Sayyah v. Cutrell

• Citation: 143 Ohio App.3d 102,757 NE 2d 779
• Decision Date: 09 April 2001
• Docket Number: No. CA2000-06-018.,CA2000-06-018.
• Parties: SAYYAH et al., Appellants, v. CUTRELL, Appellee.
• Court: United States Court of Appeals (Ohio)

143 Ohio App.3d 102

757 NE 2d 779

SAYYAH et al., Appellants, v. CUTRELL, Appellee.

No. CA2000-06-018.

Court of Appeals of Ohio, Twelfth District, Brown County.

Decided April 9, 2001.

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John Sayyah, pro se.

Brenda Frank, pro se.

Rendigs, Fry, Kiely & Dennis, David W. Peck, Michael P. Foley and James J. Englert, for appellee.

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VALEN, Judge.

Plaintiffs-appellants, John Sayyah and Brenda Frank, appeal a decision of the Brown County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Jay Cutrell ("Cutrell"), in a legal malpractice action.

Appellants are residential property owners at Lake Waynoka, in Sardinia, Brown County, Ohio, and are required to be dues-paying members of the Lake Waynoka Property Owners Association ("WPOA"). Cutrell is the attorney for WPOA.

On April 26, 2000, appellants filed a legal malpractice complaint against Cutrell. Appellants also filed for a temporary and permanent injunction. The complaint alleges that because appellants are WPOA members whose "dues help pay Cutrell's fees as attorney to WPOA," Cutrell is their de jure attorney. The complaint cryptically alleges that Cutrell breached his duty of care to appellants in several ways, such as "flailing to advise appellants that an irreconcilable conflict of interest exists in which he is defense attorney to a course of action brought by appellants that is adverse to their vested interests." The trial court read that statement as alleging a breach of duty by Cutrell's "defending a lawsuit commenced by appellants while concurrently acting as counsel for the WPOA." The complaint sought a temporary and permanent injunction to remove Cutrell "as attorney to both WPOA and the party in which appellants brought a course of action against in which Cutrell acts and continues to act as defense attorney to the detriment of appellants." As it will be detailed later, Cutrell is apparently also the attorney for a water and sewer district that is being sued by appellants and other WPOA members.

On the same day that they filed their complaint, appellants also filed a motion for a temporary restraining order "to remove Cutrell as attorney to both WPOA and the party in which Cutrell acts as defense attorney to the detriment of appellants' best interests." Cutrell filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). By entry filed May 8, 2000, the trial court sua sponte converted the motion to dismiss into a motion for summary judgment. Cutrell thereafter filed a memorandum in support of the motion for summary judgment.

On May 15, 2000, appellants filed a motion demanding that Cutrell produce all documents pertaining to a "Contractual Services Agreement" drafted by Cutrell and entered into on July 13, 1998 by WPOA and the Waynoka Regional Water and Sewer District (the "Water and Sewer District"). The motion alleges that the agreement "allows * * * WPOA * * * to contract out staff and personnel presumably of WPOA to the Water and Sewer District without said staff and personnel being informed of their legal rights to refuse or accept such an agreement."

On May 23, 2000, appellants filed a memorandum in opposition to the motion for summary judgment. An affidavit filed that day by Joyce Casper, a dues-paying member of WPOA, states that Casper is a plaintiff in a case pending against the Water and Sewer District. Casper's affidavit also refers to Cutrell's "conflicting interest as both Attorney to WPOA and as Attorney to the Water and Sewer District" and to Cutrell's "being able to be on both sides of a legal issue that is being adjudicated in defending another entity that is a Defendant in a legal action brought by Casper and others." Appellants also each filed their own affidavit. Appellant Frank's affidavit refers to the fact that Frank "had a lawsuit pending against the Water and Sewer District."

The foregoing reasonably indicates that Cutrell is WPOA's attorney and that he also represents the Water and Sewer District in a lawsuit brought against it by appellants and other dues-paying members of WPOA. However, there is no evidence in the record as to what the lawsuit is about. While appellants are clearly upset about the agreement entered into between the Water and Sewer District and WPOA, it is not clear from the record that the agreement is the cause of action for the lawsuit.

By decision filed June 2, 2000, the trial court granted summary judgment in favor of Cutrell and dismissed appellants' complaint. This appeal follows.

