COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68597 JOSEPH G. STAFFORD & ASSOCIATES : ET AL. : : Plaintiffs-appellees : : JOURNAL ENTRY -vs- : AND : OPINION KAREN P. SKINNER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCT. 31, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 247193 JUDGMENT : Affirmed in part; Reversed in part. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFFS-APPELLEES: FOR DEFENDANT-APPELLANT: Dale F. Pelsozy, Esq. Katica Markulin, Esq. Bertsch, Millican & 18975 Villaview Road, Suite 8 Winslow Co. Cleveland, Ohio 44119 1280 West Third St., 2nd Floor Cleveland, Ohio 44113 James E. Powell, Esq. 380 Lakeside Avenue 323 West Lakeside Avenue Cleveland, Ohio 44113 -3- HARPER, P.J.: Defendant-appellant/third-party plaintiff, Karen P. Skinner, appeals from the directed verdicts granted in favor of plaintiff- appellee, Joseph G. Stafford & Associates ("Stafford"), and appellee/third-party defendant, Joseph G. Stafford ("Mr. Stafford"), by the Court of Common Pleas of Cuyahoga County. The verdicts pertained to Stafford's claim for legal fees, and appellant's claims for fraud and legal malpractice. Appellant also challenges, as being against the weight of the evidence, the trial court's grant of a permanent injunction against her. Stafford filed its complaint against appellant on February 11, 1993. It set forth four alternative claims for relief, specifi- cally, breach of contract, action on an account, quantum meruit and unjust enrichment. Stafford basically alleged that appellant failed to pay $37,967.21 in legal expenses stemming from its representation of her in divorce proceedings. A statement for services was attached to the complaint. In addition to her answer, appellant filed a counterclaim against Stafford and a third-party complaint against Joseph G. 1 Stafford and Vincent A. Stafford. Appellant alleged that Mr. Stafford failed to meet the standard required in the practice of domestic relations law. As a result of this substandard performance, Stafford's legal fees were needless and unnecessary. Appellant also accused Stafford and Mr. Stafford of engaging in 1 Appellant dismissed Vincent A. Stafford from the action without prejudice on August 18, 1993 pursuant to Civ.R. 41(A). -4- fraud, specifically that Mr. Stafford falsely represented that he would obtain a "particular level of success" by doing the necessary and required work. Appellant also asserted a vicarious liability 2 claim. Stafford filed a Motion for Temporary Restraining Order on 3 February 23, 1994. The gist of the motion was that appellant and her current and prior attorneys, respectively, Thomas Meros and John V. Heutsche, disseminated to Stafford's clients copies of a grievance filed by appellant with the Disciplinary Counsel of this state concerning Mr. Stafford's representation. The trial court granted the temporary restraining order ("TRO") that day, and later extended it to March 15, 1994. Appellant, Meros and Heutsche were thereby prohibited, individually or in concert, from "circulating any correspondence, contacting, communicating with, telephoning any present or former-client of Joseph G. Stafford & Associates and/or Joseph G. Stafford." They were also prohibited from "circulating or publishing any filed grievance or complaint filed with any legal 2 Stafford subsequently filed a third-party complaint against John V. Heutsche and John V. Heutsche Co., L.P.A. on January 10, 1994; an amended complaint was filed on March 16, 1994. Heutsche represented appellant in her divorce proceedings following Stafford. The trial court dismissed the complaint on April 11, 1994 pursuant to Heutsche's motion. The record also reflects that the trial court granted Heutsche's February 11, 1994 motion for judgment on the pleadings on June 30, 1994. The propriety of these rulings are not at issue in this appeal. 3 Other motions and pleadings were filed in the interim, but this opinion only references those that are relevant to this appeal. -5- bar association or court against Joseph G. Stafford & Associates and/or Joseph G. Stafford." Following a hearing, the trial court granted a preliminary injunction against appellant on April 8, 1994 regarding the same activity contained in the court's February 23, 1994 TRO. The injunction was not granted against Meros and Heutsche. The trial court converted the preliminary injunction into a permanent one on January 27, 1995 when it issued its final judgment. Meanwhile, on March 21, 1994, Stafford filed a motion to disqualify Heutsche as appellant's expert witness at trial. Stafford argued that Heutsche's succession of Stafford as appellant's divorce attorney and his being called as an "expert witness" in appellant's legal malpractice case, would create a "diametrical conflict." The record furthermore shows a struggle over discovery, with numerous filings of motions to compel and for sanctions. By October 19, 1994, the trial court, seemingly quite frustrated with the parties' failure to cooperate, cautioned them in a judgment entry with regard to frivolous motions. The court also ordered that appellant was to make herself available for deposition within ten days of its order. Stafford filed a Motion to Show Cause, For Sanctions and Attorney Fees on October 20, 1994. It submitted that appellant failed to appear at her deposition scheduled per court order on October 18, 1994. Stafford filed a second motion for sanctions, this time including a motion for protective order. It related, in -6- part, that Meros failed to appear at a 2:00 p.m. court-ordered hearing to discuss the deposition of a potential witness, Pamila Block. Since Mr. Stafford's deposition was scheduled to take place after that of Block, Meros failed to appear for this deposition as well. The court consequently issued a protective order against the taking of Stafford's deposition on October 26, 1994. The following day, Stafford filed a Motion to Compel Discovery or for Protective Order. It requested a court order that appellant previously waived the attorney/client privilege between herself and Heutsche. In so doing, appellant could be ordered to respond at deposition to questions concerning her conversations with Heutsche. Stafford requested, in the alternative, that Heutsche be prohibited from testifying at trial. In an order dated November 10, 1994, the trial court concluded that appellant waived