Monastra v. D'Amore

• Decision Date: 01 April 1996
• Docket Number: No. 69378,69378
• Citation: 111 Ohio App.3d 296,676 N.E.2d 132
• Parties: MONASTRA, Appellee, v. D'AMORE, Appellant. *
• Court: Ohio Court of Appeals

Page 296

111 Ohio App.3d 296

676 N.E.2d 132

MONASTRA, Appellee, v.D'AMORE, Appellant. ^*

No. 69378.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided April 1, 1996.

Carl C. Monastra, Cleveland, pro se.

Savoy, Bilancini, Flanagan & Kenneally and Patrick M. Flanagan, Elyria, for appellant.

Reid, Berry & Stanard and D. Cheryl Atwell, Cleveland, for appelleeTurbow, Monastra & Mandell.

PORTER, Judge.

Defendant and third partyplaintiff-appellantRegina D. D'Amore appeals from summary judgments entered in favor of plaintiff-appelleeCarl C. Monastra, denying her legal malpractice counterclaim and awarding plaintiff attorney fees for representing D'Amore in her divorce proceedings.Defendant contends the trial court erred in holding that D'Amore's legal malpractice claims were barred by the one-year statute of limitations, abused its discretion when it denied her extensions of time to respond to dispositive motions, and committed other procedural errors which unfairly prejudiced her.We find merit to the appeal and reverse.

This case arose out of Monastra's legal representation of D'Amore in divorce proceedings with her former husband, John Melkon, which originated in July 1991.Monastra filed the divorce complaint on behalf of D'Amore against her husband on August 30, 1991.By letter dated March 22, 1993, D'Amore discharged Monastra due to his failure to answer her telephone calls and failure to make any progress in her case in almost two years.She directed him to turn over his papers to David Arnold of Weston, Hurd, Fallon, Paisley & Howley.D'Amore eventually settled her divorce case in February 1994 on the eve of trial.

On April 20, 1994, Monastra filed the instant suit in the Cuyahoga County Court of Common Pleas against D'Amore, alleging that she breached a written contract for his services by failing to pay his bill in the amount of $30,635.17 for representing her in the divorce action from July 16, 1991 to March 22, 1993.His billing also included entries for services rendered on March 31, 1993, April 28, 1993 and June 15, 1993 at no charge while cooperating in the transfer of responsibility to Arnold, D'Amore's new divorce counsel.

On April 28, 1994, D'Amore's counsel, Richard Gibbs Johnson, filed a motion for more definite statement, and Monastra filed an amended complaint on May 18, 1994.

On May 26, 1994, D'Amore filed a counterclaim against Monastra and a third-party complaint against Monastra's law firm, Turbow, Monastra & Mandell, alleging legal malpractice.Monastra and his law firm answered on June 27, 1994.D'Amore's motion for a more definite statement was denied on August 8, 1994; she answered the amended complaint on August 25, 1994.

Discovery ensued.Depositions were taken of D'Amore, Monastra and Arnold.On November 17, 1994, a pretrial was held.At that time, the trial court set a schedule which included (1) dispositive motions to be submitted on or before March 24, 1995 with responsive briefs to be filed within thirty days, (2) D'Amore's expert report on her malpractice claim and Monastra's expert report on his claim for attorney fees were to be provided by May 1, 1995, (3) responsive expert reports were due by June 1, 1995, (4) all discovery was to be completed by July 17, 1995, and (5)the case was scheduled for trial on September 11, 1995.

Neither side filed a dispositive motion by March 24, 1995.Pursuant to a motion for leave, counsel for Monastra and his law firm were given until April 14, 1995 to file their motion for summary judgment.A joint summary judgment motion to dismiss D'Amore's legal malpractice counterclaim and third-party complaint was filed on April 14, 1995 with supplemental documentation and D'Amore's deposition.The motion was based on the one-year statute of limitations and waiver of legal malpractice by D'Amore's settlement of her divorce proceedings.

On April 28, 1995, three days before the expert reports were due, D'Amore's counsel requested an extension of time to produce her initial expert report regarding her legal malpractice claims for an indefinite period pending ruling on Monastra's summary judgment motion.The request was based on avoiding the expense of obtaining a malpractice expert which could prove unnecessary if Monastra's motion for summary judgment was granted.

