[Cite as Hinton v. Masek, 2014-Ohio-2890.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


ALAN HINTON,                                   :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2013-T-0110
        - vs -                                 :

RAYMOND MASEK, ESQ.,                           :

                 Defendant-Appellee.           :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CV
02788.

Judgment: Affirmed.


Alan Hinton, pro se, 278 Crandall Avenue, Youngstown, OH 44504 (Appellant).

Matthew T. Norman and Alan M. Petrov, Gallagher, Sharp, Fulton & Norman, Sixth
Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, OH 44115-2108 (For
Defendant-Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Alan Hinton, appeals from the judgment of the Trumbull County

Court of Common Pleas, granting appellee, Raymond Masek, Esq., summary judgment.

At issue is whether the trial court erred in entering judgment against appellant for his

failure to enlist an expert to establish his claim for legal malpractice. We affirm the

judgment of the trial court.
       {¶2}   Trinity Highway Products, LLC, employed appellant between August 1993

and January 2012, most recently as a “kettle helper.” Appellant’s duties as a kettle

helper included cleaning a large kettle filled with molten zinc and assisting the

“kettleman.” On January 25, 2012, appellant’s supervisor instructed him to clean the

kettle on two separate occasions. Appellant stated he would not clean the kettle and

admitted he intentionally left the kettle dirty because a co-worker left the kettle dirty for

his shift. Appellant was subsequently terminated for insubordination. Appellant filed a

grievance regarding his termination.     Appellant’s union recommended that appellant

enter into a last chance agreement with Trinity; appellant rejected the advice and the

termination was upheld.

       {¶3}   In February 2012, appellant retained appellee to pursue a potential claim

for age discrimination against Trinity. The parties entered into a fee agreement for legal

services and, on March 26, 2012, appellee filed a complaint on appellant’s behalf

against Trinity in the Trumbull County Court of Common Pleas, alleging appellant was

terminated due to his age, in violation of R.C. Chapter 4112. Trinity subsequently filed a

notice of removal to federal court. As a result, in May 2012, the case was removed to

the United States District Court, Northern District of Ohio.

       {¶4}   Through August 2012, appellee, on behalf of appellant, and Trinity

engaged in settlement negotiations. The negotiations culminated in an August 21, 2012

oral agreement to settle appellant’s claim. The terms of the settlement required Trinity to

pay appellant $7,000 in exchange for his dismissal of the case and release of all claims

against Trinity.   When appellee advised appellant a settlement had been reached,

appellant objected to the terms of the agreement, claiming he did not authorize appellee




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to settle the matter.     Despite appellant’s protests, Trinity sought to enforce the

agreement.

       {¶5}   Due to appellee’s and appellant’s disagreement over appellee’s authority

to settle the case, the trial court granted appellee’s motion to withdraw as appellant’s

counsel. Appellant continued pro se in the Trinity litigation and the trial court ultimately

denied Trinity’s motion to enforce the settlement agreement. The case proceeded on

the merits and, ultimately, the district court entered summary judgment in Trinity’s favor.

       {¶6}   Meanwhile, on December 14, 2012, appellant filed a pro se complaint

against appellee for legal malpractice. The complaint alleged appellee was retained to

represent appellant in the Trinity litigation, but failed to effectively do so and, eventually,

appellee withdrew as appellant’s counsel. In January 2013, appellee filed an answer

and counterclaim.     Appellee denied any wrongdoing and further sought recovery of

unpaid legal fees. The trial court entered an order setting forth a litigation schedule

according to which appellant was required to disclose any experts and their reports by

July 11, 2013. Appellant failed to meet this deadline. And, on September 3, 2013,

appellee filed his motion for summary judgment.

       {¶7}   In late September and early October 2013, appellant filed various letters

and other documents which, in his view, included an “expert opinion” in support of the

malpractice allegation.    The documents, however, related to an ancillary grievance

proceeding filed by appellant and included no expert report that would support

appellant’s allegation that appellee committed legal malpractice.

       {¶8}   On October 21, 2013, the trial court entered summary judgment in

appellee’s favor. The court determined that appellant’s late filings, purporting to include




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an expert opinion, were both inadequate under Civ.R. 56(E) and subject to

confidentiality under the rules governing the disciplinary process in Ohio. The court

further emphasized that the purported expert opinion failed to address the primary

issues in the underlying action; namely, the standard of care that was breached which

proximately caused appellant’s alleged damages.        The court acknowledged that an

expert report may be unnecessary if the alleged malpractice is so manifest as to be

within the ordinary ken and experience of a layperson. The court determined, however,

that the circumstances of the underlying case did not present such an obvious case of

malpractice to place it outside the general rule requiring an opinion of an expert.

