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Paldino v. Johnson

Court of Appeals of Ohio, Eleventh District, Trumbull

May 8, 2017

MATTHEW PALDINO, Plaintiff-Appellant,
v.
ROBERT L. JOHNSON, et al., Defendants-Appellees.

         Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV 01941.

          Charles E. McFarland, (For Plaintiff-Appellant).

          Devon A. Stanley, (For Defendant-Appellee, Robert L. Johnson).

          Cynthia L Henry (For Defendant-Appellee, Benjamin Joltin).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 Curt Bogen.

         {¶8} 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.

         {¶9} 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 timely ...


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