In November of 1996, CIC and Byers filed cross-motions for summary judgment on the issue of proximate cause (the other issues of duty and breach of duty being reserved by agreement). CIC acknowledged in its brief that under Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10, 453 N.E.2d 1296 (Ohio Com. Pl. 1983), a plaintiff bringing an action for legal malpractice arising from appellate representation bears the burden of proving that "if an appeal had been perfected, a reversal or a more favorable judgment would have resulted." 453 N.E.2d at 1298.
This, though, is the practice of law, where competent people have different views on the same subject. [ Jablonski v Higgins, 6 Ohio Misc.2d 8, 11; 453 N.E.2d 1296 (1983).] As long as Winiemko fulfilled his ethical obligations by determining the merits of the appeal, he may not be punished in this suit for his advocacy.
However, whether or not appellants were damaged is not a question of fact for which appellants had the burden of producing evidence so as to avoid summary judgment; rather, it is a question of law to be decided by the trial court and now by this court. Jablonski v. Higgins (1983), 6 Ohio Misc.2d 8, 6 OBR 548, 453 N.E.2d 1296; Tohline v. Cent. Trust Co., N.A. (1988), 48 Ohio App.3d 280, 549 N.E.2d 1223. Whereas malpractice at the trial level creates an anomaly of an "trial within a trial," malpractice at the appellate level creates an "appeal within an appeal."
The elements which constitute a legal malpractice action are as follows: (1) an attorney-client relationship; (2) sufficient facts to show that the attorney's alleged misconduct caused the plaintiff's injury; (3) the attorney breached his duty to provide competent legal services; and (4) the damages which the plaintiff sustained were the proximate result of the attorney's alleged misconduct. Jablonski v. Higgins (1983), 6 Ohio Misc.2d 8, 6 OBR 548, 453 N.E.2d 1296. Significant to the case is whether an attorney-client relationship existed between the Landises and Hunt.
The elements of legal malpractice in Ohio were stated early in this century. See Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10, 453 N.E.2d 1296, 1298 (Ohio Com.Pl. 1983) (citing Long v. Bowersox, 19 Ohio Dec. 494, 500-01, 8 Ohio N.P. (N.S.) 249, 255-58 (C.P. 1909)). As recently stated, the elements 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."
That is essentially what we have in this case with only Mr. Applegate's general allegations of negligence, and summary judgment should be granted in this case also, unless the conduct about which he complains can be determined by the court, as a matter of law, as constituting negligence, such as failing to answer a complaint timely or the filing of a lawsuit before the obvious statute of limitations expires, or the matter is a dereliction within the ordinary knowledge and experience of laymen that they can understand without expert assistance. See also Jablonski v. Higgins, 6 Ohio Misc.2d 8, 453 N.E.2d 1296 (Court of Common Pleas of Ohio, Cuyahoga County, 1983), referring to experts' opinions attached to the cross-motions for summary judgment, and setting forth the elements of a legal malpractice case as: 1. There was an attorney-client relationship.
The trial court in the instant case decided that the determination of causation in this appellate legal malpractice case was a question of law, and the court of appeals, noting that this issue had not previously been addressed by Texas courts, agreed. The courts in other jurisdictions that have considered this issue have consistently concluded that the determination of causation in an appellate legal malpractice case is a question of law. Cabot, Cabot Forbes Co. v. Brian, Simon, Peragine, Smith Redfearn, 568 F. Supp. 371, 374 (E.D.La. 1983) (applying Louisiana law), aff'd, 835 F.2d 286 (5th Cir. 1987); Phillips v. Clancy, 152 Ariz. 415, 421, 733 P.2d 300, 306 (Ariz.Ct.App. 1986); Croce v. Sanchez, 256 Cal.App.2d 680, 683, 64 Cal.Rptr. 448, 449-50 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666 (1968); Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn.Ct.App. 1984); Katsaris v. Scelsi, 115 Misc.2d 115, 118, 453 N.Y.S.2d 994, 996-97 (1982); Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10-11, 453 N.E.2d 1296, 1298-99 (Ohio C.P. 1983); Chocktoot v. Smith, 280 Or. 567, 575, 571 P.2d 1255, 1259 (1977); Jackson v. Olson, 77 Or. App. 41, 45, 712 P.2d 128, 130 (1985); Sola v. Clostermann, 67 Or. App. 468, 472, 679 P.2d 317, 319 (1984); Stafford v. Garrett, 6 Or. App. 781, 786, 613 P.2d 99, 101 (1980); Floyd v. Kosko, 285 S.C. 390, 394, 329 S.E.2d 459, 461 (S.C.Ct.App. 1985); Daugert v. Pappas, 104 Wn.2d 254, 258-59, 704 P.2d 600, 603-04 (1985); Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 127 n. 14, 362 N.W.2d 118, 135 n. 14 (1985); Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 279, 276 N.W.2d 284, 287 (1979); General Accident Fire Life Assurance Corp. v. Cosgrove, 257 Wis. 25, 27, 42 N.W.2d 155, 156 (1950).
Courts have consistently found that these determinations are questions of law for the trial judge, rather than questions of fact for the jury. Jablonski v. Higgins, 6 Ohio Misc.2d 8, 10-11, 453 N.E.2d 1296, 1298-99 (Ct.C.P. 1983); Daugert v. Pappas, 104 Wn.2d 254, 256, 704 P.2d 600, 603 (1985). We agree.
Molever has not made the requisite showing regarding causation and damages. In order to prove causation in the context of an alleged failure to appeal, Molever would have to establish that he would have been successful had Roush appealed. Daugert v. Pappas, 104 Wn.2d 254, 704 P.2d 600 (1985); Jablonski v. Higgins, 6 Ohio Misc.2d 8, 453 N.E.2d 1296 (1983); Gillion v. Tieman, 86 Ill. App.3d 147, 41 Ill.Dec. 648, 407 N.E.2d 1146 (1980). Because liability cannot attach, we hold that the trial court did not err in directing summary judgment on the appeal issue.
In order for this court to determine whether the trial court erred in granting summary judgment pursuant to the aforementioned standard, we must consider the evidence together with the law relevant to the claim asserted. To maintain the claim asserted in the case at bar, i.e., legal malpractice, it is incumbent upon the plaintiffs to prove: (1) an attorney-client relationship existed at the time of the incident, (2) the attorney breached his duty by failing to provide competent legal services, and (3) the plaintiffs suffered damages as a proximate result of the attorney's breach of duty. Jablonski v. Higgins (1983), 6 Ohio Misc.2d 8, 10. In considering whether an attorney breached his duty, it is important to note that liability will not attach for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved.