In the Supreme Court of Ohio

Transcription

1 Ns In the Supreme Court of Ohio WILLIAM R. LINDSLEY, ESQ. Plaintiff-Appellee, V. GREGORY ROE, et al. Defendants-Appellants. Discretionary Appeal From the Court of Appeals, Sixth Appellate District Lucas County, Ohio Case No L MEMORANDUM IN OPPOSITION TO JURISDICTION MARC J. MEISTER (001953) Marc J. Meister & Associates 6545 W. Central Ave., Ste. 202 Toledo, Ohio (419) (Telephone) (828) (Telefax) Attorney for Defendants Appellants Gregory Roe and Willys-Overland Motors, Inc. ROBERT H. EDDY ( ) [attorney of record] GALLAGHER SHARP 420 Madison Avenue, Suite 1250 Toledo, Ohio (419) (Telephone) (419) (Telefax) Attorneyfor Plaintiff-Appellee William R. Lindsley, Esq. s D SEP 072O11 CLERK OF COURT SUPREME COURT OF OHIO ^^P Q 7 2Ol3 CLERK OF COUR1' SUPREME COURT OF OHIO

2 FRITZ BYERS ( ) 520 Madison Ave., Suite 836 Toledo, OH (419) (Telephone) (419) (Telefax) Attorney for Defendants Appellants Gregory Roe and Willys-Overland Motors, Inc. R. MICHAEL FRANK ( ) 420 Madison Ave., Suite 1101 Toledo, Ohio (419) (Telephone) (419) (Telefax) Attorney for WOMLttL COLLEEN A. MOUNTCASTLE ( ) GALLAGHERSHARP Sixth Floor - Bulkley Building 1501 Euclid Avenue Cleveland, Ohio (216) (Telephone) (216) (Telefax) cmountacastle@gallaghersharp.com Attorneyfor Plaintiff-Appellee William R. Lindsley, Esq. C. THOMAS MCCARTER ( ) 4303 Mockingbird Lane Toledo, OH (419) (Telephone) (419) (Telefax) tmccarter@sbcglobal.net Attorney for Plaintiff-Appellee William R. Lindsley, Esq.

3 TABLE OF CONTENTS L EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OF PUBLIC AND GREAT GENERAL INTEREST H. STATEMENT OF THE CASE AND FACTS IIi. ARGUMENT OPPOSING APPELLANTS' PROPOSITIONS OF LAW Paee Proposition of Law I:When reviewing a trial court's decision granting summary judgment, an appellate court must conduct a de novo review. In doing so, the appellate court must independently review the evidence to determine whether as a matter of law no genuine issues of material fact exist for trial while construing the evidence most strongly in favor of the nonmoving party Proposition of Law li: It is actionable negligence for a trial lawyer to waive a shareholder's right to assert the affirmative defense of corporate shield to a claim seeking enforcement of a contract for the sale of corporate goods when the shareholder has no personal obligation to sell the goods under the tenns of the contract....:...:...4 Proposition of Law III: It is actionable negligence for a trial lawyer to fail to provide timely counsel to a client as to the risks and benefits of providing specific performance in order to reduce or foreclose monetary damages for breach of a settlement agreement so that the client can make an informed decision whether to offer specific performance even though the client indicated earlier, at a time when he was not informed as to the risks and benefits, that he was not so inclined... 5 Proposition of Law IV: It is actionable negligence for a trial lawyer to fail to preserve a client's constitutional right to a civil jury trial without first obtaining the client's informed consent to waive that right Proposition of Law V: A client is entitled, at a minimum, to nominal damages where the trial lawyer negligently waives the client's constitutional right to a civil jury trial, even though the injury to the client may be difficult to measure in monetary terms Proposition of Law VI: A lawyer's negligent waiver of a clien- t's-constitutional right to a civil jury trial serves as a partial offset or a total bar to the lawyer's claim for payment of fees in the handling of litigation where the lawyer is seeking fees for preparation of voir dire examination, jury exhibits, jury instructions, and i