the attorney/client privilege through her testimony in the divorce proceedings. As a result, appellant was ordered to answer questions regarding conversations with Heutsche at a deposition to be held no later than November 25, 1994. If appellant failed to comply with this discovery order, the court warned that Heutsche would be prohibited from testifying at trial. Appellant and Meros failed to appear at appellant's November 22, 1994 deposition. On November 30, 1994, the trial court, in -7- response to Stafford's November 22, 1994 motion for protective 4 order, prohibited Heutsche's testimony at trial. In connection with the prohibition of Heutsche's testimony at trial, Stafford filed a Motion In Limine on December 12, 1994. It moved the court to prohibit appellant from discussing, presenting evidence, mentioning, or in any fashion, relating to the jury "any issue concerning professional negligence, fraud or malpractice of Plaintiff ***." Trial by jury on Stafford's action for attorney fees and appellant's claims for legal malpractice and fraud commenced on January 3, 1995. The court first heard arguments relating to Stafford's motion in limine, subsequently granting it in toto. Stafford moved for directed verdicts on appellant's fraud and legal malpractice claims following her opening statement. The trial court granted the motion. Stafford also moved for a directed verdict on its claim for attorney fees following appellant's presentation of her defense. The court granted the motion after closing argument, awarding Stafford a judgment in the amount of $37,967.21 plus prejudgment interest and costs of $200. Though appellant filed a Civ.R. 52 motion for findings of fact and conclusions of law on December 23, 1994, appellant failed to file proposed findings and conclusions as requested by the court. 4 Appellant filed a Notice of Appeal on December 9, 1994 from the trial court's November 10 and 30, 1994 orders (App. No. 68252). This court sua sponte dismissed the appeal on January 11, 1995 per R.C. 2505.02. -8- The trial court issued its final judgment with findings of fact and conclusions of law on January 27, 1995. 5 This appeal followed with appellant claiming as error: FIRST ASSIGNMENT OF ERROR I. THE TRIAL COURT'S FAILURE TO STATE A PROPER BASIS FOR ITS DECISION IN GRANTING A DIRECTED VERDICT AND/OR FAILURE TO PROVIDE PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW RENDER THIS APPEAL PREMATURE AND REQUIRE THAT THE APPEAL BE REMANDED AND/OR DISMISSED UNTIL PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE ADOPTED BY THE TRIAL COURT. SECOND ASSIGNMENT OF ERROR II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN GRANTING A DIRECTED VERDICT FOR PLAINTIFF-APPELLEE ON ITS COMPLAINT FOR LEGAL FEES WHERE REASONABLE MINDS COULD HAVE REACHED DIFFERENT CONCLUSIONS AS TO THE VALUE OF THE SERVICES PROVIDED BY APPELLEE. THIRD ASSIGNMENT OF ERROR III. THE TRIAL COURT ERRED IN GRANTING APPELLEES' MOTION IN LIMINE AND IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE PLAINTIFF-APPELLEE ON DEFENDANT- APPELLANT'S COUNTERCLAIM AND THIRD-PARTY COMPLAINT. FOURTH ASSIGNMENT OF ERROR IV. THE TRIAL COURT'S JUDGMENT GRANTING A PRELIMINARY AND PERMANENT INJUNCTION AGAINST APPELLANT, KAREN SKINNER, IS NOT SUPPORTED BY THE EVIDENCE AND MUST BE REVERSED. Appellant asserts in the first assignment of error that her own appeal is premature insofar as the trial court's "findings of 5 The trial court found attorney Meros in direct contempt of court on December 21, 1994 after the court dismissed the jury. Meros violated the court's prior order that he only approach the jurors outside the courtroom/jury room settings. Meros filed a brief on appeal to contest this contempt finding, but this court dismissed the brief on July 21, 1995 as Meros failed to file a separate and timely notice of appeal under App.R. 3 and 4(A). -9- fact and conclusions of law" are insufficient for purposes of Civ.R. 50(E), 52 and 58. The claimed insufficiency flows from the trial court's failure to sign the "findings and conclusions," or have them time-stamped by the clerk's office. Appellant thus argues that there is no evidence the trial court reviewed the findings and conclusions prior to adopting them as its own. Appellant's first assignment of error is without legal foundation for a variety of reasons. These reasons relate to the technical parameters of the Rules of Civil Procedure at issue, and their application to the present case. Civ.R. 50(E) requires a trial court to state the basis for its decision in writing when it directs a verdict. The statement may be made prior to or simultaneous with the entry of judgment either by dictating it into the record or including it in the entry itself. A party against whom the directed verdict motion is granted, however, waives her right to protest the absence of the Civ.R. 50(E) requirement by failing to timely raise the error to the trial court's attention. Campbell v. Pritchard (1991), 73 Ohio App.3d 158, 164; Darcy v. Bender (1980), 68 Ohio App.2d 190, 192. In other words, if appellant required further explanation for the trial court's decision, it was incumbent upon her to request it. Campbell, 164; Grange Mut. Cas. Co. v. Fleming (1982), 8 Ohio App.3d 164, 166. Since appellant did not make such a request, she waived any Civ.R. 50(E) insufficiency argument. -10- Assuming arguendo that the argument is reviewable on appeal, the trial court issued a signed judgment entry on January 27, 1995. The "findings of fact and conclusions of law" were attached to the entry, and the entry along with the findings and conclusions were provided to the clerk of courts. The clerk of courts volumized the entry and findings and conclusions at Vol. 1815, pages 211-221. For purposes of Civ.R. 50(E), the findings and conclusions provide a sufficient basis for the trial court's directed verdicts, and were stated simultaneously with the entry of judgment. Moreover, the journalization by the clerk satisfies the requirements of Civ.R. 58(A), specifically that a judgment becomes effective upon journalization. Construing the journalization of the findings and conclusions as anything but the trial court's indication that they contained its independent reasoning for its judgment is to ignore the record. See Rogoff v. King (1993), 91 Ohio App.3d 438 (Civ.R. 58[A] and 54[A] [content of judgments] require no more than