Resor v. Dicke

2023 Ohio 4087, 228 N.E.3d 723

Opinion

[Cite as Resor v. Dicke, 2023-Ohio-4087.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY

ANTHONY RESOR, ET AL., CASE NO. 2-22-28 PLAINTIFFS-APPELLANTS,

v.

GLORIA A. DICKE, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Auglaize County Common Pleas Court Civil Division Trial Court No. 2022-CV-109

Judgment Reversed and Cause Remanded

Date of Decision: November 13, 2023

APPEARANCES:

Brent L. English for Appellants

Lindsay M. Johnson for Appellees Case No. 2-22-28

MILLER, P.J.

{¶1} Plaintiffs-Appellants, Anthony and Kayla Resor (collectively, the

“Resors”), appeal the November 17, 2022 judgment issued by the Auglaize County

Court of Common Pleas dismissing their amended complaint against Defendants-

Appellees, Gloria A. Dicke, Esq. (“Dicke”) and her employer, The Hearn Law

Office. The Resors had filed claims against both Appellees for legal malpractice

and against The Hearn Law Office for respondeat superior. The Resors argue that

the trial court erred in granting the Appellees’ motion to dismiss their claims. For

the reasons that follow, we reverse the trial court’s judgment dismissing the Resors’

amended complaint.

I. FACTS AND PROCEDURAL HISTORY

A. Amended Complaint

{¶2} The Resors filed their Amended Complaint on October 3, 2022 setting

forth numerous factual allegations, relevant portions of which are set forth below.

{¶3} The Resors are the biological parents of three minor children. Prior to

the events laid out below, no children’s services agency had ever been involved with

the Resors or their children. However, Kayla Resor’s mother, Bonnie McClurg

(“McClurg”), had a long-standing antagonistic relationship with Kayla’s husband,

Anthony Resor (“Tony”). Unbeknownst to the Resors at the time, McClurg claimed

that Tony was being violent toward Kayla and their children. McClurg began

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interacting with an Allen County Children Services Board caseworker named

Stephen Jenkins (“Jenkins”). Jenkins called Kayla and disparaged Tony, claiming

that Tony had an extensive criminal record and that she and her children were in

jeopardy. Confused, Kayla agreed to meet with Jenkins on May 3, 2021, where he

manipulated her into saying things that were not true and interviewed each of the

children.

{¶4} On May 4, 2021, Jenkins informed the Allen County Juvenile Court that

he intended to take the children from their parents’ custody. The next day, an Allen

County Juvenile Court magistrate issued ex parte emergency custody orders for

each of the children. Because the children were with McClurg for the day, the

agency directed McClurg to keep them from their parents and served a notice on the

Resors’ door that their children had been removed.

{¶5} On May 5, 2021, the magistrate conducted a hearing to determine

whether there was probable cause for the emergency orders. Jenkins, represented

by an assistant county prosecutor, and the Resors, who had no time to engage

counsel and therefore appeared pro se, attended the hearing. Tony informed the

magistrate that the allegations against him and Kayla were false. Kayla likewise

informed the magistrate that the allegations against them were false and that she and

Tony were good parents. The magistrate decided there was sufficient probable

cause for continued shelter care and maintained the placement of the children with

McClurg. On May 6, 2021, the assistant county prosecutor filed three identical

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complaints, alleging the children’s condition or environment warranted the State to

assume guardianship of the children.

{¶6} On May 7, 2021, the Resors entered into an attorney-client relationship

with Dicke from The Hearn Law Offices. The Resors sought advice about how to

counter the agency’s actions. The Resors told Dicke about their suspicion that

McClurg had orchestrated the events. Dicke started representing them in the child

dependency proceedings stemming from the three complaints.

{¶7} At the adjudicatory stage of the proceedings, the Resors objected to the

proposed case plan the agency had filed in connection with the complaints. The

Resors’ Amended Complaint alleges Dicke did not make any discovery requests or

seek depositions in preparation for the adjudication hearing, including that she did

not investigate McClurg’s involvement and interactions with Jenkins. Additionally,

the Amended Complaint alleges that, leading up to the adjudication hearing, Dicke

did not subpoena any witnesses, prepare the Resors to testify, or prepare to address

the legal issues presented. Thus, the Resors allege Dicke did not make sufficient

efforts to “determine the facts on which the agency would rely at the adjudicatory

hearing, determine whether there were witnesses who could rebut and/or explain

factual claims, become thoroughly aware of the issues and facts in order to

competently and effectively cross-examine the agency’s witnesses, assess

evidentiary issues which likely would arise including hearsay and potential hearsay

exceptions, prepare and file motions in limine where appropriate, and properly

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prepare Tony and Kayla Resor to testify on their own behalf.” (Amended Complaint

at ¶ 62). On June 7, 2021, the magistrate conducted an adjudication hearing on the

complaints. At that hearing, Dicke allegedly did not: object to clearly objectionable

testimony offered by Jenkins (including speculation and hearsay statements about

what the children allegedly said to him); challenge whether the agency had made

reasonable efforts to prevent the children’s removal from their parents; effectively

cross-examine any witness; call her clients to testify; call any witnesses; or offer

any documents into evidence.

{¶8} On June 9, 2021, based on the adjudication hearing, the magistrate

found all three children were dependent, by clear and convincing evidence pursuant

to R.C. 2151.04. Dicke did not request findings of fact and conclusions of law or

file objections to the magistrate’s decision. She also did not advise the Resors of

their options, explain the consequences of foregoing objections, or explain why she

had not filed objections.

{¶9} On July 20, 2021, the magistrate conducted a dispositional hearing. The

Amended Complaint asserts that, at this hearing, Dicke did not: directly challenge

the contention that domestic violence had occurred in the Resor home; directly

challenge the “bizarre claims about [Tony] killing animals and being paranoid”; call

any witness to establish the fact that the Resors had been evaluated for mental health

concerns and found to be perfectly normal; call any witness to establish the fact that,

in accordance with the case plan, Tony had completed anger management classes

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and the Resors had completed parenting classes; make any showing that the proper

disposition was to return the children to their parents and give the agency protective

supervision for a period of time; or demonstrate the agency had not taken reasonable

efforts to prevent continued removal of the children from the Resor’s home. On

July 22, 2021, “based upon the extremely limited evidence presented, [the

magistrate concluded] that temporary custody of the children should remain with

McClurg, and that Tony and Kayla would have somewhat extended supervised

parenting time.” (Amended Complaint at ¶ 86). Once again, Dicke is alleged to

have compounded her mistakes by not filing objections to the magistrate’s decision,

severely compromising the Resors’ ability to appeal any subsequent judgment, and

once more did not advise the Resors of their right to file objections to the

magistrate’s dispositional order and seek relief from the trial court, explain the

consequences of foregoing objections, or explain why she had not filed objections.

On September 14, 2021, the trial court journalized a judgment entry approving and

affirming the magistrate’s decision.

{¶10} Due to Dicke’s alleged professional negligence, the Resors had to hire

alternate legal counsel to challenge the agency in order to regain physical custody

of their children. Following additional legal proceedings, the three dependency

cases were dismissed. The Resors’ children were returned to them on February 25,

2022 (297 days after initially losing custody), but the Resors had expended funds to

engage alternate legal counsel and, by then, the Resors had been unnecessarily

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deprived of their children for more than 200 additional days because of Dicke’s

alleged malpractice.

{¶11} The Resors alleged that, if Dicke had competently represented them,

then (1) “there would not have been a valid basis for a dependency finding and the

children would have been returned following the [adjudication] hearing on June 7,

2021”; or, even if the magistrate had made the same dependency finding, (2) “the

dispositional order following the [dispositional] hearing on July 20, 2[0]21 would

have returned the children to their parents with at worst protective supervision by

the agency.” (Amended Complaint at ¶ 93).

B. Appellees’ Motion to Dismiss and the Trial Court’s Order

{¶12} On October 17, 2022, Appellees filed a motion to dismiss the

Amended Complaint, pursuant to Civ.R. 12(B)(6). On November 18, 2022, the trial

court entered its order on the motion to dismiss, stating:

In this case, [the Resors] fail to state an actionable legal malpractice claim where their Amended Complaint allegations, taken as true, fail to demonstrate any causal connection between the alleged negligence of Attorney Dicke and their claimed damages. Any determination as to whether the Juvenile Court would have reached a different decision in the underlying proceedings would be wholly speculative.

