Scott Anthony Huffer v. Christopher T. Cicero
| Decision Date | 03 November 1995 |
| Docket Number | 95-LW-4778,94CA852 |
| Parties | Scott Anthony Huffer, Plaintiff-Appellant v. Christopher T. Cicero, Defendant-Appellee Case |
| Court | Ohio Court of Appeals |
RAY TODARO & ALTON CO., L.P.A., Frank A. Ray, Columbus, Ohio, for Appellant.
PLYMALE & ASSOCIATES, Andrew W. Cecil, Columbus, Ohio, for Appellee.
DECISION
Plaintiff Scott Huffer appeals the trial court's decision to award him $16,000 in damages in his legal malpractice action against appellee Christopher Cicero, Attorney at Law. Mr. Cicero has also filed a cross appeal challenging the trial court's decision.
The facts giving rise to this appeal began in August of 1991 when appellant Scott Huffer was indicted for one count of trafficking in drugs in Highland County Court of Common Pleas Case Number 91-CR-97. In September of 1991, appellant hired appellee, Christopher Cicero, to represent him on the criminal charges. On December 13, 1991, case number 91-CR-97 was dismissed and appellant was subsequently indicted on six counts of trafficking in drugs in Highland County Court of Common Pleas Case Number 91-CR-155. The case proceeded to trial and a jury convicted appellant of all six counts. Appellant was then sentenced to one year on each count, to be served consecutively, and fined $2,500 on each count for a total of $15,000 in fines.
After appellant was sentenced, he hired different counsel to represent him on post-conviction matters and incurred $26,500 in additional legal fees. Appellant was eventually granted shock probation after serving one hundred days in prison.
On January 28, 1993, appellant filed an action against Mr. Cicero for legal malpractice. The complaint alleged that appellee failed to disclose repeated plea negotiations made by the prosecution that would have allowed appellant to plead guilty to only two charges of trafficking in drugs. According to appellant, the terms of the plea bargain would have allowed Mr. Huffer to plead to the original one count indictment in trafficking in drugs, plus one additional count in trafficking in drugs, pay $2,500 in mandatory fines on each count, and make $300 restitution. Additionally, the prosecution would recommend to the court that Mr. Huffer be put on probation after serving local jail time. The terms of the plea bargain demanded that Mr. Huffer cooperate with the prosecution in other drug cases. The complaint sought money damages for $10,000 in additional fines, $26,500 in additional legal fees, and damages for loss of employment, court costs, and bail.
Appellee initially failed to respond to the lawsuit. He refused service of process by certified mail and appellant was forced to make service by ordinary mail on February 18, 1993. Appellee also refused numerous attempts at service for purposes of discovery. Eventually, on June 15, 1993, appellee was personally served with an alias summons, a copy of the court order appointing a process server, a copy of the complaint, a set of interrogatories, a request for production of documents, and a notice and subpoena to appear at a deposition on July 8, 1993. Appellee, however, did not appear for the deposition. Appellee finally filed an answer on August 11, 1993, far beyond the time provided by Civ.R. 4.6 and Civ.R. 12(A) (1), without first having obtained leave of court.
In response to appellee's answer, appellant filed a motion to strike the answer and move for a default judgment on the issue of liability. On November 3, 1993, the trial court granted default judgment in favor of appellant; the court took evidence of the issue of damages on April 8, 1994. At the April 8, 1994 hearing, appellee failed to appear in court, although he did have counsel present.
