COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69602 : MR. ALBERT F. SOLTIS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : WEGMAN, HESSLER, VANDERBURG : & O'TOOLE : : Defendant-Appellee : : DATE OF ANNOUNCEMENT FEBRUARY 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 268715 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOHN J. MUELLER, ESQ. BURT FULTON, ESQ. 410 Pendleton Design Center M. TERENCE CAWLEY, ESQ. 1118 Pendleton Street Gallagher, Sharp, Fulton Cincinnati, Ohio 45210-4105 & Norman Seventh Floor, Bulkley Bldg. RICHARD GIBBS JOHNSON, ESQ. 1501 Euclid Avenue Richard Gibbs Johnson Co., L.P.A. Cleveland, Ohio 44115 220 Crittenden Court Bldg. 955 West St. Clair Avenue Cleveland, Ohio 44113-1210 and JOEL LEVIN, ESQ.; SANDRA J. ROSENTHAL, ESQ. Nurenberg Plevin Heller & McCarthy 1370 Ontario Street, 1st Fl. Cleveland, Ohio 44113-1792 -2- PATRICIA ANN BLACKMON, J.: Plaintiff-appellant, Albert F. Soltis, appeals a verdict rendered in favor of defendant-appellee, William J. Koval, Jr. and 1 assigns three errors for our review. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. Soltis filed a complaint against the law firm of Wegman, Hessler, Vanderburg & O'Toole Co., L.P.A. (the law firm), Peter Hessler, David Hessler, Keith Vanderburg, John K. O'Toole (the principals), and William J. Koval, Jr., defendants-appellees. He alleged four counts of legal malpractice and one count of fraud. Prior to trial, the defendants filed a motion in limine to exclude evidence of attorneys fees as a discovery sanction, and the motion was granted. During oral argument, Soltis' attorneys argued that the trial court had granted a directed verdict on the negligence count as it pertained to Koval. Although we recognize in the transcript the trial court did seem to get the reckless and negligence counts confused, a trial court speaks through its journal entry and not the transcript. The trial court issued the following journal entry: Motion of defendants, Wegman, Hessler, Vanderburg & O'Toole, et al. for directed verdict is granted in part. The motion for directed verdict is denied only as to defendant, William J. Koval, Jr. 1 See Appendix for assignments of error. -3- During the instruction to the jury the trial court instructed the jury on negligence. (Tr. 1582-87). The trial court did not instruct on recklessness. Soltis' attorney did object to the trial court's failure to instruct on recklessness. (Tr. 1601). However, he did not assign this issue as error. Likewise, he did not assign as error any of the issues involving the instructions to the jury. Nevertheless, during oral argument he argued the trial court failed to instruct on negligence directed out that count and the contract count as they related to Koval. When questioned as to whether this issue was assigned as error, the attorney admitted it was not specifically stated, but claimed it was argued in the reply brief. After reading the reply brief, we found no such argument in connection with this issue. Soltis' attorney did argue this issue in connection with the directed verdict for the law firm. However, we fail to see the relevancy since the law firm was directed out. The jury trial was held and all of the evidence except that which was excluded was presented to the jury on each count of Soltis' complaint. Soltis testified in February 1991 he was looking for employment and responded to an advertisement in the newspaper for a plating supervisor at Perfection Graphics, Inc. He was subsequently contacted by Harold Sheehan, the owner of the business, and they met on or about February 9, 1991 to discuss his qualifications. During the meeting, Soltis learned that Sheehan was interested in selling the business, rather than offering him a job. Thereafter, Soltis and Sheehan entered into negotiations for the sale of Perfection Graphics. -4- On March 2, 1991, Soltis attended a meeting in Sheehan's office. At that meeting, Sheehan introduced William Koval and Daniel Stegmaier to Soltis. Soltis and Koval sat on one side of the table and Sheehan and Stegmaier sat on the other side of the table. At some point in the meeting, Sheehan suggested to Stegmaier that Soltis and Koval be left alone. While alone, Soltis asked Koval to explain what was meant by a C-corporation. Soltis also asked Koval whether he thought this was a "good deal," and Koval said, yes. They were alone for five to ten minutes and, although they did not specifically discuss whether Koval was acting as his attorney, Soltis left the meeting with that impression. Soltis also testified that in a subsequent conservation, he said, "Bill, aren't you my attorney? Koval answered, "well, technically you should have another attorney but I'll handle it." Soltis was left with the impression that after the business transaction was closed Koval would continue to represent him and Perfection Graphics. Koval testified prior to the March 2, 1991 meeting, Sheehan faxed him a letter summarizing the transaction between himself and Soltis, and he prepared documents for the meeting. At the meeting