Toliver v. Duwel

2012 Ohio 846

• Court: Ohio Court of Appeals
• Decided: March 2, 2012
• Docket: 24768
• Status: Published

Opinion

[Cite as Toliver v. Duwel, 2012-Ohio-846.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

NANCY S. TOLIVER : : Appellate Case No. 24768 Plaintiff-Appellant : : Trial Court Case No. 09-CV-3189 v. : : DAVID M. DUWEL, et. al : (Civil Appeal from : (Common Pleas Court) Defendants-Appellees : : ...........

OPINION

Rendered on the 2nd day of March, 2012.

...........

NANCY S. TOLIVER, 614 Kenilworth Avenue, Dayton, Ohio 45405 Plaintiff-Appellant, pro se

JAMES T. AMBROSE, Atty. Reg. #0011151, One First National Plaza, 130 West Second Street, Suite 2101, Dayton, Ohio 45402 Attorney for Defendants-Appellees

.............

FAIN, J.

I. Introduction

{¶ 1} Plaintiff-appellant Nancy Toliver appeals, pro se, from a summary judgment

rendered in favor of defendants-appellees David Duwel and David M. Duwel & Associates on

Tolliver’s legal malpractice claim. Toliver’s brief contains eight assignments of error, which

allege both procedural and substantive errors in the trial court proceedings. We conclude that 2

no error occurred. The magistrate and trial court did not fail to follow local rules or the Ohio

Rules of Civil Procedure during the trial court proceedings. The trial court also did not err in

rendering summary judgment. Toliver failed to submit evidence raising genuine issues of

material fact on her claims. Accordingly, the judgment of the trial court is Affirmed.

II. Factual Background

{¶ 2} The undisputed facts presented to the trial court are as follows.

Plaintiff-appellee Nancy Toliver began working for Montgomery County Jobs and Family

Services (MCJFS) in September 1999. Toliver was employed as an Account Clerk II, in the

auditing department, auditing payment summaries. In 2000, Toliver joined a union,

AFSCME, Local 101. She became a union steward in 2004 or 2005, and ran for chapter chair

in 2006, eventually winning the seat in a run-off election.

{¶ 3} In early December 2007, the Union charged Toliver with having violated its

International Constitution. In mid-December 2007, Toliver consulted defendant-appellee

David Duwel, an attorney who handles various civil matters, including employment, corporate,

business, and real estate cases. Toliver wanted legal assistance because she believed the

Union had filed false charges against her and was trying to expel and fine her. Duwel had

been recommended to Toliver by another attorney.

{¶ 4} Duwel and Toliver signed a Retainer and Fee Agreement on December 26,

2007, pursuant to which Toliver retained Duwel and his firm, David M. Duwel & Associates,

to act on her behalf for claims before the “SERB” (State Employee Relations Board) and the

“Judicial Panel” (a hearing panel of Local 101). Paragraph 4 of the agreement states that:

The Firm agrees to pursue Client’s claim through appropriate 3

administrative, legal, or other procedures, to negotiate a settlement of the claim

(all settlements subject to Client’s approval) or to prosecute the claim to final

determination and to do and perform all other acts which, in the judgment of

the Firm, are necessary to enforce and protect the rights of the Client. The

Firm may exercise its professional judgment as to the manner of seeking relief.

Toliver Deposition Exhibit A, p. 1.

{¶ 5} The agreement required Toliver to pay Duwel a $2,000 retainer for the initial

investigation and handling of the claim. Toliver agreed to be billed at $200 per hour, with the

hourly amounts to be billed against the retainer. She further agreed to be billed at he end of

each calendar month, and to pay an additional $2,000 retainer upon being notified that the

initial retainer had been exhausted. Finally, the agreement provided for termination at any

time by either party, consistent with the law and the firm’s professional responsibility and

ethical obligations.

{¶ 6} Toliver had many issues while Duwel represented her. Initially, there were

two Union-related issues. One matter involved the Union’s attempt to discipline Toliver,

which was the subject of a Judicial Panel hearing. The other matter involved charges that

Toliver had filed against the Union, being Case No. 07-ULP-12-0670, which Toliver, herself,

had filed with SERB in late December 2007. Duwel’s role was to provide Toliver with legal

advice on her SERB charges against the Union, and to appear in person and represent her in

connection with the Judicial Panel hearing. Duwel did not appear for, nor did he attend,

every matter Toliver had filed against the Union, because he did not think those matters were

going to be productive for her, and he did not want her to be charged additional fees.

{¶ 7} In January 2008, Duwel spent approximately 3.65 hours obtaining information 4

and investigating the Union’s charges against Toliver, and reviewing Toliver’s response to

SERB on the charges she had filed against the Union. This work resulted in a total of $730

incurred towards the $2,000 retainer.

{¶ 8} The Union charges against Toliver arose from a situation in which Toliver had

suspended Greg McKee, who had been nominated as a sergeant-at-arms. McKee had been

attending labor management meetings during a period of time that Toliver was on leave from

employment, and Toliver did not believe that McKee should be attending the meetings. After

returning from leave, Toliver told McKee that he would not be attending the management

meeting that was to be held in November 2007. When McKee informed her that he planned

to attend anyway, Toliver felt “threatened,” and suspended him. Toliver stated in her

deposition that she did not know if she had the power to do this, but suspended McKee to

prevent him from attending the meeting and to deter him from challenging her authority.

{¶ 9} When Duwel initially met with Toliver, she did not tell him that she had done

anything wrong. She alleged that the Union president, Ken Sulfridge, had committed various

violations of the international and local constitutions, that the Union had treated her

wrongfully, and that the Union was actively harassing her.

{¶ 10} In February 2008, Duwel spent an additional 2.9 hours reviewing his file

and preparing for the Judicial Panel hearing with the Union, reviewing documents sent by

Toliver, and responding to Toliver’s questions. This accounted for another $580 to be

charged against the retainer. In addition, Duwel attended the Judicial Panel hearing at the

Union hall on February 22, 2008, for which he charged Toliver 1.0 hours, or a cost of $200.

