[Cite as Phillips v. Wilkinson, 2017-Ohio-8505.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Keith Phillips, :
Plaintiff-Appellant, :
No. 17AP-231
v. : (C.P.C. No. 16CV-2453)
William C. Wilkinson, Esq. et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on November 9, 2017
On brief: Ford, Gold, Kovoor & Simon, Ltd., and Sarah
Thomas Kovoor, for appellant.
On brief: Taft Stettinius & Hollister LLP, Janica Pierce
Tucker, and Andrew J. Art, for appellees.
Argued: Carolyn A. Davis.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Keith Phillips, appeals from a judgment of the Franklin
County Court of Common Pleas in favor of defendants-appellees, William C. Wilkinson,
Esq. and Estate of William C. Wilkinson.1 For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In 2012, appellant was an inmate in the custody and control of the Ohio
Department of Rehabilitation and Corrections ("DRC") at the Marion Correction
Institution ("MCI"). On June 29, 2012, appellant was in the MCI outdoor area when he
1For purposes of this decision, the Estate of William C. Wilkinson will be referred to as "appellee" and
William C. Wilkinson, Esq., will be referred to as "Wilkinson."
No. 17AP-231 2
was struck in the face by a softball that had been hit over the fence by a contestant in a
home run hitting contest. Appellant sustained a serious injury to his right eye and, as a
result, permanently lost most of his vision in that eye.
{¶ 3} Appellant, by and through attorney Percy Squire, brought a civil action
against DRC in Court of Claims of Ohio alleging negligence. The issues of liability and
damages were bifurcated for trial. Squire continued to represent appellant through the
liability trial. Following a trial to the Court of Claims on the issue of liability, the Court of
Claims found in favor of appellant on his negligence claim.
{¶ 4} At the damages trial, Wilkinson represented appellant. The Court of Claims
awarded damages of $200,000 to compensate appellant for pain and suffering, loss of
vision in his right eye, and his increased risk of total blindness due to appellant's loss of
vision in one eye. The Court of Claims did not award any damages to appellant for loss of
future earning capacity and future medical expenses.
{¶ 5} Appellant appealed to this court from the decision of the Court of Claims
arguing that the Court of Claims erred when it failed to award damages to appellant for
loss of future earning capacity and future medical expenses. In Phillips v. Dept. of Rehab.
& Corr., 10th Dist. No. 12AP-965, 2013-Ohio-5699, this court affirmed the judgment of
the Court of Claims. In holding that the Court of Claims did not err in denying recovery of
damages for loss of future earning capacity, this court stated: "Although appellant's
alleged damages for loss of earning capacity was premised on his inability to obtain
employment in the tool and dye industry due to his injury, appellant failed to call a
vocational expert to establish his future employability or vocational aptitude to work in
this field. Appellant also failed to present any evidence of his pre-injury wage." Id. at
¶ 14.
{¶ 6} On February 22, 2014, shortly after this court issued its decision in Phillips,
Wilkinson passed away. On February 23, 2015, appellant filed a malpractice action
against appellee. Appellant dismissed that case by filing a notice of voluntary dismissal,
but he refiled the malpractice action on March 10, 2016. The material allegations of the
complaint are as follows:
7. At trial, Attorney Wilkinson failed to introduce evidence
from a vocational expert to establish my future employability,
No. 17AP-231 3
failed to present evidence of my pre-injury wage, failed to
present evidence of my ability to obtain employment in the
tool and die industry following release and evidence of future
medical expenses.
8. By reason of Defendant’s actions, I was deprived of over
$850,000 in monetary damages.
(Compl. at 2.)
{¶ 7} On March 7, 2017, the trial court granted appellee's motion for summary
judgment for the stated reason that appellant failed to identify a legal expert witness who
would give testimony on his behalf, as required by the local rules of court, and because
Ohio law required appellant to present the testimony of an expert witness to create a
disputed issue of fact as to the elements of his claim for legal malpractice. Specifically, the
trial court concluded that "[a]bsent expert testimony there is no basis to find that
Wilkinson did not meet the standard of care." (Mar. 7, 2017 Decision at 6.)
