Gibbons v. Price

• Decision Date: 12 May 1986
• Docket Number: No. 50517,50517
• Citation: 33 Ohio App.3d 4,514 N.E.2d 127
• Parties: GIBBONS, Appellant, v. PRICE et al., Appellees.
• Court: Ohio Court of Appeals

Page 4

33 Ohio App.3d 4

514 N.E.2d 127

GIBBONS, Appellant, v. PRICE et al., Appellees.

No. 50517.

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

May 12, 1986.

Syllabus by the Court

1. By filing a motion to strike and then a motion for reconsideration of the overruling of the motion to strike, the defendants in an action have entered a plea or otherwise defended the case within the meaning of Civ.R. 55(A). Therefore, a motion for default judgment cannot be granted because the case is not uncontested.

2. A trial court has the inherent power to grant a directed verdict sua sponte, or to enlarge a specific motion for a directed verdict to include a dismissal of the entire complaint.

3. In order to establish a claim of legal malpractice based on an alleged failure to exercise the knowledge, skill and ability ordinarily possessed and exercised by members of the legal profession similarly situated, expert testimony is necessary to establish such standards. If plaintiff fails to introduce such testimony, the defendant attorney is entitled to a directed verdict.

James M. Hungerford, Cleveland, for appellant.

Arlene B. Steuer, Cleveland, for appellees.

PATTON, Judge.

This appeal arises as a result of the judgment entered by the Cuyahoga County Court of Common Pleas which granted the motion for directed verdict made by the appellees and dismissed the complaint in its entirety at the close of plaintiff-appellant's case. The facts giving rise to this appeal as contained in the record provide:

On February 19, 1982, plaintiff-appellant, Dorothy Gibbons, filed her complaint which alleged legal malpractice, breach of contract and other various torts on the part of the appellees, John T. Price, Michael E. Cozza and Cozza & Steuer (an Ohio partnership). On March 11, 1982, appellant filed an amended complaint which included an additional count in unjust enrichment.

On April 9, 1982, appellees filed a motion to strike as insufficient the claim of the appellant. On May 12, 1982, the court overruled the motion. On May 25, 1982, appellees filed a motion for reconsideration. On July 15, 1982, the motion was denied.

On August 12, 1982, appellees filed a joint answer and counterclaim. The counterclaim alleged that attorney fees were due and owing. On August 19, 1982, appellant filed a motion for default judgment pursuant to Civ.R. 55. Appellant alleged that appellees had fourteen days to file an answer after the court's decision on May 12, 1982 to overrule their motion to strike. Since appellees failed to show some sort of excusable neglect, they were in default.

On August 20, 1982, eight days after filing their answer and counterclaim, the appellees filed their motion for leave to file answer and counterclaim.

After the appellees had filed a brief in reply to the appellant's motion for default judgment, and other pleadings, briefs and filings were made and filed by both parties regarding same, the trial court granted the appellees' motion for leave to file answer and counterclaim and denied the appellant's application for default judgment on September 7, 1982.

Discovery procedures were instituted. On December 23, 1983, after receiving leave of court, appellant filed a motion for summary judgment as to liability only. On August 29, 1984, trial commenced and continued August 30, September 4 and September 5, 1984, at which time appellant rested.

Upon the close of appellant's case, appellees' counsel moved for a directed verdict as to those matters set forth in the portion of appellant's complaint, namely Count I, paragraphs 15 and 16, which referred to medical damages. After arguments from the respective counsel, the trial court granted appellees' motion. In addition, the court ruled that the entire complaint was dismissed at appellant's costs.

On October 4, 1984, appellant filed her notice of appeal. On April 3, 1985, this court dismissed the appeal for failure to resolve the counterclaim. On May 2, 1985, appellant filed a motion for directed verdict and for other relief upon appellees' counterclaim. On June 6, 1985, the motion was granted. On July 2, 1985, appellant filed her notice of appeal.

The record provides that the appellant obtained a divorce from her husband, Richard Wadsworth, in the Cuyahoga County Court of Common Pleas in May 1969. The divorce decree gave appellant custody of two of the parties' four children, David and Susan. The decree also provided that appellant had the right to occupy the marital property until Susan reached the age of twenty-one or until the appellant remarried or the property was sold, whichever was sooner. The decree also specified that only members of the immediate Wadsworth family shall live in the premises.

The decree ordered Richard Wadsworth to pay child support of fifteen dollars per week for David and Susan. The husband also had to assume sole responsibility for all financial obligations incurred by the parties during the course of their marrige. The decree further provided:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the title to the above mentioned property, known as 21961 Robinhood Drive, Fairview Park, Ohio, shall remain in the name of the parties to this action, and that the equitable interest of the plaintiff [Dorothy Wadsworth] shall be frozen at the fair market value of same as of the date of the signing of this decree by the court, and that the parties to this action shall obtain in writing said value by ordering a written appraisal from the bank or lending institution now holding the first mortgage, or other reputable appraisers and the equitable interest of the plaintiff shall be set at 1/2 of said appraised value." (Emphasis added.)

At the time of the divorce, there were two mortgages on the marital property. The first was a bank loan from Third Federal Savings & Loan to Richard D. and Dorothy M. Wadsworth. The second mortgage consisted of a promissory note for eleven thousand dollars dated December 14, 1967 from Richard and Dorothy Wadsworth to appellant's mother, Dorothy Masterson. The note was made payable out of the escrow upon the sale of the marital home, or within one year after the death of Mrs. Masterson, whichever was sooner. The note was secured by a mortgage given from the Wadsworths to Masterson on December 14, 1967.

In 1970, appellant began seeing William Gibbons. Appellant testified that by 1976, she considered herself and Gibbons to have a common-law marriage. However, the testimony is unclear as to the actual date of marriage. Appellant had also testified that she did not consider herself legally married until 1980 when she and Gibbons went through a formal ceremony in Hawaii. ¹ She also testified that in March 1979, in Lexington, Kentucky, she and Gibbons went through what she thought was a marriage ceremony before a minister. She found out later and Gibbons also testified that the marriage ceremony was phony. Gibbons testified that one of his "buddies" married them in order for appellant to obtain hospitalization benefits which would accrue to her as a wife under a policy available to Gibbons. Gibbons testified that his reasons for the phony marriage were to prevent appellant from feeling guilty about cheating the health and welfare people.

In addition, by 1978, appellant and Gibbons had been filing income tax returns as husband and wife. Gibbons was also contributing money to the household. Both appellant and Gibbons testified that Gibbons never lived in the home until after they were married in 1980.

Approximately two years after the divorce, Richard Wadsworth began making regular child support payments through the court. Prior to that time, payments were sporadic. On January 4, 1978, Richard Wadsworth died. Following his death, appellant began making payments on the Third Federal mortgage, taxes and homeowners insurance. She also advanced two hundred fifty dollars for the decedent's funeral.

On or about April 17, 1979, the appellees agreed to represent the appellant concerning the estate of Richard Wadsworth. Appellant had brought with her a motion that had been filed in domestic relations court by her children as heirs to their father's estate. They were attempting by a Civ.R. 60(B)(4) motion to modify the divorce decree to obtain an immediate sale of the marital home to free the interest of the decedent. The motion was subsequently dismissed.

On June 19, 1979, Daniel M. Wadsworth, appellant's son, was appointed administrator of his father's estate. On July 31, 1979, Daniel Wadsworth as administrator filed a petition in probate court for authority to sell the marital home to satisfy the debts of the estate. Meanwhile, appellees subsequently presented a written claim on behalf of the appellant against the decedent's estate. Appellee, John T. Price, testified that the written claim was hand-delivered by a law clerk, Charles Vargas, who worked at Cozza & Steuer, to the fiduciary of the estate, prior to the statutory deadline of September 19, 1979. However, Price had no written proof or personal knowledge of the delivery. Price did send a certified letter enclosing a copy of the claim to the attorney for the decedent's estate. The letter was stamped "received on September 24, 1979." ²

The appellant's claim was rejected by the administrator on September 27, 1979. Appellee Price testified that he had received prior notification by the attorney for the decedent's estate that the claim was going to be rejected. Price testified that the rejection was not based upon an untimely filing. On the date of rejection, appellees filed a counterclaim on behalf of the appellant in the land sale proceeding asserting the items previously rejected as claims against the estate.

On March 31, 1980, the referee filed his report and found:

"The court further finds that the allegations in the complaint are true and that the undivided one-half interest in the real estate described in the complaint should be sold for the reason that...