COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59761 KAY F. KALINA : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BURT H. SAGEN : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court No. 163315 JUDGMENT: REVERSED AND FINAL JUDGMENT ENTERED FOR DEFENDANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: PATRICK M. FARRELL Hildebrand, Williams & Farrell 21430 Lorain Road Fairview Park, Ohio 44126 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: The appeal sub judice arises from a legal malpractice action filed by plaintiff-appellee Kay F. Kalina against defendant- appellant Burt H. Sagen based on the following facts. Plaintiff purchased a 1976 Mercedes Benz Model 280 from Automotive Equipment Company, Inc. ("AEC") at an auction May 20, 1984 for $4,313.25 including tax. The vehicle odometer read "41,404" miles. Plaintiff encountered difficulty with the vehicle after taking possession and incurred substantial repair expenses. It appears from subsequent research of certificates of title for the vehicle that the odometer had registered an additional 99,999 miles prior to the auction. Plaintiff states she contacted defendant concerning various legal matters in August 1984. Although the plaintiff apparently signed an agreement concerning the scope of representation at that time, neither party produced a copy of the contract. The parties dispute the commencement and termination of defendant's representation concerning the purchase of the automobile. Plaintiff personally contacted the Ohio Attorney General's Office, Consumer Protection Division concerning the certificates of title and odometer status during 1985. After conducting an investigation, the Attorney General's office informed plaintiff it would take no enforcement action on her behalf. After discussing the matter with plaintiff, defendant filed a complaint for fraud, unjust enrichment, and breach of implied - 3 - warranties October 7, 1986 against AEC in the Elyria Municipal Court, Case Number 86-CVE-3053. The action was dismissed by the municipal court for lack of prosecution January 20, 1987. The municipal court record reflects notice of the trial date had been sent to the parties, but plaintiff Kalina and defendant Sagen deny receiving any such notice. Plaintiff personally discovered the action had been dismissed and filed a pro se motion to vacate the dismissal while at the municipal court August 19, 1987. Defendant filed a letter with the municipal court five days later stating he had been discharged as plaintiff's counsel in the matter. After plaintiff's pro se motion to vacate the dismissal was denied, plaintiff returned to defendant with the file he had given her and defendant prepared a document captioned "Objections to Recommendations of Referee, or In The Alternative Rule 60(B) Motion, or In The Alternative Motion for a New Trial" (the "Objections"). The Objections were filed in the municipal court by "Burt H. Sagen, Attorney for Plaintiff." The municipal court denied the Objections October 17, 1987 and no appeal was taken. The parties dispute the following events, but agree defendant taped a modified copy of the complaint which had been filed in the municipal court on his office door for filing by plaintiff in the Lorain County Common Pleas Court. The modified complaint, which was to be filed four years after the automobile purchase on May 20, 1988, was signed by defendant as "Attorney - 4 - for Plaintiff". However, plaintiff retained new counsel, Robert E. Matyjasik, who filed a complaint on plaintiff's behalf alleging similar claims of fraud, unjust enrichment, breach of contract together with a claim for violation of the Ohio Odometer Rollback and Disclosure Act, against AEC and the auctioneer in Lorain County Common Pleas Court, Case Number 88-CV-100581. The action was subsequently dismissed and no appeal was taken. Matyjasik filed the instant complaint on behalf of plaintiff January 13, 1989 alleging defendant had committed legal malpractice in his handling of this matter by, inter alia, failing to timely raise a claim under the Ohio Odometer Act and improperly prosecuting the municipal court action. Defendant asserted a counterclaim against plaintiff for unpaid attorney fees. Matyjasik was subsequently disqualified as counsel for plaintiff and succeeded by Patrick M. Farrell. The case proceeded to a jury trial after the trial court denied defendant's motion for summary judgment. The jury returned a verdict for plaintiff on her complaint in the amount of $12,849.75 and against defendant on his counterclaim for attorney fees. The trial court subsequently entered judgment for plaintiff Kalina against defendant Sagen on the verdict in addition to $3,000 for her attorney fees and $580 in costs. Defendant timely appeals, after the trial court denied - 5 - his various post-trial motions, raising nine assignments of error. I. Defendant's first assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR IN OVER- RULING THE MOTION OF DEFENDANT FOR SUMMARY JUDG- MENT. Defendant's first assignment of error is well taken. Defendant's motion for summary judgment argued plaintiff's claim was barred by the one year statute of limitations for legal malpractice set forth in R.C. 2305.11(A) and plaintiff failed to produce sufficient evidence to support her claim of malpractice on the merits. Defendant initially contends the trial court improperly considered plaintiff's