COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69883 : ALAN EDWARD JUNKE : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION JEFFREY H. FRIEDMAN, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-285027 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ALAN E. JUNKE, pro se LISA M. GERLACK, ESQ. P.O. Box 456 FRIEDMAN, DOMIANO & SMITH Hinkley, Ohio 44233 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Plaintiff-appellant, Alan Junke, appeals from the judgment of the trial court in favor of defendants-appellees for legal malpractice. After plaintiff's handicap discrimination case was dismissed on statute of limitations grounds, plaintiff sued defendants, plaintiff's former attorney, Jeffrey H. Friedman, as well as Friedman's law firm. The trial court granted summary judgment for defendants regarding plaintiff's claims of legal malpractice. For the reasons that follow, the judgment of the trial court is affirmed. Plaintiff was hired as a drafter by MK-Ferguson Company in 1989. On July 5, 1989, plaintiff was fired. On July 19, 1989, plaintiff filed a handicap discrimination charge with the Ohio Civil Rights Commission ("Commission"). When the Commission issued a "probable cause" finding against MK-Ferguson, the matter proceeded to conciliation, during which period the employer made a $3,000 settlement offer which plaintiff rejected on October 6, 1990. An impasse having been reached, the Commission issued a complaint. In a letter dated November 29, 1990, an Assistant Attorney General representing the Commission sent plaintiff a withdrawal form pursuant to their recent telephone conversation. A letter dated December 7, 1990 from Friedman to plaintiff reflects that plaintiff discussed retaining defendants as attorneys just prior to December 7, 1990. In an affidavit, plaintiff states that he - 3 - talked to Friedman in July of 1990. In his complaint, however, plaintiff states that, after the final offer was communicated to him on October 5, 1990, he began looking for an attorney because he felt an "impasse had been reached." Friedman's affidavit states he first met with plaintiff on December 7, 1990, but does not indicate whether they ever previously talked by telephone. On December 13, 1990, plaintiff signed a contract which formally retained defendants to represent him and paid the $1,000 retainer fee. On December 20, 1990, plaintiff signed a request directing the Commission to withdraw his complaint in order to pursue a remedy privately in court. An employee of defendant's office witnessed this signature. The next day, December 21, 1990, defendants filed a civil complaint on behalf of plaintiff in common pleas court. On January 17, 1990, defendant Friedman forwarded the withdrawal form to the Office of Attorney General, which advised the Commission that the hearing scheduled for February 28, 1991 would not, therefore, be necessary. The Ohio Civil Rights Commission "Request For Withdrawal Of Charge" states, in part, as follows: I, Alan E. Junke, having filed a notarized affidavit with the Ohio Civil Rights Commission on July 19, 1989, charging M.K. Ferguson Company with discrimination based upon Handicap (back injury), do hereby request that said charge be withdrawn for the following reasons: I have decided to pursue my remedy with my private attorney in Court. The Commission approved this withdrawal on March 14, 1991. - 4 - On July 29, 1992, MK-Ferguson moved for summary judgment and argued that the newly decided case of Duvall v. Titan Equipment Co. (June 25, 1992), Cuyahoga App. No. 62809, unreported, mandated a one-year statute of limitations for handicap 1 discrimination claims. Relying on Duvall, the trial court granted summary judgment for MK-Ferguson, which decision was affirmed by this court. Junke v. MK-Ferguson (Feb. 14, 1994), Cuyahoga App. No. 64625, unreported. The opinion was issued on February 3, 1994 and journalized on February 14, 1994. On February 9, 1994, defendants sent plaintiff a copy of this opinion, along with a letter asking plaintiff to call them "immediately" to discuss their options. Plaintiff states he unsuccessfully attempted to call defendants a number of times. Over a year later he wrote them a letter, dated February 10, 1995. In this letter, plaintiff demanded $4,000 from defendants and threatened to sue defendants if he did not receive the money. On February 21, 1995, plaintiff filed the instant legal malpractice case against defendants. The trial court granted summary judgment in favor of defendants. Plaintiff appealed raising eight assignments of error. The first five assignments, which will be addressed together, state as follows: I. THE TRIAL COURT ERRED WHEN IT DID NOT FIND THAT, AT THE TIME FRIEDMAN FILED JUNKE'S CIVIL COMPLAINT, R.C. 4112.99 DID NOT AUTHORIZE A DIRECT ACTION IN COMMON PLEAS COURT. 