[Cite as Bernardini v. Fedor, 2013-Ohio-4633.]


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

ROBERT BERNARDINI                                     C.A. No.     12CA0063

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ROBERT FEDOR, ESQ.                                    COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellee                                      CASE No.   11-CV-0128

                                 DECISION AND JOURNAL ENTRY

Dated: October 21, 2013



        BELFANCE, Presiding Judge.

        {¶1}    Appellant, Robert Bernardini, appeals the order of the Wayne County Court of

Common Pleas that granted summary judgment to Appellee, Robert Fedor. This Court affirms in

part and reverses in part.

                                                 I.

        {¶2}    Mr. Bernardini hired attorney Robert J. Fedor to represent him with regard to a

civil administrative action by the Internal Revenue Service to collect unpaid tax penalties and

interest. Once the IRS issued a determination of Mr. Bernardini’s liability, Mr. Fedor perfected

an administrative appeal and attended an appeal conference on Mr. Bernardini’s behalf.

According to Mr. Bernardini, however, Mr. Fedor was unprepared for that meeting and did not

represent him adequately. In addition, Mr. Bernardini alleged that Mr. Fedor failed to notify him

when the IRS Appeals office sent correspondence to Mr. Fedor regarding the appeal and that Mr.

Fedor failed to communicate with him despite Mr. Bernardini’s multiple efforts to do so. Mr.
                                                    2


Bernardini ultimately terminated their attorney-client relationship and retained a different

attorney. He subsequently conceded and paid his penalties and accumulated interest to the IRS

in full.

           {¶3}   Mr. Bernardini sued Mr. Fedor for legal malpractice and fraud, alleging that Mr.

Fedor negligently represented him and, by failing to communicate with him, fraudulently

concealed his negligent acts. Both Mr. Bernardini and Mr. Fedor retained experts whose reports

supported their positions regarding the adequacy of Mr. Fedor’s representation. Mr. Fedor

moved for summary judgment, arguing that because Mr. Bernardini’s expert did not express an

opinion about causation, Mr. Bernardini’s legal malpractice claim failed as a matter of law. The

trial court granted Mr. Fedor’s motion for summary judgment, and Mr. Bernardini appealed.

                                                   II.

                                     ASSIGNMENT OF ERROR I

           THE TRIAL COURT’S ORDER GRANTING SUMMARY JUDGMENT
           SHOULD BE REVERSED BECAUSE [MR. FEDOR’S] NEGLIGENCE
           DIRECTLY AND PROXIMATELY CAUSED MONETARY DAMAGE TO
           [MR. BERNARDINI].

           {¶4}   In his first assignment of error, Mr. Bernardini has argued that the trial court erred

by concluding that Mr. Fedor was entitled to summary judgment on his malpractice claim

because Mr. Bernardini’s expert did not opine on the element of proximate cause. We agree.

           {¶5}   This Court reviews an order granting summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), “[s]ummary judgment

will be granted only when there remains no genuine issue of material fact and, when construing

the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude

that the moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d

24, 2006-Ohio-3455, ¶ 10. The substantive law underlying the claims provides the framework
                                                 3


for reviewing motions for summary judgment, both with respect to whether there are genuine

issues of material fact and whether the moving party is entitled to judgment as a matter of law.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio

App.3d 363, 371 (8th Dist.1995).

       {¶6}    A claim of legal malpractice requires the plaintiff to prove that the attorney owed

a duty to the plaintiff, that the attorney breached that duty and failed to conform to the standard

of care, and that the failure proximately caused damages to the plaintiff. See Vahila v. Hall, 77

Ohio St.3d 421 (1997), syllabus. “If a plaintiff fails to establish a genuine issue of material fact

as to any of the elements, the defendant is entitled to summary judgment on a legal-malpractice

claim.” Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, ¶ 8. Although

expert testimony is required as to the standard of conduct and breach of duty in a legal

malpractice claim unless “the breach is so obvious that it can be determined by the court or is

within the ordinary knowledge and experience of laymen,” there is no corresponding

requirement with respect to proximate cause. Morris v. Morris, 9th Dist. Summit No. 21350,

2003-Ohio-3510, ¶ 17. See also Wayside Body Shop, Inc. v. Slaton, 2d Dist. Montgomery No.

