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Globalcor Associates, LLC v. Law Office of Soles

Court of Appeals of Ohio, Fifth District, Stark

May 28, 2019


          Appeal from the Stark County Court of Common Pleas, Case No. 2017 CV 2551

          For Plaintiff-Appellant: RICHARD C. ALKIRE DEAN NIEDING

          For Defendants-Appellees Robert E. Soles, Jr. and the Law Offices of Robert E. Soles, Jr. TIMOTHY T. BRICK MONICA A. SANSALONE SHANE A. LAWSON Gallagher Sharp LLP

          Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.


          Delaney, J.

         {¶1} Plaintiff-appellant Globalcor Associates, LLC ("Globalcor") appeals from the July 9, 2018 Judgment Entry of the Stark County Court of Common Pleas granting the motion for summary judgment of defendants-appellees Robert E. Soles, Jr. and the Law Offices of Robert E. Soles, Jr. (collectively "Soles").


         Soles represents Globalcor in Kelev and foreclosure litigation

         {¶2} This case arose in 2017 as a refiled legal malpractice case. Jeffrey Melton ("Melton") is described as a property developer, manager, and owner who operates through various corporate entities including, e.g., Globalcor. In 2011, Globalcor purchased property in Akron, Ohio known as the "Bank Building," including a liquor license and bar equipment for a nightclub that operated on the first floor of the building. Globalcor obtained financing to purchase the Bank Building from a lender known as Kelev Funding ("Kelev").

         {¶3} After the purchase, Globalcor renovated the Bank Building and operated The Bank Nite Club. According to Globalcor, a buyer named Sam Oliver came forward and entered an agreement with Globalcor to operate The Bank Nite Club in October 2011. Oliver purportedly intended to purchase the Bank Building, but before the transaction could take place, Kelev "wrongfully took possession of the Bank Building and locked Globalcor out, killing the deal with [Oliver]." (Brief, 3).

         {¶4} Soles points out that Globalcor failed to pay the mortgage or taxes on the property, never found a buyer, and defaulted on the high-interest loan from Kelev.

         {¶5} Soles represented Globalcor during ensuing litigation with Kelev and in a subsequent tax foreclosure action filed by the Summit County Fiscal Officer.

         {¶6} Globalcor, via Melton, acknowledged satisfaction with Soles' representation in the Kelev litigation and in the tax foreclosure proceeding. When asked whether Soles "did a good job" for Globalcor in the Kelev litigation, Melton said "yes," and when asked what Soles should have done differently, he said, "Nothing." When asked whether Soles was negligent in his representation of Globalcor throughout the foreclosure proceedings, Melton responded, "No."

         {¶7} Globalcor did not pay the back taxes on the Bank Building and a sheriff's sale was scheduled for March 17, 2015. Soles notified Melton of the sheriff's sale on March 3, 2015, via an email which Melton read on March 6, 2015.

         {¶8} The parties agree that bankruptcy was discussed as an option to prevent the sheriff's sale. At this point the parties' accounts diverge.

         The option of bankruptcy is raised

         {¶9} On March 16, 2015, Melton went to Soles' office to discuss options to save the Bank Building. Soles told Melton bankruptcy was an option, but he did not litigate bankruptcies, although "someone in [his] office" did. Soles escorted Melton into the office of attorney John Juergensen.[1]

         {¶10} Globalcor asserts Soles told Juergensen that Melton needed more time to "complete a sale" of the Bank Building, and that both Soles and Juergensen determined that a Chapter 11 bankruptcy should be filed.

         {¶11} Soles asserts Globalcor was separately represented in the bankruptcy by John Juergensen of John L. Juergensen Co., LPA, and that Juergensen filed a "skeleton Chapter 11 petition that intentionally omitted related schedules" because Melton ultimately hoped the bankruptcy would be dismissed.

         {¶12} Soles left Melton in Juergensen's office to discuss the bankruptcy. Melton agreed to pay Juergensen $500 to file a "bare bones" Chapter 11 petition. Juergensen filed the Chapter 11 petition the same day and sent notice of the filing to the Summit County Sheriff's Department.

         {¶13} Globalcor acknowledges its "immediate goal was to delay the Sheriff's sale until a sale or refinancing of the Bank Building could occur, [thus] pursuing a Chapter 11 was Globalcor's best option to pay off its creditors and maintain control of its most valuable asset, the Bank Building." (Brief, 9). Nevertheless, Globalcor argues the strategy of filing a skeletal Chapter 11 petition was doomed to fail; therefore Soles breached the duty of care in purportedly failing to refer Globalcor to bankruptcy counsel until shortly before the sheriff's sale and contributed to Juergensen's alleged failure to meet the standard of care in filing the Chapter 11 petition.

