[Cite as Baldwin v. Cusma, 2014-Ohio-905.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CHAD R. BALDWIN                              :     JUDGES:
                                             :
                                             :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellant                :     Hon. Patricia A. Delaney, J.
                                             :     Hon. Craig R. Baldwin
                                             :
-vs-                                         :
                                             :
PATRICK L. CUSMA                             :     Case No. 2013CA00145
                                             :
                                             :
        Defendant - Appellee                 :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Case No.
                                                   2011-CV-01944



JUDGMENT:                                          Affirmed in Part, Reversed and
                                                   Remanded in part




DATE OF JUDGMENT:                                  March 10, 2014




APPEARANCES:

Plaintiff/Appellant                                Defendant/Appellee

CHAD R. BALDWIN                                    PATRICK L. CUSMA
P.O. Box 691813                                    702 Courtyard Centre
Orlando, FL 32869-1813                             116 Cleveland Ave., N.W.
                                                   Canton, OH 44702
Stark County, Case No. 2013CA00145                                                       2

Baldwin, J.


      {¶1}    Plaintiff-appellant Chad Baldwin appeals from the January 23, 2012,

February 24, 2012 and October 1, 2012 Orders of the Stark County Court of Common

Pleas.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On July 15, 2005, the Stark County Grand Jury indicted appellant on one

count of grand theft in violation of R.C. 2913.02. The indictment alleged as a continuous

course of conduct from May 1, 2004 through January 14, 2005, appellant purposefully

deprived his employer, Midwest Direct, of money in excess of $5,000.00 but less than

$100,000.00. Appellant processed credit card charge backs from the business account

to his personal credit card. Appellant admitted to the credit card charge backs

contending he was owed the monies as wage reimbursements.

      {¶3}    A jury trial commenced on January 9, 2006. The jury found appellant guilty

as charged. By Judgment Entry filed February 17, 2006, the trial court sentenced

appellant to sixteen months in prison, but granted judicial release on April 17, 2006.

      {¶4}    On July 9, 2007, this Court affirmed appellant's conviction in State v.

Baldwin, 5th Dist. Stark App. No. 2006CA00076, 2007-Ohio-3511.

      {¶5}    Subsequent to his criminal conviction, appellant filed a lawsuit against his

employer in the Federal District Court, Northern District of Ohio, alleging Midwest Direct

violated Federal wage laws and claiming monies owed for back wages. The parties

subsequently settled the lawsuit.

      {¶6}    On November 18, 2008, appellant filed a motion for a new trial with the

trial court alleging newly discovered evidence. Specifically, appellant asserted newly
Stark County, Case No. 2013CA00145                                                        3


discovered evidence in the settlement of the federal lawsuit relative to his wage claims

and inconsistent testimony of prior fellow employees in that lawsuit and his criminal trial.

On June 15, 2009, the trial court, via Judgment Entry, denied appellant's motion for a

new trial.

      {¶7}    Appellant then appealed. Pursuant to an Opinion filed on July 6, 2010 in

State v. Baldwin, 5th Dist. Stark No. 2009-CA-00186, 2010 -Ohio- 3189, this Court

affirmed the judgment of the trial court.

      {¶8}    Appellant filed a second motion for new trial alleging newly discovered

evidence and misconduct on the part of a witness for the State. The trial court overruled

the motion for new trial. This Court, on June 27, 2011, again affirmed the trial court's

denial of the motion for new trial in State v. Baldwin, 5th Dist. Stark No. 2010-CA-00330,

2011–Ohio–3205.

      {¶9}    On June 24, 2011, appellant had filed the legal malpractice case that is

the subject of this appeal against appellee, who had represented him. Appellant, in his

complaint, alleged that appellee had failed to attach “new evidence/sales records” to

appellant’s motion for a new trial even though the motion had indicated that they were

attached. Appellant further alleged, in part, that appellee then charged appellant to

appeal from the denial of such motion and to submit the new evidence as promised, but

that appellee failed to do so. Appellant sought to be compensated for fees paid for the

motion for a new trial and fees and costs paid for the subsequent two appeals, among

other damages.

      {¶10}   On July 20, 2011, appellee filed an answer and counterclaim. Appellee, in

his counterclaim, alleged that appellant had knowingly made fraudulent statements in
Stark County, Case No. 2013CA00145                                                      4


his complaint, that appellant had acted in bad faith and was a vexatious litigator, and

that appellant owed him over $1,000.00 on an account. Appellant filed an answer to the

counterclaim on August 17, 2011.

