[Cite as Bressi v. Irwin, 2021-Ohio-2550.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY
JAMES BRESSI, CASE NO. 2020-G-0271
Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas
JOHN R. IRWIN, et al., Trial Court No. 2019 PTR 000306 Defendants-Appellees.
OPINION
Decided: July 26, 2021 Judgment: Affirmed.
Laura L. Mills and Pierce C. Walker, Mills, Mills, Fiely & Lucas, LLC, 101 Central Plaza South, Suite 1200, Canton, OH 44702 (For Plaintiff-Appellant).
Steven G. Janik and Audrey Bentz, Janik LLP, 9200 South Hills Boulevard, Suite 300, Cleveland, OH 44147 (For Defendant-Appellee, John R. Irwin).
Steven K. Kelley, Frank H. Scialdone, and Cara M. Wright, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellee, Michael Ockerman).
MARY JANE TRAPP, P.J.
{¶1} Appellant, James Bressi, (“Mr. Bressi”), appeals the judgment of the
Geauga County Court of Common Pleas, which granted appellees’, John Irwin (“Dr.
Irwin”) and Michael Ockerman (“Mr. Ockerman”) (collectively the “appellees”) motions for
summary judgment on Mr. Bressi’s legal malpractice claims. {¶2} Mr. Bressi raises two assignments of error, contending that the trial court
erred in granting summary judgment on behalf of appellees as it pertained to proximate
cause and damages.
{¶3} After a review of the record and pertinent caselaw, we find Mr. Bressi’s
assignments of error to be without merit. Whether appellees were negligent in failing to
timely file an appeal of a prejudgment attachment order and failing to file a transcript of
the hearing on the motions to discharge the attachment order is not at issue. What is at
issue are the remaining necessary elements in any negligence claim - proximate cause
and resultant damages.
{¶4} There is simply no evidence in this record to support a claim that appellees’
negligence was the proximate cause of any identifiable loss. Mr. Bressi failed to provide
rebuttal evidence to the appellees’ affidavits in which they averred they made no act or
omission which proximately caused Mr. Bressi any damage, and Mr. Bressi’s expert
offered no opinions regarding proximate cause and damages. Because Mr. Bressi failed
to present a genuine issue of material fact that appellees’ malpractice was the proximate
cause of any loss, summary judgment was properly granted.
{¶5} The judgment of the Geauga County Court of Common Pleas is affirmed.
Substantive and Procedural Facts
The Underlying Litigation in which Appellees Represented Mr. Bressi
{¶6} Appellees were engaged to represent Mr. Bressi in various civil, criminal,
and medical licensing board actions arising out of allegations from over 60 women that
Mr. Bressi sexually assaulted them while providing medical services.
Case No. 2020-G-0271 {¶7} Appellees represented Mr. Bressi in at least three cases, including
Thompson, et al. v. Summit Pain Specialists, Inc., Summit C.P. No. CV-2013-05-2353;
Prather v. Bressi, Summit C.P. No. CV-2014-11-5047; and Bressi v. Geiger, Summit C.P.
No. CV-2014-04-2198.
{¶8} In Thompson, six of Mr. Bressi’s former patients filed suit in the Summit
County Court of Common Pleas against Mr. Bressi, his medical practice, Summit Pain
Specialists, Inc., and his medical practice partners, alleging claims of medical
malpractice, battery, intentional infliction of emotional distress, negligent infliction of
emotional distress, violations under state and federal law for patient abuse, negligence
under respondeat superior, and fraudulent transfer in violation of the Ohio Uniform
Fraudulent Transfer Act.
{¶9} The Summit County court granted the plaintiffs’ motion for a prejudgment
attachment order and froze Mr. Bressi’s assets, which included real and personal
property, any intangible property including but not limited to “bank accounts, cash, stocks,
bonds or other items in which he had a financial interest and that could be converted into
cash, his share of stock in Summit Pain Specialists, Inc., and the sum of $100,000 cash
that was being held as bond by the Summit County Clerk of Courts in his criminal case.