Appellants' pro se brief fails to contain assignments of error as required by App.R. 16(A)(3) and Loc.R. 11. However, it is readily apparent that they are challenging the trial court's order granting summary judgment in favor of Cutrell. In the interest of justice, we therefore construe appellants' brief as raising an assignment of error in which they claim the trial court erred by granting summary judgment in favor of Cutrell. Under the assignment of error, appellants raise two subissues, to wit, (1) the trial court erred by denying their motion to disqualify Cutrell, and (2) the trial court erred by rejecting their legal malpractice claim.

Pursuant to Civ.R. 56(C), summary judgment is appropriate if the trial court, upon viewing the evidence in the light most favorable to the party against whom the motion is made, determines that (1) there are no genuine issues as to any material facts; (2) the movant is entitled to a judgment as a matter of law; and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. This court reviews a trial court's decision to grant summary judgment de novo. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445, 666 N.E.2d 316, 319-320.

In granting summary judgment in favor of Cutrell, the trial court found that while Cutrell was appellants' attorney, he was not disqualified¹ from representing the Water and Sewer District in appellants' lawsuit against it because appellants failed to provide any evidence of a conflict of interest. The trial court also found that appellants failed to prove legal malpractice. We first address the trial court's denial of appellants' motion to disqualify Cutrell.

In determining whether an attorney should be disqualified, a trial court must first determine whether there is or has been an attorney-client relationship. Henry Filters, Inc. v. Peabody Barnes, Inc. (1992), 82 Ohio App.3d 255, 260, 611 N.E.2d 873, 875-876. If there is no current or past attorney-client relationship, the motion to disqualify should be denied. If, on the other hand, the court determines that there is or has been an attorney-client relationship, the court must then determine whether a conflict of interest exists. Only if a conflict exists need the attorney be disqualified. Id. The decision to disqualify an attorney is within the sound discretion of the trial court. Id.

WPOA is an incorporated association. In determining whether Cutrell was appellants' attorney, the trial court first noted that several courts have held that "the `client' of an unincorporated association, for the purposes of disqualification, is the association's members." (Emphasis sic.) The trial court then relied upon Glueck v. Jonathan Logan, Inc. (C.A.2, 1981), 653 F.2d 746, and held that "members of an incorporated association are the clients of the association's attorney, for purposes of disqualification." The trial court then found that Cutrell was appellants' attorney for disqualification purposes.

In Glueck, the law firm that the plaintiff sought to disqualify represented an incorporated trade association on an ongoing basis. The sole function of the association was to negotiate a group collective bargaining agreement on behalf of its members with a large labor union. One of the association members was R & K Originals, a division of Jonathan Logan, Inc. The law firm undertook representation of Charles Glueck, a former employee of Logan, against Logan in a breach of contract action based on the collective bargaining agreement. R & K Originals' president had taken part in negotiating the agreement. The law firm was disqualified because of the possibility that its attorneys might have gained knowledge of confidential information bearing on the association member's defense to the later action during the course of the earlier representation. Id. at 750.

Unlike the trial court, we find that Glueck may not be read as a blanket principle that members of an incorporated association are the clients of the association's attorney for purposes of disqualification. The issue in Glueck was "whether in the circumstances of that case a law firm that represents an incorporated trade association may represent an individual client in a suit against a corporation one division of which is a member of the association." Id. at 747.

We find that Glueck is factually distinguishable from the case at bar and therefore does not apply. The law firm in that case sought to bring a lawsuit on behalf of a third party against a member of an association. In the case at bar, the members of the association of which Cutrell is the attorney brought a lawsuit against another organization allegedly represented by Cutrell. "This simply is not the same factual situation addressed by the Glueck court; the equities are different, and the analysis must differ, as well." Shadow Isle, Inc. v. Am. Angus Assn. (Sept. 22, 1987), W.D.Mo. No. 84-6126-CV-SJ-6, 1987 WL 17337, at * 4, unreported. As the Shadow Isle² court aptly noted:

"Because of the differing facts, this is not a case which presents the kind of risks with which the Glueck court was concerned. There is no danger that Jenner & Block attorneys will feel a divided loyalty to two acknowledged clients,...