Tye v. Beausay, 27416

• Court: United States Court of Appeals (Ohio)
• Citation: 2017 Ohio 7943,98 N.E.3d 970
• Docket Number: No. 27416,27416
• Parties: Matthew TYE, et al., Plaintiff–Appellant v. Jeffrey BEAUSAY, et al., Defendant–Appellee
• Decision Date: 29 September 2017

98 N.E.3d 970
2017 Ohio 7943

Matthew TYE, et al., Plaintiff–Appellant
v.
Jeffrey BEAUSAY, et al., Defendant–Appellee

No. 27416

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on the day of September 29, 2017.

GARY GOTTSCHLICH, Atty. Reg. No. 003760 and CASSANDRA RICE, Atty. Reg. No. 0090102, 201 East Sixth Street, Dayton, Ohio 45402, Attorneys for Plaintiff–Appellant

JOHN SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400, Dayton, Ohio 45402, Attorney for Defendant–Appellee

OPINION

HALL, P.J.

{¶ 1} Matthew and Joshua Tye appeal from the trial court's entry of judgment against them on their complaint seeking to hold appellees Jeffrey Beausay and the Donahey Law Firm liable for legal malpractice and other claims.

{¶ 2} The Tyes advance three assignments of error. First, they contend the trial court erred in not finding an express or implied attorney-client relationship between them and Beausay, or a recognized substitute for such a relationship, when entering summary judgment against them on their malpractice claim. Second, they assert that the trial court erred in making its own factual finding to dispose of their seven alternative claims for relief when ruling on a Civ.R. 12(B)(6) motion. Third, they argue that the trial court erred in failing to vacate its Civ.R. 12(B)(6) dismissal of their alternative claims upon determining, in the context of the later summary-judgment motion, that no attorney-client relationship existed.

{¶ 3} The present litigation stems from a 2010 medical-malpractice lawsuit filed by the Tyes' father, Scott Tye, and their stepmother, Barbara Tye. Scott and Barbara Tye were represented by attorney Beausay and the Donahey Law Firm in the lawsuit, which alleged negligence by various

98 N.E.3d 973

doctors in failing to diagnose and treat a spinal epidural abscess that resulted in Scott Tye's paralysis. Matthew and Joshua, Scott Tye's adult sons, without their knowledge or assent, were also named by Beausay as plaintiffs in the medical-malpractice lawsuit where one or more claims were asserted on their behalf. As part of a settlement process, Beausay mediated and dismissed the lawsuit, which included the claims he asserted on behalf of the Tye brothers, without ever contacting or advising them in any way. Prior to distribution of the settlement proceeds, Scott Tye informed his sons that they were required to sign releases. At the time, the Tye brothers were young adults, and they did not live with Scott and Barbara. The Tye brothers signed the releases at their father's request. The releases precluded them from pursuing any present or future claims against the medical-malpractice defendants related to their father's medical treatment and care. Despite the settlement, the Tye brothers never received any of the compensation, which appears to have gone to their father, as none of it was segregated or earmarked for them. The Tye brothers did not discover that Beausay had involved them in the case until after their father's death, which occurred just weeks after the final claims were dismissed with prejudice and the last releases were signed. Appellants alleged the death was related to the medical care their father received.

{¶ 4} Upon discovering that Beausay had involved them in the medical-malpractice case without their knowledge, the Tye brothers filed the present lawsuit against Beausay and the Donahey Law Firm. In an amended complaint, they asserted a legal-malpractice claim as well as alternative claims for bad faith, conversion, malicious conduct, privity, estoppel, third-party beneficiaries, and respondeat superior. The trial court subsequently sustained in part and overruled in part a Civ.R. 12(B)(6) motion filed by Beausay and his law firm. It found that the Tye brothers' complaint sufficiently stated a claim for legal malpractice based on the existence of an attorney-client relationship with Beausay. Therefore, the trial court refused to dismiss the legal-malpractice claim. It concluded, however, that the alternative claims, regardless of how they were pled, were in substance legal-malpractice claims and were subsumed by that claim. Consequently, the trial court sustained the motion to dismiss with regard to the seven alternative claims.