1 The Ohio Supreme Court later rejected the position taken by the Duvall court and adopted a six-year statute of limitations. Cosgrove v. Williamsburg Cincinnati Mgmt. Co. (1994), 70 Ohio St.3d 381. - 5 - II. THE TRIAL COURT IMPROPERLY DETERMINED THAT AT THE TIME THE APPELLEE FILED THE APPELLANT'S CLAIM A SIX YEAR STATUTE OF LIMITATIONS GOVERNED THE CLAIM. III. THE TRIAL COURT ERRED WHEN IT DID NOT FIND THAT THIS VERY APPELLATE COURT HAD PREVIOUSLY FOUND IN, JUNKE V. MK-FERGUSON, THAT THE STATUTE OF LIMITATIONS FOR R.C. 4112.99 WAS ONE YEAR AT THE TIME DEFENDANTS FILED THE PLAINTIFF'S CLAIM. IV. THE RECORD BEFORE THE TRIAL COURT CONTAINED GENUINE ISSUES OF MATERIAL FACT AS TO PRECLUDE THE GRANTING OF SUMMARY JUDGMENT REGARDING THE APPELLEE'S WITHDRAWAL OF THE APPELLANT'S OHIO CIVIL RIGHTS COMMISSION COMPLAINT SOME 10 DAYS AFTER THE WEST V. ITEN DECISION FINDING A 180 DAY STATUTE OF LIMITATIONS FOR R.C. 4112.99. V. THE RECORD BEFORE THE TRIAL COURT CONTAINED GENUINE ISSUES OF MATERIAL FACT AS TO PRECLUDE THE GRANTING OF SUMMARY JUDGMENT IN LIGHT OF THE DEVELOPMENTS IN COSGROVE V. WILLIAMSBURG OF CINCINNATI CASE WHERE THE OHIO SUPREME COURT DECISION FOUND A SIX YEAR STATUTE OF LIMITATIONS FOR R.C. 4112.99. In these assignments, plaintiff argues that the trial court erred by granting summary judgment in favor of defendants for the following reasons: (1) R.C. 4112.99 did not authorize a civil action at the time plaintiff's complaint was filed, (2) a one- year, not a six-year, statute of limitations governed plaintiff's handicap discrimination complaint at the time it was filed, (3) there was a genuine issue of material fact as to whether the withdrawal of plaintiff's charges before the Commission letter constituted malpractice, and (4) failing to appeal Junke v. MK- Ferguson, supra, to the Ohio Supreme Court constituted legal malpractice. The following are elements of a legal malpractice claim: (1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages suffered by a client as a - 6 - result of that attorney's breach of duty. State ex rel. Sellers v. Gerken (1995), 72 Ohio St.3d 115, 117. "Moreover, to prove the damages prong of a legal malpractice action, a plaintiff must prove that he would have prevailed in the original action had the attorney not been negligent." Rinehart v. Mariorano (1991), 76 Ohio App.3d 413, 419, citing Howard v. Sweeney (1985), 27 Ohio App.3d 41, 43. Plaintiff also bears the burden of establishing by expert testimony that defendant's legal representation "fell below the standard of care ordinarily exercised by members of the legal profession under similar circumstances." Landis v. Hunt (1992), 80 Ohio App.3d 662, 668. In his affidavit, plaintiff's expert, Dennis J. Niermann, averred as follows: 6. Said report, Tab B, contains my opinions concerning this matter, namely -- I concluded that (a) Jeffrey H. Friedman/Friedman, Domiano & Smith Co., L.P.A. was not negligent in filing Mr. Junke's handicap discrimination claim on December 21, 1990 and (b) Jeffrey H. Friedman/Friedman, Domiano & Smith Co., L.P.A. exhibited a proper standard of care within the legal community by filing Mr. Junke's claim of handicap discrimination on December 21, 1990, since the statute of limitations under Ohio Revised Code [section] 4112.99 was six years at that time. Plaintiff has presented neither expert testimony nor legal precedent to establish that defendant's representation fell below the standard of care ordinarily exercised by attorneys under similar circumstances. Nor does plaintiff ever meet his burden of demonstrating that he would have prevailed. The third element of a legal malpractice claim is that plaintiff must establish he suffered - 7 - damages as a proximate result of the attorney's breach of duty. Palmer v. Westmeyer (1988), 48 Ohio App.3d 296. In order to satisfy this third element, a plaintiff must prove that, "but for" the attorney's