[Cite as Hall v. Gilbert, 2014-Ohio-4687.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101090




                                       JAMES W. HALL
                                                      PLAINTIFF-APPELLANT

                                                vs.

                         EDWARD L. GILBERT, ET AL.
                                                      DEFENDANTS-APPELLEES




                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-10-730009

        BEFORE: Rocco, P.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEYS FOR APPELLANT

Eric R. Fink
James R. Silver
217 N. Water Street
Kent, Ohio 44240


ATTORNEYS FOR APPELLEES

Elaine Tso
Joseph F. Nicholas, Jr.
Mazanec, Raskin, Ryder & Keller Co.
100 Franklin’s Row
34305 Solon Road
Solon, Ohio 44139
KENNETH A. ROCCO, P.J.:

       {¶1} In this action alleging legal malpractice, plaintiff-appellant James Hall

appeals from the trial court’s decision to grant the motion for summary judgment that

defendants-appellees Marc P. Gertz and his law firm, Goldman & Rosen, Ltd., filed, thus

terminating Hall’s case against appellees.

       {¶2} Hall presents a single assignment of error.          He asserts that summary

judgment in appellees’ favor on his claim was unwarranted. However, Hall supports his

assertion with two additional arguments, i.e., (1) the trial court applied an incorrect legal

standard to his claim, and (2) the trial court improperly required him to submit an expert’s

report regarding the amount of damages that he sustained as a result of appellees’

alleged legal malpractice.

       {¶3} Upon a review of the record, this court finds Hall’s assertion is unsupported

and his arguments lack merit. The trial court’s order, consequently, is affirmed.

       {¶4} The record reflects that in 1998, Hall hired attorney Edward L. Gilbert to

represent him in pursuing a discrimination action in federal district court against his

employer, Consolidated Freightways (“CF”). Gilbert’s efforts on Hall’s behalf proved

successful. In 2000, Hall obtained a jury verdict in his favor in the action in the amount

of $50,000.00 compensatory damages and $750,000.00 in punitive damages. The federal

district court then applied the “Federal Statutory Caps” to the verdict, reducing Hall’s

judgment to $300,000.00 plus $2,400.00 in lost wages. The federal district court also
awarded Hall attorney fees and costs in the amount of $147,254.90, thus rendering a

judgment against CF in Hall’s favor in the amount of $449,654.90.

       {¶5} Both CF and Hall filed notices of appeal of the judgment in the federal

appeals court. In February 2001, CF posted a supersedeas bond with the federal appeals

court in the amount of $450,135.00, which was enough to cover the district court’s

judgment, to prevent Hall from executing on any part of the judgment during the

pendency of the appeals.

       {¶6} In September 2002, after the federal appeals court heard oral arguments in

Hall’s case, CF filed a Chapter 11 petition for bankruptcy in the United States Bankruptcy

Court in the Central District of California. Pursuant to 11 U.S.C. 362, all proceedings

against CF, including the appeals in Hall’s case, were automatically stayed.

       {¶7} Gilbert indicated to Hall that the bankruptcy proceeding presented matters

beyond his expertise; therefore, Gilbert recommended that Hall obtain the help of

attorneys who specialized in bankruptcy law.         Gilbert suggested appellees.    Hall

acquiesced with Gilbert’s recommendation, leaving all communications with appellees in

the matter to Gilbert.

       {¶8} After appellees accepted Hall’s case from Gilbert, appellee Marc Gertz took

primary responsibility for it.   In December 2002, one of the first acts that Gertz

performed on Hall’s behalf in bankruptcy court was to file a “proof of claim.” Gilbert

supplied “round figures” for Hall’s claim. Thus, in filling out the form, Gertz placed on
it as the “Total Amount of [Hall’s] Claim at Time [the bankruptcy] Case [was] Filed” the

sum of “$300,000.00 plus fees and costs.”

          {¶9} At his deposition, Gertz testified that he was aware when he filed Hall’s proof

of claim form that Hall had appealed from the district court’s reduction of the jury’s

verdict, but at the time, “this was the amount which was the judgment amount” in Hall’s

case against CF. Gertz testified that the amount could be amended without leave of the

bankruptcy court.

          {¶10} Gertz also testified that, soon after he filed Hall’s claim in bankruptcy court,

Gilbert inquired of appellees about the possibility of lifting the bankruptcy stay with

respect to Hall’s case in the federal appeals court. According to Gilbert, Hall needed

money. Acting on Gilbert’s inquiry, Gertz engaged in negotiations with CF’s counsel in

early 2003 about the possibility.

