Hicks v. Garrett

2012 Ohio 3560

• Court: Ohio Court of Appeals
• Decided: August 6, 2012
• Docket: 2011CA00109
• Status: Published

Opinion

[Cite as Hicks v. Garrett, 2012-Ohio-3560.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: ANDREA S. HICKS, EXECUTOR OF : Sheila G. Farmer, P.J. THE ESTATE OF THELMA A. : John W. Wise, J. GREDICK : Julie A. Edwards, J. : Plaintiff-Appellant : Case No. 2011CA00109 : -vs- : : OPINION

JEAN COOPER GARRETT, et al.,

Defendants-Appellees

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case No. 2009CV03839

JUDGMENT: Affirmed In Part and Reversed and Remanded In Part

DATE OF JUDGMENT ENTRY: August 6, 2012

APPEARANCES:

For Plaintiff-Appellant For Appellees/Cross-Appellants

JAMES R. RECUPERO ANTHONY E. BROWN MELISSA S. ULRICH 400 South Main Street Belden Village Street, N.W., Ste. #403 North Canton, Ohio 44720 Canton, Ohio 44718

For Appellee/Cross-Appellant

KRISTEN E. CAMPBELL Bretton Commons, Suite #400 8040 Cleveland Ave., N.W. North Canton, Ohio 44720 [Cite as Hicks v. Garrett, 2012-Ohio-3560.]

Edwards, J.

{¶1} Plaintiff-appellant, Andrea Hicks, Executor of the Estate of Thelma

Gredick, appeals from the August 16, 2010, Judgment Entry of the Stark County Court

of Common Pleas and from various other orders following a jury trial. Defendants-

appellees Jean Cooper Garrett and Emershaw, Mushkat & Schneier, George

Emershaw and Donald Hicks have filed Cross-Appeals.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Andrea Hicks is the Executor for the Estate of Thelma Gredick.

Gredick, who died in 2008, was appellant’s mother.

{¶3} In 2000, appellee Jean Cooper Garrett, an attorney with appellee

Emershaw, Mushkat & Schneier (hereinafter “EMS”), entered into an attorney-client

relationship with Thelma Gredick. After her husband died, Gredick retained appellee

Garrett to handle her husband’s estate. Gredick was referred to appellee Garrett by

appellee Donald Hicks, who was appellant’s brother-in-law and an employee of appellee

EMS.

{¶4} At the time of his death, Gredick’s husband had certificates of deposit

(CD’s) that were payable on death to Gredick. The total value of the CDs was

approximately $154,417.19. Appellee Garrett initially listed the CDs as part of Mr.

Gredick’s estate. Once Gredick arranged to get the CDs out of her deceased husband’s

name and into her own name, the CDs were consolidated into one check in Gredick’s

name payable to her.

{¶5} On February 10, 2001, appellee Garrett drove Gredick to FirstMerit Bank,

which is where appellee Garrett maintained her personal bank accounts. The check, Stark County App. Case No. 2011CA00109 3

which was made payable to Gredick, was endorsed by both Gredick and appellee

Garrett. The money was then directly deposited into several of appellee Garrett’s

personal accounts with FirstMerit Bank.

{¶6} On March 14, 2001, appellee Garrett obtained an order from the Probate

Court judge permitting her to file an amended schedule of estate assets that did not

include the CDs.

{¶7} Gredick was subsequently moved to Pebble Creek assisted living facility.

While Gredick was at Pebble Creek, appellee Garrett, at her request, prepared

documents giving appellant power of attorney. On February 13, 2002, appellee Garrett

met with appellant and Garrett at Pebble Creek and appellant signed the documents.

During such meeting, appellant asked appellee Garrett about the CDs and was told that

they were “reinvested long term earning good interest.” Trial Transcript at 167.

{¶8} The probate estate of Gredick’s husband was closed on September 3,

2002.

{¶9} Appellant spoke with appellee Garrett about the CDs again in the

springtime of 2004 and was told that they were maturing the end of May of 2004 and

that appellee Garrett would send appellant the money and paperwork. Appellant never

received anything from appellee Garrett the end of May of 2004.

{¶10} On about August 3, 2004, appellant sent appellee Garrett a letter asking

about the CDs and indicating that appellant had not yet received the paperwork or the

money. Appellant asked appellee Garrett to call her to discuss the matter. Appellee

Garrett did not respond. Appellant sent a second letter on or about August 10, 2004,

again asking about the CDs and asking appellee Garrett to call her. There was no Stark County App. Case No. 2011CA00109 4

response. Appellant also sent letters dated September 24, 2004, January 12, 2005,

June 1, 2005 and July 23, 2006 asking about the CDs. Appellee Garrett never

responded to the letters or called appellant.

{¶11} In the spring of 2005, appellant then went to Bank One, which is where

her father had had his CDs, and asked what had happened to the money. She was

given a photocopy of the check dated February 9, 2001 in the amount of $154,417.19

that was made out to her mother. Appellant saw that both appellee Garrett and her

mother had endorsed the back of the check. After obtaining the photocopy of the check,

appellant tried to call appellee Garrett and never got an answer. She also tried to

contact appellee EMS and left a message for appellee Emershaw that she had never

received any return telephone calls.

{¶12} In 2005, appellant called appellee Donald Hicks, who was her brother-in-

law and an employee of appellee EMS, trying to find out what had happened to the

money from the CDs. Appellee Hicks told her that she should not say anything to

appellee EMS because she had a case pending with them involving her husband’s

property and that she should wait until such case was settled before pursuing the

money. After finding out about the checks in 2005, appellant did not have any

conversations with her mother about the same because her mother was showing signs

of dementia, including memory loss.

{¶13} In 2005 and 2006, appellant continued contacting appellee Garrett via

letters and telephone calls about the CDs, but never heard back from her.

{¶14} In May of 2007, appellant went to FirstMerit Bank with a copy of the check

and her power of attorney and asked the bank what had happened to the money. She Stark County App. Case No. 2011CA00109 5

discovered that appellee Garrett had taken the check and opened a CD for $100,000.00

in her own name and then deposited the rest of the money in her personal accounts.

