[Cite as Kravitz, Brown & Dortch, L.L.C., v. Klein, 2016-Ohio-5594.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Kravitz, Brown & Dortch, LLC,                        :

                 Plaintiff-Appellee,                 :

v.                                                   :                     No. 16AP-200
                                                                        (C.P.C. No. 14CV-3180)
Peter M. Klein, in his capacity as Trustee :
of the Peter M. Klein and Ashley B.                                    (REGULAR CALENDAR)
Klein Irrevocable Trusts,                  :

                 Defendant/Third-Party               :
                 Plaintiff-Appellant,
                                                     :
Michael D. Dortch, Esq. et al.,
                                                     :
                 Third-Party
                 Defendants-Appellees.               :


                                         D E C I S I O N

                                     Rendered on August 30, 2016


                 On brief: Kravitz, Brown & Dortch, LLC, Michael D. Dortch
                 and Richard R. Parsons, for appellee. Argued: Michael D.
                 Dortch and George H. Carr.

                 On brief: Plank Law Firm, LPA, and David Watkins, for
                 appellant. Argued: David Watkins.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Defendant-appellant, Peter M. Klein, in his capacity as Trustee of the
Peter M. Klein and Ashley B. Klein Irrevocable Trusts ("appellant"), appeals from a
judgement of the Franklin County Court of Common Pleas granting summary judgment
in favor of plaintiff-appellee, Kravitz, Brown & Dortch, LLC ("appellee"), for appellant's
No. 16AP-200                                                                                2


counterclaims for breach of contract, unjust enrichment, and vicarious liability, as well as
his affirmative defense for legal malpractice, in response to appellee's claim for unpaid
legal fees. As to these counterclaims, we conclude that the statute of limitations had run.
However, we conclude that appellee failed to demonstrate that there was no genuine issue
of material fact as to the quality of the legal representation appellant received, pursuant to
appellant's affirmative defense for recoupment on a theory of legal malpractice, we
reverse as to the claim for legal fees due.
                                    Statement of Facts
       {¶ 2} On April 16, 2010, appellee was engaged by appellant to evaluate and
pursue claims against William Goldman, Michael Braunsten, and their law firm Goldman
& Braunsten. On June 4, 2010, appellee filed suit against Goldman & Braunsten on
appellant's behalf. The case proceeded to trial from July 23, 2012 through August 2, 2012.
The trial resulted in a jury verdict in favor of Goldman & Braunsten. On March 24, 2014,
appellee filed this action to collect unpaid legal fees in the amount of $118,149.48, plus
interest, from its former client, appellant.
                                    Procedural Posture
       {¶ 3} On May 20, 2014, appellant filed his answer, counterclaim, and third-party
complaint in response to appellee's suit to collect on its unpaid legal fees. The answer
denied liability for the unpaid legal fees, and the counterclaim and third-party complaint
sought damages for breach of contract, unjust enrichment, and legal malpractice.
       {¶ 4} Appellee filed a motion for summary judgment on December 16, 2014 on all
claims and counterclaims brought by appellant, including the recoupment defense, for
failure to provide an expert witness testimony in support of them. The next day, on
December 17, 2014, appellee also filed a motion for summary judgment on its initial
complaint for the unpaid legal fees.
       {¶ 5} Appellant filed a combined memorandum contra plaintiff's motion for
summary judgment on its complaint and motion for summary judgment on appellant's
counterclaim and third-party complaint on February 26, 2015, which included the
affidavit of expert witness Daniel Volkema.
No. 16AP-200                                                                              3


       {¶ 6}   On March 5, 2015, appellee and the third-party defendants filed a
combined reply in support of the motion for summary judgment on all counterclaims and
third-party claims, including recoupment.
       {¶ 7} On February 9, 2016, the trial court issued the entry granting the motion of
appellee and third-party defendants Dortch and Parsons for summary judgment on
counterclaims and third party claims, as well as an entry granting the motion of appellee
for summary judgment on its complaint.
                                       Discussion
       {¶ 8} Appellant appeals from the trial court's judgment, assigning three errors for
this court's review:
               [I.] THE TRIAL COURT ERRED BY FINDING THAT THE
               GIST OF THE TRUSTEE'S COUNTERCLAIM IS
               MALPRACTICE.

               [II.] THE TRIAL COURT ERRED BY GRANTING SUMMARY
               JUDGMENT IN FAVOR OF APPELLEE ON ITS
               COMPLAINT ON ALL COUNTERCLAIMS AND ON THE
               THIRD-PARTY COMPLAINT.

               [III.] THE TRIAL COURT ERRED                  BY    BARRING
               APPELLANT'S RECOUPMENT DEFENSE.