a clear and concise pronouncement of the court's judgment); Cale Products, Inc. v. Orrville Bronze & Alum Co., (1982), 8 Ohio App.3d 372 (a judgment is final and effective when filed with the clerk pursuant to Civ.R. 58). Regarding Civ.R. 52, the rule's first sentence commences with the following restriction: "[w]hen questions of fact are tried by the court without a jury, ***." (Emphasis added.) The plain language of the rule reveals that it is not applicable to the present case, a jury trial case where verdicts are directed by the court. See In re Adoption of Gibson (1986), 23 Ohio St.3d 170; -11- Werden v. Crawford (1982), 70 Ohio St.2d 122; Long v. Grinnell (Mar. 16, 1995), Cuyahoga App. No. 67077, unreported; see, also, State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40. The trial court nonetheless advised the parties to file findings of fact and conclusions of law following its announcement that it was going to direct verdicts in favor of Stafford and Mr. Stafford. Stafford filed proposed findings and conclusions, but none were filed by appellant. Therefore, even if Civ.R. 52 applied to this case and thus required the trial court's compliance, appellant's failure to submit the proposed findings and conclusions pursuant to the court's directive is a waiver of the right to have the findings made in the proceeding. Moro v. Moro (1990), 68 Ohio App.3d 630, 633; Horace Mann Companies v. Jackson (1987), 42 Ohio App.3d 48, 50; Newman v. Industrial Glove Cleaning Co. (1986), 34 Ohio App.3d 41, 42; compare, State ex rel. Vanmeter v. Lawrence Cty. Bd. of Comm'rs. (June 29, 1994), Lawrence App. No. 93CA27, unreported (a request for findings appropriate when trial court determines attorney fees via summary judgment motion, but waiver occurred when party failed to submit proposed filings). Finally, the purpose of Civ.R. 52 is to aid a reviewing court in reviewing and determining the validity of the trial court's judgment. In re Gibson, 172; Blevins v. Sorrell (1990), 68 Ohio App.3d 665, 672. A trial court ruling that provides facts and legal conclusions satisfies the requirements of the rule where, when considered in conjunction with other parts of the trial -12- record, an adequate basis exists for the appellate court's review. Stone v. Davis (1981), 66 Ohio St.2d 74, 85; Strah v. Lake Cty. Humane Soc. (1993), 90 Ohio App.3d 822, 836; Blevins, 672; Finn v. Krumroy Constr., Co. (1990), 68 Ohio App.3d 480, 487. As stated supra, the trial court's judgment, including the "findings of fact and conclusions of law," satisfies this "adequate record" standard notwithstanding the inapplicability of Civ.R. 52. Appellant's first assignment of error is overruled. Appellant's second assignment of error addresses the propriety of the trial court's directed verdict on Stafford's claim for legal fees. Referring to her testimony about the value of Stafford's services and the results obtained or not obtained, appellant submits that the verdict was improper since the reasonableness of the fees was a determination best left to the jury. Appellant supports this position by pointing out that when her counsel spoke with the jurors following their dismissal, at least two of the jurors were leaning in her favor. A trial court properly enters a directed verdict when, after viewing the evidence most strongly in favor of the nonmoving party, it concludes that reasonable minds could only find for the moving party. Civ.R. 50(A)(4); Vance v. Consol. Rail Corp. (1995), 75 Ohio St.3d 222, 231; Clark v. Southview Hosp. & Family Health Ctr. (1994), 68 Ohio St.3d 435, 437-438; The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, 73. An appellate court reviews the entry of a directed verdict independently and without deference to the trial court's -13- determination. Keeton v. Telemedia Co. of S. Ohio (1994), 98 Ohio App.3d 405, 409; Tulloh v. Goodyear Atomic Corp. (1994), 93 Ohio App.3d 740, 747. "A motion for directed verdict *** does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence." O'Day v. Webb (1972), 29 Ohio St.2d 215, paragraph three of the syllabus. The Civ.R. 50(A)(4) "reasonable minds" test requires the trial court to determine whether there exists evidence of substantial probative value in support of the party's claim. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 69; see, Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469. Therefore, simply because a resolution of a question of law involves a consideration of the evidence does not convert the question of law into one of fact. Ruta, 68. Initially, in an action on an account, the plaintiff must set forth an actual copy of the recorded account. The recorded account must comport with the following requirements contained in Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 126: An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. -14- See Climaco, Seminatore, Delligati & Hollenbaugh v. Carter (1995), 100 Ohio App.3d 313. In the within case, appellant filed her divorce complaint against her husband, David Skinner, in February 1991 after more than twenty years of marriage. Appellant retained Mr. Stafford, an attorney since 1985, in May 1991. At their initial meeting, Mr. Stafford and appellant discussed his hourly rate of $150 as well as a retainer. Mr. Stafford's representation of appellant ceased in October 1992 prior to the resolution of the divorce action. There is no dispute that the account attached to Stafford's complaint complies with the requirements of Brown. The statement contains a list of itemized services, including time expended, for the time period of May 12, 1991 to October 29, 1992. The statement shows that $41,990 is due from appellant for legal fees in addition to $1,997.21 in expenses. Appellant's advance payment of $6,000 reduces the total balance on December 17, 1992 to $37,967.21. The remaining issue is whether the fees listed on the account are reasonable. An attorney who is discharged by a client, with or without just cause, may recover the reasonable value of services rendered the client prior to the discharge on a quantum meruit basis. Fox & Assoc. Co., L.P.A. v. Purdon (1989), 44 Ohio St.3d 69, syllabus; Belovich v. Saghafi (1995), 104 Ohio App.3d 438, 440; Sonkin v. Melena Co., L.P.A. v. Zaransky (1992), 83 Ohio App.3d 169, 175- 176. An attorney's compensation for services rendered is generally fixed by