{¶ 8} Appellant appealed to this court from the trial court's decision.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following as trial court error:
The trial Court erred in granting Appellee's motion for
summary judgment on grounds that Mr. Phillips failed to
adduce expert testimony to establish legal malpractice.
III. STANDARD OF REVIEW
{¶ 10} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an
appellate court reviews a trial court's disposition of a summary judgment motion, it
applies the same standard as the trial court and conducts an independent review, without
deference to the trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing
Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). "We must
affirm the trial court's judgment if any of the grounds raised by the movant in the trial
court are found to support it, even if the trial court failed to consider those grounds."
Gabriel at ¶ 12, citing Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio-
4335, ¶ 7, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
No. 17AP-231 4
{¶ 11} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Byrd at ¶ 6, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 12} " '[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d
280, 292 (1996). Once the moving party meets its initial burden, the nonmovant must set
forth specific facts demonstrating a genuine issue for trial. Byrd at ¶ 7, citing Dresher at
293.
IV. LEGAL ANALYSIS
{¶ 13} In appellant's sole assignment of error, he argues that the trial court erred
when it granted summary judgment in favor of appellee due to appellant's failure to
produce expert testimony in support of his legal malpractice claim. We disagree.
{¶ 14} " '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.' " Goldberg v.
Mittman, 10th Dist. No. 07AP-304, 2007-Ohio-6599, ¶ 10, quoting Polivka v. Cox, 10th
Dist. No. 01AP-1023, 2002-Ohio-2420, ¶ 21, quoting Vahila v. Hall, 77 Ohio St.3d 421
(1997), syllabus. " 'The duty of an attorney to his client is to "* * * exercise the knowledge,
skill, and ability ordinarily possessed and exercised by members of the legal profession
similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent in
No. 17AP-231 5
discharging the duties he has assumed." ' " Yates v. Brown, 185 Ohio App.3d 742, 2010-
Ohio-35, ¶ 17 (9th Dist.), quoting Palmer v. Westmeyer, 48 Ohio App.3d 296, 298 (6th
Dist.1988), quoting 67 Ohio Jurisprudence 3d, Malpractice, Section 9, at 16 (1986).
{¶ 15} In Goldberg, the plaintiff brought a legal malpractice action against her
former bankruptcy counsel. Id. at ¶ 1-4. Plaintiff alleged that counsel committed legal
malpractice by failing to attach, as exhibits to plaintiff's response to the trustee's motion
for summary judgment, certain evidentiary materials demonstrating the existence of
"disputed facts." Id. at ¶ 3. In affirming the trial court's grant of summary judgment for
plaintiff, this court set out the relevant law regarding the client's burden of production in a
legal malpractice action as follows:
In McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112,
10 OBR 437, 461 N.E.2d 1295, the Supreme Court of Ohio
held that, in a legal malpractice case, expert testimony is
generally required in order to prove breach of the duty that
the attorney owed to the plaintiff, unless the claimed breach of
professional duty is "well within the common understanding
of * * * laymen * * *." Id. at 113; see, also, Whiteside v.
Conroy, 2005 Ohio 5098, ¶50. "Expert testimony is required
so that the trier of fact does not have to speculate on the
standard of care, particularly in a complex case involving * * *
[matters] which are normally not within the realm of
understanding of the layman." Northwestern Life Ins. Co. v.
Rogers (1989), 61 Ohio App.3d 506, 512, 573 N.E.2d 159.
This "standard of care" has been described as that which "a
reasonable attorney, similarly situated, would have * * *
[done] under the circumstances." Brunstetter v. Keating,
2003-Ohio-3270, ¶18.
Id. at ¶ 11.
{¶ 16} "Summary judgment in favor of the attorney is appropriate when a plaintiff
fails to supply expert testimony on alleged negligence that is 'neither within the ordinary
knowledge of the layman nor so clear as to constitute negligence as a matter of law.' "
Brunstetter v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, ¶ 16, quoting
Bloom v. Dieckmann, 11 Ohio App.3d 202, 203 (1st Dist.1983). "In all but a few cases,
expert testimony is required to support allegations of legal malpractice." Passerell v.
Cordell, 11th Dist. No. 2014-A-0050, 2015-Ohio-1767, ¶ 27, quoting Brunstetter at ¶ 16;
Hinton v. Masek, 11th Dist. No. 2013-T-0110, 2014-Ohio-2890, ¶ 15. In Goldberg, this
No. 17AP-231 6
court identified several examples of cases where expert testimony is required in order for
the plaintiff to demonstrate an attorney's breach of duty: failing to include certain claims
in a complaint; advising a client to voluntarily dismiss a bankruptcy action; advising a
client regarding proceedings in the Ohio Liquor Control Commission; advising a client
whether to appeal the denial of certain workers' compensation claims and failing to obtain
a particular disability award; defending clients in mortgage foreclosure proceedings;
representing the accused in a trial on charges of aggravated arson; and negotiating a plea
agreement in a prosecution for gross sexual imposition. (Internal citations omitted.) Id.
at ¶ 13.
{¶ 17} Ohio courts have also held that, in certain circumstances, the claimed
breach of professional duty may be within the common understanding of laymen and that
the testimony of a legal expert may not be required to establish an attorney's breach of
duty. See, e.g., DePugh v. Sladoje, 111 Ohio App.3d 675, 681-82 (2d Dist.1996) (expert
testimony may not be necessary to support a legal malpractice claim where the attorney
fails to file a viable claim before the statute of limitations expires); Dimacchia v. Burke,
904 F.2d 36 (6th Cir.1990), citing McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113
(1984) ("The failure to abide by a client's specific instructions may be sufficient to
establish a breach of a professional duty without expert testimony."). But see Compston
v. Holzapfel, 12th Dist. No. CA90-08-079 (July 15, 1991) (expert testimony was required
to establish that an attorney's failure to file certain documents and do other acts in a
domestic relations case, despite his client having asked him to do so, was a departure
from the standard of care).
{¶ 18} In this case, appellant argues that it is within the common understanding of
laymen that Wilkinson breached a duty owed to appellant by failing to produce expert
testimony of a vocational expert to support an award of damages to appellant for future
loss of earning capacity in the tool and die industry. We disagree.
{¶ 19} In Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506 (10th
Dist.1989), the clients maintained that their counsel committed malpractice by failing to
disclose a conflict of interest cognizable under the Code of Professional Responsibility
then applicable to attorneys. This court held that because there could be instances where
noncompliance with the Code of Professional Responsibility would not constitute
No. 17AP-231 7
malpractice, the plaintiffs were required to present expert testimony as to the details of
the breach of the code and how such a breach constituted malpractice. Id. at 512. We
held that the case was not one in which the breach of duty was "so patently obvious as to
negate" the requirement for expert testimony. Id.
{¶ 20} Similarly, in Goldberg, this court, citing Northwestern Life Ins., determined
that "the task that appellee complains appellant failed to do – attach evidence to a
memorandum opposing a motion for summary judgment – may or may not be a
departure from the standard of care in an adversary proceeding in bankruptcy court,
given the particular circumstances of appellee's case." Goldberg at ¶ 15. Accordingly, this
court found that expert testimony would normally be required to establish the critical
elements of breach and duty.2
{¶ 21} In our opinion, the rule of law adopted by this court in Goldberg and
Northwestern Life compels us to affirm the trial court judgment in this case. The task
appellant claims Wilkinson failed to do in this case—call a vocational expert to give
testimony at his damages trial to support his claim of future loss of earning capacity in the
tool and die industry—may or may not be a departure from the standard of care
depending on the particular circumstances of appellant's case against DRC.3 Here,
appellant did not submit his own affidavit in opposition to appellee's motion for summary
judgment. And, as noted above, Wilkinson passed away prior to the commencement of
appellant's malpractice action. Consequently, there is no evidence in the record to show
what efforts, if any, Wilkinson made to secure the testimony of a vocational expert
regarding appellant's future employability in the tool and die industry. On this record, it
is just as reasonable to infer from the fact that a vocational expert did not testify in the
Court of Claims, that Wilkinson made a diligent effort to obtain such testimony but was
unable to find a vocational expert who would provide testimony favorable to appellant.