At this point, $1,510 of the retainer had been expended.

{¶ 11} Because Duwel had not been able to effect an informal resolution of the 5

Union charges against Toliver, he and Toliver attended the Judicial Hearing at the Union hall.

Before attending the meeting, Duwel had agreed with Toliver that Union subchapter officers

did not specifically include a sergeant-at-arms position like the one given to McKee.

However, at the hearing, it became apparent to Duwel that the charges against Toliver were

not false, because she did not have the right as a subchapter chairperson to expel anyone from

the Union. In addition, Duwel learned that McKee had the right to be present at meetings as a

sergeant-at-arms.

{¶ 12} During January and February, and at the hearing, Duwel identified the

problem Toliver was having with the Union. It did not really have much to do with whether

Toliver was guilty of something, but involved problems in communication. Union personnel

had not been talking with Toliver, because she and Sulfridge were involved in some sort of

feud, where they were sending letters back and forth or yelling at each other.

{¶ 13} At the hearing, Duwel attempted to set up a process where the parties

could go forward and stop yelling at each other, and where Toliver would be able to get on

with her duties. Duwel was able to convince the Judicial Panel members that if Toliver had

made a mistake, she had not done so purposely, and that the Union needed to do a better job of

communicating with its chairpersons. Thus, while the Judicial Panel issued a decision on

February 26, 2008, concluding that Toliver was guilty of the charges, the panel also observed

that Toliver was a new chairperson and felt she had not received adequate training. The

panel, therefore, did not fine or expel Toliver. Instead, it held that the prior written notice

from Sulfridge, informing Toliver that a chapter chair does not have the power to suspend an

elected member, would serve as a formal reprimand to Toliver. Toliver was advised that she

could appeal the decision by contacting the Ohio Council 8, in Worthington, Ohio. 6

{¶ 14} Duwel concluded that the decision was a great result, because Toliver had

not been suspended, expelled, or fined, which were consequences she originally faced.

Instead, she had only received a reprimand. The Union also said it would offer more help in

communicating with Toliver. Duwel advised Toliver that appeal would be fruitless, because

she had not had the authority to suspend McKee. Nonetheless, Toliver elected to appeal the

decision on her own, and a hearing was set on the matter for May 3, 2008. The hearing was

then continued until June 7, 2008, because Duwel would not be in town on the original date.

Construing the facts most strongly in Toliver’s favor, Duwel did initially agree to attend the

hearing with Toliver.1

{¶ 15} In addition to having issues with her Union, Toliver had issues at her place

of employment. Toliver was on leave from work between May 18, 2007, and October 2007,

receiving temporary total compensation from the Workers’ Compensation Fund. Joseph

Gibson was Toliver’s attorney for the Workers’ Compensation claim. When Toliver returned

to work, she was placed on transitional duty. She was then returned to regular duty. On

February 15, 2008, Toliver’s supervisor told her that in order to stay on the job, she had to

obtain “restrictions.”2 Eventually, Toliver was placed on a leave of absence on March 18,

2008, because she could not perform her job. The leave of absence was without pay, because

Toliver refused to use her sick leave, annual leave, and personal leave in order to get paid.3

1 Toliver testified that Duwel agreed to attend. Duwel testified that he probably agreed to attend, but that he could not recall specifically. He stated that he would only have been at the hearing to provide moral support, because Toliver was not going to be successful in the appeal. 2 Toliver testified to this, but did not explain what was meant by “restrictions.” 3 This is based on Toliver’s testimony, not any other evidence that was presented in the record. 7

Toliver filed a grievance with the Union and also filed a discrimination charge with the Ohio

Civil Rights Commission (OCRC), contending that her employer, MCJFS, had unlawfully

discriminated against her because of her disability and in retaliation. Duwel was not

involved in either filing.

{¶ 16} On March 18, 2008, MCJFS sent Toliver correspondence regarding her

group benefits during her leave of absence without pay due to a work-related injury or illness.

The letter stated that the Human Resources Department had received notice of Toliver’s leave

of absence without pay due to a work-related injury or illness, effective March 18, 2008,

extended through April 18, 2008. The letter scheduled Toliver to return to work on May 19,

2008, and told her to submit a new medical statement if she planned not to return then. The

letter also said that Toliver would be placed on a disability separation, effective April 10,

2008.

{¶ 17} Disability separation, according to the letter, occurs if an employee cannot

return to work at the end of twelve months due to a disabling condition. It was defined as a

termination with reinstatement rights for up to three years. The letter indicated that Toliver

was responsible for contacting her supervisor before the end of her leave of absence regarding

whether she would return to work or wished to proceed with her disability separation. In

addition, the letter gave Toliver information on applying for disability retirement under the

Public Employees Retirement System.

{¶ 18} On April 25, 2008, OCRC called Toliver and said that MCJFS wanted to

mediate the discrimination charge. The mediation was set for April 28, 2008. Toliver

contacted Duwel’s office to ask if he would attend the mediation, and Duwel agreed. Duwel

and Toliver met on April 28, 2008, and then attended the mediation for about two hours. 8

{¶ 19} On April 28, 2008, Toliver signed an agreement to mediate, which

indicated that mediation was voluntary and could be terminated at any time by either party.

At the mediation held the same day, Toliver and MCJFS signed a conciliation agreement, in

which Toliver released and agreed not to sue MCJFS for any claims arising under R.C.