       {¶9}   The trial court consequently concluded that, although an attorney-client

relationship was established, there was no evidence to support appellant’s allegation

that appellee breached any professional obligation he owed appellant that proximately

caused appellant harm. The court therefore determined there was no genuine issue of

material fact to be litigated regarding appellee’s professional negligence. This appeal

followed.

       {¶10} Appellant assigns two apparent errors for this court’s review. His first

assignment of error reads simply:

       {¶11} “Breach of contract of attorney/client relationship”

       {¶12} Appellant contends the trial court erred in awarding appellee summary

judgment because his legal malpractice claim did not require expert testimony to

establish whether appellee breached his professional duty.

       {¶13} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated;




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(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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party's favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105 (1996). “A de novo review requires the appellate court to conduct

an independent review of the evidence before the trial court without deference to the

trial court’s decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-

0014, 2011-Ohio-5439, ¶27.

       {¶14} To establish a claim for legal malpractice a plaintiff must show: (1) an

attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3)

damages suffered by a client as a result of that attorney’s breach of duty. Sprague v.

Simon, 144 Ohio App.3d 437, 441 (11th Dist.2001), citing Krahn v. Kinney, 43 Ohio

St.3d 103, 105 (1989). Failure to prove any one of these elements entitles a defendant

to summary judgment on a legal malpractice claim.

       {¶15} “Summary judgment in favor of the attorney is appropriate when a plaintiff

fails to supply expert testimony on alleged negligence that is ‘neither within the ordinary

knowledge of the layman nor so clear as to constitute negligence as a matter of law.’”

Brunstetter v. Keating, 11th Dist. Trumbull No. 2002-T-0057, 2003-Ohio-3270, ¶16,

quoting Bloom v. Dieckmann, 11 Ohio App.3d 202, 203 (1st Dist.1983). In all but a few

cases, expert testimony is required to support allegations of legal malpractice.

Brunstetter, supra.




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      {¶16} In his motion for summary judgment, appellee presented an affidavit

averring he breached no professional duty to appellant; he further argued that, even if a

breach could be inferred from the facts, appellant suffered no resulting prejudice.

Appellee’s motion was sufficient to shift the burden requiring appellant to establish a

genuine issue of material fact. For the reasons that follow, we hold he failed to do so.

      {¶17} In his brief, appellant blankly asserts his claim for malpractice does not

require expert testimony because appellee’s conduct was so obviously negligent that an

expert opinion was unnecessary. We do not agree.

      {¶18} Appellant asserts that appellee “allowed” the case to be removed to

federal court without his consultation or consent.     The record suggests Trinity, not

appellee, sought removal to the federal court. And, even if appellant wished to contest

the removal, we fail to see how appellee’s decision not to seek appellant’s input on the

matter is such an obvious error that it would rise to the level of a breach of his

professional duty. Further, the record indicates that appellee’s oral settlement of the

case may have been unauthorized; while, in the abstract, this might be an obvious

breach of appellee’s professional duty, the potential breach caused appellant no

damage. The trial court eventually determined that appellant was not bound by the

settlement and he continued to prosecute the matter pro se. Moreover, the fact that

appellee negotiated appellant a $7,000 settlement on a case in which Trinity was

awarded summary judgment further supports the conclusion that appellee’s

representation was consistent with his professional obligations. Appellant’s actions,

consequently, do not constitute negligence as a matter of law.




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       {¶19} Despite appellant’s conclusory statement, we fail to discern what aspect

of appellee’s representation was so obviously negligent that appellant was not required

to submit an expert report. Under the circumstances, an expert was necessary to opine

on the manner in which appellee’s representation allegedly fell below professional

standards of conduct as well as how the alleged breach proximately caused appellant

damage. Because appellant failed to submit an expert report, appellee was entitled to

judgment as a matter of law.

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

       {¶21} Appellant’s second assignment of error reads:

       {¶22} “Diversity jurisdiction and Remand”

       {¶23} Appellant offers no argumentation in support of this assignment of error.

Pursuant to App.R. 16(A)(7), it is not well taken.

       {¶24} Appellant’s second assignment of error lacks merit.

       {¶25} For the reasons discussed above, the judgment of the Trumbull County

Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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