[Cite as Wayside Body Shop, Inc. v. Slaton,

.]

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

WAYSIDE BODY SHOP, INC. : : Appellate Case No. 25219 Plaintiff-Appellant : : Trial Court Case No. 10-CV-1120 v. : : CURTIS F. SLATON, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellees : : ...........

OPINION

Rendered on the 15th day of February, 2013.

...........

JOHN J. MUELLER, Atty. Reg. #0012101, John J. Mueller, LLC, 632 Vine Street, Suite 800, Cincinnati, Ohio 45202-2441 Attorney for Plaintiff-Appellant, Wayside Body Shop, Inc.

DAVID K. FRANK, Atty. Reg. #0022925, ROBERT H. STOFFERS, Atty. Reg. #0024419, and JASON R. DESCHLER, Atty. Reg. #0080584, Mazanec, Raskin & Ryder Co., L.P.A., 175 South Third Street, Suite 1000, Columbus, Ohio 43215 Attorneys for Defendant-Appellees Curtis F. Slaton and Bogin, Patterson, Ellis, Slaton & Stump LLP

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

HALL, J.

{¶ 1} Wayside Body Shop, Inc. (“Wayside”) appeals from the trial court’s entry of

summary judgment against it on its legal-malpractice complaint against Curtis Slaton and the law firm of Bogin, Patterson, Ellis, Slaton & Stump (“Bogin Patterson”).

{¶ 2} Wayside advances two assignments of error on appeal. First, it contends the

trial court erred in giving an interlocutory federal district court ruling issue-preclusive effect

and entering summary judgment on that basis. Second, Wayside asserts that the trial court

erred in construing its complaint too narrowly when finding that the alleged malpractice at

issue did not proximately cause any damages.

{¶ 3} The record reflects that a former Wayside employee, Howard Maybury, sued

Wayside in Montgomery County Common Pleas Court in 2006, alleging assorted violations of

the federal Employee Polygraph Protection Act (“EPPA”), wrongful termination, and

intentional infliction of emotional distress. Maybury’s claims stemmed from an investigation

into a workplace paint “over-spraying” incident that ultimately led to his termination. As part

of the investigation, Wayside’s attorney, Slaton, met with Maybury and other employees who

were suspected of being involved. Among other things, Maybury alleged in his 2006 lawsuit

that Slaton had asked him to take a polygraph test and had provided him with a written policy

providing for disciplinary action, including termination, for refusing to take the test. During a

second meeting, Slaton allegedly provided Maybury with a new written policy that did not

mention polygraph tests.1 In the course of this meeting, Slaton purported to fire Maybury for

refusing to sign an acknowledgment form. Wayside’s president, Mark Campbell, later fired

Maybury, allegedly for acting belligerently during the second meeting with Slaton.

{¶ 4} Wayside removed Maybury’s 2006 lawsuit from common pleas court to

federal district court based on the presence of the EPPA claim. It then filed a third-party

complaint against Slaton and his law firm, Bogin Patterson, alleging legal malpractice.

1 Between the two meetings, Slaton discovered that requiring polygraph tests could violate federal law. 3

Maybury filed an amended complaint, asserting against Slaton and Bogin Patterson the same

claims he had asserted against Wayside.

{¶ 5} Following removal to federal court, Wayside reached a settlement with

Maybury. As a result, Maybury dismissed, with prejudice, his claims against Wayside. At that

time, Wayside also dismissed, without prejudice, its third-party complaint against Slaton and

Bogin Patterson. Thereafter, Slaton and Bogin Patterson sought summary judgment on

Maybury’s claims against them. The federal district court sustained the motion in part and

denied it in part. Specifically, the motion was sustained with regard to (1) Maybury’s claim for

intentional infliction of emotional distress and (2) some of his claims alleging violations of the

EPPA, including an allegation of wrongful termination in violation of the act. The federal

district court denied summary judgment, however, with regard to Maybury’s claim that Slaton

had violated the EPPA by (1) requesting that he take a polygraph test and (2) threatening to

discharge or discipline him if he refused to take the test. (Doc. #41, Exh. A, p. 4). After the

federal district court denied reconsideration, Slaton and Bogin Patterson settled with Maybury,

who dismissed his claims against them with prejudice.

