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McFarland v. Niekamp, Weisensell, Mutersbaugh & Mastrantonio, LLP

Court of Appeals of Ohio, Ninth District, Summit

November 1, 2017

CATHERINE L. MCFARLAND, et al. Appellants


          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.


          CALLAHAN, Judge.

         {¶1} 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.


         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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. Awadallah's direction.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 limitations argument.

         {¶10} 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.

         {¶11} The Clients have timely appealed, raising one assignment of error for this Court's review. Niekamp has raised two cross-assignments of error.

         {¶12} 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.


         APPELLANTS' ...

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