opposition to summary judgment since plaintiff's response was not filed within the deadline previously established by the court. However, a trial court's determination whether to consider such untimely responses will not be reversed absent an abuse of discretion resulting in manifest injustice. Powell v. Consolidated Rail Corp. (1986), 31 Ohio App. 3d 219. Since we find no such abuse of discretion, we shall analyze defendant's remaining two arguments concerning summary judgment pursuant to Civ. R. 56(C). Statute of Limitations Defendant's affidavit asserted his representation of plaintiff in this matter commenced after consulting with - 6 - plaintiff on October 4, 1986 after which he filed a complaint for fraud as instructed by plaintiff three days thereafter on October 7, 1986. Defendant asserted plaintiff handled the odometer matters with the Attorney General personally and the municipal court complaint he filed on behalf of plaintiff was improperly dismissed without prior notice from the court. Finally, defendant stated the attorney-client relationship terminated August 19, 1987 when plaintiff took the file in this matter and entered her appearance in the municipal court pro se, and any further activity by defendant in the matter after that date was done merely as an "accommodation" to plaintiff. Plaintiff belatedly opposed defendant's motion for summary judgment with affidavits from plaintiff and her second attorney, Robert Matyjasik. Plaintiff stated her attorney-client relationship with defendant began October 1, 1984 and terminated by her letter to defendant dated May 25, 1988. Plaintiff stated she made repeated contacts with defendant from time to time during this period and discussed the relevant certificates of title with defendant. Plaintiff stated defendant assured her after the Elyria Municipal Court case was dismissed the fraud action could be refiled prior to May 20, 1988 and defendant called her that morning to provide her with a modified copy of the complaint to file. Plaintiff asserted she retained new counsel after obtaining the complaint which was taped to the - 7 - outside of defendant's office door and terminated her relationship with defendant by letter dated May 25, 1988. The trial court properly concluded based upon these conflicting affidavits there was a genuine issue of material fact concerning the time when the attorney-client relationship terminated to commence the statute of limitations. Defendant contends plaintiff's pro se appearance in the Elyria Municipal Court action triggered the end of the relationship more than one year prior to the filing of her malpractice case, and he provided no legal services after that date. However, the record reveals defendant prepared and filed objections to the dismissal of the municipal court action and a modified complaint for filing in the Lorain County Municipal Court as "Attorney for Plaintiff" after that date. Even if plaintiff should have discovered defendant's alleged malpractice based upon her knowledge of the dismissal, defendant's continuing representation concerning the automobile claim as "Attorney for Plaintiff" extends beyond defendant's claimed date of termination. Since the attorney-client relationship was not unambiguously terminated more than one year prior to the filing of the malpractice action sub judice, defendant was not entitled to summary judgment as a matter of law on the statute of limitations issue. Koch v. Gross (1990), 64 Ohio App. 3d 582; Mastron v. Marks (Mar. 28, 1990), Summit App. No. 14270, unreported; Fuedo v. Pavlik (1988), 55 Ohio App. 3d - 8 - 217; Flynt v. Brownfield, Bowen & Balley (6th Cir. 1989), 882 F.2d 1048. Legal Malpractice However, we conclude the trial court improperly denied defendant's motion for summary judgment since plaintiff failed to adequately oppose the motion for summary judgment. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 111. To establish a genuine issue of material fact relating to a claim for legal malpractice, plaintiff must demonstrate the following: (1) an attorney-client relationship existed between plaintiff and defendant at the time of the alleged malpractice, (2) defendant breached his duty to plaintiff by failing to provide competent legal services, and (3) plaintiff suffered damages proximately resulting from defendant's breach of that duty. Krahn v. Kinney (1989), 43 Ohio St. 3d 103; Ambulatory Health Care Corp. v. Schulz (May 30, 1991), Cuyahoga App. No. 58595, unreported. When the alleged malpractice involves the failure to raise a claim or defense, such as the odometer claim under R.C. 4549.46 sub judice, plaintiff must demonstrate she would have successfully prosecuted or defended the underlying action. Palmer v. Westmeyer (1988), 48 Ohio App. 3d 296; Howard v. Sweeney (1985), 27 Ohio App. 3d 41. Expert testimony is generally required to satisfy these requirements in opposition to a motion for summary judgment. Riley v. Montgomery (1984), 11 - 9 - Ohio St. 3d 75, 79; Ambulatory Health Care Corp. v. Schulz, supra; Bloom v. Diekmas (1983), 11 Ohio App. 3d 202. In order to sustain the underlying odometer claim against a transferor such as AEC in the case sub judice pursuant to R.C. 4549.46, plaintiff Kalina must show the transferor failed to provide the proper disclosures mandated by law. The version of R.C. 4549.46 in effect during the events relevant to this action provides as follows: No transferor