Gracie E. McBroom, Plaintiff-Appellant, v. Russell M. Gertmenian et al., Defendants-Appellees.
No. 18AP-204 (C.P.C. No. 15CV-8577)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 25, 2018
[Cite as McBroom v. Gertmenian, 2018-Ohio-3884.]
(REGULAR CALENDAR)
Rendered on September 25, 2018
On brief: Gracie E. McBroom, pro se.
On brief: Vorys, Sater, Seymour and Pease LLP, Daniel E. Shuey, and Damien C. Kitte, for appellees.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Gracie E. McBroom, appeals from two orders of the Franklin County Court of Common Pleas. The first dismissed her initial complaint for failure to state a claim and a subsequent order ruled in her favor on a counterclaim brought by defendants-appellees to have her declared a vexatious litigator pursuant to
I. Facts and Procedural History
{¶ 2} Appellant began this action with a complaint filed September 29, 2015 naming as defendants 103 attorney-partners in the law firm of Vorys, Sater, Seymour and Pease, including Frederick L. Ransier, III (collectively “appellees“).
{¶ 3} Appellant‘s complaint alleges, generally, she is part-owner of real estate located at 573 Stambaugh Avenue in Columbus, Ohio, and that in 1986 attorney Ransier represented four heirs or beneficiaries of the estate of appellant‘s brother, Marshall J. Allen,
{¶ 4} The complaint further avers that as a consequence of this quiet title action, Ransier filed a claim with his insurance carrier, Lumbermens Mutual Casualty Company, which shortly thereafter went into liquidation. Appellant, through Lumbermens’ receiver in Illinois, filed a claim with the Ohio Insurance Guaranty Association in connection with liquidation, which was declined following dismissal of Ransier in the quiet title action.
{¶ 5} Following the conclusion of the quiet title action, appellant filed the present complaint, which alleges three causes of action, all generally arising from Ransier‘s representation of the heirs in 1986. The third claim also seems to attack the prior judgment in favor of Ransier personally in the quiet title case and combines this with a demand for a copy of Ransier‘s malpractice insurance policy.
{¶ 6} All claims against the other attorney defendants are based on a theory of respondeat superior, although Ransier did not join the Vorys firm until well after his participation in the estate matters, at which time he was practicing as a member of the law firm of Ransier and Ransier.
{¶ 7} Appellees filed a motion to dismiss appellant‘s complaint for failure to state a claim, pursuant to
{¶ 8} Appellant filed a motion to compel production of the above mentioned insurance policy on October 14, 2015, coupled with a motion for summary judgment and her reply to appellees’ motion to dismiss. Appellant filed an answer to the vexatious litigator counterclaim on November 2, 2015 and a motion for default judgment on her own claims on November 13, 2015. Appellant filed another motion for default judgment on December 1, 2015. The trial court entered an order denying the above motions on August 4, 2017. The court specifically noted with respect to appellant‘s continued demand for a copy of Ransier‘s insurance policy that appellees had provided the requested discovery.
{¶ 9} Appellees filed a motion for summary judgment on their vexatious litigator claim on July 1, 2016. On August 8, 2017, the trial court rendered a decision and entry granting appellees’ motion to dismiss appellant‘s initial complaint. This order does not contain
II. Assignments of Error
{¶ 10} Appellant timely appealed from the trial court‘s final order and brings the following three assignments of error:
- I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT AS TO THE TRIAL COURT SHOULD HAVE GRANTED MISTRIAL AND/OR FASHIONED ANOTHER APPROPRIATE REMEDY WHEN THE JUDGE WAS ON MEDICAL LEAVE THE JUDGE‘S STAFF AND THE APPELLEE(S) CREATED THE ORDER AND JUDGMENT ENTRY TO BE GRANTED IN FAVOR OF THE APPELLEE(S), IN CASE NUMBER 15CVH-05-4465. WITH THIS IN MIND, SHOULD CIV.R. 54(B), BE USED TO STATE THAT MCBROOM BE DESIGNATED AS A VEXATIOUS LITIGATOR.
