Phillips v. Wilkinson
| Decision Date | 09 November 2017 |
| Docket Number | No. 17AP-231,17AP-231 |
| Citation | 2017 Ohio 8505 |
| Parties | Keith Phillips, Plaintiff-Appellant, v. William C. Wilkinson, Esq. et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: Ford, Gold, Kovoor & Simon, Ltd., and Sarah Thomas Kovoor, for appellant.
On brief: Taft Stettinius & Hollister LLP, Janica Pierce Tucker, and Andrew J. Art, for appellees. Argued: Carolyn A. Davis.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Plaintiff-appellant, Keith Phillips, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, William C. Wilkinson, Esq. and Estate of William C. Wilkinson.1 For the reasons that follow, we affirm.
{¶ 2} In 2012, appellant was an inmate in the custody and control of the Ohio Department of Rehabilitation and Corrections ("DRC") at the Marion Correction Institution ("MCI"). On June 29, 2012, appellant was in the MCI outdoor area when hewas struck in the face by a softball that had been hit over the fence by a contestant in a home run hitting contest. Appellant sustained a serious injury to his right eye and, as a result, permanently lost most of his vision in that eye.
{¶ 3} Appellant, by and through attorney Percy Squire, brought a civil action against DRC in Court of Claims of Ohio alleging negligence. The issues of liability and damages were bifurcated for trial. Squire continued to represent appellant through the liability trial. Following a trial to the Court of Claims on the issue of liability, the Court of Claims found in favor of appellant on his negligence claim.
{¶ 4} At the damages trial, Wilkinson represented appellant. The Court of Claims awarded damages of $200,000 to compensate appellant for pain and suffering, loss of vision in his right eye, and his increased risk of total blindness due to appellant's loss of vision in one eye. The Court of Claims did not award any damages to appellant for loss of future earning capacity and future medical expenses.
{¶ 5} Appellant appealed to this court from the decision of the Court of Claims arguing that the Court of Claims erred when it failed to award damages to appellant for loss of future earning capacity and future medical expenses. In Phillips v. Dept. of Rehab. & Corr., 10th Dist. No. 12AP-965, 2013-Ohio-5699, this court affirmed the judgment of the Court of Claims. In holding that the Court of Claims did not err in denying recovery of damages for loss of future earning capacity, this court stated: Id. at ¶ 14.
{¶ 6} On February 22, 2014, shortly after this court issued its decision in Phillips, Wilkinson passed away. On February 23, 2015, appellant filed a malpractice action against appellee. Appellant dismissed that case by filing a notice of voluntary dismissal, but he refiled the malpractice action on March 10, 2016. The material allegations of the complaint are as follows:
(Compl. at 2.)
{¶ 7} On March 7, 2017, the trial court granted appellee's motion for summary judgment for the stated reason that appellant failed to identify a legal expert witness who would give testimony on his behalf, as required by the local rules of court, and because Ohio law required appellant to present the testimony of an expert witness to create a disputed issue of fact as to the elements of his claim for legal malpractice. Specifically, the trial court concluded that "[a]bsent expert testimony there is no basis to find that Wilkinson did not meet the standard of care." (Mar. 7, 2017 Decision at 6.)
{¶ 8} Appellant appealed to this court from the trial court's decision.
{¶ 9} Appellant assigns the following as trial court error:
The trial Court erred in granting Appellee's motion for summary judgment on grounds that Mr. Phillips failed to adduce expert testimony to establish legal malpractice.
{¶ 10} Appellate review of summary judgment is de novo. Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). "We must affirm the trial court's judgment if any of the grounds raised by the movant in the trial court are found to support it, even if the trial court failed to consider those grounds." Gabriel at ¶ 12, citing Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio-4335, ¶ 7, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
{¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Byrd at ¶ 6, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 12} " '[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). Once the moving party meets its initial burden, the nonmovant must set forth specific facts demonstrating a genuine issue for trial. Byrd at ¶ 7, citing Dresher at 293.
{¶ 13} In appellant's sole assignment of error, he argues that the trial court erred when it granted summary judgment in favor of appellee due to appellant's failure to produce expert testimony in support of his legal malpractice claim. We disagree.
{¶ 14} " '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.' " Goldberg v. Mittman, 10th Dist. No. 07AP-304, 2007-Ohio-6599, ¶ 10, quoting Polivka v. Cox, 10th Dist. No. 01AP-1023, 2002-Ohio-2420, ¶ 21, quoting Vahila v. Hall, 77 Ohio St.3d 421 (1997), syllabus. " 'The duty of an attorney to his client is to "* * * exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent in discharging the duties he has assumed." ' " Yates v. Brown, 185 Ohio App.3d 742, 2010-Ohio-35, ¶ 17 (9th Dist.), quoting Palmer v. Westmeyer, 48 Ohio App.3d 296, 298 (6th Dist.1988), quoting 67 Ohio Jurisprudence 3d, Malpractice, Section 9, at 16 (1986).
{¶ 15} In Goldberg, the plaintiff brought a legal malpractice action against her former bankruptcy counsel. Id. at ¶ 1-4. Plaintiff alleged that counsel committed legal malpractice by failing to attach, as exhibits to plaintiff's response to the trustee's motion for summary judgment, certain evidentiary materials demonstrating the existence of "disputed facts." Id. at ¶ 3. In affirming the trial court's grant of summary judgment for plaintiff, this court set out the relevant law regarding the client's burden of production in a legal malpractice action as follows:
In McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112, 10 OBR 437, 461 N.E.2d 1295, the Supreme Court of Ohio held that, in a legal malpractice case, expert testimony is generally required in order to prove breach of the duty that the attorney owed to the plaintiff, unless the claimed breach of professional duty is "well within the common understanding of * * * laymen * * *." Id. at 113; see, also, Whiteside v. Conroy, 2005 Ohio 5098, ¶50. "Expert testimony is required so that the trier of fact does not have to speculate on the standard of care, particularly in a complex case involving * * * [matters] which are normally not within the realm of understanding of the layman." Northwestern Life Ins. Co. v. Rogers (1989), 61 Ohio App.3d 506, 512, 573 N.E.2d 159. This "standard of care" has been described as that which "a reasonable attorney, similarly situated, would have * * * [done] under the circumstances." Brunstetter v. Kea...
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