Tennant v. Gallick

2014 Ohio 477

• Court: Ohio Court of Appeals
• Decided: February 12, 2014
• Docket: 26827
• Status: Published

Opinion

[Cite as Tennant v. Gallick, 2014-Ohio-477.]

IN THE COURT OF APPEALS

NINTH APPELLATE DISTRICT

SUMMIT COUNTY, OHIO

JEANNETTE TENNANT, : OPINION

Plaintiff-Appellee, : CASE NO. 26827 - vs - :

DONALD GALLICK, :

Defendant-Appellant. :

Civil Appeal from the Akron Municipal Court, Case No. 12 CVF 8512.

Judgment: Affirmed.

Jeannette Tennant, pro se, 25021 Aurora Rd., #207, Bedford, OH 44146 (Plaintiff- Appellee).

Donald Gallick, 190 N. Union St., #201, Akron, OH 44304 (For Defendant-Appellant).

PER CURIAM.

{¶1} Appellant, Donald Gallick, appeals the default judgment entered against

him and in favor of appellee, Jeannette Tennant, in the Akron Municipal Court, Small

Claims Division. At issue is whether the trial court properly entered default judgment

against Gallick. For the reasons that follow, we affirm the judgment of the trial court in

the amount of $3,000 plus court costs and interest at the rate of 3% per annum from the

date of judgment. {¶2} Tennant filed a small-claims complaint on September 10, 2012, alleging

that Gallick breached the parties’ contract by failing to file an appeal for her son in the

Ohio Supreme Court by the deadline for such filing, which Gallick told Tennant was

September 14, 2011. Tennant prayed for damages in the amount she paid Gallick, i.e.,

$3,000, due to his failure to file the appeal by the deadline as he agreed to do.

{¶3} The complaint was duly served on Gallick with a notice and summons,

which provided in part: “The court will hold a hearing on this claim on October 13, 2012,

at 10:45 AM, in the Akron Municipal Court * * *. REPORT TO ROOM 715.” The notice

and summons further provided: “If you do not appear at the time and place indicated

above, judgment may be entered against you by default * * *.” The certified mail receipt

in the record shows that it was signed by Gallick or on his behalf on September 12,

2012.

{¶4} On October 2, 2012, Gallick filed a motion to dismiss the complaint. In his

motion, Gallick conceded he did not timely file a notice of appeal in the Ohio Supreme

Court. As an excuse for his late filing of the notice of appeal, he argued he had difficulty

locating Tennant’s son, Tito Marrero, in prison and he also had to prepare for trials in

two other cases. As a result, he did not file the appeal in the Supreme Court until

October 19, 2011, more than one month late. On that date, he also filed a motion for a

delayed appeal. The Supreme Court denied the motion and dismissed the appeal.

Gallick argued in his motion to dismiss that, even if he was guilty of malpractice,

Tennant’s claim must be dismissed. He argued that only a client can sue an attorney

for malpractice and that he only represented Tennant’s son. He argued that Tennant

thus lacked standing to sue him for malpractice.

2 {¶5} The case proceeded to hearing on October 13, 2012 as scheduled. While

Tennant appeared, Gallick did not. The magistrate noted that, while Gallick was not

present, he had filed a motion to dismiss, arguing that Tennant was not the proper party

to bring this action. As a result, the magistrate took evidence concerning the basis for

Tennant’s claim.

{¶6} Tennant testified that on September 6, 2011, she and Gallick met and

entered into an oral agreement, pursuant to which she retained him. She said she

recorded a telephone conversation between her and Gallick shortly before their meeting

and this recording is evidence of their contract. The recording, which was admitted in

evidence, revealed the following conversation:

{¶7} ATTORNEY GALLICK: Oh, hello. This is Attorney Donald Gallick

calling back.

{¶8} MS. TENNANT: Yes.

{¶9} MR. GALLICK: I told you I was going to look into this.

{¶10} MS. TENNANT: Yes, you did.

{¶11} MR. GALLICK: I read the opinion that Judge Whitmore wrote. It - -

it looks like your son really got a bad deal. You know, I read about

the search warrant and them searching the bag.

{¶12} MS. TENNANT: Right.

{¶13} MR. GALLICK: That is probably a case that needs to be sent to the

Ohio Supreme Court.

{¶14} MS. TENNANT: Okay.

3 {¶15} MR. GALLICK: That can be done. That opinion came out August

1st[, 2011].

{¶16} * * *

{¶17} MR. GALLICK: That would have to go to the Ohio Supreme Court

by about September 14th.

{¶18} MS. TENNANT: Right.

{¶19} MR. GALLICK: And, so, it’s not a lot of time, but it could be done.

(Emphasis added.)

{¶20} Tennant testified that her son, Tito Marrero, was in prison at that time.

She said she “hired” Gallick to file an appeal for her son in the Ohio Supreme Court by

September 14, 2011. She said she also hired Gallick to file a motion to reopen her

son’s appeal in the Ninth District Court of Appeals.

