COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70868 JACQUELINE MURPHY : Administratrix for the : ESTATE OF FRANK C. KOCHTAN : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION JOHN E. REDEKER, ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 16, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-268416 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendants-appellees: LEONARD W. YELSKY, ESQ. SCOTT C. SMITH, ESQ. YELSKY & LONARDO CO., L.P.A. WESTON, HURD, FALLON & PAISLEY 1050 Leader Building 2500 Terminal Tower Cleveland, Ohio 44114 50 Public Square Cleveland, Ohio 44113 - 2 - PER CURIAM: Appellant entered into an agreement with Pike Hassink in November of 1993, whereby Hassink would locate a business for appellant to purchase in return for a fee. On December 16, 1993 Hassink introduced appellant to appellee. Appellee was retained to assist the men in the business acquisition. According to appellee, he did not know the details of appellant and Hassink's agreement and did not know that appellant had given Hassink approximately $78,000.00 to hold in escrow in anticipation of the business acquisition until January 24, 1994. On January 26th, with a business purchase pending, appellee drafted a letter to Hassink directing him to disburse $60,000.00 of the money held in escrow to Eagle Freight, the subject of the acquisition. Appellant directed Hassink in the letter to pay himself $3,000.00 and to return the remaining $15,750.00 to appellant. Appellant contacted appellee following the January 28th closing date to report that Hassink had never distributed the money and the deal had not gone through. Appellee and appellant both attempted to persuade Hassink to return the money but he was evasive. Finally, appellant urged appellee to do more than call Hassink. Appellee explained that he could not represent one client against another and effectively removed himself from the conflict which had arisen. Appellant filed a claim against appellee, alleging legal malpractice. Appellant also alleged fraud and conversion against Hassink and one other party, which claims were resolved in - 3 - appellant's favor. Appellee filed a motion for summary judgment with an affidavit attached and several exhibits. In the brief in support of his motion, appellee argued that appellant had failed to support his allegation of malpractice on the issues of negligence and proximate cause. Appellant filed a brief in opposition to appellee's motion to which was attached an affidavit from an expert, countering appellee's arguments of no negligence and no proximate cause. The trial court granted appellee's motion for summary judgment. It is from this decision that appellant asserts this appeal. I THE TRIAL COURT ERRED IN GRANTING DEFENDANT JOHN E. REDEKER'S MOTION FOR SUMMARY JUDGMENT FOR THE REASON THAT JOHN E. REDEKER'S MOTION FOR SUMMARY JUDGMENT DID NOT CONTAIN AN AFFIDAVIT FROM AN EXPERT WITNESS INDICATING THAT JOHN E. REDEKER'S CONDUCT DID NOT CONSTITUTE LEGAL MALPRACTICE. Appellant asserts that the court's decision to grant appellee's motion for summary judgment was in error because appellee's motion did not contain an affidavit from an expert. Appellant's argument is not well taken. This Court has previously found that: It is elementary that, except in unusual circum- stances, an action in legal malpractice may not be maintained without expert testimony that supports the plaintiff's theory that his attorney failed to exercise the standard of care ordinarily exercised by attorneys in handling the matter in question. Rice v. Johnson (Aug. 26, 1993), Cuyahoga App. No. 63648, un- reported. See also, Harrell v. Crystal (1992), 81 Ohio App.3d 515. - 4 - This requirement is made of plaintiffs in legal malpractice cases because the standards for the practice of law are not always clear to a non-lawyer. This requirement further discourages the initiation of legal malpractice suits when litigants are simply dissatisfied with the results of their legal action and wish to place the blame on their attorney, deserved or not. No such requirement is made of the attorney in defense of his or her standard of practice. We find no policy reason to support the institution of a rule in legal malpractice cases which would require an attorney to attach an expert opinion on whether or not the standards of legal practice had been breached to the detriment of the plaintiff-client. No such rule was in effect when the trial court ruled on appellee's motion for summary judgment. The absence of an expert report attached to appellee's motion for summary judgment did not preclude the court from granting the motion. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING DEFENDANT JOHN E. REDEKER'S MOTION FOR SUMMARY JUDGMENT FOR THE REASON THAT GENUINE ISSUES OF FACT EXISTED AS TO MATERIAL MATTERS THAT WERE CRITICAL TO THE POSITION TAKEN BY DEFENDANT JOHN E. REDEKER. Appellant argues that a material issue of fact existed as to whether or not appellee had breached the standard of care he owed to appellant. Appellant's argument is without merit. The claim for legal malpractice arising from criminal representation as expressed in Krahn v. Kinney (1989), 43 Ohio - 5 - St.3d 103, 105 has been applied by this Court to legal represen- tation in civil matters as well. See David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A. (1992), 79 Ohio App.3d 786. In order to establish a claim for legal malpractice arising from criminal representation, a plaintiff must prove the following essential elements: (1) an attorney- client relationship giving rise to a duty; (2) a breach of that duty; and (3) damages proximately caused by the breach. Krahn v. Kinney (1989), 43 Ohio St.3d 103, 105, 538 N.E.2d 1058. * * * With regard to the third of these elements, damages proximately caused by the breach, we note that under the well-settled law, a plaintiff must establish that he would have prevailed in the original action had the attorney not been negligent. Nelson v. Taoka (1992), 82 Ohio App.3d 101, 106, 611 N.E.2d 462; Howard v. Sweeney (1985), 27 Ohio App.3d 41, 43, 499 N.E.2d 383; Rinehart v. Maiorano (1991), 76 Ohio App.3d 413, 419, 602 N.E.2d 340. Nelson v. Klima (Sept. 15, 1994), Cuyahoga App. No. 65421, unreported. The standard of care in this case is not a material issue of fact as asserted by appellant. The standard is an issue of law, to be applied to the facts. In this case the facts are not in dispute. Whether or not appellee knew that appellant had deposited money with Hassink is raised as a possible factual conflict in the record. However, appellant's claim fails in the face of appellee's motion for summary judgment because appellant has failed to provide any support for the requisite element of proximate cause. Appellant had the burden to show that appellee's negligence in advising him without knowing the details of appellant's agreement with Hassink, as asserted by appellant's expert in his affidavit, - 6 - resulted in appellant's damages. Although appellant's expert affidavit contains the conclusion that appellant's loss of the funds held in escrow with Hassink was proximately caused by appellee's negligence, this conclusion is not supported by a factual basis. Applying the test in David to the present facts, we can not find that appellant would not have lost the money to Hassink's conversion of the funds if appellee had only known of the particulars of the agreement between appellant and Hassink before appellee had agreed to represent appellant in acquiring the business. Even if we were to assume that appellee's lack of knowledge of the agreement's specifics was negligent, we can not find that appellant would not have suffered a loss but for such negligence. Although the conclusory statement in appellant's expert's affidavit constitutes "some evidence of proximate cause, it does not rise to the requisite level of sufficiency necessary to withstand a motion for summary judgment." Nelson v. Taoka (1992), 82 Ohio App.3d 101, 107. Appellant's second assignment of error is overruled. The trial court's decision to grant appellee's motion for summary judgment is affirmed. - 7 - It is ordered that appellees recover of appellant its 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. _________________________________ JAMES M. PORTER, PRESIDING JUDGE _________________________________ ANN DYKE, JUDGE _________________________________ JOSEPH J. NAHRA, 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 .