Consol. Church Fin. Co. v. Geauga Sav. BankConsol. Church Fin. Co. v. Geauga Sav. Bank
Percy Squire
Percy Squire Co., LLC
514 S. High Street
Columbus, OH 43215
ATTORNEYS FOR APPELLEES
For Geauga Savings Bank, et al.
Timothy J. Downing
Kate E. Ryan
Richik Sarkar
Ulmer & Berne LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, OH 44113-1448
For Anthony A. Cox
Jonathan W. Philipp
5005 Rockside Road
Suite 600
Independence, OH 44131
SEAN C. GALLAGHER, J.:
{¶ 1} Appellants Consolidated Church Financial, LLC (“Consolidated Church“) and Dale Edwards appeal the January 29, 2010 judgment of the Cuyahoga County Court of Common Pleas. For the reasons stated herein, we affirm the judgment of the trial court.
{¶ 2} Appellants filed a complaint on February 27, 2009, against appellees Geauga Savings Bank (“GSB“) and Anthony A. Cox, alleging claims of fraudulent
{¶ 3} Pursuant to the agreement, in consideration of the payment of $225,000 from Consolidated Church, GSB assigned certain rights and interests to Consolidated Church, including a judgment GSB obtained against Harvest Missionary Baptist Church (“Harvest“) and other parties. The agreement specifically provided that it was made without representations or warranties of any kind, including warranties as to the enforceability of the subject indebtedness. It also contained a release of all claims against GSB and its agents. Further, Consolidated Church agreed to indemnify and hold harmless GSB and its agents against future claims.
{¶ 4} Under their claim for fraudulent inducement, appellants allege that at the time the agreement was entered, GSB was aware of a separate lawsuit that “related directly” to the assignment agreement but did not disclose this information to appellants. That lawsuit was Mitchell Jackson, et al. v. Artis Caver, et al., Cuyahoga Common Pleas Court Case No. CV-525146 (“the Jackson case“). GSB was not a party to the Jackson case.
{¶ 5} Under their claim for legal malpractice, appellants allege that Cox had simultaneously represented GSB and appellants in connection with the assignment transaction. Cox denied this allegation and filed a counterclaim against Consolidated Church for unpaid legal fees arising from legal services rendered in connection with
{¶ 6} GSB filed a motion for judgment on the pleadings with regard to the fraudulent inducement claim. The trial court granted the motion in May 2009, and GSB was dismissed from the аction.
{¶ 7} Cox filed a motion for judgment on the pleadings and a motion for summary judgment. On January 29, 2010, the trial court granted judgment on the pleadings to Cox on the fraud claim, and granted summary judgment to Cox on the legal malpractice claim and the counterclaim for attorney‘s fees. Apрellants filed this appeal from that judgment.
{¶ 8} Under their first assignment of error, appellants claim “[t]he trial court erred when it granted appellee Geauga Savings Bank‘s motion for judgment on the pleadings.” As an initial matter, we shall address GSB‘s argument that we lack jurisdiction to consider the mеrits of the appeal against it.
{¶ 9} The notice of appeal filed in this matter only designated the January 29, 2010 judgment, which granted judgment on the claims involving Cox. GSB argues that this court should not address the merits of the appeal against it because the notice of appeal did not reference the trial court‘s judgment entry granting GSB‘s motion for judgment on the pleadings. GSB refers to
{¶ 11} In this case, the trial court granted GSB‘s motion for judgment on the pleadings in May 2009 and GSB was dismissed from the lawsuit. That judgment entry was not designated in the notice of appeal. The appeal was taken from the final judgment of the court entered on January 29, 2010, which resolved the claims involving Cox. While Cox and his counsel were served with the notice of appeal, it does not appear that GSB or its counsel were served with the notice of appeal. Also, appellants failed to file a prаecipe and docketing statement with the notice of appeal. There was simply no indication that appellants intended to appeal the court‘s decision to grant
{¶ 12} Appellants’ remaining assignments of error appeal the trial court‘s ruling on Cox‘s motions for summary judgment and motion for judgment on the pleadings, which resolved all claims in favor of Cox.
FRAUD CLAIM
{¶ 13} We review a ruling on a motion for judgment on the pleadings de novo. See Coleman v. Beachwood, Cuyahoga App. No. 92399, 2009-Ohio-5660. “In order to be entitled to a dismissal under
{¶ 14} Appellants’ fraudulent inducement claim related to the nondisclosure of the Jackson case. The fraud claim was asserted solely against GSB. The only claim brought against Cox was for professional negligence or legal malpractice. Even if the
{¶ 15} The complaint in this matter asserts that Cox acted as GSB‘s attorney with regard to the assignment agreement. He was clearly an agent of GSB. In granting Cox‘s motion, the trial court determined that appellants were precluded from pursuing their fraud claim against Cox pursuant to the clear language of the assignment agreement. The agreement specifically provides that it “is made without representations and warranties” and “without recоurse against assignor, its officers and agents.” The agreement also contains a release of claims. These terms are undisputed.
{¶ 16} Nevertheless, on appeal, appellants argue that Cox owed them a duty to disclose pursuant to Ohio‘s ethical rules. Because this issue was not raised in the trial court, we decline to consider it for the first time on appeal. Insofar as appellants argue that the trial court should have allowed additional opportunities for discovery, we find no merit to this argument. Accordingly, we find that the trial court properly granted Cox‘s motion for judgment on the pleadings.
LEGAL MALPRACTICE CLAIM
{¶ 17} Next, we address the summary judgment ruling on the legal malpractice claim. Appellate review of summary judgment is de novo, governed by the standard set forth in
{¶ 18} In order to establish a legal malpractice claim relating to civil matters under Ohio law, a plaintiff must prove three elements: (1) existence of an attorney-client relationship giving rise to a duty, (2) breach of that duty, and (3) damages proximately caused by the breach. Krahn v. Kinney (1989), 43 Ohio St.3d 103, 538 N.E.2d 1058, syllabus. “The determination of whether an attorney-client relatiоnship was created turns largely on the reasonable belief of the prospective client.” Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, ¶ 10. In this case, the trial court found a lack of evidence to establish a reasonable belief that a relationship existed at the time the alleged malpractice occurred.
{¶ 19} In moving for summary judgment on the legal malpractice claim, Cox provided an affidavit in which he attested to the following material facts: (1) he represented GSB in prior proceedings against Harvest and obtained a judgment on behalf
{¶ 20} In opposing Cox‘s motions, Edwards submitted an affidavit claiming that he established Consolidated Church at the direction of Cox for the sole purpose of purchasing the note and liens described in the assignment agreement, that Cox provided him with specific instructions, that Cox informed him that he would represent both GSB and Edwards‘s companies to accomplish the transaction, аnd that Cox sent Edwards a letter indicating he would continue to assist Edwards if issues arose concerning the transaction.
{¶ 22} Because there was a lack of sufficient evidence to establish that Edwards had a reasonable belief that an attorney-client relationship existed, we find that summary judgment was appropriately entered in favor of Cox on the legal malpractice claim.
COUNTERCLAIM
{¶ 23} Finally, we address the summary judgment ruling on Cоx‘s counterclaim for unpaid legal fees. In moving for summary judgment, Cox provided an affidavit in which
{¶ 24} This court has previously recognized: “Generally, a party‘s unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under
{¶ 25} Appellants’ secоnd and third assignments of error are overruled.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
COLLEEN CONWAY COONEY, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY