[Cite as Andolsek v. Burke, 2014-Ohio-3501.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100701


                               YOLANDA ANDOLSEK
                                               PLAINTIFF-APPELLANT

                                                vs.

                                  JOHN F. BURKE, III
                                               DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-12-776180

            BEFORE:          Blackmon, J., S. Gallagher, P.J., and McCormack, J.

            RELEASED AND JOURNALIZED:                      August 14, 2014
ATTORNEY FOR APPELLANT

Ravi Suri
28520 Hidden Valley Drive
Orange, Ohio 44022


FOR APPELLEE

John F. Burke, III
Burkes Law, L.L.C.
614 West Superior Avenue
Rockefeller Building, Suite 1500
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, J.:
       {¶1} Appellant Yolanda Andolsek (“Andolsek”) appeals the trial court’s decision

granting appellee John Burke, III’s (“Burke”) motion for directed verdict. Andolsek

assigns the following errors for our review:

       I. The trial court erred in granting directed verdict for the defendant.

       II. The trial court erred in denying partial directed verdict for the plaintiff.

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

decision. The apposite facts follow.

       {¶3} On February 16, 2012, Andolsek refiled a complaint previously voluntarily

dismissed. In the refiled complaint, Andolsek alleged that sometime in 1998, she entered

into a business agreement with Phil Sterrett (“Sterrett”) whereby she would invest in a

company that later became known as Star Metal Finishing (“Star Metal”). Andolsek

alleged that pursuant to the agreement, Sterrett promised her a 50% interest in the

business if it was successful, return of her investment if the business was unsuccessful,

and that he would oversee the daily operations of the business.

       {¶4} Andolsek alleged that over the next several years, she invested

approximately $250,000 in the venture that she funded from personal savings and taking

out two mortgages on her home.           Andolsek alleged that Sterrett defrauded her by

utilizing the money she invested for his personal needs, forging her signature to withdraw

monies from the business account, and stealing equipment from the company. Andolsek

alleged that as a result of Sterrett’s actions, the business failed and she lost her total

investment.
       {¶5} Andolsek further alleged that during 2002, she sought legal representation

regarding the matter from several attorneys including Burke, who had represented her

previously in several unrelated matters. Andolsek alleged that she discussed the case

with Burke, who orally agreed to represent her on a contingency fee basis against Sterrett.



       {¶6} Andolsek alleged that subsequently and through 2010, she believed Burke

was representing her against Sterrett, but discovered he had not commenced any action in

the matter. Andolsek finally alleged that Burke eventually informed her that he was no

longer willing to represent her against Sterrett, and she sought legal advice from another

attorney, who informed her that the statute of limitations on all causes of action against

Sterrett had expired.

                                        Jury Trial

       {¶7} On November 7, 2013, after significant motion practices, a jury trial

commenced. Andolsek presented the testimony of Attorney Lawrence Powers, whom

she had subpoenaed.      Powers testified that he had no recollection of meeting with

Andolsek in 2010. Powers recognized his handwriting on documents that Andolsek’s

attorney showed him at trial.

       {¶8} At trial, Andolsek’s testimony substantially mirrored the allegations of her

refiled complaint. In addition, Andolsek testified that after she discovered that Sterrett

was taking out monies for unauthorized purposes, she demanded that he leave Star Metal,

assumed total control of the daily operations, but it was too late to save the company.
       {¶9} Andolsek further stated that she consulted Burke for the purpose of suing

Sterrett for fraud and breach of contract, among other things. Andolsek insisted that

Burke agreed to represent her in the matter and that Burke even represented her in legal

issues arising from Star Metal’s operation. Andolsek said that in those matters, Burke

represented her for free and he never presented a written fee agreement.

       {¶10} At the conclusion of Andolsek’s case in chief, Burke moved for directed

verdict on three grounds, namely: (1) that Andolsek had no personal claim against

Sterrett, but solely against Star Metal, (2) Andolsek had presented no evidence that

Sterrett misappropriated corporate funds for his own purpose, and (3) Andolsek presented

no expert testimony regarding the legal standard of care that Burke allegedly breached.

