Guehl v. Carillon House Ass'n, Inc.
| Decision Date | 23 June 2017 |
| Docket Number | Appellate Case No. 27438 |
| Citation | 2017 Ohio 5491 |
| Parties | ROBERT GUEHL, et al. Plaintiffs-Appellants v. CARILLON HOUSE ASSOCIATION, INC., et al. Defendant-Appellee |
| Court | Ohio Court of Appeals |
(Civil Appeal from Common Pleas Court)
OPINIONROBERT GUEHL, Attorney Reg. No. 0005491, 2312 Far Hills Avenue, Suite 350, Dayton, Ohio 45419 Plaintiffs-Appellants-Pro Se
ROBERT E. KMIECIK, Atty. Reg. No. 0022545, GARRETT B. HUMES, Atty. Reg. No. 0089326, 470 Olde Worthington Road, Suite 460, Westerville, Ohio 43082 Attorneys for Defendant-Appellee
{¶ 1} In this case, Plaintiffs/Appellants, Robert Guehl and Karen Bartley, (collectively referred to as "Guehl") appeal from a judgment dismissing their legal malpractice claim against Defendant/Appellee, Kaman & Cusimano, LLC ("Kaman"). As support for their appeal, Guehl contends that Count Five of the complaint adequately stated a claim against Kaman.
{¶ 2} We conclude that the trial court did not err in dismissing Guehl's claim for legal malpractice pursuant to Civ.R. 12(B)(6). Guehl did not have an attorney-client relationship with Kaman, and Guehl was not in privity with Kaman's client. As a result, Kaman was not liable to Guehl for any alleged legal malpractice. Accordingly, the judgment of the trial court will be affirmed.
{¶ 3} All the factual information in the statement of facts and proceedings will be taken from the complaint and amendments to the complaint filed in the trial court. Since 2007, Robert Guehl had owned condominium #11 in the Carillon House Condominiums located at 2230 S. Patterson Boulevard, Kettering, Ohio. In September 2015, Guehl filed a complaint against Carillon House Association, Inc. ("Carillon") and Towne Properties Asset Management Company ("Towne"). Carillon was a non-profit organization consisting of the members who owned condominium units, and Towne was a management company that had managed the property between 1999 and 2014.
{¶ 4} Guehl also added U.S. Bankcorp dba U.S. Bank Home Mortgage ("US Bank") as an involuntary plaintiff. According to the complaint, Robert Guehl had purchased his condominium for $115,000 in 2007, had added improvements, and currently owed US Bank more than $69,000. Robert claimed his mortgage was "underwater," jeopardizing both his and the bank's equity interests.
{¶ 5} In essence, the complaint alleged that Carillon's board of directors ("Board") failed to adequately set aside funds for reasonably anticipated capital improvements, and had caused Guehl's property to be unmarketable due to the likelihood of special assessments. The complaint contained four counts: (1) for a declaratory judgment that Carillon's board was required to adopt a budget for reserves adequate to repair and replace major capital items without the need for special assessments; (2) for breach of contract against Towne, based on its failure, among other things, to adequately inspect the building and advise Carillon about adequate reserve funding; (3) for negligence against Carillon and Towne, for failure to adequately monitor maintenance of the building and construction projects; and (4) for breach of fiduciary duty by the Board based on various failures pertaining to budgeting, overseeing Towne, repairing the property, and pursuing legal action against Towne.
{¶ 6} In October 2015, Towne filed a Civ.R. 12(B)(6) motion to dismiss; Guehl then dismissed Towne as a party in November 2015, pursuant to Civ.R. 41(A). In November 2015, Guehl also filed a first amended complaint, which added various past and current members of the Board to the lawsuit. The amended complaint contained essentially the same allegations, but eliminated former Count Two, which had raised Towne's breach of contract. Instead, former Count Three became Count Two, in which Guehl alleged that the Board and members of the Board had been grossly negligent in several ways, including: failing to monitor Towne's maintenance of the property, failing to maintain the building, failing to adequately budget, and so forth.
{¶ 7} Former Count Four (breach of fiduciary duty) now became Count Three, and Guehl included the past and current members of the Board in the claims for breach of fiduciary duty. Finally, in new Count Four, Guehl asked for injunctive relief against the Board members, to prevent them from continuing their alleged fraudulent acts.
{¶ 8} Subsequently, on December 5, 2015, Guehl filed a motion for partial summary judgment on two points: (1) the interpretation of R.C. 5311.08(A) as applied to Carillon's reserve budgeting process; and (2) the current Board's alleged neglect and breaches in connection with the 2015-2016 budgeting process. In January 2016, Carillon and several Board members filed an answer to the first amended complaint. Among other things, they alleged that Robert Guehl, himself, was on the Board from July 1, 2007 to June 21, 2010, and from June 20, 2011 to June 16, 2014, and had taken the actions about which he was complaining.