negligence, the plaintiff would have prevailed in the original lawsuit. Rinehart v. Mariorano, supra at 419; Estate of Callahan v. Allen (1994), 97 Ohio App.3d 749, 752. In the case at bar, therefore, plaintiff bears the burden of proving that "but for" the alleged negligence of defendants he would have prevailed on his claim of handicap discrimination. In addition to plaintiff's failure to present any evidence that he would have succeeded with his handicap discrimination claim, plaintiff has failed to even plead the essential element that he would have succeeded. In his complaint, plaintiff states as follows: 34. The Plaintiff would have resolved the prior dispute with the help of the Ohio Civil Rights Commission, possibly taking MK-Ferguson's October 5th, 1990 offer of three Thousand dollars ($3,000.00), if the defendants had advised plaintiff that a suit was time barred. Although the commission issued the minimal finding of probable cause at the threshold, there is nothing to indicate that plaintiff would have succeeded at the commission hearing. The prior opinion from this court noted the many weaknesses of plaintiff's handicap claim. The mere possibility of resolving a dispute does not satisfy plaintiff's burden of proving that he would have prevailed. Accordingly, plaintiff has not satisfied this element. - 8 - A. Whether a Cause of Action Existed Plaintiff's first argument in support of his malpractice claim is that at the time the discrimination suit was filed, authority existed in Ohio which held that R.C. 4112.99 did not authorize a civil cause of action for handicap discrimination. Plaintiff's argument is misplaced. It was upon the statute of limitations argument that the court of appeals in the earlier handicap case based its decision, not on whether Ohio law recognized a direct cause of action under R.C. 4112.99 at the time the handicap complaint was filed. On the question of whether defendants breached any standard of care, the trial court's decision to grant summary judgment, similarly, turned on whether the law as it existed at that time followed a six-year statute of limitations for claims of this type. In his complaint or brief in opposition to summary judgment, plaintiff never raised the issue of whether a cause of action existed under R.C. 4112.99. Accordingly, he is now precluded from raising the issue for the first time on appeal. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41; Greenwood v. Taft Stettinius & Hollister (1995), 105 Ohio App.3d 295, 302. B. Statute of Limitations Plaintiff's second argument is similarly without merit. Plaintiff claims that there is a genuine issue of material fact regarding whether a six-year statute of limitations governed R.C. 4112.99 at the time the handicap complaint was filed. The complaint of handicap discrimination was filed in court on - 9 - December 21, 1990. Plaintiff has not identified any opinion issued before this date that held R.C. 4112.99 was governed by a one-year statute of limitations. Before December 21, 1990, only two cases brought to the attention of this court addressed the statute of limitations issue. Both cases held the statute of limitations was for six years. Lenhoff v. Vindicator Printing Co. (Jan. 30, 1989) Mahoning Cty. C.P. No. 88-CV-1221, unreported; Grant v. Monsanto Co. (S.D. Ohio, 1989), 51 F.E.P. 593 (holding that the statutory language was "clear and unambiguous" in creating a civil cause of action with a six-year statute of limitations). At this point in time, no controlling case held to the contrary. The fact that this court subsequently held that such claims are governed by a one-year statute does not implicate a breach of duty on behalf of defendants. Generally, attorneys are expected to know the law of the case they are trying. U.S. v. Hook (1986), 781 F.2d 1166. However, "[i]n considering whether an attorney breached his duty, it is important to note that liability will not attach for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved." Howard v. Sweeney (1985), 27 Ohio App.3d 41, 43; Thomarios v. Lieberth (Feb. 19, 1992), Summit App. No. 15229. An attorney does not breach a duty to a client by failing to predict a subsequent change in the law. Howard v. Sweeney, supra. Accordingly, plaintiff failed to establish there was a genuine - 10 - issue as to whether his attorney breached a duty in relying