contract prior to employment and the formation of the -15- attorney/client relationship. Climaco, 323; Jacobs v. Holston (1980), 70 Ohio App.2d 55, 59. However, if the attorney and client agree on the attorney's hourly rate and a retaining fee, but not on the number of hours to be expended, the attorney carries the burden in an action for attorney fees of proving that he fairly and properly used the expended time, and moreover, that the fees are reasonable and fair. Id. A trial court must determine reasonable attorney fees upon the actual value of the necessary services performed by the attorney, with evidence in existence in support of the court's determination. Climaco, 323; In re Hinko (1992), 84 Ohio App.3d 89, 95. Some of the factors to be considered were set forth in Pyle v. Pyle (1983), 11 Ohio App.3d 31, 35: "1) [t]ime and labor, novelty of issues raised, and necessary skill to pursue the course of action; 2) customary fees in the locality for similar legal services; 3) result obtained; and 4) experience, reputation and ability of counsel. ***" See Climaco; DR 2-106(B). A court should then calculate the number of hours reasonably expended and multiply that sum by a reasonable hourly fee. See Bittner v. Tri-County Toyota (1991), 58 Ohio St.3d 143. The general rule is that expert testimony regarding the reasonableness of the fees is not required when a client does not make any attempt to contact the attorney during the attorney/client relationship to express dissatisfaction with the legal services rendered or the amount of money owed, and the attorney kept the client apprised of the status of the legal matter. See Climaco; -16- Hermann, Cahn & Schneider v. Viny (1987), 42 Ohio App.3d 132. It, therefore, follows that if the client expresses dissatisfaction with her attorney's services or the amount of money owed, expert testimony is required to establish the reasonableness of the fees. Herein, the trial court stated, in relevant part, as follows in its conclusions: 5. The evidence established that the Skinner v. Skinner divorce case was difficult and time-consuming. As a result of the matters before the court, the numerous disputes between the parties, and the conduct of the parties in and out of court, Joseph G. Stafford was required to expend considerable time on behalf of Karen P. Skinner. The divorce case required resolution of disputed custody and visitation issues, extensive discovery of financial and income information, and numerous communications between the attorneys and their respective clients. *** 10. *** [T]he court finds upon reviewing all the evidence presented, and construing the evidence most strongly in favor of the defendant, that there has been no evidence presented which disproves or contradicts the evidence presented by plaintiff in support of its action on an account. There was no dispute that a contract for legal services had been entered into between the parties, nor was there any dispute as to the terms of the contract. There was no evidence presented to show any errors or inaccuracies in the account submitted by plaintiff. *** In addition, the trial court found that $150 per hour was a reasonable rate to be charged by Mr. Stafford given his experience in domestic relations law. Based upon this reasonable rate and the foregoing conclusions, the trial court awarded Mr. Stafford the total of the amount due on the account. Mr. Stafford was the only witness to testify as to the reasonableness of his fees. -17- Appellant testified that she often wrote letters to Mr. Stafford about her concerns over the handling of the divorce 6 proceedings. Additionally, with regard to appellant's opportunity to question the fees for the services rendered by Mr. Stafford, Mr. Stafford explained that an office as small as his could not produce monthly billing statements. He testified that, at most, appellant received only one statement of her account prior to the December 1992 statement. Appellant testified that she never received the first statement. Construing this evidence in a light most favorable to appellant, appellant complained about the services rendered and was concerned with the accumulation of the fees, but was never provided the opportunity to question the fees charged by Mr. Stafford for his services during their attorney/client relationship. The trial court placed great emphasis on appellant's inability to pinpoint inaccuracies in the bill. Appellant testified that she never informed Mr. Stafford of any problems with the legal fees even after her receipt of the December 1992 statement. Rather, she had a problem with the "whole bill." It was incumbent upon Stafford to prove the reasonableness of its fees through expert 6 In a January 7, 1992 letter to Mr. Stafford, appellant noted that despite her repeated requests, Mr. Stafford failed to supply a fees statement. She also penned the following closing in a May 15, 1992 letter: Again, I have no idea what my attorney fees are. I don't expect to come out of this divorce owing more than I receive from my marital division of assets. Let's get on with this and quit st alling [sic] this divorce. I need to go on with my life. -18- testimony under Climaco and Hermann; it was not appellant's burden to prove that the statement contained false charges, a burden imposed by the trial court. This court certainly recognizes the line of cases that permits a trial court to determine reasonable attorney fees without independent expert testimony. See, e.g. Randolph v. Howard (May 11, 1994), Hamilton App. No. C-930274, unreported; and Thomas & Boles v. Burns (Mar. 31, 1994), Cuyahoga App. No. 64995, unreported (attorney who is seeking fees may provide testimony as an expert as to the reasonableness of his fees). We also recognize cases, although rare, wherein the trial court could properly determine from its own knowledge and expertise, the reasonableness of an attorney's requested fees. See, e.g., Capper v. Capper (Dec. 14, 1995), Lawrence App. No. 95-CA-8, unreported (amount of award of attorney fees in divorce proceedings may be determined by trial court); Frey v. Stegal (May 2, 1994), Athens App. No. CA 1586, unreported (where value of services is so obviously reasonable, determination is one of law). However, in light of appellant's unanswered requests for a bill, and her expressed concerns about Mr. Stafford's representation and the accumulating