shall fail to provide the true and complete odometer disclosures required by Section 4505.06 of the Revised Code. The transferor of a motor vehicle is not in violation of this section's provisions requiring a true odometer reading if the odometer reading is incorrect due to a previous owner's violation of any of the provisions contained in sections 4549.42 to 4549.46 of the Revised Code, unless the transferor knows of the violation. (Emphasis added). The "odometer disclosures required by Section 4505.06 of the Revised Code" in effect at that time include a statement of the mileage of the vehicle and one of the following three certifications: (1) To the best of my (our) knowledge, the odometer reading reflects the actual mileage; *** (2) to the best of my (our) knowledge, the odometer reading reflects mileage in excess of the designed mechanical limit of 99,999 miles; *** [or] (3) to the best of my (our) knowledge, the odometer reading is NOT the actual mileage and should not be relied upon. R.C. 4505.06(B). Baek v. Cincinnati (1988), 43 Ohio App. 3d 158; Musick v. Barnett Ford-Mercury, Inc. (Mar. 27, 1986), 26 O.B.R. 57, Jackson App. No. 508. - 10 - Based upon the foregoing, we conclude the trial court erroneously denied summary judgment since plaintiff failed to present any evidence to establish a violation of R.C. 4549.46 based upon improper disclosures under R.C. 4505.06. Wing v. Anchor Media Ltd. of Texas, supra. Plaintiff's affidavit stated the certificate of title she received for the vehicle from AEC stated "41,404" miles, whereas the certificate of title from the owner prior to AEC stated 99,999 miles in addition to the "41,280" registered on the 1 odometer. However, notably absent from plaintiff's materials in opposition were certified copies of the titles or testimony from plaintiff, AEC or the prior owner concerning certification of the accuracy of the respective mileage figures necessary to support a violation of R.C. 4505.06. State, ex rel. Celebrezze v. CMC Motors, Inc. (May 31, 1990), Cuyahoga App. No. 57086 (vacating summary judgment on one claim of the Attorney General based upon the failure to provide certified copy of certificate of title); Baek v. Cincinnati, supra. Moreover, plaintiff's evidentiary materials do not state defendant knew the mileage figures on the certificates of title were improperly certified as required to support a claim for violation of R.C. 4549.46. 1 It appears the vehicle was driven for 124 miles after AEC purchased it and prior to selling the vehicle to Kalina at the auction May 20, 1984. - 11 - The Matyjasik affidavit is also defective. Civ R. 56(E) governs the requirements applicable to affidavit testimony and provides in pertinent part as follows: (E) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein. Defendant's motion to strike argued the Matyjasik testimony did not satisfy the requirements of Evid. R. 702 through Evid. R. 705 since the four-paragraph affidavit did not specify any facts upon which the opinion of legal malpractice was based. Affidavits offered by experts in opposition to a motion for summary judgment in legal malpractice actions must identify facts demonstrating a breach of the requisite standard of care proximately causing plaintiff's damages. Palmer v. Westmeyer, supra; Oblak v. Laurence (Oct. 18, 1988), Cuyahoga App. No. 54473, unreported. The Matyjasik affidavit essentially repeats the allegations of plaintiff's complaint and provides absolutely no facts supporting his opinion regarding defendant's malpractice or any proximately resulting damages. Ambulatory Health Care Corp. v. Schulz, supra; Belcher v. Dooley (Feb. 16, 1988), Montgomery App. No. 10444, unreported. Moreover as discussed above, without the underlying certificates of title to demonstrate defendant Sagen was aware the mileage on the titles was improperly certified by the prior - 12 - respective transferors, AEC and Lou Lydic, there is no basis to conclude defendant Sagen breached any duty toward plaintiff in failing to raise the odometer claim or that such failure proximately caused plaintiff any damages. The principles applying to the improper denial of summary judgment or other dispositive pretrial motion after a trial has been conducted on the merits are not well developed. However, in this context the Ohio Supreme Court has reversed a judgment rendered after the trial court erroneously denied a motion for summary judgment which the party prevailing at trial failed to adequately oppose prior to the trial. Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St. 2d 116, cert. denied, 452 U.S. 962. Accord Civ. R. 56(C): "Summary judgment shall be rendered forthwith if the [evidentiary materials], timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added). Such a result is warranted based upon the following admonition by the Ohio Supreme Court not to ignore the requirements of the Civil Rules: However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of the procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment. Miller v. Lint (1980), 62 Ohio St. 2d 209, 215. - 13 - Courts applying these principles have subsequently held in the analogous context that a jury verdict may be reversed if the trial court improperly denied a default judgment prior to trial regardless of the merits of the litigation. See, Jenkins v. Clark (1982), 7 Ohio App. 3d 93. Reversing a judgment entered after the improper denial of