Chapter 4112 that were the subject of the OCRC charge. MCJFS also agreed to let OCRC

monitor its compliance with the terms of the agreement and file a complaint seeking

enforcement of the agreement. The agreement further provided that Toliver would provide a

written request for reinstatement to the position of Account Clerk II, effective May 18, 2008,

with no restrictions with a narrative from her treating provider. Toliver also agreed to attempt

to make an appointment with her physician, Dr. Mesgali, for her carpal tunnel issue, so that

she could take a narrative from her physician to a physical examination at Med Works the

week of May 12, 2008.4

{¶ 20} Under the agreement, MCJFS agreed to reinstate Toliver if she were

released by her physician’s exam with no restrictions, and to provide her with a lateral transfer

as an account clerk to another unit. This would have allowed Toliver to leave a supervisor

with whom she did not get along, and to have a supervisor of whom she approved. Toliver

signed the agreement. Construing the facts most strongly in Toliver’s favor, Toliver believed,

despite signing the agreement, that it was “tentative.”5

4 In the case before us, two copies of the signed OCRC agreement were presented. One states that Toliver would “attempt” to make an appointment, and the other says that Toliver “would make” an appointment with her physician, Dr. Mesgali. In Toliver’s prior appeal, Toliver presented a version that includes the “attempt” to make an appointment language. We accept that as the established version. See Toliver v. Montgomery Cty. Jobs & Family Servs., 2d Dist. Montgomery No. 22979, 2009-Ohio-3521, ¶ 11 (Toliver I). In any event, we do not find the difference in language to be material. 5 The agreement, which is signed by the parties and their attorneys, as well as the mediator, Vicki Burns, does not indicate that it is 9

{¶ 21} The next day, on April 29, 2008, Toliver received a letter on Montgomery

County, Ohio letterhead, which was apparently signed by Stephanie Echols, Human Resources

Director. The letter was dated April 23, 2008, and the envelope was post-marked April 28,

2008. According to the letter, the Board of Commissioners for Montgomery County had

approved Toliver’s disability separation, effective April 9, 2008. Like the letter of March 18,

2008, this letter indicates that disability separation is a termination of employment with

reinstatement rights for up to three years. The letter further states that:

You may be reinstated to a position in the classification you held at the

time of separation at any time within your reinstatement period by submitting a

written request. The request must include a medical examination or

satisfactory documentation that the disability no longer exists.

{¶ 22} Toliver called the mediator on April 29, and told her that she did not want

the agreement to go forward as a final agreement. Toliver did not indicate what, if anything,

the mediator said in response. Toliver also called Duwel’s office and left a message about the

letter she had received. There is no dispute about the fact that Duwel, Toliver, and Robert

Guehl, the prosecuting attorney representing MCJFS, were all unaware of the April 23, 2008

letter and the action of Board of Commissioners at the time the mediation agreement was

signed.

{¶ 23} Duwel met with Toliver in his office on Friday, May 2, 2008. Believing

she had been “terminated,” Toliver was upset. Duwel indicated that the disability separation

“tentative,” and Toliver never successfully articulated why she believed it was tentative, other than the fact that she was not “super-comfortable” signing it, and that Duwel had said “let’s make it tentative, if we could get into the doctor.” Toliver Deposition, p. 64. 10

letter was not effective, due to the OCRC agreement. After reviewing the April 23, 2008

letter, Duwel faxed it to Guehl, while Toliver was in Duwel’s office. Guehl subsequently

agreed with Duwel that the disability separation or termination letter was not effective,

because it violated the terms of the OCRC mediation agreement.

{¶ 24} In March and April 2008, Duwel spent an additional 4.3 hours reviewing

documents, meeting with Toliver, and attending the mediation, resulting in total further

attorney fees of $860. Duwel sent Toliver a bill on April 30, 2008, indicating that she had

used all of the $2,000 retainer, and that she owed an additional amount of $370.

{¶ 25} On May 5, 2008, Toliver sent Duwel a letter dated May 3, 2008,

expressing dissatisfaction with his services and requesting a return of the $2,000 retainer.

Toliver also asked Duwel to eliminate the outstanding additional charges ($370). Duwel did

not receive the letter until May 7, 2008.

{¶ 26} On Monday, May 5, 2008, Toliver met with attorney Jason Matthews, an

attorney with Silverstein and Associates. Matthews called Duwel on May 7, 2008, and

indicated that he was representing Toliver now, that Toliver wanted her file back, and that she

was very upset with Duwel because Duwel had “lied” to her about the termination. Duwel

did not speak with Toliver again after that time, because she was represented by other counsel,

and speaking with her would violate his professional responsibilities. Duwel also took no

further action with regard to Toliver’s legal matters, because he was no longer representing

her.

{¶ 27} On May 13, 2008, Toliver sent Duwel another letter, asking that he return

any and all documents in his possession. At the time Duwel received this letter, he was under

the impression that Toliver was being represented by Matthews. Duwel called Matthews and 11

also wrote him a letter, requesting that Matthews ask Toliver not to deal directly with him, and

to communicate through Matthews.

{¶ 28} On May 22, 2008, the OCRC issued a decision ratifying the conciliation

agreement. Toliver was notified that she had the right to obtain judicial review of the

decision, and must file a petition for judicial review within thirty days of the mailing of the

order. Duwel received a copy of the decision, but took no action other than placing the

document in his file, because he no longer represented Toliver. Toliver received the order

on May 23, 2008, but did not file any documents with the Montgomery County Common

Pleas Court until July 9, 2008. Toliver I, 2009-Ohio-3521, at ¶ 17. The common pleas court

dismissed the appeal for lack of jurisdiction, and we affirmed the dismissal in July 2009,

because Toliver failed to comply with the jurisdictional requirements in R.C. 4112.06(H). Id.

at ¶ 34.

{¶ 29} Toliver again wrote to Duwel on May 24, 2008, asking that he refund the

$2,000 retainer fee, that he reduce any other fees owed to zero, and that he return the

documents in his file. Duwel received the letter on May 28, 2008. At the time, the

documents Toliver had requested were waiting at the front desk in his office to be picked up

by Toliver. It was Duwel’s understanding that Toliver wanted to pick up the documents.