fees, this court finds that Stafford was required to provide independent expert testimony concerning the reasonableness of its fees. Climaco; Hermann; Bisker v. Bisker (Nov. 13, 1992), Mahoning App. Nos. 90 C.A. 82, 90 C.A. 104 and 90 C.A. 105, unreported; Roux v. Lonardo (Aug. 30, 1991), Trumbull App. No. 89-T-4302, unreported; Stanos v. -19- American Painting Co., Inc. (Nov. 16, 1989), Mahoning App. No. 88 C.A. 176, unreported. Appellant's second assignment of error is accordingly sustained. Appellant's third assignment of error challenges the trial court's directed verdicts on her claims for fraud and legal malpractice. She argues that the trial court's ruling on Stafford's motion in limine prior to trial, and its refusing to allow Heutsche to testify as her expert witness, eliminated her ability to withstand the motions which were granted following her opening statement. Initially, the grounds presented by appellant in support of this assignment of error relate to the trial court's evidentiary and discovery orders. However, rather than mounting an attack against these orders, appellant only challenges the trial court's Civ.R. 50(A) directed verdicts. Therefore, whether the trial court properly ruled on the motion in limine and prohibited Heutsche as an expert witness are issues not reviewable by this court for the following reasons. An in limine order is only a preliminary ruling on admis- sibility. If a party is temporarily restricted from introducing evidence by virtue of a motion in limine, the party must seek to introduce the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve the objection for purposes of appeal. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141; Gibson v. Gibson (1993), -20- 87 Ohio App.3d 426, 430; see Renfro v. Black (1990), 52 Ohio St.3d 27; State v. Grubb (1986), 28 Ohio St.3d 199; Collins v. Storer Communications, Inc. (1989), 65 Ohio App.3d 443. Here, the trial court stated, "We'll take it one step at a time during trial," when faced with the motion in limine. Appellant failed to proffer any evidence into the record regarding her claims for fraud and negligence. Appellant thus failed to abide by the rule that motion in limine decisions are not reviewable unless the evidence at issue is somehow placed into the record. In other words, once the trial court ruled on the motion, appellant did nothing to preserve any alleged error and consequently waived any error relating to the ruling on the motion in limine. Furthermore, Civ.R. 37(D) governs a trial court's orders with regard to the penalties to be invoked when a party fails to appear at a properly noticed deposition. A court could prohibit the party from introducing certain matters into evidence under Civ.R. 37(B) (2)(b) and (D). The record before this court reveals that Stafford arranged to depose appellant on several occasions, but appellant refused to respond to questions concerning her communications with attorney Heutsche. On November 10, 1994, the trial court ruled that appellant waived her attorney-client privilege with Heutsche, a ruling not challenged in this appeal. Appellant was then ordered to respond to Stafford's questions regarding the relationship by November 25, 1994. The trial court's order closed with the warning -21- that appellant's failure to comply would result in the prohibition of Heutsche's expert testimony. When appellant failed to appear as ordered, the trial court was well within its rights to impose a penalty under Civ.R. 37, a ruling also not challenged by appellant in this appeal. The only issue, therefore, remaining for review is whether the trial court properly granted the directed verdicts on appellant's claims for fraud and legal malpractice. The verdicts were granted following appellant's opening statement. Civ.R. 50(A) authorizes a trial court to enter a directed verdict following a party's opening statement. Although great caution should be exercised in directing such a verdict, the verdict is proper if "all the facts expected to be proved, and those that have been stated, do not constitute a cause of action or a defense, and the statement [is] liberally construed in favor of the party against whom the motion is made." Brinkmoeller v. Wilson (1974), 41 Ohio St.2d 233, syllabus. See Sapp v. Stoney Ridge Truck Tire (1993), 86 Ohio App.3d 85; Campbell. The trial court is not restricted to the facts presented during opening statement, but is to consider the complaint as well when asked to rule on a motion for directed verdict at this time. See Archer v. Port Clinton (1966), 6 Ohio St.2d 74; Sapp; Brentson v. Chappell (1990), 66 Ohio App.3d 83. The caution to be used when ruling on a motion for directed verdict following opening statement thus affords some latitude to the non-movant. Since counsel may overlook some relevant and -22- important facts that the non-movant will have the burden of establishing, '"he should be given a full and fair opportunity to explain and qualify his statement and make such additions thereto as, in his opinion, the proofs at his command will establish.'" Crowe v. Hoffman (1983), 13 Ohio App.3d 254, 256, quoting Cornell v. Morrison (1912), 87 Ohio st. 215, 222-223. See Archer; Campbell, Judge Koehler, dissenting. A motion for directed verdict requires an examination of the materiality of the evidence, instead of the conclusions to be drawn from it. Campbell, 163; Cox v. Oliver Machinery Co. (1987), 41 Ohio App.3d 28, 29. A trial court, therefore, does not determine whether one version of the facts presented is more persuasive than another, but determines only if one result could be reached under the theories of law advanced in the complaint. Id. In order for appellant to establish a claim for legal malpractice against Stafford and Mr. Stafford, she had to demonstrate the existence of three elements. First, there had to be an attorney-client relationship, a relationship not disputed by the parties. Second, Mr. Stafford must have breached the duty to exercise the requisite knowledge, skill and ability ordinarily used by members of the profession. Finally, Mr. Stafford's breach of duty must have proximately caused appellant's losses. See Krahn v. Kinney (1989), 43 Ohio St.3d 103, syllabus; McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112; Greene v. Barrett (1995), 102 Ohio App.3d 525. -23- If the client's legal malpractice claim