Maust v. Palmer
| Citation | 94 Ohio App.3d 764,641 N.E.2d 818 |
| Decision Date | 12 May 1994 |
| Docket Number | No. 93APE10-1483,93APE10-1483 |
| Parties | MAUST, Appellant, v. PALMER, Appellee. |
| Court | United States Court of Appeals (Ohio) |
Larry R. Zingarelli, Columbus, for appellant.
Daniel R. Volkema and Eleanor L. Speelman, Columbus, for appellee.
Plaintiff-appellant, Allan B. Maust, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, Robert G. Palmer. Plaintiff presents the following three assignments of error:
Plaintiff retained defendant, an attorney, to represent him in an employment matter stemming from his termination from Bank One. Defendant commenced an action on behalf of plaintiff in the Franklin County Court of Common Pleas. The action resulted in the trial court's granting partial summary judgment to Bank One on plaintiff's employment claims. Plaintiff appealed the trial court's judgment.
On appeal, the record revealed that plaintiff had signed a release and accepted a severance package as consideration for the release upon his termination from Bank One. Plaintiff failed to tender back the consideration prior to instituting suit; therefore, this court held in Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 110, 614 N.E.2d 765, 769-770: " * * * [P]laintiff's claims here are barred by a valid release executed in favor of * * * [Bank One]."
Plaintiff filed a complaint 1 in the Franklin County Court of Common Pleas alleging that defendant committed professional malpractice and fraud. Defendant filed a motion to dismiss, attaching excerpts from the record from Maust, supra, in support of his motion. Plaintiff contested defendant's motion and requested leave to file a second amended complaint. The trial court granted plaintiff leave to file a second amended complaint. In addition, the court notified the parties of its intention to convert defendant's motion to dismiss into a motion for summary judgment pursuant to Civ.R. 12(B). The court set forth a schedule for submission by the parties of additional memoranda and evidence and set a hearing date.
Plaintiff filed his second amended complaint, containing a jury demand, but presented no new claims for relief. Defendant renewed his motion to dismiss (converted to summary judgment) and submitted in support the affidavit of Louis A. Jacobs, Professor of Law, and supervising attorney at the Ohio State University College of Law. Professor Jacobs stated in his affidavit that it was his opinion, to a reasonable degree of legal certainty, that defendant's representation of plaintiff met the minimum professional standards of care for attorneys who practice in Ohio.
Plaintiff, in response to this affidavit, filed a memorandum contra and requested an extension of time in which to respond until the end of the court-scheduled discovery period, which would be a continuance of more than one year.
Prior to the trial court's rendering a decision on the pending motions, plaintiff also filed a motion to strike the affidavit of Louis A. Jacobs. In support of this motion, plaintiff submitted his own affidavit stating that he had conferred with Professor Jacobs concerning the pending matter and developed an attorney-client relationship and that plaintiff Professor Jacobs's affidavit should be stricken from the record.
Without ruling on plaintiff's motion to strike, the trial court rendered a decision on September 22, 1993, on defendant's motion for summary judgment and plaintiff's motion for extension of time. The trial court denied plaintiff a continuance, stating:
As to the summary judgment motion, the trial court found the alleged acts of legal malpractice required an expert's affidavit to defeat summary judgment. The trial court stated:
"Therefore, since Plaintiff has not presented any expert affidavits to rebut Defendant's motion, there are no genuine issues of material fact, reasonable minds could only conclude that Plaintiff could not prove that Defendant committed legal malpractice, and Defendant is, therefore, entitled to judgment as a matter of law."
Prior to the trial court's entering judgment in accordance with its decision, defendant filed a memorandum opposing plaintiff's motion to strike. Attached was a second affidavit from Professor Jacobs, in which he stated that he has no recollection of ever having a conversation with plaintiff and that he has never represented plaintiff. Plaintiff filed a motion for reconsideration urging the trial court to rule on the motion to strike prior to entering judgment. 2 On October 5, 1993, the trial court entered judgment in accordance with its previous decision. From this judgment, plaintiff filed a timely appeal.
The court will initially address plaintiff's second assignment of error, in which plaintiff contends that the trial court committed reversible error by failing to rule on his motion to strike Professor Jacobs's affidavit from the files. Plaintiff argues that he was prejudiced by the trial court's failure to rule on his motion, for Professor Jacobs's affidavit should have been excluded, and, therefore, the trial court had no basis for granting summary judgment to defendant.
In support of his motion to strike, plaintiff submitted his own affidavit, wherein he stated that he had an attorney-client relationship during which they discussed the merits of this case. Accordingly, based on attorney-client privilege, plaintiff requested that Professor Jacobs's affidavit be stricken from the record. Defendant disputes that such a relationship ever existed and submitted an affidavit from Professor Jacobs to that effect. In the alternative, defendant argued that, even if such a relationship did exist, it did not affect Professor Jacobs's competency as a witness but would only "create an ethical problem for Professor Jacobs."
The issue is not the competency of the affiant but, rather, the admissibility of the opinion evidence contained in the affidavit. If an attorney-client relationship had existed, Professor Jacobs might be barred from testifying pursuant to R.C. 2317.02, which reads in pertinent part:
While this privilege can be waived, it can only be waived by the client, not the attorney. As noted in Am. Motors Corp. v. Huffstutler (1991), 61 Ohio St.3d 343, 575 N.E.2d 116, at paragraph one of the syllabus:
"An attorney has no right under the First Amendment to the United States Constitution or Section 11, Article I of the Ohio Constitution to disseminate information protected by the attorney-client privilege."
Furthermore, in Am. Motors Corp., the court found an injunction preventing an attorney from testifying at trial to be an appropriate remedy in order to protect the attorney-client privilege. Public policy consideration precludes affidavit testimony or evidence which violates R.C. 2317.02 from being considered on a summary judgment motion. Admission of such evidence would constitute error by the trial court.
The trial court did not determine whether an attorney-client relationship...
To continue reading
Request your trial
-
Sourial v. Nationwide Mut. Ins. Co.
...; Owensby v. Fresenius Dialysis Unit , 10th Dist. No. 04AP-1382, 2005-Ohio-6467, 2005 WL 3304100, ¶ 17 ; Maust v. Palmer , 94 Ohio App.3d 764, 769, 641 N.E.2d 818 (10th Dist.1994). An appellate court must proceed to analyze the merits of summary judgment, de novo, and examine all appropriat......
-
Copley v. Fender
... ... expressly determining a pending motion, the motion is ... impliedly overruled. Maust v. Palmer , 94 Ohio App.3d ... 764, 769, 641 N.E.2d 818 (10th Dist.1994) ... {¶ 19} In this case, the record indicates that Copley ... ...
-
Vos v. Washington, 2004 Ohio 1388 (Ohio App. 3/17/2004)
...enters judgment without expressly determining a pending motion, the motion is considered impliedly overruled." Maust v. Palmer (1994), 94 Ohio App.3d 764, 769, 641 N.E.2d 818. Accordingly, appellant's fifth assignment of error is without {¶22} In appellant's sixth assignment of error, appel......
-
Smalley v. Friedman, Domiano & Smith Co., L.P.A., 2004 Ohio 2351 (OH 5/6/2004)
...supra. Absent express consent, it is not within the power of the client's attorney to waive that privilege. See Maust v. Palmer (1994), 94 Ohio App.3d 764, 768, 641 N.E.2d 818; State v. Shipley (1994), 94 Ohio App.3d 771, 775, 641 N.E.2d {¶30} In H & D Steel Serv. v. Weston, Hurd, Fallon, P......