And, because Toliver had said the documents had to be returned at his expense, Duwel

assumed she meant the copying expense, not that the documents needed to be mailed to her.

{¶ 30} On June 2, 2008, Duwel sent an e-mail to Matthews, responding to the

comments Toliver had made about his services in her May 3, 2008 letter. The first paragraph

of the e-mail reads as follows:

As I understand, you are now representing Ms. Toliver regarding her 12

Ohio Civil Rights Commission charge and her matters associated with the

Union. As we discussed on May 7, 2008, I am, by this letter responding to

Ms. Toliver’s four-page latter dated May 3, 2008, and received on May 7,

2008. Toliver Exhibit 32, p. 2, identified at Duwel Deposition, also identified

during Toliver Deposition as Exhibit E.

{¶ 31} Duwel also indicated in the e-mail that his office had issued a credit to

Toliver for the full amount of her outstanding bill with his office. He stated that the hours

worked on Toliver’s various issues exceeded the amount of the retainer, and that his office had

not charged Toliver for all the hours that had been worked. And finally, Duwel told

Matthews that Toliver was a very nice lady, but did not trust many people and seemed to focus

on negative, rather than positive, matters.

{¶ 32} After receiving Duwel’s e-mail, Matthews sent Toliver a letter dated June

6, 2008, and included a copy of Duwel’s e-mail. Matthew’s letter indicates that Duwel had

recently forwarded communications to their office, believing that they (Silverstein and

Associates) were currently representing Toliver. Matthews then stated that:

As you and I discussed on June 7, 2008, I do not believe that we can be

of assistance in your matter involving the OCRC. I have enclosed the

correspondence that I have received from Mr. Duwel. Please contact me if

you have any further questions. Id.

{¶ 33} The hearing on Toliver’s appeal of the Union reprimand took place on June

7, 2008, which was a Saturday. Neither Duwel nor Matthews attended the hearing. Prior to

the hearing date, Duwel’s office had called Toliver to let her know that the documents were

available for pickup, but Toliver failed to pick them up. After May 5, 2008, Toliver never 13

asked Duwel to attend any hearings on her behalf, nor did she ask him to furnish her with

further legal services.

{¶ 34} Toliver attended the hearing on June 7, 2008, which resulted in a decision

upholding the reprimand that had been issued. Again, Toliver was neither fined nor expelled,

and was told the reprimand would stay in her file for six months.

{¶ 35} Toliver had also filed an appeal of her disability separation from the

county. On June 27, 2008, SERB disaffirmed the order of involuntary separation, meaning

that the April 23, 2008 letter terminating Toliver’s employment was no longer operative. As

was noted, Toliver challenged the OCRC order adopting the mediation agreement, but her

case was ultimately dismissed because she failed to timely file her appeal within a month after

the May 22, 2008 mailing of the OCRC order. Toliver I, 2009-Ohio-3521, at ¶ 34.

{¶ 36} In April 2009, Toliver filed a legal malpractice action against Duwel,

alleging that he had negligently represented her and had charged excessive fees. Toliver filed

the action pro se. Toliver filed an amended complaint in May 2009, adding Duwel’s firm as a

defendant.

{¶ 37} After receiving extensions of time to name an expert witness, Toliver filed

a motion for summary judgment in February 2010; her motion was not supported by the

affidavit of an expert witness. Duwel also filed a motion for summary judgment, which was

supported by depositions and the affidavit of Duwel, who outlined his qualifications as an

attorney, and averred to a reasonable degree of professional, legal probability or certainty, that

he did not violate the standard of care owed to Toliver while furnishing legal services to her.

{¶ 38} Toliver did not furnish an affidavit from an expert regarding her claims,

despite being cautioned on various occasions about the ramifications of failing to provide 14

admissible and relevant evidence to oppose summary judgment. In May 2010, a magistrate

concluded that summary judgment should be rendered in Duwel’s favor. Toliver filed

objections to the magistrate’s decision, and the trial court held a hearing in August 2010, on

the objections. In July 2011, the trial overruled the objections, adopted the magistrate’s

findings of fact as its own, and rendered summary judgment in favor of Duwel and Duwel &

Associates.

{¶ 39} Toliver appeals from the summary judgment rendered against her.

III. Did the Magistrate Fail to Follow Procedural Rules?

{¶ 40} Toliver’s First Assignment of Error is as follows:

{¶ 41} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

PLAINTIFF AND ABUSED ITS DISCRETION IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF THE DEFENDANTS WHEN THE MAGISTRATE FAILED TO FOLLOW

THE RULES GOVERNING HIS APPOINTMENT AND ABUSED ITS DISCRETION AND

VIOLATED LOCAL AND CIVIL RULES WHEN HE RECOMMENDED THE

MAGISTRATE DECISION TO THE TRIAL COURT FOR ADOPTION.”

{¶ 42} Toliver’s argument under this assignment of error is not clear, but what she

appears to be contending is that the magistrate erred by failing to hold an evidentiary hearing

after the case was referred. Toliver does not cite case law supporting her assertion, and refers

only generally to Civ. R. 53 and Loc. R. 2.31 of the Court of Common Pleas of Montgomery

County, General Division, both of which govern proceedings before magistrates.

{¶ 43} Civ. R. 53(C) provides that magistrates have the authority to assist courts

of record, and the rule authorizes magistrates “to do any of the following: (a) Determine any

motion in any case; (b) Conduct the trial of any case that will not be tried to a jury; (c) Upon 15

unanimous written consent of the parties, preside over the trial of any case that will be tried to

a jury * * *.”

{¶ 44} In the case before us, the trial court referred the matter to a magistrate in

November 2009. All parties subsequently signed an order consenting to a jury trial to be

heard before the magistrate. In addition, the parties filed cross-motions for summary

judgment, which the magistrate resolved in May 2010, by concluding that summary judgment

should be rendered in favor of the defendants.

