Plaintiff-appellant, John R. Robinson, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendants-appеllees, Calig & Handleman and Leann R. Deeter, in plaintiffs legal malpractice action against them.
Following the trial court’s decision here, the Supreme Court decided Vahila
v. Hall
(1997),
On April 21, 1996, plaintiff filed an action agаinst defendants contending that Deeter, as an employee, associate or agent of Calig & Handleman, negligently represented him in divorce proceedings, resulting in his agreeing to a settlement and obtaining a monetary award in an amount less than he would have received had defendаnts properly represented him.
Defendants filed an answer to the complaint, and following discovery, filed a motion for summary judgment. Following briefing, the triаl court issued a decision noting that a legal malpractice action contains the following essential elements: (1) an attorney-client relationship, (2) a professional duty arising from that relationship, (3) a breach of that duty, (4) proximate cause, and (5) damages.
*143 Applying that test, the trial court found first that “it is undisputed that the plaintiff and defendant had an attorney-client relationship, and therefore the plaintiff has satisfied the first element. It is аlso undisputed that the defendant owed the plaintiff a professional duty arising from the attorney-client relationship, thereby satisfying the second elеment.” Further, the trial court found a genuine issue of material fact under the third element, whether defendants breached their duty to plaintiff. On the fourth elemеnt, proximate cause, the trial court concluded that plaintiff had not come forward with evidence to establish a genuine issue of material fact. Accordingly, the trial court granted defendants’ summary judgment motion and entered judgment accordingly. Plaintiff appeals, assigning the following errors:
“I. Thе trial court erred in sustaining defendants’ motion for summary judgment.
“II. The trial court erred in finding that there is no genuine issue of fact as to plaintiffs claim for damages and/or proximate cause.
“HI. The trial court erred in striking paragraphs 3 & 4 of plaintiffs expert’s affidavit and/or finding that an attorney-expert’s opinion of damages in a divorce case is speculative.
“IV. The trial court erred in holding that successful prosecution of the rule 60(b) motion to vacate, is a condition precеdent to the legal malpractice complaint against former counsel.”
In his brief, plaintiff addresses all assignments of error jointly; we do likewise. Gеnerally, they assert the trial court erred in granting defendants summary judgment by requiring plaintiff to prove, in effect, the success he would have achieved hаd defendants taken his divorce case through a trial.
Subsequent to the trial court’s judgment in this case, the Supreme Court issued its decision in
Vahila v. Hall, supra.
In discussing the element оf proximate cause in a legal malpractice case, the Supreme Court stated, “we reject any finding that the element of causation in the context of a legal malpractice action can be replaced or supplemented with the rule of thumb requiring that a plаintiff, in order establish damage or loss, prove in every instance that he or she would have been successful in the underlying matter(s) giving rise to the complаint.”
Id.,
Here, the trial court appears to have applied the “but for” test rejected in Vahila:
“In the present case, the plaintiff has not come forward with evidence to establish a genuine issue of material fact that the alleged negligenсe of the defendants was the proximate cause of his damages. The plaintiff has not shown that but for the negligence of the defendants, he would have prevailed at trial and received a larger share of the marital property in his divorce case. The plaintiffs domestic relatiоns case is now closed and the divorce decree is final, since the plaintiff elected not to appeal the court’s denial of his Rulе 60(B) motion. Mr. Kaufman’s statement that the plaintiff would have received more of the marital property is dependent upon many factors, none of which can be determined at this point in time. First, the plaintiff cannot show that his ex-wife would have agreed to a different settlement of the marital рroperty. In addition, the plaintiff cannot show that Judge Solove would have awarded him more of the marital assets had the case been heаrd on its merits. At this point, the plaintiff can only speculate what the outcome would have been absent the defendants’ alleged negligence. This does not raise a genuine issue of material fact as to whether the defendants’ negligence was the proximate cause of the plaintiffs damages.” (Emphasis added.)
Similarly, in striking paragraphs three and four of plaintiffs expert’s supplemental affidavit relating to proximate cause, thе trial court explained:
“Therefore, any opinion testimony by the affiant is based solely upon his speculation as to what he believed the triаl court would have done had the case been determined on its merits. An expert witness may not base his opinion upon assumed facts. * * * Thereforе, since the affiant’s testimony with respect to what the plaintiff ‘would and should have’ received had the underlying case not settled, is not based upon fаcts or data perceived by the affiant or admitted into evidence, paragraphs 3 and 4 of the supplemental affidavit shall be stricken.”
Moreover, to the extent that the foregoing suggests that an attorney may not render an expert opinion on the proximate cause issue, wе disagree. With appropriate foundation, an expert may opine concerning the proximate cause aspect of a legal malpractice case. See, generally,
Anthony v. Clark
(Sept. 29,
*145
1992), Franklin App. No. 92AP-596, unreported,
Unquestionably, the trial court did not have the benefit of Vahila in deciding defendants’ motion. Because the Supreme Court’s opinion in Vahila rejects the “but for” test which the trial .court applied, we sustain plaintiffs assignments of error to the extent that the matter must be reexamined in light of the Supreme Court’s recent pronouncement in Vahila. This matter is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and case remanded.