COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72023 JOHN H. NIX, SUCCESSOR ) ADMINISTRATOR OF THE ESTATE ) OF ANNE R. MASTER, ET AL. ) ) Plaintiff-Appellant ) JOURNAL ENTRY ) -vs- ) AND ) PAUL CHALKO ) OPINION ) Defendant-Appellee ) Date of Announcement of Decision: FEBRUARY 19, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 300271 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: HAROLD POLLOCK, ESQ. TIMOTHY T. BRICK, ESQ. JOHN W. BECKER, ESQ. Gallagher, Sharp, Fulton Harold Pollock Co., L.P.A. & Norman 1707 Terminal Tower Bulkley Building, Seventh Fl. Cleveland, Ohio 44113 1501 Euclid Avenue Cleveland, Ohio 44115 -2- JAMES M. PORTER, P.J.: Plaintiff-appellant John H. Nix, Administrator of the Estate of John R. Master, Deceased, appeals from the summary judgment entered in favor of defendant-appellee Paul Chalko, Esq. arising out of claims of legal malpractice. Plaintiff claims the trial court erred in holding that the defendant owed no duty to the plaintiff and that the claims were barred by the one year statute of limitations and the doctrine of res judicata. For the reasons hereinafter stated, we affirm. This case arises out of a long standing relationship between Drs. John and Anne Master and their attorney, defendant Paul Chalko. The essential claim of Dr. John Master's administrator, John Nix, is that Chalko negligently failed to follow through on the recovery of certain bearer bonds from Dr. Anne Master's sister. The long and acrimonious history of litigation between these parties is described in some detail in a previous decision of this Court in Jo hn R. Master, et al. v. Paul Chalko, et al. (June 5, 1997), Cuyahoga App. No. 70527, unreported ( Chalko I ) to which reference is made. The history of the case relevant to this appeal is portrayed below. Dr. John Master and Dr. Anne Master were married and lived together in their Brookside Drive residence in Cleveland for approximatelyforty years until Anne's death on May 10, 1991. The Masters had no children and Dr. John, who was 80 years of age, continued to live in the Brookside Drive residence by himself after Dr. Anne's death. Plaintiff John Nix was a financial advisor who -3- was introduced to Dr. John in the spring of 1993 by his girlfriend who did housework for the Masters. Within months, Mr. Nix and his girlfriend had moved into the Brookside house; obtained a power of attorney from Dr. John to handle his affairs; became his sole beneficiaries under a new will; and entered into a partnership with Dr. John to which the doctor transferred title to all of his property, in which they had equal shares. (Dr. John Depo. 16-33). Defendant Paul Chalko represented the Masters for a number of years, primarily with respect to the preparation of their tax returns. As noted, the focus of plaintiff's claim was that defendant Chalko failed to take any action to recover valuable bearer bonds, which belonged to his clients, the Masters, and were stolen by Dr. Anne's sister, Lillian Parker Autoris, and her husband. (Aplt's Brf. at 2). The Masters kept the bearer bonds in a safe deposit box in Florida near a home they owned there. In early 1991, the Masters asked Mrs. Autuori (Anne's sister) and her husband to go to Florida, prepare their home for sale and pick up the bonds. In order to access the Florida safe deposit box, the Autuoris needed a power of attorney. At the Masters' request, Mr. Chalko prepared the necessary power of attorney for the Autuoris, which was executed by the Masters. The Autuoris did, in fact, retrieve the bearer bonds from the Florida safe deposit box, but did not immediately return them to the Masters. (Dr. John Depo. 71-74). According to Chalko, shortly before she died, Dr. Anne asked Chalko to write Lillian Autuori a letter inquiring about the bonds. -4- Plaintiff contends that the ensuing correspondence established defendant's duty as an attorney to take action to retrieve the bonds. Mr. Chalko wrote a letter of inquiry to Lillian (Parker) Autuori on April 25, 1991 which stated in full text as follows: Dear Mrs. Parker: On Monday Dr. Anne Master called me and said she wished to see me. I went to her home. I found her very distraught. She claims that you have taken possession of in excess of $100,000.00 in bearer bonds from their Florida safe deposit box and that you refuse to deliver them to her. She tells me that you are holding the bonds because you claim that she is indebted to you. When I met you at Anne's house earlier this year you did indicate that there were monies due you from Anne but you did not indicate the