summary judgment is more appropriate than in the default judgment context since the party has been afforded a sufficient opportunity to contest the dispute on the merits and the party's failure to adequately oppose summary judgment renders his opponent "entitled to judgment as a matter of law" without having to endure the burdens incident to trial. See, Van Horn v. Peoples Banking Co. (1990), 64 Ohio App. 3d 745; Civ. R. 56(C). The concurring opinion in Dupler v. Mansfield Journal, supra, suggests the improper denial of summary judgment may constitute harmless error when the party that failed to adequately oppose summary judgment presents sufficient evidence to support judgment in its favor at the subsequent trial. Id. at 127 n. 11. However, this argument ignores Miller and is inconsistent with the principle that the Civil Rules are to be construed to effect just results, eliminate delay and unnecessary expense. Civ. R. 1(B). No opinion of this court has held the erroneous denial of summary judgment to be harmless error. In Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App. 3d 249, the court declined to - 14 - review the underlying denial of summary judgment suggesting that error, if any, may be moot or harmless since the court remanded the matter for a new trial. However, on remand the party could file a similar motion for summary judgment. Tye v. Bd. of Ed. of Polaris Joint Vocational School Dist. (1988), 44 Ohio App. 3d 70. The case purportedly relied upon by Sanders, Graham v. Pavarini (1983), 9 Ohio App. 3d 89, expressly held the party was not entitled to summary judgment prior to the trial on the merits, id. at 94-95, and stated the harmless error principle as an alternate holding. Id. at 95. Based upon our review of the record sub judice, we find plaintiff failed to adequately oppose defendant's motion and the trial court's failure to grant the motion for summary judgment was not rendered harmless or moot based upon events at the subsequent trial. Accordingly, we reverse the judgment of the trial court and enter final judgment in favor of defendant pursuant to App. R. 12(B). Nevertheless, we address defendant's remaining assignments of error pursuant to App. R. 12(A). Criss v. Springfield Township (1989), 43 Ohio St. 3d 83. II. Defendant's second assignment of error follows: THE COURT ERRED AND ABUSED ITS DISCRETION IN OVERRULING THE MOTION IN LIMINE FILED BY THE DEFENDANT WITH RESPECT TO THE USE OF EXPERT TESTIMONY AT THE TRIAL OF THIS CASE. Defendant's second assignment of error lacks merit. - 15 - Defendant contends the trial court improperly permitted plaintiff's second attorney, Robert Matyjasik, to testify as an expert since plaintiff filed Matyjasik's report as an expert after the discovery deadline to "ambush" defendant. The Ohio Supreme Court has held a trial court's determination whether to permit an expert to testify in this context will not be reversed absent an abuse of discretion. Pang v. Minch (1990), 53 Ohio St. 3d 186, 194. Defendant has failed to demonstrate such an abuse of discretion. The record demonstrates defendant knew Matyjasik would be called as a witness more than six months prior to trial when defendant filed a motion to disqualify Matyjasik as counsel for plaintiff. Moreover, Matyjasik filed an affidavit as an expert in opposition to defendant's motion for summary judgment after he was disqualified as counsel November 8, 1991. As a result, defendant knew the name and address of plaintiff's expert, the subject of his professed expertise and the general nature of his testimony at that time. Moreover, the trial court found defendant knew of the existence of a report prepared by Matyjasik as expert at the final pretrial shortly thereafter. Although Matyjasik's report was not delivered until approximately one month prior to trial, the trial court determined defendant had sufficient time to schedule a deposition or conduct other discovery to prepare a defense but declined to - 16 - do so. Defense counsel Paul Mancino merely stated he did not want to rearrange his schedule to accommodate such discovery. Defendant's citation to Jackson v. Booth Memorial Hospital (1988), 47 Ohio App. 3d 176 is unpersuasive. Based upon these facts we find no "ambush" of the sort delineated in Jackson when three defense experts testified for the first time at trial to a new theory, which contradicted their prior deposition testimony, without having disclosed the testimony to plaintiff pursuant to their obligation to supplement prior discovery responses under Civ. R. 26(E)(1)(b). Under the circumstances, we do not find the trial court abused its discretion to permit Matyjasik's testimony. Accordingly, defendant's second assignment of error is overruled. III. Defendant's third assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED DEFENDANT A FAIR TRIAL WHEN THE COURT IMPROPERLY TOOK JUDICIAL NOTICE OF VARIOUS MATTERS. Defendant's third assignment of error lacks merit. Defendant contends the trial court erroneously took judicial notice of several matters during the course of the trial, viz.: (1) the amount of damages recoverable under R.C. 4549.49; (2) court rules regarding continuances, notice and dismissals; (3) the disqualification of Matyjasik as attorney for plaintiff; and (4) the scope of authority of the Attorney General to pursue a - 17 - consumer's claim under R.C. 4549.48. Defendant argues judicial notice of these matters