[Cite as Filby v. Heffter & Russell, L.L.C., 2018-Ohio-1333.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                        GEAUGA COUNTY, OHIO


 DAVID L. FILBY,                                           :    OPINION

                    Plaintiff-Appellant,                   :
                                                                CASE NO. 2017-G-0128
          - vs -                                           :

 HEFFTER & RUSSELL, L.L.C., et al.,                        :

                    Defendants-Appellees.                  :


 Civil Appeal from the Geauga County Court of Common Pleas.
 Case No. 2016 PTR 000317.

 Judgment: Affirmed.


 David L. Filby, pro se, 63 Sector Drive, Bedford, OH 44146 (Plaintiff-Appellant).

 Kurt D. Anderson, Collins, Roche, Utley & Garner LLC, 800 Westpoint Parkway, Suite
 1100, Westlake, OH 44145 (For Defendants-Appellees).



TIMOTHY P. CANNON, J.

        {¶1}       Appellant, David L. Filby, appeals the June 6, 2017 judgment of the Geauga

County Court of Common Pleas, granting appellees’ motion for summary judgment. For

the following reasons, the judgment of the trial court is affirmed.

        {¶2}       This case stems from appellant’s divorce litigation in the Geauga County

Court of Common Pleas.                 Appellant initially represented himself in the divorce

proceedings. After he was held in contempt of court, appellant retained Sarah L. Heffter,

Esq. to represent him.
       {¶3}   Appellant was held in contempt in the divorce proceeding for the following

reasons: failing to comply with multiple orders instructing him to comply with plaintiff’s

discovery requests; failing to appear at a hearing; and failing to pay the court ordered

deposit fee to the guardian ad litem (“GAL”). As punishment for his contempt, the trial

court sentenced appellant to 30 days in jail and ordered him to pay a fine. He was also

ordered to submit to a psychological evaluation. The trial court further noted that if

appellant continued to fail to comply with its orders, he could be precluded from presenting

evidence at trial. Appellant was permitted to purge his sentence and suspend the fine by

responding to all outstanding discovery requests and paying the outstanding GAL deposit.

       {¶4}   Ultimately, appellant failed to purge.    He served time in jail and was

precluded from presenting evidence at the divorce trial. With the permission of the trial

court, Attorney Heffter eventually withdrew as appellant’s counsel.

       {¶5}   On February 25, 2016, appellant filed a complaint against Attorney Heffter,

and Heffter & Russell, L.L.C., appellees herein, in the Cuyahoga County Court of

Common Pleas. The complaint contained 216 claims, alleging Attorney Heffter had

committed malpractice while representing appellant in the divorce action. The complaint

specified causes of action for negligence, gross negligence, negligence per se, willful

misconduct, complicity to misconduct, criminal misconduct, complicity to crime, and fraud.

       {¶6}   Appellant filed a motion for summary judgment on April 11, 2016. Venue

for the case was subsequently transferred to the Geauga County Court of Common Pleas,

which denied the motion for failure to comply with Civ.R. 56.




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       {¶7}   On December 23, 2016, appellees filed a motion for summary judgment.

Appellant filed a brief in opposition on January 18, 2017. Appellant also filed an “Affidavit

Response to Defendant’s Motion for Summary Judgment.”

       {¶8}   On March 16, 2017, the trial court issued an order instructing the parties to

file “supplemental briefs and such materials as permitted by Civ.R. 56(C) addressing

Plaintiff’s claim that Defendant Heffter committed fraud” by March 29, 2017. Appellant

filed a brief pursuant to that order, and appellees subsequently filed a response brief.

       {¶9}   On June 6, 2017, the trial court entered judgment, granting summary

judgment in favor of appellees. The trial court noted the only causes of action in the

pleadings that were viable civil causes of action were for legal malpractice and fraud. The

trial court found appellant failed to support his claim for fraud, and there was no evidence

of fraud before the court. The trial court further granted appellees’ motion for summary

judgment on the claim for legal malpractice.