Sheehan introduced Koval as his attorney. Koval testified he did not have a private meeting with Soltis and it was Sheehan, not Soltis, who asked him to explain the difference between a C- corporation and an S-corporation. Koval stated he did not offer any legal advice to Soltis and did not have any discussions with Soltis regarding the agreement, "other than making the comment that -5- the document should be reviewed by his attorneys and his accountants." In subsequent conversations, Koval reiterated to Soltis that he should have the transaction reviewed by his own attorneys and accountants. Koval also testified he did not tell Soltis it was a "good deal," nor did he discuss representing Perfection Graphics after the deal was done. At the close of the plaintiff's case, the defendants moved for directed verdict. After hearing arguments, the trial court granted a directed verdict in favor of the law firm and its principals on the malpractice claims, and granted a directed verdict to all defendants on the fraud claims. At the close of all the evidence, Soltis and Koval moved for a directed verdict, the motions were denied, and the only issue submitted to the jury was whether Koval was liable to Soltis on the malpractice claims. The jury returned a verdict in favor of Koval and this appeal followed. In this appeal, we discuss the assignments of error out of numerical sequence. In his first assignment of error, Soltis argues the trial court erred when it denied his motion for a directed verdict at the close of all the evidence. We disagree. The standard of review for a motion for directed verdict is de novo. A motion for directed verdict should not be granted unless it meets the standard set forth in Civ.R. 50(A)(4) which provides as follows: -6- When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. In determining a motion for a directed verdict, the court does not weigh the evidence or question the credibility of the witnesses. Sapp v. Stoney Ridge Truck Tire (1993), 86 Ohio App.3d 85, 100. "Civ.R. 50(A)(4) requires the court only to determine the existence of any evidence of probative value in support of the party's claim." Id. Where there is a conflict in the evidence as to any determinative issue, a directed verdict is improper and the case should be submitted to the jury for a determination of the facts. Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, 13-14. A cause of action for legal malpractice must prove: (1) an attorney-client relationship giving rise to a duty; (2) breach of that duty; and (3) damages proximately caused by the breach. E.g. David v. Scwharzwald, Robiner, Wolf & Rock (1992), 79 Ohio App.3d 786, 788-789. The determinative issue in this case is whether there was an attorney-client relationship between Soltis and Koval. An attorney-client relationship may be express or implied. See Fox & Associates Co., L.P.A. v. Purdon (1989), 44 Ohio St.3d 69. An attorney-client relationship is "***governed by whether the putative client reasonably believed that he had entered into a -7- confidential relationship with the attorney." Lillback v. Metro. Life Ins. Co. (1994), 94 Ohio App.3d 100 at 108-109. "The ultimate issue is whether the putative client reasonably believed that the relationship existed and that the attorney would therefore advance the interests of the putative client." Id. at 109, quoting Henry Filters, Inc. v. Peabody Barnes, Inc. (1992), 82 Ohio App.3d 255 at 261. In this case, Soltis testified he reasonably believed Koval was his attorney, after their private discussion on March 2, 1991, and Koval subsequently agreed to be his attorney in a telephone conversation. Koval, however, had a completely different recollec- tion of his contact with Soltis. He testified they never had a private meeting, he never gave Soltis legal advice, he never told Soltis that it was a good deal, and he informed Soltis on a number of occasions to have the transaction reviewed by his attorneys and accountants. If this court were to consider the testimony of Soltis alone, it would be easy to conclude Soltis reasonably believed Koval was his attorney. However, the testimony of Koval is in direct conflict with the testimony of Soltis; Koval maintained that he never gave Soltis any legal advice, never agreed to represent him, and advised him to consult his own attorney. Given the conflict in the evidence as to whether there was an attorney-client relationship between Koval and Soltis, a directed verdict in favor of Soltis would have been improper. See Ziegler, supra. Accordingly, the trial court properly denied Soltis' motion of a -8- directed verdict at the close of all evidence, and the case was properly submitted to the jury. In his third assignment of error, Soltis argues the trial court erred in granting a directed verdict to the law firm and its principals. Soltis' theory of liability was premised upon the doctrine of respondeat superior under which an employer may be held derivatively or vicariously liable for negligent acts of its employees. See Albain v. Flower Hospital (1990), 