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Andolsek v. Hurley

Court of Appeals of Ohio, Eleventh District, Lake

June 25, 2018

YOLANDA ANDOLSEK, Plaintiff-Appellant,
v.
JOHN J. HURLEY, JR., et al. Defendants-Appellees.

          Civil Appeal from the Lake County Court of Common Pleas, Case No. 2017 CV 000323.

          Yolanda Andolsek, pro se, Eddy Road, Willoughby Hills, Plaintiff-Appellant.

          Timothy D. Johnson, Cavitch, Familo & Durkin Co., For Defendants-Appellees.

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, Yolanda Andolsek, pro se, appeals the summary judgment of the Lake County Court of Common Pleas in favor of appellee, John J. Hurley, on appellant's claim for legal malpractice against him. At issue is whether the trial court erred in finding that appellant's malpractice claim was time-barred and in entering summary judgment. For the reasons that follow, we affirm.

         {¶2} As a preliminary matter, we note that appellant's appellate brief does not comply with the Ohio Rules of Appellate Procedure because it does not contain a statement of facts supported by references to the record, in violation of App.R. 16(A)(6). In Grein v. Grein, 11th Dist. Lake No. 2009-L-145, 2010-Ohio-2681, the appellant in his brief failed to cite the record in support of his factual allegations, as required by App.R. 16(A)(6). This court stated:

         {¶3} It is well-settled that it is not the duty of an appellate court to comb the record in search of the evidence necessary to sustain an appellant's claimed error. * * * [I]t is not the duty of this court to search the record to find support for the arguments asserted by [appellant]. He has therefore failed to support this argument by reference to the record, and for this reason alone, his argument lacks merit. Grein, supra, at ¶50.

         {¶4} Here, none of appellant's factual allegations is supported by reference to the record. Despite appellant's serious violation of App.R. 16(A)(6), we dispose of this case based on the undisputed facts, which are outlined herein. In February 2014, appellant hired Hurley, a partner in the law firm Nelson, Sweet, and Hurley, who regularly practiced in the probate courts of Lake and surrounding counties, to represent her as executrix of her father's estate. Appellant admits that Hurley represented her from February 2014 until July 2015.

         {¶5} Appellant argues that in July 2014, the probate court issued the first of three notices to file the inventory. She argues that Hurley requested three continuances to file the inventory for the estate and that as of April 30, 2015, it still had not been filed.

         {¶6} While appellant acknowledges that on April 30, 2015, Hurley sent her a letter advising her that he was withdrawing from his representation of her, she says that in July 2015, she fired Hurley and terminated their attorney-client relationship. She sent him a letter in which she stated: "I excuse Mr. Hurley as my attorney in my father's estate case, 14 ES 0117. I no longer need your services." Thus, the trial court did not err in finding that "Hurley stopped representing [appellant] no later than July 2015."

         {¶7} Appellant concedes that she "was continuously notified by the court to submit the inventory." She argues that in October 2015, she tried to file an inventory on her own in the probate court, but it was returned to her by the court unfiled. She maintains that, afterward, she "was repeatedly notified by the court holding [her] responsible for the inventory," but she repeatedly failed to file it.

         {¶8} One month later, in November 2015, appellant submitted a grievance against Hurley to Disciplinary Counsel of the Supreme Court of Ohio, which she signed on November 18, 2015, alleging that she was filing a grievance against Hurley "for the service he performed handling [her] father's estate." She alleged that Hurley failed to file a suggestion of death that resulted in loss of money to the estate; that he gave her bad legal advice in handling her father's estate; and that "he should pay [her] for damages he caused." Appellant admitted in her grievance that Hurley no longer represents her. On December 4, 2015, Disciplinary Counsel sent a letter to appellant dismissing her grievance. In that letter, Disciplinary Counsel advised her that she could consult counsel about the possibility of pursuing a claim for legal malpractice against Hurley.

         {¶9} On April 20, 2016, the probate court held a hearing regarding appellant's failure to file the inventory at which the court fined her $125 for this omission.

         {¶10} On January 27, 2017, appellant filed a complaint for legal malpractice against Hurley in the Cuyahoga County Court of Common Pleas, alleging, inter alia, that he gave her bad legal advice in handling her father's estate and that he failed to follow her instructions. Hurley filed a motion to transfer ...


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