Joseph G. Stafford & Associates v. Karen P. Skinner

• Decision Date: 31 October 1996
• Docket Number: 68597,96-LW-5233
• Parties: JOSEPH G. STAFFORD & ASSOCIATES, ET AL., Plaintiffs-appellees v. KAREN P. SKINNER, Defendant-appellant CASE
• Court: Ohio Court of Appeals

JOSEPH G. STAFFORD & ASSOCIATES, ET AL Plaintiffs-appellees v. KAREN P. SKINNER, Defendant-appellant

No. 68597.

96-LW-5233 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 31, 1996

Civil appeal from Court of Common PleasCase No. 247193.

FOR PLAINTIFFS-APPELLEES: Dale F. Pelsozy, Esq., Bertsch Millican & WinslowCo., 1280 West Third St., 2nd Floor Cleveland, Ohio 44113;James E. Powell, Esq., 380 Lakeside Avenue, 323 West Lakeside Avenue, Cleveland, Ohio 44113.

FOR DEFENDANT-APPELLANT: Katica Markulin, Esq., 18975 Villaview Road, Suite 8, Cleveland, Ohio 44119.

OPINION

HARPER P.J.

Defendant-appellant/third-partyplaintiff, Karen P. Skinner, appeals from the directed verdicts granted in favor of plaintiff-appellee, Joseph G. Stafford & Associates("Stafford"), and appellee/third-party defendant, Joseph G. Stafford("Mr. Stafford"), by the Court of Common Pleas of Cuyahoga County.The verdicts pertained to Stafford's claim for legal fees, and appellant's claims for fraud and legal malpractice.Appellant also challenges, as being against the weight of the evidence, the trial court's grant of a permanent injunction against her.

Stafford filed its complaint against appellant on February 11, 1993.It set forth four alternative claims for relief, specifically, breach of contract, action on an account, quantum meruit and unjust enrichment.Stafford basically alleged that appellant failed to pay $37,967.21 in legal expenses stemming from its representation of her in divorce proceedings.A statement for services was attached to the complaint.

In addition to her answer, appellant filed a counterclaim against Stafford and a third-party complaint against Joseph G. Stafford and Vincent A. Stafford.^[1]Appellant alleged that Mr. Stafford failed to meet the standard required in the practice of domestic relations law.As a result of this substandard performance, Stafford's legal fees were needless and unnecessary.Appellant also accused Stafford and Mr. Stafford of engaging in fraud, specifically that Mr. Stafford falsely represented that he would obtain a "particular level of success" by doing the necessary and required work.Appellant also asserted a vicarious liability claim.^[2]

Stafford filed a Motion for Temporary Restraining Order on February 23, 1994.^[3] The gist of the motion was that appellant and her current and prior attorneys, respectively, Thomas Meros and John V. Heutsche, disseminated to Stafford's clients copies of a grievance filed by appellant with the Disciplinary Counsel of this state concerning Mr. Stafford's representation.The trial court granted the temporary restraining order ("TRO") that day, and later extended it to March 15, 1994.Appellant, Meros and Heutsche were thereby prohibited, individually or in concert, from "circulating any correspondence, contacting, communicating with, telephoning any present or former-client of Joseph G. Stafford & Associates and/or Joseph G. Stafford."They were also prohibited from "circulating or publishing any filed grievance or complaint filed with any legal bar association or court against Joseph G. Stafford & Associates and/or Joseph G. Stafford."

Following a hearing, the trial court granted a preliminary injunction against appellant on April 8, 1994 regarding the same activity contained in the court's February23, 1994 TRO.The injunction was not granted against Meros and Heutsche.The trial court converted the preliminary injunction into a permanent one on January 27, 1995 when it issued its final judgment.

Meanwhile, on March 21, 1994, Stafford filed a motion to disqualify Heutsche as appellant's expert witness at trial.Stafford argued that Heutsche's succession of Stafford as appellant's divorce attorney and his being called as an "expert witness" in appellant's legal malpractice case, would create a "diametrical conflict."

The record furthermore shows a struggle over discovery, with numerous filings of motions to compel and for sanctions.By October 19, 1994, the trial court, seemingly quite frustrated with the parties' failure to cooperate, cautioned them in a judgment entry with regard to frivolous motions.The court also ordered that appellant was to make herself available for deposition within ten days of its order.

Stafford filed a Motion to Show Cause, For Sanctions and Attorney Fees on October 20, 1994.It submitted that appellant failed to appear at her deposition scheduled per court order on October 18, 1994.Stafford filed a second motion for sanctions, this time including a motion for protective order.It related, in part, that Meros failed to appear at a 2:00 p.m. court-ordered hearing to discuss the deposition of a potential witness, Pamila Block.Since Mr. Stafford's deposition was scheduled to take place after that of Block, Meros failed to appear for this deposition as well.The court consequently issued a protective order against the taking of Stafford's deposition on October 26, 1994.