          {¶11} Gertz stated that he understood that an unlimited relief from the stay “was

never on the table,” because CF would never agree to “allow[ Hall] to go outside of the

bankruptcy and go after [CF’s] assets.” Therefore, appellees instead sought a limited

relief.     At Gilbert’s urging, appellees focused on the funds represented by the

supersedeas bond CF posted in federal court to appeal from Hall’s judgment.

          {¶12} In May 2003, after approximately six months of negotiation with CF’s

counsel, appellees worked out an agreement for a limited lift of the automatic bankruptcy

stay of proceedings. Appellees and CF drafted a document that set forth the agreement’s

terms. The document was entitled “Stipulation with J. Hall for Limited Relief from
Automatic Stay.” Gertz testified that he explained the terms of the agreement to Gilbert

and Hall via a conference call. After this conversation, appellees filed a motion in

bankruptcy court on Hall’s behalf seeking a limited lift of the automatic stay. In June

2003, CF then filed in bankruptcy court a “proposed order” outlining the parties’

stipulation for the judge to sign.

       {¶13} In pertinent part, the stipulation contained the following facts: (1) it was

entered into between CF and James Hall, “by and through their respective counsel”; (2)

Hall had obtained a jury verdict in his favor in federal district court against CF on claims

for racial discrimination and civil rights violations, but the district court entered an order

on post-trial motions that amended the judgment to reduce the damages to $302,400.00;

(3) CF filed an appeal of the judgment and executed a bond in the amount of $450,135.00

that was “sufficient to pay the Judgment” in the event that CF lost the appeal; (4) after CF

petitioned for bankruptcy, CF filed for an automatic stay in the appellate court; (5) Hall

filed a proof of claim in CF’s bankruptcy proceeding; and (6) Hall filed a motion in

bankruptcy court for relief from the stay.

       {¶14} The stipulation also contained the following relevant agreements: (1) CF

agreed to “limited relief from the Automatic Stay” in Hall’s case to allow the federal

appellate court to render its decision; (2) in the event that the federal appellate court

decided in Hall’s favor, Hall would “seek payment of the Judgment Amount * * * solely

from the surety of the Bond”; (3)            Hall, “on behalf of himself and his heirs,

representatives and assigns,” in consideration for relief from the automatic bankruptcy
stay, “expressly waive[d] and release[d] any right he has or might assert to recover from

[CF] * * * or [its] assets (other than the Bond) any portion of the Judgment Amount or

any other amounts arising from or relating to the Judgment or the Appeal”; and (4) Hall’s

“Proof of Claim [wa]s hereby deemed to be withdrawn * * * .” The stipulation bore the

signatures of Gertz and CF’s counsel.

        {¶15} On June 20, 2003, the bankruptcy judge affixed his signature to the

stipulation. The limited lift of the stay permitted the federal appeals court to proceed

with its decision in Hall’s case against CF. On July 25, 2003, the appeals court decided

in Hall’s favor.    The appeals court reinstated the jury’s verdict in the amount of

$800,000.00, and did not disturb the district court’s award of attorney fees and costs to

Hall.

        {¶16} Pursuant to the stipulation, the $450,135.00 in funds from the supersedeas

bond were released. Gilbert deducted from that amount what he determined were due to

him for attorney fees and costs in pursuing Hall’s case against CF. He presented a

“disbursement” check to Hall for the balance, i.e., $214,795.59. Hall cashed the check.

Subsequently, despite the terms of the bankruptcy court stipulation, Gilbert sought to

claim additional funds in bankruptcy court on Hall’s behalf. On September 18, 2006, the

bankruptcy court issued a “cease and desist” order against Gilbert and Hall.1




        1Atoral argument in this case, Hall’s appellate counsel informed the panel
that the bankruptcy proceeding had not yet concluded.
       {¶17} In 2008, Hall filed a legal malpractice action against Gilbert and appellees in

the Cuyahoga County Court of Common Pleas. Hall thereafter voluntarily dismissed the

action, but refiled it on June 23, 2010 pursuant to the “savings statute.”

       {¶18} Appellees eventually filed a motion for summary judgment with respect to

Hall’s claim. Appellees argued that Hall could not establish either that they breached

any duty they owed to him or that he suffered any damages from their representation of

him in the bankruptcy action. In support of their arguments, appellees filed in the trial

court copies of deposition transcripts, letters and emails exchanged between the parties to

the bankruptcy proceeding, and copies of the relevant bankruptcy and federal court

documents. Appellees also noted that Hall’s expert refused to opine in his report that

appellees’ actions or omissions, even if they constituted legal malpractice, “would have

been successful or resulted in a larger recovery [against CF] by Mr. Hall.”