{¶ 6} Wayside subsequently commenced the present action against Slaton and

Bogin Patterson in Montgomery County Common Pleas Court. Wayside essentially asserted

the same claims it had pursued in federal district court before dismissing them without

prejudice. It set forth causes of action for contribution or indemnification, legal malpractice,

negligent breach of fiduciary duty, and intentional breach of fiduciary duty. Slaton and Bogin

Patterson moved for summary judgment, arguing that all of Wayside’s claims “sound in legal

malpractice regardless of [its] attempt to label [its] causes of action as something other than 4

legal malpractice[.]” The basis for the motion was Wayside’s inability to establish any

damages proximately caused by Slaton’s alleged malpractice. Slaton and Bogin Patterson

argued:

* * * Although Mr. Slaton and Bogin Patterson deny Wayside’s legal

malpractice claims[,] assuming, arguendo, that Wayside is able to support the

allegations that relate to duty and breach, Wayside cannot establish element (3)

of Vahila, specifically, that it has suffered actual damages as a result of Mr.

Slaton’s and Bogin Patterson’s conduct. Therefore, Mr. Slaton and Bogin

Patterson assert they are entitled to summary judgment.

(Doc. #41 at 7).

{¶ 7} In connection with the foregoing argument, Slaton and Bogin Patterson

maintained that the doctrine of issue preclusion barred Wayside from establishing any

damages. In support, they relied on findings by the federal district court in its ruling. Wayside

responded by moving for leave to file, instanter, a 79-page memorandum in opposition to

summary judgment. A copy of the memorandum was attached to the motion for leave. The

trial court never explicitly ruled on the motion for leave, although it is apparent that the trial

court reviewed and considered the attached memorandum in opposition. Additionally, Slaton

and Bogin Patterson filed a reply memorandum addressing Wayside’s memorandum in

opposition. Therein, Slaton and Bogin Patterson noted Wayside’s failure to oppose summary

judgment with an expert’s affidavit. They argued, among other things, that “[w]ithout expert

testimony, Wayside is unable to establish that Mr. Slaton breached a duty of care and caused

damages to Wayside[.]” [Cite as Wayside Body Shop, Inc. v. Slaton,

.] {¶ 8} On April 30, 2012, the trial court filed a “Decision, Opinion, and Entry of

Summary Judgment of Dismissal.” (Doc. #91). The trial court described the dispute before it

as follows:

Plaintiff Wayside Body Shop, Inc. alleges in its complaint that as a

result of Slaton’s legal malpractice, it terminated its employee, Howard

Maybury, resulting in a federal lawsuit against it by Maybury, which it was

obligated to defend and ultimately settle. In this case, Wayside seeks to recover

from Slaton and the firm the moneys it expended to defend and settle the

federal case, together with compensatory and punitive damages, and attorney

fees.

The gravamen of Wayside’s claim against Slaton and the firm—which

can only be liable if Slaton is liable—is that Slaton misapprehended what

Wayside was entitled to do in investigating employee misconduct and took it

upon himself to “terminate” Maybury as a Wayside employee when Maybury

refused to sign, at Slaton’s insistence, an acknowledgment that he had received

a Wayside policy concerning investigations. Mark Campbell, Wayside’s

president, subsequently officially terminated Maybury, acting on Slaton’s

advice.

(Doc. #91 at 1).

{¶ 9} After outlining the federal district court’s proceedings, the trial court

continued as follows:

Slaton and the firm contend in their motion for summary judgment that

even if they concede for purposes of argument that Slaton’s representation of 6

Wayside fell below the standard of care expected of counsel, Wayside cannot

establish that Slaton’s representation was the proximate cause of damage to

Wayside, citing Vahila v. Hall,

(1997).

The basis for this contention is that the district court granted summary

judgment to Slaton and the firm on the question of whether Maybury had been

terminated in violation of the EPPA. In other words, the claim of legal

malpractice is based on the assertion that Maybury was terminated in violation

of the EPPA because of Slaton’s deficient knowledge of the EPPA and

attendant faulty advice to Wayside, which resulted in Maybury’s termination.

The cause of action for legal malpractice must therefore fail because the district

court determined that Slaton (and inferentially Wayside) did not violate the

EPPA in terminating Maybury, and thus Wayside’s damages incurred in

defending against and settling Maybury’s complaint cannot have been

proximately caused by Slaton’s alleged malpractice.