was improper under Evid. R. 201 and complains he received insufficient notice of these matters prior to trial pursuant to Civ. R. 44.1. Civ. R. 44.1(A)(1) mandates the trial court take judicial notice of the Ohio law as follows: (A) Judicial Notice of Certain Law. (1) Judicial notice shall be taken of the rules of the supreme court of this state and of the decisional, constitutional, and public statutory law of this state. (Emphasis added). Civ. R. 44.1(A)(1) mandates the trial court take judicial notice of matters within its scope, and the trial court may properly take judicial notice sua sponte. State v. Zeh (1982), 7 Ohio App. 3d 235. The trial court properly advised the jury concerning the damages recoverable upon a violation of R.C. 4549.46 and the authority of the Attorney General under the Act to correct misleading arguments raised by defendant's counsel that any recovery would have been paltry and the Attorney General's failure to take action indicated the claim lacked merit. See, Celebrezze v. Hughes (1985), 18 Ohio St. 3d 71; State, ex rel. Celebrezze v. Dorsey (1988), 55 Ohio App. 3d 205. Moreover, a trial court may likewise take judicial notice of prior proceedings in the case such as the disqualification of plaintiff's counsel in the case sub judice. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio - 18 - App. 3d 157. The trial court's statement that notice sent by the court to counsel constitutes notice to a party was likewise proper. Williams v. Handel-Davies Co. (Mar. 29, 1984), Cuyahoga App. No. 47323, unreported. Judicial notice of such matters is appropriate under Evid. R. 201(B). Finally, defendant contends the trial court improperly took judicial notice of an Elyria Municipal Court rule concerning continuances contrary to Civ. R. 44.1(A)(2). The record demonstrates the trial court based its comments on the statewide Rules of Superintendence for Courts of Common Pleas, which require counsel and the party to sign requests for a continuance, C.P. Sup. R. 7(A), although the analogous rule applicable to municipal courts do not contain the same requirement. M.C. Sup. R. 16. Based upon our review of the entire record such error, if any, was harmless and did not deprive defendant of a fair trial. App. R. 12(B); Civ. R. 61. Accordingly, defendant's third assignment of error is overruled. IV. Defendant's fourth assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING PLAINTIFF'S EXPERT WITNESS TO TESTIFY AS AN EXPERT WITNESS IN THIS CASE. Defendant's fourth assignment of error lacks merit. - 19 - Defendant contends plaintiff's expert, Robert Matyjasik, was not properly qualified as an expert to render opinion testimony concerning defendant's performance as counsel in failing to raise an odometer claim since Matyjasik admittedly never personally 2 tried an odometer case. A trial court's determination concerning the qualifications of a witness as an expert pursuant to Evidence Rules 104(A) and 702 and subsequent admission of testimony will not be reversed absent an abuse of discretion. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App. 3d 7. We note there is no requirement that an expert witness be the best witness on a particular subject. South Union Ltd. v. George Parker & Assoc. (1985), 29 Ohio App. 3d 197. After carefully reviewing the record, we find there is sufficient evidence of Matyjasik's education, training and litigation experience over a period of thirteen years in Ohio and Michigan to support the trial court's determination that Matyjasik was qualified to testify as an "expert." Matyjasik specifically testified he worked in a law firm which handled odometer cases and odometer claims are not significantly different than other claims frequently raised in consumer litigation. 2 Defendant also repeats his argument the testimony should have been excluded since the expert's report was not filed until one month prior to trial set forth in his second assignment of error. We reject this argument for the same reasons set forth in our discussion of defendant's second assignment of error. - 20 - Accordingly, admitting his testimony at trial in response to a hypothetical question concerning the types of claims he would have raised, the anticipated cost of maintaining such actions, and his understanding of the various markings on the certificates of title introduced into evidence was not erroneous. We reject defendant's claim Matyjasik's opinions were not sufficiently based upon facts in the record. We note most of Matyjasik's testimony at trial related to his opinion and professional judgment concerning the proper methods for supervising and handling the progress of litigation in general and in the Elyria Municipal Court in particular, including checking the docket from time to time. Any testimony rendered by Matyjasik concerning the termination of plaintiff's attorney-client relationship with defendant or matters he learned concerning the odometer claim during his attorney-client relationship with plaintiff, such as any apparent discrepancies in the certificates of title for the vehicle, did not require his qualification as an expert. Accordingly, defendant's fourth assignment of error is overruled. V. Defendant's fifth assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR IN NOT DECLARING A MISTRIAL AS THE COURT WAS OVERLY PARTICIPATING THUS BECOMING AN ADVOCATE RATHER THAN A (SIC) IMPARTIAL TRIBUNAL. Defendant's fifth