       {¶19} Hall filed an opposition brief, arguing that summary judgment in appellees’

favor was inappropriate. In support of his argument, he attached his affidavit, in which

he averred in relevant part that: (1) he “never had discussions with [appellees] or Gilbert

regarding the filing of a Stipulated Lift of Stay in the Bankruptcy Court, limiting damages

against [CF];” (2) he “never consented to the Stipulation to release the Stay in the [CF]

Bankruptcy Case,” and, (3) he believed that the “disbursement” check was a “partial

payment” for his award against CF and that he would receive additional monies from his

judgment against CF “until after July 11, 2006.”
                   {¶20} On August 15, 2011, the trial court issued a judgment entry granting

            summary judgment in appellees’ favor on Hall’s legal malpractice claim. The trial court

            stated in pertinent part as follows:

                           As set forth in Environmental Network Corp. v. Goodman, Weiss,
                   Miller, L.L.P., 119 Ohio St.3d 209, 211 (Ohio,2008), “[T]o establish a
                   cause of action for legal malpractice based on negligent representation, a
                   plaintiff must show that the attorney owed a duty or obligation to the
                   plaintiff, that there was a breach of that duty or obligation and that the
                   attorney failed to conform to the standard required by law, and that there is
                   a causal connection between the conduct complained of and the resulting
                   damage or loss.”

                          The court finds that Plaintiff has failed to prove any resulting
                   damage or loss as set forth under the third prong [of] Environmental
                   Network Corp., supra. Although Plaintiff has submitted an expert report,
                   said report is insufficient to show resulting damage or loss. While the
                   expert report may be, at best, instructive as to the elements of malpractice,
                   the report nevertheless stops short of making any connection to damages.
                   Specifically, the report states in pertinent part,

                   “I am not indicating that the action taken (i.e., filing a motion for relief from stay
            with an agreement to limit recovery if successful) or that the action not taken (i.e.,not
            pursuing the bankruptcy debtor for the full recovery) would have been successful or
            resulted in a larger recovery for Mr. Hall.” (Report of Michael T. Gunner, pg. 5)

          For this reason, Plaintiff failed to satisfy the standard as set forth by the Ohio Supreme Court in
    Environmental Network Corp., supra, and Defendants’ motion for summary judgment is granted * * * .

    {¶21} When the trial court entered a final order, Hall appealed from the judgment in appellees’ favor on h

aim. He presents the following assignment of error.

            I. The trial court erred in granting Appellees’ motions [sic] for summary judgment.

    {¶22} Hall asserts that summary judgment in appellees’ favor on his claim was unwarranted. However, H

pports his assertion with two additional arguments, i.e., (1) the trial court applied an incorrect legal standard to h
aim, and (2) the trial court improperly required his expert to state the amount of damages that he sustained as

sult of appellees’ alleged legal malpractice.

                   {¶23} A party seeking summary judgment, on the ground that the nonmoving party

            cannot prove its case, bears the initial burden of informing the trial court of the basis for

            the motion and of identifying those portions of the record that demonstrate the absence of

            a genuine issue of material fact on the essential elements of the nonmoving party’s

            claims. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). If the moving

            party fails to satisfy its initial burden, the motion for summary judgment must be denied.

            Id. However, if the moving party has satisfied its initial burden, the nonmoving party

            then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

            that there is a genuine issue for trial and, if the nonmovant does not so respond, summary

            judgment, if appropriate, shall be entered against the nonmoving party. Id. 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.

                   {¶24} In this case, appellees asserted that the evidence demonstrated that Hall

            could not support his claim against them.         In order to establish a claim of legal

            malpractice based on negligent representation, the plaintiff must demonstrate (1) that the

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

            or obligation in 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, 674 N.E.2d 1164 (1997), at syllabus.
 “[T]he requirement of causation often dictates that the merits of the malpractice action

depend upon the merits of the underlying case.” Id. at 427-428.

       {¶25} The evidence presented to the trial court in this case established the first

requirement. Gertz acknowledged that appellees had been hired to represent Hall for

purposes of CF’s bankruptcy proceeding.       The difficulty for Hall comes in the lack of

evidence to establish the other two requirements for his claim. Although Hall makes

several assertions in his appellate brief to this court concerning appellees’ “breaches of

duty” in their representation of him, none of his assertions has any foundation in the

evidence.

       {¶26} Hall presented no evidence to prove that Gertz breached a duty by limiting

the proof of Hall’s claim against CF in bankruptcy court to “$300,000 plus fees and

costs.” Gertz testified that he limited the claim to the amount of the actual judgment

rendered by the district court because to do otherwise would be “a violation of federal law

in terms of filing a false proof of claim.”      Gertz further testified that, should Hall

ultimately prevail in his appeal of the district court’s reduction of the jury award against

CF, the proof of claim amount in bankruptcy court could be amended. Hall’s expert did

not find that Gertz’s decision on this matter constituted legal malpractice.