This argument is supported by the expert testimony of Attorney-at-Law

Stephen E. Chappelear and has not been controverted by Wayside.

Chappelear’s affidavit is confined to the causation element of legal

malpractice.

The timeline is instructive. Wayside settled with Maybury in February

2009, approximately six months before the district court determined that

Maybury’s termination did not violate the EPPA and that Slaton was not liable

for intentional infliction of emotional distress. The evidence and information 7

before this court [do] not disclose the particulars about the settlement, only that

it occurred. Maybury’s complaint against Wayside was for termination in

violation of the EPPA and for intentional infliction of emotional distress.

Because the district court granted summary judgment to Slaton and the firm on

these claims, it cannot be said that Wayside’s damages—settlement money and

attorney fees—were proximately caused by Slaton’s alleged legal malpractice.

See Green v. Bailey,

(Ohio App. 1 Dist.),

,

Para. 17.

This conclusion is consistent with Mark Campbell’s deposition

testimony that Slaton lacked the authority to terminate Maybury and that he,

Campbell, terminated Maybury due to his belligerence with Slaton when Slaton

asked him to sign the acknowledgment that he had received the company policy

on investigations—a reason for termination that was unrelated to Slaton’s

alleged malpractice.

(Id. at 2-3).

{¶ 10} The trial court then turned again to the federal district court’s proceedings,

finding that they had issue-preclusive effect. After noting Wayside’s admission that it had an

attorney-client relationship with Slaton, the trial court found Slaton and Bogin Patterson

entitled to summary judgment, reasoning:

While the district court did not specifically address whether Slaton had

committed malpractice, it determined that Slaton did not “terminate” Maybury

in violation of the EPPA, which was Slaton’s alleged malpractice. Hence, 8

assuming Slaton committed malpractice, it was not the proximate cause of the

damages Wayside claims.

(Id. at 3).

{¶ 11} In its first assignment of error, Wayside contends the trial court erred in giving

the federal district court’s ruling issue-preclusive effect and entering summary judgment on

that basis. Specifically, Wayside challenges the trial court’s reliance on the federal district

court’s finding that Slaton did not terminate Maybury in violation of the EPPA. Wayside

reasons that the finding, which was contained in an interlocutory, partial summary judgment

ruling, never became final and had no preclusive effect in light of the subsequent settlement

and voluntary dismissal of the federal action.

{¶ 12} In response, Slaton and Bogin Patterson argue (1) that Wayside waived all of

its appellate arguments because its 79-page memorandum in opposition to summary judgment

was never properly filed below, (2) that Wayside waived its “interlocutory” argument by not

raising it in opposition to summary judgment, and (3) that the federal district court’s ruling

was entitled to issue-preclusive effect because there was a final judgment in federal court.

{¶ 13} Upon review, we are unpersuaded by the arguments of Slaton and Bogin

Patterson. Wayside did not waive its argument about the federal district court’s ruling lacking

issue-preclusive effect. Wayside had timely moved for an additional extension of time to file

its lengthy memorandum in opposition to summary judgment. When that was not specifically

ruled upon, on the proposed extension date Wayside filed its motion for leave to file its

memorandum instanter and included a copy of the memorandum. Although the trial court

never expressly ruled on that motion either, the trial court specifically referenced page 9

forty-two of the memorandum in its ruling and addressed Wayside’s arguments. In so doing,

the trial court implicitly granted leave for filing. Furthermore, although Wayside did not use

the word “interlocutory” in its memorandum opposing summary judgment, it did argue against

application of collateral estoppel. Because we believe the trial court’s review of Wayside’s

memorandum in opposition, and reference to it, constituted an implicit grant of leave for

filing, we too have considered the content and find that Wayside did not waive all of its

appellate arguments.

{¶ 14} As for the proposition that the federal district court’s interlocutory, partial

summary-judgment ruling later became “final,” we disagree. In support, Slaton and Bogin

Patterson cite a “Stipulation of Dismissal with Prejudice” filed in the federal district court

action. (Doc. #41 at Exh. J). They argue that this notice of dismissal pursuant to Fed.R.Civ.P.

