Moore v. Michalski, 17-CA-44

• Decision Date: 30 July 2018
• Docket Number: No. 17-CA-44,17-CA-44
• Citation: 2018 Ohio 3021,107 N.E.3d 228
• Parties: Katharine MOORE, Executor of the Estate of Robert L. Moore, Plaintiff-Appellee v. Raymond Richard MICHALSKI, et al, Defendant-Appellant
• Court: Ohio Court of Appeals

107 N.E.3d 228

2018 Ohio 3021

Katharine MOORE, Executor of the Estate of Robert L. Moore, Plaintiff-Appellee

v.Raymond Richard MICHALSKI, et al, Defendant-Appellant

No. 17-CA-44

Court of Appeals of Ohio, Fifth District, Fairfield County.

DATE OF JUDGMENT ENTRY: July 30, 2018

ROBERT G. COHEN, JASON BEEHLER, 65 East State Street, Ste. 1800, Columbus, OH 43215, SHEILA DESELICH COHEN, 1657 Wingate Drive, Delaware, OH 43015, For Plaintiff-Appellee.

DAVID HERD, JOHN C. NEMETH, 175 S. Third Street, Ste. 285, Columbus, OH 43215, For Defendant-Appellant.

JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Patricia A. Delaney, J.

OPINION

Gwin, J.

{¶ 1} Appellants, Raymond Richard Michalski and Dagger Johnson Miller Ogilvie and Hampson, LLP [collectively "Appellants"] appeal following a jury verdict finding them liable for professional negligence and awarding damages including attorney fees. Appellee is Katharine Moore in her capacity as Executor of the Estate of her father, Robert L. Moore.

Facts and Procedural History

{¶ 2} In 2010, Robert L. Moore engaged the Dagger Johnston law firm ("Dagger") to re-write his Last Will and Testament in order to leave his home and the 31/2 acres of land on which it was situated (collectively, the "Property") to his two children. Dagger assigned the task to attorney Ray Michalski. Instead of leaving Moore's Property to his children, Michalski's secretary or probate assistant made minor revisions to Moore's existing Will that left the Property to Moore's then estranged second wife, Joan Ellis ("Ellis").

{¶ 3} Confronted with Ellis's claim to the Property, the Estate filed a declaratory judgment action asking the probate court to interpret the 2010 Will. Faced with the reality that (1) the 2010 Will drafted by Michalski had, in fact, left the Property to Ellis, (2) the probate judge instructed plaintiff and Ellis to work things out, and (3) the Executor had a fiduciary obligation to preserve as much of the Estate as possible, Appellee was forced to compromise. In the settlement that was ultimately negotiated, the Estate retained some of the value of the Property, but was required to make cash payments to Ellis and her attorneys. The settlement required the Estate to: (1) pay a portion of the proceeds from the sale of the Property to Ellis; (2) pay Ellis's attorneys' fees in the probate proceedings; and (3) waive the Executor's fees. In addition, the Estate incurred its own attorneys' fees and costs in the probate proceedings because of Michalski's malpractice and Ellis' consequent claim to the Property. The Property was sold to pay the settlement.

{¶ 4} Appellee filed its Complaint against Appellants on March 22, 2016. Generally, the Complaint alleged legal malpractice by Appellees in the drafting of a Will for the decedent, Robert L. Moore. Appellants never properly filed an Answer in the case. See, 1T. at 42-53. The trial court dismissed Katharine Moore, individually, as a plaintiff on the pleadings by entry of August 8, 2016. Appellants then moved for summary judgment against The Estate of Robert L. Moore on June 12, 2017, arguing against attorney fees incurred in presenting the malpractice case and that the claims had been waived by settlement. The trial court denied the Motion for Summary Judgment by Entry and Order of August 14, 2017.

{¶ 5} Prior to the start of trial, the Appellee waived its motion for default judgment and requested the matter proceed to a jury trial. (1T. at 50). The trial court further ruled that the Appellees would not be permitted to make arguments concerning affirmative defenses of waiver or contributory negligence because they were not plead in accordance with Civ.R. 8. (1T. at 51).

{¶ 6} The case proceeded to a jury trial on September 12, 2017, and a final entry verdict and jury interrogatories were filed September 15, 2017. Specifically, the jury found $8,375.00 in economic loss, $7,000.00 in "non-economic loss", $70,000.00 for attorney's fees incurred in bringing and maintaining the legal malpractice case, and $5,125.00 in attorney's fees incurred in a probate court dispute with Robert L. Moore's wife, Joan Ellis.

{¶ 7} The Appellants submit that this case is on appeal mainly because the trial court improperly allowed the Complaint to proceed to trial on claims for attorney's fees incurred in prosecuting the legal malpractice action, as opposed to fees incurred in attempting to rectify purported malpractice, and in allowing claims for non-economic damages. (Appellant's Brief at 2).