50 Ohio St.3d 251. In Albain at 254-255, the court stated: "It is a fundamental maxim of law that a person cannot be held liable, other than derivatively, for another's negligence." Thus, in order for an employer to be derivatively or vicariously liable, the employee must be negligent. In this case, the trial court properly denied Soltis' motion for directed verdict, the jury returned a defense verdict in favor of Koval on the malpractice claims, and that verdict was not challenged in this appeal as against the manifest weight of the evidence. Therefore, Koval was properly found not to be negligent. Absent negligence on the part of Koval as an employee, the law firm and its principals as the employer cannot be held liable. Accordingly, the issue of whether the trial court properly granted a directed verdict in favor of the law firm and its principals is moot. See App.R. 12(A)(1)(c). See, also, Wright v. Structo, Div. of Eljir Mfg., Inc. (1993), 88 Ohio App.3d 239. In his second assignment of error, Soltis argues the trial erred in granting Koval's motion in limine. Immediately before -9- trial, the law firm, its principals, and Koval filed a motion in limine to preclude the admission of evidence pertaining to attorney fees as damages. In the motion, Koval alleged that Soltis failed to timely disclose billing records from attorney fees he incurred in a previous action. Koval offered to disclose the information and requested a continuance to allow opposing counsel an opportunity to review the documents. The trial court granted the motion in limine and denied the motion for continuance. Under Civ.R. 37, it is within a trial court's discretion to exclude evidence as a sanction for failure to comply with discovery requests. See Toney v. Berkemer (1983), 6 Ohio St.3d 455. The key to how severe the sanction will be is whether the party seeking discovery was prejudiced by the failure of the opposing party to disclose the evidence in question. Wright at 244. The trial court's decision will not be reversed absent an abuse of discretion. Id. The term abuse of discretion "connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Tracy v. Merrell Dow Pharmaceutical, Inc. (1991), 58 Ohio St.3d 147, 152. Because Soltis failed to disclose evidence pertaining to attorney fees until immediately before trial, it was not unreasonable for the trial court to grant the motion in limine. To do otherwise would have unnecessarily delayed the proceeding and prejudiced the defendants. Accordingly, the trial court did not abuse its discretion in granting the motion in limine and enforcing it during trial. -10- Judgment affirmed. -11- It is ordered that Appellee 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 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. Exceptions. JAMES D. SWEENEY, C.J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON 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 of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -12- APPENDIX ASSIGNMENTS OF ERROR NO. 1 Where the evidence at trial of a lawyer-malpractice claim establishes that 1. at the first meeting concerning Mr. Soltis's purchase of Perfection Graphics, Mr. Koval gave Mr. Soltis legal advice and Mr. Koval explained legal issues or aspects relating to the purchase transaction, 2. after the first meeting concerning Mr. Soltis's purchase of Perfection Graphics, Mr. Koval gave Mr. Soltis legal advice or explained legal aspects of the purchase transaction to Mr. Soltis on at least two occasions and Mr. Koval met Mr. Soltis on one occasion at his law office to discuss documentation relating to the purchase transaction, and 3. at no time between the first meeting concerning Mr. Soltis's purchase of Perfection Graphics and the closing (twelve days after such first meeting) of such purchase, was Mr. Soltis advised by Mr. Koval that Mr. Koval did not represent Mr. Soltis and that Mr. Soltis should obtain independent legal counsel concerning the purchase of Perfection Graphics, the trial court erred to the prejudice of Mr. Soltis in overruling his motion for directed verdict made at the close of Mr. Koval's case. -13- ASSIGNMENT OF ERROR NO. 2 The trial court abuses its discretion to control a trial when it grants a motion in limine, to exclude evidence of the amount of damages sustained by a lawyer-malpractice plaintiff in the form of attorneys' fees in collateral litigation brought about as the result of the defendant-lawyer's breach of duty owed the plaintiff, on the grounds that such plaintiff failed to provide defendant- lawyer with copies of billing statements and invoices concerning such attorneys' fees in compliance with one of the trial court's pre-trial orders and such abuse of discretion is to the prejudice of plaintiff when plaintiff is thereby precluded from presenting to the jury evidence of substantial damages. ASSIGNMENT OF ERROR NO. 3 Where the plaintiff establishes a duty and breach of a duty owed the plaintiff by defendant-lawyer acting in the scope and course of his employment, if the trial court grants a directed .