Friedland v. Djukic

• Decision Date: 24 November 2010
• Docket Number: 94470.,Nos. 94319,s. 94319
• Citation: 945 N.E.2d 1095,191 Ohio App.3d 278
• Parties: FRIEDLAND, Appellee,v.DJUKIC, Appellant.
• Court: Ohio Court of Appeals

191 Ohio App.3d 278

945 N.E.2d 1095

2010 -Ohio- 5777

FRIEDLAND, Appellee,

v.DJUKIC, Appellant.

Nos. 94319

94470.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 24, 2010.

Gallagher Sharp, Monica A. Sansalone, Catherine F. Peters, and Katheryn J. McFadden, Cleveland; and Spitz & Friedland and Dale R. Friedland, for appellee.Terence E. Scanlon, for appellant.FRANK D. CELEBREZZE JR., Judge.

[Ohio App.3d 282] {¶ 1} Appellant, Ivan Djukic, appeals from a judgment in favor of appellee, his former attorney, Dale R. Friedland, in the amount of $7,600 in attorney fees incurred in a personal-injury action. Djukic asserts that the trial court erred in granting summary judgment on his fraud and malpractice claims, in excluding his expert witnesses from trial, in directing a verdict in Friedland's favor for alleged lost punitive damages in the underlying tort suit and for fraud, and in allowing Friedland to sue for a contingency fee based solely on an oral contract. After a thorough review of the record and based on the applicable law, we affirm.

{¶ 2} On July 16, 2001, Djukic was involved in an early morning car accident with Michelle Turner. Turner was driving on Interstate 77 at about 4:00 a.m. when her vehicle hit Djukic's vehicle in the rear. Turner admitted fault and was found to be intoxicated at the time of the incident. Djukic was taken to the hospital and was treated for his injuries and released, with therapy continuing over the next few months.

{¶ 3} Following the completion of this treatment, Djukic saw a number of doctors for various complaints, including a heart problem that he alleged was a result of the accident. No physician would testify that the two were causally connected. Djukic also saw several orthopedic doctors and a neurosurgeon regarding pain in his neck in the two years following the accident. These doctors all testified in their depositions that Djukic did not present conditions related to the accident. Three years after the accident, in 2004, Djukic saw Dr. Ortega, who did an MRI of his neck and upper back and found a bulging or ruptured disk. Dr. Ortega agreed to testify that this was caused or exacerbated by the accident. However, Dr. Michael Eppig, who Djukic had seen in July 2002, testified that when he saw Djukic, the MRI he ordered showed no injury to the spine. Another doctor Djukic had seen, Dr. Ernest Marsolais, was of the opinion that the injury was due to a long-term degradation of the disk known as degenerative disk disease and was not the proximate result of the accident.

{¶ 4} Djukic initially retained Larry Weiser to represent him in the tort suit against Turner. After several disagreements, and after Djukic refused to accept an offer of settlement of $15,000 from Turner's insurance company, Weiser withdrew as counsel. Djukic had a limited amount of time to find new representation, and after several attorneys turned him down, Friedland agreed to take his case. The fee agreement the two worked out was contested at trial. Friedland claimed that they reached an agreement in which Djukic would pay all the trial-preparation costs and 40 percent of whatever was recovered. Djukic admits to agreeing to pay for all the depositions and other expenses, but that was all. In [Ohio App.3d 283] his deposition testimony, Djukic admitted he knew Friedland was not working for free and assumed that he would have to pay Friedland 25, 33, or 40 percent.

{¶ 5} Friedland interviewed several physicians Djukic had seen and deposed many of them. He also obtained several reports, including that of neurosurgeon Dr. Bhupinder Sawhny. Leading up to trial, Friedland negotiated a settlement offer from Turner's insurance company of $35,000, which Djukic refused. The cause proceeded to trial during which a few of Djukic's physicians testified on Turner's behalf. Djukic presented medical claims in excess of $58,000, but causation was in question because some doctors testified that Djukic was fine after the initial treatment.

{¶ 6} The jury returned a verdict finding that Djukic was entitled to $19,000 in compensatory damages. The jury also awarded no punitive damages, signing the jury form finding in favor of punitive damages, but writing in $0 on the line specifying the amount of such damages. The trial court pointed out that the jury signed the plaintiff's jury form awarding punitive damages, but wrote in $0, and asked whether there were any objections. Neither attorney objected to the forms. The jury form was signed by all eight jurors.