{¶15} Appellant then contacted appellee EMS and left messages for appellee

Emershaw. Her calls were not returned. She then contacted appellee Hicks and told him

that she had discovered what had happened to the money. During an appointment with

appellee Emershaw and appellee Hicks in November or December of 2007, appellant

asked them how she could get her money back and was told that appellee Emershaw

would try to contact appellee Garrett and would call appellant back and let her know

what he found out. Appellee Emershaw never called her back.

{¶16} On March 14, 2008, appellant filed a complaint against appellees.

Appellant voluntarily dismissed her complaint without prejudice on February 17, 2009

and refiled her complaint on October 6, 2009. Appellant, in her complaint, set forth

claims for legal malpractice/negligence (against appellees Garrett, Emershaw, Hicks),

EMS negligent hiring and supervision (against appellees Emershaw and EMS, fraud

(against appellee Garrett), conversion (against appellee Garrett) and undue influence

(against appellee Garrett). Appellant also set forth claims of negligence and negligent

supervision against FirstMerit Bank.1

{¶17} On February 1, 2010, appellee Garrett filed a Motion for Summary

Judgment. Appellees EMS, Emershaw and Hicks filed a Motion for Summary Judgment

on February 22, 2010. Appellees, in their motions, argued, in part, that the claims were

barred by the applicable statute of limitations.

{¶18} Pursuant to a Judgment Entry filed on April 1, 2010, the trial court granted

the Motion for Summary Judgment filed by appellees EMS, Emershaw and Hicks in part 1 FirstMerit Bank is not a party to this appeal. Stark County App. Case No. 2011CA00109 6

and denied the same in part. The trial court held that appellant’s legal malpractice

claims against such appellees were barred by the statute of limitations contained in R.C.

2305.11(A) for legal malpractice actions and that her negligent hiring and supervision

claims against such appellees were also time barred. The trial court, however, held that

material issues of fact remained as to appellant’s claims for respondeat superior

presumably “related to her claims of conversion, fraud, and undue influence against

[appellee] Garrett.” .

{¶19} As memorialized in a separate Judgment Entry filed on April 1, 2010, the

trial court granted the Motion for Summary Judgment filed by appellee Garrett, in part,

and denied the same in part. The trial court found that appellant’s legal malpractice

claim against such appellee was barred by the statute of limitations contained in R.C.

2305.11(A). The trial court further found that material issues of fact remained as to

appellant’s claims for conversion, fraud and undue influence.

{¶20} On May 14, 2010, appellees EMS, Emershaw and Hicks filed a Motion for

Reconsideration or, in the Alternate, Entry of Final Appealable Order. Such appellees, in

their motion, argued, in relevant part, as follows:

{¶21} “First, under this Court’s own analysis and judicial finding, the statute of

limitations has run on all three tort causes of action. Second, Plaintiff cannot maintain

vicarious liability/respondeat superior claims against Donald Hicks, since it is

uncontested that Donald Hicks was not Defendant Garrett’s employer. Third, Plaintiff

did not allege vicarious liability against these moving Defendants relating to conversion,

fraud or undue influence. And, finally, the allegations of vicarious liability for the alleged Stark County App. Case No. 2011CA00109 7

fraud, conversion or undue influence fail as a matter of law.” Appellee Garrett, on June

9, 2010, filed a similar motion. The trial court denied such motions.

{¶22} The matter proceeded to a jury trial on June 29, 2010. Following

appellant’s opening statement, the trial court granted the oral motion for a directed

verdict made by appellees EMS, Emershaw and Hicks. The trial court, in granting such

motion , stated, in relevant part, as follows:

{¶23} “And I guess from my perspective what I am looking for here that I didn’t

hear in opening statement was any way in which - - you didn’t allege unjust enrichment,

any way in which the law firm, Mr. Hicks, Mr. Emershaw, ordered, instructed, directed,

had knowledge of, any of these actions on behalf of Jean Cooper Garrett if proven and

without any of those, I don’t understand what theory of liability there is to hold the law

firm or Mr. Hicks or Mr. Emershaw individually as lawyers in the case.

{¶24} “It is not a case of failure to supervise a lawyer that’s not involved

anymore. There may arguably have been that, although there’s some argument that

she was on her own. But absent that nexus which you didn’t make any references to in

your opening statement, because I made notes of it because I knew this was coming, I

am looking for some reason why a directed verdict should not at this point in time be

given in favor of those party Defendants….

{¶25} “THE COURT: Based on the representations made during opening

statement what the evidence would be in this case, which is what I need to look at, and

the total lack of in my mind of a legal nexus between the conduct of Jean Cooper

Garrett if proven and the individual lawyers names as well as the law firm named, not

withstanding what you have indicated, Mr. Recupero, the behavior stated by you that Stark County App. Case No. 2011CA00109 8

would be proven is not the type of conduct for which an entity or law firm or the

individual lawyers could also be held accountable absent their active or inactive

participation in that conduct or some knowledge of it or unjust enrichment which is not

before the Court.” Trial Transcript at 153, 155-156.

{¶26} The trial then proceeded against appellee Garrett only.

{¶27} At the close of appellant’s case, appellant made an oral motion to amend

the complaint to conform to the evidence to add claims for breach of contract, breach of

fiduciary duty, and unjust enrichment. At the close of her case, appellant also asked the

court for a mistrial or for a new trial with regard to the dismissal of appellees EMS and

Emershaw. The trial court denied such motions. The jury then returned a verdict in favor

of appellant and against appellee Garrett on her claims for fraud, conversion and undue

influence. As memorialized in a Judgment Entry filed on July 6, 2010, the jury awarded

appellant $265,384.00 in compensatory damages and $165,000.00 in punitive

damages, for a total of $430,384.00.

{¶28} The trial court pursuant to a Judgment Entry filed on July 14, 2010,

memorialized its decision granting the motion for a directed verdict made by appellees

Emershaw, EMS and Hicks.

