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Fourtounis v. Verginis

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 16, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-829086

          ATTORNEY FOR APPELLANTS Matthew B. Ameer Law Offices of Matthew Ameer L.L.C.

          ATTORNEYS FOR APPELLEES David Ross Holly M. Wilson Reminger Co., L.P.A.

          BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.


          SEAN C. GALLAGHER, J.

         {¶1} Plaintiffs-appellants Mark N. Fourtounis ("Fourtounis"), Nikolas and Marika Fourtounis, Nikolas and Marika Fourtounis Living Trust, and Global Outdoor Solutions appeal (1) the trial court's denial of their motion for default judgment, and (2) the trial court's grant of summary judgment in favor of defendants-appellees Theologos Verginis and Benesch, Friedlander, Coplan, and Aronoff, L.L.P. ("the law firm"). Upon review, we affirm the rulings of the trial court.


         {¶2} Fourtounis and Evangelos Stamatopoulos were business partners from 2010 until 2012. In the process of unwinding their business relationship, a dispute arose concerning various pieces of business equipment. Fourtounis believed that a settlement agreement signed by Stamatopoulos addressed the disposition of the assets, and Stamatopoulos argued that he was forced to sign the agreement under duress. After being denied access to the business equipment by Fourtounis, Stamatopoulos retained the legal services of attorney Verginis.

         {¶3} In June 2012, Verginis filed a verified complaint for replevin along with an emergency motion for possession of property to protect his client's interest in the business equipment. Attached to the motion was an affidavit executed by Stamatopoulos in which he stated his belief that appellants were holding his equipment for ransom, that they were using the equipment for their own personal gain, and that there was reason to believe they would remove the equipment from the jurisdiction of the court. The motion did not mention the settlement agreement.

          {¶4} After prejudgment possession of the property had been obtained, attorney Verginis withdrew from the representation of Stamatopoulos in March 2013, and the litigation continued with other counsel. The underlying litigation was ultimately concluded in favor of Fourtounis.

         {¶5} On June 27, 2014, appellants filed a complaint against attorney Verginis and his law firm. The complaint raised six causes of action against appellants that arose from actions that Verginis took while representing Stamatopoulos and Lighting Capital Holdings, L.L.C., in the underlying suit that was filed against Fourtounis.

         {¶6} Appellees filed a motion to dismiss that was granted by the trial court. On appeal, the dismissal was affirmed as to two causes of action, including a 42 U.S.C. 1983 action and a claim for intentional infliction of emotional distress, and was reversed and remanded on the remaining claims of civil conspiracy, malicious prosecution in a civil proceeding, third-party legal malpractice, and vicarious liability. Fourtounis v. Verginis, 8th Dist. Cuyahoga No. 102025, 2015-Ohio-2518 (Fourtounis I).

         {¶7} The case was remanded to the trial court, and a case management conference was held on September 3, 2015, with all parties present. On September 8, 2015, new counsel for Verginis entered a notice of appearance. On October 22, 2015, appellants filed a motion for default judgment. The next day, appellees filed an answer and a brief in opposition to the motion for default judgment. On October 28, 2015, the trial court denied the motion for default judgment and deemed the answer timely filed.

         {¶8} Following the completion of discovery, appellees filed a motion for summary judgment that was opposed by appellants. The trial court granted summary judgment. The trial court recognized that Verginis testified during his deposition that he was unaware of the existence of the settlement agreement at the time he filed the replevin action. The trial court proceeded to determine that (1) the third-party malpractice claim failed because there is "no evidence Verginis acted with malicious intent while advocating for his clients in the Underlying Case, " (2) the malicious prosecution claim failed because there was no evidence to establish Verginis possessed an actual intent to harm appellants during the underlying case and cannot satisfy the malice ...

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