{¶ 7} After several unsuccessful appeals, including an appeal to the United States Supreme Court with different counsel, Friedland sought to acquire his fee and disburse the remainder of the settlement to Djukic. Djukic refused. Friedland instituted suit seeking to collect 40 percent of the $19,000 recovered from the insurance company, roughly $7,600. Djukic cross-claimed for legal malpractice and fraud. He alleged that a copy of a contract attached to Friedland's complaint, which was purported to be an agreement between the parties, contained a signature that had been scanned from another document and copied to the fee agreement. This was the basis of the fraud claim. Djukic also alleged that Friedland had committed malpractice in his representation during the tort suit.

Law and Analysis

{¶ 8} Friedland now appeals, citing seven assignments of error.¹

Lost Punitive Damages

{¶ 9} In his first two assignments of error, Djukic argues that Friedland breached the applicable standard of representation when he failed to object to what Djukic considers an inconsistent verdict since the jury found Turner liable for punitive damages in the underlying tort case but awarded nothing in punitive damages. In granting summary judgment in favor of Friedland, the trial court [Ohio App.3d 284] determined that “[s]uch damages are purely speculative and awarding such damages against the attorney would not deter future conduct or punish the tortfeasor.”

{¶ 10} This court reviews the grant of summary judgment de novo. Brown v. Scioto Bd. of Cty. Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). “[T]he reviewing court evaluates the record * * * in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50, 593 N.E.2d 24.

{¶ 11} Any award against Friedland for speculative lost punitive damages would be contrary to the purpose underlying their imposition. Punitive damages are available as a punishment or deterrent to future wrongdoing by a tortfeasor. Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 97. The imposition of punishment on Friedland for Turner's conduct does accomplish this goal. This determination is supported in other jurisdictions. California, New York, and Illinois have adopted the position that lost punitive damages are not recoverable in legal-malpractice actions. Ferguson v. Lieff, Cabraser, Heimann & Bernstein, L.L.P. (2003), 30 Cal.4th 1037, 135 Cal.Rptr.2d 46, 69 P.3d 965; Summerville v. Lipsig (2000), 704 N.Y.S.2d 598, 270 A.D.2d 213; Tri–G, Inc. v. Burke, Bosselman & Weaver (2006), 222 Ill.2d 218, 305 Ill.Dec. 584, 856 N.E.2d 389.

{¶ 12} Djukic argues that several jurisdictions have allowed an award for lost punitive damages in a legal-malpractice action to ensure that attorneys do their level best. Arizona, Colorado, Kansas, South Dakota, and the District of Columbia have allowed them. See Elliott v. Videan (1989), 164 Ariz. 113, 791 P.2d 639; Scognamillo v. Olsen (Colo.Ct.App.1990), 795 P.2d 1357; Hunt v. Dresie (1987), 241 Kan. 647, 740 P.2d 1046; Haberer v. Rice (S.D.1994), 511 N.W.2d 279; Jacobsen v. Oliver (D.D.C.2002), 201 F.Supp.2d 93.

{¶ 13} Kentucky and Tennessee appear to allow recovery of lost punitive damages in a malpractice action but only when the plaintiff is able to show the attorney's actions constitute reckless, malicious, or intentional breaches of care. McMurtry v. Wiseman (Aug. 16, 2006), W.D.Ky. Case No. 1:04CV–81–R. In McMurtry, the district court recognized that the modern trend is to not allow a party to recover lost punitive damages in a legal-malpractice action. Id. at 3.

{¶ 14} The California Supreme Court, in ruling that lost punitive damages were not recoverable in a legal-malpractice action, cited as one of its reasons the analytical gymnastics required to determine what amount of punitive damages a jury should award. [Ohio App.3d 285] Ferguson v. Lieff, Cabraser, Heimann & Bernstein, 30 Cal.4th 1037, 135 Cal.Rptr.2d 46, 69 P.3d 965. This is a significant hurdle to imposing those damages on a party in a malpractice action. “[T]o award lost punitive damages, the trier of fact must determine what moral judgment would have been made by a reasonable jury. Because moral judgments are inherently subjective, a jury cannot objectively determine whether punitive damages should have been awarded or the proper amount of those damages with any legal certainty.” (Emphasis omitted.) Id. at 1049. The facts necessary to arrive at an amount of punitive damages would be before the jury in the underlying tort action, and that jury could arrive at an award reflective of the purposes for imposing punitive damages, but all of that evidence would not be before the jury in a malpractice action.

{¶ 15} Also, the purpose of imposing punitive damages is not served when those damages are imposed on a party guilty of mere negligence. The law of Ohio is clear for when punitive damages may be awarded: “ ‘[P]unitive or exemplary damages are not recoverable from a defendant in question in a tort action unless both of the following apply:

{¶ 16} “ ‘(1) The actions or omissions of that defendant demonstrate malice * * *, or that defendant as...