[Cite as Vestige, Ltd. v. Mills, 2013-Ohio-2379.]


STATE OF OHIO                      )                     IN THE COURT OF APPEALS
                                   )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

VESTIGE, LTD.                                            C.A. No.     12CA0041-M

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
LUTHER MILLS, ESQ.                                       COURT OF COMMON PLEAS
                                                         COUNTY OF MEDINA, OHIO
        Appellant                                        CASE No.   09CIV0529

                                  DECISION AND JOURNAL ENTRY

Dated: June 10, 2013



        CARR, Presiding Judge.

        {¶1}     Appellant, Luther Mills, dba The Mills Law Office, appeals from a judgment of

the Medina County Court of Common Pleas that awarded damages and attorney fees to appellee,

Vestige, Ltd., on its breach of contract claim against Mills. This Court reverses and remands for

a new trial because the trial court erred in granting a directed verdict against Mills on his

counterclaim, which alleged that Vestige was not entitled to payment under the contract because

it breached its duty to perform its services in professional and competent manner.

                                                    I.

        {¶2}     Because the dispositive issue in this appeal is the directed verdict granted against

Mills on his counterclaim, this Court has construed the evidence in favor of Mills, and states the

facts in that light.1 On July 15, 2008, Mills, an attorney, entered into a contractual relationship




        1
         Despite the representations in Vestige’s appellate brief to the contrary, a transcript of
proceedings was filed and made part of the record in this appeal.
                                                 2


with Vestige, a computer forensic company, to examine computer evidence that the State had

seized from the home of one of his clients. Mills had been retained by Danny Starner to defend

him against criminal charges in Marion County involving the alleged sexual abuse of minors. As

part of the State’s investigation in that case, it seized several computers, external drives, and

other computer-related devices from Starner’s home. The computers and devices were searched

for evidence that would corroborate the statements of one or more of the alleged victims that

Starner had stored images of his victims on the computers and that he had shown one victim

pornographic images and/or “stories” on a computer in his kitchen.

       {¶3}    During discovery in Starner’s criminal case, the prosecution provided the defense

with extensive information about what the Bureau of Criminal Investigation (“BCI”) had

recovered from Starner’s computers. According to Mills, BCI initially discovered little or no

incriminating evidence on Starner’s computers but later was able to determine that a software

program, Evidence Eliminator, had been run on one or more of the computers to delete numerous

files. Although BCI was unable to recover the content of the deleted files, the prosecution

planned to use the results of BCI’s forensic analysis as circumstantial evidence of Starner’s guilt,

based on an inference that he had deleted the files because they were incriminating.

       {¶4}    Mills contracted with Vestige to conduct an independent forensic examination of

the evidence seized from Starner’s home, explain the results of its analysis to Mills and his

defense team and, if Mills concluded that independent expert testimony would aid Starner’s

defense, Vestige would provide an expert to testify at Starner’s trial. It was understood between

the parties that Starner’s defense team hired Vestige to help it understand what the prosecution

could prove about the operation of the Evidence Eliminator program on Starner’s computers.
                                                 3


       {¶5}    Vestige analyst, Nick Ventura, conducted the bulk of the forensic analysis of the

numerous computers and other devices that had been seized from Starner’s home. Ventura did

not have experience testifying as an expert witness at trial, however. Consequently, Mills and

Vestige agreed that, if the defense team decided to present expert testimony at Starner’s trial, that

testimony would be provided by a more experienced Vestige analyst, Greg Kelley. Because

Kelley had testified as a trial expert approximately 20 times before, Mills believed he would be

qualified to handle cross-examination by the prosecution.

       {¶6}    On October 15, 2008, several days before Starner’s criminal trial commenced,

Mills and other members of Starner’s defense team met with Kelley and Ventura. The purpose

of the meeting was to discuss Vestige’s forensic analysis of Starner’s computers to enable Mills

to plan the defense strategy. During the meeting, Kelley and Ventura informed the defense team

about what Ventura had found on Starner’s computers and led them to believe that the

prosecution would not be able to prove that Starner had operated the Evidence Eliminator

program to delete incriminating files from his computers. Based on what Mills learned from

Vestige at the meeting, he decided that the defense would present Kelley as an expert witness at

Starner’s trial because his testimony would be helpful to the defense. Because Ventura had

performed most of the forensic work, however, Mills asked him to attend the trial as well, to

assist the defense team in preparing its cross-examination of the BCI expert.

