COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70397 : E.B.P., INC. DBA EPIC STEEL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : COZZA & STEUER, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT APRIL 3, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 284645 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: CAROL B. ADELSTEIN, ESQ. ROBERT C. WENTZ, ESQ. 301 Cort Shoe Building JOHN T. PRICE, ESQ. 1265 W. 6th Street Cozza & Steuer Cleveland, Ohio 44113 1420 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - PATRICIA ANN BLACKMON, P.J.: Defendant-appellant E.B.P., Inc. ("EBP") appeals a decision from the trial court granting summary judgment in favor of plaintiffs-appellees Cozza & Steuer et al. ("C&S") on E.B.P.'s legal malpractice claim. E.B.P. assigns the following four errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BY DENYING ITS MOTION TO AMEND ITS RESPONSE TO THE FIRST SET OF ADMISSIONS. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BY DETERMINING ISSUES OF CREDIBILITY IN DECIDING ON THE MERITS OF THE APPELLEES' MOTION FOR SUMMARY JUDGMENT. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BECAUSE THE APPELLANTS' CLAIMS OF LEGAL MALPRACTICE WERE NOT BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS BECAUSE THE REVERSAL OF THE TRIAL COURT'S DECISION BY THIS COURT DOES NOT ABSOLVE THE APPELLEES OF LEGAL MALPRACTICE. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. E.B.P. Inc. dba Epic Steel hired the law firm of Cozza and Steuer to represent the company in the defense of an action filed by one of its former employees, Catherine Czubaj. Czubaj named as defendants Epic Steel, Neff Fremont (Founder/President of Epic Steel), and Neff's son, Gary Fremont (Vice President/Corporate Treasurer of Epic Steel). Gary Fremont was Czubaj's immediate supervisor. - 3 - Czubaj's action alleged age discrimination and intentional infliction of emotional distress. The intentional tort claim named only Epic Steel and Gary Fremont as culpable parties. [This according to the court of appeals opinion at p. 9] The jury denied Czubaj's age discrimination claim but found in favor of Czubaj on the intentional infliction of emotional distress claim. Czubaj was awarded damages of $31,275.00 against Gary Fremont, her direct supervisor at Epic Steel, and $177,225.00 against Epic Steel. On March 31, 1993, C&S filed a motion for judgment notwith- standing the verdict in the Czubaj case. The trial court denied the motion and reduced the jury verdict to judgment on May 3, 1993. On May 12, 1993, a notice of appeal was filed in the Czubaj case by David Horvath, an associate at Cozza & Steuer. On July 6, 1993, Kevin Young and Josh Friedman of Benesch Friedlander, Coplan & Arnoff (BFCA) filed a notice of appearance as co-counsel for Epic Steel and Gary Fremont. On March 10, 1995, while the appeal was pending, Epic Steel entered into a settlement agreement with Czubaj. This court reversed the trial court's decision in the Czubaj case. Czubaj v. E.B.P., Inc. dba Epic Steel, et al. (October 12, 1995), Cuyahoga App. No. 65527, unreported. On February 10, 1995, E.B.P. filed the instant legal malpractice action against Cozza & Steuer, and its member attorneys, Arlene Steuer, Daniel Horvath, and John Price. The complaint alleged that "defendants individually, jointly, and/or severally negligently failed to exercise due care in their - 4 - representation of E.B.P., Inc. by inter alia negligently failing to depose plaintiff's experts prior to trial, prepare proper jury instructions and interrogatories, object to improper testimony, jury instructions and interrogatories, secure expert witnesses on behalf of E.B.P., Inc. and raise appropriate objections to the verdict in post verdict motions. E.B.P. alleged that it had been damaged in the amount of $500,000 (the value of the judgment obtained against E.B.P. by Czubaj), the cost and expense of the bankruptcy filing, punitive damages, attorney fees, and costs. Cozza & Steuer answered the complaint and alleged that the complaint failed to state a claim upon which relief could be granted. They also asserted the lack of proximate cause, that the claim was barred by the statute of limitations, and by laches. On March 10, 1995, Cozza & Steuer filed notice of service of its First Request for Admissions upon E.B.P., Inc. E.B.P. filed notice of service of its answers to the First Request for Admis- sions on May 11, 1995. On September 15, 1995, Cozza & Steuer filed its motion for summary judgment, alleging that E.B.P.'s claim was barred by the applicable statute of limitations [R.C. 2305.11(A)]. On October 24, 1995, Cozza & Steuer supplemented their motion for summary judgment by asking for a dismissal of the case on its merits in light of the court of appeals' reversal of the judgment in favor of Czubaj. Cozza & Steuer argued that since Epic Steel's legal position was vindicated, the trial court could not find that Cozza & Steuer committed legal malpractice. - 5 - On November 24, 1995, Epic Steel moved for permission to amend its responses to Cozza & Steuer's requests for admissions. Epic Steel asserted that its response to Request for Admission No. 16 was incorrect. Request for Admission No. 16 read as follows: 16. No attorney-client relationship existed between and among E.B.P. Inc., DBA Epic Steel, and Cozza & Steuer, Arlene B. Steuer, David J. Horvath also referred to as Daniel J. Horvath and/or John T. Price after February 3, 1994. ANSWER: Admit. Epic Steel asserted that its attorney, Rubin Guttman, unilaterally prepared the responses to the requests for admissions without submitting them to Epic Steel for review. Epic Steel asserted the attorney-client relationship between Epic and Cozza & Steuer lasted until December 1994. In its brief in opposition to the motion for summary judgment, Cozza & Steuer alleged the "motion to withdraw" filed by Cozza & Steuer on March 9, 1994 confirms the existence of an attorney-client relationship between the parties. The trial court granted E.B.P.'s motion for permission to amend its responses to Cozza & Steuer's requests