{¶10} After he was acquitted on 26 of the 27 charges in his criminal case, Mr.
Bressi filed two motions to discharge the prejudgment attachment order, which included
the $100,000 cash bond. See State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-
5211, ¶ 6. In December 2016, the Thompson matter was settled. Over time, assets were
released in various amounts in the different cases for settlement purposes and attorney
fees.
Case No. 2020-G-0271 {¶11} The appellees also represented Mr. Bressi in his appeal of the attachment
order and motions to discharge the order in Thompson v. Summit Pain Specialists, Inc.,
9th Dist. Summit Nos. 27635 & 27638, 2016-Ohio-7030. The Ninth District noted that in
his first, second, and fourth assignments of error, Mr. Bressi was substantively
challenging the terms of the February 21, 2014 order of attachment and whether it was
wrongfully obtained. The court dismissed those portions of his appeal, concluding they
should have been timely appealed and that it lacked jurisdiction to consider the claimed
errors. Id. at ¶ 9-10, ¶ 21-33. Further, Mr. Bressi failed to provide a transcript of the
hearing on his motions to discharge the attachment. Id. at ¶ 31. In addressing his third
assignment of error attacking the trial court’s denial of his Civ.R. 60(B) motion for relief
from judgment of the prejudgment attachment order, the court found that the trial court
was correct in concluding that an acquittal on 26 of 27 criminal charges did not constitute
newly discovered evidence that rendered the attachment order inequitable pursuant to
Civ.R. 60(B)(2) or (4). Id. at ¶ 20.
Cuyahoga Case No. CV-18-900588
{¶12} In 2018, Mr. Bressi filed a complaint in the Cuyahoga County Court of
Common Pleas alleging three claims for relief: (1) negligence/breach of duty against both
appellees, (2) breach of agreement against Dr. Irwin, and (3) intentional and malicious
conduct (punitive damages) against Dr. Irwin. Dr. Irwin answered and asserted a
counterclaim for $97,299.58 for unpaid attorney fees. He also filed a motion to transfer
venue to Geauga County, which Mr. Ockerman joined. The Cuyahoga County Court of
Common Pleas granted the motion in April 2019.
Case No. 2020-G-0271 Geauga County Case No. 19PTR000306
{¶13} In August 2019, the trial court issued a pretrial order requiring Mr. Bressi to
submit his expert report by November 22, 2019. Mr. Bressi failed to do so.
{¶14} In December 2020, Dr. Irwin filed a motion for summary judgment, arguing
that Mr. Bressi failed to support his claims with expert testimony. Attached to his motion
was an affidavit in which he attested that: Mr. Bressi suffered no damages since all of his
assets were returned, with the exception of those he agreed to turnover as part of a
settlement with the victims; Mr. Bressi failed to establish any act or omission that was the
proximate cause of any damages; and he did not deviate from the applicable standard of
care. Dr. Irwin also later filed two “Motions to Join in Defendant Ockerman’s Reply in
Support of Motion for Summary Judgment.”
{¶15} In January 2020, Mr. Ockerman moved for summary judgment, arguing that
Mr. Bressi failed to allege a prima facie case for legal malpractice because he failed to
produce the report of an expert to establish that appellees deviated from the proper
standard of care.
{¶16} Mr. Bressi filed a brief in opposition to Dr. Irwin’s motion for summary
judgment, arguing that the untimely Thompson appeal was negligence per se, i.e., that
Dr. Irwin fell below the requisite standard of care and that expert testimony was not
required. Attached to the brief in opposition was an affidavit from his attorney, Thomas
M. Wilson, which verified the authenticity of the Thompson appellate opinion. No
additional evidentiary quality material was submitted.
{¶17} In April 2020, the court extended Mr. Bressi’s deadline to produce an expert
report until May 20, 2020. On that day, Mr. Bressi designated Attorney Charles J.
Case No. 2020-G-0271 Kettlewell (“Mr. Kettlewell”) as his expert. Mr. Kettlewell’s report and affidavit were
attached to Mr. Bressi’s supplemental response in support of his brief in opposition to Dr.