       {¶7}    Unbeknownst to Mills, Ventura came to Starner’s trial with written notes about

the results of his computer forensic analysis. Aside from problems created by the fact that the

trial court considered Ventura’s notes to be a written expert witness report that Mills had not

provided to the prosecution, portions of Ventura’s written notes contradicted some of Kelley’s

testimony and/or what he had communicated to the defense team about the results of Vestige’s
                                                 4


forensic analysis. The prosecution cross-examined Kelley with Ventura’s notes and admitted

them as an exhibit at trial.

        {¶8}    Ultimately, the overall substance of the Vestige expert evidence at Starner’s trial

was different from what Kelley had communicated to the defense team about the content of the

deleted files, what specific computers and drives showed evidence of file deletion, and whether

Starner had deliberately deleted files.     Mills believed that Kelley’s expert testimony was

damaging to Starner’s defense and, according to Mills and another member of the defense team,

Kelley apologized to Mills after his testimony. After the trial, Mills took the position that, had

Kelley accurately informed him about the results of Vestige’s forensic analysis, he would not

have presented his expert testimony at Starner’s trial.

        {¶9}    By the conclusion of its services, Vestige billed Mills a total of over $30,000 for

its time and expenses. Included in its bill, Vestige charged its hourly rate of $250 for each of the

hours that Ventura and Kelley spent at Starner’s trial, for a total of $12,000 – 15,000. Although

Mills had already paid $15,000 of the bill through several retainer payments, he refused to pay

the remaining balance of the bill. Consequently, Vestige sued Mills, seeking to recover the

remaining balance that it alleged was due on the contract. Mills counterclaimed, alleging that he

owed Vestige nothing, and in fact might be entitled to a refund of what he had already paid,

because Vestige breached the contract by negligently performing its services.

        {¶10} This civil matter proceeded to a jury trial.         Following the presentation of

evidence, Vestige moved for a directed verdict on the counterclaim, arguing that Mills could not

prove that Vestige breached its duty to perform its obligations under the contract because Mills

failed to offer expert testimony on the issue of its professional duty. The trial court agreed and

granted a directed verdict on Mills’ counterclaim. The jury found in favor of Vestige on its
                                                5


breach of contract claim and awarded damages of $15,928.48 plus interest. The trial court

entered judgment on the jury verdict.

       {¶11} Vestige also sought attorney fees pursuant to paragraph 11 of the parties’

agreement, which provided, in relevant part:

       In the event legal action is commenced by either party in connection with this
       Agreement, the prevailing party shall be entitled to recover reasonable attorneys’
       fees and costs * * * expended by the prevailing party in connection with such
       action.

After the damage judgment in its favor, Vestige moved the trial court for an award of attorney

fees. Following a hearing on the issue, the trial court awarded Vestige $16,890.00 in attorney

fees. Mills appeals and raises two assignments of error.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DECIDING THAT AN EXPERT WITNESS
       WAS REQUIRED IN ORDER FOR DEFENDANT TO PURSUE HIS
       COUNTERCLAIM.

       {¶12} Mills’ first assignment of error challenges the directed verdict on his

counterclaim. The trial court dismissed his counterclaim because Mills did not present the

testimony of a forensic expert to support his claim that Vestige failed to perform its services

under the contract in a reasonably professional manner. Mills argues that the alleged breach of

duty by Vestige was within the common understanding of a lay person and, therefore, did not

require expert testimony to establish his claim. We agree.

       {¶13} Expert testimony may have been required if Mills had attempted to prove that

Ventura or anyone else from Vestige had failed to exercise reasonable skill or judgment in

analyzing the contents of Starner’s computers. See, e.g., Ramage v. Cent. Ohio Emergency

Serv., Inc., 64 Ohio St.3d 97, 102 (1992). “Generally, expert testimony would be required in
                                                6


regard to professional standards of performance.” McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d

112, 113 (1984).

       {¶14} Mills’ counterclaim did not allege any deficiencies in the quality of forensic

analysis that Ventura performed on the computer evidence seized from Starner’s home, however.