4 other jury-related matters that are of no value to the client once the lawyer has waived the client's right to a jury CONCLUSION CERTIFICATE OF SERVICE.. :

5 I. EXPLANATION OF WHY THE ISSUES RAISED IN THIS CASE ARE NOT OF PUBLIC AND GREAT GENERAL INTEREST This lawsuit arises out of Plaintiff-Appellee, William R. Lindsley's ("Lindsley") representation of Defendants-Appellants, GregoryRoe and Willys-Overland Motors, Inc. ("Roe and Willys" or "Appellants") in an underlying lawsuit entitled W.O.M. Ltd. v. Willys-Overland Motors, Inc. and Gregory Roe. In the present action, Lindsley sought fees for legal services performed on behalf ofappellants in the underlying lawsuit, and Roe and Willys asserted a legal malpractice claim against Lindsley. Section 2(B)(2)(e) of Article IV of the Ohio Constitution dictates that the Supreme Court of Ohio's discretionary jurisdiction is reserved for "cases of public or great general interest." There is nothing unique about this case nor is it ofpublic or great general interest. Cases presenting questions and issues of public or great general interest are to be distinguished from cases where the outcome is primarily of interest to the parties in a particular piece of litigation. Williamson v. Rubich (1960), 171 Ohio St. 253, 254. This appeal falls squarely into the latter category. For an issue to be of public and great general interest, it must have the potential to affect all citizens of Ohio. Here, application of the second through sixth proposed propositions of law are limited to a very specific set of circumstances. These propositions of law will not have a sweeping impact on all citizens of Ohio because these propositions will only apply in the narrow context of this case. The second through sixth propositions of law should be rejected because they do not set forth proposed general proclamations of Ohio law, but instead seek to correct a perceived error relativ-eto-this-case. The first-propositionof law proposed by Appellants-mere'.y recites-existing Ohio law regarding the summary judgment standard, and therefore, there is no need for this court 1

6 to revisit the issue. Based upon the foregoing, this Court should decline to exercise jurisdiction in this case. H. STATEMENT OF THE CASE AND FACTS Roe and Willys originally filed this action alleging legal malpractice claims against Lindsley on December 28, On February 25, 2008, Lindsley timely filed his Answer and Counterclaims against Roe and Willys for money due him for legal services performed on behalf of Roe and Willys in the underlying case. On November 3, 2008, Roe and Willys dismissed, without prejudice, their legal malpractice claims against Lindsley. Thus, the only claim remaining was Lindsley's counterclaim for money due from Roe and Willys for legal services performed on their behalf As a consequence, the trial court realigned the parties, and Lindsley became the plaintiff in this matter. Thereafter, Roe and Willys refiled their legal malpractice claim against Lindsley. Lindsley sought summary judgment in his favor on his claim for fees and on Roe and Willys' claims for legal malpractice. On July 29, 2010, the trial court granted summary judgment in favor of Lindsley on both his claims for fees and on Roe and Willys' malpractice claims, which the Sixth Appellate District properly upheld on June 30,2011. See, Lindsley v. Roe, 6' Dist. No. L , 2011-Ohio In thorough decisions regarding the malpractice claim, both the trial and appellate courts addressed each of the issues raised in the propositions of law currently proposed by Appellants. With respect to the second proposition of law, the trial and appellate courts accepted Lindsley's argument that the defense of a "corporate shield" from personal liability could not have been successfully asserted because Roe signed the underlying asset purchase/sale agreement in his individual capacity as well as in his corporate capacity as the president of Willys, was bound 2