The trial court denied the motion and Burke presented himself as a witness.

       {¶11} Burke first met Andolsek in the late 1990s when he handled an unsuccessful

appeal of a lawsuit her family had filed against a neighbor for harassment. Burke stated

that Andolsek would contact him periodically, complain that she was miserable working

in her family’s restaurant, and that she did not have a good relationship with her sister.

       {¶12} Burke testified that on one of these occasions, Andolsek mentioned that she

had gone into business with Sterrett, a customer of her family’s restaurant, who she

believed had stolen money from the business. Burke asked Andolsek if she had any

documents about the corporate structure or any written agreement between her and

Sterrett regarding her investment, but Andolsek had nothing in writing.
      {¶13} Burke testified that Andolsek subsequently gave him loan documents and

checks, but no proof that Sterrett had stolen any money. Burke stated that Andolsek

insisted that Sterrett was writing checks to himself, that he was a “con man” and did not

have any money or assets. Burke specifically testified as follows:

      I went and sat down with her and took some notes of my discussion with
      her, and then I repeatedly told her after that point in time that you need to
      get me proof of two things before we can do anything. Those two things
      are that you need proof of your claims about this relationship, that you
      really were given a guaranty. And the problem was she had these
      corporate documents, and the corporate documents say that she is the
      president. She has no document whatsoever that indicates that Mr. Sterrett
      owned any of the company. All the documents she has indicate that he was
      just an employee of the company. She also didn’t have any information for
      me that would lead me to believe, even if we were successful, that we
      would be able to collect any money.

Tr. 170-171.

      {¶14} Burke testified that subsequently in 2005 or 2006, he represented Andolsek

on some collection matters in Medina County, and in 2010 represented her in a case

where she claimed that someone damaged her car. Burke stated that Andolsek has not

paid for any of that work and that he never promised Andolsek he would file the case in

question. Burke finally stated it was during the pendency of the instant matter he learned

that in 2003 Andolsek had hired another attorney and had sued Sterrett separately.

      {¶15} At the close of Burke’s case, Burke renewed his motion for directed verdict.

The trial court granted the motion, and Andolsek now appeals.

                                    Directed Verdict
          {¶16} Because of their common basis in fact and law, we address both assigned

errors together. Andolsek argues the trial court erred by granting Burke’s motion for

directed verdict and denying her motion for partial directed verdict.

          {¶17} Civ.R. 50(A)(4), which sets forth the grounds upon which a motion for

directed verdict may be granted, states:

                  When a motion for a directed verdict has been properly made, and
          the trial court, after construing the evidence most strongly in favor of the
          party against whom the motion is directed, finds that upon any
          determinative issue reasonable minds could come to but one conclusion
          upon the evidence submitted and that conclusion is adverse to such party,
          the court shall sustain the motion and direct a verdict for the moving party
          as to that issue.

Friedland v. Djukic, 191 Ohio App.3d 278, 2010-Ohio-5777, 945 N.E.2d 1095 (8th

Dist.).     See also Crawford v. Halkovics, 1 Ohio St.3d 184, 438 N.E.2d 890 (1982); The

Limited Stores, Inc. v. Pan Am. World Airways, Inc., 65 Ohio St.3d 66, 600 N.E.2d 1027

(1992).

          {¶18} A trial court’s decision to grant a motion for a directed verdict involves a

question of law, and therefore, an appellate court’s review of that decision is de novo.