amount or the basis of the debt. I would suggest at this time that you write to me indicating your intention with regard to the Master bonds and the basis for the claim you are making. With this information I will meet with Anne and John again and hopefully this misunderstanding can be resolved. Mrs. Autouri responded in a letter dated May 2, 1991 denying any wrongdoing and stating in full as follows: Dear Mr. Chalko: Received your letter and acknowledge it - I cannot believe what I read - I am not a Thief - Robber or Scoundrel as I read between the lines of this letter you wrote. I am doing with the bonds and coupons as Ann - John and I discussed. The coupons are being checked and the bonds which are soon to be due or due will get back to Ann and John. I love Anne and John very much and would never hurt them in any way. I am sending you a letter as soon as all coupons etc. are cleared - by the issuing banks - and for years my -5- devotion to them has been right. Yes, they owe me money and yet only once I asked about it. I too have lost a lot of interest. You'll hear from me. Thanks. Upon receipt of this letter, Mr. Chalko forwarded Lillian Autuori's response to the Masters in a letter dated May 6, 1991 which states in its entirety: I am enclosing at this time a copy of my letter to Anne's sister, Lillian, and a reply that came today. While her letter is not absolutely clear, I believe she is saying that she is going to turn over the bond proceeds to you when they are available. I will await your further instructions. Mr. Chalko testified that he received no further instructions from the Masters with respect to the bonds. After Dr. Anne Master died a few days later, the bearer bonds apparently remained in the possession of the Autuoris who had returned to New York. Mr. Nix became aware of the bonds while assisting Dr. Master with his financial affairs in 1993 and he took steps necessary to recover the bonds, including initiating an FBI investigation. Nix claims that Lillian Autuori stole the Masters' bearer bonds, apparently relying on hearsay allegations contained in documents obtained from the FBI. The FBI's efforts resulted in the recovery of $117,000 from the Autuoris. The Autuoris, who were in their eighties, were never indicted or prosecuted in any way with respect to the bearer bonds. Mr. Chalko was never in possession of or saw the bonds at issue. Chalko claimed that if the bonds were, in fact, stolen, he was not -6- involved and did not participate in any alleged cover-ups as alleged by plaintiff Nix. Based on Mr. Chalko's April 25, 1991 letter, plaintiff Nix claimed that Chalko had taken on a continuing duty to initiate legal proceedings against the Autuoris to recover the bonds. Chalko testified that neither John or Anne Master ever asked me to take any steps to recover the bonds after he sent Mrs. Autuori's reply to them. In fact, he claimed Dr. Anne specifically told him to forget about the matter while on her deathbed. (Chalko Aff. q4). Similarly, Dr. John never instructed Mr. Chalko to do anything with respect to the bonds as his deposition indicated. Q. *** You never asked Mr. Chalko to initiate any legal proceedings to recover the bonds from Lillian, did you? * * * A. No, I don't think so. Q. Okay. And you never asked him to call the police or the FBI or anyone else about getting the bonds back? A. No. Q. All right. Did you ever tell Chalko that you thought Lillian Autuori stole the bonds? A. I don't know. (Dr. John Depo. at 84). Based on this evidence, the trial court concluded that, as a matter of law, Mr. Chalko had no duty to recover the bonds. The uncontroverted evidence indicates that only days before the death of Anne Master, the defendant forwarded correspondence for Lillian Autuori to Anne Master regarding the bonds, which included a cover letter from the -7- defendants stating that I await your further instructions. (Defendant Motion Exhibit E ). No further instructions were ever forthcoming. There is no evidence of a retainer agreement of any kind between the defendant and either of the Masters to initiate proceedings to recover the bonds. John Master expressly testified in Case No. 272373 that he never requested that the defendant attempt to recoup the bonds, either on his behalf, or on the behalf of the estate of Anne Master. The affidavit of defendant Chalko (Defendant's Motion A ) states that neither John or Anne Master ever asked me to take any steps to recover the bonds. There can be no breach of duty where no duty ever existed. (Sum. Jmt. Order Jan. 21, 1997 at 6). Plaintiff Nix, as Administrator of the Estate of John Masters, Deceased, first alleged the identical malpractice claim at issue here (Mr. Chalko breached a duty to recover the bonds) in Common Pleas Case No. 272373, filed June 15, 1994. However, in an order issued during final pretrial in open court dated November 13 1995, the trial court in Case No. 272373 addressed the matter of the bonds. The Order specifically states that there are no substantive claims permitted with respect to these bonds. According to the representations in open court, the bonds were the property of the late Mrs. Master. These are said to be bearer bonds ***. Plaintiff now claims that this interlocutory order was erroneous and that the trial court was mistaken with respect to the ownership of the bonds. According to plaintiff, the trial court's erroneous ruling effectively operated as a dismissal without prejudice entitling him to refile under the savings statute. -8- The jury in Case No. 272373 returned a verdict in favor of plaintiff in the amount of $30,300. After post-trial motions were denied, Mr. Chalko filed an appeal in this Court which was assigned Case No. 70527 (Chalko I). This Court reversed the judgment for plaintiff and entered judgment for Chalko. However, plaintiff failed to file a cross-appeal challenging the allegedly erroneous November 13, 1995 order of the trial court excluding the substantive bond claims from Case No. 272373. Instead, plaintiff chose to file this new lawsuit on December 18, 1995, reasserting the same claim with respect to the bonds. Plaintiff concedes that this action was filed after the expiration of the one year limitations period, but argues that his claim with respect to the bonds was preserved by the savings statute, R.C. 2305.19. However, the trial court herein held that the savings statute did not apply in this case, and that plaintiff's proper remedy was to cross-appeal the allegedly erroneous order issued in Case No. 272373. The trial court also concluded that the doctrine of res judicata prevents this Court from revisiting the issue of the bearer bonds at this time. (Sum. Jmt. Order at 8). As previously noted, the trial court also held that summary judgment for Chalko was proper because plaintiff failed to offer evidence that established defendant's duty to pursue the Autuoris for the bonds. Although plaintiff does not set forth specific assignments of error, we will treat his Law and Argument topics as same and address these together where appropriate to our discussion. -9- I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED UPON THE STATUTE OF LIMITATIONS, O.R.C. 2305.11 BY REFUSING TO APPLY THE SAVINGS STATUTE, O.R.C. 2305.19, TO THE WITHIN CASE. II. THE TRIAL COURT ERRED IN FINDING THAT THE CLAIM FOR THE RECOVERY OF CERTAIN BONDS WAS DISMISSED WITH PREJUDICE BY THE TRIAL COURT IN CUYAHOGA COUNTY COURT OF COMMON PLEAS CASE NO. 272373. III. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED UPON THE APPLICATION OF THE DOCTRINE OF RES JUDICATA. The thrust of these arguments is that summary judgment was improperly granted on statute of limitations and res judicata grounds because the savings statute preserved the plaintiff's claims. Under Civ.R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. -10- However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio -11- App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Plaintiff's complaint contained four separate counts or causes of action. Counts I, II and III asserted claims on behalf of the Estate of Anne Master, Deceased. Plaintiff does not appeal the trial court's summary judgment dismissing those claims. In Count IV of his complaint, on behalf of Dr. John's estate, plaintiff alleged that Mr. Chalko breached a duty to recover bearer bonds allegedly stolen by Dr. Anne's sister. The trial court found that the exact same claim was previously raised in Case No. 272373 and was barred by res judicata and the statute of limitations. R.C. 2305.11(A) sets forth a one year statute of limitations for legal malpractice claims. It is not disputed that the one year limitation period expired before plaintiff filed this suit on December 18, 1995. Plaintiff argues that the claim asserted on behalf of Dr. John's estate with respect to the bearer bonds was preserved by the savings statute, R.C. 2305.19. We find this claim without merit. Plaintiff's savings statute argument is premised on the November 13, 1995 order of the trial court in Case No. 272373. In that order, the trial court held that [t]here are no substantive claims permitted with respect to these