JANET YATES v. JAMES V. BARILLA
C.A. No. 11CA010055
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN, OHIO
August 27, 2012
2012-Ohio-3876
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CV167674
{¶1} Plaintiff-Appellant, Janet Yates, appeals from the judgment of the Lorain County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellee, James Barilla. This Court affirms.
I.
{¶2} Barilla was one of several attorneys Yates hired to represent her during her divorce. Barilla‘s representation of Yates resulted in an agreed upon divorce decree, which the court entered on June 14, 2007. In June 2008, Yates filed a legal malpractice action against Barilla, arising out of his performance during the divorce proceedings. Yates dismissed her original claim without prejudice in May 2009, but re-filed it on May 20, 2010. Barilla ultimately moved for summary judgment on the bases that (1) Yates never obtained an expert to opine that his conduct fell below a reasonable standard of care, (2) his conduct did not fall below that standard, and (3) Yates failed to set forth any evidence that she was damaged as a result of his
{¶3} Yates now appeals from the trial court‘s judgment and raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT JAMES BARILLA.
{¶4} In her sole assignment of error, Yates argues that the trial court erred by granting Barilla‘s motion for summary judgment. Specifically, she argues that she was not required to retain an expert witness to sustain her malpractice claim.
{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe–Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶6} Pursuant to
No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶7} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.
{¶8} To prevail on such a claim for legal malpractice, a plaintiff must demonstrate “(1) an attorney-client relationship giving rise to a duty; (2) a breach of that duty; (3) the attorney‘s failure to conform to the standard required by law; and (4) a causal connection between the conduct complained of and the resulting damage.” Haas v. Bradley, 9th Dist. No. 04CA008541, 2005-Ohio-4256, ¶ 17. The attorney‘s duty is to “exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent[.]” Id., quoting Palmer v. Westmeyer, 48 Ohio App.3d 296, 298 (6th Dist.1988). “[I]n an action for legal malpractice, one must set forth expert testimony to establish an attorney‘s alleged malpractice or breach of duty and care, unless the breach is so obvious that it can be determined by the court or is within the ordinary knowledge and experience of laymen.” Yates v. Brown, 185 Ohio App.3d 742, 2010-Ohio-35, ¶ 18 (9th Dist.), quoting Haas at ¶ 18. “Furthermore, an affidavit from the acting attorney is a legally sufficient basis upon which to grant a motion for summary judgment in a legal malpractice action absent any opposing affidavit of a qualified expert witness for the plaintiff.” Haas at ¶ 18.
{¶10} Yates arose from a legal malpractice action that Yates filed against Jeffrey Brown, another one of her former divorce attorneys. The trial court granted summary judgment to Brown because Yates failed to secure an expert witness to testify that Brown had breached the professional standard of care. Yates at ¶ 26. As in this appeal, Yates appealed from the trial court‘s judgment in favor of Brown on the basis that expert testimony was unnecessary because Brown‘s breach of the standard of care was so obvious that even a layman could discern it. Id. at ¶ 23. This Court rejected Yates’ argument, noting that multiple attorneys were involved in her representation and that, because Yates had sued more than one of those attorneys for malpractice, the trial court did not err by determining that expert testimony was necessary. Id. at ¶ 24. We concluded that “expert testimony would be critical under these circumstances to determining causation and either parsing or eliminating liability.” Id.
{¶11} Barilla also relied upon this Court‘s decision in Yates in support of his motion for summary judgment as well as the testimony from Yates’ deposition. In her deposition taken in
III.
{¶12} Yates’ sole assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
BELFANCE, J.
CONCUR.
APPEARANCES:
JANET YATES, pro se, Appellant.
JOHN T. MURPHY and JAMIE A. PRICE, Attorneys at Law, for Appellee.