The facts set forth in the Amended Complaint, taken as true, would not support a finding that the outcome of the Juvenile Court proceedings would have been different had Attorney Dicke employed different strategy. Such a finding would require speculation and conjecture given the nature of the proceedings.

(Nov. 18, 2022 Order). The trial court sustained the motion and dismissed the

Amended Complaint. This appeal followed. -7- Case No. 2-22-28

II. ASSIGNMENTS OF ERROR

{¶13} Appellants raise a single assignment of error for our review:

Assignment of Error

The trial court committed reversible error by granting a motion to dismiss where the complaint unquestionably stated a valid claim upon which relief could be granted.

III. DISCUSSION

{¶14} In their assignment of error, Appellants argue the trial court erred in

granting Appellees’ Civ.R. 12(B)(6) motion because the Amended Complaint met

the applicable pleading standards and set forth a valid claim for legal malpractice

upon which relief can be granted.

A. Standard of Review

{¶15} “An order granting a Civ.R. 12(B)(6) motion to dismiss is subject to

de novo review.” Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-

Ohio-4362, ¶ 5.

B. Applicable Law

i. Pleading standards and Civ.R. 12(B)(6) standards

{¶16} “A motion to dismiss for failure to state a claim upon which relief can

be granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown

Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. “Thus, the movant may not

rely on allegations or evidence outside the complaint; such matters must be

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excluded, or the motion must be treated as a motion for summary judgment.” Id.;

see also Civ.R. 12(B).

{¶17} “Ohio is a notice-pleading state.” Maternal Grandmother v. Hamilton

Cty. Dept. of Job and Family Servs., 167 Ohio St.3d 390, 2021-Ohio-4096, ¶ 10.

Consequently, the pleading party “is not required to prove his or her case at the

pleading stage.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-45, 573

N.E.2d 1063 (1991). Being a notice-pleading state “means that outside of a few

specific circumstances, such as claims involving fraud or mistake, see Civ.R. 9(B),

a party will not be expected to plead a claim with particularity.” Maternal

Grandmother at ¶ 10. Instead, Civ.R. 8 only requires that a pleading “contain (1) a

short and plain statement of the claim showing that the party is entitled to relief, and

(2) a demand for judgment for the relief to which the party claims to be entitled.”

Civ.R. 8(A). Additionally, “[a]ll pleadings shall be so construed as to do substantial

justice.” Civ.R. 8(F).

{¶18} In determining whether a Civ.R. 12(B)(6) motion should be granted,

“we must accept as true all factual allegations in the complaint.” Sherman v. Ohio

Pub. Emps. Retirement Sys., 163 Ohio St.3d 258, 2020-Ohio-4960, ¶ 17. “‘Those

allegations and any reasonable inference drawn from them must be construed in the

nonmoving party’s favor.’” Id., quoting Ohio Bur. of Workers’ Comp. v. McKinley,

130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 12. While factual allegations in the

pleading must be accepted as true and construed in the pleading party’s favor,

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unsupported legal conclusions—even when cast as factual assertions—are not

presumed to be true for purposes of the motion and are insufficient to withstand

such a motion. State ex rel. Martre v. Reed, 161 Ohio St.3d 281, 2020-Ohio-4777,

¶ 12; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192-93, 532 N.E.2d 753

(1988). Ultimately, to grant a Civ.R. 12(B)(6) motion, “‘it must appear beyond

doubt that the plaintiff can prove no set of facts in support of the claim that would

entitle the plaintiff to the relief sought.’” Sherman at ¶ 17, quoting Ohio Bur. of

Workers’ Comp. at ¶ 12; see also York at 145 (“as long as there is a set of facts,

consistent with the [pleading], which would allow the [pleading party] to recover,

the court may not grant” a Civ.R. 12(B)(6) motion).

ii. Legal malpractice claims

{¶19} “To establish a cause of action 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), syllabus.

