COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70527 : JOHN R. MASTER, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION PAUL CHALKO, ET AL. : : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-272373 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: HAROLD POLLOCK, ESQ. TIMOTHY T. BRICK, ESQ. JOHN W. BECKER, ESQ. TIMOTHY J. FITZGERALD, ESQ. HAROLD POLLOCK CO., L.P.A. GALLAGHER, SHARP, FULTON 1707 Terminal Tower & NORMAN Cleveland, Ohio 44113 7th Floor, Bulkley Bldg. 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - KARPINSKI, J.: This appeal is the most recent in an acrimonious series of litigation involving an elderly couple of physicians, now deceased, who had accumulated assets but had no children. The litigation has involved charges and countercharges by relatives and non-relatives that each other greedily sought to financially enrich themselves at the expense of the couple. The present appeal arises from a legal malpractice claim against an attorney who represented one of the relatives and also previously performed services for the physicians. Prior to their deaths, Dr. John Master and his wife Dr. Anne Master were retired and lived in Cleveland on Brookside Drive. Attorney Paul Chalko performed various legal services for them throughout the years. Dr. Anne died on May 10, 1991, and was survived by Dr. John and a number of relatives including her sister, Lillian Autuori, and niece, Cleveland police sergeant Sue Sazima. Autuori possessed bonds that were owned by the Masters after Dr. Anne died. Approximately two years after Dr. Anne's death, John Nix, the boyfriend of a woman who cleaned the Masters' home, met Dr. John and moved into the Brookside Drive residence with him. Dr. John subsequently transferred to a partnership (involving Dr. John, Nix, and the cleaning woman) several undeveloped real estate parcels adjacent to the residence. The partnership proposed to develop the land despite opposition of the neighbors. - 3 - On December 30, 1993, Dr. John and Nix, represented by attorney Harold Pollock, filed an action against certain neighbors in the common pleas court. In their complaint, they alleged the neighbors defamed them by stating Dr. John was mentally incompetent and Nix was a con man, invaded their privacy by causing the Cleveland police fraud unit and probate court to investigate them, and intentionally inflicted emotional distress. This court affirmed summary judgment against them on appeal. John Master et al. v. Jack Sword et al. (Nov. 9, 1995), Cuyahoga App. No. 68297, unreported. The common pleas court action was followed by a series of filings in the probate court. Sazima, represented by Chalko, filed an application for appointment as guardian for her uncle Dr. John on January 10, 1994. Approximately two months thereafter on March 9, 1994, Dr. John, represented by attorney Richard Klein, filed an application in the probate court to appoint Nix as conservator. Upon filing this application, Nix and Dr. John learned for the first time of a pending guardianship application. Sazima withdrew the guardianship application when the matter proceeded to a hearing three weeks later. Chalko left the hearing after only five minutes had elapsed, and Nix was thereafter appointed conservator. Dr. John and Nix filed the case at bar against Chalko and 1 Sazima approximately three months thereafter on June 15, 1994. 1 Dr. John, Nix and others also filed another action against a Cleveland councilman, the same neighbors, his niece (continued...) - 4 - This action raised claims against Chalko for legal malpractice and against Sazima for interference with Dr. John's attorney- client relationship with Chalko. The basis for both claims was that because Chalko was Dr. John's attorney he should not have represented Sazima when she sought to be appointed guardian for Dr. John. Plaintiffs alleged that Chalko breached client confidences and his duty of loyalty to Dr. John by representing Sazima and that Sazima interfered with their attorney-client relationship by retaining Chalko. The sole claim of damages at trial was that this breach caused Dr. John to file for a conservatorship and thus to incur $2,666.28 in attorney fees. Plaintiffs also sought $1,000,000 in punitive damages. Both Sazima and Chalko moved for directed verdicts during trial. The trial court granted Sazima's motion for directed verdict and submitted the malpractice claim against Chalko to the jury. The jury returned a verdict against Chalko in the amount of $300 compensatory damages and $30,000 punitive damages. The trial court entered judgment on the jury verdict and denied various post-trial motions. Chalko's first assignment of error challenges the sufficiency of the evidence to support the jury's finding of proximate cause as follows: 1 (...continued) Sazima, Sazima's husband, and various insurance companies. This court affirmed judgment for the defendants in John Master et al. v. Patrick O'Malley et al. (Apr. 4, 1996), Cuyahoga App. No. 68895, unreported. - 5 - THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OR ENTER JUDGMENT NOTWITHSTANDING THE VERDICT ON THE ISSUE OF PROXIMATE CAUSE. This assignment is well taken. Chalko argues the trial court should have entered judgment in his favor as a matter of law because there was no evidence to establish proximate cause between Chalko's negligence and the claimed damage of attorney fees incurred in the conservatorship action. Chalko argues that Dr. John and Nix did not file the conservatorship application because of any breach of duty by Chalko. Dr. John and Nix did not know the guardianship application had been filed, and there was no evidence that Chalko was involved in the activity which prompted them to file the conservatorship application. It is well established that the elements of an actionable legal malpractice claim are (1) an attorney-client relationship giving rise to duty, (2) a breach of that duty, and (3) damages proximately caused by that breach. State ex rel. Sellers v. Gerken (1995), 72 Ohio St. 3d 115, 117. Malpractice actions against attorneys are distinguished from claims involving violations of professional ethical obligations precisely by the requirement in malpractice actions that damages proximately result from the breach. Violations of ethical obligations which do not result in any injury, on the other hand, are the proper subject of attorney disciplinary proceedings. Northwestern Life Ins. Co. v. Rogers (1989), 