on a six-year statute of limitations. C. Withdrawing the Charges before the Commission Plaintiff's third argument is that there is a genuine issue of material fact of whether defendants breached a duty of care in not withdrawing his civil action when West v. Iten (N.D. Ohio. Jan. 7, 1991), No.4:90 CV 1130, unreported, was issued and in not asking the Commission to void his earlier request to withdraw charges. To pursue a remedy in common pleas court required that he withdraw his Commission complaint. Under the law, plaintiff could not pursue a remedy simultaneously through the Commission and directly in common pleas court. Although the withdrawal request was sent to the Office of Attorney General on January 17, 1991, the Commission did not formally approve the withdrawal until March 14, 1991. In the interval, however, the Commission hearing date of February 28, 1991 was apparently cancelled. Although the record indicates that a withdrawal required Commission approval, there is nothing in the record to indicate the Commission would have voided a withdrawal request, especially if a scheduled hearing on the charges had been cancelled as a result of this. More importantly, plaintiff mischaracterizes the state of the law as a result of West. West, an unreported case, merely conflicted with Grant; West did not overrule it. At most, West simply made the statute of limitations debatable. However, - 11 - neither federal district case controlled Ohio state courts. Thus the law in the interval between the issuance of West and the Commission approving plaintiff's withdrawal had not substantially changed. Accordingly, defendants did not fall below the applicable standard of care in allowing the process of withdrawing the Commission complaint to continue. Finally, plaintiff's argument that defendants were negligent by failing to appeal the appellate decision to the Ohio Supreme Court was not raised below. We are not compelled, therefore, to consider this argument on appeal. Stores Realty Co. v. Cleveland, supra; Niemann v. Cooley (1994), 93 Ohio App.3d 81. Plaintiff's first five assignments are overruled. Plaintiff's sixth and seventh assignments will be addressed together. VI. THE TRIAL COURT ERRED WHEN IT DID NOT STRIKE THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE OF THEIR FAILURE TO COMPLY WITH REP R 2(G)(3) WITHIN THE TIME ALLOTTED FOR FILING THEIR MOTION FOR SUMMARY JUDGMENT. [SIC] VII. THE TRIAL COURT ERRED WHEN IT DID NOT STRIKE THE APPELLEE'S EXPERT REPORT BECAUSE OF THEIR FAILURE TO COMPLY WITH REP R 2(G)(3) WITHIN THE TIME ALLOTTED FOR FILING THEIR EXPERT REPORT. [SIC] In these two assignments, plaintiff argues that the trial court committed reversible error when it refused to strike defendants' motion for summary judgment because it did not contain a copy of an unreported case which defendants' expert report cited. Since defendants timely corrected this problem and - 12 - plaintiff can show no prejudice, we find these two assignments to lack merit. Defendants filed their motion for summary judgment on August 1, 1995. On August 14, 1995, plaintiff filed a motion for extension of time to file his opposition to defendants' motion. On August 16, 1995, defendants filed an appendix to their motion for summary judgment. This appendix contained the unreported decisions cited by defendants in their motion for summary judgment. The next day, plaintiff filed a motion to strike defendants' motion for summary judgment. The basis for plaintiff's motion to strike was that defendants failed to comply 2 with S.Ct.R.Rep.Op. 2(G)(3). This argument does not warrant a reversal in the case at bar. The trial court gave plaintiff an extension, until October 2, 1995, to file his brief in opposition to defendants' motion for summary judgment. Defendants provided the unreported decisions on August 16, 1995, two weeks after the motion was filed and a month and a half before plaintiff's brief in opposition was due. Plaintiff has not shown any prejudice because of the two-week delay of having a copy of the unreported decisions. Therefore, plaintiff's sixth and seventh assignments are overruled. 