{¶20} Regarding the causation requirement in the third element, different

standards of proof will apply depending on whether the theory of the claim places

the merits of the underlying litigation directly at issue. Environmental Network

Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833, ¶ 14-

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21; McCarty v. Pedraza, 2d Dist. Clark No. 2013-CA-42, 2014-Ohio-3262, ¶ 16.

In cases where plaintiffs “arguably sustained damage or loss regardless of the fact

that they would have been successful in the underlying matter(s) in question,” the

plaintiffs need only provide “some evidence of the merits of the underlying claim.”

Vahila at 427; see also McCarty at ¶ 17. On the other hand, the case-within-a-case

doctrine applies when the plaintiffs’ theory of the legal malpractice claim “places

the merits of the underlying litigation directly at issue.” Environmental Network

Corp. at ¶ 18; see also McCarty at ¶ 18; Eastminster Presbytery v. Stark & Knoll,

9th Dist. Summit No. 25623, 2012-Ohio-900, ¶ 7. This standard requires plaintiffs

to “establish that [they] would have been successful in the underlying matter.”

Environmental Network Corp. at ¶ 19; see also McCarty at ¶ 17. Under this

standard, plaintiffs have “the burden of proving by a preponderance of the evidence

that but for [defendant’s] conduct, they would have received a more favorable

outcome in the underlying matter.” Environmental Network Corp. at ¶ 19. Such a

standard is necessary in those cases in order to correspond with “the established rule

that a plaintiff must establish by a preponderance of the evidence that defendant’s

actions were the proximate cause of plaintiff’s losses.” Id. at ¶ 20.

{¶21} Regarding damage or loss, “a client is entitled to compensation for

damages proximately caused by [the] attorney’s malpractice.” Rafferty v. Scurry,

117 Ohio App.3d 240, 245, 690 N.E.2d 104 (12th Dist.1997). This can include, for

example, fees incurred in connection with a subsequently-retained attorney’s

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representation in the underlying action if those fees were incurred to rectify, or

attempt to rectify, the damage the defendant-attorney caused the client. Id. at 247.

C. Analysis

{¶22} As an initial matter, the Amended Complaint in this case shows the

case-within-a-case doctrine will apply. Similar to the scenario in McCarty, the

Resors’ legal malpractice claim links Dicke’s conduct directly to their loss: the

outcome of the custody proceedings (allegedly) would have been more favorable if

Dicke had not (allegedly) breached her duty to them. McCarty, 2014-Ohio-3262, at

¶ 20; see also Eastminster Presbytery, 2012-Ohio-900, at ¶ 8 (applying the case-

within-a-case doctrine where plaintiff claimed that, but for counsel’s failure to

include a properly authenticated document as an exhibit to a motion in the

underlying case, it would have prevailed in the underlying case); Environmental

Network Corp., 2008-Ohio-3833, at ¶ 20 (the case-within-a-case doctrine applied

because, to prove causation and damages, the plaintiffs had to establish that

defendant’s actions resulted in settling the case for less than plaintiffs would have

received had the matter gone to trial). Here, the Resors claim that, but for Dicke’s

actions, their children would have been returned to them following the adjudicatory

hearing (or, at worst, the dependency hearing) and they also would not have had to

engage new counsel to attain that outcome.

{¶23} The Amended Complaint shows the Resors entered into an attorney-

client relationship with Dicke; identifies instances when Dicke (allegedly) breached

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the standard of care she owed to the Resors; and identifies how, as a proximate cause

of those instances of (alleged) breach, the Resors were damaged or suffered loss.

The Amended Complaint also identifies what would have happened if those

instances of (alleged) breach had not happened, namely that the Resors would have

received a more favorable outcome in the underlying matter by regaining custody

of their children more than 200 days earlier than they did after engaging new

counsel. Accepting all factual allegations in the Amended Complaint as true and

construing any reasonable inferences drawn from them in the Resors’ favor, the

Amended Complaint sufficiently states a legal malpractice claim. See, e.g.,

Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 52-53,

65, 70 (reversing the trial court’s dismissal of a legal malpractice claim; the

complaint sufficiently stated a cause of action in alleging an attorney-client

relationship, failures by the attorneys to properly advise plaintiffs, that plaintiffs

would have been in a better financial position but for the attorneys’ improper acts,

and plaintiffs suffered financial damages as a result of the attorneys’ failures);

Deutsche Bank Natl. Trust v. Gillium, 151 Ohio Misc.2d 36, 2009-Ohio-2394, 907

N.E.2d 809, ¶ 9 (C.P.) (DeWine, J.) (denying a motion to dismiss a legal malpractice

claim, pursuant to the “liberal standards for review of a complaint,” where the

complaint alleged defendant-attorney’s actions included failing to meaningfully

communicate with plaintiff and failing to file discovery).

