[Cite as Massie v. White, 2019-Ohio-811.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 MICHAEL MASSIE                                   :
                                                  :
         Plaintiff-Appellant                      :   Appellate Case No. 2018-CA-17
                                                  :
 v.                                               :   Trial Court Case No. 2017-CV-092
                                                  :
 ANDREW T. WHITE, ATTORNEY AT                     :   (Civil Appeal from
 LAW, et al.                                      :   Common Pleas Court)
                                                  :
         Defendant-Appellee                       :


                                             ...........

                                            OPINION

                             Rendered on the 8th day of March, 2019.

                                             ...........

F. HARRISON GREEN, Atty. Reg. No. 0039234, 4015 Executive Park Drive, Suite 230,
Cincinnati, Ohio 45241
      Attorney for Plaintiff-Appellant

NEIL F. FREUND, Atty. Reg. No. 0012183 and LINDSAY M. JOHNSON, Atty. Reg. No.
0077753, 1 South Main Street, Suite 1800, Dayton, Ohio 45402
      Attorneys for Defendants-Appellees

                                            .............
                                                                                        -2-



DONOVAN, J.

       {¶ 1} Plaintiff-appellant Michael Massie appeals a judgment of the Miami County

Court of Common Pleas, General Division, granting defendant-appellee Andrew T.

White’s motion for summary judgment. Massie filed a timely notice of appeal with this

Court on August 16, 2018.

       {¶ 2} Michael and Sharon Massie married on July 16, 1983. Approximately 31

years later, in February 2015, Sharon filed a complaint for divorce against Michael in the

Miami County Court of Common Pleas, Domestic Relations Division. Shortly thereafter,

Michael filed a counterclaim for divorce.1 At the time of the parties’ divorce, they were

co-owners of a tree-trimming business; the business and the marital residence were

located on the same property. Both parties were represented by counsel throughout the

divorce proceedings.    Michael was represented by attorney Andrew T. White, while

Sharon was represented by attorney Timothy Sell.

       {¶ 3} During 2015 and early 2016, the parties, through counsel, attempted to

negotiate a divorce settlement. Michael admitted in his deposition for the instant case

that he preferred to negotiate a settlement agreement with Sharon rather than go to trial.

Michael also admitted that early attempts to settle the divorce included a provision

requiring him to refinance the marital residence, but he was unable to do so because of

poor credit. Additionally, Michael offered to pay Sharon approximately $50,000 in lump

sum cash payments, but she declined the offer. We further note that Michael agreed to

pay Sharon $850 per month in temporary spousal support while the divorce action was


1
 At the time the parties filed for divorce, all children born during the marriage had
become emancipated and therefore had no bearing on the proceedings.
                                                                                           -3-


pending.

       {¶ 4} The final divorce hearing was held on January 25, 2016. Massie testified

that he was aware that his attorney was working with Sharon’s attorney to settle the case

during the weekend prior to the hearing. The record establishes that the parties were

able to reach a settlement agreement prior to the divorce hearing.           As part of the

agreement, Michael was able to retain the marital residence free and clear of any claim

from Sharon.        Per the agreement, Michael was also not required to pay Sharon

approximately $15,000 in marital equity on the property to which she was otherwise

entitled. Michael was granted complete ownership of the tree trimming business and

was not required to pay Sharon any equity. Michael was required to pay Sharon spousal

support in the amount of $600 per month for the first year and $1,000 per month for nine

additional years.

       {¶ 5} When questioned by the magistrate at the hearing regarding the terms of the

divorce settlement, Michael stated on the record that he had had a chance to discuss the

settlement with his attorney, acknowledging that his attorney answered all of his

questions. Divorce Tr. 17-18. Michael also informed the magistrate that he did not need

to take a break in order to further discuss the terms of the settlement with his attorney. Id.

When asked if he was satisfied with his counsel’s representation, Michael stated that he

did not have any issues to bring to the magistrate’s attention. Id. Finally, when the

magistrate asked him if he thought the terms of the settlement agreement were “fair and

equitable,” Michael answered, “Yes, I do.” Id.

       {¶ 6} At the settlement hearing, the following exchange occurred:

       The Magistrate: Do you think you’ve had enough information from Sharon
                                                                             -4-


Massie to make decisions as a reasonable and prudent person would need?

Michael Massie: Yes.

Q: Do you think you’ve given her enough information so that she can

similarly make decisions?

A: Yes.

Q: Do you understand that the Court does not retain jurisdiction to modify

this agreement except as the two of you either have agreed in the document

or might agree to in the future?