bonds due to the fact that the bonds were the property of the late Mrs. Master. Plaintiff contends that the November 13, 1995 order issued in Case No. 272373 was erroneous and was based upon a misunderstanding of ownership with respect to the bonds. Instead, plaintiff claims that the -12- November 13, 1995 order effectively operated as a dismissal without prejudice, as the perceived lack of standing caused the court to believe that it did not have jurisdiction over the claim. (Aplt's Brf. at 13). The record does not support plaintiff's claim that the trial court in Case No. 272373 dismissed the substantive claims regarding the bonds without prejudice. In the conclusion of the Order, the court states that to the extent that any motions are not addressed in this order same are overruled without prejudice, to be considered during the course of trial. The matter of the bonds was expressly addressed in the November 13, 1995 order, and therefore, the without prejudice language was not applicable to the claim involving the bonds. R.C. 2305.19, the savings statute, states in pertinent part: In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date. *** Plaintiff misinterprets the application of the savings statute with respect to the November 13, 1995 order. Plaintiff's argument that the bond claims asserted against Mr. Chalko in Case No. 272373 failed otherwise than upon the merits is without merit. As we perceive the trial court's November 13, 1995 order, it is a dismissal for failure to state a claim under Civ.R. 12(B)(6) and operates as an adjudication on the merits pursuant to Civ.R. -13- 41(B)(3). See Cairns v. Ohio Sav. Bank (1996), 109 Ohio App.3d 644, 650. It should also be noted that Case No. 272373 was tried and resulted in a jury verdict in favor of plaintiff which was ultimately reversed in this Court of Appeals in Chalko I. Plaintiff's interpretation of the relevance of the savings statute to an action that proceeds to a judgment is erroneous. Case No. 272373 did proceed to a trial upon the merits of plaintiff's legal malpractice claims. Although the November 13, 1995 order precluded plaintiff from pursuing a branch of those claims with respect to the bonds, it did not constitute a failure otherwise than upon the merits. In any event, we concur with the judgment of the trial court in this case which concluded that: The estate of John Master is a plaintiff in this lawsuit only as to Count IV of the Complaint, which alleges a breach of duty to seek recovery of the bonds on the part of defendant Chalko. This exact claim was dismissed by Judge Curran in Case No. 272373. The plaintiff's proper remedy was to appeal Judge Curran's dismissal, rather than refiling the claim as if no adverse action had ever been taken. Thus, in addition to the plaintiff's failure to comply with the statute of limitations, the doctrine of res judicata prevents this Court from revisiting the issue of bearer bonds at this time. (Sum. Jmt. Order at 8). The doctrine of res judicata involves both claim preclusion (estoppel by judgment) and issue preclusion (collateral estoppel). Whitehead v. General Telegraph Co. (1969), 20 Ohio St.2d 108. The policy basis of res judicata is to insure an end to litigation, and -14- to prevent a party from being vexed twice for the same cause. As stated in LaBarbera v. Batch (1967), 10 Ohio St.2d 106, syllabus: Where it is properly established that in a prior suit on the same cause of action between the same parties a valid and existing final judgment was rendered for defendant on the ground that the statute of limitations had expired prior to its commencement, such judgment, whether or not erroneous, is on the merits, and is res judicata, and the plaintiff is not entitled to recommence his action under Section 2305.19, Revised Code. (Section 2305.19, Revised Code, construed; Belpash v. Emerine, 119 Ohio St. 226, limited and distinguished.) Consistent with this authority, the trial court properly concluded that any and all claims relating to the bonds should have been litigated in Case No. 272373, or the appeal therefrom, pursuant to claim preclusion/res judicata principles. In Grava v. Parkman Township (1995), 73 Ohio St.3d 379, 382, the Ohio Supreme Court adopted an expansive interpretation of claim preclusion under the doctrine of res judicata, stating: In recent years, this court has not limited the application of the doctrine of res judicata to bar only those subsequent actions involving the same legal theory of recovery as a previous action. In National Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180, we