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{¶24} The Appellees’ overarching argument is that the Resors “cannot

demonstrate, without engaging in speculation and conjecture, that the outcome of

the Juvenile Court proceedings would have been different had Attorney Dicke

decided to make certain objections, present certain evidence, or employ different

strategy.” (Appellee’s Brief at 12 (emphasis sic)). However, at the pleading stage,

some speculation is inherent in a claim for legal malpractice involving the case-

within-a-case doctrine. Such a claim is brought because the alleged more favorable

outcome in the underlying matter did not happen; thus, whether it would have

occurred is necessarily speculative. But, analyzing that speculation and determining

whether the plaintiffs have sufficiently proven their claim is best done after the

parties have had the opportunity to gather evidence during discovery and is typically

resolved at the summary judgment or trial stage. See, e.g., Pierson v. Rion, 2d Dist.

Montgomery No. CA23498, 2010-Ohio-1793, ¶ 28, 40 (granting summary

judgment to defendant-lawyer on a legal malpractice claim because the plaintiff

“presented no evidence beyond mere speculation that he would have obtained a

more favorable outcome had” the lawyer not taken a particular action, thus failing

to establish a causal connection between the action and any resulting damage or

loss); Burks v. Peck, Shaffer & Williams, 109 Ohio App.3d 1, 6-7, 671 N.E.2d 1023

(8th Dist.1996) (reversing dismissal of legal malpractice claim; whether the attorney

had a duty under the facts presented depended on the foreseeability of the injury and

was “more appropriately tested using a motion for summary judgment rather than a

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motion to dismiss”). The Resors acknowledge that it will be necessary in this case

for them to offer expert testimony regarding Dicke’s actions and inactions in order

to establish the elements of their legal malpractice claim. (Appellant’s Brief at 23-

24).

{¶25} We do not find that, based on the allegations in the Amended

Complaint, the asserted causal connection between Dicke’s conduct and the Resors’

loss is too speculative as a matter of law to sufficiently plead a legal malpractice

claim. Further supporting this finding is the (alleged) fact that, after the Resors

hired alternate legal counsel, they succeeded in having the three dependency cases

dismissed and gained back custody of their children.

{¶26} In their brief, Appellees rely on the case Franjesh v. Berg, 9th Dist.

Summit No. 17534, 1996 Ohio App. LEXIS 4345, 1996 WL 556899 (Oct. 2, 1996)

to support their assertion: “[W]here a complaint’s allegations as to damages would

require a court to ‘predict exactly how’ a court would have handled a matter within

its discretion, such as the allocation of pension or retirement benefits in dissolution

proceedings, such complaint fails to state an actionable malpractice claim.”

(Appellee’s Brief at 10). The Franjesh case does not support dismissing the

Amended Complaint here. Franjesh did not involve a motion to dismiss; instead, it

involved a motion for summary judgment. Thus, contrary to Appellees’ assertion,

the appellate court in Franjesh did not consider whether the complaint stated an

actionable malpractice claim. Rather, the appellate court in Franjesh ruled that the

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plaintiff did not overcome a summary judgment motion because she “has not

provided any evidence that she would have obtained a more advantageous outcome”

and “has not provided any evidence as to her alleged calculated damages other than

her unsubstantiated claims.” (Emphasis added.) Franjesh, 1996 WL 556899, at *6.

Unlike Franjesh, because the case here is still at the pleadings stage, the parties have

not had a chance to obtain and provide evidence yet.