assignment of error lacks merit. - 21 - Defendant argues the trial court improperly denied his motion for a mistrial since the trial court departed from its role as an impartial tribunal by questioning witnesses, giving instructions to the jury and taking judicial notice through the course of the trial. In Jenkins v. Clark (1982), 7 Ohio App. 3d 93, the Court rejected defendant's argument a trial judge is a "mere umpire or sergeant at arms" during trial and held as follows: In the absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed the court acted with impartiality in attempting to ascertain a material fact or to develop the truth. Id. at 98. Accord Lodi v. McMasters (1986), 31 Ohio App. 3d 275; Evid. R. 614(B). Based upon our review of the record, defendant has failed to demonstrate any such bias to overcome the presumption of impartiality. Although the trial court took judicial notice of various matters as discussed in defendant's third assignment of error, defendant has offered no evidence this was anything more than an even-handed exercise of the trial court's authority to properly inform the jury and seek the truth. Moreover, Civ. R. 51(B) recognizes the authority of the trial court to provide instructions on various matters to the jury, including the nature of expert testimony in the case sub judice, during the course of the trial. - 22 - In addition, the trial court in its jury charge and final instructions specifically instructed the jury to disregard any perceived factual bent attributable to the court. Such an instruction sufficiently cured any contrary inference the jury may have made, if any, without such an instruction. Jenkins v. Clark, supra at 98; State v. Ferguson (1983), 5 Ohio St. 3d 160, 163 (the jury is presumed to follow curative instructions). Accordingly, defendant's fifth assignment of error is overruled. VI. Defendant's sixth assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR IN ITS INSTRUCTIONS TO THE JURY WITH RESPECT TO ELEMENTS OF THE UNDERLYING CLAIM. Defendant's sixth assignment of error lacks merit. Defendant argues the trial court erroneously instructed the jury concerning whether or not an automobile transferor, such as AEC in the case sub judice, must have knowledge of its failure to provide a true and accurate odometer disclosure to establish liability under R.C. 4549.46. Defendant specifically contends this section requires plaintiff to demonstrate AEC had "actual knowledge" of such offense. Defendant does not dispute that the trial court properly instructed the jury concerning the underlying odometer claim as follows: First relative to 4549.46, this relates to the duty of transferor and dealer or wholesaler. - 23 - Depending upon your resolution of the facts, this may have an impact on your determination of the various pieces of evidence, to-wit: the exhibits, by and between Lydic [the prior owner], Automotive [AEC], and Kalina. No transferor -- that is the seller -- shall fail to provide the true and complete odometer disclosure required by Section 4505.06 of the Revised Code. The transfer of a motor vehicle is not in violation of this section's provisions requiring a true odometer reading, if the odometer reading is incorrect due to a previous owner's violation of any of the provisions contained in Section 4549.42 through 46 unless the transferor knows of the violation. Defendant argued two theories based upon the ambiguity in the certificates of title offered into evidence. First, defendant argued the AEC title properly disclose the odometer status but the Cuyahoga Count Clerk made an error typing the title. The odometer disclosure on the AEC title can be read in a manner that both the columns "the odometer reflects the actual mileage" and "the odometer is in excess of 99,999" are designated by the same "X." Alternatively, if AEC did not properly disclose the odometer reading, AEC's transferor, Lou Lydic, was responsible for the inaccuracy by understating the mileage and AEC was unaware of the inaccuracy upon which its own disclosure was based. The Lydic title had a handwritten check mark on the column stating "the odometer mileage was in excess of 99,999" which defendant argued was a subsequent alteration. - 24 - Based upon these facts, defendant specifically contends pertaining to this section the following instructions delivered by the trial court were erroneous since they did not require plaintiff to prove AEC's "actual knowledge" of the disclosure violation: Section 4949.50 reads as follows: It is prima facie evidence of intent to defraud and constitutes calling for the revocation or denial of a license of such person to sell any motor vehicle in this state if, in fact, they do not disclose the true odometer reading of a vehicle. * * * A transferor, with access to information about the true mileage of a vehicle, must seek that information before certifying that, to the best of its knowledge, the odometer reading reflects the actual mileage, the true mileage of a vehicle, if it is a matter of record on a previous certificate of title. In this case, if that be the case, Automotive would have breached its duty to Kalina in failing to discover the mileage and disclose it to Kalina. These instructions comport with the case law interpreting R.C. 4549.46 prior to its amendment by the General Assembly in 1986. Musick v. Barnett Ford-Mercury, Inc., supra; Flynt v. Ohio Bell Tel. Co. (1982), 2 Ohio