The gist of Mills’ counterclaim was that, even if Vestige performed a competent forensic

evaluation of Starner’s computers, it did not accurately and/or effectively communicate the

results of its analysis to Mills and other members of the defense team. Mills focused on evidence

that Kelley, who did most of the communication to the defense team about Ventura’s findings,

and later testified as an expert, lacked sufficient knowledge about the results of Ventura’s

forensic analysis. The sole focus of the counterclaim was on Vestige’s breach of its duty to

adequately communicate its forensic findings to Mills to enable him to plan his trial strategy in

Starner’s defense and, if Mills chose to present forensic evidence at trial, to provide him with an

expert who was reasonably prepared to testify about the results of Vestige’s forensic analysis.

       {¶15} In his legal representation of Starner, rather than relying on BCI’s assessment of

the computer evidence, Mills hired Vestige to determine, and explain to his defense team, what

the prosecution could prove from the computer evidence, and whether BCI’s forensic assessment

of Starner’s computers was accurate or could be challenged through cross-examination and/or

independent expert testimony. See Greeley, The Plight of Indigent Defendants in A Computer-

Based Age: Maintaining the Adversarial System by Granting Indigent Defendants Access to

Computer Experts, 16 Va. J.L. & Tech. 400, 407-09 (2011). A criminal defense attorney’s

reliance on an independent expert requires that the expert accurately and effectively

communicate the results of its assessment to the defense attorneys to enable them to exercise

their professional judgment in planning trial strategy. See id.   Vestige’s communication of its
                                                  7


forensic results to the defense team was a key element of the professional relationship between

Mills and Vestige.

         {¶16} The contract between Mills and Vestige explicitly provided, in relevant part, that

“Vestige Ltd. will examine all available evidence in the case, provide an analysis of its findings,

and will be available to provide testimony in the manner.” The component of the contract that

required Vestige to “provide an analysis of its findings” required that it communicate its findings

to Mills and implicitly required that it do so accurately and effectively.

         {¶17} The professional negligence counterclaim of Mills involved only “matters of

common knowledge and experience, [that] are within the ordinary, common and general

knowledge and experience of mankind, [and] need not be established by expert opinion

testimony.” Ramage, at 103.       The obligation of an expert consultant to communicate to his

client, in terms that someone outside his field of expertise can understand, and to do so in an

accurate manner, falls within the common knowledge that average jurors have. Any lay person

could understand that Vestige had a duty to provide Mills and his team with an accurate

explanation of its findings, and, if asked to provide expert testimony, to provide an expert who

was adequately familiar with the results of Vestige’s forensic analysis and prepared to testify at

trial.

         {¶18} At the October 15 meeting, Vestige reported its results to the defense team and

the team asked specific questions about the operation of the Evidence Eliminator program on

Starner’s computers. Mills and other members of his defense team testified at the civil trial

about significant discrepancies between what Kelley explained to them at the pretrial meeting

and his testimony at Starner’s criminal trial. Mills presented evidence that there were three key

areas of discrepancies, all of which focused on the extent to which the prosecution could create
                                                 8


an inference that Starner had taken deliberate action to delete incriminating evidence from his

computers: whether the files had been deleted automatically or manually; the specific computers

from which files had been deleted; and the content of the deleted files.

                           Automatic vs. Manual Deletion of the Files

       {¶19} Vestige informed the defense team that the Evidence Eliminator program had the

ability to delete files automatically and manually, so the defense team asked numerous questions

about the manner in which the relevant files had been deleted from Starner’s computers. The

defense team questioned Vestige at length about whether the prosecution could prove that the

files had been deleted manually (by a key stroke or some other deliberate action by a person)

and, if so, whether it could prove that Starner himself had deleted the files. According to the

testimony of Mills and another member of his defense team, Kelley told them that the relevant

files had been deleted by an automatic operation of the program, not by manual operation.

       {¶20} At Starner’s trial, however, Kelley testified that Evidence Eliminator did not

automatically delete files from any of the computers but that it was operated by a person at the

keyboard every time the program deleted files. Kelley was then cross-examined about the

contents of Ventura’s notes, which indicated that Evidence Eliminator had been operated from

Starner’s personal user’s account.