{¶ 45} Civ. R. 56(C) provides that summary judgment motions “shall be served at

least fourteen days before the time fixed for hearing. The adverse party, prior to the day of

hearing, may serve and file opposing affidavits.” We have previously noted that:

The court may in its discretion hold a hearing on the motion to hear oral

arguments or objections to evidence proffered. However, because Civ.R.

56(C) limits the parties' submissions to documentary evidence, evidentiary

hearing on the merits of the motion are not available. The proceedings are

instead governed by Civ.R. 7(B)(2), which permits the court to direct the

submission and determination of motions “without oral hearing upon brief

written statements of reasons in support and opposition.” (Citations omitted.)

Estate of Murrell Waters v. Promet Service, LLC, 2d Dist. Montgomery No.

20481, 2005-Ohio-2534, ¶ 13.

{¶ 46} Thus, the magistrate was not required to hold an oral hearing on the

motions for summary judgment, but could issue a decision based on the written memoranda

and submissions of the parties. We note that the trial court did hold an oral hearing on

Toliver’s objections to the magistrate’s decision, and the transcript of that hearing has been 16

filed and considered on appeal.

{¶ 47} Toliver’s First Assignment of Error is overruled.

IV. Did the Trial Court Err in Rendering Summary Judgment

in Defendants’ Favor on Toliver’s Legal Malpractice Claims?

{¶ 48} Toliver’s Second Assignment of Error is as follows:

{¶ 49} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

PLAINTIFF AND ABUSED ITS DISCRETION AND VIOLATED PROCEDURAL RULES

IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS BASED

ON MERE CONJECTURE OF THE DEFENDANTS THAT DEFENDANTS [SIC] WAS

NOT NEGLIGENT IN REPRESENTING PLAINTIFF PER THE RETAINER AND FEE

AGREEMENT AND ORAL AGREEMENT PURSUANT TO THE LEGAL

MALPRACTICE STANDARD AS THE MOVING PARTY AND FAILED TO POINT TO

ANY RELIABLE PROBATIVE AND SUBSTANTIAL EVIDENCE SUBMITTED BY THE

DEFENDANTS PURSUANT TO THE SUMMARY JUDGMENT STANDARD THAT

THERE ARE NO GENUINE ISSUES OF MATERIAL FACT FOR THE JURY.”

{¶ 50} Under this assignment of error, Toliver contends that Duwel was negligent

in the following ways: (1) in his handling of the case before the OCRC; (2) in failing to take

further action regarding the letter of involuntary separation that Toliver showed him on May 2,

2008; and (3) in failing to attend the Union appeal hearing on June 7, 2008.

{¶ 51} “A trial court may grant a moving party summary judgment pursuant to

Civ. R. 56 if there are no genuine issues of material fact remaining to be litigated, the moving

party is entitled to judgment as a matter of law, and reasonable minds can come to only one 17

conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the

evidence construed most strongly in his favor.” (Citation omitted.) Smith v. Five Rivers

MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d 422 (1999). “We review summary

judgment decisions de novo, which means that we apply the same standards as the trial court.”

GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶

16 (2d Dist.)

{¶ 52} Establishing a cause of action for legal malpractice based on negligent

representation requires a plaintiff to 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, 422, 1997-Ohio-259, 674 N.E.2d 1164, syllabus, following Krahn v. Kinney, 43 Ohio

St.3d 103, 538 N.E.2d 1058 (1989).

{¶ 53} “Expert evidence is required to prove an attorney's breach of his duty of

care except in cases where the breach is ‘so obvious that it may be determined by the court as

a matter of law, or is within the ordinary knowledge and experience of laymen.’ ” Kreuzer v.

Merritt. 2d Dist. Montgomery No. 18442, 2000 WL 1643794, *2, quoting from Bloom v.

Dieckmann, 11 Ohio App.3d 202, 464 N.E.2d 187 (1983).

{¶ 54} In the case before us, both the magistrate and trial court concluded that

issues pertaining to the competence and quality of Duwel’s representation and his billing

practices required expert testimony, which Toliver failed to provide. Therefore, summary

judgment in Duwel’s favor on those points was deemed appropriate. The magistrate and trial

court also observed that expert testimony might not be required where an attorney fails to 18

appear for a hearing on a client’s behalf and the client suffers adverse consequences. In this

regard, however, the magistrate and trial court both held that the attorney-client relationship

between Duwel and Toliver was terminated prior to the June 7, 2008 hearing. Duwel,

therefore, had no obligation to appear at the hearing, and there were no genuine issues of

material fact precluding summary judgment in Duwel’s favor on this claim.

{¶ 55} We agree with the trial court on these points. Considering first the issue

of when the relationship ended, we note that “[a]n attorney-client relationship exists in the

traditional sense when ‘an attorney advises others as to their legal rights, a method to be

pursued, the forum to be selected, and the practice to be followed for the enforcement of their

rights.’ ” Collett v. Steigerwald, 2d Dist. Montgomery No. 22028, 2007-Ohio-6261, ¶ 32,

quoting Landis v. Hunt, 80 Ohio App.3d 662, 669, 610 N.E.2d 554 (1992). “An attorney-client

relationship is essentially a contract to perform services. The contract can be written or oral

and express or implied.” Id. at ¶ 33.

{¶ 56} Typically, the issue of when an attorney-client relationship ends is relevant

to statute of limitations issues. In the case before us, however, the issue is relevant to

whether Duwel breached his care of duty by failing to appear at the June 7, 2008 hearing.

We conclude that there are no genuine issues of material fact in this regard, because Toliver

had terminated the attorney-client relationship well before that date.

