[Cite as Simmons v. Rauser & Assoc., L.P.A., 2011-Ohio-4510.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96386




                                 AARON SIMMONS
                                                          PLAINTIFF-APPELLANT

                                                    vs.

             RAUSER & ASSOCIATES LPA, ET AL.
                                                          DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED



                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-721101

        BEFORE:           S. Gallagher, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT

Rosel C. Hurley, III
Arnuma Law
12800 Shaker Boulevard
Suite 230
Cleveland, Ohio 44120


ATTORNEYS FOR APPELLEES

Jason D. Winter
Marianne K. Barsoum Stockett
Holly M. Wilson
Reminger Co., LPA
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093




SEAN C. GALLAGHER, J.:

      {¶ 1} Plaintiff-appellant, Aaron Simmons, appeals the judgment of the

Cuyahoga County Court of Common Pleas that granted summary judgment in

favor of defendants-appellees Rauser & Associates LPA and Denise Bartlett.

For the reasons stated herein, we affirm the judgment of the trial court.

      {¶ 2} This is a legal malpractice action that arose from attorney Denise

Bartlett’s representation of Simmons in connection with a Chapter 7
bankruptcy filing, which was ultimately converted into a Chapter 13 filing.

Bartlett is an attorney with the law firm of Rauser & Associates LPA.

      {¶ 3} Simmons instituted this action on March 12, 2010.            In his

amended complaint, Simmons alleged that he retained Bartlett in connection

with a Chapter 7 bankruptcy and that he advised her that he had no interest

in a five-year Chapter 13 plan. He further alleged that Simmons advised him

to file a Chapter 7 bankruptcy despite his income being over twice the allowed

income, that she told him to stop paying his bills, and that she advised him to

purchase a vehicle in order to defeat the Chapter 7 “means test” in violation of

federal bankruptcy laws. Following the filing by the U.S. Trustee of a motion

to dismiss for abuse, Simmons’s Chapter 7 filing was converted to a Chapter

13 filing in June 2008.

      {¶ 4} The defendants filed a motion for summary judgment, arguing that

Simmons had failed to produce an expert report to establish that defendants

breached the standard of care or proximately caused him damages. The trial

court granted the motion, and this appeal followed.            Simmons’s sole

assignment of error is as follows: “The trial court erred when it granted

summary judgment in favor of the defendant as a result of the plaintiff failing

to provide an expert witness report even though an expert report is not needed

because the actions of the defendant amounted to negligence per se.”
      {¶ 5} Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56.      Comer v. Risko, 106 Ohio St.3d 185,

2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to

the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate.        Hollins v. Shaffer, 182 Ohio

App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12.        Under Civ.R. 56(C),

summary judgment is proper when the moving party establishes that “(1) no

genuine issue of any material fact remains, (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 construing the evidence

most strongly in favor of the nonmoving party, that conclusion is adverse to

the party against whom the motion for summary judgment is made.” State ex

rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826

N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317,

327, 364 N.E.2d 267.

      {¶ 6} Simmons’s complaint alleges that defendants are liable for legal

malpractice committed in connection with their representation of him in the

Chapter 7 bankruptcy. “To establish a cause of action for legal malpractice

based on negligent representation, a plaintiff must show (1) that the attorney

owed a duty or obligation to the plaintiff, (2) that there was a breach of that

duty or obligation and that the attorney failed to conform to the standard
required by law, and (3) that there is a causal connection between the conduct

complained of and the resulting damage or loss.” Vahila v. Hall (1997), 77

Ohio St.3d 421, 674 N.E.2d 1164, syllabus. The plaintiff’s failure to prove any

one of these elements entitles the defendant-attorney to summary judgment.

Woodrow v. Heintschel, Lucas App. No. L–10–1206, 2011-Ohio-1840, ¶ 17;

Williams-Roseman v. Owen (Sept. 21, 2000), Franklin App. No. 99AP-871.

      {¶ 7} Here, it is undisputed that Bartlett represented Simmons in the

bankruptcy proceeding.        Accordingly, she had a duty to “‘exercise the

knowledge, skill, and ability ordinarily possessed and exercised by members of

the legal profession similarly situated, and to be ordinarily and reasonably

diligent, careful, and prudent[.]’” See Palmer v. Westmeyer (1988), 48 Ohio

App.3d 296, 298, 549 N.E.2d 1202, quoting 67 Ohio Jurisprudence 3d (1986)

16, Malpractice, Section 9.

      {¶ 8} Simmons claims that when he retained Bartlett, he informed her

that he had no interest in a Chapter 13 plan and that he wanted a Chapter 7

bankruptcy with an elimination of all debts. He further asserts that Bartlett

was negligent in her representation by advising him to proceed with a Chapter

7 filing, advising him to stop paying his bills while she proceeded with the

elimination of his debts, and advising him to purchase a vehicle, allegedly in

order to deceive the Chapter 7 means test.      According to the defendants,
although Simmons’s income exceeded the amount for a Chapter 7 filing, he

could still pass the means test calculation.1

        {¶ 9} Generally, expert testimony is required to establish the breach of

duty, unless the breach is so obvious that it may be determined by the court as

a matter of law, or is within the ordinary knowledge of a lay person. Bloom v.

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

McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112, 113, 461 N.E.2d

1295.       Initially, we recognize that the requirements for a Chapter 7

bankruptcy and the application of the means test are not matters within the

ordinary knowledge of the layman. Furthermore, Simmons’s allegations are

unsupported by any evidence in the record and he has failed to demonstrate

that the alleged advice to purchase a vehicle constituted negligence as a

matter of law.2 Expert testimony was therefore necessary to support a cause

of action for malpractice.           Additionally, Simmons failed to demonstrate

whether the alleged malpractice proximately caused any actual damages.

Without any affirmative evidence, we are simply left with an unsuccessful

Chapter 7 bankruptcy.



        1
           11 U.S.C. § 707(b)(1) establishes the means test to determine whether a presumption of
abuse arises in a debtor’s bankruptcy case.
        2
          The provisions to which he cites, 18 U.S.C. § 152 and 157, do not clearly establish
negligence per se.
     {¶ 10} Therefore, we find the trial court properly awarded summary

judgment in favor of the defendants.

     {¶ 11} Judgment affirmed.

     It is ordered that appellees recover from appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