61 Ohio App.3d 506. - 6 - Rogers involved a malpractice claim by a couple who purchased real property. The couple was represented during the transaction by an attorney who was also a principal of the title insurance company involved in the transaction. The trial court granted summary judgment for the attorney on the malpractice claim because the purchasers did not present any evidence to show that the attorney's alleged conflict of interest from this dual representation caused any injury to them or proximately caused any damages. As in Rogers, the record in this case contains no evidence that Chalko's breach of duty caused any injury to Dr. John or that the claimed damages were the proximate result of any misconduct by Chalko. Accord Platinum Financial Services, Ltd. v. Gurney (Oct. 31, 1996), Cuyahoga App. No. 69481, unreported at pp. 24-27. The record shows that Dr. John and Nix filed the conservatorship application on March 9, 1994. They claimed that Chalko's representation of Sazima in the aborted guardianship proceeding caused them to file the conservatorship application and incur $2,666.28 in attorney fees. However, the evidence at trial was undisputed that at the time they filed the conservatorship application they did not know the guardianship application had been filed. Plaintiffs nevertheless sought to show that Chalko was involved in some unexplained manner "behind the scenes" in various activity in December 1993 before Chalko filed the guardianship application which prompted them to file for a - 7 - conservatorship. By December 1993, questions had arisen concerning the competency of Dr. John, his relationship with Nix, and their partnership to develop the property adjacent to their residence. The Cleveland police fraud unit investigated the matter in December 1993, and a probate court investigator spoke with Dr. John on December 15, 1993. Plaintiffs have attributed the activity which gave rise to these questions to different persons: neighbors, a councilman, Sazima, and Chalko, at various times throughout this litigation. In none of the actions, however, have plaintiffs submitted any proof. In their complaint filed on December 30, 1993, Dr. John and Nix first blamed neighbors for raising questions concerning Dr. John's competency. They lost that case for failure of proof. In this third case they argued at trial that Chalko and Sazima engaged in unspecified activity "behind the scenes" in December 1993, which prompted the filing of the conservatorship application. Regarding this period of time, the only evidence of record in this case is that Sazima contacted Chalko on December 30, 1993, to make an appointment and that Chalko commenced representing Sazima on January 3, 1994, following the appointment. Nix testified at trial that he first spoke with Dr. John about the conservatorship in February of 1994, and that this discussion was "caused" by: A lot of activity on the street. Various police officers coming into the house and the probate court officials. - 8 - (Tr. 864-865.) Plaintiffs sought to attribute these investigations to Chalko. However, Police Lieutenant Petrencsik testified that the fraud unit investigation was initiated at the request of a Cleveland councilman. Probate court investigator Gorman testified he interviewed Dr. John after the court received a call from "someone in the community." Chalko denied any involvement. It would be pure speculation to infer from this evidence that Chalko and Sazima had some kind of a relationship "behind the scenes" prior to the investigations in December 1993, or that Chalko took any action, in or out of an attorney-client relationship, with Sazima or anyone else, to raise questions about Dr. John or Nix. Although there was some evidence from which the jury could infer that Sazima was raising questions on her own concerning Dr. John's capacity in December 1993, there was absolutely no evidence that Chalko was involved at that 2 time. An attorney is not liable, as a matter of law, for the acts of a client which occurred prior to the attorney's representation of that client. The record in this case shows several possible causes for filing the conservatorship action, including questions raised by neighbors, Sazima and/or others. Under the circumstances, even when viewed in the light most favorable to plaintiffs, the 2 It is undisputed that Sazima contacted Chalko to establish the January 3, 1993, appointment. Plaintiffs have not appealed from the directed verdict for Sazima on their claim that she interfered with the attorney-client relationship. - 9 - evidence is insufficient to show that Chalko's alleged breach of client confidences or duty of loyalty to Dr. John caused any injury or proximately caused any damages. Accordingly, Chalko's first assignment of error is well taken. Chalko's remaining assignments or error are moot in light of our disposition of this first assignment of error, and we decline 3 to address them pursuant to App.R. 12(A)(1)(c). It is well established that punitive damages may not be awarded absent an award of actual damages. Bishop v. Grdina (1985), 20 Ohio St.3d 26, 27, citing Richard v. Hunter (1949), 151 Ohio St.3d 185 syllabus paragraph one. Because plaintiffs failed to prove any actual compensatory damages, the award of punitive damages is reversed accordingly. The judgment of the trial court is hereby reversed. Judgment accordingly. 3 Chalko's remaining six assignments of error are set forth in the Appendix. - 10 - This cause is reversed. It is, therefore, ordered that appellants recover of appellee(s) their costs herein taxed. It is ordered that a special mandate be sent to said 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. BLACKMON, P.J., and ABOOD, J.*, CONCUR. DIANE KARPINSKI JUDGE *Judge Charles D. Abood, Retired, of the Sixth District Court of Appeals, sitting by assignment. 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). - 11 - Appendix THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OR ENTER JUDGMENT NOTWITHSTANDING THE VERDICT ON THE ISSUE OF PUNITIVE DAMAGES. THE TRIAL COURT ERRED IN FAILING TO ENTER JUDGMENT NOTWITHSTANDING THE VERDICT ON THE ISSUE OF PUNITIVE DAMAGES BECAUSE THERE WERE IN FACT SIX JURORS WHO OPPOSED AN AWARD OF PUNITIVE DAMAGES. THE TRIAL COURT ERRED IN ALLOWING IMPROPER EXPERT TESTIMONY FROM PLAINTIFF'S EXPERT. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY. THE TRIAL COURT ERRED IN ALLOWING EXCESSIVE TESTIMONY ON COLLATERAL ISSUES. .