[Cite as Moore v. Michalski, 2018-Ohio-3021.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
KATHARINE MOORE, EXECUTOR                       :       Hon. John W. Wise, P.J.
OF THE ESTATE OF                                :       Hon. W. Scott Gwin, J.
ROBERT L. MOORE                                 :       Hon. Patricia A. Delaney, J.
                                                :
                         Plaintiff-Appellee     :       Case No. 17-CA-44
                                                :
-vs-                                            :
                                                :       OPINION
RAYMOND RICHARD MICHALSKI,
ET AL

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                            Civil appeal from the Fairfield County Court
                                                    of Common Pleas, Case No. 2016CV00175

JUDGMENT:                                           Affirmed in part; Reversed in part;
                                                    Remanded

DATE OF JUDGMENT ENTRY:                             July 30, 2018

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROBERT G. COHEN                                     DAVID HERD
JASON BEEHLER                                       JOHN C. NEMETH
65 East State Street, Ste. 1800                     175 S. Third Street, Ste. 285
Columbus, OH 43215                                  Columbus, OH 43215


SHEILA DESELICH COHEN
1657 Wingate Drive
Delaware, OH 43015
[Cite as Moore v. Michalski, 2018-Ohio-3021.]


Gwin, J.

        {¶1}    Appellants, Raymond Richard Michalski and Dagger Johnson Miller Ogilvie

and Hampson, LLP [collectively “Appellants”] appeal following a jury verdict finding them

liable for professional negligence and awarding damages including attorney fees.

Appellee is Katharine Moore in her capacity as Executor of the Estate of her father, Robert

L. Moore.

                                        Facts and Procedural History

        {¶2}    In 2010, Robert L. Moore engaged the Dagger Johnston law firm ("Dagger")

to re-write his Last Will and Testament in order to leave his home and the 31/2 acres of

land on which it was situated (collectively, the "Property") to his two children. Dagger

assigned the task to attorney Ray Michalski. Instead of leaving Moore's Property to his

children, Michalski's secretary or probate assistant made minor revisions to Moore's

existing Will that left the Property to Moore's then estranged second wife, Joan Ellis

("Ellis").

        {¶3}    Confronted with Ellis's claim to the Property, the Estate filed a declaratory

judgment action asking the probate court to interpret the 2010 Will. Faced with the reality

that (1) the 2010 Will drafted by Michalski had, in fact, left the Property to Ellis, (2) the

probate judge instructed plaintiff and Ellis to work things out, and (3) the Executor had a

fiduciary obligation to preserve as much of the Estate as possible, Appellee was forced

to compromise. In the settlement that was ultimately negotiated, the Estate retained

some of the value of the Property, but was required to make cash payments to Ellis and

her attorneys. The settlement required the Estate to: (1) pay a portion of the proceeds

from the sale of the Property to Ellis; (2) pay Ellis's attorneys' fees in the probate
Fairfield County, Case No. 17-CA-44                                                     3


proceedings; and (3) waive the Executor's fees. In addition, the Estate incurred its own

attorneys' fees and costs in the probate proceedings because of Michalski's malpractice

and Ellis' consequent claim to the Property. The Property was sold to pay the settlement.

       {¶4}   Appellee filed its Complaint against Appellants on March 22, 2016.

Generally, the Complaint alleged legal malpractice by Appellees in the drafting of a Will

for the decedent, Robert L. Moore. Appellants never properly filed an Answer in the case.

See, 1T. at 42-53. The trial court dismissed Katharine Moore, individually, as a plaintiff

on the pleadings by entry of August 8, 2016. Appellants then moved for summary judgment

against The Estate of Robert L. Moore on June 12, 2017, arguing against attorney fees

incurred in presenting the malpractice case and that the claims had been waived by

settlement. The trial court denied the Motion for Summary Judgment by Entry and Order

of August 14, 2017.

       {¶5}   Prior to the start of trial, the Appellee waived its motion for default

judgment and requested the matter proceed to a jury trial. (1T. at 50). The trial court

further ruled that the Appellees would not be permitted to make arguments concerning

affirmative defenses of waiver or contributory negligence because they were not plead

in accordance with Civ.R. 8. (1T. at 51).