A: Yes.

Q: Is this your agreement?

A: Yes.

Q: This is what you want to do?

A: Yes.

Q: Has anyone forced you, threatened you or coerced you in any way to

agree?

A: No.

Q: Has anyone promised you anything to get you to agree?

A: No.

Q: Are you asking the Court to grant you a divorce on the grounds of

incompatibility?

A: Correct.

Q: And adopt the agreement as terms of that divorce?

A: Correct.
                                                                                           -5-

(Emphasis added.) Id. at 18-20. Shortly thereafter, the parties’ Final Decree of Divorce

incorporating the terms of the settlement agreement was approved by the trial court and

filed.

         {¶ 7} Approximately one year later on February 23, 2017, Michael filed a legal

malpractice claim against his former counsel, Andrew White, requesting compensatory,

special, and punitive damages.        In his complaint, Michael asserted that White had

entered into the divorce settlement agreement without Michael’s consent.             Michael

argued that he instructed White to offer Sharon spousal support in the amount of $500

per month for ten years. Michael asserted that he never agreed to pay Sharon spousal

support of $1,000 for nine years. Michael further asserted that he suffered damages

because he cannot afford to pay Sharon $1,000 per month in spousal support.

         {¶ 8} On March 6, 2018, White filed a motion for summary judgment arguing that

Michael had failed to set forth any facts, beyond bare speculation, supporting the

allegations in his complaint that, if he had taken the case to trial, he would have received

a better result. Attorney White also argued that Michael failed to set forth any facts

establishing that White acted with ill-will or hatred when he represented Michael as to

support a claim for punitive damages. Michael filed a response to White’s motion for

summary judgment, and White filed a reply to Michael’s responsive brief.

         {¶ 9} On July 18, 2018, the trial court issued a decision granting White’s motion for

summary judgment. Specifically, the trial court found that the instant case fell “squarely

within the parameters” of the case-within-a-case doctrine and that Michael had failed to

set forth any facts establishing that, if he had taken the case to trial, he would have

received a better result. Additionally, the trial court found that Michael set forth no facts,
                                                                                           -6-


aside from bare allegations, that would support a claim for punitive damages.

       {¶ 10} It is from this judgment that Michael now appeals.

       {¶ 11} Because they are interrelated, all of Michael’s assignments of error will be

discussed together as follows:

              DID THE TRIAL COURT ERR IN GRANTING SUMMARY

       JUDGMENT TO DEFENDANT-APPELLEES WHEN GENUINE ISSUES

       OF    MATERIAL       EXISTED      SHOWING       DEFENDANTS-APPELLEES

       BREACHED THE STANDARD OF CARE?

              DID THE TRIAL COURT ERR IN APPLYING THE CASE-WITHIN-

       A-CASE STANDARD IN THIS LEGAL MALPRACTICE CASE?

              DID THE TRIAL COURT ERR IN FINDING THERE EXISTED NO

       SET OF FACTS THAT GIVE RISE TO AN APPROPRIATE CLAIM FOR

       PUNITIVE DAMAGES?

       {¶ 12} In his first assignment, Michael contends that the trial court erred when it

granted White’s motion for summary judgment. Specifically, Michael argues that he set

forth sufficient evidence of White’s deficient representation regarding the acceptance of

the settlement agreement to create a genuine issue of material fact with respect to

damages. In his second assignment, Michael argues that the trial court misapplied the

case-within-a-case doctrine in the instant case because “the merits of the underlying case

are not directly at issue.” Lastly, in his third assignment, Michael argues that the trial

court erred when it found that he had failed to set forth sufficient facts to create a genuine

issue with respect to his entitlement to punitive damages based upon White’s alleged

“conscious and willful disregard of [Michael]’s interest.”
                                                                              -7-


                        Summary Judgment Standard

{¶ 13} As this Court has previously noted:

      Summary judgment is appropriate when 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 when viewing the evidence most

strongly in favor of the nonmoving party, and that conclusion is adverse to

the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54,

2010-Ohio-4505, 936 N.E.2d 481, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116

Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. When reviewing

a summary judgment, an appellate court conducts a de novo review.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

“De Novo review means that this court uses the same standard that the trial

court should have used, and we examine the evidence to determine

whether as a matter of law no genuine issues exist for trial.” Brewer v.

Cleveland City Schools Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d

1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d

116, 119-20, 413 N.E.2d 1187 (1980). Therefore, the trial court's decision

is not granted deference by the reviewing appellate court. Brown v. Scioto

Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th

Dist.1993).