As several assignments of error challenge the trial court's legal conclusions based upon the evidence, we will briefly review some of the testimony offered at the hearing. The Highland County Prosecutor, Mr. Coss, stated that on October 28, 1991, while case number 91-CR-97 was still pending, he offered a plea bargain to Mr. Cicero. He testified that he offered to allow Mr. Huffer to plead guilty to the one charge in the original indictment, and plead guilty to one additional drug trafficking count, if Mr. Huffer would agree to cooperate with the prosecution in other drug cases. The terms of the agreement included that Mr. Huffer would have to pay $2,500 in mandatory fines on each count, pay an additional $300 in restitution, and that the prosecution would recommend thirty days of incarceration, then probation. According to Mr. Coss, a failure to accept the plea bargain would result in a new indictment charging appellant with six counts of drug trafficking. Mr. Coss further testified that, to his knowledge, appellee never presented the plea bargain offer to appellant. Instead, appellee responded that he did not represent "snitches" and that if appellant wanted to cooperate with the prosecution, he would have to get himself another attorney.
Appellant also testified at the hearing. He stated that appellee never made known the possibility of any plea bargains to him and that he would have cooperated with the prosecution had the terms of the plea bargain been known. Appellant's mother also testified that she repeatedly asked Mr. Cicero about the possibility of obtaining a plea bargain, and that he continually told her that Mr. Coss would not offer any. She also testified that on December 21, 1991, Mr. Cicero came to her home and told her that Mr. Coss was threatening to bring a RICO action against her son, that "there was going to be blood spilled," and that he needed $15,000 more in attorney fees. She responded by writing a check to him on December 24, 1991, for $6,000.
Mr. Cicero testified at a later hearing that Mr. Coss never made any plea bargain offer on October 28, 1991. He also stated that money was never an issue in his representation of appellant, and that he never asked for any money. He further testified that the only offer Mr. Coss ever made occurred on February 18, 1992, two weeks before trial. He stated, however, that appellant refused to accept any plea bargain that demanded that he take a polygraph test to prove that he was telling the truth to law enforcement officials.
On June 21, 1994, appellant filed proposed findings of fact and conclusions of law with the trial court. On July 14, 1994, the court filed a decision and judgment entry finding in favor of plaintiff and awarding him $16,000, the amount of money paid to appellee in attorney fees. The court, however, did not award any other damages to appellant, and did not include findings of fact and conclusions of law in its judgment entry. The court stated in its judgment entry that it did not find that the plaintiff had proved, by a preponderance of the evidence, that the trial judge world have accepted appellant's plea of guilty to the two counts. Instead, the trial court held that the presiding judge might have rejected such a plea agreement and required appellant to plead to all six counts.
On July 28, 1994, appellant filed a Civ.R. 60(B) motion. The motion requested that the trial court increase its damage award based upon the fact that the trial court made a factual error in its July 14, 1994 judgment entry. Appellant argued that the initial plea bargain offered by Mr. Coss occurred before the six count indictment ever existed, and therefore, the trial court's reasoning with regard to damages was flawed. On August 12, 1994, appellant filed a notice of appeal of the trial court's July 14, 1994 judgment entry. On September 16, 1994, the trial court filed findings of fact and conclusions of law and also filed a separate judgment entry overruling appellant's Civ.R. 60(B) motion. Both the parties have subsequently appealed.(fn1)
We will first consider the following cross assignments of error raised by appellee:
Appellee first argues that the trial court erred by refusing to grant appellee a jury trial on the issue of damages. In the original complaint, appellant filed a demand for a jury trial. Appellee also filed a demand for a jury trial in his untimely answer of August 11, 1993. On November 30, 1993, appellant filed a motion to withdraw his jury demand and to proceed with a trial to the court on the issue of damages. Appellee resisted appellant's attempt to withdraw his jury demand, but on December 1993, the trial court granted appellant's motion to withdraw his demand for a jury. Appellee now contends that the trial court's action constituted error because Civ.R. 38(15) provides that a demand for a trial by a jury may not be withdrawn without the consent of both parties. See Civ.R. 38(D).
We agree that generally when one party has requested a trial by jury, a trial by jury must be granted unless both parties consent to try the action before the court. See Civ.R. 38(D); Civ.R. 39(A) and Commentary. However, Civ.R. 39(A) also states that:
The failure of a party or his attorney of record either to answer or appear for trial constitutes a waiver of trial by jury by such party and authorizes submission of all issues to the court.
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