{¶ 57} “In determining when the attorney-client relationship is terminated, the

court must point to an affirmative act by either the attorney or the client that signals the end of

the relationship. For a trial court to take this issue away from a jury, such an act must be

clear and unambiguous.” (Citation omitted.) Mobberly v. Hendricks, 98 Ohio App.3d 839,

843, 649 N.E.2d 1247 (9th Dist.1994). 19

{¶ 58} Toliver’s affirmative acts in May 2008, clearly and unambiguously

signaled the end of the attorney-client relationship. No reasonable individual would

conclude, after reading Toliver’s letters demanding the return of her file and the return of her

retainer fee, that Toliver intended to continue the attorney-client relationship. In addition,

Toliver consulted another attorney on May 5, 2008, who contacted Duwel a few days later to

indicate that he was now representing Toliver on the claims that Duwel had been retained to

handle. And finally, other than asking for her file and retainer fee back, Toliver never

contacted Duwel after May 5, 2008, to request that he represent her in connection with any

matter. Accordingly, there are no genuine issues of material fact regarding whether Duwel

breached a duty of care to Toliver by failing to appear at the Union hearing on June 7, 2008.

He was not Toliver’s attorney at the time, and he had no duty to appear.

{¶ 59} The trial court was also correct when it concluded that there are no genuine

issues of material fact precluding summary judgment for Duwel on claims about the quality of

his representation or his billing. These are not issues where a breach would be obvious, nor

are they matters within the common knowledge of layperson. Because Toliver failed to

present any expert testimony to support her claims, summary judgment on Duwel’s behalf was

proper. Furthermore, regarding Toliver’s contention that the OCRC claim should not have

been settled, the Supreme Court of Ohio has recently clarified Vahila, 77 Ohio St.3d 421,

1997-Ohio-259, 674 N.E.2d 1164, for purposes of situations where a plaintiff contends that

his or her case should not have been settled. The Supreme Court of Ohio stated in this regard

that:

When a plaintiff premises a legal-malpractice claim on the theory that

he would have received a better outcome if his attorney had tried the 20

underlying matter to conclusion rather than settled it, the plaintiff must

establish that he would have prevailed in the underlying matter and that the

outcome would have been better than the outcome provided by the settlement.

Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio

St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173 (2008), syllabus.

{¶ 60} In addition to failing to provide expert testimony, which is fatal, Toliver

did not present evidence indicating that she would have prevailed on her OCRC claim and that

the outcome of the case, if tried, would have been better than the settlement. These matters,

again, would need to be established by expert testimony, because they are not within the

ordinary knowledge of a layperson.

{¶ 61} Toliver’s Second Assignment of Error is overruled.

V. Did the Trial Court Err in Allowing Duwel’s Expert Testimony?

{¶ 62} Toliver’s Third Assignment of Error is as follows:

{¶ 63} “TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF,

VIOLATED PROCEDURAL RULES AND ABUSED ITS DISCRETION IN GRANTING

SUMMARY JUDGMENT WHEN IT ALLOWED THE DEFENDANTS TO SUBSTITUTE

[SIC] HIMSELF AS THE EXPERT WITNESS WITHOUT LEAVE OF COURT AND

ACCEPTED DEFENDANT [SIC] AFFIDAVIT AS A SUBSTITUTE FOR THE NAME

[SIC] EXPERT WITNESS AND REPORT.”

{¶ 64} Toliver’s arguments under this assignment of error are, again, confusing,

but what she appears to be objecting to is that the trial court let Duwel submit his own

affidavit in connection with summary judgment, and did not require Duwel to produce the 21

expert report of an expert he had disclosed.

{¶ 65} As an initial matter, we note that “an affidavit from the acting attorney is a

legally sufficient basis upon which to grant a motion for summary judgment in a legal

malpractice action absent any opposing affidavit of a qualified expert witness for the

plaintiff.” Hooks v. Ciccolini, 9th Dist. Summit No. 20745, 2002-Ohio-2322, 2002 WL

1023172, *2, citing Hoffman v. Davidson, 31 Ohio St.3d 60, 62, 508 N.E.2d 958 (1987).

Accord Vahdati'bana v. Scott R. Roberts & Associates Co., L.P.A., 10th Dist. Franklin No.

07AP-581, 2008-Ohio-1219, ¶ 31 (holding that legal malpractice defendant may testify

regarding whether he or she met standard of care and independent expert testimony is not

required. Further, defendant’s affidavit is sufficient to carry the initial burden under Civil R.

56(C), and the burden shifts to the plaintiff to demonstrate genuine issues of material fact).

See, also, Roselle v. Nims, 10th Dist. Franklin No. 02AP-423, 2003-Ohio-630, ¶ 31.

{¶ 66} Duwel’s affidavit is similar to the affidavits in the cited cases, and was

sufficient to satisfy his burden under Civ. R. 56(C). In addition, the depositions contain

evidence, construed most favorably to Toliver, that indicate there are no genuine issues of

material fact and support the trial court’s decision to render summary judgment in Duwel’s

favor.

{¶ 67} Toliver’s second complaint is that Duwel identified an expert witness, but

did not provide her with a report, in violation of Civ. R. 26. She also contends that Duwel

violated Civ. R. 16 by failing to request leave of court to “substitute” himself as the expert

witness.

{¶ 68} Duwel identified Matthew Stokley as his expert witness in October 2009,

in compliance with the trial court’s discovery order. Duwel then filed his own affidavit 22

regarding the standard of care when he submitted his motion for summary judgment. As we

have noted, this was appropriate. Duwel was not required to submit an affidavit from an

independent expert at the summary judgment stage, nor was he precluded from using Stokley

as an expert at trial, simply because he did not provide an affidavit from Stokley for summary

judgment purposes.

{¶ 69} Civ. R. 26(B)(4) requires parties to provide the names of witnesses and the

subjects on which the witness will testify. It does not require a party to provide a report for

the other side. If Toliver wished to depose Stokley to discover his opinions, she could have

done so, upon making proper arrangements.