{¶ 9} In February 2016, Guehl filed a cross-complaint against an entity called Five Brothers, which was involved in a foreclosure action that US Bank had brought against Robert with respect to the Carillon condominium. Guehl also added the real estate listing agent for the condominium as an involuntary plaintiff. In addition, Guehl asked the court to consolidate the foreclosure action with the current action. However, the court overruled the motion in April 2016, finding insufficient commonality of issues. Eventually, in June 2016, Guehl dismissed US Bank, Five Brothers, and the real estate agent from the current action. At this point, Carillon and the Board members were the only parties remaining in the case.
{¶ 10} Previously, in April 2016, the parties had agreed to suspend briefing on the summary judgment motion until after discovery had been completed. In late July 2016, Guehl filed a motion asking for leave to file a second amended complaint to add Kaman, a law firm that had handled legal matters for Carillon. The court granted leave in September 2016, and Guehl then filed a second amended complaint, adding Kaman as a party. Guehl also added Count Five, which was a legal malpractice claim against Kaman. In this count, Guehl alleged that Kaman had provided incorrect and negligent advice regarding adequate funding of reserves, and that as a result of Kaman's negligence, Guehl and other owners of units had suffered damages in the form of special assessments on two separate occasions, and anticipated an additional assessment of 1.8 million dollars.
{¶ 11} On October 7, 2016, Kaman filed a Civ.R. 12(B)(6) motion to dismiss Count Five of the Second Amended Complaint. The motion contended that Guehl lacked standing to file a claim for legal malpractice against the law firm. After Guehl responded to the motion, the trial court granted the motion on January 11, 2017, and dismissed Count Five. The trial court also added a Civ.R. 54(B) certification. Subsequently, on January 23, 2017, Guehl filed a motion for reconsideration, which the trial court denied, stating that final appealable orders cannot be reconsidered. Guehl then appealed the dismissal of Count Five of the Second Amended Complaint.
{¶ 12} Guehl's sole assignment of error states that:
The Trial Court Erred in Dismissing Count 5 of the Complaint Pursuant to Civil Rule 12(B)(6). Count 5 Adequately Stated a Cause of Action for Legal Malpractice Against Defendant Kaman & Cusimano, LLC.
{¶ 13} Under this assignment of error, Guehl contends that the trial court erred by granting Kaman's motion to dismiss because the complaint stated operative factual allegations of an attorney-client relationship between Guehl and Kaman that was sufficient to withstand a motion to dismiss. Guehl also argues that the trial court made factual determinations without any evidentiary basis, while disregarding evidence presented by Guehl.
{¶ 14} Before we address these issues, we must first consider whether we have jurisdiction over the appeal, which is a matter that we can raise on our own motion. See, e.g., Care Risk Retention Group v. Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).
{¶ 15} "An order of a court is final and appealable only if it meets the requirements of both Civ.R. 54(B) and R.C. 2505.02." (Citation omitted.) Denham v. New Carlisle, 86 Ohio St.3d 594, 596, 716 N.E.2d 184 (1999). Accord McKay v. Promex Midwest Corp., 2d Dist. Montgomery No. 20112, 2004-Ohio-3576, ¶ 25.
{¶ 16} As pertinent here, R.C. 2505.02(B)(1) provides that an order is final for purposes of appeal if it is "[a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment * * *." "The term 'substantial right' has been construed to mean a 'legal right,' one protected and supported by law." (Citation om itted.) Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989). "A court order which deprives a person of a remedy which he would otherwise possess deprives that person of a substantial right." Chef Italiano Corp. v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). Furthermore, "[f]or an order to determine the action and prevent a judgment for the party appealing, it must dispose of the whole merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." (Citations omitted.) Hamilton Cty. Bd. of Mental Retardation & Developmental Disabilities at 153.
{¶ 17} Under these standards, the order in question did affect a substantial right, as it deprived Guehl of a remedy for legal...
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CHAPTER 9 PUNITIVE DAMAGES IN EACH STATE
...(1987) ("something more than mere negligence is always required" for recovery of punitive damages); Guehl v. Carillon House Ass'n, Inc., 2017 Ohio 5491 (Ohio Ct. App. 2017).[107] . Cruz v. English Nanny & Governess Sch., Inc., 2017 Ohio 4176 (Ohio Ct. App. 2017).[108] . Neal-Pettit v. Lahma......