       {¶6}   The case proceeded to a jury trial on September 12, 2017, and a final entry

verdict and jury interrogatories were filed September 15, 2017. Specifically, the jury

found $8,375.00 in economic loss, $7,000.00 in "non-economic loss",       $70,000.00 for

attorney's fees incurred in bringing and maintaining the legal malpractice case, and

$5,125.00 in attorney's fees incurred in a probate court dispute with Robert L. Moore's

wife, Joan Ellis.
Fairfield County, Case No. 17-CA-44                                                   4


      {¶7}   The Appellants submit that this case is on appeal mainly because the trial

court improperly allowed the Complaint to proceed to trial on claims for attorney's fees

incurred in prosecuting the legal malpractice action, as opposed to fees incurred in

attempting to rectify purported malpractice, and in allowing claims for non-economic

damages. (Appellant’s Brief at 2).

                                      Assignments of Error

      {¶8}   Appellant’s raise six assignments of error,

      {¶9}   “I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THEY

COULD CONSIDER ATTORNEY FEES INCURRED IN THE PROSECUTION OF THE

LEGAL MALPRACTICE CASE AS DAMAGES.

      {¶10} “II. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO

APPELLANTS ON THE ISSUE OF MALPRACTICE CASE ATTORNEY FEES AS AN

ELEMENT OF DAMAGES.

      {¶11} “III. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO

CONSIDER BROWN'S TESTIMONY ON ATTORNEY FEES AS DAMAGES AND THE

EXHIBITS RELIED UPON RELATED TO ATTORNEY FEES.

      {¶12} “IV. THE TRIAL COURT ERRED IN NOT PERMITTING MARK RIEGEL,

ESQ., A PARTNER AND LITIGATOR WITH THE DAGGER FIRM, TO TESTIFY AS A

REBUTTAL EXPERT WITNESS.

      {¶13} “V. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO

CONSIDER AND AWARD NON-ECONOMIC DAMAGES TO THE ESTATE.

      {¶14} “VI. THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT,

AND FAILING TO INSTRUCT THE JURY, ON THE ESTATE'S WAIVER OF A
Fairfield County, Case No. 17-CA-44                                                      5


MALPRACTICE        CLAIM    BY    SETTLING      WITH     JOAN    ELLIS    IN   PROBATE

PROCEEDINGS.”

                                                I.

       {¶15} In their First Assignment of Error, Appellants argue the trial court erred in

instructing the jury that they could consider attorney fees incurred in the prosecution of

the legal malpractice case as damages.

       STANDARD OF APPELLATE REVIEW.

       {¶16} Appellant argument centers on an issue of law, not the discretion of the

trial court. In other words, Appellants contend that where a client is required to engage

new counsel for a separate action proximately resulting from his attorney’s negligence,

whether legal fees paid by the plaintiff to prosecute a subsequent legal malpractice action

against the offending lawyer may be awarded in the legal malpractice action as an item

of special damages is a question of law.

       {¶17} “‘When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d

440, ¶6.

       A. Elements of a claim for legal malpractice.

       {¶18} In Vahila v. Hall, 77 Ohio St.3d 421, 674 N.E.2d 1164(1997), the Ohio

Supreme Court set forth the elements of a claim for legal malpractice,
Fairfield County, Case No. 17-CA-44                                                       6


                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 at syllabus. In the case at bar, the jury found the Appellants had committed legal

malpractice.    The issue in Appellant’s First Assignment of Error is the measure of

damages that may properly be awarded based upon the Appellants’ negligence.

      B. Damages recoverable when an attorney commits malpractice.

      {¶19} In Paterek v. Petersen & Ibold, the Ohio Supreme Court made the following

observations,

                 When an attorney commits malpractice in a civil case, the lion’s

      share of the damages derives from the value of the lost claim.