- II. THE TRIAL COURT ABUSE ITS DISCRETION AND ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY DISMISSING HER CASE, IGNORING THE DEFAULT JUDGMENT, AND SUMMARY JUDGMENT, FAILING TO
TURN OVER THE MALPRATICE INSURANCE POLICY CLAIM FORM THAT WAS MAILED FROM THE OFFICE OF SPECIAL DEPUTY RECEIVER AND MAILED TO THE OFFICE OF OHIO GUARANTY ASSOCIATION CONCERNING MCBROOM. - III. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN APPELLANT HAD TO SOUGHT HELP FROM THE SUPREME COURT REQUESTING ANOTHER JUDGE, ONLY TO RECEIVE AN ANSWER FROM THE SUPREME COURT “STATING PROCEDURES EXIST BY WHICH A APPELLANT COURT MAY REVIEW AND, IF NECESSARY CORRECT – RULING MADE BY TRIAL COURT.”
(Sic passim.)
{¶ 11} Appellees have not appealed from the trial court‘s adverse vexatious litigator determination. Therefore, we do not address appellant‘s arguments related to this aspect of the final judgment.
III. Discussion
{¶ 12} When reviewing a judgment on a
{¶ 13} A trial court must presume all factual allegations contained in the complaint to be true and must make all reasonable inferences in favor of the non-moving party. Jones v. Greyhound Lines, Inc., 10th Dist. No. 11AP-518, 2012-Ohio-4409, ¶ 31 (Sadler, J., dissenting), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). “[A]s long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). The court need not, however, accept as true any unsupported and conclusory legal propositions advanced in the complaint. Morrow v. Reminger & Reminger Co. L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).
{¶ 14} A party may assert a statute of limitations defense through a
{¶ 15} Appellant‘s first two assignments of error focus on the viability of her legal malpractice claims, although these assignments also address other issues that will be discussed separately below.
{¶ 16} Appellant‘s core claims sound in legal malpractice based on “negligent misrepresentation” by Ransier. In order to establish a cause of action for legal malpractice, appellant must demonstrate that: (1) the defendant attorneys owed her a duty or obligation, (2) there was a breach of that duty or obligation and the attorneys failed to conform to the standard required by law, and (3) there is a causal connection between the conduct complained of and her alleged damages or loss. Vahila v. Hall, 77 Ohio St.3d 421, 427 (1997); Krahn v. Kinney, 43 Ohio St.3d 103 (1989).
{¶ 17} “When the gist of a complaint sounds in malpractice, other duplicative claims are subsumed within the legal malpractice claim.” Illinois Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., 10th Dist. No. 10AP-290, 2010-Ohio-5872, ¶ 15, citing Pierson v. Rion, 2d Dist. No. CA23498, 2010-Ohio-1793, ¶ 14. “Indeed,”
{¶ 18} Of the above elements, the duty requirement of the first is typically established through the existence of some form of attorney-client relationship. Illinois Natl. Ins. Co. at ¶ 19, citing Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, ¶ 10. While Ohio law acknowledges a very limited exception allowing a cause of action for legal malpractice in the absence of a discernable attorney-client relationship, that expansion of attorney liability occurs only in situations where the plaintiff is in privity with a client of the defendant-attorney, or where the defendant-attorney acted maliciously. Scholler v. Scholler, 10 Ohio St.3d 98 (1984), paragraph one of the syllabus.
{¶ 19} We first address the state of the complaint insofar as it concerns attorney Ransier personally, since he is somewhat differently situated from the other defendant attorneys. We conclude the trial court properly found the complaint fails to state a claim against Ransier.
{¶ 20} Appellant‘s complaint makes no allegation she was ever party to an attorney-client relationship with any appellees here. Her complaint alleges an attorney-client relationship existed between Ransier and the heirs and (possibly) Ransier and the estate of Marshall J. Allen, Sr. Ransier‘s alleged negligence in that representation arises from his purported failure to file or serve a letter connected to estate proceedings. Accepting, arguendo, that the complaint also sufficiently implies an attorney-client relationship between Ransier and that estate, Ransier‘s duty as legal counsel runs to the heirs and the estate, not appellant. Appellant‘s complaint must therefore sufficiently allege a duty attributable to Ransier through application of the limited exceptions of malice and privity set forth in Scholler.