{¶29} On July 20, 2010, appellee Garrett filed a Motion for Judgment

Notwithstanding the Verdict. On July 28, 2010, appellant filed a Motion for a New Trial.

Both motions were denied pursuant to Judgment Entries filed on August 16, 2010.

{¶30} On September 10, 2010, appellant filed a Motion for Attorney’s Fees.

Following a hearing held on April 7, 2011, the trial court granted such motion and, as Stark County App. Case No. 2011CA00109 9

memorialized in a Judgment Entry filed on April 15, 2011, ordered that appellee Garrett

pay $172,000.00 as and for attorney fees.

{¶31} On May 12, 2011, appellant filed an appeal. Appellant, in her appeal,

raises the following assignments of error on appeal:

{¶32} “I. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL

SUMMARY JUDGMENT IN FAVOR OF APPELLEES GEORGE EMERSHAW,

EMERSHAW, MUSHKAT & SCHNEIER AND JEAN COOPER GARRETT ON THE

STATUTE OF LIMITATIONS ISSUE REGARDING APPELLANT’S CLAIMS FOR

LEGAL MALPRACTICE, AND WHEN IT GRANTED PARTIAL SUMMARY JUDGMENT

IN FAVOR OF APPELLEES GEORGE EMERSHAW AND EMERSHAW, MUSHKAT &

SCHNEIER REGARDING THE APPELLANT’S CLAIMS FOR NEGLIGENT HIRING

AND SUPERVISION, AND RESPONDEAT SUPERIOR.

{¶33} “II. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL

SUMMARY JUDGMENT IN FAVOR OF APPELLEE DONALD HICKS ON THE

STATUTE OF LIMITATIONS ISSUE REGARDING APPELLANT’S CLAIM FOR LEGAL

MALPRACTICE AS AGAINST APPELLEE DONALD HICKS.

{¶34} “III. THE TRIAL COURT ERRED WHEN IT GRANTED DIRECTED

VERDICT IN FAVOR OF APPELLEES GEORGE EMERSHAW AND EMERSHAW,

MUSHKAT & SCHNEIER ON THE ISSUE OF THEIR VICARIOUS LIABILITY FOR THE

ACTIONS OF APPELLEE JEAN COOPER GARRETT FOR CONVERSION, FRAUD

AND UNJUST ENRICHMENT.

{¶35} “IV. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR LEAVE TO AMEND THE COMPLAINT TO CONFORM TO THE Stark County App. Case No. 2011CA00109 10

EVIDENCE AND ADD CLAIMS FOR BREACH OF CONTRACT, BREACH OF

FIDUCIARY DUTY, AND UNJUST ENRICHMENT.

{¶36} “V. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S

MOTION FOR MISTRIAL AND/OR NEW TRIAL.”

{¶37} On May 20, 2011, appellee Garrett filed a Notice of Cross-Appeal.

Appellee Garrett raises the following assignments of error on appeal:

{¶38} “I. THE TRIAL COURT ERRED IN DENYING COOPER-GARRETT’S

MOTION FOR SUMMARY JUDGMENT AND MOTION FOR JNOV AS TO STATUTE

OF LIMITATIONS FOR CLAIMS OF CONVERSION, FRAUD, AND UNDUE

INFLUENCE.

{¶39} “II. THE TRIAL COURT ERRED IN CALCULATING ATTORNEY FEES.”

{¶40} Also on May 20, 2011, appellees EMS, Emershaw and Hicks filed a Notice

of Cross-Appeal. Such appellees raise the following assignment of error on appeal:

{¶41} “THE TRIAL COURT ERRED IN DENYING THE APPELLEES’ MOTION

FOR SUMMARY JUDGMENT, IN PART, AND THE RELATED MOTION FOR

RECONSIDERATION AND MOTION FOR NEW TRIAL AS THEY RELATED TO

CLAIMS FOR RESPONDEAT SUPERIOR/VICARIOUS LIABILITY.”

STANDARD OF REVIEW

{¶42} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212, (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleading, depositions, answers to Stark County App. Case No. 2011CA00109 11

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case and written stipulations of fact, if any, timely filed in the action, 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. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in the party's favor.”

{¶43} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-

107, 662 N.E.2d 264.

{¶44} It is subject to this standard of review that we address the assignments of

error in this case that related to the Motions for Summary Judgment filed in this case.

I

{¶45} Appellant, in her first assignment of error, argues that the trial court erred

in granting partial summary judgment in favor of appellees Emershaw, EMS, and

Garrett on appellant’s claims for legal malpractice and in favor of appellees Emershaw

and EMS on appellant’s claim for negligent hiring and supervision.2

{¶46} R.C. 2305.11 sets forth a one-year statute of limitations for legal

malpractice claims. The one-year statutory period begins to run upon the termination of

the attorney-client relationship or the discovery of the alleged malpractice, whichever

2 While appellant argues that the trial court erred in granting summary judgment in favor of appellees on appellant’s claims for respondeat superior, the trial court actually held, in its April 1, 2010, Judgment Entry, that material issues of fact remained as to such claim. Stark County App. Case No. 2011CA00109 12

occurs later. Ladanyi v. Crookes & Hanson Ltd., et al., 8th Dist. No. 87888, 2007-Ohio-

540. In Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 538 N.E.2d 398 (1989),

the Ohio Supreme Court set forth the standard with respect to the statute of limitations

for malpractice: “Under R.C. 2305.11(A), an action for legal malpractice accrues and the

statute of limitations begins to run when there is a cognizable event whereby the client

discovers or should have discovered his injury was related to his attorney's act or non-

act and the client is put on notice of a need to pursue its possible remedies against the

attorney, or when the attorney-client relationship for that particular transaction or

undertaking terminates, whichever occurs later.” Id. at 58. A cognizable event is defined

as an event that is sufficient to “alert a reasonable person that in the course of legal

representation his attorney committed an improper act.” Spencer v. McGill, 87 Ohio

App.3d 267, 278, 622 N.E.2d 7 (8th Dist. 1993).

{¶47} In the case sub judice, appellant maintains that the cognizable event in

this case occurred in May of 2007, which was when appellant went to FirstMerit Bank.

However, we concur with the trial court that, analyzing the statute of limitations from

either appellant’s perspective or her mother’s perspective, appellant’s legal malpractice

claims against appellees Emershaw, EMS and Garrett were time-barred.

{¶48} In the case sub judice, the attorney client-relationship was between

appellee Garrett and Gredick who retained appellee Garrett to handle her late

husband’s estate. In 2001, appellee Garrett drove Gredick to FirstMerit Bank where the

subject check, which was made payable to Gredick, was endorsed by both Gredick and

appellee Garrett. As noted by the trial court, Gredick knew or should have known of the

alleged wrongful conduct and injury at such time. The money was then deposited into Stark County App. Case No. 2011CA00109 13

several of appellee Garrett’s personal accounts with FirstMerit Bank. Appellee Garrett’s

representation of Gredick continued until September of 2002 when the probate

proceedings involving her husband’s estate were closed and the attorney-client

relationship between Garrett and Gredick ended. The statute of limitations accrued at

latest in September of 2002, when the estate was closed. There is no evidence that

Gredick was incompetent as of such time or during the one year period thereafter so as

to toll the statue of limitations.

{¶49} Moreover, even if we consider the statute of limitations from appellant’s

perspective, we find that the legal malpractice claims against appellees EMS,

Emershaw and Garrett were time-barred. As is stated above, during a meeting on

February 13, 2002, appellant, who had a power of attorney for her mother who was in

an assisted living facility, asked appellee Garrett about the CDs and was told that they

were “reinvested long term earning good interest.” Trial Transcript at 167. Appellant

spoke with appellee Garrett about the CDs again in the springtime of 2004, and was told

that they were maturing the end of May of 2004, and that appellee Garrett would send

appellant the money and paperwork. After appellant never received anything from

appellee Garrett in May of 2004, she sent a letter to appellee Garrett on August 3, 2004,

asking about the CDs and indicating that appellant had not received the paperwork or

the money. Appellant sent a second letter on or about August 10, 2004, again asking

about the CDs and asking appellee Garrett to call her and also sent letters to appellee

Garrett dated September 24, 2004, and January 12, 2005. In March of 2005, appellant

went to Bank One and was provided with a copy of the check endorsed by both

appellee Garrett and her mother. During her deposition, she testified that a Bank One Stark County App. Case No. 2011CA00109 14

employee told her that she should go to FirstMerit and that they would tell her what had

happened to her mother’s money. Appellant, however, did not do so immediately.

Rather, appellant made some phone calls to appellee Garrett that were not returned

and left messages at appellee EMS’s office that were unreturned.

{¶50} Based on the foregoing, we find that the claims for legal malpractice

accrued in 2005 and that appellant’s legal malpractice claims against Emershaw, EMS,

and Garrett were barred by the one year statute of limitations contained in R.C.

2305.11. As noted by the trial court, by 2005, appellant should have been alerted that

an improper act had taken place.

{¶51} Appellant further contends that the trial court erred in granting summary

judgment in favor of appellees Emershaw and EMS on appellant’s claim for negligent

hiring and supervision. Appellant maintains that such appellees knew that appellee

Garrett had lupus and that it affected her ability to practice law and that Garrett was

negligently supervised.

{¶52} Negligent hiring and supervision claims are subject to the two-year

statutory limit of R.C. 2305.10. Generally, the limitations period begins to run from the

date the individual knew or should have known of the injury. O'Stricker v. Jim Walter

Corp., 4 Ohio St.3d 84, 447 N.E.2d 727 (1983). Since, as is stated above, appellant

should have known of the injury caused by the alleged negligent supervisor in 2005,

such claims are time-barred.

{¶53} Based on the foregoing, we find that the trial court did not err in granting

summary judgment to appellees Emershaw, EMS and Garrett on the legal malpractice,

negligent hiring and negligent supervision claims. Stark County App. Case No. 2011CA00109 15

{¶54} Appellant’s first assignment of error is, therefore, overruled.

II

{¶55} Appellant, in her second assignment of error, argues that the trial court

erred in granting partial summary judgment in favor of appellee Donald Hicks on

appellant’s claim for legal malpractice against him. The trial court had granted partial

summary judgment on the basis that the legal malpractice claim against appellee Hicks

was barred by the one year statute of limitations contained in R.C. 2305.11.

{¶56} As is stated above, an action for legal malpractice accrues and the statute

of limitations begins to run when either the client discovers or should have discovered

that his or her injury was related to his attorney’s act or when the attorney client

relationship ends, whichever is later. In the case sub judice, there is evidence that

appellant, in 2005, called appellee Hicks, who was her brother-in-law and an employee

of appellee EMS, trying to find out what had happened to the money from the CDs.

Appellee Hicks told her that she should not say anything to appellee EMS because she

had a case pending with them involving her husband’s property and that she should

wait until such case was settled before pursuing the money. Based on such advice,

appellant did not take any action until May of 2007 when she went to FirstMerit and

discovered that appellee Garrett had deposited the checks into her own accounts.

{¶57} We find that May of 2007 was the “cognizable event” with respect to

appellant’s claim for legal malpractice against appellee Hicks. Appellant filed her

complaint within one year of such date. We find, therefore, that the trial court erred in

granting partial summary judgment in favor of appellee Hicks.

{¶58} Appellant’s second assignment of error is, therefore, sustained. Stark County App. Case No. 2011CA00109 16

III

{¶59} Appellant, in her third assignment of error, argues that the trial court erred

when it granted a directed verdict in favor of appellees Emershaw and EMS at the close

of appellant’s opening statement on the issue of their vicarious liability for the actions of

appellee Garrett.

{¶60} A trial court's decision on a motion for directed verdict presents a question

of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio St.3d

348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 14. Civ. R. 50 provides for a motion for

directed verdict, which may be made at the opening statement of the opponent, at the

close of the opponent's evidence, or at the close of all the evidence. Upon receiving a

motion for directed verdict, the trial court must construe the evidence most strongly in

favor of the party against whom the motion is directed, see Civ. R. 50(A)(4). If the trial

court finds on any determinative issue reasonable minds could come but to one

conclusion on the evidence submitted, then the court shall sustain the motion and direct

the verdict as to that issue. A directed verdict is appropriate where a plaintiff fails to

present evidence from which reasonable minds could find in the plaintiff's favor, see

Hargrove v. Tanner, 66 Ohio App.3d 693, 586 N.E.2d 141 (9th Dist. 1990).

{¶61} In order for an employer to be liable under the doctrine of respondeat

superior, the tort of the employee must be committed within the scope of employment.

Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be

‘calculated to facilitate or promote the business for which the servant was employed * *

*.’” Byrd v. Faber, 57 Ohio St.3d 56, 58, 565 N.E.2d 584, (1991), quoting Little Miami

RR. Co. v. Wetmore, 19 Ohio St. 110, 132, 1869 WL 35, (1869). Byrd also noted, “As Stark County App. Case No. 2011CA00109 17

we held in 1178 Vrabel v. Acri (1952), 156 Ohio St. 467, 474, 46 O.O 387, 390, 103

N.E.2d 564, 568, ‘an intentional and willful attack committed by an agent or employee,

to vent his own spleen or malevolence against the injured person, is a clear departure

from his employment and his principal or employer is not responsible therefore.’ See,

also, Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 283 N.E.2d 175. In other

words, an employer is not liable for independent self-serving acts of his employees

which in no way facilitate or promote his business.” Byrd, 57 Ohio St.3d at 59.

{¶62} In the case sub judice, appellant argued in opening statements that

appellee Garrett, during her time at appellee EMS, held herself out to be an employee

of appellee EMS and was, in fact, an employee. Appellant noted that appellee Garrett

was listed on their letterhead and signed letters representing that she was an attorney

with appellee EMS. Appellant also noted that appellee Garrett had a fee-splitting

arrangement with appellees Emershaw and EMS.

{¶63} In granting the motion for a directed verdict, the trial court held, in relevant

part, as follows:

{¶64} “…I listened carefully during the opening statement, and it appeared that

all claims that were leveled against Jean Cooper Garrett involve conduct of an

intentional nature, misconduct alleging that she intentionally converted funds belonging

to the widow [Gredick] to her own personal use, that she intentionally degraded the

estate although this was monies that were not in the estate, but were monies that were -

- it’s Gredick, Thelma Gredick, were her personal funds that she had taken and put into

an account in her own name. That she exercised undue influence, over her. Stark County App. Case No. 2011CA00109 18

{¶65} “And I guess from my perspective what I am looking for here that I didn’t

hear in opening statement was any way in which - - you didn’t allege unjust enrichment,

any way in which the law firm, Mr. Hicks, Mr. Emershaw, ordered, instructed, directed,

had knowledge of, any of these actions on behalf of Jean Cooper Garrett if proven and

without any of those, I don’t understand what theory of liability there is to hold the law

firm or Mr. Hicks or Mr. Emershaw individually as lawyers in the case.

{¶66} “It is not a case of failure to supervise a lawyer that’s not involved

anymore. There may arguably have been that, although there’s some argument that

she was on her own. But absent that nexus which you didn’t make any references to in

your opening statement, because I made notes of it because I knew this was coming, I

am looking for some reasons why a directed verdict should not at this point in time be

given in favor of those party Defendants.” Trial Transcript at 152-153.

{¶67} The trial court further noted that there was a “total lack in my mind of a

legal nexus between the conduct of Jean Cooper Garrett if proven and the individual

lawyers named as well as the law firm named,…” Trial Transcript at 155.

{¶68} Because appellant failed to argue in opening statements that appellee

Garrett’s actions were anything other than independent self-serving acts which in no

way facilitated or promoted the business of appellee Emershaw or appellee EMS, her

opening statement does not support any cause of action against appellee Emershaw

and EMS. We find, therefore, that the trial court did not err in granting the motion for a

directed verdict.

{¶69} Appellant's third assignment of error is, therefore, overruled. Stark County App. Case No. 2011CA00109 19

IV

{¶70} Appellant, in her fourth assignment of error, argues that the trial court

erred in denying appellant’s motion for leave of court to amend the complaint to conform

to the evidence pursuant to Civ.R. 15.

{¶71} When appellee Garrett’s deposition was taken in November of 2008, she

testified that, at the time she endorsed the check in 2001 with Gredick, she had no

recollection as to what had happened with the check. However, appellee Garrett

testified that while preparing for trial, she recalled that Gredick gave her the money to

“pay her bills and give her [Gredick] cash as directed by her over the years.” Trial

Transcript at 257. According to appellee Garrett, after formulating the above agreement,

they both signed the check. The following is an excerpt from appellee Garrett’s trial

testimony:

{¶72} “Q. You had an agreement with Thelma [Gredick] that you were to use her

money for her benefit, correct?

{¶73} “A. Yes.

{¶74} “Q. And she relied upon that agreement in giving you her check?

{¶75} “A. Yes.

{¶76} “Q. And you didn’t do that, did you?

{¶77} “A. I’m not sure how to answer that. I can’t say. I know I gave her money.

I don’t know how much I gave her.

{¶78} “Q. You used the money for your own benefit?

{¶79} “A. It would appear that way.

{¶80} “Q. She didn’t give you authority to do that, did she? Stark County App. Case No. 2011CA00109 20

{¶81} “A. No.” Trial Transcript at 291.

{¶82} Based on appellee Garrett’s testimony that she had an agreement with

Gredick, appellant’s counsel then made a motion to conform to the evidence pursuant to

Civ.R. 15, seeking to add claims for breach of written contract, breach of fiduciary duty

and unjust enrichment. The trial court overruled such motion.