       {¶27} Hall also failed to establish that appellees breached a duty by entering into

the stipulation with CF to lift the bankruptcy stay so that Hall could collect the money

from the supersedeas bond in satisfaction of his judgment. Gertz testified that Gilbert

encouraged appellees to negotiate limited relief from the stay of proceedings in the
federal appeals court in order for Hall “to get some money in his pocket” which “Gilbert

indicated was very important to Mr. Hall.” Gertz recollected that appellees discussed

their strategy with Gilbert on the telephone and that “Gilbert indicated Mr. Hall was

present when that decision was made and * * * he * * * accorded with the decision.”

Michael Steel, who worked with Gertz on Hall’s case, testified that CF’s bankruptcy

proceeding remained ongoing as of the date of his deposition, i.e., April 21, 2011. Thus,

even eight years after the jury’s verdict in Hall’s favor against CF, the federal court would

have remained unable to render a decision in his appeal of the district court’s reduction of

that verdict.

       {¶28} Despite Gertz’s and Gilbert’s recollection that Hall understood the

ramifications of the stipulation with CF for a limited lift of the stay of proceedings in the

federal appeals court, Hall’s expert believed that appellees had not adequately obtained

Hall’s “informed consent” prior to entering into the stipulation. This was the extent to

which Hall’s expert opined that appellees’ “conduct did not arise to the conduct that is

expected of similar counsel in similar situations.”

       {¶29} Nevertheless, Hall’s expert did not attribute any particular damages to this

purported lapse on appellees’ part.       The trial court determined that, under these

circumstances, Hall failed to establish the third requirement for a successful legal

malpractice claim against appellees. Although Hall asserts the trial court applied an

improper analysis in making such a determination, this court disagrees.
       {¶30} The trial court applied the analysis set forth by the Ohio Supreme Court in

Environmental Network Corp. v. Goodman, Weiss & Miller, L.L.P., 119 Ohio St.3d 209,

2008-Ohio-3833, 893 N.E.2d 173, which stated in pertinent part as follows:

                In Vahila[, 77 Ohio St.3d 421, 674 N.E.2d 1164 (1997)], the
       plaintiffs’ lawsuit arose from the defendants’ conduct in representing the
       plaintiffs in several civil matters and in representing Terry Vahila with
       respect to criminal charges and in an investigation of her by the Ohio
       Department of Insurance. Id., 77 Ohio St.3d at 422, 674 N.E.2d 1164. The
       claimed malpractice consisted of defendants’ “failure * * * to properly
       disclose all matters and/or legal consequences surrounding the various plea
       bargains entered into by Terry Vahila and the settlement arrangements
       agreed to by [plaintiffs] with respect to the several civil matters.” Id. at 427,
       674 N.E.2d 1164. The plaintiffs alleged losses of $100,000 and lost profits
       of at least $200,000. Id. at 422, 674 N.E.2d 1164. Based on the theory that
       plaintiffs proposed, we held that “given the facts of [the] case, [plaintiffs]
       have arguably sustained damage or loss regardless of the fact that they may
       be unable to prove that they would have been successful in the underlying
       matter(s).” Id. at 427, 674 N.E.2d 1164.

               Thus, we recognized that “the requirement of causation often
       dictates that the merits of the malpractice action depend upon the merits of
       the underlying case.” Id., 77 Ohio St.3d at 427-428, 674 N.E.2d 1164. The
       Vahila court determined that “depending on the situation, [a plaintiff may
       be required] to provide some evidence of the merits of the underlying
       claim,” but declined to “endorse a blanket proposition that requires a
       plaintiff to prove, in every instance, that he or she would have been
       successful in the underlying matter.” (Emphasis added.) Id. at 428, 674
       N.E.2d 1164.

        The language quoted above shows that the court rejected a wholesale adoption of a
“but for” test for proving causation and the mandatory application of the
“case-within-a-case doctrine.” The doctrine, also known as the “trial-within-a-trial
doctrine,” provides that “[a]ll the issues that would have been litigated in the previous
action are litigated between the plaintiff and the plaintiffs (sic) former lawyer, with the
latter taking the place and bearing the burdens that properly would have fallen on the
defendant in the original action. Similarly, the plaintiff bears the burden the plaintiff
would have borne in the original trial; in considering whether the plaintiff has carried that
burden, however, the trier of fact may consider whether the defendant lawyer’s
misconduct has made it more difficult for the plaintiff to prove what would have been the
      result in the original trial.” Restatement of the Law 3d, Law Governing Lawyers (2000)
      390, Section 53, Comment b.