41(a)(1)(A)(ii), which was signed by counsel but not by the federal district court judge,

constituted a “final judgment” into which the interlocutory, partial summary judgment

merged. This argument lacks merit. A partial summary judgment followed by a settlement and

a dismissal with prejudice has no preclusive effect. Glidden Co. v. Lumbermens Mut. Cas.

Co.,

,

,

(“The summary judgment in

the prior Ohio action never became a final order because the entire action was nullified with

the settlement and dismissal. The doctrine of collateral estoppel cannot be invoked when there

is no final order.”).

{¶ 15} Despite the foregoing conclusions, we find no reversible error flowing from

the trial court giving preclusive effect to the finding that Maybury was not terminated in

violation of the EPPA. The error was harmless for at least two reasons. First, the error was 10

harmless because the trial court itself found, based on evidence before it, that Slaton did not

terminate Maybury in violation of the EPPA. As set forth above, the trial court relied on

“Mark Campbell’s deposition testimony that Slaton lacked the authority to terminate Maybury

and that he, Campbell, terminated Maybury due to his belligerence with Slaton[,] * * * a

reason for termination that was unrelated to Slaton’s alleged malpractice.” (Doc. #91 at 3).

Moreover, “[w]e review summary judgment decisions de novo, which means that we apply the

same standards as the trial court.” GNFH, Inc. v. W. Am. Ins. Co.,

,

,

(2d Dist.). Based on the record before us, we agree

with the trial court’s conclusion that Maybury was not terminated by Slaton in violation of the

EPPA. Accordingly, the trial court’s error of giving preclusive effect to the federal litigation 2 does not result in reversal.

{¶ 16} The trial court’s reliance on collateral estoppel was harmless for a second,

more fundamental reason as well. In finding that Slaton did not terminate Maybury in

violation of the EPPA, the federal district court resolved a question of law. A review of the

federal district court’s ruling reveals that Maybury’s EPPA claim was multi-faceted. The

claim was based on allegations that Wayside, Slaton, and the law firm had violated the statute

by (1) asking Maybury to take a polygraph test, (2) threatening Maybury with discipline or

discharge if he refused to take a polygraph, (3) terminating Maybury’s employment for

attempting to exercise his right to obtain and consult with counsel before signing documents

2 We distinguish the conclusion that summary judgment should be granted on the issue that Maybury was not terminated by Slaton in violation of the EPPA from Wayside’s argument, raised in it second assignment of error, that there are damages that it seeks other than the settlement with Maybury and the attorney fees for defending the Maybury lawsuit. We deal with that contention in analyzing the second assignment of error. 11

relating to a polygraph, (4) failing to post certain notices, and (5) failing to provide Maybury

with certain notices. (Doc. #41, Exh. A, p.3).

{¶ 17} The federal district court found Slaton and Bogin Patterson entitled to

summary judgment on Maybury’s claim of termination in violation of the EPPA for

attempting to exercise his right to obtain and consult with counsel before signing

polygraph-related documents.3 (Doc. #41, Exh. B, p. 10). The federal district court noted that

the EPPA prohibited an employer from firing an employee for exercising “any right afforded

by this Chapter.” It then found that consulting counsel was not a right protected by the

EPPA. The federal district court observed that an employer’s failure to give an employee an

opportunity to consult counsel prevented the employer from invoking certain statutory

exemptions to liability but “did not create a separate right, the violation of which will permit

the one whose right was violated to sue the violator for damages proximately caused thereby.”

(Id. at p. 11). “More to the point,” the federal district court concluded, “[the EPPA] provision

does not afford the Plaintiff the right to consult counsel.” (Id.).

3 We note that Wayside already had settled Maybury’s claims against it before the federal district court’s partial summary judgment ruling. [Cite as Wayside Body Shop, Inc. v. Slaton,

.] {¶ 18} Because Maybury’s only claim alleging termination in violation of the EPPA

fails, as a matter of law, for a purely legal reason, the trial court’s invocation of collateral

estoppel was unnecessary and indisputably harmless.4 This court also reviews questions of

law de novo. Whether the EPPA provision at issue in the federal lawsuit provided employees

with a right to consult counsel is a question of law. Having reviewed the EPPA and the federal

district court’s ruling, we believe it answered that question correctly. See 29 U.S.C.