{¶83} Civ.R. 15(B) states: “When issues not raised by the pleadings are tried by

express or implied consent of the parties, they shall be treated in all respects as if they

had been raised in the pleadings. Such amendment of the pleadings as may be

necessary to cause them to conform to the evidence and to raise these issues may be

made upon motion of any party at any time, even after judgment. * * *” An appellate

court reviews a trial court's ruling on a Civ.R. 15(B) motion for abuse of discretion.

Spisak v. McDole, 15 Ohio St.3d 62, 63, 472 N.E.2d 347 (1984).

{¶84} We find that the trial court did not err in overruling appellant’s motion

because the trial court’s decision was not arbitrary, unconscionable or unreasonable.

The record indicates that appellant’s counsel knew the day before trial that appellee

Gredick was no longer claiming that she had no recollection of what had happened with

the check, but rather claimed she had an agreement with Gredick. However, appellant

made no motion to amend until near the end of trial. Prior to the commencement of

testimony, appellant’s counsel indicated to the trial court that the only claims remaining

were the claims against appellee Garrett for conversion, fraud and undue influence and

the claims against the other appellees based on vicarious liability. During opening

statements, appellant’s counsel stated that he had received a fax the night before

indicating that appellee Garrett was going to change her testimony and testify that she Stark County App. Case No. 2011CA00109 21

remembered Gredick telling her that she could have the money to use to help take care

of Gredick. Appellant never mentioned any claims of breach of contract, unjust

enrichment or breach of fiduciary duties during opening statements.

{¶85} Moreover, appellant, in her brief, contends that some of the claims that

appellant sought to add were directed at appellees EMS and Emershaw, although it is

not clear from the record that appellant sought to add claims against EMS and

Emershaw. As is stated above, after their motion for a directed verdict was granted, the

case proceeded against appellee Garrett only. Thus, EMS and Emershaw were out of

the case by the time the motion to amend was made.

{¶86} In addition, we find any error made by the trial court in denying the motion

to amend to be harmless. Clearly, the jury found the actions of Garrett to have been

intentional, fraudulent and done for her own personal gain. The jury did not believe her

defense that there had been an agreement between Garrett and Gredick for Garrett to

keep Gredick’s money until Gredick said she needed it.

{¶87} Based on the foregoing, we find that the trial court did not err in denying

appellant’s motion for leave of court to amend the complaint to conform to the evidence

pursuant to Civ.R. 15. The trial court’s decision was not arbitrary, unconscionable or

unreasonable.

{¶88} Appellant’s fourth assignment of error is, therefore, overruled.

V

{¶89} Appellant, in her fifth assignment of error, argues that the trial court erred

in denying her motion for a mistrial and/or new trial pursuant to Civ.R. 59. Stark County App. Case No. 2011CA00109 22

{¶90} Civ.R. 59(A) governs grounds for a new trial and states as follows: “A new

trial may be granted to all or any of the parties and on all or part of the issues upon any

of the following grounds: new trial may be granted to all or any of the parties and on all

or part of the issues upon any of the following grounds:

{¶91} “(1) Irregularity in the proceedings of the court, jury, magistrate, or

prevailing party, or any order of the court or magistrate, or abuse of discretion, by which

an aggrieved party was prevented from having a fair trial;

{¶92} “(2) Misconduct of the jury or prevailing party;

{¶93} “(3) Accident or surprise which ordinary prudence could not have guarded

against;

{¶94} “(4) Excessive or inadequate damages, appearing to have been given

under the influence of passion or prejudice;

{¶95} “(5) Error in the amount of recovery, whether too large or too small, when

the action is upon a contract or for the injury or detention of property;

{¶96} “(6) The judgment is not sustained by the weight of the evidence;

however, only one new trial may be granted on the weight of the evidence in the same

case;

{¶97} “(7) The judgment is contrary to law;

{¶98} “(8) Newly discovered evidence, material for the party applying, which with

reasonable diligence he could not have discovered and produced at trial;

{¶99} “(9) Error of law occurring at the trial and brought to the attention of the

trial court by the party making the application. Stark County App. Case No. 2011CA00109 23

{¶100} “In addition to the above grounds, a new trial may also be granted in the

sound discretion of the court for good cause shown.”

{¶101} Our standard of review on a motion for new trial is abuse of discretion.

Civ.R. 59. In order to find an abuse of that discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). We

must look at the totality of the circumstances in the case sub judice, and determine

whether the trial court acted unreasonably, arbitrarily or unconscionably.

{¶102} In the case sub judice, after appellee Garrett testified, appellant moved for

a mistrial or a new trial “based on the fact that the Court dismissed Emershaw, Mushkat

& Schneier and George Emershaw specifically because we only had intentional torts left

in this case and that the Court was under the impression that because there was no

evidence that Emershaw or Emershaw, Mushkat & Schneier had knowledge of what

she had done that those claims were not good.” Trial Transcript a 312-313. Appellant

noted that Garrett had testified differently at trial than at her deposition as to her

recollection of the events of February 10, 2001. Appelant, in support of her motion,

stated, in relevant part, as follows:

{¶103} “Therefore, I believe based on the facts of the testimony that came out

now and was first developed now gives us the ability or opportunity to ask the Court to

let us modify our complaint to conform to the evidence and would therefore, require the

Court to grant us a mistrial and a new trial in this case with regard to its dismissal of

Emershaw, Mushkat & Schneier and George Emershaw.” Trial Transcript at 313. Stark County App. Case No. 2011CA00109 24

{¶104} With respect to appellant’s argument that she is entitled to a mistrial on

the grounds of newly discovered evidence, we note that appellant was aware prior to

the commencement of trial that appellee Garrett was changing her testimony. However,

despite having knowledge of the change in testimony, appellant did not make any

motion prior to the time that appellees Emershaw, Hicks and EMS were dismissed from

the case in response to the oral motion for a directed verdict. Moreover, having held

that the trial court did not err in denying appellant's motion for a directed verdict or

motion to amend, it follows that we find the trial court did not err in denying Appellant's

subsequent motion for new trial or a mistrial on such basis.