      ***

      The moving party bears the initial burden to demonstrate the
                                                                                        -8-


       absence of a genuine issue of material fact for each of the elements of its

       claim. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988);

       Wells Fargo Bank, N.A. v. Goebel, 2d Dist. Montgomery No. 26244, 2015-

       Ohio-38 ¶ 16. Only if this burden is met, the non-moving party then has

       the burden of providing sufficient evidence to prove that there are material

       issues of fact that are genuinely contested. Goebel at ¶ 17. “Throughout,

       the evidence must be construed in favor of the nonmoving party.” Id. * * *

Huntington Natl. Bank v. Payson, 2d Dist. Montgomery No. 26396, 2015-Ohio-1976, ¶ 14,

16.

       {¶ 14} As this Court has further noted, to prevail on a legal malpractice claim,

Michael must prove: “(1) that the attorney owed him a duty or obligation, (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 was 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).” Werts v. Penn, 164 Ohio App.3d 505, 2005-Ohio-6532, 842 N.E.2d

1102, ¶ 17 (2d Dist.); see also Berridge v. McNamee, 2016-Ohio-4716, 66 N.E.3d 1266,

¶ 35 (2d Dist.).

       {¶ 15} Further, as this Court has previously noted:

       “ ‘The duty of an attorney to his client is to “ * * * exercise the knowledge,

       skill, and ability ordinarily possessed and exercised by members of the legal

       profession similarly situated, and to be ordinarily and reasonably diligent,

       careful, and prudent in discharging the duties he has assumed.” ’ ” Yates v.

       Brown, 185 Ohio App.3d 742, 2010-Ohio-35, 925 N.E.2d 669, ¶ 17 (9th
                                                                                       -9-

      Dist.), quoting Palmer v. Westmeyer, 48 Ohio App.3d 296, 298, 549 N.E.2d

      1202 (6th Dist.1988), quoting 67 Ohio Jurisprudence 3d, Malpractice,

      Section 9, at 16 (1986). Rule of Professional Conduct 1.3 states that “[a]

      lawyer shall act with reasonable diligence and promptness in representing

      a client.” * * *

McCarty v. Pedraza, 17 N.E.3d 71, 2014-Ohio-3262, ¶ 8 (2d Dist.). As noted by the trial

court, there is no dispute that White was representing Michael in the divorce action

commenced by Sharon.

      {¶ 16} As previously stated, Michael argues that he directed White to limit spousal

support for Sharon to $500 per month for ten years. Michael asserts that he never

consented to the settlement agreement awarding Sharon spousal support in the amount

$1,000 for nine of ten years.    Accordingly, Michael contends that he has set forth

sufficient facts to create a genuine issue with respect to the deficient performance of

White regarding his acceptance of the settlement agreement.           However, the only

evidence Michael offered in support of his argument were unsupported allegations in his

complaint and his own deposition testimony in this case, in which he stated that he wanted

to limit the spousal support to $500 per month, not $1,000.

      {¶ 17} Upon review, we conclude that Michael failed to set forth any facts, other

than his own self-serving deposition testimony, which created a genuine issue of material

fact regarding whether White accepted the settlement agreement awarding Sharon

spousal support in the amount $1,000 for nine years without Michael’s consent.

Conversely, the record here establishes that White acted with Michael’s approval when

he negotiated the settlement agreement. In his deposition in this malpractice case,
                                                                                         -10-


Michael testified that he preferred to settle the divorce case rather than proceed to trial,

and he understood that White was engaged in ongoing settlement negotiations with

opposing counsel up until a day before the final divorce hearing. Michael testified that

he participated in phone calls and text messages with White regarding settlement terms

only 24 hours before the case was settled. Michael also testified that he preferred to

maintain total ownership of the marital residence and tree-trimming business. Michael

testified that he understood that keeping the residence and business would require him

to pay increased spousal support to Sharon. Finally, Michael testified he was specifically

informed by White that White had negotiated a 12-month delay before Michael would be

responsible for paying spousal support in the amount of $1,000 per month.            White

informed Michael that the delay had been negotiated so that Michael could have time to

get his finances in order.