Irwin’s motion for summary judgment. Mr. Kettlewell opined that both appellees fell below
the standard of care because they failed to timely appeal the attachment order and,
further, because they failed to file a transcript of the hearing on Mr. Bressi’s motions to
discharge on appeal.
{¶18} Mr. Bressi argued in his brief that any failure to produce an expert report is
now “null and void”; expert witness evidence is not necessary to establish proximate
cause in legal malpractice actions; the fact that appellees filed an untimely appeal is
evidence that they had a “good-faith basis for doing so, demonstrating proximate cause”;
and he suffered damages because the prejudgment attachment order included assets not
permitted by law to be attached.
{¶19} The parties filed a flurry of motions, including supplemental motions,
motions to join, replies and responses, which included two motions to strike: Dr. Irwin’s
motion to strike Mr. Bressi’s supplemental brief and Mr. Bressi’s motion to strike Mr.
Ockerman’s reply in support of his motion for summary judgment, both of which the trial
court denied.
{¶20} On September 14, 2020, the trial court awarded summary judgment to
appellees in separate judgment entries. After the trial court ruled on the summary
judgment motions, Mr. Bressi filed a motion for reconsideration, or in the alternative, a
Civ.R. 56(F) motion seeking a “stay” so he could conduct additional discovery. On
October 10, 2020, the court issued nunc pro tunc judgment entries granting summary
judgment to appellees, adding the language designating a final appealable order, “there
Case No. 2020-G-0271 is no just reason for delay.” Subsequently, Dr. Irwin voluntarily dismissed the pending
counterclaim.
Judgment Entry Granting Dr. Irwin’s Motion for Summary Judgment
{¶21} As for Dr. Irwin’s motion for summary judgment, the trial court found Mr.
Bressi alleged that he entered into an attorney-client relationship with Dr. Irwin in 2013
and that he paid Dr. Irwin over $177,000 for representation in at least three cases,
Thompson, Prather, and Geiger. Mr. Bressi filed claims for relief alleging that Dr. Irwin
was negligent (legal malpractice), breached his contract, and owes punitive damages.
{¶22} In his first claim for legal malpractice, Mr. Bressi alleged that Dr. Irwin
breached his duty to provide reasonable and/or adequate counsel by failing to timely file
an appeal of the February 21, 2014 prejudgment attachment order and to object to the
May 17, 2017 judgment entry in Thompson, in which the trial court ordered a partial
release of the attachment to pay the settlement agreement in Prather and pay attorney
fees to Dr. Irwin and Douglas Graf. He also alleged Dr. Irwin engaged in self-dealing.
{¶23} The trial court found that Dr. Irwin met his initial burden in the summary
judgment exercise by showing that he exercised professional judgment when he averred
that his representation was at or above the standard of care. The only breach of duty Mr.
Kettlewell identified was Dr. Irwin’s failure to timely appeal the attachment order. The trial
court found that missing an appellate deadline is negligence as a matter of law, and,
therefore, Dr. Irwin was negligent in that respect. However, the trial court also found Mr.
Bressi failed to establish that Dr. Irwin’s negligence was the proximate cause of the losses
he suffered, i.e., he failed to provide evidence that he would have prevailed in the appeal
but for Dr. Irwin’s negligence. As for damages, the trial court determined Dr. Irwin met
Case No. 2020-G-0271 his initial burden by averring Mr. Bressi suffered no damage, to which Mr. Bressi failed to
provide rebuttal evidence.
{¶24} The trial court found Mr. Bressi’s second claim for relief, breach of contract,
was essentially a legal malpractice claim. It determined Dr. Irwin met his initial burden by
averring his representation met the standard of care and proximately caused no damages
to Mr. Bressi, to which Mr. Bressi failed to provide rebuttal evidence. Since Mr. Bressi
submitted no evidence of damages, the trial court found his third claim for relief for
punitive damages necessarily failed.
