Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phillips v. Wilkinson

Court of Appeals of Ohio, Tenth District

November 9, 2017

Keith Phillips, Plaintiff-Appellant,
v.
William C. Wilkinson, Esq. et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-2453

          On brief: Ford, Gold, Kovoor & Simon, Ltd., and Sarah Thomas Kovoor, for appellant.

          On brief: Taft Stettinius & Hollister LLP, Janica Pierce Tucker, and Andrew J. Art, for appellees.

          Argued: Carolyn A. Davis.

          DECISION

          SADLER, J.

         {¶ 1} Plaintiff-appellant, Keith Phillips, appeals from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, William C. Wilkinson, Esq. and Estate of William C. Wilkinson.[1] For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} In 2012, appellant was an inmate in the custody and control of the Ohio Department of Rehabilitation and Corrections ("DRC") at the Marion Correction Institution ("MCI"). On June 29, 2012, appellant was in the MCI outdoor area when he was struck in the face by a softball that had been hit over the fence by a contestant in a home run hitting contest. Appellant sustained a serious injury to his right eye and, as a result, permanently lost most of his vision in that eye.

         {¶ 3} Appellant, by and through attorney Percy Squire, brought a civil action against DRC in Court of Claims of Ohio alleging negligence. The issues of liability and damages were bifurcated for trial. Squire continued to represent appellant through the liability trial. Following a trial to the Court of Claims on the issue of liability, the Court of Claims found in favor of appellant on his negligence claim.

         {¶ 4} At the damages trial, Wilkinson represented appellant. The Court of Claims awarded damages of $200, 000 to compensate appellant for pain and suffering, loss of vision in his right eye, and his increased risk of total blindness due to appellant's loss of vision in one eye. The Court of Claims did not award any damages to appellant for loss of future earning capacity and future medical expenses.

         {¶ 5} Appellant appealed to this court from the decision of the Court of Claims arguing that the Court of Claims erred when it failed to award damages to appellant for loss of future earning capacity and future medical expenses. In Phillips v. Dept. of Rehab. & Corr., 10th Dist. No. 12AP-965, 2013-Ohio-5699, this court affirmed the judgment of the Court of Claims. In holding that the Court of Claims did not err in denying recovery of damages for loss of future earning capacity, this court stated: "Although appellant's alleged damages for loss of earning capacity was premised on his inability to obtain employment in the tool and dye industry due to his injury, appellant failed to call a vocational expert to establish his future employability or vocational aptitude to work in this field. Appellant also failed to present any evidence of his pre-injury wage." Id. at ¶ 14.

         {¶ 6} On February 22, 2014, shortly after this court issued its decision in Phillips, Wilkinson passed away. On February 23, 2015, appellant filed a malpractice action against appellee. Appellant dismissed that case by filing a notice of voluntary dismissal, but he refiled the malpractice action on March 10, 2016. The material allegations of the complaint are as follows:

7. At trial, Attorney Wilkinson failed to introduce evidence from a vocational expert to establish my future employability, failed to present evidence of my pre-injury wage, failed to present evidence of my ability to obtain employment in the tool and die industry following release and evidence of future medical expenses.
8. By reason of Defendant's actions, I was deprived of over $850, 000 in monetary damages.

(Compl. at 2.)

         {¶ 7} On March 7, 2017, the trial court granted appellee's motion for summary judgment for the stated reason that appellant failed to identify a legal expert witness who would give testimony on his behalf, as required by the local rules of court, and because Ohio law required appellant to present the testimony of an expert witness to create a disputed issue of fact as to the elements of his claim for legal malpractice. Specifically, the trial court concluded that "[a]bsent expert testimony there is no basis to find that Wilkinson did not meet the standard of care." (Mar. 7, 2017 Decision at 6.)

         {¶ 8} Appellant appealed to this court from the trial court's decision.

         II. ASSIGNMENT OF ERROR

         {¶ 9} Appellant assigns the following as trial court error:

The trial Court erred in granting Appellee's motion for summary judgment on grounds that Mr. Phillips failed to adduce expert ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.