Thus, under the rule of law announced in Northwestern Life and Goldberg, it was
2 This court affirmed the judgment of the trial court in plaintiff's favor even though she did not produce
expert testimony because the attorney's failure to respond to requests for admissions in the bankruptcy case
admitted facts demonstrating that plaintiff's defense was at least "colorable." Goldberg at ¶ 24.
3 In criminal cases, the decision whether or not to call a particular witness, including an expert witness, is
generally considered a trial tactic which will not sustain a claim of ineffective assistance of counsel. State v.
Jordan, 7th Dist. No. 06 HA 586, 2007-Ohio-3333, ¶ 61, citing State v. Payton, 124 Ohio App.3d 552, 558
(12th Dist.1997).
No. 17AP-231 8
necessary for appellant to produce the testimony of a legal expert to establish that the
standard of care in the legal community required Wilkinson to present the testimony of a
vocational expert to support his damages claim against DRC. Without expert testimony
establishing the standard of care in the legal community, a trier of fact deliberating on
appellant's legal malpractice claim would be required to speculate whether a competent
attorney, similarly situated, would have presented the testimony of a vocational expert in
the Court of Claims. Under the particular facts of this case, appellant's failure to provide
expert testimony was fatal to his legal malpractice claim, and summary judgment for
appellee was appropriate. Passerell; Northwestern Life; Goldberg.
{¶ 22} Appellant argues, however, that based on our decision in Phillips, it is
patently obvious that Wilkinson deviated from the standard of care by failing to present
the testimony of a vocational expert in the Court of Claims. We disagree.
{¶ 23} In ruling on appellant's assignment of error alleging that the Court of
Claims erred by failing to award damages for future loss of earning capacity, this court in
Phillips made the following observations:
The trial court expressly addressed the evidence appellant
presented to prove loss of earning capacity damages. The trial
court noted the absence of evidence to prove key elements of a
loss of earning capacity damage claim. Although appellant's
alleged damages for loss of earning capacity was premised on
his inability to obtain employment in the tool and dye
industry due to his injury, appellant failed to call a vocational
expert to establish his future employability or vocational
aptitude to work in this field. Appellant also failed to present
any evidence of his pre-injury wage. The trial court found that
appellant did not prove a loss of earning capacity because he
did not prove that he was likely to obtain employment in the
tool and dye industry upon his release from prison and
because there was no evidence of appellant's pre-injury wage.
In essence, the trial court found that appellant failed to prove
that his injury impacted his capacity to work in the tool and
dye industry because he failed to prove that he had the
capacity to work in that industry in the future.
Id. at ¶ 14.
{¶ 24} Appellant insists this court's statements that "appellant failed to call a
vocational expert to establish his future employability or vocational aptitude to work in
No. 17AP-231 9
this field" and "failed to present any evidence of his pre-injury wage" amounts to a
pronouncement by this court that the standard of care in the legal community required
Wilkinson to present the testimony of a vocational expert at his damages trial in the Court
of Claims. Id. This is not the case.
{¶ 25} As noted above, there is no evidence in the record regarding the efforts, if
any, Wilkinson made to secure the testimony of a vocational expert in the Court of Claims
case. Moreover, while it is reasonable to conclude from our decision in Phillips that the
absence of a favorable opinion from a vocational expert supported the Court of Claims'
decision to award no damages to appellant for loss of future earning capacity, it is not
reasonable to interpret this court's pronouncement in Phillips as criticism of Wilkinson's
performance. In the Phillips decision, we noted other "facts" developed in the Court of
Claims strongly suggest that under the circumstances of appellant's case against DRC, a
vocational evaluation would not have proved useful to appellant. Id. at ¶ 15. In rejecting
appellant's contention that the Court of Claims erred when it failed to award damages for
future loss of earning capacity, this court made the following observations about the
evidence presented in the Court of Claims:
Appellant challenges the trial court's determination by
pointing to appellant's testimony that he had worked
intermediately in the tool and dye industry prior to his
incarceration and that he had intended to seek work in that
industry after his release from prison in 2017. However, this
evidence must be examined in light of other facts that support
the trial court's conclusion that appellant lacked the capacity
to work in the tool and dye industry regardless of his eye
injury.