rests upon the alleged failure to exercise the knowledge, skill and ability ordinarily possessed and exercised by members of the legal community similarly situated, expert testimony is necessary to establish the standards. Georgeoff v. O'Brien (1995), 105 Ohio App.3d 373, 377; Holley v. Massie (1995), 100 Ohio App.3d 760, 764; Gibbons v. Price (1986), 33 Ohio App.3d 4, 13. Conversely, expert testimony is not necessary to establish a breach of professional duty if the breach is within the ordinary knowledge and experience of laymen, or is so obvious that it may be determined as a matter of law. Rosenblum v. Riemenschneider (May 6, 1992), Summit App. No. 15324, unreported; see, McInnis; Georgeoff; Bloom v. Dieckmann (1983), 11 Ohio App.3d 202. However, if expert testimony is required but not provided, the attorney is entitled to a directed verdict. Gibbons, 13. Additionally, no legal malpractice exists unless the client shows that she would have been successful but for the legal negligence. Montgomery v. Everett (1991), 74 Ohio App.3d 616, 620; Kansa General International Ins. Co. v. Weston, Hurd, Fallon, Paisley & Howley (Nov. 22, 1995), Cuyahoga App. No. 68186, unreported; Fox v. Todt (Nov. 10, 1993), Cuyahoga App. No. 63900, unreported. For example, if a plaintiff settles the original action prior to completion of an appeal, he extinguishes his right to hold the attorney liable because the client is unable to identify damages with certainty. See Sawchyn v. Westerhaus (1991), 72 Ohio App.3d 25. -24- Appellant's legal malpractice action against Mr. Stafford fails for multiple reasons. First, appellant entered into a settlement agreement with Mr. Skinner. Appellant is thus unable to show what would have happened but for Mr. Stafford's alleged negligence. Montgomery; Sawchyn. Second, appellant claims that she would not have settled were it not for Mr. Stafford's negligence. This claim stems from appellant's belief that if Mr. Stafford performed as he should have as a member of the domestic relations community, the Skinner family business would not have floundered and she would not have been forced to settle in fear of a complete loss. The claim, both as presented in opening argument and in appellant's counterclaim, however, required expert testimony under Holley and Gibbons as to the standards in the appropriate legal community, testimony that was not offered by appellant. Appellant asserts that at least in one respect, expert testimony was not required to show legal malpractice pursuant to McInnis and Bloom. She takes issue with Mr. Stafford's requests for continuances without her permission, arguing that a layman could certainly conclude that such an act is beyond the standards appropriate to the practice of law. However, continuance requests without the approval of a client might certainly well be the standard in the community, if, e.g. the attorney is scheduled to appear in another court on the date in issue. Such evidence in fact was introduced in this case, as well as evidence that appellant requested continuances because she was not prepared for -25- trial based upon Mr. Skinner's alleged failure to produce all of his business records. Under the foregoing circumstances, and in light of appellant's failure to produce expert testimony, the evidence presented in appellant's opening statement and the allegations in her counterclaim, even construed most strongly in her favor, does not constitute a cause of action in negligence. Since reasonable minds could only come to one conclusion that is adverse to appellant, the trial court properly granted a directed verdict in Mr. Stafford's and Stafford's favor on appellant's legal malpractice claim upon the opening statement of counsel. Brinkmoeller, syllabus. Regarding appellant's claim for fraud, the elements for such a claim were set forth in Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69. The elements are: (a) a representation, or where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Id., paragraph two of the syllabus, Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, followed. See Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213. In the instant case, appellant's attorney expressed concerns during opening statement about the fairness and integrity of Stafford's bill. Counsel also made reference to what appellant expected from Stafford's representation and what was actually -26- received by her. No specifics were mentioned during the statement over and above these general allegations, thereby causing Stafford to move for the directed verdict. The trial court permitted appellant's counsel to address the trial court following Stafford's motion. The court specifically asked what conduct by Mt. Stafford amounted to fraud. Counsel responded that fraud occurred when Mr. Stafford requested continuances without appellant's consent, and moreover when he lied about the bill. Counsel explained with regard to the second allegation that Mr. Stafford billed appellant for a call to the domestic relations court on a Saturday, an obvious dishonest billing. As can be seen from the foregoing review of appellant's counsel's opening statement and his response to Stafford's motion for directed verdict, there is no mention whatsoever of the elements of a claim for fraud. Even though the trial court disallowed counsel to mention "fraud," the court did not prohibit counsel from referring to the elements of the action. Moreover, appellant's counsel refers to a portion of the transcript to demonstrate how the trial court admonished him as to what he could say or not say during opening statement. This was a sidebar conference which was heard outside the presence of the jury and was thus not transcribed, so the conference has no bearing on the instant assignment. Admittedly, appellant's counterclaim contains all of the elements of a claim for fraud. However, the elements are set forth -27- generally with no specifics as to "level of success" to be achieved by Stafford, nor as to the damages proximately caused by Stafford's misrepresentation. The complaint thus fails to alter the conclusion that appellant's claim for fraud was properly eliminated through a directed verdict. See Civ.R. 9(B); Haddon View Investment Co. v. Coopers & Lybrand (1982), 70 Ohio St.2d 154; Baker v. Conlan (1990), 66 Ohio App.3d 454 (specificity required in claims for fraud). As a final