{¶21} Tennant testified that, although Gallick told her the appeal in the Supreme

Court had to be filed by September 14, 2011, he did not file it until after that date.

{¶22} Tennant testified that Gallick also entered a written contract with her son,

dated September 6, 2011. She submitted a copy of this contract at the hearing. That

agreement provided that Gallick was to “provide legal representation in an appeal to the

Ohio Supreme Court and possible ‘re-opening’ of an appeal in the Ninth District Court of

Appeals.” The agreement recited the fee was $4,000; that $2,000 was paid on

September 6, 2011; and that the balance would be paid in monthly installments.

{¶23} Tennant testified she paid Gallick $2,000 on September 6, 2011. She also

presented copies of money orders she used to pay him an additional $1,275, for a total

of $3,275. In addition, she offered in evidence a list of all her payments to Gallick.

4 {¶24} Tennant also offered into evidence a “General Power of Attorney,” dated

September 6, 2011, signed by her son, which authorized her to, inter alia, conduct any

and all lawful business “on his behalf” and to sue for all such sums of money which

were “owed to him.”

{¶25} Tennant testified that, due to Gallick’s failure to meet the deadline to file

the documents he agreed to timely file, she was entitled to a refund of the money she

paid him for legal services, which was $3,275.

{¶26} Since Gallick did not attend the hearing, he presented no testimony or

other evidence disputing Tennant’s testimony. Specifically, he presented no defense to

Tennant’s testimony that he breached the parties’ contract.

{¶27} On October 22, 2012, the magistrate entered her decision. She found that

Tennant met with Gallick on September 6, 2011, regarding a legal matter involving her

son. The magistrate found that “the main issue that was stressed in her meeting with

Attorney Gallick was that the paperwork with the Ohio Supreme Court had to be filed by

September 14, 2011.” Further, the magistrate found the parties orally agreed that

Gallick would file an appeal for her son in the Ohio Supreme Court by the September

14, 2011 deadline and a motion to reopen in the Ninth District, and Tennant would pay

Gallick $3,275 for these services. The magistrate found that Gallick failed to meet the

Ohio Supreme Court deadline, but instead filed a motion for a delayed appeal, which

the Supreme Court denied. She found that Gallick filed a motion to reopen in the Ninth

District, but that motion was also denied. The magistrate found that Tennant would not

have hired Gallick if he had not advised her he would meet the Ohio Supreme Court

deadline. She found that Tennant had authority to sue Gallick because she had an oral

5 contract with him, wherein he agreed to file an appeal by September 14, 2011.

Alternatively, she found that Tennant had authority to sue Gallick because she was in

privity with Marrero by virtue of the power of attorney he gave her. The magistrate

found that, because Gallick failed to appear at the hearing, Tennant was entitled to

default judgment in the amount of $3,000, the monetary jurisdictional limit of the court.

Gallick filed objections to the magistrate’s decision.

{¶28} On February 11, 2013, the trial court entered judgment. The court denied

Gallick’s motion to dismiss, finding that the complaint alleged a breach of contract and

that Tennant presented evidence of an implied contract between the parties. Further,

the court found that, because Gallick failed to appear at the hearing, default judgment

was appropriate. The court adopted the magistrate’s decision, impliedly overruling

Gallick’s objections. We note the trial court in its judgment inadvertently referred to the

hearing as a “mediation hearing” when, in fact, the hearing held by the magistrate was

the hearing on the complaint, not a mediation hearing.

{¶29} Gallick timely appeals, asserting five assignments of error. Because we

dispose of each on identical grounds, they are considered together. They allege:

{¶30} “[1.] The trial court erred when it failed to reject the magistrate’s finding

that a non-client can sue an attorney for a civil dispute involving legal services.

{¶31} “[2.] The trial court erred by failing to reject the magistrate’s report allowing

a third-party [sic] to use a general power of attorney form to file a lawsuit on behalf of

another.

6 {¶32} “[3.] The trial court erred by failing to find that it is a denial of due process

to allow a non-client to sue an attorney for legal malpractice because the attorney

cannot disclose communications between the attorney and client.

{¶33} “[4.] The trial court erred when it adopted a judgment based on legal

malpractice without requiring an expert opinion finding conduct outside the standard of

care.

{¶34} “[5.] The trial court erred when it found that plaintiff’s verbal agreement

could be the basis for quasi contract liability when there was a written contract between

defendant and his client.”

{¶35} Gallick argues that the de novo standard of review applies to each of his

assignments of error. However, the standard of review for small claims court

proceedings is abuse of discretion. Video Discovery, Inc. v. Passov, 8th Dist. Cuyahoga

No. 86445, 2006-Ohio-1070, ¶7. Further, when reviewing the trial court’s ruling on

objections to a magistrate’s decision in small claims court, this court must determine

whether the trial court abused its discretion in reaching its decision. Fields v. Cloyd, 9th

Dist. Summit No. 24150, 2008-Ohio-5232, ¶9. Thus, the abuse-of-discretion standard

applies to each of Gallick’s assignments of error. This court has recently held that an

abuse of discretion exists where the reasons given by the court for its action are clearly

untenable, legally incorrect, or amount to a denial of justice, or where the judgment

reaches an end or purpose not justified by reason and the evidence. In re

Guardianship of S.H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶9.