                                                  ***

                 This court has recognized that a plaintiff in a legal-malpractice case

      may seek other types of consequential damages, such as additional

      attorney fees incurred to correct the mistakes of the malpracticing attorney,

      Krahn v. Kinney (1989), 43 Ohio St.3d 103, 106, 538 N.E.2d 1058, but the

      jury below did not award any such damages. Thus, the focus of this case

      is the value of the lost cause of action.

118 Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, ¶28.
Fairfield County, Case No. 17-CA-44                                                    7


       {¶20} In the present case, a specific jury interrogatory plainly states that the

attorney fees awarded of $70,000.00 were for "attorney's fees incurred in bringing and

maintaining this lawsuit.”

       ISSUE FOR APPEAL.

       1. Whether under Ohio law legal fees paid by Appellee to prosecute a legal

malpractice action against the offending lawyer may be awarded in the legal malpractice

action as an item of special damages.

       {¶21} Appellants contend that Ohio follows the “American Rule” which provides

that each party is responsible for their own attorney’s fees except as provided for in

certain statutory actions or when the opposing party is found to have acted in bad faith,

vexatiously, wantonly, obdurately, for oppressive reasons, or the party somehow

engaged in malicious conduct. Sorin v. Board of Educ. of Warrensville Heights Sch. Dist.

46 Ohio St.2d 177, 180-81, 347 N.E.2d 527(1976). Attorney fees, which are punitive in

nature, may also be awarded where there has been a finding of actual malice and an

award of punitive damages. Digital & Analog Design Corp. v. North Supply Co., 63 Ohio

St.3d 657, 590 N.E.2d 737(1992).

       {¶22} Appellees cite to Paterek v. Petersen & Ibold, cited above and to Green v.

Bailey, 1st Dist. Hamilton No. C-070221, 2008-Ohio-3569 in which the Court of Appeals

stated,

              Attorney fees incurred to rectify, or to attempt to rectify, the

       malpractice are recoverable as indirect, or consequential, damages in a

       legal malpractice action, even when the rectification is achieved through a

       settlement.    But recovery is warranted only where the factfinder is
Fairfield County, Case No. 17-CA-44                                                    8


      persuaded that the fees and expenses of the successor attorney were

      causally related to an established cause of action for malpractice.

Id. at ¶17. We believe the Appellee and the trial court misconstrues both cases

by concluding that they allow for the recovery of attorney fees in a legal

malpractice action where there is no showing of either actual malice or bad faith,

vexatious, wanton, and obdurate, for oppressive reasons, or the party somehow

engaged in malicious conduct.

      {¶23} The Supreme Court of Tennessee has astutely recognized,

             There are three categories of attorney’s fees that may constitute

      damages resulting from legal malpractice: (1) “initial fees” a plaintiff pays

      or agrees to pay an attorney for legal services that were negligently

      performed, (2) “corrective fees” incurred by the plaintiff for work performed

      to correct the problem caused by the negligent lawyer, and (3) “litigation

      fees,” which are legal fees paid by the plaintiff to prosecute the malpractice

      action against the offending lawyer. The trial court in this case correctly

      held that corrective fees were recoverable, and this ruling was not

      appealed. The trial court’s ruling that initial fees were not recoverable was

      appealed, and the Court of Appeals properly reversed. Both lower courts

      agreed that the plaintiffs could not recover their legal fees in prosecuting

      the instant malpractice action.

John Kohl & Co. v Dearborn & Ewing, 977 S.W.2d 528, 534(Tenn. Sup. Ct.1998). We

believe that in both Paterek and Green the courts were referring to the second category
Fairfield County, Case No. 17-CA-44                                                      9

of attorney fees, “corrective fees” as identified by the Tennessee Supreme Court in John