2002(4)(C) and 29 U.S.C. 2007(b)(2). Therefore, without regard to any reliance on collateral

estoppel by the trial court below, the fact remains that Maybury was not terminated in

violation of the EPPA, as alleged in the federal lawsuit, because legally the EPPA does not

protect the right he claimed to have been fired for exercising, and factually Slaton did not fire

him. We reach this result based on the record before us and not because of any preclusive

effect of the federal litigation. That being so, we see no reversible error in the trial court’s

reliance on issue preclusion. Wayside’s first assignment of error is overruled.

{¶ 19} In its second assignment of error, Wayside asserts that the trial court erred in

construing its complaint too narrowly when finding that Slaton’s alleged malpractice did not

proximately cause any damages.

{¶ 20} In its ruling, the trial court reasoned:

While the district court did not specifically address whether Slaton had

committed malpractice, it determined that Slaton did not “terminate” Maybury

in violation of the EPPA, which was Slaton’s alleged malpractice. Hence,

assuming Slaton committed malpractice, it was not the proximate cause of the

4 As noted, Maybury also alleged violations of the EPPA based on being asked to take a polygraph and being threatened with discipline if he refused. We will also address those issues under the second assignment of error. 13

damages Wayside claims.

(Doc. #91 at 3).

{¶ 21} On appeal, Wayside argues that its complaint below included

breach-of-fiduciary-duty and negligence claims that were not predicated on Maybury being

terminated in violation of the EPPA. Wayside also maintains that its legal-malpractice claim

encompassed more than Slaton terminating Maybury in violation of the EPPA. Therefore,

Wayside challenges the trial court’s conclusion that it cannot have any damages proximately

caused by Slaton’s negligence merely because Maybury was not terminated in violation of the

EPPA.

{¶ 22} In support of their summary judgment motion, Slaton and the law firm

presented the affidavit of Stephen Chappelear, a practicing lawyer and member of the Ohio

Bar for over thirty-three years. The affidavit stated that it was based on Chappelear’s “review

of the pleadings, filings, and discovery in this case , and certain pleadings and filings in the

United States District Court * * *, as well as [his] own knowledge and expertise.” (Chappelear

affidavit ¶1). Chappelear concluded: “It is my opinion, based upon my knowledge, experience,

and expertise detailed above and review of the material provided to me, there is no causal

connection between the conduct of Mr. Slaton and the damages claimed by Wayside.” (Id. at

¶13). Indeed, the focus of the motion for summary judgment was whether Wayside could

demonstrate that the damages it claimed were proximately caused by Slaton’s actions.

{¶ 23} Wayside’s argument for this assignment of error begins at page fourteen and

ends at page twenty-five of its brief. But pages fourteen through twenty-two deal with the

preclusive effect of the federal summary judgment, not proximate causation of damages. Pages

twenty through twenty-two also deal with an argument about whether Wayside’s damages 14

(specifically the Maybury settlement and its attorney fees and costs for litigation defense) are

speculative, not about proximate causation of those or any other damages.

{¶ 24} Beginning on the last line of page twenty-two and ending on page twenty-five

is the only discussion of the critical issue—proximate cause of damages. There, Wayside

presents three arguments: (1) “The relationship between the events, Slaton telling Maybury

that Maybury’s employment with Wayside was terminated * * * and Maybury filing the

federal action, resulting in Wayside incurring lawyers’ fees, litigation-related costs and

expenses, and the settlement * * * satisfies the cause-and-effect relationship underlying

proximate causation,” (Appellant’s brief at 23); (2) Chappelear’s affidavit was inadequate

because it was based on the assumption that the federal litigation had preclusive effect; and (3)

there exists a reasonable connection between Slaton’s actions and the “other damages”

Wayside seeks to recover. (The only “other damages” referred to in this part of the argument is

that Slaton charged Wayside for the negligent preparation of the personnel policy containing

the polygraph requirement and also charged for his services to draft a revised policy.)