{¶105} Appellant’s fifth assignment of error is, therefore overruled.

CROSS-APPEAL OF APPELLEE GARRETT

{¶106} Appellee Garrett, in her first assignment of error on cross-appeal, argues

that the trial court erred in denying her Motion for Summary Judgment and her Motion

for Judgment Notwithstanding the Verdict as to the claims for conversion, fraud and

undue influence.

{¶107} As is stated above, we review an appeal from summary judgment under a

de novo standard of review. Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987). Under Civ.R. 56, summary judgment is appropriate when (1) no

genuine issue as to any material fact exists, (2) the party moving for summary judgment

is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in

favor of the nonmoving party, reasonable minds can reach only one conclusion, which is Stark County App. Case No. 2011CA00109 25

adverse to the nonmoving party. Temple v. Wean United, Inc. 50 Ohio St.2d 317, 327,

364 N.E.2d 267 (1977).

{¶108} The decision to grant or deny a Civ.R. 50(B) motion for JNOV is reviewed

de novo. Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19, (1986) (equating the

test regarding review of a JNOV to the test applied to review a directed verdict).

Directed verdict is reviewed de novo. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur.

Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4 (setting forth the

standard for directed verdict). JNOV is proper if upon viewing the evidence in a light

most favorable to the nonmoving party and presuming any doubt to favor the

nonmoving party, reasonable minds could come to but one conclusion, that being in

favor of the moving party. Civ.R. 50(B); Goodyear at ¶ 3. Such a decision does not

determine factual issues, but only questions of law, even though it is necessary to

review and consider the evidence in deciding the motion. Goodyear at ¶ 4. “Neither the

weight of the evidence nor the credibility of the witnesses is for the court's determination

in ruling upon [JNOV].” Osler, 28 Ohio St.3d at 347, quoting Posin v. A.B.C. Motor Court

Hotel, 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976).

{¶109} Appellee moved for summary judgment, in part, on the basis that

appellant’s claims against her for conversion, fraud and undue influence were barred by

the applicable statute of limitations. The trial court overruled the motion for summary

judgment and the matter proceeded to trial. After the verdict was rendered, appellee

Garrett, on July 20, 2010, filed a Motion for Judgment Notwithstanding the Verdict,

arguing that the claims were barred by the statute of limitations. The motion was

overruled. Stark County App. Case No. 2011CA00109 26

{¶110} Appellee Garrett, in her motion for summary judgment and in her brief,

alleged that the claims for conversion, fraud and undue influence were all legal

malpractice claims and that therefore, they were barred by the one year statute of

limitations for legal malpractice. In Dallas v. Childs, No. 65150, 1994 WL 284991 (8th

Dist. 1994), claims of fraud, breach of fiduciary duty and conversion were brought

against an attorney. The attorney argued that the claims were barred by the one year

statute of limitations for legal malpractice. In rejecting such argument the court, in such

case, held as follows:

{¶111} “In his fourth assignment of error, Childs argues that this action was

barred by the one year statute of limitations for malpractice. He reasons that this action

arises out of an attorney-client relationship. This assignment of error has no merit.

{¶112} “Legal malpractice is defined as professional misconduct involving

negligence or breach of contract. See DiPaola at 172,3 citing Muir v. Hadler Real Estate

Mgmt. (1982), 4 Ohio App.3d 89. The very existence of an attorney client relationship

raises a presumption that an attorney acted in good faith in handling his client's affairs.

DiPaola at 173 citing 6 Ohio Jurisprudence 3d (1978) 644, Attorneys at Law, Section

118.

{¶113} “In order to rebut that presumption and sufficiently allege a cause of action

for fraud against attorneys in a situation where the gist of the complaint involves legal

malpractice, see Hibbet v. Cincinnati (1982), 4 Ohio App.3d 128, plaintiffs must have

specifically alleged that defendants committed the actions for their own personal gain.

To hold otherwise would be to undermine the purpose and focus of the malpractice

statute. Moreover, such requirement is in keeping with the particularity generally 3 th The entire citation is DiPaolo v. DeVictor, 51 Ohio App.3d 166, 555 N.E.2d 969 (10 Dist. 1988). Stark County App. Case No. 2011CA00109 27

necessary to have a well-pleaded complaint in fraud. (Citations omitted.)

DiPaola at 173. See, also, Carrocia v. Carrocia (1985), 21 Ohio App.3d 244. In this

case, Dallas specifically alleged in her complaint that Childs committed the actions for

his own personal gain. Accordingly, the proper statute of limitations was one for fraud.”

Id. at 3.

{¶114} Likewise, in the case sub judice, there were allegations that appellee

Garrett committed the actions for her own personal gain. We find, therefore, that the

one year statute of limitations for legal malpractice was not applicable to such claims.

{¶115} The statute of limitations for fraud and for conversion is four years

pursuant to R.C. 2305.09 while the statute of limitations for undue influence also is four

years. See Creauro v. Duko, 7th Dist. N. 04 CO 1, 2005-Ohio-1342.

{¶116} As noted by the Ohio Supreme Court in Cundall v. U.S. Bank, 122 Ohio

St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, “‘A cause of action for fraud or

conversion accrues either when the fraud is discovered, or [when] in the exercise of

reasonable diligence, the fraud should have been discovered. Investors REIT One v.

Jacobs (1989), 46 Ohio St.3d 176, 546 N.E.2d 206, paragraph 2b of the syllabus; Burr

v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 76 [23 OBR 200], 491 N.E.2d

1101. When determining whether the exercise of reasonable diligence should have

discovered a case of fraud, the relevant inquiry is whether the facts known ‘“would lead

a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry

* * *.”’ Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 181 [12 OBR 246],

465 N.E.2d 1298, quoting Schofield v. Cleveland Trust Co. (1948), 149 Ohio St. 133, Stark County App. Case No. 2011CA00109 28

142 [36 O.O. 477], 78 N.E.2d 167.’ Stokes v. Berick, Lake App. No. 98–L–094, 1999

WL 1313668, *5.