       {¶10} On October 16, 2017, after appellant filed his notice of appeal and his

appellate brief in this court, the trial court declared appellant a vexatious litigator in the

divorce action. This order required appellant to seek leave to proceed from the courts in

Ohio for any new or pending case in which appellant was a party. Appellant did not

request leave to proceed with his pending appeal in this court.

       {¶11} On February 1, 2018, this court ordered, sua sponte, that appellant show

cause why his appeal should not be dismissed for his failure to request leave to proceed

with his pending appeal. See R.C. 2323.52(D)(3) & (I). In response, appellant filed a

request for leave to proceed. Appellee filed a brief in opposition. Because appellant filed

his appeal and his appellate brief in this case prior to the order finding him to be a




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vexatious litigator, we find these proceedings “are not an abuse of process,” and we will

address appellant’s assignments of error. R.C. 2323.52(F)(2).

       {¶12} Appellant raises two assignments of error on appeal:

              [1.] The trial court’s judgment entry committed prejudicial error by
              granting Defendant-Appellee summary judgment. The trial court errs
              when it states the following: ‘This matter is before the Court on cross
              motions for summary judgment.’ The trial court’s judgment is
              likewise in error in the last paragraph where it states: ‘In summary
              this matter comes before the Court on cross motions for summary
              judgment. The motion of the Plaintiff is denied. The motion of the
              Defendants is granted. . .’

              [2.] The trial court’s judgment entry committed prejudicial error by
              granting Defendant-Appellee summary judgment. The trial court errs
              where it states ‘Defendant Attorney Heffter has provided an affidavit
              stating that legal representation was within the appropriate standards
              of practice required of a lawyer. Plaintiff has provided no counter
              evidence as required by Rule 56. Summary judgment is therefore
              granted and so ordered. . .’

       {¶13} Appellate courts review a trial court’s entry of summary judgment de novo,

i.e., “independently and without deference to the trial court’s determination.” Brown v.

Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted);

see also Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶14} In his first assignment of error, appellant maintains the trial court incorrectly

refers to “cross motions for summary judgment” in its judgment entry, as appellant did not

file a motion for summary judgment. Appellant argues this error brings the trial court’s

“accuracy and disposition * * * into question” and that “[i]f any question as to the accuracy,

disposition, or thoroughness, or procedure of the trial court is brought into question, then

a substantive right to process has been violated.”

       {¶15} Pursuant to Civ.R. 61, “no error or defect in any ruling or order * * * is ground

for * * * disturbing a judgment or order, unless refusal to take such action appears to the


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court inconsistent with substantial justice. The court at every stage of the proceeding

must disregard any error or defect in the proceeding which does not affect the substantial

rights of the parties.” See also R.C. 2309.59 (“the [reviewing] court shall disregard any

error or defect in the pleadings or proceedings which does not affect the substantial rights

of the adverse party”).

       {¶16} “The critical inquiry * * * is whether the trial court’s erroneous statement

materially prejudiced the appellants.” Fada v. Information Sys. & Networks Corp., 98

Ohio App.3d 785, 792 (2d Dist.1994). “When avoidance of the error would not have

changed the outcome of the proceedings, then the error neither materially prejudices the

complaining party nor affects a substantial right of the complaining party.” Theobald v.

Univ. of Cincinnati, 10th Dist. Franklin No. 02AP-560, 2005-Ohio-1510, ¶17, citing Fada,

supra, at 792.

       {¶17} Appellant fails to demonstrate that the trial court’s reference to “cross

motions” for summary judgment prejudiced him or affected his substantial rights. This is

particularly true in light of the fact that we do not give deference to the trial court’s ruling

in this instance.

       {¶18} While appellant did not file a motion for summary judgment that complied

with Civ.R. 56, he did file a “brief regarding fraud” and was afforded the opportunity to

provide Civ.R. 56(C) material in accordance with the trial court’s March 16, 2017 order.

Appellant also filed a brief in opposition to appellees’ motion for summary judgment.

Therefore, we find the trial court’s inadvertent reference to “cross motions” for summary

judgment did not change the outcome of the proceedings.