for admissions on December 8, 1995. Cozza & Steuer filed their motion in opposition to E.B.P.'s motion to amend. On December 21, 1995, E.B.P. filed notice of service of its amended and supplemental response to Cozza & Steuer's requests for admissions. However, the trial court denied the motion on December 22, 1995. On February 20, 1996, the trial court granted Cozza & Steuer's motion for summary judgment. We uphold the granting of summary judgment on the ground that EBP failed to prove damages. T o - 6 - establish its legal malpractice claim, EBP had to show that there was an attorney-client relationship between EBP & C&S which gave rise to a duty, that C&S breached that duty, and that EBP suffered damages proximately caused by that breach. See Estate of Callahan v. Allen (1994), 97 Ohio App.3d 749, 752; Treft v. Leatherman (1991), 74 Ohio App.3d 655. C&S argued that EBP failed to establish that EBP suffered damages proximately caused by C&S's representation. To prove damages, EBP had to show that it would have prevailed in the underlying action if not for the attorney's negligence. Rinehart v. Maiorano (1991), 76 Ohio App.3d 413. Without such a showing, the legal malpractice action cannot be maintained. On a motion for summary judgment, the non-movant's failure to make a showing sufficient to establish the existence of an element essential to his case and on which he will bear the burden of proof at trial must result in the entry of summary judgment in favor of the movant. Morris v. Children's Hospital Medical Center (1991), 73 Ohio App.3d 437. A complete failure of proof concerning an essential element of the non-movant's case necessarily renders all other facts immaterial. Id. We conclude EBP failed to establish that it suffered damages proximately caused by C&S's representation. It is undisputed that, while the appeal was pending, EBP entered into a settlement with Czubaj. In opposition to the motion for summary judgment, EBP argued they were forced to settle the case when Czubaj filed for execution of the judgment. According to EBP, financial - 7 - difficulties prohibited them from obtaining a supersedeas bond to stay the judgment pending appeal and they settled the case in order to avoid impending liquidation and the total loss of the business. They argue that, but for C&S's negligence in preparing and submitting an improper verdict form, the jury would never have been permitted to award the $177,225.00 against Epic Steel but would have been limited under the respondeat superior theory to the amount of damages awarded against Gary Fremont. However, a review of this court's opinion in Catherine Czubaj v. E.B.P. Inc., dba Epic Steel et al. (October 12, 1995), Cuyahoga App. No. 65517, unreported, reveals that Czubaj alleged Epic Steel was severally liable on her claim for intentional infliction of emotional distress because Gary Fremont committed the tort as a supervisor and was carrying out corporate policy. She also argued that Neff Fremont insisted that she prepare "illegal" tax returns and workers' compensation reports. Although this court ultimately decided that the verdicts against Gary Fremont and Epic Steel for intentional infliction of emotional distress were against the manifest weight of the evidence, we conclude Czubaj presented enough evidence in support of her claim against Epic Steel to allow the claim to go to the jury. Accordingly, we find no merit to EBP's allegation that the verdict form "created" a cause of action against Epic Steel. More significantly, the appellate court's reversal of the jury verdicts as against the manifest weight of the evidence reveals that the jury erred in finding Epic Steel liable for intentional - 8 - infliction of emotional distress. The appellate court stated it did not find "competent, credible evidence in support of the elements necessary for a claim of intentional infliction of emotional distress." Its reversal of the jury verdict demonstrated its conclusion that the jury erred in finding Epic Steel liable. Were it not for E.B.P.'s decision to settle the case before the appeal had been decided, EBP would not have had to make any payment to Czubaj. We do not suggest a settlement of the underlying action always operates as a waiver of a client's malpractice claim against his attorney. A settlement entered into as a result of an attorney's exercise of reasonable judgment in handling a case bars malpractice claim against the attorney. Depugh v. Sladoje (June 14, 1996), Miami App. No. 95 CA 14, unreported. However, a legal malpractice claim is not barred when the attorney has acted unreasonably or has committed malpractice per se. Id. "[W]hen an attorney has made an obvious error which seriously compromises his client's claim, and a settlement is on the table ***, the client should not be forced to forego the settlement offer as a condition of pursuing the attorney for malpractice." Id. See, also, Monastra v. DiAmore (March 21, 1996), Cuyahoga App. No. 69378, unreported (where attorney's defective representation diminishes client's ability to reach a successful settlement or to succeed at trial, the settlement of the action should not imply a waiver of client's right to file legal malpractice action against attorney). In this case, C&S did not make any error which compromised - 9 - EBP's claim. The appellate court's reversal of the verdict as against the manifest weight of the evidence, its entry of judgment in favor of EBP, and its finding that the trial court erred in not granting EBP's motion for judgment notwithstanding the verdict demonstrate that it was the jury's error in weighing the evidence rather than any negligence by C&S that lead to the erroneous verdict. Consequently, the losses sustained by EBP are not attributable to any error by C&S. Because we conclude the trial court properly granted summary judgment, we affirm this matter. All other issues are moot. Judgment affirmed. - 10 - 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 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. NAHRA, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .