CATHERINE L. MCFARLAND, et al. Appellants
NIEKAMP, WEISENSELL, MUTERSBAUGH & MASTRANTONIO, LLP, et al. Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2014-07-3403.
APPEARANCES: DAVID P. MEYER, JOHN C. CAMILLUS, and COURTNEY
M. WERNING, Attorneys at Law, for Appellants.
RUDOLPH A. PECKINPAUGH, JR. and JARED J. LEFEVRE, Attorneys
at Law, for Appellee.
DECISION AND JOURNAL ENTRY
Appellants, Catherine McFarland and Jennifer Folden,
("the Clients"), appeal the judgment of the Summit
County Court of Common Pleas in favor of Appellee, Niekamp,
Weisensell, Mutersbaugh & Mastrantonio, LLP
("Niekamp" or "the Firm"). For the
reasons set forth below, this Court reverses.
The Clients retained the law firm of Mannion & Gray to
pursue a claim against their former stockbroker for alleged
misconduct. The case was assigned to attorney Rami Awadallah,
an associate at Mannion & Gray. Mr. Awadallah met with
the Clients, reviewed documents, and drafted a complaint,
which he claimed to have filed on their behalf.
Subsequently, Mr. Awadallah notified the Clients that he was
leaving Mannion & Gray to start his own firm, Awadallah
& Hudak. The Clients agreed to continue their
representation with Mr. Awadallah at his new law firm. Mr.
Awadallah later closed his law firm and joined the law firm
of Niekamp, Weisensell, Mutersbaugh & Mastrantonio, LLP.
Mr. Awadallah did not notify the Clients of this change in
law firms. Instead, the Clients discovered this information
when they began looking for Mr. Awadallah on the internet.
Ms. McFarland called Niekamp and the receptionist confirmed
Mr. Awadallah worked there.
For eight months, Ms. McFarland communicated by telephone and
email with Mr. Awadallah while he was employed at Niekamp.
Ms. McFarland either spoke directly with Mr. Awadallah or
left messages for him. The messages were transmitted by the
office personnel to Mr. Awadallah via Niekamp's office
email. Ms. McFarland spoke with five different office
personnel, including the office manager, who took messages
and scheduled an appointment for Mr. Awadallah. Three of the
office personnel initiated calls to Ms. McFarland at Mr.
According to the Clients, Mr. Awadallah met with them to
discuss their case. At the meeting, Mr. Awadallah gave the
Clients his business card which indicated he was affiliated
with Niekamp. The meeting was not held at Niekamp's
offices. Mr. Awadallah later told the Clients that he had
rejected a settlement offer and was considering refiling the
complaint in a different county.
Mr. Awadallah contends the scope of the telephone calls to
Ms. McFarland while he was with Niekamp was to explain that
he no longer represented them. He denied meeting with the
Clients and giving them his business card. He further denied
the conversation about a settlement offer.
Thereafter, Mr. Awadallah's communication with Ms.
McFarland discontinued, despite her leaving messages at
Niekamp for another four months. The Clients filed a
grievance against Mr. Awadallah. Through the grievance
investigation, the Clients learned that Mr. Awadallah never
filed the complaint against their former stockbroker and the
time to do so had expired.
The Clients filed a complaint asserting legal malpractice
against Mr. Awadallah and vicarious liability against Niekamp
and Mannion & Gray. All of the defendants moved for
summary judgment. The trial court denied Mr. Awadallah's
and Mannion & Gray's motions, but granted
Niekamp's motion on the theory of apparent authority. The
trial court denied Niekamp's motion on the issue of
causation expert and declined to address the statute of
The Clients subsequently settled their vicarious liability
claim against Mannion & Gray, leaving only the legal
malpractice claim against Mr. Awadallah. The trial court then
amended the summary judgment decision to add the Civ.R. 54(B)
certification as to the judgment in favor of Niekamp.
The Clients have timely appealed, raising one assignment of
error for this Court's review. Niekamp has raised two
cross-assignments of error.
Prior to the briefing of the assignments of error, Niekamp
moved to dismiss the appeal for lack of jurisdiction. This
Court deferred ruling on the motion to dismiss until
"the final disposition of the appeal." Niekamp
asserted the summary judgment decision is not a final,
appealable order and the trial court abused its discretion
when it amended the summary judgment decision by adding the
Civ.R. 54(B) certification. Upon consideration, Niekamp's
motion to dismiss the appeal is denied.