7 individually and any breach of that agreement would result in his personal liability. With respect to Lindsley's claimed failure to recommend specific performance to Roe and Willys (the subject of Appellants' third proposition of law), the trial and appellate courts found that there was no disputed issue of fact that the underlying case could not have been resolved by a settlement based upon specific performance because Roe had explicitly eschewed any settlement with W.O.M. in the underlying case. Roe testified that he would not settle without a personal financial statement from the owner of W.O.M. and Roe never got one. Finally, with respect to the lack of a jury trial (the subject of the fourth through sixth propositions of law), the trial and appellate courts determined that even assuming that Lindsleyfailed to obtain a jury trial in the underlying case, there was no evidence of any damages proximately resulting from the underlying case being tried to a judge rather than to a jury. In a separate entry, the trial court also granted summary judgment in favor of Lindsley on his claim for fees against Roe and Willys in the amount of $25, The Sixth Appellate District affirmed the trial court's decision. III. ARGUMENT OPPOSING APPELLANTS' PROPOSITIONS OF LAW Appellants' Proposition of Law No. I states: When reviewing a trial court's decision granting summary judgment, an appellate court must conduct a de novo review. In doing so, the appellate court must independently review the evidence to determine whether as a matter of law no genuine issues of material fact exist for trial while construing the evidence most strongly in favor of the nonmoving party. Appellants' very first paragraph of argument underthis proposition of law acknowledges that the standard of review of decisions relative to summaryjudgment have been well-established bythis Court. Thus, Appellants' first proposition of law should be rejected because it simply re-iterates a well-settled principle of Ohio law. 3

8 Appellants' Proposition of Law No. II states: It is actionable negligence for a trial lawyer to waive a shareholder's right to assert the affirmative defense of corporate shield to a claim seeking enforcement of a contract for the sale of corporate goods when the shareholder has no personal obligation to sell the goods under the terms of the contract. The genesis of the underlying dispute between Roe, Willys and W.O.M. was a contract for the sale of auto parts between Appellants and W.O.M., Ltd. When problems with the performance of that agreement arose, W.O.M. brought suit and the matter was referred to a mediator who fashioned a settlement. Lindsley was not counsel for Appellants at the time of the mediation. When performance issues on the settlement agreement arose, Lindsleywas engaged as Appellants' counsel at this stage of the proceedings. The Sixth Appellate District considered the evidence as a whole to determine the merits of Roe's claims in this case that he should not have been found to be individually liable to W.O.M. in the underlying case and that Lindsley committed malpractice in failing to assert a defense. However, Roe signed the agreement with W.O.M. in his individual capacity and had mediated his individual liability during the mediation that resulted in a settlement that Appellants' breached. The Sixth Appellate District noted that the draft settlement agreement (prepared byappellants' attorneybefore Lindsley) contained a signature line for Roe in his individual capacity. See, Lindsley at 26. Thus, the Sixth Appellate District properly concluded that Lindsley did not commit legal malpractice by not asserting the corporate shield defense because this defense had no merit. See, Lindsley at 30. However, even assuming for the sake of argument only that the appellate court somehow erred in its ruling below, this proposition of law should be rejected because it does not set forth a proposed-gener-al-proe-latnation of Ohio law, but in- stead- seeks to correet a perceived errorir,-th:s case. 4

9 Appellants' Proposition of Law No. III states: It is actionable negligence for a trial lawyer to fail to provide timely counsel to a client as to the risks and benefits of providing specific perfonnance in order to reduce or foreclose monetary damages for breach of a settlement agreement so that the client can make an informed decision whether to offer specific performance even though the client indicated earlier, at a time when he was not informed as to the risks and benefits, that he was not so inclined. The very language of Proposition of Law III establishes that it is a fact-driven proposition, and is not a general statement of law that should apply in the State of Ohio. Thus, the Appellants' third proposition of law should.be rejected by this Court. Appellants present a sanitized version ofthe evidence to suggest that theywould have settled if Lindsley would have provided counsel sooner. However, these arguments regarding settlement are inherently speculative and against the weight of the factual evidence. There is clear evidence that Roe expressed he would not settle the underlying case. As there is no real indication that his position on the matter changed, or that he would have accepted Lindsley's advice if given earlier, any argument to that effect is speculative at best. The Sixth Appellate District correctly determined that when Roe terminated the services of his "settlement" attorney and engaged those of Lindsley, who describes his practice as "80% litigation," Roe had elected not to settle the underlying matter but to fight until the bitter end. See, Lindsley at 35. The Sixth Appellate District appropriately found that there was no evidence to indicate that Roe was willing to settle at any time prior to the day the court in the W.O.M. v. Roe case announced its determination of Appellants' breach of the settlement agreement. It is unrefuted that Appellants were aware of the costs and consequences of not settling. There is nothing in the record to suggest that theywould settle no matter whoadvi-sed them-to doso. Indeed, thereis mach ap.roe'sdeposition testimony to suggest that he had a deep enmity toward W.O.M.'s president, and little to suggest any 5

10 inclination to compromise. The record is devoid of evidence of any reasonable possibility that Appellants would have acted on the advice that Appellants insist should have been rendered. See, Lindsley at 39. Thus, the Sixth Appellate District correctly determined that there was no evidence to support a legal malpractice claim against Lindsley for his behavior. See, id. Proposition of Law III not only lacks merit, it also relates specifically to the facts of this case and the application of those facts to the current law. As such, this Court should reject this proposition. Appellants' Propositions of Law Nos. IV and V state: It is actionable negligence for a trial lawyer to fail to preserve a client's constitutional right to a civil jury trial without first obtaining the client's informed consent to waive that right. AND A client is entitled, at a minimum, to nominal damages where the trial lawyer negligently waives the client's constitutional right to a civil jury trial, even though the injury to the client may be difficult to measure in monetary terms. Appellants' fourth and fifth propositions of law ask this Court to determine that Appellants are entitled to damages because the underlying case was tried to a judge rather than a jury. As the appellate court properly determined, while there is a constitutional right to a jury trial in civil law suits pursuant to Section 5, Article 1; Ohio Constitution, "[t]he right to a jury trial may not be impaired, but it `may be subj ect to moderate and reasonable regulation. "' See, Lindsley at 44, citing, Skiadas v. Finkbeiner, 6th Dist. No. L , 2007-Ohio-3956, 23, quoting Walters v. Griffith ( 1974), 38 Ohio St. 2d 132, 133. "Local courtrules, requiring an advance deposit as security for the costs of a jury trial and providing that the failure of a party to advance such deposit constitutes a waiver of the right to a trial by jury, are moderate and reasonable regulations of the right of trial by jury, and are constitutional and valid." Id. 6

11 Appellants' "no jury trial" malpractice claim fails to state a claim for relief because the element of proximate cause is impossible to prove. Although a malpractice plaintiff may find an expert to testify that he or she would have tried the case to a jury, there is no way to establish proximate cause or calculate monetary damages - - required elements in a legal malpractice claim. See, Jones Motor Co., Inc. v. Holtkamp, Liese, Beckemeier & Childress, P.C. (7th Cir. 1999), 197 F.3d 1190, ("No reasonable trier of fact could have been allowed to award damages to Jones and its insurer on the basis of such unsubstantiated expert testimony.") In Jones, the court held that the variance among juries makes it legally impossible to prove the proximate cause of any damages between what the amount a judge awards and the amount the malpractice claimant asserts a jury might have awarded. Id. at "Through the [attorney's] negligence Jones and its insurer lost their right to a jury trial and were forced to submit to a bench trial-which means they got a trial before an authorized tribunal." Id. at (Emphasis added.) Similarly, Appellants received their day in court in the underlying case. Appellants appear to contend they would have obtained a defense verdict of no monetary damages awarded to W.O.M. if only a jury had heard the case - - that is, that visiting judge, Judge Yarborough got it all wrong, despite the fact that his judgment was affirmed on appeal in the underlying case. Any argument that a bench trial versus a jury trial would have been more fair is insulting to members of the bench. Therefore, besides being impossible to prove proximate cause, it is improper for Roe and Willys to argue that they have been damaged by having a bench trial instead of a jury trial. Other courts have cited Jones Motor to reach the same conclusion. "While [plaintiff] claims that its chances for recovery were `significantly and materially greater than before a judge,' it has not alleged any facts to support a reasonable inference that it would have been more advantageous 7