       {¶21} At the civil trial, Mills’ witnesses testified that this was a major discrepancy

between the pre-trial information provided by Kelley and his actual testimony. Rather than

assisting in Starner’s defense, the defendant’s own expert only bolstered the State’s argument

that Starner had deliberately deleted files from his computers.
                                                 9


                              Specific Computers with Deleted Files

       {¶22} Numerous computers had been seized from Starner’s home, but a significant part

of the prosecution’s case focused on the computer in Starner’s kitchen. Consequently, the

defense team explained the significance of the kitchen computer to Kelley and asked him several

times which computers and drives had run the Evidence Eliminator program to delete files.

According to the testimony of Mills’ witnesses, Kelley told them that the program had been run

on only one computer seized from Starner’s home, which was not the computer in the kitchen. A

member of the defense team further testified that they specifically asked whether the Evidence

Eliminator program had been run on the detachable USB drive that was found in Starner’s

kitchen. Kelley told them that Evidence Eliminator had not been run on the USB drive. At trial,

however, Kelley testified that Evidence Eliminator had deleted files on two computers, including

the one found in the kitchen, and that it had been used to delete files from the USB drive.

                                     Content of Deleted Files

       {¶23} The defense team further asked Kelley about whether the prosecution could prove

the type of files that were deleted from Starner’s computers, with specific focus on pornographic

or any type of images or pictures. They repeatedly asked for confirmation that the prosecution

would not be able to prove that pictures or photographs had been deleted from Starner’s

computers. According to Mills’ witnesses, Kelly told them that only one picture had been

deleted and that the other files were text files. At Starner’s criminal trial, however, Kelley

testified that “anything” could have been in the files that were deleted.

       {¶24} Ultimately, given the numerous discrepancies between Kelley’s actual testimony

and what the defense team had expected it to be, Mills believed that Kelley’s testimony did more

harm than good to Starner’s defense. As Mills explained at the civil trial, he gave his client bad
                                                10


legal advice based on bad information. He further testified that, had Vestige accurately and

effectively informed him about the results of its forensic analysis, he would not have called

Kelley as an expert witness at Starner’s trial and might even have advised Starner to enter into

plea negotiations rather than going to trial.

       {¶25} The sole reason that Mills contracted with Vestige was to assist him in his

criminal defense of Starner by helping him understand the State’s evidence against his client.

Apparently because Kelley did not fully understand the results of Ventura’s forensic analysis or

did not effectively communicate those results, he had misinformed Mills and the defense team

about the incriminating nature of the evidence found on Starner’s computers. Construing the

facts in favor of Mills at the civil trial, a reasonable juror could understand and conclude that

Vestige breached its duty to Mills to accurately and effectively communicate the results of its

forensic analysis to assist him in planning his trial strategy and to provide him with an expert

witness who was adequately informed about the results of the forensic analysis. No expert

testimony was required to explain the standard of care owed by Vestige under these facts,

because it was well within the common understanding of a reasonable juror that the duty of a

forensic expert to communicate its findings to a client implies a duty to communicate those

findings in an accurate and effective manner. Because Mills presented evidence to support his

counterclaim and no expert testimony was required, the trial court erred in granting a directed

verdict against him. The first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE COURT ERRED IN GRANTING ATTORNEY FEES BASED [ON]
       PARAGRAPH 11 OF THE CONTRACT DATED JULY 15, 2008.
                                                 11


       {¶26} Mills’ second assignment of error, which challenges the trial court’s award of

attorney fees to Vestige, will not be addressed on the merits because it has been rendered moot

by this Court’s disposition of the first assignment of error.

                                                 III.

       {¶27} The first assignment of error is sustained. The second assignment of error was

not addressed because it is moot. Because this Court is remanding the matter to allow the

counterclaim of Mills to be decided on the merits, Vestige’s damage claim must necessarily be

re-litigated because Vestige’s claim for payment was inextricably intertwined with Mills’

counterclaim. Consequently, Vestige’s damage award, its status as the “prevailing party,” and its

subsequent award of attorney fees are reversed and remanded for further proceedings consistent

with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                         12


      Costs taxed to Appellee.




                                              DONNA J. CARR
                                              FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

STEWART ROBERTS and STACY MILLS, Attorneys at Law, for Appellant.

RONALD T. GATTS, Attorney at Law, for Appellee.