{¶ 25} We first note that the second and third arguments detailed above were not

raised in the trial court below, and we need not consider them. In Wayside’s seventy-nine page

memorandum in opposition considered by the trial court, there is not a single word referring to

Chappelear’s affidavit, and there is no response to it. There is repetition of the concept that a

lawyer is liable for damages proximately caused by a wrongful act, but there is no specific

explanation how the damages in this case were proximately caused by Slaton. Likewise,

Wayside below did not allege, pray for, state in interrogatories, explain in deposition, or

identify in the record the “other damages” its raises. Not only does the complaint never

identify a specific billing-damages amount, it does not even refer to what Slaton “billed” or 15

“charged” or what Wayside “paid” to Slaton or his firm. The prayer of the complaint seeks the

amount of the Maybury settlement, litigation defense costs and fees, fees for the malpractice

case, punitive damages, and an amount of amorphous compensatory damages. The prayer

makes no request for damages for billing related to the negligently performed work or double

billing to correct the error. In Wayside’s answer to interrogatories, wherein the defense asked

it to “itemize each damage being sought * * * including the dollar amount * * *,” there is no

mention of billing for negligently performed work, double billing to correct the error, or an

amount allocated to either. The deposition testimony of Wayside’s president, Mark Campbell,

failed to shed any light on these damages claimed. Finally the memorandum in opposition to

summary judgment fails to “set forth specific facts showing that there is a genuine issue for

trial,” as required by Civ. R. 56(E), concerning how the improper-billing argument was the

proximate cause of any damages related to the Maybury lawsuit or its settlement.5

{¶ 26} We turn now to Wayside’s remaining argument, which involves whether the

record reveals any damages proximately caused by Slaton’s alleged malpractice. Resolution of

this issue requires analysis of the motion for summary judgment and Wayside’s response

thereto. In addressing the issue, we find it appropriate to treat the assorted causes of action in

Wayside’s complaint as claims for legal malpractice. This court has recognized that “‘[a]n

action against one's attorney for damages resulting from the manner in which the attorney

represented the client constitutes an action for malpractice * * *, regardless of whether

5 Wayside does make many references in its memorandum to billing for negligent work, and billing for correction of that work, as part of its argument for punitive damages. But it fails to establish proximate cause of the argued billing discrepancy to the litigation initiated by Maybury. 16

predicated upon contract or tort or whether for indemnification or for direct damages. * * *

Malpractice by any other name still constitutes malpractice.’”Pierson v. Rion, 2d Dist.

Montgomery No. 23498,

, ¶14, quoting Muir v. Hadler Real Estate Mgmt.

Co.,

,

(10th Dist. 1982). “‘Such professional misconduct

may consist either of negligence or of breach of the contract of employment. It makes no

difference whether the professional misconduct is founded in tort or contract, it still

constitutes malpractice.’”

We therefore consider all of Wayside’s allegations as claims of

malpractice.

{¶ 27} The focus of the motion for summary judgment was on proximate cause of

damages. Slaton and Bogin Patterson argued “that Plaintiff has not suffered any damages that

were proximately caused by Defendants.” (Summary Judgment Motion at 1). In footnote four

of its responsive memorandum, Wayside acknowledged that Slaton and Bogin Patterson

“base[d] [the] motion for summary judgment exclusively on the absence of damages.” As

noted above, Slaton and the law firm presented the affidavit of Stephen Chappelear, a

practicing lawyer and member of the Ohio Bar for more than thirty-three years. The affidavit

stated that it was based on Chappelear’s “review of the pleadings, filings, and discovery in this

case, and certain pleadings and filings in the United States District Court * * *, as well as [his]

own knowledge and expertise.” (Chappelear affidavit ¶1). Chappelear continued: “It is my

opinion, based upon my knowledge, experience, and expertise detailed above and review of

the material provided to me, there is no causal connection between the conduct of Mr. Slaton

and the damages claimed by Wayside.” (Id. at ¶13).

{¶ 28} Not only did Wayside not respond with evidence countering the affidavit, it

made no reference to the affidavit at all. Wayside made no effort to point out that the affidavit 17

might be incomplete, inadequate, or improperly submitted.

When a motion for summary judgment is made and supported as provided in

this rule, an adverse party may not rest upon the mere allegations or denials of

the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial. If the party does not so respond, summary judgment, if

appropriate, shall be entered against the party.

Civ. R. 56(E).

{¶ 29} If the moving party satisfies its initial burden of supporting its motion with

evidence of the type listed in Civ.R. 56, the non-moving party then has the reciprocal burden

to set forth specific facts in response. Dresher v. Burt,

,

(1996). Because Wayside made no response to Chappelear’s affidavit, the only relevant

question is whether the affidavit satisfied the movants’ initial burden to “demonstrate the

absence of a genuine issue of material fact on the essential element(s) of the nonmoving

party's claims.”