12 to proceed before a jury." Fabricare Equip. Credit Corp. v. Bell (Ill. App. Ct. 1 st Dist. 2002), 328 Ill. App. 3d 784, 791. See, also, Hatfield v. Herz (S.D.N.Y. 2000), 109 F. Supp. 2d 174, 187 (citing Jones.) Appellants have no evidence that a standard of care was breached or that they were damaged by having their case tried to the bench instead of to a jury in the underlying case. Damages from the deprivation of a procedural due process right, such as the right to a jury trial, are not ordinarily allowed `without evidence of actual loss."' Lindsley at 45, citing, Carey v. Piphus (1978), 435 U.S. 247, 263. Appellants simply failed to put forth any evidence of damages derived from the case being tried to the bench rather than to a jury. Lindsley at 46. Appellant's reliance on C.R. Withem Enterprises v. Maley, 5' Dist. No. 01 CA54, 2002-Ohio- 5056, is misplaced. While it is true that the court in C.R. Withem upheld a trial court's award of nominal damages due to an attorney's failure to secure a jury trial by paying the appropriate jury deposit fee, the issue before the court was not whether the trial court should have awarded nominal damages, but whether the court should have awarded compensatory damages. C.R. Withem concluded that, absent proof of damage, the trial court did not err in awarding no more than nominal damages. Id. at 52. As the Sixth Appellate District correctly noted, nothing in that case mandates an award of nominal damages and thus, there was no error relative to the trial court's omission of consideration of such an award here. Lindsley at 46. This Court's DeCastro v. Wellston City School Dist. (2002), 94 Ohio St.3d 197, decision is distinguishable from the matter at bar. In DeCastro, this Court held "if a plaintiff proves breach of contract at trial, but fails to prove actual damages resulting from that breach, the trial court may enter judgment for the plaintiff and award nominal damages." (Emphasis added.) First, DeCastro is limited to breach of contract claims, only. Second, DeCastro explains that 8

13 nominal damages are not always awarded in such a situation. Even if it is assumed that the DeCastro decision can be applied in a situation where an attorney fails to secure a trial byjury by submitting the appropriate jury deposit, ajudgment in favor of a defendant should not be reversed simply to allow nominal damages to be awarded below. DeCastro at 200. DeCastro ultimately determined that even though a significant right was involved, summary judgment was properly awarded to the defendant because the plaintiff was unable to establish the existence of economic damages. See, DeCastro at Noting the public policy basis for its decision, this Court stated "in such a situation, the defendant would be required to spend time and money in litigation having no purpose other than to judicially establish that he or she committed a breach of contract with no economic consequences." Id. Appellants failed to establish any monetary damages related to the alleged legal malpractice. Lindsley at 46. Thus, similar to DeCastro, Appellants seek to overturn a summary judgment simply to judicially establish legal malpractice which resulted in no economic loss. Most significantly, the issue before this Court is whether or not this proposition of law is of general interest. There is simply no basis for this Court to accept this proposition of law, as it is particular to the case at hand and will not serve as guidance to the courts in the State of Ohio or to litigants in other matters. For these reasons, the fourth and fifth propositions of law should be rej ected. Appellants' Proposition of Law No. VI states: A lawyer's negligent waiver of a client's constitutional right to a civil jury trial serves as a partial offset or a total bar to the lawyer's claim for payment of fees in the handling of litigation where the lawyer is seeking fees for preparation of voir-dire exa -m- ination, jur-y exhibits-, juryinstruetions -and-other jury-related-matters-th- at-are of-no value to the client once the lawyer has waived the client's right to a jury. In seeking further appeal to this Court, Appellants seek a set-off from the fees awarded to 9