2 This rule states as follows: Any party who cites an unpublished opinion shall attach a copy of the opinion to his brief or memorandum and indicate any disposition by a superior appellate court of any appeal therefrom known after diligent search. - 13 - VIII. THE TRIAL COURT ERRED WHEN IT FOUND NO MALPRACTICE RELATED TO THE EMOTIONAL DISTRESS PORTION OF THE PLAINTIFF'S COMPLAINT. THE TRIAL COURT FAILED TO CONSIDER THE PLAINTIFF'S ARGUMENTS IN OPPOSITION TO SUMMARY JUDGMENT. In this assignment, plaintiff argues that the trial court erred by finding no malpractice regarding plaintiff's handling of the original emotional distress claim in the first lawsuit. This court in Junke v. MK-Ferguson, supra, at 7-8, disposed of the emotional distress claim as follows: Appellant alleges that Appellee has caused him severe emotional distress in failing to accommodate his alleged handicap. A review of Appellant's Brief in Opposition fails to demonstrate that Appellee's conduct was outrageous or that the Appellee intentionally or recklessly caused the Appellant to suffer severe emotional distress by its alleged refusals to accommodate the Appellant's alleged handicap. The resume the Appellant submitted to the Appellee at the time of his employment indicated that he "participated in many sports" and was a "member of a bowling team and co-ed soft-ball team." Appellant's former fiancee stated in her affidavit that she "never noticed that Mr. Junke had any physical limitations at all;" that he was a "very active individual;" that both were "[sic] in competitive leagues for softball and indoor soccer, and that she "knew first hand that the Appellant played volleyball." (See, Exhibit C -The Affidavit of Ms. Joanne Zitz attached to Appellee's Motion.) The record also demonstrates that the Appellant was well enough to secure employment shortly after his discharge and that the psychiatric counselling he received subsequent to his discharge was prompted not by his employment or termination thereof, but by the dissolution of his engagement to his fiancee. Records from St. Vincent's Charity Hospital indicate that the Appellant "chose not to go to St. Louis ... due to the effect it had on the relationship" and that he lost his job "because he decided to stay in Cleveland" to be with his former fiancee. In viewing the evidence most strongly in favor of the Appellant, we find that he has failed to affirmatively demonstrate the Appellee's conduct was outrageous or that it was the proximate cause of his - 14 - emotional distress. Reasonable minds can come but to one conclusion and that conclusion is adverse to the Appellant. [Citations to the record omitted.] A claim for intentional infliction of emotional distress contains the following elements. "*** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go 'beyond all possible bounds of decency' and was such that it can be considered as 'utterly intolerable in a civilized community,' Restatement of Torts 2d (1965) 73, Section 46, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that 'no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j." Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359, 366. In the case at bar, plaintiff has failed to show any error by defendants which would have changed the disposition of plaintiff's emotional distress claim. This court, as stated above, held that MK-Ferguson's actions were not outrageous and that any psychiatric counseling was related to plaintiff's personal life, not to his employment termination. Plaintiff claims that defendants could have deposed his former fiancee, Ms. Zitz, to expose that her affidavit was a "pack of lies." Plaintiff argues merely the possibility that Zitz' affidavit could be impeached. A possibility is insufficient to create a genuine issue of material fact. Moreover, although Zitz' affidavit was instructive to this court, it was not the only piece of evidence this court relied upon when - 15 - it affirmed the defense judgment on the emotional distress claim. The court also noted plaintiff's own resume which described his proficiency in recreational sports. More importantly, plaintiff has not presented any evidence that could question this court's holding that MK-Ferguson did not act outrageously. Accordingly, plaintiff's eighth assignment of error is overruled. Judgment affirmed. - 16 - 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 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. LEO M. SPELLACY, C.J., CONCURS; DYKE, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI JUDGE 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 .