Kohl & Co. The Court in John Kohl & Co. further noted,

             Although it is true that there is some authority for the proposition that

      a negligent attorney is responsible for the reasonable legal expenses

      incurred by a former client in prosecuting a legal malpractice action, see

      Bailey v. Pocaro & Pocaro, 305 N.J.Super. 1, 701 A.2d 916, 919 (1997),

      most jurisdictions that have considered the issue have adhered to the well-

      established American rule, which provides that attorney’s fees may not be

      awarded to the prevailing party absent statutory authorization or an

      agreement between the parties so providing. See, e.g., Olson v. Fraase,

      421 N.W.2d 820, 828–29 (N.D.1988); Began v. Dixon, 547 A.2d 620, 624–

      25 (Del.Super.Ct.1988); Whitney v. Buttrick, 376 N.W.2d 274, 281

      (Minn.App.1985); Stinson v. Feminist Women’s Health Center, 416 So.2d

      1183, 1185 (Fla.App.1982); Sorenson v. Fio Rito, 90 Ill.App.3d 368, 45

      Ill.Dec. 714, 413 N.E.2d 47, 51–53 (1980). Tennessee courts have long

      adhered to the American rule, concluding that an award of attorney’s fees

      as part of the prevailing party’s damages is contrary to public policy. See,

      e.g., Pullman Standard v. Abex Corp., 693 S.W.2d 336, 338

      (Tenn.1985);Gray     v.   Boyle    Inv.   Co.,    803    S.W.2d     678,   684

      (Tenn.App.1990); John J. Heirigs Constr. Co. v. Exide, 709 S.W.2d 604,

      609 (Tenn.App.1986); Pinney v. Tarpley, 686 S.W.2d 574, 581

      (Tenn.App.1984); Goings v. Aetna Casualty & Sur. Co., 491 S.W.2d 847,

      848 (Tenn.App.1972); Raskind v. Raskind, 45 Tenn.App. 583, 325 S.W.2d
Fairfield County, Case No. 17-CA-44                                                       10


      617, 625 (1959). We are not persuaded that legal malpractice claims

      should be made an exception to the rule. Without an agreement between

      the parties or a controlling statute, attorney’s fees in legal malpractice suits,

      as in other litigation, may not be awarded.

977 S.W.2d 528, 534-535.

      {¶24} The Ohio Supreme Court has made clear that courts may not create

exceptions to the American Rule,

             We are well aware that the ‘American rule’ has been criticized in

      recent years, but, in our view any departure from such a deeply-rooted

      policy as the exclusion of attorney fees as costs is a matter of legislative

      concern.

                                            ***

             The General Assembly has expressly provided for the recovery of

      attorney fees, as part of the costs of litigation, with respect to certain

      statutory actions.    See, e.g., R.C. 163.21, 309.13, 733.61, 1313.51,

      5519.02. See, also, Billington v. Cotner (1974), 37 Ohio St.2d 17, 305

      N.E.2d 805; State, ex rel. White, v. Cleveland (1973), 34 Ohio St.2d 37,

      295 N.E.2d 665; Shuey v. Preston, [172 Ohio St.413, 177 N.E.2d

      789(1961)] supra. In light of the expressed precedent in this state, State,

      ex rel. Michaels, v. Morse, [165 Ohio St. 599, 238 N.E.2d 660(1956)] supra,

      we defer to the General Assembly on the matter of statutory authorization

      of recovery of attorney fees as part of the costs of litigation.
Fairfield County, Case No. 17-CA-44                                                   11

Sorin v. Board of Educ. of Warrensville Heights Sch. Dist., 46 Ohio St.2d 177, 179-81,

347 N.E.2d 527(1976).

      CONCLUSION.

      {¶25} In the case at bar, the trial court dismissed Appellee’s claim for punitive

damages. Entry and Order, filed Aug 8, 2016 at 7-8(Docket Entry #16). Appellee did

not argue that Appellants acted with bad faith, vexatious, wanton, obdurate, for

oppressive reasons, or they somehow engaged in malicious conduct. Appellee cites no

statutory authority for awarding legal fees in a legal malpractice case.

      {¶26} Accordingly, the trial court erred in instructing the jury that they could

consider attorney fees incurred in the prosecution of the legal malpractice case as

damages.

      {¶27} Appellant’ First Assignment of Error is sustained.



                                           II., III., IV.

      {¶28} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” United States v. Alaska S.S. Co., 253

U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San Pablo &

Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Accord, North

Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 92, 30 L.Ed.2d 244(1971).