       {¶ 9} We begin our analysis with appellant's first and second assignments of
error, in which he asserts that the trial court erred by finding that the gist of his
counterclaim was legal malpractice, consequently granting summary judgment in favor of
appellee.
       {¶ 10} An order granting summary judgment is subject to de novo review.
Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.),
citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "[D]e novo
appellate review means that the court of appeals independently reviews the record and
affords no deference to the trial court's decision." Holt v. State, 10th Dist. No. 10AP-214,
2010-Ohio-6529, ¶ 9.     Summary judgment is appropriate where "the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion for
No. 16AP-200                                                                                4


summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio
St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a motion for summary judgment, the court
must resolve all doubts and construe the evidence in favor of the nonmoving party. Pilz v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. See also
Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998) ("Even the
inferences to be drawn from the underlying facts contained in the evidentiary materials,
such as affidavits and depositions, must be construed in a light most favorable to the party
opposing the motion."). Therefore, we undertake an independent review to determine
whether appellee was entitled to judgment as a matter of law.
       {¶ 11} The trial court determined that appellee was entitled to summary judgment
on appellant's counterclaims for breach of contract, unjust enrichment, and vicarious
liability based on the statute of limitations stated in R.C. 2305.11(A), indicating that legal
malpractice claims must be brought within one year of the claim for relief accruing.
       {¶ 12} The statute of limitations governing legal malpractice was deemed to be
applicable because of the precedent set by the Tenth District Court of Appeals case Illinois
Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., 10th Dist. No. 10AP-
290, 2010-Ohio-5872, ¶ 15, which states:
              Claims arising out of an attorney's representation, regardless
              of their phrasing or framing, constitute legal malpractice
              claims that are subject to the one-year statute of limitations
              set forth in R.C. 2305.11(A). When the gist of a complaint
              sounds in malpractice, other duplicative claims are subsumed
              within the legal malpractice claim. Indeed, malpractice by any
              other name still constitutes malpractice.

       {¶ 13} The trial court determined that appellant's counterclaims did arise out of his
legal representation by appellee, that "the gist of its counterclaim against KB&D is the
legal malpractice of Dortch and Parsons," thereby coming down on the side appellee,
which stated in its merit brief that all of appellant's counterclaims "relate to whether
[appellee] provided adequate legal services." (Feb. 9, 2016 Entry granting Summ. Jgmt. at
7; Appellee's Merit Brief at 21.)
{¶ 14} Appellant meanwhile asserts in his merit brief that his counterclaims do not arise
out of the legal representation he received from appellee, since they do not have to do with
No. 16AP-200                                                                               5


the quality of the work actually performed as compared to the standards of other similarly
situated attorneys, as would need to be asserted for a legal malpractice claim. The
definition for "malpractice" appellant uses comes from Illinois Natl., which states that "
'The term "malpractice" refers to professional misconduct, i.e., the failure of one
rendering services in the practice of a profession to exercise that degree of skill and
learning normally applied by members of that profession in similar circumstances.' " Id.
at ¶ 16, quoting Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601,
citing Strock v. Pressnell, 38 Ohio St. 3d 207 (1988) citing 2 Restatement of the Law 2d,
Torts, Section 299A (1965).
       {¶ 15} We will determine whether each of appellant's counterclaims ought to be
properly considered a legal malpractice claim based on the case authority from Illinois
Natl., one at a time, and thus whether the trial court was proper in granting summary
judgment. The key will be to determine whether each counterclaim clearly stems from the
legal representation appellant received from appellee.
                              The Breach of Contract Claim
       {¶ 16} Appellant's breach of contract claim is based on two asserted violations of
his contract with appellee: appellee's spending more time than was reasonable and
necessary for the services that were rendered, as well as appellee's failure to bill on a
monthly basis.
            Spending More Time than was Reasonable and Necessary
       {¶ 17} Appellant asserts in his merit brief that the attorneys from appellee billed
excessive hours over the course of their time working on his case, spending more time
than was reasonable for the services that were rendered. Appellant asserts that, as a result
of this, appellee's charges were excessive as well.
       {¶ 18} Although this superficially looks like a billing issue, this actually concerns
the quality of the work that appellee performed while legally representing appellant, since
it's only as a result of appellee's purported inefficiency while working on the case that the
charges ended up being so high. That makes this issue a claim "arising out of an attorney's
representation," meaning that under Illinois Natl., this is a legal malpractice claim. The
trial court was right to grant summary judgment in favor of appellee on this issue.
No. 16AP-200                                                                                6


                          Failure to Bill on a Monthly Basis
       {¶ 19} Appellant also asserts that appellee failed to issue monthly invoices for the
legal services that were rendered, as was agreed upon in the contract. As a result of this,
appellant states he was not informed of the mounting costs of litigating the case in a
manner that would enable him to make an informed decision about whether to continue
pursuing it.
       {¶ 20} Failing to bill on time and failing to keep appellant adequately informed of
the mounting costs of litigating the case constitute a lack of proper professional conduct
by appellee, which relates to the quality of the legal representation that appellee provided
appellant. Therefore, the trial court was correct to grant summary judgment on this issue,
and consequently the breach of contract claim as a whole, pursuant to the statute of
limitations stated in R.C. 2305.11(A).
                            The Unjust Enrichment Claim
       {¶ 21} The crux of appellant's unjust enrichment claim is that the charges he was
billed for and the legal services he received far exceeded what would have been reasonable
to pay for such services, according to the expert testimony of David Volkema. This claim
concerns the quality of the legal services rendered by appellee as part of its attorney-client
relationship with appellant, making this a claim "arising out of an attorney's
representation." That means that this is a legal malpractice claim under Illinois Natl. The
trial court was right to grant summary judgment in favor of appellee on this issue.
                             The Vicarious Liability Claim
       {¶ 22} Finally, appellant asserts a claim for vicarious liability against attorneys
Dortch and Parsons for the damages he incurred as a result of the malpractice of the firm
Dortch and Parsons work for, appellee. The crux of the argument for this claim concerns
the quality of the legal representation that was rendered by Dortch and Parsons, making
this a claim "arising out of an attorney's representation," meaning that under Illinois
Natl., this is a legal malpractice claim. The trial court was right to grant summary
judgment in favor of appellee on this issue.
       {¶ 23} Since each of appellant's counterclaims has been deemed by this court to
actually constitute claims for legal malpractice pursuant to the rule under Illinois Natl.,
No. 16AP-200                                                                                 7