Judgment Entry Granting Mr. Ockerman’s Motion for Summary Judgment
{¶25} As for Mr. Ockerman’s motion for summary judgment, the trial court found
that Mr. Bressi alleged in his complaint that Mr. Ockerman’s deficient representation
caused him damages, citing the same breaches of duty the court noted in the judgment
entry awarding summary judgment for Dr. Irwin.
{¶26} The trial court found that Mr. Ockerman averred his representation was at
or above the standard of care, meeting his initial burden of showing that he breached no
duty. The trial court determined Mr. Bressi met his rebuttal burden of a breach of duty on
a single allegation, i.e., the filing of an untimely appeal was negligence as a matter of law.
Mr. Kettlewell opined that the untimely appeal and failure to file a transcript on appeal
were breaches of duty. Mr. Kettlewell, however, did not find that Mr. Ockerman breached
any other duty.
{¶27} The trial court concluded that Mr. Bressi did not meet his burden on
proximate cause or damages. Stated differently, Mr. Bressi did not establish that but for
Case No. 2020-G-0271 Mr. Ockerman’s failure to file a timely appeal, he would have prevailed on appeal and that
he suffered losses as a result.
{¶28} Mr. Bressi raises two assignments of error on appeal:
{¶29} “[1.] The Trial Court erred in granting Summary Judgment on behalf of
Appellees as it pertained to Proximate Cause.
{¶30} “[2.] The Trial Court erred in not finding damages caused by Appellees to
Appellant.”
Summary Judgment Standard of Review
{¶31} We review de novo a trial court’s order granting summary judgment. Sabo
v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. “‘A
reviewing court will apply the same standard a trial court is required to apply, which is to
determine whether any genuine issues of material fact exist and whether the moving party
is entitled to judgment as a matter of law.’” Id., quoting Hapgood v. Conrad, 11th Dist.
Trumbull No. 2000-T-0058, 2002-Ohio-3363, ¶ 13.
{¶32} “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt [75 Ohio St.3d 280, 662 N.E.2d 264 (1996)], the Supreme Court of
Ohio held that the moving party seeking summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record before the trial court that demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim. The evidence must be in the record or
the motion cannot succeed. The moving party cannot discharge its initial burden under
Case No. 2020-G-0271 Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no
evidence to prove its case but must be able to specifically point to some evidence of the
type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has
no evidence to support the nonmoving party’s claims.” Welch v. Ziccarelli, 11th Dist. Lake
No. 2006-L-229, 2007-Ohio-4374, ¶ 40.
{¶33} “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. If the moving party has satisfied its initial burden, the
nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial. If the nonmoving party
fails to do so, summary judgment, if appropriate shall be entered against the nonmoving
party based on the principles that have been firmly established in Ohio for quite some
time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112[, 526 N.E.2d 798].” Id.
Elements of a Legal Malpractice Claim
Duty and Breach of that Duty
{¶34} To establish a claim for relief for legal malpractice based on negligent
representation, a plaintiff must show: (1) that the attorney owed a duty or obligation to
the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney
failed to conform to the standard required by law, and (3) that there is a causal connection
between the conduct complained of and the resulting damage or loss. Vahila v. Hall, 77
Ohio St.3d 421, 674 N.E.2d 1164 (1997), at syllabus. The plaintiff’s failure to prove any
one of these elements entitles the defendant-attorney to summary judgment. Gijbertus
D.M. van Sommeren v. Gibson, 2013-Ohio-2602, 991 N.E.2d 1199, ¶ 23 (6th Dist.).
Case No. 2020-G-0271 {¶35} The Supreme Court has further held that, “[g]enerally, expert testimony [is]
required in regard to professional standards of performance”; however, where “the
claimed breach of professional duty is well within the common understanding of the
laymen on the jury,” such testimony is not deemed necessary. McInnis v. Hyatt Legal
Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984).
