COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60012 RICHARD A. DUNCAN : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION LOU HENDERSON, ET AL : : Defendant-appellees : : DATE OF ANNOUNCEMENT : APRIL 2, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. l75940 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: RICHARD A. DUNCAN, PRO SE LOUIS G. HENDERSON, ESQ. l4827 North State 1460 Illuminating Bldg. Route l Cleveland, OH 44113 Middlefield, OH 44062 - 2 - PATTON, J. Plaintiff-appellant Richard Duncan ("plaintiff") appeals, pro se, from the trial court's grant of summary judgment in favor of defendant-appellee Attorney Louis Henderson ("Atty. Henderson") in this legal malpractice action. Plaintiff also appeals from the denial of his motion to compel discovery. The relevant facts follow: Plaintiff filed a complaint against Shane & Shane Co., L.P.A. and Atty. Henderson for legal malpractice. The complaint alleged constructive fraud, breach of fiduciary duty and breach of confidential representation. The underlying action involved personal injuries sustained by his ex- wife, Eve, in an automobile accident. Subsequently,plaintiff and Eve were divorced. Plaintiff and Eve employed the legal services of Atty. Henderson as the result of the automobile accident. Plaintiff's claim was for loss of consortium. The claim was eventually settled and plaintiff and Eve received two checks, one in the amount of $7,794.00 and another for $1,000.00. A release of all claims was signed by both parties. Shortly thereafter Eve deposited both checks into their joint savings account at Middlefield Bank. Only the endorsement of Eve was on the checks. Subsequently, Eve withdrew all of the funds - 3 - deposited at Middlefield Bank, allegedly without plaintiff's knowledge. Thereafter, plaintiff sued Atty. Henderson and alleged that Atty. Henderson breached his fiduciary duties by improperly advising Eve to cash the checks without plaintiff's signature; preventing Eve from doing so; and failing to protect plaintiff. Plaintiff alleged these activities constituted constructive fraud. Atty. Henderson filed a motion for summary judgment that argued the elements of constructive fraud were not satisfied. It is from the granting of this motion and the denial of his 1 motion to compel that plaintiff now appeals. I. "Constructive" fraud often exists where the parties to a contract have a special confidential or fiduciary relation which affords the power and means to one to take undue advantage of or exercise due influence over another. Constructive fraud does not require proof of fraudulent intent; the law indulges in an assumption of fraud for the protection of valuable social interests based upon an enforced conception of confidence, both public and private. Perlberg v. Perlberg(1969), 18 Ohio St. 2d 55 [47 O.O.2d Hanes v. Giambrone (l984), 14 Ohio App. 3d 400, 406. 1 In plaintiff's second assignment of error, he essentially argues the trial court erred in not dismissing Atty. Henderson's counterclaim. He concedes the malicious prosecution claim contained in the counterclaim was dismissed. Plaintiff misses the point. The only claim in the counterclaim is for malicious prosecution, which claim was dismissed below. Hence, the second assigned error is overruled. - 4 - Further, Any inequitable conduct which is not accompanied by affirmative false representations is remediable under the classification of constructive fraud. Hence, constructive frauds are such as are assumed by the court to have been committed by acts without regard to motive. Union Rolling Mill Co. v. Packard (1885), 1 Ohio C.C. 76. They arise from some peculiar confidential relationship between the parties. Courts of equity may hold acts fraudulent although there is no intent to defraud. The fraud is the same in either case, the distinction being in the nature of the relief rather than in the character of the fraud. J.B. Colt Co. v. Wasson (1922), 15 Ohio App. 484. Id. In this case, there is no evidence of constructive fraud. Atty. Henderson attached an affidavit to his motion for summary judgment along with pertinent excerpts of plaintiff's deposition. The evidence revealed that: (1) Plaintiff was never told by Eve that Atty. Henderson advised her to cash the checks and keep the money from him (Depo. at 92-3); (2) Plaintiff stated Eve would not tell him where the settlement checks were; (3) Plaintiff testified he may have received the $1,000 in the divorce settlement with Eve; (4) Atty. Henderson had no knowledge plaintiff and Eve were having marital problems; and (5) Atty. Henderson did advise Eve that she could deposit the checks in their joint savings account after discussing it with their banker. - 5 - Plaintiff opposed the motion with his affidavit. The affidavit alleged that Eve was "very obedient to and incredibly loyal to lawyers." This apparently led plaintiff "to firmly believe that [Atty.] Lou [Henderson] advised Eve to do exactly what she did." (Plaintiff's Aff., paragraph 14.) This is clearly insufficient evidence to rebut the evidence in Atty. Henderson's motion for summary judgment and establish a genuine issue of material fact that a constructive fraud had occurred. As such, we cannot find any evidence of constructive fraud. The first assigned error is overruled. III. Plaintiff argues in his third assigned error the trial court erred in overruling his motion to compel discovery regarding Atty. Henderson's "wealth" for purposes of punitive damages. First, it is questionable whether plaintiff could recover punitive damages at all because there is not evidence that Atty. Henderson had the subjective intent to defraud plaintiff. See, Hanes, supra, at 407. Second, even if punitive damages were properly recoverable, plaintiff has failed to demonstrate any abuse of discretion or resulting prejudice. Judgment is affirmed. - 6 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. FRANCIS E. SWEENEY, P.J. SPELLACY, J. CONCUR JUDGE JOHN T. PATTON 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .