[Cite as Novak v. Camino, 2013-Ohio-2907.]




                   Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 99019 and 99332


                                 MORRIS O. NOVAK
                                             PLAINTIFF-APPELLANT

                                               vs.

                                WALTER C. CAMINO
                                             DEFENDANT-APPELLEE




                               JUDGMENT:
                           AFFIRMED IN PART;
                     REVERSED IN PART AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-767280

             BEFORE:         Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.

             RELEASED AND JOURNALIZED:                      July 3, 2013
APPELLANT

Morris O. Novak, Pro Se
1511 Hopkins Avenue
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Timothy G. McGinty
Cuyahoga County Prosecutor

By: Dale F. Pelsozy
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Morris O. Novak (“Novak”) appeals pro se the trial court’s

granting summary judgment in favor of appellee Walter C. Camino (“Camino”), and the

trial court’s denial of his motion for relief from judgment. He assigns the following five

errors for our review:1

       I. The trial court erred by granting immunity to appellee because he
       acted outside the scope of his employment and his acts were with
       malicious purpose and done in bad faith.

       II. The trial court erred in granting summary judgment because a
       genuine issue of material fact remains and reasonable minds can differ
       over the conclusion.

       III. The trial court abused its discretion by denying appellant’s
       motions to obtain proper discovery because its decisions were
       unreasonable, arbitrary, and unconscionable in a way that affected a
       substantial right of the appellant.

       IV. The trial court violated appellant’s due process rights through the
       denial of pertinent discovery without affording appellant due process.

       V. The trial court erred by ruling on a Civil Rule 60(B) motion for
       relief from judgment because the filing of appellant’s appeal divested
       the trial court of jurisdiction to entertain the motion.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision granting summary judgment, but reverse and remand as to the trial court’s

decision denying Novak’s motion for reconsideration. The apposite facts follow.

                                          Facts

Underlying Litigation to the Malpractice Suit


       Novak’s fifth assigned error was set forth in a supplemental brief.
       1
       {¶3} On December 20, 1996, Novak pleaded guilty to attempted murder of his

girlfriend’s ex-husband. The trial court sentenced him to 5-to-25 years in prison. His

attorney of record at the time was Thomas Wagner (“Wagner”). However, the transcript

from the plea hearing shows that attorney Camino appeared on Wagner’s behalf.

       {¶4} Shortly after entering his plea, Novak filed a motion to withdraw his plea,

which the trial court denied. This court affirmed Novak’s conviction on appeal. State v.

Novak, 8th Dist. No. 72849, 1998 Ohio App. LEXIS 4224 (Sept. 10, 1998). In February

2005, the trial court granted Novak’s motion for judicial release and placed him on two

years probation. The motion was filed by attorney Camino on behalf of the public

defender’s office.

       {¶5} In June 2008, Novak, represented by public defender Camino, moved to

expunge his criminal record as allowed under R.C. 2953.32. The matter was scheduled

for a hearing on November 20, 2008. According to Camino, the day before the hearing,

Novak advised him that he had retained a private attorney who would attend the hearing;

therefore, Camino did not attend the hearing. The trial court denied the motion for

expungement, and this court affirmed the decision in State v. Novak, 8th Dist. No. 92586,

2009-Ohio-6220.



Malpractice Suit

       {¶6} On October 20, 2011, Novak filed a complaint against Camino alleging that

Camino committed legal malpractice as far back as 1996, when he represented him in the

underlying criminal action through 2008, when he requested expungement of the
conviction on Novak’s behalf. 2    He alleged that Camino committed malpractice by

failing to appear at the expungement hearing. Regarding the proceedings in 1996, he

alleged that Camino violated the law by accepting compensation for representing Novak

when Camino worked for the public defender’s office. He generally alleges that Camino

also knowingly and intentionally misled the court, engaged in fraud, failed to appear at

scheduled depositions, blocked the taking of the depositions of material witnesses, and

filed frivolous motions.

       {¶7} Camino filed a motion for summary judgment arguing that the only time he

appeared as the attorney of record for Novak was in 2008, when he filed his motion for

expungement. At that time, Camino was an attorney with the public defender’s office;

therefore, he argued immunity protected him from Novak’s lawsuit. He also argued that

Novak’s claims relating back to 1996 were barred by the one year statute of limitations

for a legal malpractice claim. He admitted he appeared on Novak’s behalf at his plea

hearing as a favor to Novak’s attorney, Thomas Wagner, who could not appear. He

submitted his affidavit and an affidavit by attorney Wagner in which they stated that

Camino was not paid for his appearance.