Burden Shifting
{¶36} Any analysis on burden shifting in a legal malpractice summary judgment
exercise must begin with the standard set out in Vahila and the clarification of that
standard announced in Environmental Network Corp. v. Goodman Weiss Miller, L.L.P.,
119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173.
{¶37} At the outset, it is critical to note that the court’s clarification in
Environmental Network Corp. did not alter the burden placed on one bringing a legal
malpractice action to establish proximate cause and resultant damages. In the context
of this matter’s summary judgment exercise, one opposing summary judgment has the
reciprocal burden of producing evidentiary quality material demonstrating the existence
of a genuine issue as to a material fact relevant to proximate cause and damages.
{¶38} In Vahila, the Supreme Court of Ohio determined that “depending on the
situation, [a plaintiff may be required] to provide some evidence of the merits of the
underlying claim,” but the court declined to “endorse a blanket proposition that requires a
plaintiff to prove, in every instance, that he or she would have been successful in the
underlying matter.” Id. at 428.
{¶39} The plaintiffs in Vahila alleged losses of $100,000 and lost profits of at least
$200,000. Id. at 422. Thus, the Supreme Court of Ohio held that “given the facts of [the]
Case No. 2020-G-0271 case, [plaintiffs] have arguably sustained damage or loss regardless of the fact that they
may be unable to prove that they would have been successful in the underlying matter(s).”
Id. at 427. The court observed that “the requirement of causation often dictates that the
merits of the malpractice action depend upon the merits of the underlying case.” Id. at
427-428.
{¶40} In Environmental Network Corp., the Supreme Court of Ohio clarified its
decision in Vahila, observing that the Vahila court “rejected a wholesale adoption of a ‘but
for’ test for proving causation and the mandatory application of the ‘case-within-a-case
doctrine.’” Id. at ¶ 16. However, “in holding that not every malpractice case will require
that the plaintiff establish that he would have succeeded in the underlying matter, the
Vahila court necessarily implied that there are some cases in which the plaintiff must so
establish.” (Emphasis sic.) Id. at ¶ 17. “‘[D]epending on the situation, [a plaintiff may be
required] to provide some evidence of the merits of the underlying claim’ * * *.” Id. at ¶
15, quoting Vahila at 427-428.
{¶41} The Environmental Network Corp. court went on to explain when expert
testimony is needed on the merits of the underlying litigation: “Here, appellees’ sole
theory for recovery is that if the underlying matter had been tried to conclusion, they would
have received a more favorable outcome than they obtained in the settlement. Therefore,
unlike the plaintiffs in Vahila, who sustained losses regardless of whether their underlying
case was meritorious, appellees here could recover only if they could prove that they
would have succeeded in the underlying case and that the judgment would have been
better than the terms of the settlement. Thus, the theory of this malpractice case places
the merits of the underlying litigation directly at issue because it stands to reason that in
Case No. 2020-G-0271 order to prove causation and damages, appellees must establish that appellant’s actions
resulted in settling the case for less than appellees would have received had the matter
gone to trial.” Id. at ¶ 18.
{¶42} The Supreme Court of Ohio concluded, “This type of legal-malpractice
action, then, involves the case-within-a-case doctrine. That is, the plaintiff must establish
that he would have been successful in the underlying matter. In this type of action, it is
insufficient for the plaintiff to present simply ‘some evidence’ of the merits of the
underlying claim. To permit the plaintiff to present merely some evidence when the sole
theory is that the plaintiff would have done better at trial would allow the jury to speculate
on the actual merits of the underlying claim. Thus, in the case sub judice, appellees had
the burden of proving by a preponderance of the evidence that but for appellant’s conduct,
they would have received a more favorable outcome in the underlying matter.” Id. at ¶
19.
Proximate Cause
{¶43} In his first assignment of error, Mr. Bressi argues that the trial court erred in
finding that he did not establish proximate cause and that he needed an expert witness
to prevail because appellees’ failure to file a timely appeal and a transcript on appeal is
negligence as a matter of law.