Assignments of Error

{¶ 8} Appellant's raise six assignments of error,

{¶ 9} "I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THEY COULD CONSIDER ATTORNEY FEES INCURRED IN THE PROSECUTION OF THE LEGAL MALPRACTICE CASE AS DAMAGES.

{¶ 10} "II. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO APPELLANTS ON THE ISSUE OF MALPRACTICE CASE ATTORNEY FEES AS AN ELEMENT OF DAMAGES.

{¶ 11} "III. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER BROWN'S TESTIMONY ON ATTORNEY FEES AS DAMAGES AND THE EXHIBITS RELIED UPON RELATED TO ATTORNEY FEES.

{¶ 12} "IV. THE TRIAL COURT ERRED IN NOT PERMITTING MARK RIEGEL, ESQ., A PARTNER AND LITIGATOR WITH THE DAGGER FIRM, TO TESTIFY AS A REBUTTAL EXPERT WITNESS.

{¶ 13} "V. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER AND AWARD NON-ECONOMIC DAMAGES TO THE ESTATE.

{¶ 14} "VI. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT, AND FAILING TO INSTRUCT THE JURY, ON THE ESTATE'S WAIVER OF A MALPRACTICE CLAIM BY SETTLING WITH JOAN ELLIS IN PROBATE PROCEEDINGS."

I.

{¶ 15} In their First Assignment of Error, Appellants argue the trial court erred in instructing the jury that they could consider attorney fees incurred in the prosecution of the legal malpractice case as damages.

STANDARD OF APPELLATE REVIEW.

{¶ 16} Appellant argument centers on an issue of law, not the discretion of the trial court. In other words, Appellants contend that where a client is required to engage new counsel for a separate action proximately resulting from his attorney's negligence, whether legal fees paid by the plaintiff to prosecute a subsequent legal malpractice action against the offending lawyer may be awarded in the legal malpractice action as an item of special damages is a question of law.

{¶ 17} " ‘When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6 ; Huntsman v. Aultman Hosp. , 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13." State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 6.

A. Elements of a claim for legal malpractice.

{¶ 18} In Vahila v. Hall , 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997), the Ohio Supreme Court set forth the elements of a claim for legal malpractice,

To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss.

Vahila at syllabus. In the case at bar, the jury found the Appellants had committed legal malpractice. The issue in Appellant's First Assignment of Error is the measure of damages that may properly be awarded based upon the Appellants' negligence.

B. Damages recoverable when an attorney commits malpractice.

{¶ 19} In Paterek v. Petersen & Ibold, the Ohio Supreme Court made the following observations,

When an attorney commits malpractice in a civil case, the lion's share of the damages derives from the value of the lost claim.

* * *

This court has recognized that a plaintiff in a legal-malpractice case may seek other types of consequential damages, such as additional attorney fees incurred to correct the mistakes of the malpracticing attorney, Krahn v. Kinney (1989), 43 Ohio St.3d 103, 106, 538 N.E.2d 1058, but the jury below did not award any such damages. Thus, the focus of this case is the value of the lost cause of action.

118 Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, ¶ 28.

{¶ 20} In the present case, a specific jury interrogatory plainly states that the attorney fees awarded of $70,000.00 were for "attorney's fees incurred in bringing and maintaining this lawsuit."

ISSUE FOR APPEAL.

1. Whether under Ohio law legal fees paid by Appellee to prosecute a legal malpractice action against the offending lawyer may be awarded in the legal malpractice action as an item of special damages.

{¶ 21} Appellants contend that Ohio follows the "American Rule" which provides that each party is responsible for their own attorney's fees except as provided for in certain statutory actions or when the opposing party is found to have acted in bad faith, vexatiously, wantonly, obdurately, for oppressive reasons, or the party somehow engaged in malicious conduct. Sorin v. Board of Educ. of Warrensville Heights Sch. Dist., 46 Ohio St.2d 177, 180-81, 347 N.E.2d 527 (1976). Attorney fees, which are punitive in nature, may also be awarded where there has been a finding of actual malice and an award of punitive damages. Digital & Analog Design Corp. v. North Supply Co. , 63 Ohio St.3d 657, 590 N.E.2d 737 (1992).

{¶ 22} Appellees cite to Paterek v. Petersen & Ibold, cited above and to Green v. Bailey, 1st Dist. Hamilton No. C-070221, 2008-Ohio-3569, 2008 WL 2779192 in which the Court of Appeals stated,

Attorney fees incurred to rectify, or to attempt to rectify, the malpractice are recoverable as indirect, or consequential, damages in a legal malpractice action, even when the rectification is achieved through a settlement. But recovery is warranted only where the factfinder is persuaded that the fees

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