14 Lindsley for "preparation of voir dire examination, jury exhibits, jury instructions and other juryrelated matters" because this matter was tried to a bench rather than a jury. This challenge to the value of the services provided by Lindsley was not raised below, and thus, was not before the appellate court upon its review of the trial court's decision in Lindsley's favor. Thus, this proposition of law should be rejected because this Court does not rule on issues which have not been addressed or resolved by the lower courts. See, Banks v. Ohio Power Co. (1952), 157 Ohio St. 10, 14. See, also, Holman v. GrandviewHosp. &Med. Ctr. (1987), 37 Ohio App.3d 151,157 ("Issues not raised and tried in the trial court cannot be raised for the first time on appeal.") Appellants' argument, that Lindsley is not entitled to fees because he materiallybreached his contractual obligations, must also fail. A claim against an attorney arising from the manner in which the attorney represented a client is a claim of malpractice "regardless of whether predicated upon contract or tort or whether for indemnification or for direct damages." Muir. v. Hadler Real Estate Management Co. (1982), 4 Ohio App. 3d 89, 90. Thus, "[m]alpractice by any other name still constitutes malpractice." Id. The same facts that preclude a finding of malpractice in this case therefore also preclude Appellants' breach of contract claim. Lindsleycompetentlyperformed numerous services on behalfofappellants, (1) Lindsleywas not required to assert the corporate shield defense because Roe had clearly assumed individual liability, (2) Roe had repeatedly expressed a clear intent not to settle the underlying matter, and (3) failure to obtain ajury trial did not harm the Appellants' interests. Simply put, Appellants could not show that any actions taken by Lindsley caused a material breach of his contractual obligations. Accordingly, the only party in material breach were Appellants due to their failure to compensate Lindsley for his legal services. Therefore, the Sixth Appellate District correctly upheld the trial 10

15 court's summary judgment in favor of Lindsley in the amount of $25, for fees owed to him for legal services provided to Appellants. Proposition of Law VI is a fact-driven proposition of law that is not applicable to the general public, but is specific to the case at hand. As such, it is an improper proposition of law and should not be accepted by this court for review. IV. CONCLUSION Allowing the Sixth Appellate District's decision to stand will not alter the proper development ofthe law relating to legal malpractice claims. Nothing needs to be clarified, modified, or changed,in regard to existing law. While Appellants may complain about the application of the settled law to the particular facts of this case, addressing such concerns is not grounds for this Court to exercise discretionary jurisdiction over an appeal. See, Baughman v. State Farm Mutual Automobile Insurance Company, 88 Ohio St. 3d 480, 492, 2000-Ohio-397 (Cook, J., concurring). Wherefore, Plaintiff-Appellee, William R. Lindsley, Esq., respectfully requests and moves this Court to decline jurisdiction over this appeal. 11

16 Respectfully submitted, ROBERT H. EDDY ( ) GALLAGHER SHARP 420 Madison Avenue, Suite 1250 Toledo, Ohio (419) (Telephone) (419) (Telefax) and COLLEEN A. MOUNTCASTLE ( ) GALLAGHER SHARP Sixth Floor - Bulkley Building 1501 Euclid Avenue Cleveland, Ohio (216) (Telephone) (216) (Telefax) cmountacastle@gallaghersharp.oom Attorneys for Plaintiff-Appellee William R. Lindsley, Esq. C. THOMAS MCCARTER ( ) 4303 Mockingbird Lane Toledo, OH (419) (Telephone) (419) (Telefax) tmccarter@sbcglobal.net Attorney for Plaintiff-Appellee William R. Lindsley, Esq. 12

17 CERTIFICATE OF SERVICE A copy of the foregoing Memorandum in Opposition to Jurisdictiorx was served upon the following via regular U.S. mail on this A Alfay of September, 2011: Marc J. Meister Marc J. Meister & Associates 6545 W. Central Ave., Ste. 202 Toledo, Ohio Attorney for Defendants-Appellants Gregory Roe and Willys-Overland Motors, Inc. Fritz Byers 520 Madison Ave., Suite 836 Toledo,, OH Attorneyfor Defendants-Appellants Gregory Roe and Willys-Overland Motors, Inc. C. Thomas McCarter 4303 Mockingbird Lane Toledo, OH Attorneyfor Plaintiff-Appellee William R. Lindsley, Esq. R. Michael Frank 420 Madison Ave., Suite 1101 Toledo, Ohio Attorneyfor WOM Ltd. ROBERT H. E ^^;^Sq ( ) COLLEEN A. MOUNTCASTLE, ESQ. ( ) GALLAGHER SHARP Attorneysfor Plaintiff-Appellee William R. Lindsley, Esq 13