       {¶ 18} Additionally, Michael testified under oath at the final divorce hearing before

the magistrate. Specifically, Michael testified that he heard the agreement read into the

record by opposing counsel. Michael testified that he had discussed the settlement

agreement with White, who had answered all of his questions. Michael also informed

the magistrate that he did not need to take a break in order to further discuss the terms

of the settlement with his attorney. When asked if he was satisfied with his counsel’s

representation, Michael stated that he did not have any issues to bring to the magistrate’s

attention. When the magistrate asked him if he thought the terms of the settlement

agreement were “fair and equitable,” Michael answered, “Yes, I do.” Lastly, Michael

affirmatively stated that he wanted to enter into the settlement agreement and that he had

not been coerced or threatened into accepting the agreement.
                                                                                          -11-


       {¶ 19} We agree with the trial court’s finding that Michael failed to set forth any

facts that created a genuine issue of material fact regarding deficient performance by

White when he negotiated the terms of the settlement agreement. White negotiated a

settlement that allowed Michael to maintain complete ownership of the marital residence

and tree-trimming business, and to pay reduced spousal support for one year. Under

these circumstances, a spousal award of $500 per month may not have been a viable

option. Moreover, Michael unequivocally agreed to the terms of the settlement under oath.

Absent Michael’s unsupported allegations, there are no facts in the record which support

his claim.

                                 Case-Within-a-Case Standard

       {¶ 20} Michael next argues that the trial court erred when it applied the case-within-

a-case standard, rather than the “some evidence” standard, when it granted White’s

motion for summary judgment.

       {¶ 21} Regarding the applicable legal malpractice causation standard that applies

to Michael’s claims, this court has distinguished the “some evidence” standard set forth

in Vahila, 77 Ohio St.3d 421, 674 N.E.2d 1164, from the “case-within-a-case” standard

set forth in Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d

209, 2008-Ohio-3833, 893 N.E.2d 173, as follows:

              The some-evidence standard applies in cases in which a plaintiff's

       damage or loss has been suffered “regardless of the fact that [the plaintiff]

       may be unable to prove that [he] would have been successful in the

       underlying matter(s) in question.” Vahila at 427, 674 N.E.2d 1164. In such

       a case, the plaintiff need provide only “some evidence of the merits of the
                                                                                   -12-

underlying claim.” Id. at 428, 674 N.E.2d 1164. In Vahila, the plaintiffs sued

their attorneys after the attorneys represented them in several civil and

criminal matters.    The plaintiffs claimed that the attorneys' failure to

properly disclose matters related to, and the consequences of, various plea

bargains and settlement arrangements resulted in losses of $100,000 and

lost profits of at least $200,000. The Vahila Court held, “[b]ased on the

theory that plaintiffs proposed, * * * that ‘given the facts of [the] case, [the

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).’ ” Environmental Network at ¶ 14, quoting Id. at

427, 674 N.E.2d 1164.

       In Environmental Network, “the [Ohio] Supreme Court focused on the

need to link the attorney's action (or inaction) to the adverse result.”

Gijbertus D.M. van Sommeren v. Gibson, 2013-Ohio-2602, 991 N.E.2d

1199, ¶ 30 (6th Dist.). The Environmental Network Court said that the

case-within-a-case doctrine applies if the theory of the malpractice case

places the merits of the underlying litigation directly in issue. Environmental

Network at ¶ 17-18. In this type of case, said the Court, “it is insufficient

for the plaintiff to present simply ‘some evidence’ of the merits of the

underlying claim.” Id. at ¶ 19; see also Gijbertus at ¶ 32 (“After

Environmental Network, the demonstration of causality in legal malpractice

cases requires more than just ‘some evidence’ to proximately relate the

specific act or omission that is held up as the attorney's breach of duty to
                                                                                          -13-


         the client's damages.”). “[T]he plaintiff must establish that he would have

         been successful in the underlying matter.” Id.            The plaintiffs in

         Environmental Network sued their attorney after the attorney settled the

         underlying action instead of trying it, claiming that they would have had a

         better outcome if the matter had gone to trial. Unlike the Vahila plaintiffs,

         said the Court, the plaintiffs in Environmental Network “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.” Id. at ¶ 18.   The Court concluded that “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.” Id.

McCarty v. Pedraza, 2014-Ohio-3262, 17 N.E.3d 71, ¶ 17-18 (2d Dist.).

         {¶ 22} In the instant case, Michael argues that the terms of the settlement

agreement negotiated by White which required him to pay $1,000 per month for nine

years were “inadequate.” Nevertheless, Michael admits that he did not want to proceed

to trial and attempt to obtain a better result; his argument is only that he did not agree to

the final settlement requiring him to pay $1,000 per month in spousal support to Sharon.