{¶36} “‘R.C. Chapter 1925 sets out procedures for the small claims division of

the municipal court. Pursuant to R.C. 1925.16, the Ohio Rules of Civil Procedure apply

7 to actions in the Small Claims Court to the extent they are not inconsistent with the

procedures provided in R.C. Chapter 1925.’” Miller v. McStay, 9th Dist. Summit No.

23369, 2007-Ohio-369, ¶8, quoting Shokles v. Beatley, 10th Dist. Franklin No.

95APG05-665, 1995 Ohio App. LEXIS 5630, *5 (Dec. 19, 1995). Under R.C.

1925.05(A), small claims courts are permitted to enter default judgment where a

defendant fails to appear at a hearing. Shokles, supra, at *8. Default judgment may be

entered against a defendant who fails to appear at a hearing regardless of whether the

defendant answered the complaint, as “‘no answer is required of a defendant in the

small claims division.’” Miller, supra, quoting Shokles, supra. “‘R.C. 1925.05(A) * * *

suggests the failure to appear at hearing constitutes an admission of liability, much as

the failure to file an answer in the general division of the municipal court constitutes an

admission of liability.’” (Emphasis added.) Miller, supra, quoting Shokles, supra.

{¶37} Here, the record reflects that Gallick received notice on September 12,

2012 that default judgment could be entered against him if he failed to attend the

October 13, 2012 hearing. This notice included the language required under R.C.

1925.05(A) for notifying a person that judgment may be entered against him or her for

default.

{¶38} Gallick argued in the trial court that, because he filed a motion to dismiss,

he was not required to file an answer while his motion to dismiss was pending, implying

the trial court was not permitted to enter default judgment. While Gallick abandons this

argument on appeal, we note that it lacks merit. In Sheaff v. Conese, 12th Dist. Butler

No. CA-2001-10-242, 2002-Ohio-5607, the Twelfth District held that the defendant’s

pending motion to dismiss the plaintiff’s claim did not preclude the small claims court

8 from rendering default judgment against the defendant who failed to appear for trial.

This court cited Sheaff with approval in McStay, supra, at ¶14. Thus, Gallick’s pending

motion to dismiss did not prevent the trial court from entering default judgment against

him due to his failure to appear at trial.

{¶39} The trial court was therefore authorized to enter default judgment against

Gallick. For this reason alone, his assignments of error lack merit. Further, by failing to

attend the small claims trial, Gallick did not present any evidence in support of his

objections. Thus, his objections are not supported by the record. For this additional

reason, his assigned errors lack merit.

{¶40} Tennant assigns four errors, which she incorrectly refers to as

“assignments of error.” They contend:

{¶41} “[1.] Appellee first motion [sic throughout] requesting the case be

dismissed because appellant failed to timely file the brief under App.R. 18 RULE.

{¶42} “[2.] The trial court erred by failing to place Gallick under oath or

mandating him to be on the record via an affidavit.

{¶43} “[3.] Transcript of proceedings that occurred 23th day of January, 2013,

requesting via a motion filed before this brief and a copy included within appellee brief.

{¶44} “[4.] Partial transcript recorded telephone conversation of Tennant and

Gallick extended at mediation to magistrate Susan Baker-Ross and a copy included

within appellee brief.”

{¶45} Each of Tennant’s purported assignments of error lacks merit as each is

not the proper subject of an assignment of error.

9 {¶46} For the reasons stated in the opinion of this court, the assignments of

error are overruled. It is the judgment and order of this court that the judgment of the

Akron Municipal Court, Small Claims Division, awarding Tennant $3,000 plus court

costs and interest at the rate of 3% per annum from the date of judgment, is affirmed.

{¶47} There were reasonable grounds for this appeal.

{¶48} We order that a special mandate issue out of this Court, directing the

Akron Municipal Court, Small Claims Division, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

{¶49} Immediately upon the filing hereof, this document shall constitute the

journal entry of judgment, and it shall be file stamped by the Clerk of the Court of

Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk

of the Court of Appeals is instructed to mail a notice of entry of this judgment to the

parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

{¶50} Any and all pending motions are denied as moot.

{¶51} Costs to be taxed against appellant.

_____________________________________ PRESIDING JUDGE TIMOTHY P. CANNON Eleventh Appellate District, Sitting by Assignment.

JOSEPH J. VUKOVICH, J., Seventh Appellate District, Sitting by Assignment,

CYNTHIA WESTCOTT RICE, J., Eleventh Appellate District, Sitting by Assignment,

concur.