The following day, Stafford filed a Motion to Compel Discovery or for Protective Order.It requested a court order that appellant previously waived the attorney/client privilege between herself and Heutsche.In so doing, appellant could be ordered to respond at deposition to questions concerning her conversations with Heutsche.Stafford requested, in the alternative, that Heutsche be prohibited from testifying at trial.

In an order dated November 10, 1994, the trial court concluded that appellant waived the attorney/client privilege through her testimony in the divorce proceedings.As a result, appellant was ordered to answer questions regarding conversations with Heutsche at a deposition to be held no later than November 25, 1994.If appellant failed to comply with this discovery order, the court warned that Heutsche would be prohibited from testifying at trial.

Appellant and Meros failed to appear at appellant's November 22, 1994 deposition.On November 30, 1994, the trial court, in response to Stafford's November 22, 1994 motion for protective order, prohibited Heutsche's testimony at trial.^[4]

In connection with the prohibition of Heutsche's testimony at trial, Stafford filed a Motion In Limine on December 12, 1994.It moved the court to prohibit appellant from discussing, presenting evidence, mentioning, or in any fashion, relating to the jury "any issue concerning professional negligence, fraud or malpractice of Plaintiff * * *."

Trial by jury on Stafford's action for attorney fees and appellant's claims for legal malpractice and fraud commenced on January 3, 1995.The court first heard arguments relating to Stafford's motion in limine, subsequently granting it in toto.Stafford moved for directed verdicts on appellant's fraud and legal malpractice claims following her opening statement.The trial court granted the motion.Stafford also moved for a directed verdict on its claim for attorney fees following appellant's presentation of her defense.The court granted the motion after closing argument, awarding Stafford a judgment in the amount of $37,967.21 plus prejudgment interest and costs of $200.

Though appellant filed a Civ.R. 52 motion for findings of fact and conclusions of law on December 23, 1994, appellant failed to file proposed findings and conclusions as requested by the court.The trial court issued its final judgment with findings of fact and conclusions of law on January 27, 1995.

This appeal^[5] followed with appellant claiming as error:

FIRST ASSIGNMENT OF ERROR

I.THE TRIAL COURT'S FAILURE TO STATE A PROPER BASIS FOR ITS DECISION IN GRANTING A DIRECTED VERDICT AND/OR FAILURE TO PROVIDE PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW RENDER THIS APPEAL PREMATURE AND REQUIRE THAT THE APPEAL BE REMANDED AND/OR DISMISSED UNTIL PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE ADOPTED BY THE TRIAL COURT.

SECOND ASSIGNMENT OF ERROR

II.THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN GRANTING A DIRECTED VERDICT FOR PLAINTIFF-APPELLEE ON ITS COMPLAINT FOR LEGAL FEES WHERE REASONABLE MINDS COULD HAVE REACHED DIFFERENT CONCLUSIONS AS TO THE VALUE OF THE SERVICES PROVIDED BY APPELLEE.

THIRD ASSIGNMENT OF ERROR

III.THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION IN LIMINE AND IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE PLAINTIFF-APPELLEE ON DEFENDANT-APPELLANT'S COUNTERCLAIM AND THIRD-PARTY COMPLAINT.

FOURTH ASSIGNMENT OF ERROR

IV.THE TRIAL COURT'S JUDGMENT GRANTING A PRELIMINARY AND PERMANENT INJUNCTION AGAINST APPELLANT, KAREN SKINNER, IS NOT SUPPORTED BY THE EVIDENCE AND MUST BE REVERSED.

Appellant asserts in the first assignment of error that her own appeal is premature insofar as the trial court's "findings of fact and conclusions of law" are insufficient for purposes of Civ.R. 50(E), 52 and 58.The claimed insufficiency flows from the trial court's failure to sign the "findings and conclusions," or have them time-stamped by the clerk's office.Appellant thus argues that there is no evidence the trial court reviewed the findings and conclusions prior to adopting them as its own.

Appellant's first assignment of error is without legal foundation for a variety of reasons.These reasons relate to the technical parameters of the Rules of Civil Procedure at issue, and their application to the present case.

Civ.R. 50(E) requires a trial court to state the basis for its decision in writing when it directs a verdict.The statement may be made prior to or simultaneous with the entry of judgment either by dictating it into the record or including it in the entry itself.

A party against whom the directed verdict motion is granted however, waives her right to protest the absence of the Civ.R. 50(E) requirement by failing to timely raise the error to the trial court's...