      {¶11}   Subsequently, on September 28, 2011, appellee filed a Motion for

Summary Judgment. On October 11, 2011, the trial court filed an order setting forth

dates. The trial court, in the same, ordered that appellant identify his expert witness by

December 2, 2011 and appellee by December 24, 2011.

      {¶12}   Appellant, on October 28, 2011, filed a “Motion to Deny Defendant’s

Motion for Summary Judgment, Motion to Dismiss Defendant’s Counterclaim and

Motion to Summary Judgment.”

      {¶13}   On November 30, 2011, appellant filed a motion seeking an extension of

time within which to identify expert witnesses. Appellee, on November 30, 2011, filed a

reply to appellant’s memorandum in opposition to appellee’s Motion for Summary

Judgment and a response to appellant’s Motion for Summary Judgment. In addition, on

December 9, 2011, appellee filed a motion opposing appellant’s motion for an extension

of time within which to identify expert witnesses. Appellee, in such motion, requested

that the trial court hold in abeyance ruling on appellant’s motion to extend time until

appellee knew if appellant as going to comply with discovery by December 8, 2011.

Pursuant to a Judgment Entry filed on December 13, 2011, the trial court granted such

motion.

      {¶14}   On December 23, 2011, appellee identified his expert witnesses.
Stark County, Case No. 2013CA00145                                                      5


      {¶15}   After a hearing on January 6, 2012 at which appellant participated by

telephone, the trial court, as memorialized in an Order filed on January 10, 2012, stated

that appellant had not retained or identified an expert witness.

      {¶16}   As memorialized in an Order filed on January 23, 2012, the trial court

granted appellee’s Motion for Summary Judgment while denying that filed by appellant.

The trial court, in its Order, found that appellant’s legal malpractice claim against

appellee was barred by the one year statute of limitations contained in R.C. 2305.11(A).

The trial court noted that appellant had submitted both his own affidavit and that from

another attorney stating that appellee had ended his attorney-client relationship with

appellant on May 1, 2010 and that appellant had failed to submit his own affidavit to

refute such evidence.     The trial court further stated, in relevant part, as follows:

“Moreover, while the Court does not reach [appellee’s] second argument that the sales

records, even if they had been attached, would not have lead to a successful motion to

a new trial, the Court notes that the issue is not within the common knowledge of the lay

person, and expert testimony would be required to establish this point.” The trial court

noted that appellant had not offered any expert testimony and had failed to name an

expert witness within the deadline established by the Court. The trial court noted that it

could dismiss appellant’s complaint as a discovery sanction for failure to identify or

name a witness. Finally, the trial court noted that appellant, to the extent that he was

seeking summary judgment with respect to appellee’s counterclaims, had not supported

his Motion for Summary Judgment with any Civ.R. 56(C) evidence.

      {¶17}   In response to the trial court’s order, appellant filed a Motion for

Reconsideration on February 13, 2012, arguing that he did offer evidence in opposition
Stark County, Case No. 2013CA00145                                                       6


to appellee’s claim that the attorney-client relationship ended on May 1, 2010. Appellee

filed a motion in opposition to the same on February 21, 2012. Via an Order filed on

February 24, 2012, the trial court vacated its January 23, 2012 Order to the extent that it

granted summary judgment to appellee on the basis that appellant’s claim was barred

by the one year statute of limitations, but      granted appellee’s Motion for Summary

Judgment . The trial court again found that appellant had no expert witness testimony to

support his motion. The trial court also dismissed appellant’s claims as a sanction for

failing to comply with the court’s directives.

        {¶18}   Appellant, on March 15, 2012, filed another Motion for Reconsideration,

arguing that he had identified an expert witness by December 2, 2011. Attached to such

motion were copies of checks dated March 8, 2012 and March 14, 2012 to an attorney

that contained the notations that they were retainers. The trial court denied such motion

on May 16, 2012. Appellant then filed another Motion for Reconsideration on May 29,

2012.    After the trial court denied such motion and ordered that appellant was not

permitted to file additional Motions for Reconsideration of its May 16, 2012 Order,

appellant appealed. This Court, pursuant to a Judgment Entry filed on August 30, 2012

in Case No. 2012-CA-00129, dismissed the appeal for lack of a final appealable order.