      {¶29} In light of our disposition of Appellant’s First Assignment of Error, we find

Appellants Second, Third and Fourth Assignments of Error are moot.
Fairfield County, Case No. 17-CA-44                                                       12


                                                  V.

          {¶30} In their Fifth Assignment of Error, Appellants maintain the trial court erred

in allowing the jury to consider and award $7,000.00 in non-economic damages to an

estate.

          STANDARD OF REVIEW.

          {¶31} Appellants’ argument claims the trial court erred as a matter of law because

non-economic damages may not be awarded to a decedent’s estate. [Appellant’s Brief

at 14].

          {¶32} “‘When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL

2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496,

909 N.E.2d 1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d

440, ¶6. Because the assignment of error involves the interpretation of a statute, which

is a question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State

v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty

Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-

7820, ¶ 31.
Fairfield County, Case No. 17-CA-44                                                         13


       A. Nature of a legal malpractice claim.

       {¶33} In Loveman v. Hamilton, the Ohio Supreme Court defined the nature of a

legal malpractice claim,

              Although a client’s claim against an attorney has aspects of both a

       contract action and a tort action, the general rule is that the gist of the

       action, regardless of its form, is the attorney’s breach of his contractual

       obligation to represent his client in a professional, effective and careful

       manner. McStowe v. Bornstein (Mass.1979), 377 Mass. 804, 388 N.E.2d

       674; Hendrickson v. Sears (1974), 365 Mass. 83, 310 N.E.2d 131. See,

       generally, Annotation, 18 A.L.R.3d 978; Annotation, 65 A.L.R.2d 1211; 6

       Ohio Jurisprudence 3d 674, Attorneys at Law, Section 143.

66 Ohio St.2d 183, 184, 420 N.E.2d 1007(1981). Loveman involved the question of

whether the malpractice action survived the death of the attorney who allegedly engaged

in malpractice. However, the Loveman holding applies to mandate the survival of a legal

malpractice claim after the death of the party entitled to assert the claim. Hosfelt v. Miller,

7th Dist. Jefferson No. 97-JE-50, 2000-Ohio-2619 at *4.

       {¶34} Therefore, the personal representative of a decedent's estate stands in the

shoes of the decedent to assert claims on behalf of the estate. Hosfelt, at *4; Accord,

Williams v. Barrick, 10th Dist. Franklin No. 08AP-133, 2008-Ohio-4592, ¶10.

       B. The trial courts instructions.

       {¶35} In the case at bar, the trial court instructed the jury,

              (E) Damages: If you find for the Plaintiff, you will decide by the

       greater weight of the evidence an amount of money that will reasonably
Fairfield County, Case No. 17-CA-44                                                       14


      compensate the estate for the actual injury or loss proximately and directly

      caused by Defendant Michalski’s legal malpractice.             In deciding this

      amount, you will consider Plaintiff's economic loss and non-economic loss,

      if any, proximately and directly caused by Plaintiff's act injury or loss.

               Ladies and gentlemen, economic loss may include the following

      types of financial harm: (1) All compensation lost as a result of the Plaintiff's

      injury    or   loss;   (2)   all   expenditures   for   services,   products   or

      accommodations incurred as a result of the Plaintiff's injury or loss; (3) all

      expenditures incurred by the Estate/Plaintiff or by another person on behalf

      of the Plaintiff to repair or replace property of the estate of Robert Moore

      that was injured or destroyed; (4) expenses, including attorney fees

      incurred to correct the mistakes of a malpracticing attorney or to rectify or

      attempt to rectify the malpractice; and (5) any other expenditure incurred

      as a result of Plaintiff's loss.

               Non-economic loss means harm other than economic loss that

      results from the Plaintiff's injury or loss, including any intangible loss.

               And so, you are hereby instructed that as to the Plaintiff's claimed

      damages, you are not to speculate. The law deals in probabilities and not

      possibilities. If the Plaintiff has not proven the amount of damages that

      arose out of each event, then the Plaintiff has not sustained its burden and

      you must find in favor of the Defendant.