App. 3d 136. We specifically reject defendant's contention R.C. 4549.46 requires plaintiff to prove the transferor's "actual knowledge" of a specific disclosure violation. Musick v. Barnett Ford-Mercury, Inc., supra. Proof of AEC's intent to defraud plaintiff is not necessary. - 25 - Moreover, under the facts of this case, AEC's failure to investigate the irregularities in the Lydic title, coupled with AEC's unqualified certification to plaintiff, supports an inference of AEC's intent to defraud plaintiff. See, Mills v. Mance (1987), 41 Ohio App. 3d 361 (discussing the federal Odometer Act). Although the instructions may have been oversimplified by stating the mere failure to disclose the true odometer reading amounts to prima facie evidence of an intent to defraud, the instruction taken as a whole in the context of the entire case were not misleading and had no tendency to confuse the jury. Becker v. Lake Cty. Mem. Hosp. West (1990), 53 Ohio St. 3d 202, 208. Accordingly, defendant's sixth assignment of error is overruled. VII. Defendant's seventh assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR IN NOT (SIC) SUBMITTING THE ISSUE OF COMPARATIVE NEGLIGENCE TO THE JURY. Defendant's seventh assignment of error lacks merit. Defendant contends the trial court improperly denied his request to instruct the jury to consider plaintiff's comparative negligence based upon an unspecified "act or acts of negligence which directly and proximately caused plaintiff's own injury or damage." Apparently defendant argues plaintiff's pro se motion - 26 - to vacate the dismissal of the Elyria Municipal Court action after discovering her case had been dismissed was negligent. Based upon our review of the record, we find defendant failed to properly apprise the trial court of the correct law governing the requested instruction, sufficiently tailor the requested instruction to the facts of the case, or object with sufficient specificity concerning the grounds for the instruction. Sandow v. Sidley (Jan. 1, 1990), Cuyahoga App. No. 56264, unreported. Defendant makes no more clearly articulated argument on appeal than offered to the trial court. Moreover, assuming arguendo the doctrine of comparative negligence applies in legal malpractice actions, we find defendant presented insufficient evidence of plaintiff's negligence to warrant submitting the requested negligence instruction. Defendant did not present any evidence plaintiff failed to follow any of defendant's advice or instructions at any time. See, Cicorelli v. Capobianco (App. Div. 1982), 453 N.Y.S. 2d 21, aff'd, 463 N.Y.S. 2d 195 (vacating 35% reduction in damages attributed by jury to client's negligence in a real estate transaction where the client was not an attorney and it was not reasonable under the circumstances to expect nonattorney to understand certain legal obligations to recognize defendant provided erroneous advice). Accordingly, defendant's seventh assignment of error is overruled. - 27 - VIII. Defendant's eight and ninth assignments of error relate to the trial court's denial of certain post-trial motions as follows: THE COURT COMMITTED PREJUDICIAL ERROR IN OVERRULING MOTIONS FOR DIRECTED VERDICTS IN THIS CASE. THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING A MOTION OF JUDGMENT NOTWITHSTANDING THE VERDICT AS THE CLAIM OF THE PLAINTIFF WAS BARRED BY THE STATUTE OF LIMITATIONS. Defendant's eight and ninth assignments of error lack merit. Defendant argues the trial court should have granted defendant a directed verdict or judgment notwithstanding the verdict based upon the same arguments discussed in defendant's assignments of error one through seven. The standard governing directed verdicts is the same as that applicable to judgments notwithstanding the verdict. Smullen v. Interfact Polygraphs, Inc. (Oct. 3, 1991), Cuyahoga App. No. 58722, unreported (citations omitted). Accordingly, if reasonable minds could reach different conclusions on the basis of the evidence adduced at trial, after construing the evidence most strongly in favor of the party against whom the motion was made, such motions were properly denied as a matter of law. Id. at 17. Based upon our review of the trial transcript, we find the trial court properly denied defendant's motions for a directed verdict and judgment notwithstanding the verdict. The trial - 28 - transcript reveals the parties offered more evidence at trial than was contained in their affidavits for summary judgment, viz., plaintiff specifically cured the defect in opposition to summary judgment discussed in defendant's first assignment of error by introducing copies of the certificates of title for the vehicle and related testimony. The fact that plaintiff purchased the automobile at an auction provides no defense to the odometer claim under R.C. 4549.46. Baek v. Cincinnati, supra. Although the certificates of title may be ambiguous as discussed in defendant's sixth assignment of error, there is sufficient evidence from which to conclude plaintiff may have recovered from AEC had defendant timely filed a claim under R.C. 4549.46. Consequently, based upon this evidence and the expert testimony introduced at trial, plaintiff submitted sufficient evidence on each material element of her cause of action for legal malpractice to support the jury verdict in her favor. Accordingly, defendant's eighth and ninth assignments of error are overruled. Judgment reversed and final judgment entered in favor of defendant. - 29 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., CONCURS PATTON, J., DISSENTS (See Dissenting Opinion, Patton, J., attached). JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59761 KAY F. KALINA : : DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BURT H. SAGEN : : Defendant-appellant : : DATE MARCH 26, 1992 PATTON, J., DISSENTING: I respectfully dissent from the majority's disposition of the defendant's first assignment of error. I would find that the plaintiff adequately demonstrated the existence of an attorney- client relationship and that the defendant breached his duty of care. Thus, I would affirm the trial court's denial of defendant's motion for summary judgment and allow the jury verdict for the plaintiff to stand. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion, - 3 - and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Ware- housing Co. (1978), 54 Ohio St. 2d 64. Paragraphs one, four and five of the plaintiff's affidavit attached to her brief in opposition to defendant's motion for summary judgment provide: 1. On or about 5-20-84, I purchased a Mercedes Benz automobile from a company known as Automotive Equipment Company, in North Ridgeville, Lorain County, Ohio. The odometer in said automobile indicated approximately 41,404 miles at that time. * * * 4. On or about 10-4-84, I obtained a certified copy of the second previous title to said automobile, then in the name of Mr. Lou Lydic. At that time, I discovered that when the Mercedes was transferred from Mr. Lydic to Automotive Equipment Company, it had 141,280 miles. 5. I took the "Lydic title" to Mr. Sagen's office on 10-4-84 and discussed the odometer discrepancy with him on that date. Although the plaintiff failed to include certified copies of the automobiles's respective titles, I would find that the - 4 - plaintiff's affidavit, standing alone, constituted sufficient evidence that the titles were improperly certified by the prior transferor, Automotive Equipment Company, Inc., to establish a potential violation of R.C. 4549.46 based upon improper dis- closures under R.C. 4505.06. Thus, viewing the inferences to be drawn from the underlying facts set forth in the evidentiary material submitted below in a light most favorable to the plaintiff, I would find that a genuine issue of material fact remained to be litigated. Temple, supra. Furthermore, although I agree that a reviewing court may vacate the granting of summary judgment where a plaintiff has failed to provide a certified copy of a certificate of title, State, ex rel. Celebrezze, v. CMC Motors, Inc. (May 31, 1990), Cuyahoga App. No. 57086, unreported, I do not believe a defendant is necessarily entitled to summary judgment where the plaintiff fails to provide a certified copy of a certificate of title with his brief in opposition to defendant's motion for summary judgment. After all, the burden of establishing that material facts are not in dispute and that no genuine issue of fact exists is on the party moving for summary judgment. Harless, supra. Additionally, paragraphs two, three and four of plaintiff's expert witness affidavit provide: 2. I have reviewed the actions and conduct of Attorney Burt Sagen in his representation of Kay F. Kalina, with respect to a certain claim for damages concerning her purchase of a Mercedes Benz automobile in May, 1984. - 5 - 3. It is my opinion that Attorney Burt Sagen breached his professional duties to his client, Kay F. Kalina, in that he failed to file any claim on her behalf pursuant to the Ohio Odometer Statute; he failed to appear at a hearing of her claim in the Elyria Municipal Court in January, 1987; and he failed his duties in other respects. 4. As a proximate result of Mr. Sagen's breach of his professional duties to Kay F. Kalina, she sustained a loss of her valuable legal rights concerning her claims, and she sustained a financial loss of approximately $40.000. I would find that the expert's affidavit adequately sets forth facts which reveal the basis for his opinion that the defendant breached the requisite standard of care proximately causing plaintiff's damages. Specifically, paragraph three of the affidavit opines that the defendant breached his professional duties by (1) failing to file an Ohio Odometer Statute claim, and (2) failing to appear at a hearing in the Elyria Municipal Court. Thus, viewing the underlying facts in a light most favorable to the opposing party, I would conclude there existed a genuine issue of material fact justifying the trial court's denial of defendant's motion for summary judgment. As the Ohio supreme Court has held: Summary judgment is a procedural device to termi- nate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclu- sion as to the party opposing the motion. (Cita- tions omitted.) - 6 - Norris v. Ohio Standard Oil Co. (1982), 70 Ohio St. 2d 1. Alternatively, I would hold the denial of summary judgment was rendered moot or harmless, even if it had been error. Graham v. Pavarini (1983), 9 Ohio App. 3d 89, 95. Following the denial of summary judgment, the case proceeded to trial on the merits where the issues were litigated and the jury evidence supported a judgment in plaintiff's favor. Consistent with the foregoing I would affirm the trial court's denial of defendant's motion for summary judgment and overrule defendant's first assignment of error. .