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Seoane-Vazquez v. Rosenberg

Court of Appeals of Ohio, Tenth District

December 5, 2019

Enrique Seoane-Vazquez, Plaintiff-Appellant,
Eric John Rosenberg, Esq. et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CV-8107)

         On brief:

          Hammond Law Office, and Gary W. Hammond, for appellant.

          Lane Alton, Edward G. Hubbard, and Rick E. Marsh, for appellees.


          Gary W. Hammond.

          Edward G. Hubbard.


          DORRIAN, J.

         {¶ 1} Plaintiff-appellant, Enrique Seoane-Vazquez, appeals from a final judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees Eric John Rosenberg, Esq., David Terry Ball, Esq., Rosenberg & Ball Co., LPA, and David T. Ball Law Office Co., LPA (hereinafter "appellees") in appellant's action for legal malpractice and related claims.

         I. Facts and Procedural History

         {¶ 2} Appellant was employed by The Ohio State University College of Pharmacy as a professor between 2002 and 2010. This was a tenure-tracked position, and his advancement depended on favorable assessments of his scholarship, teaching reviews, and other service to the College of Pharmacy. As part of this service requirement, appellant duly served as a member of a search committee for an open professorship in 2004. Appellant expressed his reservations about the ultimately successful candidate, Dr. Rajesh Balkrishnan, then teaching at a university in Texas. Strained relations ensued when Dr. Balkrishnan joined the OSU faculty.

         {¶ 3} In 2005, appellant filed a complaint with the Dean of the college, Dr. Robert Brueggemeier, who initiated an investigation whose results only partially satisfied appellant. Appellant then filed a charge of discrimination with the Federal Equal Employment Opportunity Commission ("EEOC") in September 2006 alleging discrimination based on ethnicity, reflecting the general lines of the split between faculty members within the College of Pharmacy. The EEOC closed its file in May 2007 and issued a "right to sue" letter, whereupon appellant had 90 days to initiate a court action. See 42 U.S.C. 2000e-5(e)(1) through (f)(1). In August 2007, appellant filed his pro se complaint in the Federal District Court for the Southern District of Ohio (hereinafter "case No. 07-775"). Shortly thereafter, appellant retained attorney Rosenberg to represent him in the matter. Around this time, Rosenberg was also retained to represent appellant's fiancée Rosa Rodriquez-Mongui, also an instructor-researcher at OSU, and Sheryl Szeinbach, another OSU professor.

         {¶ 4} Even as his EEOC complaint and lawsuit against the university progressed, appellant continued reviews and progress toward tenure. In early 2007, the College of Pharmacy conducted appellant's fourth-year review, which was not entirely favorable in the areas of research, publication, and teaching skills. Through 2008 and 2009, appellant exchanged correspondence with his department chair, attempting to strengthen his case for tenure. On December 17, 2008, Dr. Brueggemeier recommended that the university's Provost, Joseph Alutto, deny appellant's tenure. Appellant then submitted a rebuttal letter, complete with exhibits, again asserting that an ethnic divide among the faculty of the College of Pharmacy had poisoned the tenure process, and the denial of tenure also constituted retaliation against appellant for his EEOC complaint and subsequent suit in federal court. On April 8, 2009, Provost Alutto denied appellant tenure. An internal review and appeal concluded with an October 23, 2009 decision of the university's faculty hearing committee upholding the denial of tenure, albeit expressing disappointment at the breakdown in faculty collegiality within the College of Pharmacy.

         {¶ 5} Before completion of the internal appeals at OSU, appellant, through attorney Rosenberg, filed a notice of voluntary dismissal without prejudice in federal court in case No. 07-775. On October 16, 2009, the federal court noted the notice of dismissal did not comport with the Federal Rules of Civil Procedure, considered the notice as a motion for leave to dismiss, and granted it. The wisdom of this dismissal, in light of its subsequent curtailment of appellant's refiled claims in federal court, constituted the factual basis for many of appellant's initial legal malpractice claims in the present case.

         {¶ 6} Appellant returned to the EEOC with a new complaint on November 22, 2009, this time stressing alleged instances of retaliation during the tenure review process. On February 6, 2010, appellant filed a new formal charge of discrimination with the EEOC. The EEOC again did not pursue the matter, and issued another right-to-sue letter in June 2010.