        {¶19}   After his appeal was dismissed, appellant, on September 14, 2012, filed a

“Motion to Re-Open Plaintiff’s Complaint.” Appellant, in his motion, argued that he had

identified his expert witness on November 30, 2011. Appellant submitted the affidavit of

Attorney Greg Roeby stating that he had been aware of appellant’s complaint against

appellee since February of 2009 and that he received a retainer for expert witness fees

from appellant in March of 2012. Pursuant to an Order filed on October 1, 2012, the trial
Stark County, Case No. 2013CA00145                                                          7


court denied such motion. In addition, the trial court found that appellee was entitled to

summary judgment on additional grounds. The trial court, in its Order, stated, in relevant

part, as follows:

      {¶20}   “In his motion for summary judgment, Cusma submitted the judgment of

the Fifth District Court of Appeals, State of Ohio v. Chad Baldwin, 2001-Ohio-3205,

wherein the Appellate Court directly addressed Baldwin’s claim that had Cusma

attached the sales records to the motion for new trial, then the motion would have been

successful. The Appellate Court stated ‘we find nothing in the documents appellant

attached to his motions that would justify a new trial, even if the documents were taken

at face value.’ Id at ¶28.

      {¶21}   “This argument in Cusma’s summary judgment motion speaks to the

application of collateral estoppel or issue preclusion. Cusma has previously raised this

affirmative defense in his answer. In order for collateral estoppel to apply, it must be

shown that the fact or issue “(1) was actually and directly litigated in the prior action, (2)

was passed upon and determined by a court of competent jurisdiction, and (3) when the

party against whom collateral estoppel is asserted was a party in privity with a party to

the prior action.” New Winchester Gardens, Ltd. v. Franklin County Bd. Of Revision

(1997), 80 Ohio St.3d. 36, 41.

      {¶22}   “The question of the whether attaching the sales records to the motion for

new trial would have lead to a better result was placed directly at issue by Baldwin

himself in his second, pro se motion for reconsideration. The issue was litigated and

actually decided against Baldwin by a court of competent jurisdiction. As a party who
Stark County, Case No. 2013CA00145                                                         8


had a full and fair opportunity to litigate the issue in previous action, Baldwin is bound by

the Appellate Court’s previous determination.

      {¶23}   “Accordingly, the Court finds that Baldwin is precluded from claiming that

attaching the sales records to the first motion for a new trial would have lead to a better

result. As such, Baldwin cannot prove Cusma’s failure to attach records proximately

caused him damages.        Cusma is therefore entitled to summary judgment on this

alternative ground.”

      {¶24}   Appellant, on October 19, 2012, filed another Motion to Reopen.

Appellant, in such motion, argued that he had a separate malpractice claim of $54.10

and that the “sales records” had no relevance to such claim. Appellant argued that such

claim was based on appellee’s error in omitting the required Judgment Entry with the

docketing statement filed with his first appeal (Case No. 2009CA00015). Appellant

noted that his appeal in such case was dismissed as a result and that he incurred

$54.10 in damages as a result. Appellant, in a filing with the trial court, had asked for a

refund of $54.10 in court costs associated with such appeal.

      {¶25}   On October 26, 2012, appellant appealed from the trial court’s October 1,

2012 Order.     Pursuant to a Judgment filed on January 11, 2013 in Case No.

2012CA00197, this Court dismissed appellant’s appeal for want of jurisdiction, finding

that there was no final appealable order.

      {¶26}   Thereafter, on February 1, 2013, appellee filed a Motion to Strike both of

appellant’s Motions to Re-Open. On June 28, 2013, appellee filed a Notice of Dismissal,

voluntarily dismissing his claims against appellant without prejudice.
Stark County, Case No. 2013CA00145                                              9


     {¶27} Appellant now appeals from the trial court’s January 23, 2012, February

24, 2012 and October 1, 2012 Orders, raising the following assignments of error on

appeal:

     {¶28}   I.     THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN DISMISSING APPELLANT’S COMPLAINT FOR FAILURE TO TIMELY

IDENTIFY AN EXPERT WITNESS BY THE TRIAL COURT’S DECEMBER 2, 2011

DEADLINE.