{¶44} The duty of an attorney to his client 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 in discharging
the duties he or she has assumed. Harris v. Rossi, 2018-Ohio-4573, 123 N.E.3d 284, ¶
51 (11th Dist.).
Case No. 2020-G-0271 {¶45} Rule of Professional Conduct 1.3 states that “[a] lawyer shall act with
reasonable diligence and promptness in representing a client.’ A comment to this rule
explains that ‘[d]elay and neglect are inconsistent with a lawyer’s duty of diligence,
undermine public confidence, and may prejudice a client’s cause. Reasonable diligence
and promptness are expected of a lawyer in handling all client matters and will be
evaluated in light of all relevant circumstances. * * *” Comment 3, Prof.Cond.R. 1.3.
Given these conduct standards, it follows that attorneys are expected to keep themselves
advised of the progress of their cases. Id.
{¶46} And while failure to timely file an appeal may be negligence as a matter of
law, the client is still required to introduce evidence raising a genuine issue of material
fact that the attorneys’ negligence was a proximate cause of his loss.
{¶47} Mr. Bressi argues the trial court misapprehended the nature of his
allegations and, thus, applied the wrong legal standard. He claims that the “timing of the
appeal regarding the attachment,” not the claims underlying the Thompson cases against
him, is the crux of the legal malpractice.” Mr. Bressi therefore contends he did not need
to prove he would have been successful in the underlying Thompson litigation; that is, he
was not required to meet the elements of what is commonly referred to as the “case within
a case doctrine” because he “never raised the issue of settlement in the Thompson
Litigation having a different result but for the negligence of Appellees.”
{¶48} But, in fact, the trial court did not misapprehend the theory of this
malpractice action. The trial court did not find that Mr. Bressi had to offer evidence that
he would have prevailed on the merits of the Thompson case. Rather, the trial court
correctly observed: “Mr. Bressi placed the merits of the February 21, 2014, attachment
Case No. 2020-G-0271 order directly in issue; he must establish the attachment was overbroad or otherwise
improper and he would have prevailed if the appeal had been timely.” In other words, the
attachment proceeding was the subject of the “case.”
{¶49} In Mr. Bressi’s case, the requirement of causation dictates that the merits
of his malpractice claim depend on the merits of the underlying claim that the attachment
was in some fashion wrongful or improvident. This cannot be determined without expert
testimony.
{¶50} Thus, it bears repeating that when a plaintiff is claiming he would have been
better off had the underlying matter been tried rather than settled, the standard for proving
causation requires more than just “some evidence” of the merits of the underlying suit.
Environmental Network Corp. at ¶ 21. Likewise, when a client claims that he would have
been better off had an appeal been timely filed and properly supports his claim with a
transcript of the proceedings below, the standard for proving causation requires more
than just “some evidence” of the merits of the appeal. Id.
{¶51} We do not read the holding in Environmental Network Corp. to be limited to
trial vs. settlement or to exclude its application to a claim that Mr. Bressi would have
prevailed on his appeal of a prejudgment attachment order. “Where there is no
reasonable possibility that a decision of a trial court in a civil case would have been
reversed on appeal, an attorney who negligently fails to file a timely notice of appeal from
the decision is not liable in damages to his client for malpractice.” Belfer v. Spiegel, 18
Ohio App.3d 64, 480 N.E.2d 825 (8th Dist.1984), syllabus. Further, we agree with the
trial court that the good faith arguments of counsel contained in the briefing in Summit
County and the Ninth District Court of Appeals do not establish proximate cause, and Mr.
Case No. 2020-G-0271 Bressi fails to cite any authority to so establish. A “good faith argument” is not akin to a
successful appeal.
{¶52} Mr. Bressi failed to introduce any evidentiary quality material or affidavits
regarding the merits of his interlocutory appeal. The evidentiary materials listed in Civ.R.
56(C) include “‘the pleading, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if
any.’” Dresher at 293, quoting Civ.R. 56(C). “‘Requiring that the moving party provide
specific reasons and evidence gives rise to a reciprocal burden of specificity for the non-
moving party [outlined in Civ.R. 56(E) ].’” Id. at 294, quoting Mitseff at 115. Thus,
pursuant to Civ.R. 56(E), “[w]hen a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue for
trial. If the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.” (Emphasis added.)
