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Inc. v. Leneghan

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 13, 2017

KENT'S EXCAVATING SERVICES, INC. PLAINTIFF-APPELLANT
v.
DAVID M. LENEGHAN DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-845941

          ATTORNEY FOR APPELLANTS Theodore J. Lesiak Roderick Linton Belfance L.L.P.

          ATTORNEYS FOR APPELLEE David M. Leneghan K. Scott Carter

          Timothy T. Brick Colleen Mountcastle Gallagher Sharp L.L.P.

          BEFORE: McCormack, J., E.A. Gallagher, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, J.

         {¶1} Plaintiff-appellant Kent's Excavating Services, Inc. ("Kent's Excavating") appeals the trial court's summary judgment in favor of defendant-appellee David M. Leneghan, Esq. in Kent's Excavating legal malpractice action against Leneghan, its former counsel. For the reasons that follow, we affirm.

         {¶2} On May 21, 2015, Kent's Excavating filed a complaint against Leneghan, alleging that its former counsel committed legal malpractice in his representation of Kent's Excavating in relation to the filing of a mechanic's lien in 2008. In its complaint, Kent's Excavating specifically alleged that Leneghan was negligent when he failed to pursue actions to enforce the mechanic's lien, failed to pursue a claim for unjust enrichment, and failed to advise Kent's Excavating of the statute of limitations with respect to the mechanic's lien.

         {¶3} On September 11, 2015, the court held a case management conference, at which time, the court set a trial date and ordered the plaintiff-appellant to file its expert report by February 29, 2016, and the defendant-appellee to file his expert report and any dispositive motions by May 6, 2016. Thereafter, the court granted Kent's Excavating additional time until March 7, 2016, in which to file its expert report.

         {¶4} On May 6, 2016, Leneghan filed a motion for summary judgment. In support of his motion, Leneghan attached numerous exhibits, including portions of the transcripts of the deposition testimony of Kent's Excavating president, W. Kent Phillips. On June 1, 2016, Kent's Excavating filed an opposition to summary judgment. In support of its response, Kent's Excavating attached the affidavit of company president, Phillips, and the affidavit of Patrick Gallagher, an attorney who represented a different subcontractor who performed work on the same project as Kent's Excavating. Thereafter, Leneghan filed a reply.

         {¶5} On July 5, 2016, Kent's Excavating filed its pretrial statement "pursuant to Local Rule 21, " attaching a purported expert report. On July 7, the court granted summary judgment in favor of Leneghan, finding that Leneghan did not breach any duty owed to Kent's Excavating, nor did he "commit negligent conduct that proximately caused any damages." The trial court therefore found no genuine issue as to any material fact and Leneghan was entitled to judgment as a matter of law.

         {¶6} Kent's Excavating now appeals from this judgment, raising as its sole assignment of error that the trial court improperly granted summary judgment in favor of Leneghan.

         {¶7} Summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

          {¶8} In a motion for summary judgment, the moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Once a moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the moving party's pleadings; rather, it has a reciprocal burden of setting forth specific facts demonstrating that there is a genuine triable issue. Id.; State ex rel. Zimmerman v. Tompkins,75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996). The nonmoving party must set forth these specific facts "by the ...


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