White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22, citing

Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur Co., 95 Ohio St.3d 512,

2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. De novo review means that this court uses the

same standard that the trial court should have used, and we examine the evidence to

determine whether as a matter of law no genuine issues exist for trial. Lasley v. Nguyen,

172 Ohio App.3d 741, 2007-Ohio-4086, 876 N.E.2d 1274 ¶ 18 (2d Dist.), citing Dupler v.
Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980). Thus,

the trial court’s decision to grant a motion for a directed verdict is not granted any

deference by the reviewing court. Moore v. Kettering Mem. Hosp., 2d Dist. Montgomery

No. 22054, 2008-Ohio-2082, ¶ 19, citing Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio

App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

       {¶19} In the instant case, Andolsek alleges that Burke is liable for legal

malpractice based on his failure to file suit before the statute of limitation expired on her

causes of action against Sterrett.

       {¶20} The following elements are necessary to establish a cause of action for legal

malpractice: (1) an attorney-client relationship, (2) professional duty arising from that

relationship, (3) breach of that duty, (4) proximate cause, and (5) damages. Estate of

Hards v. Walton, 8th Dist. Cuyahoga No. 93185, 2010-Ohio-3596, citing Shoemaker v.

Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, 887 N.E.2d 1167. The elements of

a legal malpractice claim are stated in the conjunctive, and the failure to establish an

element of the claim is fatal. Id., citing Williams-Roseman v. Owen, 10th Dist. Franklin

No. 99AP-871, 2000 Ohio App. LEXIS 4254 (Sept. 21, 2000).

       {¶21} With regard to the issue of liability for legal malpractice, we note that it is

well settled in Ohio that in order to prevail on a legal malpractice claim a plaintiff must

demonstrate, through expert testimony, by a preponderance of the evidence, that the

representation of the attorney failed to meet the prevailing standard of care, and that the

failure proximately caused damage or loss to the client. Zafirau v. Yelsky, 8th Dist.
Cuyahoga No. 89860, 2008-Ohio-1936, ¶ 27. Further, the Supreme Court made it clear

that there must be a causal connection between the lawyer’s failure to perform and the

resulting damage or loss. Jarrett v. Forbes, 8th Dist. Cuyahoga No. 88867,

2007-Ohio-5072, ¶ 19, explaining Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164

(1997).

      {¶22} Expert testimony is required to sustain a claim of legal malpractice, except

where the alleged errors are so simple and obvious that it is not necessary for an expert’s

testimony to demonstrate the breach of the attorney’s standard of care. McWilliams v.

Schumacher, 8th Dist. Cuyahoga Nos. 98188, 98288, 98390, and 98423, 2013-Ohio-29,

citing Hirschberger v. Silverman, 80 Ohio App.3d 532, 538, 609 N.E.2d 1301 (6th

Dist.1992). See also McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d

1295 (1984); Rice v. Johnson, 8th Dist. Cuyahoga No. 63648, 1993 Ohio App. LEXIS

4109 (Aug. 26, 1993); Cross-Cireddu v. Rossi, 8th Dist. Cuyahoga No. 77268, 2000 Ohio

App. LEXIS 5480 (Nov. 22, 2000).

      {¶23} Here, fatal to Andolsek’s claim of legal malpractice is her failure to present

any evidence, through experts testimony or otherwise, that the statute of limitations had

run on the causes of action against Sterrett, nor any evidence that Burke breached the

statute of limitations. For example, Andolsek put forth no evidence as to what the

applicable statute of limitations for fraud, breach of contract, promissory estoppel, or

breach of an oral agreement.
          {¶24} In granting Burke’s motion for directed verdict, the trial court underscored

the necessity of putting forth the proper evidence by stating: “There has not been one

shred of evidence regarding the fact that Mr. Burke violated a statute of limitations.

There is not one iota of evidence put on by plaintiff that he missed a statute of limitations

and/or that it was even through negligence.”

Tr. 232.

          {¶25} Under the circumstances, adhering to the applicable law cited above, the

trial court had no option but to grant Burke’s motion for directed verdict and deny

Andolsek’s motion for partial directed verdict. Accordingly, we overrule both assigned

errors.

          {¶26} Judgment affirmed.

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

          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate be sent to said 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

SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
