Pournaras v. Hopkins

463 N.E.2d 67, 11 Ohio App. 3d 51, 11 Ohio B. 84, 1983 Ohio App. LEXIS 11237

• Court: Ohio Court of Appeals
• Decided: July 21, 1983
• Docket: 45779
• Status: Published

Opinions

Patton, C.J.

Plaintiff-appellant, James Pournaras, appeals from an order of the Cleveland Municipal Court dismissing his complaint.

Appellant’s complaint arose out of certain actions by defendant-appellee, Paula Hopkins, attorney for appellant’s wife, taken in the course of a domestic relations proceeding then pending between appellant and his wife, Constance Pournaras.

Appellant alleged in his complaint that appellee sent a letter to his attorney, James Konchan, advising Konchan of a hearing to be held on a motion filed in the aforementioned domestic relations proceeding. Appellant further alleged that appellee should have informed Konchan to telephone the presiding referee regarding the hearing date, instead of sending a notice by mail. On the date scheduled for the hearing, the parties appeared but the hearing was not held. Apparently, it was continued to a later date. Appellant alleged that as a result of appellee’s negligence, he was caused to incur “legal expenses, personal expenses, and loss of personal time.” He prayed for damages in the amount of $1,500.

Appellee filed a motion to dismiss wherein she claimed that appellant failed to state a claim, and that the trial court was without subject matter jurisdiction under the doctrine of Us pendens.

A hearing was held on the motion, after which the trial court granted it.

Appellant appeals and assigns two errors for our review:

“I. The trial court erred in dismissing the plaintiff-appellant’s complaint on the defense of failure to state a claim.

“II. The trial court erred in dismissing the plaintiff-appellant’s complaint on the defense of lack of jurisdiction.”

In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts, entitling him to recovery. O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O.2d 223].

The obligation of an attorney is to a' client and not to a third party. Savings Bank v. Ward (1879), 100 U.S. 195, 200; Saby v. Thompson, Hine & Flory (May 17, 1979), Cuyahoga App. No. 38774, unreported. In the case of W.D.G., Inc. v. Mutual Manufacturing & Supply Co. (1976), 5 O.O. 3d 397, 400, the Court of Appeals for Franklin County stated that:

“As a general rule, an attorney is immune from liability to third persons arising from the performance of the attorney’s professional activities as an attorney on behalf of, and with the knowledge of his client, unless such third person is in privity with the client.”

See, also, Savings Bank and Saby, supra. The reason for this rule was well-stated by the court in W.D.G., Inc. at 399-400:

“* * * Some immunity from being sued by third persons must be afforded an attorney so that he may properly represent his client. To allow indiscriminate third-party actions against attorneys of necessity would create a conflict of interest at all times, so that the attorney might well be reluctant to afford proper representation to his client in fear of some third-party action against the attorney himself.”

Because there was no privity between appellant and appellee’s client, the general rule applies to this case, and appellant failed to state a claim upon which relief could be granted. Cf. Petrey v. Simon (1983), 4 Ohio St. 3d 154, 157-160 (dissenting opinion per Celebrezze, C.J.). '

An action for money only is not within the doctrine of lis pendens. Stone v. Equitable Mortgage Co. (1927), 25 Ohio App. 382. Thus, the court below had jurisdiction over the instant case.

Judgment affirmed.

Ann McManamon, J., concurs. Day, J., dissents.