the trial court was correct to grant summary judgement in favor of appellee based on the
statute of limitations for legal malpractice, as stated in R.C. 2305.11(A), having run.
       {¶ 24} Accordingly, we overrule appellant's first and second assignments of error.
       {¶ 25} We continue our analysis with the appellant's third assignment of error, in
which he asserts that the trial court erred by barring his recoupment defense.
       {¶ 26} Appellant brought his recoupment defense, which in this case took the form
of an affirmative defense for legal malpractice, in response to appellee's motion for
summary judgment on its legal fees. The applicable law governing the standard for
granting summary judgment on a legal malpractice claim, including ones presented as
affirmative defenses, is Schottenstein, Zox & Dunn, LPA v. C.J. Mahan Constr. Co., LLC,
10th Dist. No. 08AP-851, 2009-Ohio-3616, which states:
               To prevail on a claim for legal malpractice based upon
               negligent representation, a plaintiff must establish: (1) the
               attorney owed a duty or obligation to the plaintiff; (2) the
               attorney breached that obligation and failed to conform to
               the standard law requires; and (3) the conduct complained of
               is causally connected to the resulting damage or loss. Vahila
               v. Hall, 77 Ohio St.3d 421, 1997 Ohio 259, 674 N.E.2d 1164,
               syllabus. The failure of a party asserting a legal malpractice
               claim to establish any one of the three elements entitles the
               opposing party to summary judgment. Katz v. Fusco (Dec. 9,
               1997), 10th Dist. No. 97APE06-846, 1997 Ohio App. LEXIS
               5614.

Id. at ¶ 17.
       {¶ 27} Since appellant was asserting an affirmative defense alleging legal
malpractice in response to appellee's motion for summary judgment, his defense needed
to successfully assert all three of these criteria in order to succeed. That is, appellant
needed to assert that appellee owed him a standard of care, appellee breached that
standard through its actions in representing him, and he suffered damages as a result of
this breach. Appellant also needed to provide expert testimony supporting his assertions
of these criteria, as according to Schottenstein, a legal malpractice claim such as this is not
"sufficiently within the common understanding of lay people so as to eliminate
defendant's obligation to submit expert testimony on plaintiff's alleged failure to comply
No. 16AP-200                                                                                 8


with the standard of care." Id. at ¶ 26. Pursuant to this requirement, appellant submitted
the Volkema affidavit in support of his affirmative defense.
       {¶ 28} The trial court ruled that the Volkema affidavit was not admissible as expert
testimony pursuant to the requirements set by Civil Rule 56 and the Ohio Rules of
Evidence. In reaching its decision, the trial court stated that the affidavit did not establish
the specific facts upon which Volkema relied in formulating his opinions, the affidavit did
not establish the standard of care that must have been met by appellee in order to avoid
committing legal malpractice, and the affidavit did not articulate a definite amount of
damages that resulted from appellee's malpractice.
       {¶ 29} However, these assertions by the trial court are inaccurate. The Volkema
affidavit establishes the facts upon which Volkema relied in formulating his opinions in
paragraph 13. Furthermore, Volkema sets out the applicable standard of care in
paragraph 20 of his affidavit, in which he explains that a reasonably prudent attorney
must provide an assessment of the risks and benefits of litigation relative to the likely
costs to the client as soon as possible in his or her representation of the client. Volkema
also articulates a definite amount of damages that resulted from appellee's malpractice in
paragraph 30 of his affidavit: $140,000. For these reasons, the trial court erred in
determining that the Volkema affidavit was not admissible as expert testimony, so the
trial court erred by granting summary judgment in favor of appellee.
       {¶ 30} Accordingly, we sustain appellant's third assignment of error.
                                        Conclusion
       {¶ 31} For the foregoing reasons, appellant's first and second assignments of error
are overruled, and appellant's third assignment of error is sustained. We, therefore,
reverse the judgment of the Franklin County Court of Common Pleas as to the underlying
claim for fees due and remand the claim of unpaid fees for further proceedings which
consider the defense of recoupment in accordance with law and consistent with this
decision.
                                              Judgment affirmed in part, reversed in part;
                                                  case remanded for further proceedings.

                             KLATT and HORTON, JJ., concur.