stated: It has long been the law of Ohio that `an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in a first lawsuit.' [Citation omitted.] We also declare that the doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it. Id. Today, we expressly adhere to the modern application of the doctrine of res judicata, as stated in 1 Restatement of the Law 2d, -15- Judgments (1982) Sections 24-25, and hold that a valid, final judgment rendered upon the merits bars all subsequent actions based on any claim arising out of the transaction or occurrence that was the subject matter of the previous action ***. Any and all claims relating to the bonds should have been litigated in Case No. 272373. When the trial court excluded those claims from the first case, plaintiff should have cross-appealed that ruling in due course. It is clearly the principle of res judicata that all claims arising from the same transaction be litigated in a single case not piecemeal, as plaintiff seeks to do here. That plaintiff was precluded by the trial court's November 13, 1995 ruling from pursuing his substantive bond claims in Civil Action No. 272373 does not alter the result. If the doctrine of res judicata bars all claims which were or might have been litigated in a first lawsuit, Grava, supra at 382, i.e., even those that were not asserted, then it certainly bars those which were adversely ruled upon in the first case. Although plaintiff claims it is unfair to bar these claims that the trial court prevented him from presenting, his relief from that ruling should have been sought on a cross-appeal in Chalko I. See Grava v. Parkman Twp., supra at 383-84: Grava argues that barring the present action would be unfair. However, he had a full and fair opportunity to present his case and obtain a zoning certificate during the proceedings involving his first application and did not appeal the zoning board's denial of his request. Grava simply failed to avail himself of all available grounds for relief in the first proceeding. Absent changed circumstances, refusing to allow Grava to use an alternate legal theory overlooked in the -16- previous proceedings does not work an injustice. Instead, by providing parties with an incentive to resolve conclusively an entire controversy involving the same core of facts, such refusal establishes certainty in legal relations and individual rights, accords stability to judgments, and promotes the efficient use of limited judicial or quasi- judicial time and resources. The instability that would follow the establishment of a precedent for disregarding the doctrine of res judicata for equitable reasons would be greater than the benefit that might result from relieving some cases of individual hardship. The trial court properly concluded that the doctrine of res judicata prevents this court from revisiting the issue of the bearer bonds at this time. Simply stated, any and all claims of legal malpractice relating to Mr. Chalko's relationship with Dr. John Master could have and should have been litigated in Case No. 272373 or raised on the appeal from that case. Assignments of Error I, II and III are overruled. -17- IV. THE TRIAL COURT ERRED IN FINDING THAT NO DUTY EXISTED ON BEHALF OF THE DEFENDANT WITH RESPECT TO THE RECOVERY OF THE BONDS. V. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED UPON ITS FINDING THAT NO GENUINE ISSUE OF FACT EXISTED FOR TRIAL. We also agree that the trial court properly held that Mr. Chalko breached no duty owed to plaintiff. In Count IV of his Complaint, plaintiff alleges that Mr. Chalko breached a duty to seek recovery of the Master's stolen bonds through any legal means available. The sole basis for Mr. Chalko's alleged duty to recover the bonds is the April 25, 1991 letter written by Mr. Chalko to Lillian Autuori at Anne Master's request. As a matter of law, the April 25, 1991 letter alone is insufficient to create a duty on the part of Mr. Chalko to recover the bonds. The trial court specifically held at page 6 of its Opinion: The plaintiffs have offered no evidence that a duty ever existed for the defendant to initiate legal proceedings to attempt to recover the bonds. Indeed, John H. Nix was hired in July of 1993 for the express purpose of effecting the return of the bonds. The uncontroverted evidence indicates that only days before the death of Anne Master, the defendant forwarded correspondence from Lillian Autuori to Anne Master regarding the bonds, which included a cover letter from the defendant stating that I await your further instructions. (Defendant's Motion