     {¶29}   II.    THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN DISMISSING APPELLANT’S COMPLAINT AND FINDING FOR SUMMARY

JUDGMENT IN APPELLEE’S FAVOR ON THE GROUND THAT THE SALES

RECORDS OMITTED BY APPELLEE ARE IRRELEVANT IN OVERTURNING

APPELLANT’S GRAND THEFT CONVICTION.

     {¶30}   III.   THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN DISMISSING APPELLANT’S COMPLAINT AND FINDING FOR SUMMARY

JUDGMENT IN APPELLEE’S FAVOR WHEN APPELLANT HAD A SEPARATE

COUNT AND COMPLAINT FOR DAMAGES OF $54.10, WHICH APPELLEE HAD

ALREADY ADMITTED GUILT TO AND THIS SEPARATE COMPLAINT FOR $54.10

DID NOT REQUIRE EXPERT WITNESS TESTIMONY.

     {¶31}   IV.    THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN FINDING THAT APPELLANT’S COMPLAINT REQUIRED EXPERT WITNESS

TESTIMONY.
Stark County, Case No. 2013CA00145                                                          10


                                                I, IV

      {¶32}   Appellant, in his first assignment of error, argues that the trial court erred

in dismissing appellant’s complaint for failure to timely identify an expert witness. In his

fourth assignment of error, appellant contends that the trial court erred in finding that

appellant’s complaint required expert witness testimony.

      {¶33}   The trial court, in its February 24, 2012 Order, dismissed appellant’s

complaint pursuant to Civ.R. 41 (B)(1) as a sanction for failure to comply with the trial

court’s order to identify an expert by December 2, 2011. Civ. R. 41(B) provides:

      {¶34}    “Where the plaintiff fails to prosecute, or comply with these rules or any

court order, the court upon motion of a defendant or on its own motion may, after notice

to the plaintiff's counsel, dismiss an action or claim.”

      {¶35}    Our standard of reviewing a trial court's decision to dismiss a complaint

for failure to comply with a court order is the abuse of discretion standard. Jones v.

Hartranft , 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). Thus, our review of the

dismissal is limited to determining whether the trial court abused its discretion. Id. Abuse

of discretion implies a court's attitude is unreasonable, arbitrary, or unconscionable.

See, e.g., Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). In

applying the abuse of discretion standard we may not substitute our judgment for that of

the trial court. Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 621, 641 N.E.2d

748 (1993).

      {¶36}    In Quonset Hut v. Ford Motor Company, 80 Ohio St.3d 46, 684 N.E.2d

319 (1997), the Ohio Supreme Court held: “For purposes of Civ. R. 41(B)(1), counsel

has notice of an impending dismissal with prejudice for failure to comply with the
Stark County, Case No. 2013CA00145                                                       11


discovery order when counsel has been informed that dismissal is a possibility and has

had a reasonable opportunity to defend against dismissal.” Syllabus by the court.

      {¶37}    On June 24, 2011, appellant filed his legal malpractice case against

appellee. As is stated above, the trial court, on October 11, 2011, filed an order stating

that appellant was to identify an expert witness by December 2, 2011. The trial court’s

order stated that “[f]ailure to comply with any of the above could lead to sanctions

including adverse judgment.” On November 30, 2011, appellant filed a Motion to Extend

Time to Identify Expert Witnesses. The motion listed prosecutors, judges, disciplinary

counsel personnel and attorney Greg Robey (appellant’s counsel in his federal case) as

possible witnesses. On December 13, 2011, the trial court granted appellee’s motion

opposing appellant’s request for an extension of time to identify expert witnesses.

      {¶38}    Subsequently, the trial court granted summary judgment in favor of

appellee on January 23, 2012, finding that “the issue is not within the common

knowledge of the lay person and expert testimony” was required. The trial court noted

that appellant had failed to offer any expert testimony and had failed to timely identify an

expert.   In   its   February   24,   2012   Order   addressing   appellant’s   Motion   for

Reconsideration, the trial court also dismissed appellant’s complaint pursuant to Civ.R.

41(B)(1) for failing to comply with the court’s directives.