         {¶14} Ultimately, the Chapter 11 bankruptcy was converted to a Chapter 7 and the bankruptcy trustee sold the Bank Building to Kelev.

         {¶15} In the wake of the bankruptcy, Globalcor argues the negligence of Soles and Juergensen resulted in the loss of deals which could have led to purchase of the Bank Building and/or paid creditors. Globalcor also argues Soles was responsible, at least in part, for disparaging him to a potential lender. The details of that allegation are reviewed in more detail infra in the affidavits of Attorney Anthony J. DeGirolamo and Michael P. Sanderson.

         The relationship between Soles, Juergensen, and Globalcor

         {¶16} Globalcor maintains that throughout Juergensen's representation in the bankruptcy, Melton believed Juergensen was "one of Soles' attorneys" because there was no new or different fee agreement once Juergensen became involved; Juergensen was listed in the February 1, 2012 fee agreement as a "professional assigned to perform legal services for the Client" and assigning him an hourly rate; there was no signage indicating Juergensen's practice was separate from Soles'; and Melton received Juergensen's fax transmissions via Soles' fax machine.

         {¶17} From 2008 until April 30, 2012, Juergensen was an "of counsel" member of the Law Offices of Robert E. Soles, Jr. During that period, Soles maintained malpractice coverage for Juergensen.

         {¶18} Soles no longer maintained malpractice coverage for Juergensen as of April 30, 2012. Juergensen's separate legal malpractice coverage lapsed in March 2016. Globalcor was not advised of the changes to Juergensen's coverage.

         {¶19} After the "of counsel" relationship ended, Juergensen continued to maintain his office within the Soles building and to pay rent. Juergensen used copiers in the building with his own code and was billed therefor. He used the Soles postage meter and tracked his own postage. He had his own fax machine but sometimes used the Soles fax machine with a code and was billed for the usage. He also used some portions of the common areas such as a refrigerator and the conference room. Juergensen shared a computer network with Soles until March 2016 with each able to access the other's files.

         {¶20} Soles responds that Juergensen was employed by John L. Juergensen Co., L.P.A., and never met Melton, or had any involvement in any Globalcor litigation, before the referral in March 2015. Juergensen's firm was separately incorporated and has had separate signage at the street and at the building entrance since "mid-2012." Juergensen had separate business cards, conspicuous letterhead, and signed his pleadings with a Juergensen Firm signature block.

         {¶21} On May 13, 2016, Globalcor filed a complaint in legal malpractice against, e.g., Soles, Juergensen, and John L. Juergensen Co., L.P.A. (collectively "Juergensen") as case number 2016 CV 01133 in the Stark County Court of Common Pleas. Globalcor voluntarily dismissed the action prior to filing of any dispositive motions.

         {¶22} The instant action was refiled on December 21, 2017, and the trial court incorporated the filings from the 2016 case. Soles and Juergensen filed motions for summary judgment. Globalcor filed a response which included, e.g., the affidavits of Attorney Anthony J. DeGirolamo and Michael P. Sanderson.[2] These affidavits are relevant to the parties' arguments in the instant appeal.

         {¶23} DeGirolamo's affidavit executed on May 2, 2017 states the following in pertinent part regarding Globalcor's claims against Soles:

Affidavit of Anthony J. DeGirolamo
* * * *.
1. I have been licensed to practice law in the state of Ohio since 1992. My practice is concentrated in the area of bankruptcy law.
2. My practice almost exclusively is commercial bankruptcy. I have been a Chapter 7 panel trustee for the Bankruptcy Court since August of 2003. I have been a Trustee in Chapter 7 cases, thousands of times with 101 new cases being assigned to me in the month of March, 2017. I have prosecuted chapter 11 cases for 50 companies or individuals in my career.
3. In connection with the opinions I have in this matter, I have reviewed the following documents and records:
a. Affidavits of Michael Sanderson, Shawnte Davon Hardin, Jeffrey Melton and John Juergensen.
b. The deposition transcripts of Jeffrey Melton, John Juergensen, Robert Soles, and all deposition exhibits.
c. The expert report of Timothy Hefty.
d. Email of John Juergensen with cellphone records attached.
4. It is my opinion that John Juergensen fell below the applicable standard of care of an attorney representing a company in ...

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