We believe the affidavit was sufficient to impose a reciprocal burden on

Wayside.

{¶ 30} Ohio courts generally have required expert testimony to establish an attorney’s

breach of the duty of care in a legal-malpractice case unless the breach is obvious or within

common knowledge. See, e.g., Toliver v. Duwel, 2d Dist. Montgomery No. 24768,

. Unlike cases involving medical malpractice, there is relatively little

authority, however, requiring expert testimony to establish causation in legal-malpractice

cases. See, e.g., Bloomberg v. Kronenberg, U.S. Dist. Ct. No. 1:06-CV–0733, 2006 WL 18

3337467, *5 (N.D. Ohio 2006) (“[T]he Court rejects the Defendant’s argument that Ohio law

requires proximate cause be established only through expert testimony [in legal-malpractice

cases.] * * * At best, * * * in some instances expert testimony regarding proximate cause may

be necessary.”); Montgomery v. Gooding, Huffman, Kelly & Becker,

(N.D.Ohio 2001) (“* * * Ohio law does not require expert witness evidence to establish

proximate cause in legal malpractice actions.”); Morris v. Morris, 9th Dist. Summit No.

21350,

, ¶19 (“However, it appears that an expert is not required to prove the

third prong of a legal malpractice claim, or proximate cause.”); Robinson v. Calig &

Handleman,

,

(10th Dist. 1997) (emphasis added)

(noting that “with appropriate foundation, an expert may opine concerning the proximate

cause aspect of a legal malpractice case”); Compare Yates v. Brown,

,

,

(9th Dist.) (finding expert testimony necessary “[w]hen

multiple attorneys were involved in the underlying representation, and when the plaintiffs

have alleged negligent representation by more than one attorney” and reasoning that “expert

testimony would be critical under these circumstances to determining causation and either

parsing or eliminating liability”). Having reviewed the case law, we find no general

requirement for expert testimony on the issue of causation in legal-malpractice cases.

Nonetheless, such testimony may be necessary under some circumstances.6 Bloomberg.

6 In a notice of additional authorities filed on January 23, 2012, Slaton and Bogin Patterson cite this court’s opinion in Nalls v. Nystrom, 2d Dist. Montgomery No. 21232,

, for the proposition that a legal-malpractice plaintiff must present expert testimony on the issue of proximate cause. We disagree with the appellees’ reading of Nalls. In Nalls, this court upheld the trial court’s entry of a directed verdict in favor of the defendant attorney on the basis that he did not breach his duty to the plaintiff. Id. at ¶16-19. After so doing, this court added a citation to an earlier decision in which it had observed that expert testimony on causation and damages “‘would be at least helpful to the jury, if not necessary to their resolution of these issues.’” Id. at ¶20, quoting Nalls v. Nystrom,

,

,

(2d Dist.); see, also, Nalls v. Nystrom, Montgomery C.P. No. 02-2239 (June 21, 2005) 19

{¶ 31} On appeal, Wayside challenges the affidavit of Stephen Chappelear by arguing

that it is inadequate because the attorney’s opinion is based on the erroneous assumption that

the federal litigation had preclusive effect. That argument is reasonable, but both incomplete

and too late. A contrary view of the affidavit is that although it supports its analysis with the

federal court resolution (i.e., that Slaton did not violate the EPPA by terminating Maybury),

one reason for the federal decision was a factual finding that Slaton did not terminate Maybury

at all. As the trial court found below, the termination was done by Mark Campbell—a factual

conclusion with which we agree. Therefore, the affidavit’s logic, that Slaton and the law firm

cannot be liable for damages for settling and defending a lawsuit grounded on wrongful

termination, because Slaton did not fire Maybury, can be viewed as intact. We will not permit

Wayside to parse the language of the affidavit for the first time on appeal when there was no

mention of it in the trial court, no apparent attempt to depose the affiant, no attempt to

challenge or oppose the opinion, and no attempt to respond in kind. Moreover, the last

paragraph, which we quoted above, clearly expresses the opinion that Slaton’s actions did not

proximately cause the damages Wayside seeks. In sum, we believe the affidavit was sufficient

to impose upon Wayside a reciprocal duty to respond to it, and Wayside failed to do so.