5T. at 1005-6 (emphasis added). R.C. 2953.18 provides,
Fairfield County, Case No. 17-CA-44                                                     15


             (4) “Noneconomic loss” means nonpecuniary harm that results from

      an injury or loss to person or property that is a subject of a tort action,

      including, but not limited to, pain and suffering, loss of society, consortium,

      companionship, care, assistance, attention, protection, advice, guidance,

      counsel, instruction, training, or education, disfigurement, mental anguish,

      and any other intangible loss.

Emphasis added. Accordingly, the jury did not award non-economic damages to the

Appellee in the case at bar for pain and suffering, loss of society, consortium,

companionship, care, assistance, attention, protection, advice, guidance, counsel,

instruction, training, or education, disfigurement, mental anguish, because the jury was

not instructed on those elements.        Further, “juries are presumed to follow their

instructions.” Zafiro v. United States 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d

317(1993). “A presumption always exists that the jury has followed the instructions given

to it by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313(1990),

at paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d 716, 562 N.E.2d 163.

      C. CONCLUSION.

      {¶36} The trial court correctly instructed the jury concerning Appellee’s right to

recover for non-economic damages.         The trial court’s instructions were a correct

statement of the law.

      {¶37} In the case at bar, evidence was presented regarding the loss of the only

remaining portion of the Property, that had been in the decedent’s family for over 200

years, and the decedent’s final wishes that such Property go to his children and remain

in his family. The decedent instructed a lawyer regarding his desire, and the lawyer
Fairfield County, Case No. 17-CA-44                                                                  16


drafted a Will that accomplished the opposite of what the decedent intended. The error

proximately resulted in the loss of unique property that had economic and noneconomic

value to the decedent.

        {¶38} Appellant’s Fifth Assignment of Error is overruled.

                                                      VI.

        {¶39} In their Sixth Assignment of Error, Appellants argue that the trial court erred

in denying summary judgment and failing to instruct the jury on Appellee’s waiver of a

malpractice claim by settling with Joan Ellis in probate proceedings.

        STANDARD OF APPELLATE REVIEW.

        {¶40} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding

Party, Inc. 30 Ohio St.3d 35, 36, 506 N.E.2d 212(1987). Accordingly, summary judgment is

appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving

party 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 come to but one conclusion and that conclusion is

adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. 65 Ohio St.3d 621,

629, 605 N.E.2d 936 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66,

375 N.E.2d 46 (1978).

        {¶41} Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Smiddy v. The Wedding Party, Inc., 30 Ohio St .3d

35,506 N.E.2d 212(1987). We stand in the shoes of the trial court and conduct an independent

review of the record. As such, we must affirm the trial court's judgment if any of the grounds raised

by the movant at the trial court is found to support it, even if the trial court failed to consider those
Fairfield County, Case No. 17-CA-44                                                                      17

grounds. See Dresher, supra; Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d

1327 (9th Dist. 1995).

        A. Waiver.

        {¶42} At the outset, we note that Appellants failed to timely and properly file an Answer in

the case at bar. We note Civ.R. 8(C) states in pertinent part:

                 In pleading to a preceding pleading, a party shall set forth

        affirmatively accord and satisfaction, arbitration and award, assumption of

        risk, contributory negligence, discharge in bankruptcy, duress, estoppel,

        failure of consideration, want of consideration for a negotiable instrument,

        fraud, illegality, injury by fellow servant, laches, license, payment, release,

        res judicata, statute of frauds, statute of limitations, waiver, and any other

        matter constituting an avoidance or affirmative defense. ***.”

(Emphasis added). Under Civ.R. 8(C), a defendant is required to affirmatively set forth matters that

will effectively preclude a finding of liability on the part of the defendant. Failure to raise such defenses

in a responsive pleading or motion will constitute a waiver of those defenses.” Wemer v. Walker, 5th

Dist. Knox No. 12CA17, 2013-Ohio-2005, ¶8.