25219, 2013-Ohio-511, ¶ 30. In other words, expert testimony on the element of proximate

cause is not required in every case, and the determination of whether it is required in an

individual case must be based on the nature of the malpractice claim and the attendant

circumstances. See, e.g., Yates v. Brown, 185 Ohio App.3d 742, 2010-Ohio-35, ¶ 18, 24 (9th

Dist.) (observing that expert testimony was necessary to establish causation in a case in which

damages could have been attributed to more than one attorney). In stating the basis for his

motion for summary judgment, however, Mr. Fedor took the opposite position:

       Here, Plaintiff’s expert has not opined on the proximate causation element of his
       claim for legal malpractice. It is well settled, however, that expert testimony is
                                                 4


       required to establish the proximate causation element of a legal malpractice claim.
       * * * Accordingly, because Plaintiff’s expert, Terri Brunsdon, has not opined on
       the proximate causation of Plaintiff’s claim, Plaintiff’s legal malpractice claim
       fails as a matter of law.

Although in his merit brief, Mr. Fedor attempts to retreat from this position, his arguments in the

motion were precise.     Mr. Fedor moved for summary judgment on Mr. Bernardini’s legal

malpractice claim on the basis that because Mr. Bernardini’s expert did not express an opinion

about proximate cause, the malpractice claim failed as a matter of law.           Because expert

testimony about proximate cause is not required in every case, however, the legal premise

underlying Mr. Fedor’s motion is incorrect, and the trial court erred in granting the motion on

that basis. Mr. Bernardini’s first assignment of error is sustained.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
       BECAUSE THE TRIAL COURT’S RULING AGREED THAT DEFENDANT
       COMMITTED NEGLIGENCE, THEREFORE PLAINTIFF HAD A
       CONSTITUTIONAL RIGHT TO HAVE A JURY DETERMINE THE
       APPROPRIATE AMOUNT OF FINANCIAL DAMAGES.

       {¶7}    In his second assignment of error, Mr. Bernardini argues that the trial court erred

by concluding that Mr. Fedor committed negligence, but granting summary judgment to Mr.

Fedor nonetheless. The trial court did not conclude that Mr. Fedor committed negligence,

however. Instead, the trial court assumed for purposes of discussion that the first two elements

of the legal malpractice claim were present and granted summary judgment on the issue of

proximate cause as discussed above. See Shoemaker, 118 Ohio St.3d 226, 2008-Ohio-2012, at ¶

8. Mr. Bernardini’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECLARING
       THAT A CLAIM FOR COMMON LAW FRAUD CANNOT BE BROUGHT
       WITHIN A LEGAL MALPRACTICE CASE.
                                                 5


        {¶8}   In his final assignment of error, Mr. Bernardini argues that the trial court erred by

granting summary judgment to Mr. Fedor on his claim for fraud based on the conclusion that a

fraud claim cannot be stated apart from a claim for legal malpractice. The trial court concluded,

however, that “the fraud claim is in reality a legal malpractice claim[,]” so it is unclear whether

the trial court actually decided that “a claim for common law fraud cannot be brought within a

legal malpractice case.” For that reason, and in light of our resolution of Mr. Bernardini’s first

assignment of error, his third assignment of error is premature, and we decline to address it at

this time.

                                                III.

        {¶9}   Mr. Bernardini’s first assignment of error is sustained. His second assignment of

error is overruled. His third assignment of error is premature, and we decline to address it at this

time. The judgment of the Wayne County Court of Common Pleas is affirmed in part, reversed

in part, and remanded for proceedings consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             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 Wayne, 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
                                                6


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.

       Costs taxed equally to both parties.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

JAMES O’CONNOR and HOLLY MARIE WILSON, Attorneys at Law, for Appellee.