{¶ 70} It is clear that many of Toliver’s arguments are based on her failure, as a

lay person, to understand legal procedure. However, this cannot affect the result in her case,

because pro se litigants are held to the same standards as other litigants. Toliver,

2009-Ohio-3521, ¶ 39.

{¶ 71} Toliver’s Third Assignment of Error is overruled

VI. Did the Trial Court Err in Failing to Sanction the Defendants?

{¶ 72} Toliver’s Fourth Assignment of Error is as follows:

{¶73} “TRIAL COURT ERRED AND COMMITTED PROCEDURAL,

PREJUDICIAL AND SUBSTANTIVE RIGHTS VIOLATION WHEN IT ADMITTED

THAT IT COULD NOT FORCE DEFENDANTS [SIC] EXPERT WITNESS TO PRODUCE

THE REPORT AS REQUIRED BY LAW. THE COURT [SIC] FAILURE IS IN

VIOLATION OF CIVIL RULE 26 WHEN IT FAILED TO USE ITS DISCRETION

PURSUANT TO CIVIL RULE 37, 55, 11 AND OTHER APPLICABLE RULES OF CIVIL 23

PROCEDURE TO SANCTION AND COMPEL THE EXPERT REPORT.”

{¶ 74} Under this assignment of error, Toliver makes the same arguments she

made in support of her Third Assignment of Error. Again, Toliver argues that the trial court

erred in relying on Duwel’s affidavit, and in failing to sanction Duwel when he did not

produce a report from his expert witness. We reject these arguments for the reasons

previously stated.

{¶ 75} Toliver’s Fourth Assignment of Error is overruled.

VII. Did the Trial Court Issue Inconsistent Rulings?

{¶ 76} Toliver’s Fifth Assignment of Error is as follows:

{¶ 77} “TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF

AND ABUSED ITS DISCRETION AND SHOW [SIC] PREFERENTIAL TREATMENT IN

GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS BECAUSE

PLAINTIFF FAILED TO PRODUCE AN EXPERT WITNESS REGARDING THE FEE

BILL DATED APRIL 30, 2008 WHICH CONTRADICT [SIC] THE COURT [SIC]

PREVIOUS ORDER OVERRULING DEFENDANT [SIC] MOTION TO DISMISS

PLAINTIFF [SIC] COMPLAINT FOR PLAINTIFF [SIC] FAILURE TO PRODUCE AND

[SIC] EXPERT WITNESS BUT ALLOWED DEFENDANTS TO SUBMIT HIS [SIC] OWN

AFFIDAVIT WITHOUT LEAVE OF THE COURT TO SUPPORT DEFENDANTS

MOTION FOR SUMMARY JUDGMENT THAT IS BASED ON EVIDENCE AND NOT

MERE EXPERT ENDORSEMENT.”

{¶ 78} Although Toliver’s arguments are not well-articulated, what she appears to

be saying is that the trial court issued inconsistent rulings by first holding in ruling on a 24

motion to dismiss that Toliver did not need expert testimony, and then holding in connection

with summary judgment, that Toliver did need to provide expert testimony. Toliver also

appears to contend that expert testimony on the issue of fees is not required, because it is

obvious that the fees were excessive.

{¶ 79} In October 2009, Duwel filed a motion to dismiss, which was based on

Toliver’s failure to disclose an expert witness in compliance with the court’s scheduling order.

The magistrate overruled the motion to dismiss in a pretrial order filed in April 2010. The

court observed that expert testimony is ordinarily required to establish claims of legal

malpractice, except where the attorney’s breach of duty is obvious enough to be determined as

a matter of law, or lies within the ordinary knowledge of a layman. Because it was “possible”

by law to maintain a legal malpractice action without an expert witness, the magistrate

overruled the motion to dismiss. The magistrate cautioned Toliver, as it had in its prior

scheduling order, that a fact pattern allowing recovery without an expert would be rare.

{¶ 80} The ruling on the motion to dismiss was a preliminary decision, in which

the magistrate did not consider the specific facts of the case, but simply observed that as a

matter of law, it is “possible” to maintain a legal malpractice action without using an expert

witness. This is a correct statement, and the magistrate’s analysis complies with standards for

ruling on motions to dismiss, which typically involve questions of law. See, e.g., O'Brien v.

University Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),

syllabus.

{¶ 81} Subsequently, the magistrate and trial court considered summary judgment,

which is based on the specific facts of a case. In this situation:

[A] party seeking summary judgment, on the ground that the nonmoving party 25

cannot prove its case, bears the initial burden of informing the trial court of the

basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential

element(s) of the nonmoving party's claims. * * * [I]f the moving party has

satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing that there is a

genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264.

{¶ 82} In the case before us, Duwel met his burden by pointing to evidence,

including his own affidavit, that indicated the absence of genuine issues of material fact on the

legal malpractice claims. Toliver then had a reciprocal burden to set forth facts that would

establish an issue of fact for trial. In order to do so, Toliver needed expert evidence, because

the alleged malpractice, including the fee issue, was not sufficiently obvious to be determined

as a matter of law, nor was it within the ordinary knowledge of a layperson. Toliver failed to

provide expert evidence. Therefore, the trial court did not err in rendering summary

judgment in Duwel’s favor.

{¶ 83} Toliver’s Fifth Assignment of Error is overruled.

VIII. Did the Trial Court Err in Failing to Consider

Toliver’s Cross-Motion for Summary Judgment?

{¶ 84} Toliver’s Sixth Assignment of Error is as follows:

{¶ 85} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 26

PLAINTIFF AND ABUSED ITS DISCRETION IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF THE DEFENDANTS AND FAILED TO CONSIDER APPELLANTS [SIC]

MOTION FOR SUMMARY JUDGMENT FILED ON FEBRUARY 12, 2010 FILED

PURSUANT TO CIVIL RULE 56 AND DEFENDANT [SIC] MOTION FOR SUMMARY

JUDGMENT FILED ON FEBRUARY 16, 2010 SEPARATELY BEFORE DISMISSING

PLAINTIFF [SIC] COMPLAINT WITH JURY DEMAND.”