Accordingly, the grant of summary judgment to the appellees was correct.

(Froelich, J.) (“Mr. Nystrom argues that Mr. Nalls does not have an expert on the proximate cause issue and cites a footnote from the Court of Appeals decision that expert testimony on the issues of damages and proximate cause could be ‘helpful’ to the jury. * * * Although it might be helpful, expert witness evidence is not required to establish proximate cause in legal malpractice cases.”). We do not dispute that expert testimony may be “helpful” to a jury although not required in all cases. Slaton and Bogin Patterson also cite Nu-Trend Homes, Inc. v. Law Offices of Delibera, Lyons & Bibbo, 10th Dist. Franklin No. 01AP1137,

. In Bloomberg, the federal district court addressed Nu-Trend, finding it stands only “for the proposition that in some instances expert testimony regarding proximate cause may be necessary.” [Cite as Wayside Body Shop, Inc. v. Slaton,

.] {¶ 32} We recognize Wayside’s argument that the trial court’s finding Maybury was

not terminated in violation of the EPPA should not be dispositive of the entire case. Wayside

alleged it faced liability to Maybury on the claims he asserted in the federal lawsuit due to

Slaton’s deficient performance as its attorney. As noted above, the federal district court found

a genuine issue of material fact as to whether Slaton (and implicitly Wayside) had violated the

EPPA by (1) asking Maybury to submit to a polygraph and (2) by threatening Maybury with

discipline or discharge if he refused.7 (Doc. #41 at Exh. A p. 6-7). However, when Maybury’s

termination, and its potential for damages, is excluded from the mix, whether the federal

lawsuit would have been initiated, resulting in damages, is a matter not within common

knowledge which, in our view, requires expertise to establish that any resulting damage was

proximately caused by the actions of Slaton or the firm. In that regard, Wayside’s failure to

respond to the motion for summary judgment with an opinion from its own expert is

dispositive—Wayside has failed to demonstrate a genuine issue of material fact as to whether

any damages were proximately caused by the appellees’ actions.

{¶ 33} Having reviewed the record, we believe the trial court did not err in finding

that Wayside cannot establish any damages proximately caused by legal malpractice, as a

matter of law, because Slaton did not terminate Maybury in violation of the EPPA. The two

possible EPPA violations that the trial court did not address are insufficient, by themselves,

for us to conclude, as a matter of common knowledge, that they would have generated a

7 Although the federal district court’s finding of a genuine issue of material fact is not entitled to preclusive effect, the evidence before us supports the same conclusion. Except in certain circumstances, the EPPA (1) prohibits an employer from directly or indirectly asking an employee to take a polygraph test, 29 U.S.C. 2002(1), and (2) prohibits an employer from threatening to discipline or discharge an employee who refuses or fails to take a polygraph test,

(3)(A). In his capacity as Wayside’s legal counsel, Slaton admittedly asked Maybury to take a polygraph test and provided Maybury with a written policy that subjected employees to discipline including termination for refusing a polygraph test. (Slaton depo. at 40). 21

lawsuit, requiring its defense and settlement, without expert testimony on proximate

causation. Wayside did not satisfy its reciprocal burden to provide such expert testimony.

Therefore, the trial court did not err in entering summary judgment in favor of Slaton and

Bogin Patterson. The second assignment of error is overruled.

{¶ 34} In a cross assignment of error brought under App.R. 3(C)(2), 8 Slaton and

Bogin Patterson seek to defend the trial court’s summary judgment ruling on grounds not

relied on by the trial court below. Having determined above that the trial court properly

entered summary judgment in favor of Slaton and Bogin Patterson, we overrule their cross

assignment of error as moot.

{¶ 35} Based on the reasoning set forth above, the judgment of the Montgomery

County Common Pleas Court is affirmed.

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

DONOVAN and FROELICH, JJ., concur.

Copies mailed to:

John J. Mueller Robert H. Stoffers David K. Frank Jason R. Deschler Hon. William H. Wolff, Jr. (Sitting by assignment for Hon. Connie S. Price) Hon. Michael W. Krumholtz

8 App.R. 3(C)(2) provides: “A person who intends to defend a judgment * * * on a ground other than that relied on by the trial court but who does not seek to change the judgment or order is not required to file a notice of cross appeal.” 22