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       {¶19} Further, appellant does not provide any legal authority in support of his

arguments. This failure is itself a sufficient ground to find appellant’s assignment of error

without merit. See Dilley v. Dilley, 11th Dist. Geauga No. 2017-G-0115, 2017-Ohio-8439,

¶9, quoting App.R. 16(A)(7) (“an appellant’s brief must include ‘[a]n argument containing

the contentions of the appellant with respect to each assignment of error presented for

review and the reasons in support of the contentions, with citations to the authorities,

statutes, and parts of the record on which appellant relies’”).

       {¶20} Appellant’s first assignment of error is without merit.

       {¶21} In his second assignment of error, appellant argues the trial court failed to

acknowledge or consider the evidence pertaining to the legal malpractice claim submitted

in support of his brief in opposition to summary judgment.

       {¶22} Summary judgment is proper when

              (1) [n]o genuine issue as to any material fact remains to be litigated;
              (2) the moving party is entitled to judgment as a matter of law; and
              (3) it appears from the evidence that reasonable minds can come to
              but one conclusion, and viewing such evidence most strongly in favor
              of the party against whom the motion for summary judgment is made,
              that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). “[T]he

moving party bears the initial responsibility of informing the trial court of the basis for the

motion, and identifying those portions of the record before the trial court [e.g., pleadings,

depositions, answers to interrogatories, etc.] which demonstrate the absence of a genuine

issue of fact on a material element of the nonmoving party’s claim.” Dresher v. Burt, 75

Ohio St.3d 280, 292 (1996), citing Civ.R. 56(C) and Celotex Corp v. Catrett, 477 U.S.

317, 323-324 (1986). If the moving party satisfies this burden, the nonmoving party has




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the reciprocal burden to provide evidence demonstrating a genuine issue of material fact,

pursuant to Civ.R. 56(E). Id. at 293.

       {¶23} “To establish a claim for legal malpractice, a plaintiff has the burden to

submit evidence tending to show the following ‘(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 the law, and (3) that there is a

causal connection between the conduct complained of and the resulting damage [or]

loss.’” Brown v. Morganstern, 11th Dist. Trumbull No. 2002-T-0164, 2004-Ohio-2930,

¶36, quoting Vahila v. Hall, 77 Ohio St.3d 421, 427 (1997).

       {¶24} Generally, the plaintiff must submit expert testimony to establish the

standard of care, unless the claim of unprofessional conduct is “within the common

understanding of the laymen on the jury.” See McInnis v. Hyatt Legal Clinics, 10 Ohio

St.3d 112, 113 (1984). “The defendant attorney’s affidavit may provide a sufficient basis

upon which to grant a motion for summary judgment where a plaintiff has failed to present

an opposing affidavit of a qualified expert witness to establish the standard of care to

support the plaintiff’s legal malpractice action.” Morganstern, supra, at ¶37 (citation

omitted).

       {¶25} The affidavit of Attorney Heffter was provided in support of appellees’

motion for summary judgment. Attorney Heffter averred that appellant’s sanctions for

contempt of court were the result of his own conduct and that she had not failed to

conform to the standard of care. In his brief in opposition, appellant did not provide an

opposing affidavit of a qualified expert.




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      {¶26} Appellant filed lengthy briefs, containing many assertions that were

unsupported by the record and rambling arguments not supported by any legal authority.

He provided no expert testimony regarding Attorney Heffter’s performance as his attorney

and failed to establish she engaged in unprofessional conduct that, within the common

knowledge of laymen, would be understood as below the accepted standard of a

competent attorney. In his brief in opposition, appellant generally references “1,258

pages of evidence,” but he does not point to any specific evidence in the record to support

his claims of Attorney Heffter’s misconduct. As noted by the trial court, appellant has

failed to provide counter-evidence demonstrating an issue of material fact to preclude

summary judgment in appellees’ favor.

      {¶27} Appellant’s second assignment of error is without merit.

      {¶28} The judgment of the Geauga County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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