{¶ 21} The complaint does not allege Ransier acted maliciously. In the context of a legal malpractice action, “malice might exist where an attorney‘s actions can be construed as exhibiting a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. * * * “[T]here needs to be something extraordinary, perhaps unethical conduct or conduct on the verge of fraud, before an attorney‘s conduct in furtherance of his client‘s goals could support a reasonable inference of malice.” Tye v. Beausay, 2d Dist. No. 27416, 2017-Ohio-7943, ¶ 16, quoting Omega Riggers & Erectors, Inc. v. Koverman, 2d Dist. No. 26590, 2016-Ohio-2961, ¶ 31-32. “[M]alice, as a substitute for an attorney-client relationship, cannot be predicated on actions by the attorney that the attorney is permitted to take, or even negligently may take, as part of the representation” of a client.” Id., quoting Omega Riggers at ¶ 35. The present complaint makes no allegations of this magnitude in reference to Ransier‘s actions.
{¶ 22} Nor has appellant alleged facts that place her in privity with Ransier‘s actual clients. That exception has been very strictly construed: “[T]he privity substitute for lack of an attorney-client relationship has been extended only to undeniably-vested beneficiaries of an estate and to the limited partners of a partnership. The exception has not been extended to minor children affected by representation of a parent in a divorce or to potential beneficiaries of a will.” Omega Riggers at ¶ 28, citing Scholler, and Elam v. Hyatt Legal Servs., 44 Ohio St.3d 175 (1989), Arpadi v. First MSP Corp., 68 Ohio St.3d 453 (1994), and Simon v. Zipperstein, 32 Ohio St.3d 74 (1987).
{¶ 23} Simon is particularly instructive on the present facts. In Simon, the defendant-attorney drafted an antenuptial agreement and a will for a client. After the client‘s death, one of the potential beneficiaries under the will brought an action against the attorney for malpractice because the inconsistently drafted documents allowed the surviving spouse to take under both the antenuptial agreement and the will. The Supreme Court of Ohio held that a potential beneficiary of a will was not in privity with the client-testator for purposes of suing the attorney who prepared the estate plan. ”Simon * * * reflects how very narrow the privity exception is when there is no attorney-client relationship in a legal malpractice action.” Omega Riggers at ¶ 25.
{¶ 24} On the basis of this authority, we agree with the trial court that based on the allegations in her complaint, appellant can prove no set of facts to establish that Ransier owed her a duty or obligation. Dismissal under
{¶ 25} For the remaining 102 attorney-partners in the case, resolution is simpler. Appellant‘s complaint names them as defendants on a theory of vicarious liability as principals and employers of their agent, Ransier.
{¶ 26} First, we have now affirmed the trial court‘s conclusion that the complaint does not state a claim against Ransier. Without liability attributable to the agent, there can be no vicarious liability on the part of the principals.
{¶ 28} Aside from the malpractice issues, appellant‘s first two assignments of error raise several collateral matters. Appellant alleges in her second assignment of error the trial court improperly declined to grant her repeated motions for default judgment or summary judgment. Review of the pleadings in this case indicate there was no default, appellees having timely pleaded with a motion to dismiss in lieu of an answer.
{¶ 29} Appellant‘s second assignment of error also asserts the trial court failed “to turn over the malpractice insurance policy claim form that was mailed from the office of the special deputy receiver and mailed to the office of the Ohio Guaranty Association.” Appellant does not address the trial court‘s determination that appellees eventually provided the requested discovery. We find no error by the trial court in this respect.
{¶ 30} Based on the foregoing, we overrule appellant‘s first and second assignments of error.
{¶ 31} Appellant‘s third assignment of error asserts the trial court in some way abused its discretion based on appellant‘s affidavit of disqualification filed with the Supreme Court on September 16, 2016 and denied by entry on September 22, 2016. This
IV. Conclusion
{¶ 32} In conclusion, we overrule appellant‘s three assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and HORTON, JJ., concur.