Exhibit E ). No further instructions were ever forthcoming. There is no evidence of a retainer agreement of any kind between the defendant and either of the Masters to initiate proceedings to recover the bonds. John Master expressly testified in Case No. 272373 that he never requested that the defendant attempt to recoup the bonds, either on his behalf, or on the behalf of the Estate -18- of Anne Master. The affidavit of defendant Chalko (Defendant's Motion Exhibit A ) states that [n]either John or [sic] Anne Master ever asked me to take any steps to recover the bonds. There can be no breach of duty where no duty ever existed. The essential elements of a legal malpractice claim were recently described in Vahila v. Hall (1997), 77 Ohio St.3d 421, syllabus: To establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss. (Krahn v. Kinney [1989], 43 Ohio St.3d 103, 538 N.E.2d 1058, followed.) The existence of a duty in a negligence action is a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314, 318; Rohme, Inc. v. Sprint International Com. (1996), 115 Ohio App.3d 723, 729. The critical issue in this case therefore is whether attorney Chalko had a professional obligation in the exercise of a duty toward his clients to take some action to recover the bearer bonds in the absence of instructions from his clients to do so. We agree with the trial court that plaintiff failed to offer any evidence that such a duty rested on attorney Chalko in the peculiar circumstances of this case. There is no evidence that either Dr. Anne or Dr. John ever requested the defendant to take legal action of any kind to recover the bonds from Dr. Anne's sister. They gave the sister a power of attorney to obtain the bonds from a Florida bank. When the sister -19- did not forward the bonds, they asked defendant to write a letter inquiring about the bonds. He did so and got an indignant and reassuring letter back from the sister indicating she would account for the bonds in due course. Chalko sent a copy of this response to the Masters and asked for instructions. Nothing was forthcoming because Dr. Anne died and Dr. John never responded. We fail to find that defendant had any duty in the absence of directions from his clients to take legal action against the sister. Plaintiff's counsel conceded at the oral hearing on the summary judgment motions that he had no evidence to the contrary. THE COURT: Before we get to Mr. Chalko's statements, do you have any testimony or evidence in here that Mrs. Master did tell him to go ahead and proceed to litigate this issue? Do you have such testimony? *** What evidence do you have to say that Mrs. Master did tell him that, to proceed to litigate it or to take further action? * * * THE COURT: I'm talking after he receives a letter back that says -- from Mrs. Autuori and he sends it on to his client, Mrs. Master. What evidence do you have after the 6th of May that she did get back to him? When he says I await your instructions, what evidence do you have that she did get back to him, either she or John, and ask that he proceed to litigate it or proceed further? * * * MR. BECKER: The direct answer to the question is no direct testimony to that effect. We have his admission that she was instructed to write the letter. We have a woman who died two days later after the meeting and have no way to talk to her. We have nothing admissible from her that we can use to show that she intended to have him follow up on it. -20- And Dr. John, who is now deceased -- or now deceased, at his deposition, quite frankly, didn't have a recollection of whether he did or did not instruct Mr. Chalko to take any further action. I believe he may have testified he did not make that instruction, although it's been on the record numerous times that Dr. Master ran the show in the family, made those types of decisions, and when she died, the level of distress, I'm sure for Mr. John, increased immeasurably. * * * THE COURT: And my question to you is where is there any evidence that he was instructed to pursue the recovery of the bonds after he requested instructions in the letter of May the 6th? MR. BECKER: there is no -- hard evidence of that after that. But the nature of the question, I await your instructions, I don't know how that necessarily means that he's at that point off the hook and has no further duty to continue. It is a self-serving letter written by one person. There is no response at all to help construe what that letter means or what that means. How do we know that he was told to take a certain action and then await for his