{¶117} “As the First District has recognized, ‘this standard does not require the

victim of the alleged fraud to possess concrete and detailed knowledge, down to the

exact penny of damages, of the alleged fraud; rather, the standard requires only facts

sufficient to alert a reasonable person of the possibility of fraud.’ (Emphasis added.)

Palm Beach Co. v. Dun & Bradstreet, Inc. (1995), 106 Ohio App.3d 167, 171, 665

N.E.2d 718. ‘[C] onstructive knowledge of facts, rather than actual knowledge of their

legal significance, is enough to start the statute of limitations running under the

discovery rule.” (Emphasis sic.) Flowers v. Walker (1992), 63 Ohio St.3d 546, 549, 589

N.E.2d 1284.” Id at paragraphs 29-30.

{¶118} In the case sub judice, we find that appellant’s claims for conversion, fraud

and undue influence were filed within four years of the time in which the fraud was

discovered or from when, in the exercise of reasonable diligence, should have been

discovered. As is stated above, there was evidence that appellee Garrett told appellant

that the CDs were coming due in May of 2004. Although appellant made numerous

attempts to find out the status of the CD’s in 2004 and 2005, appellee did not respond to

the same. As noted by the trial court in its April 1, 2010, Judgment Entry, a reasonable

person would have been alerted in 2005 that an improper act had taken place.

{¶119} We find, therefore, that the trial court did not err in denying appellee

Garrett’s Motion for Summary Judgment and her Motion for Judgment Notwithstanding

the Verdict.

{¶120} Appellee’s first assignment of error is, therefore, overruled. Stark County App. Case No. 2011CA00109 29

{¶121} Appellee Garrett, in her second assignment of error, argues that the trial

court erred in calculating attorney fees.

{¶122} Following trial, appellant, on February 2, 2011, filed a Motion for Attorney

Fees, seeking $172,153.60 in fees. Appellant, in such motion, noted that there was a

contingency fee agreement entitling appellant’s counsel to 40% of the total recovery.

On March 18, 2011, appellant filed a reply brief in support of the Motion for Attorney

Fees. Attached to such motion was Statement of Services of Recupero & Associates

showing that the law firm had expended over 462 hours on appellant’s behalf and that

the total bill was for $79,297.84. A hearing on such motion was held on April 7, 2011.

Pursuant to a Judgment Entry filed on April 15, 2011, the trial court ordered that

appellee Garrett pay $172,000.00 “as and for attorney fees to the Estate of Thelma

Gredick through the Executor of said Estate, and Plaintiff herein, Andrea S. Hicks.”

{¶123} Appellee Garrett now maintains that the trial court failed to follow the

requirements set forth in Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569

N.E.2d 464 (1991) in calculating attorney fees.

{¶124} Generally, the starting point in determining the amount of attorney fees to

award is the computation of the lodestar figure. Hensley v. Eckerhart, 461 U.S. 424, 103

S.Ct. 1933, 76 L.Ed.2d 40 (1983). The lodestar is the number of hours expended

multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433. If the court deviates

from the lodestar, it must provide a clear explanation. Hensley, 461 U.S. at 437.

{¶125} Once the trial court calculates the lodestar figure, the court may modify

that calculation by application of the factors listed in DR 2-106(B), now, Ohio Rules of Stark County App. Case No. 2011CA00109 30

Professional Conduct 1.5. Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 145,

569 N.E.2d 464 (1991). These factors are: the time and labor involved in maintaining

the litigation; the novelty and difficulty of the questions involved; the professional skill

required to perform the necessary legal services; the attorney's inability to accept other

cases; the fee customarily charged; the amount involved and the results obtained; any

necessary time limitations; the nature and length of the attorney/client relationship; the

experience, reputation, and ability of the attorney; and whether the fee is fixed or

contingent. All factors may not be applicable in all cases and the trial court has the

discretion to determine which factors to apply, and in what manner that application will

affect the initial calculation. Id. at 145-146.

{¶126} Moreover, a determination of the amount of such fees lies within the

sound discretion of the trial court. Unless the amount of fees determined is so high or so

low as to shock the conscience, an appellate court shall not interfere. Bittner, supra at

146. (Citation omitted). Nonetheless, when making a fee award, the trial court must

state the basis for the fee determination; absent such a statement, it is not possible for

an appellate court to conduct a meaningful review. Bittner v. Tri-County Toyota, Inc.

supra, at 146.

{¶127} Appellee Garrett, in her brief, argues that the lodestar figure in this case

was approximately $75,000.00 and that the trial court provided no explanation as to how

it arrived at an attorney fee award of $172,000.00. The trial court failed to provide any

explanation as to why deviation from the lodestar figure was reasonable.

{¶128} Appellee Garrett’s second assignment of error is, therefore, sustained. Stark County App. Case No. 2011CA00109 31

CROSS-APPEAL OF APPELLEES EMS, EMERSHAW AND HICKS

{¶129} Appellees EMS, Emershaw and Hicks, in their sole assignment of error on

cross-appeal, argue that the trial court erred in denying their Motion for Summary

Judgment in part, and their Motion for Reconsideration as they related to claims for

repondeat superior/vicarious liability for the actions of appellee Garrett.

{¶130} There is no claim against appellee Hicks based on vicarious

liability/respondeat superior. Based on our disposition of the remaining assignments of

error in this case, such assignment of error is moot.

{¶131} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed and remanded in part.

By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

______________________________

JUDGES

JAE/d0202 [Cite as Hicks v. Garrett, 2012-Ohio-3560.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

ANDREA S. HICKS, EXECUTOR : OF THE ESTATE OF THELMA A. : GREDICK : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : JEAN COOPER GARRETT, et al., : : Defendants-Appellees : CASE NO. 2011CA00109

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed in part and reversed

and remanded in part. Costs assessed 50% to appellant Andrea Hicks, Executor of the

Estate of Thelma Gredick, and 50% to appellee-cross appellant Donald Hicks.

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