Appellee emphasizes that appellant will be 52 years old when
he is released from prison in 2017 following the completion of
his eight-year prison sentence. Appellant had a significant
criminal record, including convictions for driving under the
influence, robbery, domestic violation, escape, felonious
assault, weapon under disability, and firearm specification.
Appellant had a history of chemical dependency for alcohol
and marijuana. Appellant did not graduate from high school
and has not worked at all since 2004. His pre-2004 work
history reflected employment mostly through temporary
agencies and he had been fired from three or four prior jobs.
Significantly, appellant also had a disabling cardiac condition
No. 17AP-231 10
for which he was receiving social security disability benefits
prior to his incarceration. Based upon these facts, the trial
court's determination that appellant failed to prove future
damages for loss of earning capacity is not against the
manifest weight of the evidence.
Id. at ¶ 15-16.
{¶ 26} Given appellant's vocational impediments, as documented by this court in
Phillips, it is certainly possible that the absence of testimony from a vocational expert
regarding appellant's future employability in the tool and die industry was not the result
of a breach of the standard of care by Wilkinson. On the record in this case, and in light of
the "facts" developed by this court in Phillips, it is just as likely that Wilkinson complied
with the standard of care in the legal community by electing not to call a vocational expert
at appellant's damages trial. Because the failure to call a vocational expert to testify at
appellant's damages trial in the Court of Claims may or may not have been a breach of the
applicable standard of care in the legal community, the rule of law adopted by this court in
Northwestern Life and Goldberg required appellant to present the testimony of a legal
expert to establish the applicable standard of care under the particular circumstances of
appellant's claim against DRC. Without expert testimony establishing the standard of
care in the legal community, a trier of fact deliberating on appellant's legal malpractice
claim would be required to speculate whether a competent attorney, similarly situated,
would have presented the testimony of a vocational expert in the Court of Claims. In our
view, appellant's claim of attorney malpractice in this case is not one in which the breach
of duty was "so patently obvious as to negate" the requirement for expert testimony.
Northwestern Life at 512; Goldberg at ¶ 14. Nothing in our decision in Phillips causes us
to question that conclusion.
{¶ 27} We note that the only evidence produced by appellant in opposition to
appellee's motion for summary judgment is the affidavit of Percy Squire, appellant's
original trial counsel in the Court of Claims case. The record reveals that Squire was
suspended from the practice of law shorty after the liability trial and that decedent,
Wilkinson, succeeded him as appellant's trial counsel for the damages portion of the case.
In his affidavit, Squire does not offer an opinion as to the applicable standard of care in
the legal community. Rather, Squire avers as follows:
No. 17AP-231 11
1. [Appellant] is the nephew of Arlette T. Gatewood.
2. Arlette T. Gatewood, as the material at Exhibit 1
establishes, was a very prominent labor leader in the
Youngstown, Ohio area.
3. In preparation for the damages trial for [appellant], I
interviewed Mr. Gatewood as a potential witness.
4. Mr. Gatewood informed me that based upon his years of
experience in the organized labor arena in Mahoning County,
Ohio, he was positive he could locate employment for
[appellant].
5. Mr. Gatewood was prepared to introduce [appellant] to
prospective employers. Aside from Mr. Gatewood, [appellant]
has other relatives heavily involved in the organized labor
movement.4
(Mar. 3, 2017 Memo. in Opp., Ex. B.)
{¶ 28} Appellee first contends that Squire's affidavit contains inadmissible hearsay
statements which could not be considered by the trial court in ruling on appellee's motion
for summary judgment. We agree.
{¶ 29} "When ruling upon a motion for summary judgment, a trial court only
considers admissible evidence." Guernsey Bank v. Milano Sports Ents., 177 Ohio App.3d
314, 2008-Ohio-2420, ¶ 59 (10th Dist.), citing Tokles & Son, Inc. v. Midwestern Indemn.
Co., 65 Ohio St.3d 621, 631 (1992), fn. 4. Squire's averments regarding the unsworn, out-
of-court statements made by Gatewood are inadmissible hearsay for which no exception
applies. Thus, Gatewood's statements about appellant's post-incarceration employability
could not be considered as evidence in opposition to appellee's motion for summary
judgment. Guernsey Bank; Tokles & Son, Inc.