Thus, Michael argues that the trial court should have applied the “some evidence”

standard rather than the case-within-a-case standard. Michael’s argument is without

merit.
                                                                                           -14-


       {¶ 23} “When a plaintiff premises a legal-malpractice claim on the theory that he

would have received a better outcome if his attorney had tried the underlying matter to

conclusion rather than settled it, the plaintiff must establish that he would have prevailed

in the underlying matter and that the outcome would have been better than the outcome

provided by the settlement.” Environmental Network Corp. at syllabus. Upon review, we

conclude that the trial court's recitation of the evidence and its conclusions about the lack

of malpractice were correct. Furthermore, even if we assumed that Michael’s claim fit

within the less stringent standard in Vahila, the fact is that Michael failed to present “some”

or even any evidence of the merits of his underlying claim. See Vahila, 77 Ohio St.3d at

428, 674 N.E.2d 1164.

       {¶ 24} The evidence in the instant case established that the settlement agreement

negotiated by White was not only “adequate,” but actually favored Michael insofar as he

received the marital residence and tree-trimming business free and clear of any claim

from Sharon. In his affidavit, Sharon’s attorney, Timothy Sell, stated that his client would

have proceeded to trial if Michael had not agreed to pay $1,000 per month in spousal

support.    As previously stated, Michael informed the magistrate at the final divorce

hearing that the terms of the settlement agreement were both fair and equitable. Other

than mere speculation, Michael did not set forth any evidence that he would have obtained

a better result had the matter proceeded to trial. Therefore, the trial court did not err

when it applied the case-within-a-case standard in granting White’s motion for summary

judgment.

                                        Punitive Damages

       {¶ 25} As previously stated, Michael asserts that he instructed White that he only
                                                                                            -15-


wanted to pay $500 per month in spousal support to Sharon.               Michael argues that

White’s actions in accepting the settlement agreement requiring him to pay $1,000 per

month in spousal support constituted “conscious wrongdoing” and “actual malice.”

Therefore, Michael contends that a genuine issue existed as to whether he was entitled

to punitive damages.

       {¶ 26} The intent behind punitive damages is to punish the wrongdoer and to deter

intolerable conduct. Calmes v. Goodyear Tire & Rubber Co., 61 Ohio St.3d 470, 473, 575

N.E.2d 416 (1991). By statute, a complainant in a tort action may not be awarded

punitive damages unless (1) the act or omissions of the defendant demonstrated malice

or aggravated or egregious fraud, and (2) the trier of fact awarded the plaintiff

compensatory damages. R.C. 2315.21(C); Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d

486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 12. The burden of proof rests with the plaintiff

to establish entitlement to punitive damages by clear and convincing evidence. R .C.

2315.21(D)(4); Pierson v. Rion, 2d Dist. Montgomery No. 23498, 2010-Ohio-1793, ¶ 46.

       {¶ 27} In awarding summary judgment to White, the trial court found that Michael

failed to establish that White acted with actual malice toward him. “Actual malice” in the

context of punitive damages has been defined as “(1) that state of mind under which a

person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious

disregard for the rights and safety of other persons that has a great probability of causing

substantial harm.” Calmes at 473, quoting Preston v. Murty, 32 Ohio St.3d 334, 512

N.E.2d 1174 (1987), syllabus. Even construing the facts in favor of Michael, we agree

that he failed to show that any conduct exhibited by White even remotely acted to exhibit

hatred, ill will, vengefulness, or a conscious disregard for Michael's rights or safety.
                                                                                       -16-

Preston at syllabus.

       {¶ 28} Michael’s claim for punitive damages was based upon his claim that he did

not consent to a settlement requiring him to pay $1,000 in spousal support for nine years.

Michael’s claim was completely undermined by the fact that he unequivocally agreed to

the terms of the settlement agreement on the record before the magistrate at the final

divorce hearing.     The record establishes that White provided Michael with detailed

spreadsheets setting forth all of the parties’ marital assets.     Simply put, the record

establishes that White acted both competently and diligently when he negotiated the

settlement agreement.        Accordingly, we conclude that the trial court did not err in

granting summary judgment in favor of White on Michael’s claim for punitive damages,

because there were no genuine issues of material fact regarding that purported claim,

and White was therefore entitled to judgment as a matter of law.

       {¶ 29} Michael’s first, second, and third assignments of error are overruled.

       {¶ 30} All of Michael’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                       .............



WELBAUM, P.J. and TUCKER, J., concur.



Copies sent to:

F. Harrison Green
Neil F. Freund
Lindsay M. Johnson
Hon. J. Timothy Campbell, Sitting by Assignment