        {¶43} Prior to the start of trial, the Appellee waived its motion for default

judgment and requested the matter proceed to a jury trial. (1T. at 50). The trial court

further ruled that the Appellees would not be permitted to make arguments concerning

affirmative defenses of waiver or contributory negligence because they were not plea in

accordance with Civ.R. 8. (1T. at 51).

        {¶44} The Appellant has not separately assigned as error or argued that the trial court’s

express finding that Appellant has waived the argument of Appellee’s waiver of a malpractice
Fairfield County, Case No. 17-CA-44                                                       18


claim by settling with Joan Ellis in probate proceedings was in error. Appellants cannot

circumvent the trial court’s express ruling that Appellants waived this argument by

seeking to nullify the trial court’s ruling on Appellant’s motion for summary judgment.

       {¶45} However, the result does not change if we review the trial court’s decision

of Appellants’ motion for summary judgment.

       B. The trial court’s decision.

       {¶46} In overruling the Appellant’s motion for summary judgment of the issue of

appellee’s waiver, the trial court found,

              Defendants next argue that Plaintiff waived her right to pursue a

       legal malpractice claim against them by entering into a settlement

       agreement with Ms. Ellis in the context of their probate litigation. According

       to Defendants, Plaintiff already had "a full and fair opportunity to challenge

       Ellis's positions" in the probate litigation but declined to do so. (MSJ at 7).

       Specifically, Defendants assert that "enforcement of the Antenuptial

       Agreement against Ellis was highly likely, but the Estate knowingly and

       voluntarily waived its ability to gain such a judicial determination.” (MSJ

       at 6). Therefore, Defendants ask the Court to preclude Plaintiff from

       pursuing its malpractice claim in this Court. The Court declines to do so.

              Defendants rely exclusively on the case of Estate of Callahan v.

       Allen, 97 Ohio App. 3d 749 (1994) in support of its argument, In Callahan, a

       probate attorney allegedly provided inaccurate advice to an estate with

       regard to inheritance disclaimers and tax deductions.             The estate

       subsequently entered into a settlement agreement with the IRS instead of
Fairfield County, Case No. 17-CA-44                                                   19

      appealing the issue. The Callahan court held that the estate had waived any

      malpractice claim against the probate attorney, as the tax appeals board

      could have interpreted the IRS provisions differently and, in essence,

      found that the attorney's advice was actually sound. Therefore, the estate

      failed to establish proximate cause, i.e., that the estate would have

      prevailed in the IRS action but for the attorney's negligence.

      First, the Court notes that Callahan, a decision by the Fourth District Court

      of Appeals is not binding on this Court. Second, the Court finds Callahan

      is distinguishable from the case-at-hand in one important aspect: the

      malpractice alleged in Callahan "arose in the course of strategic decisions

      made by the attorney," and the estate had not shown that the attorney's

      interpretations of the tax provisions were clearly unreasonable or

      unsupported by law. See DePugh v. Sladoje, 111 Ohio App. 3d 675, 686,

      676 N.E.2d 1231 (1996) (recognizing this distinction). Here, Defendants

      can hardly argue that their disregard of the Testator's wishes was a

      "strategic decision": it is alleged that Defendants blatantly ignored the

      Testator's wishes and sloppily drafted a Will that expressly contradicted

      them.

              Third, the Court disagrees with Defendants' position that if the

      Antenuptial Agreement was presented to a court for determination, its

      enforcement "against Ellis was highly likely," and no malpractice claim

      would exist. (MSJ at 6). Defendants appear to forget that the Antenuptial

      Agreement contains two relevant clauses, One provision in the Agreement
Fairfield County, Case No. 17-CA-44                                                  20


       stated that Ms. Ellis renounced, waived, and relinquished all spousal,

       dower, and inheritance rights to any real property then owned by the

       Testator. But this provision was subject to another: one that gave Testator

       the overriding authority to bequeath real property to whomever he chose,

       including Ms. Ellis.   Thus, even if a court had found the Antenuptial

       Agreement enforceable, the issue of whether Ms. Ellis was entitled to the

       Testator's residence would still depend on the provisions of the Testator's

       Last Will and Testament, i.e., the basis of Plaintiff's malpractice claim.