{¶ 30} Moreover, the trial court also determined that, even if the hearsay
statements from Gatewood were admissible in evidence, Squire's affidavit failed to allege
facts which would support a reasonable inference that but for the eye injury, appellant
retained the capacity to work in the tool and die industry. The trial court further
concluded that Squire's affidavit did not have the effect of rendering the claimed breach of
4 Exhibit 1 is a tribute to the late Arlette T. Gatewood authored by the Youngstown Warren Black Caucus.
No. 17AP-231 12
duty by Wilkinson—failing to call a vocational expert to support an award of damages in
the Court of Claims for loss of future earning capacity in the tool and die industry—so
obvious that it was within the ordinary knowledge and experience of laymen. We agree
with the trial court.
{¶ 31} The rule prohibiting the stacking of one inference on another generally
prohibits drawing one inference solely and entirely from another inference, where that
inference is unsupported by any additional facts or inferences drawn from other fact. Cole
v. Contract Framing, Inc., 162 Ohio App.3d 612, 2005-Ohio-4244, ¶ 23 (10th Dist.),
citing Donaldson v. N. Trading Co., 82 Ohio App.3d 476, 481 (10th Dist.1992). Here,
Gatewood's opinion, as a labor leader in Youngstown, Ohio, that "he was positive he could
locate employment for [appellant]" does not permit an inference that but for his eye
injury, appellant retained the capacity to work in the tool and die industry and that, more
likely than not, appellant would have obtained such employment following his release
from prison. (Squire Aff. at ¶ 4.) Gatewood's hearsay statements do not even mention
appellant's eye injury. At best, Gatewood's testimony permits an inference that he could
have found some employment for appellant following his release from prison.
{¶ 32} Thus, even if the hearsay statements in Squire's affidavit were considered,
the statements do not alter the fact that the task appellant claims Wilkinson failed to do—
call a vocational expert in the Court of Claims to support appellant's claim of future loss of
earning capacity in the tool and die industry—may or may not be a departure from the
standard of care depending on the particular circumstances of appellant's case against
DRC. Because the claimed breach of professional duty in this case was not so obvious that
it was within the ordinary knowledge and experience of laymen, Ohio law required
appellant to produce expert legal testimony to establish the standard of care in the legal
community. Passerell; Northwestern Life; Goldberg. Under the particular circumstances
of this case, appellant's failure to produce such testimony in response to appellee's motion
for summary judgment was fatal to appellant's legal malpractice claim, and summary
judgment for appellee was appropriate. Passerell; Northwestern Life; Goldberg.
{¶ 33} Though his assignment of error is broadly framed, appellant does not argue
that the trial court erred by granting summary judgment with respect to appellant's theory
that Wilkinson committed legal malpractice by failing to provide evidentiary support in
No. 17AP-231 13
the Court of Claims for an award of future medical expenses. Appellant's brief in this
court focuses exclusively on the alleged failure to call a vocational expert. App.R. 16(A)(7)
requires that an appellant include in his brief an "argument containing the contentions of
the appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and parts
of the record on which appellant relies." Because appellant made no argument regarding
this theory of liability, appellant waived the argument for purposes of appeal. See, e.g.,
Mullins v. Grosz, 10th Dist. No. 10AP-23, 2010-Ohio-3844, ¶ 37, fn. 1 ("Because appellant
has not asserted any argument regarding his common-law negligence claims, he has
waived any argument related thereto pursuant to App.R. 16(A)(7)."); Jackson v. Jackson,
11th Dist. No. 2013-L-035, 2015-Ohio-3825 (issue concerning tax dependency exemption
was waived for purposes of appeal because wife made no argument in the brief and cited
neither the record nor any authority in support); State v. Wickwire, 9th Dist. No. 27675,
2016-Ohio-5217 (where appellant made no specific argument as to why his conviction was
against the manifest weight of the evidence, and under App.R. 16(A)(7), the court would
not create one for him).
{¶ 34} For the foregoing reasons, appellant's sole assignment of error is overruled.
V. CONCLUSION
{¶ 35} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, P.J., and LUPER SCHUSTER, J., concur.
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