D'Amore's response to the summary judgment motion was due on May 17, 1995.On May 15, 1995, D'Amore's counsel requested a thirty-day extension of time to respond to the motion for summary judgment by June 15, 1995, due to the difficulty of the issues presented and his heavy docket and trial schedule.Both requests for extension were opposed by Monastra and his law firm.

On May 25, 1995, the trial court denied D'Amore's motion to extend time to provide the expert's report.On May 26, 1995, the motion to extend her time to respond to the motion for summary judgment was also overruled.

On June 9, 1995, without leave of court, Monastra, pro se, filed a motion for summary judgment requesting judgment on his claim for attorney fees.The deadline extended by the court for submitting dispositive motions had expired April 14, 1995 and the case was set for trial on September 11, 1995."If the action has been set for * * * trial, a motion for summary judgment may be made only with leave of court."Civ.R. 56(A).

On June 15, 1995, D'Amore's counsel filed a motion for reconsideration of the court's denial of his motion for extension to file a response to Monastra's summary judgment by July 15 and a motion for reconsideration of the court's denial of his motion for extension of time to file the expert report.The motion for reconsideration was again based on the expense of an expert report which might prove unnecessary if the motion for summary judgment was granted, defense counsel's heavy docket and trial schedule, unfairness to D'Amore, the nature of the motion for summary judgment, which could have been filed much sooner, and illness in D'Amore's family which prevented counsel from meeting with his client.The motions for reconsideration were opposed by Monastra and his law firm.On the day following these filings for reconsideration, Johnson, D'Amore's counsel, filed a motion to withdraw as counsel without explanation.

On June 28, 1995, the trial court entered orders granting Monastra's unopposed motion for summary judgment against D'Amore's counterclaim and third-party complaint for legal malpractice and overruling her counsel's request for reconsideration of extensions of time.On the same date, the court granted D'Amore's counsel's motion to withdraw conditioned on D'Amore's retaining new counsel.

On July 6, 1995, new counsel, Patrick Flanagan, entered his appearance on behalf of D'Amore.New counsel moved to strike Monastra's pending motion for summary judgment on his fee claim to recover for legal services, moved to oppose original defense counsel's motion to withdraw, and moved for an extension of time to respond to Monastra's motions for summary judgment.¹New counsel's motions for an extension of time to respond to the various motions for summary judgment and to obtain an expert report were accompanied by affidavits of new counsel setting forth facts supporting the extensions requested, i.e., extensive time needed to review the file and his heavy caseload.

On July 11, 1995, new counsel moved for a continuance of the trial date set for September 11, 1995 regarding Monastra's attorney fees and also requested time to respond to Monastra's motion for summary judgment regarding the fees and to obtain an expert report.

On July 13, 1995, Monastra's motion for summary judgment on his attorney fees claim was granted in the amount of $30,635.17 plus interest from March 22, 1993.The trial court ruled new counsel's motions for extension of time, motion to strike, motions for extensions to identify experts and continuance of trial were "moot."

On August 2, 1995, a timely notice of appeal was filed on behalf of D'Amore appealing the trial court's rulings on the motions for summary judgment, the motions for extensions of time, the motion to strike and the motions for extension to file expert reports.

We will address D'Amore's assignments of error in the order asserted and together where it is appropriate for discussion.

"I.The trial court erred when it granted the plaintiff's and third-party defendant's motions for summary judgment on the defendant's counterclaim and third-party complaint for legal malpractice."

Under Civ.R. 56, summary judgment is proper when:

"(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made."State ex rel. Parsons v. Fleming(1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379;Temple v. Wean United, Inc.(1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial.Celotex Corp. v. Catrett(1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265, 278;Mitseff v. Wheeler(1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802.Doubts must be resolved in favor of the nonmoving party.Murphy v. Reynoldsburg(1992), 65 Ohio St.3d 356, 359, 604 N.E.2d 138, 140.

However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial.Wing v. Anchor Media, Ltd. of Texas(1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099;Celotex, supra, 477 U.S. at 322-323, 106 S.Ct. at 2552-2553, 91 L.Ed.2d at 273-274.In accordance with Civ.R. 56(E), "a...