      {¶39}    We cannot say that the trial court abused its discretion in dismissing

appellant’s complaint on such basis. Appellant was clearly advised by the trial court that

failure to identify an expert witness by December 2, 2011 could result in adverse

judgment, but did not comply with the trial court’s order. We note that appellant did not

retain Robey until after summary judgment was rendered in favor of appellee.
Stark County, Case No. 2013CA00145                                                       12


      {¶40}   We also find that the trial court did not err in holding that expert testimony

was required. “Generally, expert testimony would be required in regard to professional

standards of performance.” McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461

N.E.2d 1295 (1984). Generally in Ohio, expert testimony is required to establish the

duty and breach elements of a legal malpractice claim, unless the alleged breach “is

within the ordinary knowledge and experience of laymen.” Bloom v. Dieckmann, 11

Ohio App.3d 202, 203, 464 N.E.2d 187 (1st Dist.1984).

      {¶41}   In his legal malpractice case against appellee, appellant alleged that

appellee was negligent in failing to attach “new evidence/sales records” to appellant’s

motion for a new trial even though the motion indicated that they were attached.

Appellant further alleged, in part, that appellee then charged appellant to appeal from

the denial of such motion and to submit the new evidence as promised, but that

appellee failed to do so.   Appellee, in turn, argued that such records, even had they

been attached, would not have resulted in a successful motion for a new trial.

      {¶42}   We concur with the trial court that such issue is not within the common

knowledge of the lay person and that expert testimony was required. Appellant, in the

trial court’s October 11, 2011 Order, was advised that adverse judgment could result if

appellant did not comply with the trial court’s order. After appellant failed to timely

identify an expert witness, the trial court properly found that appellee was entitled to

summary judgment on the basis that appellant had no expert witness testimony to

support his position that appellee had committed legal malpractice.
Stark County, Case No. 2013CA00145                                                          13


         {¶43}   Appellant’s first and fourth assignments of error are, therefore, overruled

to the extent not in conflict with this Court’s resolution of appellant’s third assignment of

error.

                                                   II

         {¶44}   Appellant, in his second assignment of error, argues that the trial court

erred in granting summary judgment in favor of appellee on the basis that the sales

records omitted by appellee in filing appellant’s motion for new trial were irrelevant in

overturning appellant’s grand theft conviction.

         {¶45}   Contrary to appellant’s assertion, the trial court never found that the sales

records were irrelevant. Rather, the trial court, in its October 1, 2012 Order, found that

such issue had been litigated and decided against appellant by this Court and that

appellant was bound by such determination. The trial court found that appellant was,

therefore, precluded from claiming that attaching the sales records to the first motion for

a new trial would have led to a better result.

         {¶46}   Moreover, we note that the trial court stated alternative grounds for

granting summary judgment in favor of appellee. Thus, even if appellant was correct,

based on our disposition of appellant’s first assignment of error, the trial court did not err

in granting summary judgment in favor of appellee.

         {¶47}   Appellant’s second assignment of error is, therefore, overruled.

                                                   III

         {¶48}   Appellant, in his third assignment of error, argues that the trial court erred

when it dismissed appellant’s entire complaint and granted summary judgment in favor
Stark County, Case No. 2013CA00145                                                      14


of appellee when appellant had a separate complaint for $54.10 in damages that did not

require expert witness testimony.

      {¶49}   In the case sub judice, appellant, in his pleadings, alleged that he was

entitled to $54.10 in damages from appellee. Appellant noted that appellee had filed an

appeal from his criminal case on January 29, 2009 and that this Court, pursuant to a

Judgment Entry filed on March 9, 2009 in Case No. 2009-CA-00015, dismissed the

appeal for failure to prosecute after appellee failed to file a fully completed docketing

statement. A final appealable order was not attached to the docketing statement.

Appellant now argues that the trial court erred in dismissing that portion of his complaint

seeking $54.10 in damages from appellee, which represents the damages that

appellant incurred, and in granting summary judgment in favor of appellee with respect

to the $54.10.

      {¶50}   We concur with appellant that such claim does not require expert witness

testimony and is independent of the sales records issue. We concur that summary

judgment should have been granted in appellant’s favor in the amount of $54.10 on this

claim because there are no genuine issues of material fact in dispute.

      {¶51}   Appellant’s third assignment of error is, therefore, sustained.
Stark County, Case No. 2013CA00145                                                        15


      {¶52}   Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed in part. This matter is remanded to the trial court for further

proceedings consistent with this Opinion.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