{¶27} By the same token, Appellees assert: “Moreover, Ohio law is clear

that a plaintiff alleging legal malpractice must prove ‘a calculable financial loss with

a causal connection to the defendant’s conduct.’” (Appellee’s Brief at 9-10, quoting

Seoane-Vazquez v. Rosenberg, 10th Dist. Franklin No. 19AP-16, 2019-Ohio-4997,

¶ 24). Not only did Seoane-Vazquez involve a motion for summary judgment rather

than a motion to dismiss, but, relatedly, the full quote reads: “Evidence must

establish a calculable financial loss with a causal connection to the defendant’s

conduct.” (Emphasis added.) Seoane-Vazquez at ¶ 24. In fact, tellingly, the court

in Seoane-Vazquez in that same paragraph explains: “In a legal malpractice action,

expert testimony is normally necessary to establish both the standard of care and

that the attorney accused of malpractice failed to conform therewith, as well as the

attorney’s conduct was the proximate cause of the damage or loss claimed by the

plaintiff client.” Id. Again, the case here is still at the pleading stage. Appellees

are confusing pleading and motion to dismiss standards with standards from latter

stages in the case. Sacksteder, 2012-Ohio-4452, at ¶ 65, 70 (explaining the

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procedural posture “was simply a motion [to dismiss] to determine if the case could

proceed to discovery”).

{¶28} In Sacksteder, for example, the attorney malpractice claim arose from

a failed sale of one business to another, where the same attorneys had represented

both sides of the transaction. Sacksteder, 2012-Ohio-4452, at ¶ 4. The complaint

alleged the attorney-defendants failed to properly advise client-plaintiffs in the deal,

plaintiffs would have enjoyed a better financial position without the attorney-

defendants’ alleged improper failures, and plaintiffs suffered financial damages as

a result of the attorney-defendants’ failures. Id. at ¶ 4, 53. In their motion to dismiss,

the attorney-defendants argued the plaintiffs could not show the proximate cause of

the alleged damages. Id. at ¶ 56. Similar to Appellees’ argument here, their

argument indicated that causation was too speculative, stressing that the other

company decided not to go through with the deal “likely based on [plaintiff

company’s] financial condition or other factors which would have influenced [other

company] regardless of the [attorney-defendants’] involvement in those

discussions.” (Emphasis sic.) Id. at ¶ 56. The appellate court rejected this argument

and reversed the trial court’s dismissal of the complaint. Id. at ¶ 57-58, 70. The

appellate court explained the analysis of proximate cause and damages was “not a

matter of proof at the pleading stage; it is a matter for trial or, perhaps, for summary

judgment if the facts are undisputed.” Id. at ¶ 57.

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{¶29} In their brief, the Appellees also argue that Dicke’s actions all were

“legitimate litigation strategy.” While this claim may turn out to be true, it is

premature to make that determination based on the allegations in the Amended

Complaint. Again, a party moving to dismiss a complaint may not rely on

allegations or evidence outside the complaint, and the reviewing court must accept

as true all factual allegations in the complaint and construe any reasonable

inferences drawn from them in the nonmoving party’s favor. It is not obvious from

the face of the complaint that Dicke’s actions all were legitimate litigation strategy

such that the legal malpractice claim must necessarily fail.

{¶30} In summary, the Resors are “not required to prove [their] case at the

pleading stage.” York, 60 Ohio St.3d at 144-45. Accepting as true all factual

allegations in the Amended Complaint and construing in the Resors’ favor any

reasonable inferences drawn from them, it does not “appear beyond doubt that [the

Resors] can prove no set of facts in support of the claim that would entitle [them] to

the relief sought.” Sherman, 163 Ohio St.3d 258, 2020-Ohio-4960, at ¶ 17.

Therefore, Appellees’ motion to dismiss was improperly granted. In ruling as we

do, we express no opinion on the merits or even probability of success of the Resors’

claims. Instead, we simply determine that the Amended Complaint survives the

motion to dismiss.

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IV. CONCLUSION

{¶31} For the foregoing reasons, Appellants’ assignment of error is

sustained. Having found error prejudicial to the Appellants in the particulars

assigned and argued, we reverse the judgment of the Auglaize County Court of

Common Pleas. We remand the cause to the trial court for further proceedings.

Judgment Reversed and Cause Remanded.

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/hls

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