{¶ 5} Beausay and the law firm later moved for summary judgment on the remaining legal-malpractice claim. The grounds for the motion were (1) that no attorney-client relationship existed between the Tye brothers and Beausay and (2) that the Tye brothers did not sustain any harm proximately caused by anything Beausay did. The Tye brothers opposed the motion, arguing (1) that a "malice" substitute for an attorney-client relationship existed and (2) that, at a minimum, genuine issues of material fact existed as to whether Beausay's actions had caused them harm.

{¶ 6} In a December 22, 2016 ruling, the trial court sustained the summary-judgment motion. It concluded that no attorney-client relationship existed between the Tye brothers and Beausay. It also concluded that the "malice" substitute for an attorney-client relationship did not apply. On that issue, it reasoned:

The Court finds there was no malice in the case at bar. Here, Beausay named the Plaintiffs, Matthew Tye and Joshua Tye, in Scott's medical malpractice suit to preserve their claims. Written Deposition of T. Jeffrey Beausay at 14:23–25, 15:1–4. The releases signed by the Plaintiffs

98 N.E.3d 974

were done after Scott assured Beausay that he had discussed the matter with his sons and that there was not going to be a problem with the releases. Written Deposition of T. Jeffrey Beausay at 40:10–16. Furthermore, Matthew Tye said that signing the releases would not be a problem after Beausay told them that releases would need to be signed. Written Deposition of T. Jeffrey Beausay at 25:9–15. The Court finds these facts are not indicative of someone who consciously disregarded the rights and safety of Matthew and Joshua Tye.

The Plaintiffs also claim Defendant's professional misconduct creates a form of legal malpractice. A "violation of a rule [of professional conduct] should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached." Ohio Prof.Cond.R. Preamble ¶ 20. The Plaintiffs allude to ethical violations which is not a matter for this Court to decide and shall be left to another forum.

(Doc. # 61 at 6–7).

{¶ 7} In their first assignment of error, the Tye brothers contend the trial court erred in failing to find an express or implied attorney-client relationship between them and Beausay. They assert that Beausay obviously represented them in the medical-malpractice lawsuit. They also insist that an attorney-client relationship should be implied based on Beausay's actions and what they reasonably would have believed about the existence of an attorney-client relationship if they had been aware of his actions. Alternatively, the Tye brothers argue that the trial court erred in failing to find that malice could substitute for an attorney-client relationship and in failing to consider the other potential substitutes (such as privity) mentioned in their complaint. Finally, the Tye brothers contend bad faith can substitute for an attorney-client relationship here.

{¶ 8} In response, Beausay and the Donahey Law Firm argue that the Tye brothers cannot assert the existence of an implied attorney-client relationship, rely on the privity substitute for an attorney-client relationship, or argue bad faith because they did not mention those issues in opposition to summary judgment. Beausay and the law firm then insist that no express or implied attorney-client relationship existed, as a matter of law. Beausay and the law firm also argue that there is no genuine issue of material fact on the malice issue, that there is no evidence of privity between the Tye brothers and Scott and Barbara Tye, and that nothing Beausay did caused the Tye brothers to suffer any harm.

{¶ 9} In their reply, the Tye brothers assert that all of their alternative claims are properly before us. They note that the trial court dismissed those alternative claims under Civ.R. 12(B)(6) as being subsumed by the legal-malpractice claim. Under these circumstances, the Tye brothers assert that they were not required to mention the alternative claims again when opposing summary judgment on the legal-malpractice claim. The Tye brothers also reiterate their arguments about an implied attorney-client relationship and the applicability of the malice substitute, or other substitutes, for an attorney-client relationship. Finally, the Tye brothers contend we cannot consider the alleged non-existence of harm to them because the trial court did not decide that issue in its summary-judgment ruling.

{¶ 10} Upon review, we see no genuine issue of material fact as to whether an express or implied attorney-client relationship existed between the Tye brothers and Beausay. Construing the evidence and all reasonable inferences in a light most favorable

98 N.E.3d 975

to the Tye brothers, we conclude that no such relationship existed as a matter of law. No express attorney-client relationship existed given that the Tye brothers admittedly never communicated with Beausay and...