Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2014 CV 01941.
Charles E. McFarland, (For Plaintiff-Appellant).
A. Stanley, (For Defendant-Appellee, Robert L. Johnson).
Cynthia L Henry (For Defendant-Appellee, Benjamin Joltin).
COLLEEN MARY OTOOLE, J.
Appellant, Matthew Paldino, appeals from the May 20, 2016
judgment of the Trumbull County Court of Common Pleas,
denying his motion for summary judgment and granting
appellees', Attorneys Robert L. Johnson and Benjamin
Joltin, motions for summary judgment in a legal malpractice
case. For the reasons stated, we reverse and remand.
On October 21, 2014, Paldino filed a professional tort
complaint against Johnson and Joltin for legal malpractice,
intentional and negligent misrepresentation, intentional
emotional distress, breach of fiduciary duty, and fraud.
The claims against Johnson stem from his actions or inactions
in Latimer v. Paldino, Trumbull County Court of
Common Pleas Case No. 2010 CV 01229, in which Johnson
represented Paldino. That underlying case alleged damages
resulting from cohabitation and false marriage
representations. At issue was the value of the real estate at
the time Lauren Latimer stopped residing with Paldino as well
as the mortgage on the property. The pertinent
facts/allegations from that case are as follows: Paldino was
sued by Latimer; Paldino retained Johnson for $1, 500;
Johnson filed an answer to the complaint; Johnson filed a
Civ.R. 60(B) motion which was denied by the trial court;
Johnson did not see any merit in filing a motion to dismiss
or a motion for summary judgment; Johnson averred he gave
competent legal representation and did not violate any
standard of care; however, Paldino asserted Johnson should
have filed a counterclaim for the value of the vehicles,
which Latimer retained when she left the property; Paldino
further contended and the docket supports the proposition
that Johnson filed no Civ.R. 12 motions, did not conduct
discovery, did not file a motion for summary judgment, did
not prepare him for trial, offered no exhibits, and did not
make a closing argument and the docket supports this
contention; Paldino also maintains Johnson did not file an
objection to the magistrate's March 1, 2012 decision, did
not properly communicate with him, made false promises, did
not file an appeal, and failed to inform him that he had been
suspended from the practice of law in Ohio on March 4, 2014.
The claims against Joltin stem from his actions or inactions
in Latimer v. Paldino, 11th District Trumbull Appeal
Case No. 2014-T-0038, in which Joltin represented Paldino.
That case involved an appeal from a denial of a motion for
reconsideration filed by Joltin. The pertinent
facts/allegations from that case are as follows: Paldino
indicates that when Joltin met with him and Johnson on March
14, 2014, Joltin knew Johnson had been suspended from the
practice of law and intentionally failed to inform him;
Paldino claims Joltin knew that the February 12, 2014 denial
of the motion for relief from judgment filed by Johnson was a
final appealable order and Joltin failed to inform Paldino of
that fact; Joltin filed a motion for reconsideration as
co-counsel on March 24, 2014; Joltin promised Paldino he
would protect his interest by filing another Civ.R. 60(B)
motion on his behalf; Paldino indicates that Joltin did not
communicate with him until he sent an email dated March 23,
2014 with an attached motion to reconsider; Paldino states
that on March 24, 2014, instead of filing a new Civ.R. 60(B)
motion as promised, Joltin filed a motion for reconsideration
of the denied motion without any attempts to correct the
flaws in the motion; a motion for reconsideration of a final
judgment is a nullity and does not extend the time to file an
appeal - see Ventling v. Champion Twp. Bd. of
Trustees., 11th Dist. Trumbull No. 2013-T-0046,
2013-Ohio-5846, ¶11, citing Pitts v. Ohio Dept of
Transp., 67 Ohio St.2d 378, paragraph one of the
syllabus (1981); after the motion for reconsideration was
denied, Paldino states that Joltin failed to immediately
inform him and that Paldino discovered the denial from
checking the docket in late April; Paldino contacted Joltin
regarding an appeal; Joltin requested $650 to handle the
appeal; Paldino gave Joltin a check dated April 28, 2014;
Joltin filed an appeal but did not file an appellate brief;
the appeal was dismissed on August 4, 2014 for failure to
prosecute; and Paldino was unaware that the appeal had been
dismissed until late August.
Service of the complaint at issue was successful on both
Johnson and Joltin. On November 13, 2014, Joltin entered an
appearance (attorney) on behalf of Johnson (defendant).
Joltin filed a "Second Request for Leave to Plead"
on December 11, 2014. Leave was granted by the trial court
for Johnson and Joltin to move or plead by December 28, 2014.
However, Johnson and Joltin failed to move or plead, i.e.,
failed to timely answer by the deadline.
On January 20, 2015, Joltin filed a motion to continue. The
next day, Paldino filed an application for default judgment.
On January 27, 2015, Joltin filed an answer instanter. On
February 26, 2015, the trial court judge recused himself from
the case. On March 26, 2015, the matter was transferred to a
visiting judge. A certificate of assignment was filed for the
visiting judge on April 16, 2015. On April 29, 2015, Joltin
filed a request to file an answer instanter. Paldino filed a
response on May 11, 2015.
On July 31, 2015, Johnson obtained new counsel. On August 10,
2015, Joltin obtained counsel and an opposition to the
default judgment was filed. On October 14, 2015, Johnson and
Joltin filed notices of filing an expert report of Attorney
On February 3, 2016, Paldino filed a motion for summary
judgment against defendants Johnson and Joltin. Two days
later, Joltin filed a motion for summary judgment. Johnson
did not file a "standalone" motion captioned as a
motion for summary judgment. On March 2, 2016, Paldino filed
a response to Joltin's motion. Two days later, Johnson
and Joltin filed responses to Paldino's motion.
Johnson's pleading indicates that it was brought before
the court pursuant to Civ.R. 56 and that he moved the court
both to deny Paldino's motion for summary judgment and to
issue summary judgment in his favor. On March 21, 2016,
Paldino filed a motion to extend the time to file a reply
because his attorney was hospitalized. As a result of the
hospitalization, the trial date was postponed. Paldino filed
a reply on April 19, 2016.
On May 20, 2016, the trial court denied Paldino's motion
for summary judgment and granted Johnson's and
Joltin's motions for summary judgment. Paldino filed a