{¶53} Mr. Bressi’s argument is devoid of discussion of proximate cause. It jumps
from negligence as a matter of law to an assertion that since “he did not have access to
the monies,” he was damaged. The complaint against appellees does not contain any
allegations as to proximate cause. His briefs in opposition to the motions for summary
judgment are not supported by even his own affidavit outlining in what way the assets
were “wrongfully attached” and what “assets were exempt.”
{¶54} In the one piece of evidentiary quality material presented to the trial court,
Mr. Kettlewell failed to opine as to proximate cause and any loss as a direct and proximate
Case No. 2020-G-0271 result of appellees’ failure to file a timely appeal or provide a transcript on appeal. Without
expert testimony, it cannot be determined whether: the untimely appeal of the
prejudgment attachment order was a proximate cause of any loss to Mr. Bressi, in that
the order of attachment was either wrongfully obtained pursuant to one of the grounds
set forth in R.C. 2715.01; any of Mr. Bressi’s property (as opposed to that of his wife or
the trust) was exempt from attachment; or any other evidence supports the claim that the
prejudgment attachment was unlawful.
{¶55} We agree with the trial court that Mr. Bressi failed to provide rebuttal
evidence to the appellees’ affidavits in which they averred they made no act or omission
which proximately caused Mr. Bressi any damage. While it is clear appellees were
negligent, there is simply no evidence appellees’ negligence was the proximate cause of
any loss. Because Mr. Bressi failed to raise a genuine issue of material fact that
appellees’ malpractice was the proximate cause of any loss, summary judgment was
properly granted in their favor.
{¶56} Mr. Bressi’s first assignment of error is without merit.
Damages
{¶57} In his second assignment of error, Mr. Bressi contends the trial court erred
in finding that he failed to provide rebuttal evidence that appellees’ negligence caused
him to suffer damages and attorney fees.
{¶58} Plaintiffs in legal malpractice cases must prove a causal connection
between the attorney’s malpractice and their damages. Paterek v. Petersen & Ibold, 118
Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, ¶ 39. When an attorney commits
malpractice in a civil case, the lion’s share of the damages derives from the lost claim.
Case No. 2020-G-0271 Id. at ¶ 28. The Supreme Court of Ohio has recognized that “‘a plaintiff in a legal-
malpractice case may seek other types of consequential damages, such as additional
attorney fees incurred to correct the mistakes of the malpracticing attorney.’” Id., quoting
Krahn v. Kinney, 43 Ohio St.3d 103, 106, 538 N.E.2d 1058 (1989). Mr. Bressi, however,
did not allege any other additional types of consequential damages. Thus, the focus of
his damages is the value of the lost claim that the attachment was either wrongful or that
the trial court failed to exempt assets from the attachment. “In proving what was lost, the
plaintiff must show what would have been gained.” Id. at ¶ 37.
{¶59} Mr. Bressi was required to produce some evidence that due to appellees’
negligence, he suffered additional harm separate and apart from the prejudgment
attachment itself. Mr. Bressi cannot simply rest on the incomplete allegations of his
complaint and the arguments presented by his counsel in briefing before the Summit
County Court of Common Pleas and the Ninth District Court of Appeals. As already noted,
Civ.R. 56(E) clearly states “an adverse party may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue for
trial. If the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.” (Emphasis added.) See Dresher at 294, quoting Mitseff at 115 (“It
should be noted that placing * * * requirements on the moving party does not mean the
nonmoving party bears no burden. Requiring that the moving party provide specific
reason and evidence gives rise to a reciprocal burden of specificity for the non-moving
party * * *”) (Emphasis added.)
{¶60} Mr. Bressi’s second assignment of error is without merit.
Case No. 2020-G-0271 {¶61} The judgment of the Geauga County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
Case No. 2020-G-0271