         {¶ 7} With the latest right-to-sue letter in hand, appellant returned to federal court in July 2010 ("case No. 10-622"). Because of the reach-back timing governing Title 7 suits in federal court, the federal court concluded that appellant, because of his prior dismissal of case No. 07-775, could not bring claims for any acts of discrimination occurring before January 6, 2009, thus barring all claims based on appellant's original national-origin discrimination claims asserted in case No. 07-775, and many alleged acts of retaliation preceding the university's final decision denying appellant's tenure application. The federal court eventually granted summary judgment in favor of all defendants, finding appellant had been unable to present evidence to maintain a genuine issue of material fact on the question of whether Provost Alutto acted with retaliatory animus, and there was no evidence of retaliatory action in the University's internal appeal process. Appellant then appealed the Southern District's final judgment to the United States Court of Appeals for the Sixth Circuit, which affirmed. Seoane-Vazquez v. Ohio State Univ., 577 Fed. Appx. 418 (6th Cir.2014).

         {¶ 8} Appellant then began the current malpractice litigation against his former counsel in the federal cases. He filed his initial complaint on September 15, 2015; an amended complaint on November 11, 2015; and a second amended complaint on November 18, 2016. The initial complaint set forth ten causes of action against appellees: (1) legal malpractice for advising appellant to dismiss his first action in federal court, case No. 07-775; (2) legal malpractice for advising appellant to refile in federal court, case No. 10-622 in 2010, including all prior claims from the first federal suit despite the fact these were precluded by the prior dismissal; (3) legal malpractice for negligence in advising appellant in connection with proceedings before the EEOC and Ohio Civil Rights Commission; (4) legal malpractice for failing to amend appellant's first and second federal complaints to preserve appellant's Ohio civil rights claims that were not time-barred; (5) legal malpractice for failing to amend appellant's complaints to preserve spoliation claims; (6) legal malpractice for failing to advise appellant to request an external review of his tenure application; (7) fraud committed by appellees based on various statements made in an attempt to shield themselves from malpractice liability; (8) legal malpractice for appellees' negligent representation of appellant in his appeal of case No. 10-622 to the Sixth Circuit; (9) consumer fraud in violation of Ohio's Consumer Sales Practices Act, based on appellees' unfair, deceptive, and unconscionable practices during their representation of appellant; and (10) conversion by appellees of privileged information discovered through their representation of appellant, and use of that information to secure representation of appellant's co-workers and obtain judgments in favor of these other clients.

         {¶ 9} The first amended complaint generally restated the claims set forth in the initial complaint. On May 24, 2016, the trial court granted appellees' motion to dismiss Count 7, fraud, and Count 10, conversion. Appellant voluntarily dismissed Count 9, consumer fraud.

         {¶ 10} The proposed second amended complaint, which was filed late enough to require leave of court, restated the previous claims but interposed a new Count 2, alleging malpractice for failure to properly counsel appellant to accept settlement offers made by OSU prior to dismissal of the first federal case and, thus, renumbering former Counts 2 through 8 as Counts 3 through 9. The proposed second amended complaint omitted the previous Count 9, consumer fraud, restated the previous Count 10, conversion, under the same number, and added a new Count 11, equitable estoppel based on appellees' assurances and misrepresentations regarding the likely outcome of the federal cases.

         {¶ 11} Because appellant's proposed second amended complaint required leave of court, the parties eventually negotiated a stipulation providing that appellant's second amended complaint would be deemed filed, but certain limitations on damages would apply. Appellant's total damages under Counts 1 through 6 and 9 of the proposed second amended complaint, all relating to legal malpractice, would be limited to OSU's best offer of payment to settle appellant's claims prior to the dismissal of case No. 07-775, and all fees and expenses paid by appellant to appellees following presentation of that best offer.

         {¶ 12} Appellees filed a partial motion to dismiss certain claims on May 26, 2018. These included Count 7, fraud, Count 8, fraud, Count 10, conflict of interest, and Count 11, equitable estoppel. Appellees argued these counts either failed to state a claim under Ohio law or had been already dismissed under the previous complaints. This motion was unopposed and granted by the trial court by entry on July 7, 2018. With the dissipation of appellant's fraud claims, the trial court also dismissed appellant's claim for punitive damages.

         {¶ 13} Appellees moved for summary judgment on appellant's remaining claims, all sounding in legal malpractice and all subject to the stipulated limitation of damages. Appellant filed his own "cross motion" for summary judgment, which the trial court allowed despite being filed after the case schedule cut off for dispositive motions.

         {¶ 14} On December 10, 2018, the trial court granted summary judgment in favor of ...

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