note, appellant's counsel advised the jury that the claims for legal malpractice and fraud would be proven by evidence offered by Stafford and Mr. Stafford. Not only did counsel fail to state what this evidence would be, except for dishonest billing, it is doubtful that he could predict such evidence. Reasonable minds could only come to one conclusion when viewing appellant's opening statement and the allegations contained in the counterclaim in her favor. The opening statement and counterclaim fail to disclose a claim for fraud, thereby permitting the trial court to grant Stafford's directed verdict motion. Brinkmoeller, syllabus. Appellant's third assignment of error is overruled. In the trial court's final judgment, it converted the August 8, 1994 preliminary injunction against appellant into a permanent injunction. The injunction stemmed from the disbursement of copies of appellant's disciplinary complaint against Mr. Stafford to Stafford's clientele. In the fourth and final assignment of error, -28- appellant argues that Stafford failed to prove by clear and convincing evidence its entitlement to the injunction. A party seeking an injunction must present clear and convincing evidence in support of the request. White v. Long (1967), 12 Ohio App.2d 136, 140. The court in State ex rel. Miller v. Private Dancer (1992), 83 Ohio App.3d 27, set forth the test to be utilized upon a review of an issued injunction. The court stated: The standard of review for this court regarding the granting of an injunction by a trial court is whether the trial court abused its discretion. The allowance of an injunction rests within the sound discretion of the trial court and depends upon the facts and circumstances surrounding the case. Perkins v. Quaker City (1956), 165 Ohio St. 120, 133 N.E.2d 595 ***. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Beacon Journal Pub. Co. v. Stow (1986), 25 Ohio St.3d 347, 496 N.E.2d 908 ***. Absent an abuse of discretion, this court cannot reverse. Kondrat v. Byron (1989), 63 Ohio App.3d 495, 579 N.E.2d 287 ***. Id., 32. See Garano v. State (1988), 37 Ohio St.3d 171. Furthermore, a court of appeals, when determining whether a trial court's decision is against the manifest weight of the evidence, is guided by the presumption that the trial court's findings are correct. Myers v. Garson (1993), 66 Ohio St.3d 610, 614; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79- 80. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be disturbed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio -29- St.2d 279, syllabus. A reviewing court, therefore, should not reverse a decision simply because it disagrees with the trial court's opinion of the evidence. Seasons Coal Co., 80. In the within case, appellant filed a disciplinary complaint against Mr. Stafford in June 1993. Appellant repeatedly denied that she had any involvement in the dissemination of the copies of the complaint. She also refers to Mr. Stafford's testimony in which he doubted that appellant possessed the wherewithal to obtain Stafford's client listing. Based upon her denial and Mr. Stafford's doubt, she argues that the trial court's grant of the injunction was not in accord with the evidence. Although appellant could not recall whether she provided copies of the complaint to anyone, she testified at the injunction hearing that she spoke with attorneys Meros and Heutsche about it. She also testified that given her stress level throughout the divorce proceedings, she may have provided copies of the complaint to other people. There is no dispute that copies of the complaint were received by numerous past and present clients of Stafford. The copies of the complaint included a message to contact appellant for details, and provided appellant's unlisted telephone number. Appellant thereafter received telephone calls from approximately twenty-five of the clients. She admitted that she spoke with some of these individuals about the allegations in the complaint. There was also testimony from Mr. Skinner that during the divorce proceedings, appellant was involved in the dissemination of negative information concerning his business interests. -30- The foregoing evidence is clear and convincing with regard to the facts that appellant filed the disciplinary complaint, a confidential document; the document came into the hands of Stafford's clientele; appellant was unable to testify that she never provided a copy of the complaint to anyone; and she voluntarily spoke with the clientele when they contacted her. The trial court was free to reject appellant's denial that she was involved in the mailings. Finally, even if appellant did not personally obtain the client listing, the evidence is nonetheless incriminating as to her involvement. In conclusion, a review of the evidence offered at the injunction hearing, when combined with the atmosphere surrounding the divorce proceedings and the present litigation, fully supports the trial court's conclusion that "Karen Skinner, even acting on her own at the minimum, disseminated this information with a malicious and harmful intent." This court, therefore, refuses to reverse the trial court's final decision since it did not abuse its discretion when it converted the preliminary injunction into a permanent injunction at the close of the case. Myers; Seasons Coal Co.; C.E. Morris Co.; State ex rel. Miller. Appellant's fourth assignment of error is overruled. Judgment reversed as to the directed verdict on Stafford's legal fees claim; this sole cause is remanded to the trial court for proceedings to be consistent with this opinion. Judgments otherwise affirmed as to the directed verdicts on appellant's -31- claims for fraud and legal malpractice, and to the grant of the permanent injunction. Judgment accordingly. -32- It is ordered that the parties pay their own 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 Cuyahoga County Common Pleas 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. TERRENCE O'DONNELL, J., CONCUR; DIANE KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART. SEE CONCURRING AND DISSENTING OPINION. PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68597 : JOSEPH G. STAFFORD & ASSOCIATES, : ET AL. : : CONCURRING Plaintiffs-Appellees : : AND v. : : DISSENTING KAREN P. SKINNER : : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCT. 31, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's opinion, except I respectfully dissent from its holding that independent expert testimony is necessary to support a claim for attorney fees under the circumstances of this case. There is no dispute that client Karen Skinner agreed to pay attorney Joseph Stafford $150 per hour for legal services in connection with her divorce. The dispute ultimately boiled down to the reasonableness of legal services and resulting fees. The only evidence presented during trial concerning the reasonableness of - 2 - legal services came from attorney Stafford. Client Skinner did not present opposing expert testimony, was not competent to render opinions concerning the necessity of legal services, and had no evidence that Stafford did not perform the services. Under the circumstances, the trial court properly directed a verdict against Skinner. It is well established, contrary to the majority opinion, that a motion for directed verdict under Civ.R. 50(A)(4) tests the sufficiency of the evidence. The motion raises a question of law which does not permit the trial court, or reviewing court, to consider the weight of the evidence or the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282; State v. Martin (1983), 20 Ohio App.3d 172, 175 (distinguishing sufficiency of the evidence claims--when weight and credibility are not considered--from manifest weight of the evidence claims when these factors are considered). The majority cites authority holding that testimony by the attorney seeking to recover the disputed fees is sufficient, by itself and without additional independent expert testimony, to support an award of attorney fees. (Ante at p. 17.) This should end the matter. However, the majority purports to distinguish this authority in cases when the client states she received no invoice and expressed concerns regarding the amount of fees. Evid.R. 601 recognizes that attorneys, like other persons, are competent to be witnesses. The fact that a witness has an interest in the case affects the weight or credibility of the witness' - 3 - testimony but has never required independent corroboration for the witness' testimony to constitute sufficient evidence. For example, store owners routinely testify concerning the value of stolen merchandise and such testimony is sufficient, without independent corroboration, to support a conviction for shoplifting beyond a reasonable doubt. The majority's pronouncement to the contrary, which requires dual experts even when the testimony of the first is not contradicted, has far reaching implications for legal, medical and other cases involving experts. Parties must now hire two attorneys, one to represent them and a second to testify concerning the reasonableness of the first attorney's services, to recover attorney's fees in routine domestic relations cases. None of the cases string-cited by the majority supports this novel proposition, and each case is distinguishable. Only two of the cases involved the sufficiency of the evidence to support an attorney fee award as involved in this appeal. The court in Climaco reversed summary judgment for the attorney seeking the fee because, unlike the case sub judice, he presented no evidence-- from himself or any other expert--concerning the reasonableness of the fee. The Roux court reversed a directed verdict for the attorney when, unlike the case sub judice, the client disputed both the hourly rate and the number of hours. Neither Climaco nor Roux apply in this case because Stafford testified concerning reasonableness and Skinner did not dispute the hourly rate. - 4 - The Stanos court similarly reversed a fee judgment for an attorney who, again unlike the case sub judice, presented no expert testimony of any kind. The appellate court explained that the trial court improperly placed the burden of proof on the client. Stanos does not apply because Stafford testified and the trial court did not misplace the burden of proof on Skinner in this case. The remaining two cases cited by the majority involve manifest weight, rather than sufficiency, of the evidence unlike this appeal. Hermann recognized that an attorney seeking to collect a fee was not required to present any expert testimony regarding the reasonableness of the fees when, unlike the case sub judice, he kept the client informed and the client raised no dispute during representation. The trial court's finding in Hermann concerning the reasonable value of services, modified to reflect the parties' stipulated rate of $65 per hour, was not against the manifest weight of the evidence. The Bisker court found that an attorney fee judgment was against the manifest weight of the evidence because there was no independent expert testimony concerning the 7/ reasonableness of hours. Neither Hermann nor Bisker apply in this case by their own terms, however, because Stafford testified and because Skinner is challenging the sufficiency, rather than the manifest weight, of the evidence. The majority's reasons for modifying the sufficiency of the evidence standard are particularly misplaced in this case. There 7/ The court of appeals opinion in Bisker was reversed on other grounds in Bisker v. Bisker (1994), 69 Ohio St.3d 608. - 5 - was testimony that Skinner knew Stafford's hourly rate and that Skinner was a frequent caller. In fact, Skinner was in contact with Stafford, in person and by telephone--not counting written letters--at least weekly during the representation for a total of approximately 103 conferences over a 450-day period, including weekends and holidays. As a result, the number of hours Skinner personally spent in conference with Stafford would have necessarily revealed to her the degree of services he provided on a timely basis. Moreover, Skinner's dissatisfaction with the case was described only in general terms, for example, with the results and pace of the litigation. Under these circumstances, the absence of a written invoice is not sufficient reason to require Stafford to provide cumulative testimony from another attorney, particularly because Skinner provided none to contradict Stafford. There was no genuine issue of fact in this case. The jury simply could not have returned a verdict in favor of Skinner based on the evidence. The majority's holding that independent expert opinion testimony is necessary to support a claim for attorney fees .