Gorsha v. Clark

Decision Date01 October 2019
Docket NumberCase No. 2:18-cv-508
PartiesJOSEPH P. GORSHA, et al., Plaintiffs, v. BERNARD E. CLARK, et al., Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

Judge Graham

Magistrate Judge Jolson


This matter is before the Court for consideration of cross motions for summary judgment. Defendants Jonathan C. Clark and Clark & Clark and Associates, LLC (collectively, "Defendants Clark & Clark") and Plaintiffs Joseph D. Gorsha, Nancy Gorsha, Damon J. Faldowski, Dianne M. Faldowski, Damon J. Faldowski, II, and Mark R. Faldowski (collectively "Plaintiffs") simultaneously move this Court for summary judgment on Plaintiffs' legal malpractice claim.1 (Defs.' Mot. Summ. J., ECF No. 107; Pls.' Mot. Summ. J., ECF No. 109.) For the reasons that follow, Defendants Clark & Clark's motion (ECF No. 107) is DENIED in its entirety, and Plaintiffs' motion (ECF No. 109), as it pertains to their legal malpractice claim against Defendants Clark & Clark, is also DENIED.

A. Factual Background

Plaintiffs all reside outside of Ohio, but jointly owned real property in Belmont County, Ohio consisting of 37.525 Acres located at 0 Sandy Ridge Road, Barnesville, Ohio, bearing parcelnumber 45.00151.000 (the "Property"). (Compl. ¶¶ 1, 8-11, ECF No. 1 at 2, 4.) On March 8, 2013, Plaintiffs executed an oil and gas lease for the Property with Rice Drilling D, LLC ("Rice Drilling"). (Id. at ¶ 18; Ex. 2.) On May 15, 2013, Plaintiffs and Defendants Bernard and Alice Clark entered into a contract for the sale, of the surface rights only, of the Property (the "Real Estate Purchase Contract"). (Id. at ¶ 2; Ex. 1.) Title to the Property was ultimately issued in the name of Bernard and Alice Clark, along with their son, Scott Clark (collectively, "the Clark Family").2 (Id. at ¶ 12.)

Plaintiffs' real estate agent, Brian Bauer, recommended Mid Ohio Title Agency, LLC, an Ohio limited liability company, d/b/a Lanco Title Agency ("Lanco") serve as the escrow agent and title company for the sale of the Property. (Id. at ¶¶ 14, 26; Bauer Dep. 19, ECF No. 105 at 1196.) On May 24, 2013, Mr. Bauer sent Lanco a copy of the Real Estate Purchase Contract, which stated, "Seller is [r]eserving mineral [r]ights." (Ex. F, ECF No. 78-1 at 377.) On May 30, 2013, Lanco's title report noted the existing oil and gas lease between Plaintiffs and Rice Drilling and contained the corresponding memorandum of oil and gas lease filed with the Belmont County Recorder's Office on April 17, 2013. (J. Clark Dep. 21:1-18, ECF No. 103 at 1175; Ex. 31, ECF No. 102-1 at 1096.) Several emails between Mr. Bauer and Lanco reiterated that Plaintiffs were not selling the mineral rights. (Bauer Dep. 14-15, 20-21, ECF No. 105 at 1195-96; Exs. A and B, ECF No. 78-1 at 369-70.)

Lanco is ninety-nine percent owned by attorney Jonathan C. Clark. (Stipulations ¶ 9, ECF No. 78-1 at 365.) A part of Lanco's business is requesting that Defendants Clark & Clark prepare deeds for the sellers of real estate to sign. (Id. at ¶ 1, ECF No. 78-1 at 364.) At Lanco's request, Mr. Jonathan Clark prepared the warranty deed (the "Deed") for the Property. (Answer ¶ 62, ECFNo. 16 at 78.) Plaintiffs paid Lanco a $60.00 document preparation fee (ECF No. 111-1 at 1455), which represented the Deed preparation charge. (J. Clark Dep. 30:6-11, ECF No. 103 at 1178). Plaintiffs signed the Deed on September 4, 2013. (Compl. at Ex. 4, ECF No. 1-5.) Mr. Jonathan Clark recorded the Deed with the Belmont County Recorder's Office on October 4, 2013. (Id.)

The Deed failed to provide for the reservation of the mineral rights. (Compl. at ¶ 30.) Rather, the Deed conveyed all right, title and interest in the Property to the Clark Family. (Compl. at Ex. 4, ECF No. 1-5.) In 2015, oil and gas landman,3 Randy Ketcham, approached the Clark Family about leasing the mineral rights to the Property. (Ketcham Aff. ¶ 5, ECF No. 121-1 at 1693.) With Mr. Ketcham's assistance, the Clark Family executed the documentation to lease the mineral rights. (Id. at ¶ 10; B. Clark Dep. 34-35, ECF No. 94 at 510-11.)