       For these reasons, Defendants' second argument is not well-taken.

Entry and Order, filed Aug. 14, 2017 at 7-9 (Docket Entry #37).

       ISSUE FOR APPEAL.

       1). Whether after independent review of the record Appellee waived her right to

pursue a legal malpractice claim against Appellant by entering into a settlement

agreement with Ms. Ellis in the context of their probate litigation.

       {¶47} On appeal, Appellants again assert that enforcement of the Antenuptial

Agreement against Ellis was highly likely, but the Estate knowingly and voluntarily

waived its ability to gain such a judicial determination.

       {¶48} Appellants’ argument is somewhat disingenuous.             Moore instructed

Michalski to draft a Will leaving the Property to his children. Because of sloppy

draftsmanship and sloppy proofreading, Michalski betrayed the wishes of his client

by bequeathing the Property to an ex-wife of Moore. Nowhere does Appellant point

to any part of the trial court record in which Michalski claimed that he purposely

drafted the Will to leave the Property to Ellis in a strategic, well-reasoned legal
Fairfield County, Case No. 17-CA-44                                                      21


decision to rely on the Antenuptial Agreement to effectuate Moore’s intent that the

Property go to his children.

      {¶49} The Antenuptial Agreement contains two relevant clauses. One provision

in the Agreement stated that Ms. Ellis renounced, waived, and relinquished all spousal,

dower, and inheritance rights to any real property then owned by the Testator. However,

this provision was subject to another one that gave Testator the overriding authority to

bequeath real property to whomever he chose, including Ms. Ellis. Thus, even if a court

had found the Antenuptial Agreement enforceable, the issue of whether Ms. Ellis was

entitled to the Testator's residence would still depend on the provisions of the Testator's

Last Will and Testament, i.e., the basis of Appellee's malpractice claim.

              A settlement entered into as a result of an attorney’s exercise of

      reasonable judgment in handling a case bars a malpractice claim against

      the attorney. DePugh v. Sladoje (1996), 111 Ohio App.3d 675, 676 N.E.2d

      1231. However, a legal malpractice claim is not barred when the attorney

      has acted unreasonably or has committed malpractice per se. Id. “[W]hen

      an attorney has made an obvious error which seriously compromises his

      client’s claim, and a settlement is on the table * * *, the client should not be

      forced to forgo the settlement offer as a condition of pursuing the attorney

      for malpractice.” Id. See, also, Monastra v. D’Amore (1996), 111 Ohio

      App.3d 296, 676 N.E.2d 132 (where attorney’s defective representation

      diminishes client’s ability to reach a successful settlement or to succeed at

      trial, the settlement of the action should not imply a waiver of client’s right

      to file legal malpractice action against the attorney).
Fairfield County, Case No. 17-CA-44                                                      22

E.B.P., Inc. v. Cozza & Steuer, 119 Ohio App.3d 177, 182, 694 N.E.2d 1376 (8th Dist.

1997).

         CONCLUSION.

         {¶50} In the case at bar, it was Michalski’s malpractice that caused Moore to

be in the Probate Court in the first place.          Had Michalski drafted the Will in

accordance with Moore’s express instructions, Ellis would not have been in a position

to claim ownership of the Property and no settlement would have been necessary.

Thus, this is not a case in which the settlement and the malpractice claim was so

intertwined that the issue of the reasonableness of the attorneys' actions was left

unresolved by the settlements. Appellants’ actions in the drafting of the Will were

unreasonable.

         {¶51} The trial court did not err in denying summary judgment and not

instructing the jury on Appellee’s waiver of a malpractice claim by settling with Joan Ellis

in probate proceedings.

         {¶52} Appellants’ Sixth Assignment of Error is overruled.
Fairfield County, Case No. 17-CA-44                                                    23


      {¶53} The judgment of the Fairfield County Court of Common Pleas is affirmed,

in part and reversed in part. This case is remanded to the trial court for proceedings for

proceedings in accordance with our opinion and the law.



By Gwin, J.,

Wise, John, P.J., and

Delaney, J., concur