{¶ 86} Toliver’s argument under this assignment of error is convoluted. She

appears to be contending that the trial court erred by failing to consider her cross-motion for

summary judgment separately from Duwel’s motion for summary judgment. We see no

evidence that this occurred. The magistrate specifically noted in his decision that

cross-motions for summary judgment were pending. In the decision, the magistrate also

discussed Toliver’s summary judgment motion and its allegations in detail. See Doc. #82,

pp. 5-9, and 17-21. After reviewing all the evidence and claims, the magistrate concluded

that there were no genuine issues of material fact, that Duwel’s motion for summary judgment

should be granted, and that Toliver’s complaint against Duwel should be dismissed with

prejudice. This disposed of all pending matters, and was appropriately handled by the

magistrate.

{¶ 87} Subsequently, the trial court ruled on Toliver’s objections to the magistrate’s

report. In its decision, the trial court noted that both sides had filed cross-motions for

summary judgment. Doc. #100, p. 6. The trial court thoroughly considered all of Toliver’s

objections and overruled them. The court then sustained Duwel’s motion for summary

judgment and rendered judgment in favor of Duwel and Duwel & Associates and against

Toliver. Thus, both the magistrate and trial court properly considered Toliver’s motion for 27

summary judgment.

{¶ 88} Toliver cites LaSalle Bank Natl. Assn. v. Scolaro, 9th Dist. Summit No.

25084, 2011-Ohio-1218, for the proposition that this case should be remanded. In that case,

which was a foreclosure action, the court of appeals did remand the case so that the trial court

could make substantive determinations on cross-motions for summary judgment. Id. at ¶ 18.

However, this was because the trial court had incorrectly stated in its judgment entry that the

defendant had failed to respond to the bank’s motion for summary judgment. In fact, the

defendant had filed both a response and a cross-motion for summary judgment. After filing

the judgment entry, the trial court incorrectly attempted to correct the error by treating it as a

clerical error under Civ. R. 60(A). The court of appeals concluded that the error was

substantive, not clerical, and that the trial court should consider the defendant’s response and

cross-motion for summary judgment on remand. Id. at ¶ 17-18.

{¶ 89} Had a similar error occurred in the case before us, we would reverse the

summary judgment and remand the case to the trial court. However, no error occurred in the

court’s consideration of the cross-motions for summary judgment.

{¶ 90} Toliver’s Sixth Assignment of Error is overruled.

IX. Was the Legal Malpractice Obvious to a Layperson?

{¶ 91} Toliver’s Seventh Assignment of Error is as follows:

{¶ 92} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

PLAINTIFF AND ABUSED ITS DISCRETION IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF THE DEFENDANTS AND FAILED TO CONSIDER PLAINTIFF [SIC]

EVIDENCE THAT SUPPORTS THE CASE IN A CASE DOCTRINE THAT DEFENDANT 28

PROXIMATELY CAUSED PLAINTIFF DAMAGES IN HANDLING BOTH THE UNION

AND EMPLOYER ISSUES BY ORAL AND WRITTEN CONTRACT.”

{¶ 93} Under this assignment of error, Toliver contends that the alleged legal

malpractice involved in her cases before SERB and the Union was obvious enough to have

been within the knowledge of any layperson. We disagree, for the reasons stated in

connection with our decision on the merits of Toliver’s Second Assignment of Error. The

Seventh Assignment of Error, being a rehash of arguments previously rejected, is without

merit, and is overruled.

X. Did the Magistrate Violate Civ. R. 53(D)(7)?

{¶ 94} Toliver’s Eighth Assignment of Error is as follows:

{¶ 95} “THE TRIAL COURT CONTINUED THE ABUSE OF DISCRETION

AND ADOPTED THE MAGISTRATE [SIC] DECISION AND VIOLATED RULES OF

CASE MANAGEMENT AND FAILED TO JOURNALIZE ON THE DOCKET THE

COURTROOM PROCEEDINGS ON WHICH THE TRIAL COURT BASED ITS

DECISION FILED ON JULY 15, 2011.”

{¶ 96} Under this assignment of error, Toliver appears to be contending that the

magistrate erred by failing to hold courtroom proceedings on the motions for summary

judgment and by failing to record them. Toliver also complains about the fact that the trial

court waited more than ten months after its own oral hearing to render a decision on the

objections to the magistrate’s decision.

{¶ 97} In support of her argument, Toliver relies on Civ. R. 53(D)(7), which states

as follows: 29

Recording of proceedings before a magistrate. Except as otherwise

provided by law, all proceedings before a magistrate shall be recorded in

accordance with procedures established by the court.6

{¶ 98} We noted in our discussion of the First Assignment of Error that oral

hearings are not required on motions for summary judgment, and the magistrate was not

required to hold an oral hearing. The trial court did hold an oral hearing on Toliver’s

objections, and that transcript is before us. It adds nothing pertinent to the record.

{¶ 99} Regarding the delay in ruling on the objections, Toliver points to no

prejudice that occurred. In addition, Toliver had an available remedy. She could have filed a

writ of procedendo, which remedies a “court’s refusal or failure to timely dispose of a pending

action.” State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 1994-Ohio-385, 637

N.E.2d 319.

{¶ 100} Toliver’s Eighth Assignment of Error is overruled.

XI. Conclusion

{¶ 101} All of Toliver’s assignments of error having been overruled, the judgment

of the trial court is Affirmed.

FROELICH and HALL, JJ., concur.

6 Toliver refers to Civ. R. 53(C)(7) in her brief, but no such number exists in subsection (C). We assume that Toliver is referring to Civ. R. 53(D)(7). 30

Copies mailed to:

Nancy S. Toliver James T. Ambrose Hon. Frances E. McGee