Gulfport Energy later drilled the Property and paid the corresponding mineral production royalties to the Clark Family. (Compl. at ¶¶ 12, 31; ECF No. 109-1 at 1139.) Plaintiffs did not learn that drilling had taken place on the Property until February 4, 2018, when they consulted Mr. Bauer prior to the expiration of the Rice Drilling oil and gas lease on the Property. (Id. at ¶ 32; Ex. 2.) This action soon followed.

B. Procedural Background

On May 22, 2018, Plaintiffs commenced this action. Their sixth cause of action is against attorney Jonathan C. Clark and his law firm, Clark & Clark and Associates for legal negligence, which the Court construes as a legal malpractice claim. Plaintiffs allege that Mr. Jonathan Clark committed negligence by failing to prepare a deed reserving the mineral rights to Plaintiffs, as set forth in the Real Estate Purchase Contract. (Compl. ¶¶ 62, 65.)

On March 7, 2019, the Court denied Defendants Clark & Clark's Motion for Judgment on the Pleadings on Plaintiffs' legal malpractice claim, but reserved judgment as to whether an attorney-client relationship existed. (ECF No. 82 at 400.) The Court also reserved judgment concerning the date on which the Plaintiffs should have discovered Mr. Jonathan Clark's error. (Id. at 402.) On May 24, 2019, the parties filed their cross motions for summary judgment on Plaintiffs' legal malpractice claim. (ECF Nos. 107 and 109.) Each side has filed their respective responses in opposition and reply briefs. The matter is now ripe for adjudication.


Both parties have moved for summary judgment under Federal Rule of Civil Procedure 56. Under Rule 56, summary judgment is proper if the evidentiary materials in the record show that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record, "which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The movant's burden is to demonstrate "the absence of a genuine issue of material fact as to at least one essential element on each of the [non-movant's] claims." Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000) (citing Celotex, 477 U.S. at 322). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Conversely, material facts in genuine dispute that "may reasonably be resolved in favor of either party" require denial of summary judgment in order to beproperly resolved by a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When ruling on a motion for summary judgment, a court must assume as true the evidence of the non-moving party and draw all reasonable inferences in that party's favor. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A court must avoid "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts," which are "jury functions" that are inappropriate to employ at the summary judgment stage. Id.

There is no obligation to "grant judgment as a matter of law for one side or the other," simply because the parties have filed simultaneous cross-motions for summary judgment. Profit Pet v. Arthur Dogswell, LLC, 603 F.3d 308, 312 (6th Cir. 2010) (citing Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). Instead, "a 'court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Id. (quoting Taft, 929 F.2d at 248). Each motion must be evaluated under the standard requiring the Court to "view all facts and inferences in the light most favorable to the non-moving party." Travelers Prop Cas. Co. of Am. v. Hillerich & Bradsby Co., Inc., 598 F.3d 257, 264 (6th Cir. 2010) (quoting Beck v. City of Cleveland, Ohio, 390 F.3d 912, 917 (6th Cir. 2004)).


Defendants Clark & Clark move this Court for judgment as a matter of law on Plaintiffs' legal malpractice claim, insisting that they did not have an attorney-client relationship with Plaintiffs, and that Plaintiffs' claim is barred by the one-year statute of limitations. (ECF No. 107 at 1220.) Plaintiffs also seek summary judgment, arguing that the parties formed an implied attorney-client relationship based on Defendants Clark & Clark's conduct and Plaintiffs' reasonable expectation that such a relationship existed. (ECF No. 109-1 at 1347.) Plaintiffs do notaddress the discovery rule, or when their cause of action accrued, in their motion, but later respond in opposition to Defendants Clark & Clark's motion by stating that the cognizable event whereupon they should have discovered their injury did not occur until February 2018. (ECF No. 120 at 1664.) The Court reviews each party's arguments in turn.

A. The Existence of an Attorney-Client Relationship

To establish a legal malpractice claim based on negligent representation in Ohio,4 a plaintiff must show: (1) an attorney-client relationship giving rise to a duty or obligation to the plaintiff; (2) a breach of that duty or obligation; and (3) a causal connection between the conduct complained of and the resulting damage or loss. Vahila v. Hall, 77 Ohio St. 3d 421, 421-22, 674 N.E.2d 1164, 1167 (1997). If here, Plaintiffs fail to present a genuine dispute of material fact as to any of these elements, Defendants Clark & Clark are entitled to...

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