       {¶8} In opposition to Camino’s motion for summary judgment, Novak filed a

“Counter Affidavit with Corroborating Documentation in Opposition to Defendant’s

Motion for Summary Judgment,” in which he alleged that Camino lied in his affidavit,

contended that he paid several thousand dollars to Camino, and that Camino negotiated


       Novak originally filed his complaint on November 19, 2009. He then
       2

voluntarily dismissed the complaint on November 1, 2010, and refiled on October
20, 2011.
his plea. Affidavits and depositions by several of Novak’s friends were also offered in

which they testified that Camino represented Novak at the plea hearing and had accepted

money. The trial court granted Camino’s motion for summary judgment concluding that

immunity protected Camino from liability.

       {¶9} Thereafter Novak filed a motion for relief from judgment. One day later,

Novak filed an appeal from the trial court’s decision granting summary judgment. While

the appeal was pending, the trial court denied Novak’s motion for relief from judgment.

                                   Summary Judgment

       {¶10} We will address Novak’s first and second assigned errors together because

they both concern Novak’s contention that the trial court erred by granting summary

judgment. Novak contends that Camino was not immune because he was acting outside

the scope of his employment with the public defender’s office because he accepted a fee

for his representation and genuine material issues of fact exist.

       {¶11} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

       {¶12} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine

issue as to any material fact exists, (2) the party moving for summary judgment is entitled

to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party. We conclude the trial court did not err by granting summary judgment

as a matter of law in favor of Camino.

       {¶13} We need not determine whether Camino was immune regarding the alleged

malpractice at Novak’s 1996 plea hearing and 1997 sentencing hearing because any

malpractice relating to those events are barred by the one year statute of limitations for

bringing a legal malpractice action.

       Under R.C. 2305.11(A), an action for legal malpractice accrues and the

       statute of limitations begins to run when there is a cognizable event

       whereby the client discovers or should have discovered that his injury

       was related to his attorney’s act or non-act and the client is put on

       notice of a need to pursue his possible remedies against the attorney or

       when the attorney-client relationship for that particular transaction or

       undertaking terminates, whichever occurs later.            Zimmie v. Calfee,

       Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus,

       citing Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d

       941 (1988).

       {¶14} For the purposes of determining the accrual date of R.C. 2305.11(A) in a

legal malpractice action, the trial court must explore the particular facts of the action and

make the following determinations: when the injured party became aware, or should have

become aware, of the extent and seriousness of his or her alleged legal problem; whether

the injured party was aware, or should have been aware, that the damage or injury alleged
was related to a specific legal transaction or undertaking previously rendered to him or

her; and whether such damage or injury would put a reasonable person on notice of the

need for further inquiry as to the cause of such damage or injury. Omni at paragraph two

of the syllabus.

       {¶15} It is difficult to determine from reading Novak’s complaint the conduct

that he is alleging constituted malpractice in 1996 and 1997. Most of the complaint is

dedicated to allegations that Camino and his attorney have engaged in discovery

violations. These likely are related to the discovery that Novak attempted in the prior

case that he subsequently dismissed.      However, such alleged wrongdoing does not

constitute malpractice because it did not arise out of Camino’s representation of Novak,

but out of his defending himself against Novak’s allegations. Any fraudulent conduct

that Novak generally alleges in the complaint that relates to the 1996 and 1997

proceedings would be barred by the one year statute of limitations.            If Novak is

contending malpractice in the negotiation of the plea or representation at the sentencing

hearing, he most certainly would have been aware of any wrongdoing relating to these

events when they occurred over 13 years before filing his initial complaint.

       {¶16} He also alleges that Camino accepted monetary compensation to represent

him, when Camino, as a public defender, was barred by the law from doing so. Although

such conduct would be unethical, it does not constitute malpractice. Unethical conduct

and legal malpractice are not synonymous terms; it is possible for one to occur without

the other. DeMeo v. Provident Bank, 8th Dist. No. 89442, 2008-Ohio-2936, ¶ 44-45;

Powell v. Rion, 2d Dist. No. 24756, 2012-Ohio-2665. If Camino did accept personal
payment, which is debatable, such conduct would be unethical, but there is no evidence it

affected Camino’s ability to represent Novak.        Such allegations are appropriate for

consideration by the disciplinary board.3

       {¶17}   Novak’s complaint also alleges that Camino committed malpractice in

2008, when he represented Novak in his attempts to expunge his attempted murder

conviction. Novak argues Camino was obligated to appear at the hearing and failed to

do so. We do not need to determine if Camino was immune from liability regarding his

representation as to Novak’s expungement because Novak’s claim fails to show that

Camino committed malpractice.

       {¶18} In order 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, 77 Ohio St.3d 421, 1997-Ohio-259, 674 N.E.2d 1164, syllabus. The

plaintiff’s failure to prove any one of these elements entitles the defendant-attorney to

summary judgment. Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012,

887 N.E.2d 1167, ¶ 8.

       {¶19} Novak was not harmed by Camino’s failure to appear at the expungement

hearing. Novak was not entitled to expungement because he committed a crime of

       3
        Camino contends the disciplinary board has absolved him from all
wrongdoing concerning the case. However, we have no evidence of this in the
record.
violence, which is not an expungeable offense. R.C. 2953.36(C). His attempted murder

conviction was also not his first offense because he had several prior misdemeanor

convictions. Therefore, because it was not his first offense, R.C. 2953.31(A) also barred

the expungement.

       {¶20}    Camino’s presence would have done nothing to change the law on

expungement.       Therefore, because there is no causal connection between Camino’s

failure to appear at the expungement hearing and the court’s denial of the motion for

expungement, Novak has failed to set forth a successful legal malpractice claim as to the

failure to have his conviction expunged. Accordingly, Novak’s first and second assigned

errors are overruled.

                                   Discovery Violations

       {¶21} We will address Novak’s third and fourth assigned errors together because

they both relate to his contention that the trial court’s rulings prevented him from

presenting additional evidence. Specifically, he argues the trial court did not allow him

to schedule depositions and failed to require Camino to fully answer the interrogatories.

He argues the trial court’s rulings on the discovery issues violated his right to due process

because he was denied full discovery.

       {¶22} A trial court enjoys broad discretion in the regulation of discovery. Whitt

v. ERB Lumber, 156 Ohio App.3d 518, 2004-Ohio-1302, 806 N.E.2d 1034 (2d Dist.);

Manofsky v. Goodyear Tire & Rubber Co., 69 Ohio App.3d 663, 668, 591 N.E.2d 752

(9th Dist.1990).     We review a trial court’s ruling on discovery pursuant to an abuse of
discretion standard. Lightbody v. Rust, 137 Ohio App.3d 658, 663, 739 N.E.2d 840 (8th

Dist.2000).

      {¶23} The trial court did not abuse its discretion. The trial court had ordered at

the pretrial that depositions be taken in its courtroom.4 Although Novak filed motions

requesting dates available to take the depositions, the court ruled that the motions were

moot once summary judgment was granted. Because Novak’s claims as to the 1996

litigation are time barred, the trial court’s failure to allow Novak to conduct depositions

regarding Novak’s representation at the time was harmless error. Additionally, we have

held that Novak’s claim that Camino committed malpractice by failing to attend the

expungement hearing was without merit because his crime was not expungeable.

Therefore, deposition testimony as to Camino’s representation regarding the

expungement would not have supported Camino’s argument.

      {¶24} There is also no merit to Novak’s arguments relating to Camino’s failure to

answer the interrogatories. The trial court conducted a hearing on June 6, 2012, where it

went through each interrogatory question. The court ordered Camino to supplement four

of the questions, which he did. As to the other questions, the trial court found that

Camino had properly answered the questions, but that Novak simply did not like the

responses. Thus, the court did not abuse its discretion by not requiring Camino to



      4
       There is no journal entry in the record showing the court-ordered depositions
to be taken in its courtroom; however, in the transcript of the discovery hearing
held on June 6, 2012, the trial court conceded that it ordered the depositions to be
taken in its courtroom, and Camino also admits in his appellee’s brief that the court
ordered this at the pretrial.
supplement all of the answers. Accordingly, Camino’s third and fourth assigned errors

are overruled.

                            Motion for Relief from Judgment

       {¶25} In his fifth assigned error, Novak argues the trial court erred by denying

his motion for relief from judgment. Specifically, he argues the trial court was without

jurisdiction to rule on the motion because his appeal regarding the court’s granting of the

motion for summary judgment was pending before the court of appeals.

       {¶26} The Ohio Supreme Court has held that, “[o]nce a case has been appealed,

the trial court loses jurisdiction except to take action in aid of the appeal.” In re S.J., 106

Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9. “The trial court [only] retains

jurisdiction over issues not inconsistent with the appellate court’s jurisdiction to reverse,

modify, or affirm the judgment appealed from.” Id.; State ex rel. Electronic Classroom of

Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626,

950 N.E.2d 149, at ¶13. The Ohio Supreme Court has “expressly held that an appeal

divests trial courts of jurisdiction to consider Civ.R. 60(B) motions for relief from

judgment.” Howard v. Catholic Soc. Servs. of Cuyahoga Cty. Inc., 70 Ohio St.3d 141,

147, 1994-Ohio-219, 637 N.E.2d 890 (1994). “Jurisdiction may be conferred on the trial

court only through an order by the reviewing court remanding the matter for consideration

of the Civ.R. 60(B) motion.”        Id.   Accordingly, Novak’s fifth assigned         error is

sustained.

       {¶27} Judgment affirmed in part and reversed and remanded in part.

       It is ordered that appellant and appellee share the costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to 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.



PATRICIA ANN BLACKMON, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