             However, in holding that not every malpractice case will require that the plaintiff
      establish that he would have succeeded in the underlying matter, the Vahila court
      necessarily implied that there are some cases in which the plaintiff must so establish. * *
      *

             Here, appellees’ sole theory for recovery is that if the underlying matter had been
      tried to conclusion, they would have received a more favorable outcome than they
      obtained in the settlement. Therefore, unlike the plaintiffs in Vahila, who sustained losses
      regardless of whether their underlying case was meritorious, appellees here could recover
      only if they could prove that they would have succeeded in the underlying case and that
      the judgment would have been better than the terms of the settlement. Thus, the theory of
      this malpractice case places the merits of the underlying litigation directly at issue
      because it stands to reason that in order to prove causation and damages, appellees must
      establish that appellant’s actions resulted in settling the case for less than appellees would
      have received had the matter gone to trial.

             This type of legal-malpractice action, then, involves the case-within-a-case
      doctrine. That is, the plaintiff must establish that he would have been successful in the
      underlying matter. In this type of action, it is insufficient for the plaintiff to present
      simply “some evidence” of the merits of the underlying claim. * * * Thus, in the case sub
      judice, appellees had the burden of proving by a preponderance of the evidence that but
      for appellant’s conduct, they would have received a more favorable outcome in the
      underlying matter. * * *

             ***

              Although appellees put forth some evidence of the merits of their underlying
      claim, they failed to establish by a preponderance of the evidence that they would have
      had a better result if the matter had gone to trial. In fact, the uncontroverted evidence was
      that the settlement that appellant procured for appellees was very favorable. Thus, there is
      no reason to believe based on the admitted evidence that a reasonable fact-finder in the
      underlying matter would have awarded a judgment more favorable than the settlement.

             Appellees, therefore, did not show that but for appellant’s malpractice, they would
      have received a better result if the underlying action had been tried in full. Because
      appellees failed to prove by a preponderance of the evidence that appellant’s malpractice
      was the proximate cause of any loss, appellant was entitled to a judgment * * * .

(Underscoring added.)
       {¶31} Similarly, in this case, Hall failed to establish that he would have had a better outcome

than obtaining the amount of the supresedeas bond had he waited until CF’s bankruptcy proceeding had

concluded. CF remained in bankruptcy court as of at least April 2011; therefore, Hall’s appeal would

have remained stayed.        Moreover, even had the federal appellate judgment in Hall’s favor been

rendered, as Steel put it,

               * * * Mr. Hall would have had a proof of claim filed [that] could have
       subsequently been amended, but * * * he would be treated just as a general unsecured
       creditor and wait in line with other general unsecured creditors until there would have
       been a distribution.

              {¶32} At the time of Steel’s deposition, he remained unsure that Hall would have

       been awarded any part of such a distribution. Gertz testified to the same effect, stating:

                     * * * [T]he result that was ultimately obtained in that fashion worked
              greatly to Mr. Hall’s advantage. Mr. Hall got money then. He got a sum
              certain then.

                     * * * [Even] [h]ad the appeal been successful, Mr. Hall would still
              be an unsecured creditor, perhaps for a greater amount but for an
              unsecured creditor waiting to see whether or not there would be any
              distribution from [the CF] estate eight years later.

                      ***

                      * * * [In addition, there’s] a palpable risk that * * * had the company
              that issued the bond gone out of business or lost its funding, then [even]
              those funds would no longer have been available.

              {¶33} In addition to the foregoing evidence, Hall’s expert, too, could not opine

       that appellees’ actions would have “resulted in a larger recovery” for Hall. Eastminster

       Presbytery v. Stark & Knoll, 9th Dist. Summit No. 25623, 2012-Ohio-900 (client failed to

       demonstrate that negligence on the part of the attorneys, if any, proximately caused a
judgment against the client in an underlying declaratory judgment action; such proof was

necessary to establish malpractice because the client’s claims put the merits of the

underlying case directly at issue); compare C&K Indus. Servs. v. McIntyre, Kahn & Kruse

Co., L.P.A., 2012-Ohio-5177, 984 N.E.2d 45 (client’s expert opined that counsel should

have advised client to renegotiate its contract with bankruptcy debtor, because client

would have obtained a higher hourly rate and been awarded that amount for services

benefitting the bankruptcy estate). The trial court, therefore, applied the appropriate

analysis to the evidence presented in this case.

       {¶34} Consequently, Hall’s assignment of error is overruled. The trial court’s

order is 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 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.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
