law Offices, L.L.C. (collectively, "Thomas") were contacted by BB & T, the bank financing Davis's loan for the property. Thomas did title work on the property and purportedly found both deeds. At the time of doing the title work, Thomas was aware that the easement expired upon conveyance of the land. Davis was not informed prior to the purchase of the property about the release of the easement.

{¶ 7} From 2001 until 2004, Davis used the right of way until he received a letter from the Smiths' attorney indicating that the easement had expired upon Matilda's conveyance of the land to Davis and that he did not have the right to use the roadway. The Smiths requested that he immediately cease utilization of the roadway.

{¶ 8} Davis investigated the matter further and also contacted Thomas to investigate the matter. Thomas reviewed his notes and determined that the easement had expired. Thomas attempted to renegotiate the easement, but that attempt was futile.

{¶ 9} On June 13, 2005, Davis filed a complaint against Matilda, Busack Realty, and Thomas. Davis contended that had he known of the expired easement, he would not have bought the land or he Would have negotiated a lower sale price. The action against Matilda sounded in negligence, breach of contract, and fraud. The action against Busack Realty sounded in negligence, Specifically negligent misrepresentation. The action against Thomas sounded in legal malpractice, negligence, and breach of contract. After discovery, all defendants filed motions for summary judgment. Davis opposed all three motions. On November 1, 2006, Thomas's motion for summary judgment was granted. On November 29, 2006, both the Busack Realty's and Matilda's motions for summary judgment were granted. Davis timely appeals from all three orders.

STANDARD OF REVIEW

{¶ 10} All three assignments of error¹ presented raise an issue with the trial court's grant of summary judgment for each defendant. An appellate court, reviews a trial court's decision on a motion for summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is properly granted when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46; Civ.R. 56(C).

SECOND ASSIGNMENT OF ERROR

{¶ 11} "The lower court erred by granting summary judgment to Mark Thomas and Thomas Law Offices."

{¶ 12} There are two distinct arguments presented under this assignment of error. The first argument is based upon attorney malpractice. The second is based upon Thomas's status as a title abstractor.

A. ATTORNEY MALPRACTICE

{¶ 13} Davis contends that Thomas was his attorney and that he contacted Thomas for the purpose of ensuring that the easement would survive conveyance. Thomas counters that he was not Davis's attorney; rather, he represented BB & T. Thomas claims that he did title checks on the property to ensure that title was clear.

{¶ 14} In order to establish a cause of action for malpractice, a plaintiff must establish a tripartite showing: an attorney-client relationship giving rise to a duty, a breach of that duty, and damages proximately caused by the breach. Vahila v. Hall (1997), 77 Ohio St.3d 421, 674 N.E.2d 1164, syllabus, following Krahn v. Kinney (1989), 43 Ohio St.3d 103, 538 N.E.2d 1058; see also Holik v. Lafferty, 11th Dist. No.2005-A-0005, 2006-Ohio-2652, 2006 WL 1459751. "`Failure to prove any one of these elements entitles a defendant to summary judgment on a legal malpractice claim.'" Belknap v. Vigorito, 11th Dist. No. 2003-T-0147, 2004-Ohio-7232, 2004 WL 3090214, at ¶ 15, quoting Brunstetter v. Keating, 11th Dist. NO. 2002-T-0057, 2003-Ohio-3270, 2003 WL 21437016, at ¶ 13; Sprague v. Simon (2001), 144 Ohio App.3d 437, 441, 760 N.E.2d 833.

{¶ 15} The element disputed in this case is whether an attorney-client relationship existed between Thomas and Davis. Without it, the legal-malpractice claim cannot survive.

{¶ 16} "[N]either a formal contract nor the payment of a retainer is necessary to trigger the creation of the attorney-client relationship. See, e.g., In re Disciplinary Action Against Giese (N.D.2003), 662 N.W.2d 250. While it is true that an attorney-client relationship may be formed by the express terms of a contract, it `can also be formed by implication based on conduct of the lawyer and expectations of the client.' Guttenburg & Snyder, The Law of Professional Responsibility in Ohio (1992) 62, Section 3.1." Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, at ¶ 10.

{¶ 17} In deciding whether an attorney-client relationship exists, "the ultimate issue is whether the putative client reasonably believed that the relationship existed and that the attorney would therefore advance the interests of the putative client." Henry Filters, Inc. v. Peabody Barnes, Inc. (1992), 82 Ohio App.3d 255, 261, 611 N.E.2d 873; see also Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, at ¶ 10 ("Thee determination of whether an attorney-client relationship was created turns largely on the reasonable belief of the prospective client"); Lillback v. Metro. Life Ins. Co. (1994), 94 Ohio App.3d 100, 108, 640 N.E.2d 250; David v Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786, 798, 607 N.E.2d 1173. Existence of an attorney-client relationship will vary from cage to case. Henry Filters, Inc., 82 Ohio App.3d at 261, 611 N.E.2d 873.

{¶ 18} Here, there was undisputedly no retainer or contract for services; however, as we have explained above, that is not needed to form the attorney-client relationship. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, at ¶ 10. It can be formed by the conduct of the lawyer and the expectations of the client. Id.

{¶ 19} Davis testified that Thomas was acting as his attorney, although he may not have contacted Thomas directly to represent him, because Davis told BB & T that he wanted to use Thomas. He further stated that he "used Mark Thomas for...