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Bartenberger v. Damon

United States District Court, S.D. Ohio, Western Division

December 13, 2019

Alex Bartenberger et al., Plaintiffs,
v.
Geoffrey P. Damon, Defendant.

          OPINION AND ORDER

          MICHAEL R. BARRETT, JUDGE

         This matter is before the Court on Defendant Geoffrey P. Damon's Motion for Summary Judgment. (Doc. 25). Plaintiffs, Alex and Cheryl Bartenberger, filed a Response in Opposition (Doc. 26) and Defendant filed a Reply (Doc. 27).

         I. BACKGROUND

         a. Factual Background

         Plaintiffs are an adult son, Alex, and his mother, Cheryl. In the 1990s, when Alex was a minor, he was involved in two automobile accidents: one in September 1994 and one in June 1997. (Doc. 2, ¶¶ 8, 9). Plaintiffs filed a consolidated a personal injury action against the others involved in those automobile accidents in the Hamilton County Court of Common Pleas in Case No. A9903176. (Id., ¶ 9). The consolidated personal injury action was dismissed[1] and refiled, after Plaintiffs retained attorney Barbara Bison Jacobson, in the Hamilton County Court of Common Pleas in Case No. A0104769. (Id., ¶¶ 10-11). In March 2008, the court permitted attorney Jacobson to withdraw from her representation of Plaintiffs in Case No. A0104769. (Id., ¶ 13). Plaintiffs retained another attorney, Ronald Denicola, and, in September 2008, the court issued an order dismissing Case No. A0104769 with prejudice in light of the parties' notice of settlement and agreement to dismissal. (Doc. 3 at PageID 164).

         Plaintiffs assert that attorney Jacobson and the law firm that she worked for were negligent in their administration of Case No. A0104769, as they allegedly failed to complete discovery, present expert witnesses in a timely manner, and identify medical experts. (Doc. 2, ¶ 12). Plaintiffs contend that “they were compelled to settle their claims without [the] benefit of [a] trial on the merits, for sums substantially less than they would have recovered had the claims been tried on the merits, or face dismissal of [the] action with prejudice” due to attorney Jacobson's and her firm's alleged failures in Case No. A0104769. (Id., ¶ 14).

         On March 27, 2009, Plaintiffs, through attorney F. Harrison Green, filed a legal malpractice action against attorney Jacobson and her firm regarding their handling of Case No. A0104769 in the Hamilton County Court of Common Pleas and that legal malpractice action was Case No. A0903157. (Id., ¶ 16). On April 2, 2010, the court permitted attorney Green to withdraw from his representation of Plaintiffs. (Id., ¶ 16). On May 25, 2010, the court dismissed Case No. A0903157 without prejudice pursuant to Ohio Civ. R. 41(B). (Id., ¶¶ 17, 21, 24); (Doc. 2 at PageID 143).

         On May 10, 2011, Plaintiffs and Defendant Damon entered into an “Attorney-Client Fee Contract” wherein Plaintiffs retained Defendant to represent them “in litigation against Barbara Bison Jacobson and others which must be re-filed on or before May 25, 2011.” (Id. at PageID 139). The parties' “Attorney-Client Fee Contract” included language stating that Defendant could terminate the attorney-client relationship concerning the litigation against attorney Jacobson for cause and that, if he exercised his right to withdraw as counsel, any “[n]otification of withdrawal shall be made in writing to” Plaintiffs. (Id. at PageID 140).

         On May 23, 2011, Plaintiffs, through Defendant, refiled their legal malpractice action against attorney Jacobson and her law firm regarding their handling of Case No. A0104769 in the Hamilton County Court of Common Pleas and that legal malpractice action was Case No. A1104003. (Id. at PageID 142-153). On November 3, 2011, Plaintiffs, through Defendant, entered a voluntary notice of dismissal without prejudice, pursuant to Ohio Civ. R. 41(A), in Case No. A1104003. (Doc. 3 at PageID 165).

         In February 2012, Defendant joined the Law Offices of Blake R. Maislin, LLC. (Id. at PageID 171, Blake Maislin Aff. ¶ 3). On October 9, 2012, he mailed Plaintiffs a letter with the subject “RE: Letter of Declination / Re-Filing of A1102292[2] and A1104003.” (Doc. 25-10 at PageID 466) (emphasis in original). Defendant informed Plaintiffs that he discussed the Jacobson matter with Mr. Maislin and that “this office is declining to re-file these actions on your behalf, because

[t]here would be substantial expense involved in the prosecution of these actions which would require a $15, 000.00 cost deposit. I know that issue had been problematic during the original prosecution of these matters. . . . As to Case No. A1104003, that case must be re-filed prior to November 02, 2012 or the claims will be barred by the statute of limitations. I have enclosed time-stamped copies of the complaints filed in those actions for your review. Please call the office to make arrangements to pick up the files pertaining to these matters.

Id.

         On October 15, 2012, Plaintiff Cheryl Bartenberger called the Law Offices of Blake Maislin, LLC, acknowledged receipt of Defendant's letter, and requested an appointment with Defendant and Mr. Maislin. (Doc. 25-2). Unbeknownst to the law office manager and Mr. Maislin who each spoke with Plaintiff, Plaintiff recorded that phone call. (Doc. 25-3). On October 24, 2012, Plaintiff Cheryl Bartenberger met with Defendant and Mr. Maislin at the Law Offices of Blake Maislin, LLC. (Doc. 25-4). Again, unbeknownst to everyone at that meeting but Plaintiff, she recorded the meeting. (Doc. 25-3); (Doc. 25-5, Defendant Aff.). During that meeting, Mr. Maislin told Plaintiff:

• that the Jacobson matter was not the sort of case his firm handles, Defendant works for Mr. Maislin's firm now, and Mr. Maislin does not want Defendant to handle the case. (Doc. 25-4 at PageID 285-86).
• “we're not going to take the case.” (Id. at PageID 288).
• “yeah, but [the work that these cases are going to take is] not going to be from here.” (Id. at PageID 293).
• “Look, either way it's an expensive, complicated case that we're not going to take.” (Id. at PageID 306).
• “I hired [Defendant] because [he]'s a good attorney, but it's my call and we're not taking it.” (Id.).
• “It's not [Defendant's] call [to take the case], it's my call.” (Id. ...

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