instructions, other than that letter? That's all we have. So I guess at that point, you honor, I agree with you. There is no hard document evidence to that effect. (Sum. Jmt. Tr. Jan. 10, 1997 at 40-47). Furthermore, even assuming arguendo that defendant had some amorphous or generalized duty to look out for the Masters' best interests because of their long-standing relationship, with or without their instructions, plaintiff's claims fail for lack of expert evidence to establish that defendant's conduct fell below the standard of care ordinarily exercised by members of the legal profession under similar circumstances. Landis v. Hunt (1992), 80 -21- Ohio App.3d 662, 668. See, also, Bloom v. Dieckmann (1983), 11 Ohio App.3d 202, 203 (expert evidence is required in legal malpractice action to establish the attorney's breach of duty of care except in actions where the breach or lack thereof is so obvious that it may be determined by the court as a matter of law, or is within the ordinary knowledge and experience of laymen); Gibbons v. Price (1986), 33 Ohio App.3d 4, 13; Minick v. Callahan (Lucas App. 1980), 24 Ohio Opns.3d 104; Rice v. Johnson (Aug. 26, 1993), Cuyahoga App. No. 63648, unreported at 3-4. The application of these principles was recently summarized in context in Burke v. Gammarino (1995), 108 Ohio App.3d 138, 143-44: Judgment for Burke on Gammarino's counterclaim of attorney malpractice was also correct. The elements of a legal malpractice claim are (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, 538 N.E.2d 1058, syllabus. Expert testimony is generally required to support allegations of professional malpractice. Cf. Brown v. Tatsumi (1976), 46 Ohio St.2d 127, 130, 75 O.O.2d 184, 186, 346 N.E.2d 673, 676- 677. The only exception to this rule is where the breach and damages flowing from the breach are so apparent as to obviate the need for expert testimony. McInnis v. Hyatt Legal Clinics(1984), 10 Ohio St.3d 112, 113, 10 OBR 437, 438, 461 N.E.2d 1295, 1297. In the present case, Gammarino's allegations of malpractice were unsupported by any expert testimony on a claim where such testimony was necessary. Among other things, Gammarino's amended complaint contained allegations that Burke should have filed a motion to intervene, should have appointed a receiver for rents due on the Shaffer Avenue property, and should have filed certain cross- claims. It is clear that the alleged malpractice was not so obvious as to relieve -22- Gammarino of the burden of establishing his malpractice claim through expert testimony demonstrating that Burke's conduct fell below the appropriate standard of care. The only expert called was Burke's expert witness, who testified that Burke breached no duty owed to Gammarino. These requirements of a plaintiff's obligation to offer expert opinion to support his legal malpractice claims are in no way excused by the failure of the defendant attorney to offer expert evidence to the contrary in support of his motion for summary judgment. See Murphy v. Redeker (Jan. 16, 1997), Cuyahoga App. No. 70868, unreported at 3-4. In the instant case, we have reviewed the summary judgment papers filed by the respective parties. Plaintiff offered no expert testimony by affidavit or otherwise as to what the ordinary standard of care called for when the sister wrote back and the matter was presented to the Masters for instructions; nor was there any expert opinion that defendant failed to observe the requisite standard of care. It is not clear either as a matter of law and certainly not obvious to a lay person what course of action, if any, was required. Plaintiff referenced an expert letter report by attorney Richard Klein, but it did not comply with the requirements of Civ.R. 56(C) and the defendant properly objected to the court considering it. (Chalko Reply Brf. at 13). As this letter is not proper evidence in a motion for summary judgment and further constitutes hearsay, it will not be considered by the court. Logsdon v. Ohio Northern Univ. (1990), 68 Ohio App.3d 190, 194. -23- Under these circumstances, we find no error in the entry of summary judgment in favor of the defendant. Assignments of Error IV and V are overruled. Judgment affirmed. -24- It is ordered that appellee recover of appellant his 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 Court of Common Pleas 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. NAHRA, J., and PATTON, J., CONCUR. JAMES M. PORTER 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 journalization of this court's announcement of decision by the .