Bressi v. Irwin

[Cite as Bressi v. Irwin, 2021-Ohio-2550.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY

JAMES BRESSI, CASE NO. 2020-G-0271

Plaintiff-Appellant,
Civil Appeal from the
-v- Court of Common Pleas

JOHN R. IRWIN, et al.,
Trial Court No. 2019 PTR 000306
Defendants-Appellees.

OPINION

Decided: July 26, 2021
Judgment: Affirmed.

Laura L. Mills and Pierce C. Walker, Mills, Mills, Fiely & Lucas, LLC, 101 Central Plaza
South, Suite 1200, Canton, OH 44702 (For Plaintiff-Appellant).

Steven G. Janik and Audrey Bentz, Janik LLP, 9200 South Hills Boulevard, Suite 300,
Cleveland, OH 44147 (For Defendant-Appellee, John R. Irwin).

Steven K. Kelley, Frank H. Scialdone, and Cara M. Wright, Mazanec, Raskin & Ryder
Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For
Defendant-Appellee, Michael Ockerman).

MARY JANE TRAPP, P.J.

{¶1} Appellant, James Bressi, (“Mr. Bressi”), appeals the judgment of the

Geauga County Court of Common Pleas, which granted appellees’, John Irwin (“Dr.

Irwin”) and Michael Ockerman (“Mr. Ockerman”) (collectively the “appellees”) motions for

summary judgment on Mr. Bressi’s legal malpractice claims.
 {¶2} Mr. Bressi raises two assignments of error, contending that the trial court

erred in granting summary judgment on behalf of appellees as it pertained to proximate

cause and damages.

{¶3} After a review of the record and pertinent caselaw, we find Mr. Bressi’s

assignments of error to be without merit. Whether appellees were negligent in failing to

timely file an appeal of a prejudgment attachment order and failing to file a transcript of

the hearing on the motions to discharge the attachment order is not at issue. What is at

issue are the remaining necessary elements in any negligence claim - proximate cause

and resultant damages.

{¶4} There is simply no evidence in this record to support a claim that appellees’

negligence was the proximate cause of any identifiable loss. Mr. Bressi failed to provide

rebuttal evidence to the appellees’ affidavits in which they averred they made no act or

omission which proximately caused Mr. Bressi any damage, and Mr. Bressi’s expert

offered no opinions regarding proximate cause and damages. Because Mr. Bressi failed

to present a genuine issue of material fact that appellees’ malpractice was the proximate

cause of any loss, summary judgment was properly granted.

{¶5} The judgment of the Geauga County Court of Common Pleas is affirmed.

Substantive and Procedural Facts

The Underlying Litigation in which Appellees Represented Mr. Bressi

{¶6} Appellees were engaged to represent Mr. Bressi in various civil, criminal,

and medical licensing board actions arising out of allegations from over 60 women that

Mr. Bressi sexually assaulted them while providing medical services.

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 {¶7} Appellees represented Mr. Bressi in at least three cases, including

Thompson, et al. v. Summit Pain Specialists, Inc., Summit C.P. No. CV-2013-05-2353;

Prather v. Bressi, Summit C.P. No. CV-2014-11-5047; and Bressi v. Geiger, Summit C.P.

No. CV-2014-04-2198.

{¶8} In Thompson, six of Mr. Bressi’s former patients filed suit in the Summit

County Court of Common Pleas against Mr. Bressi, his medical practice, Summit Pain

Specialists, Inc., and his medical practice partners, alleging claims of medical

malpractice, battery, intentional infliction of emotional distress, negligent infliction of

emotional distress, violations under state and federal law for patient abuse, negligence

under respondeat superior, and fraudulent transfer in violation of the Ohio Uniform

Fraudulent Transfer Act.

{¶9} The Summit County court granted the plaintiffs’ motion for a prejudgment

attachment order and froze Mr. Bressi’s assets, which included real and personal

property, any intangible property including but not limited to “bank accounts, cash, stocks,

bonds or other items in which he had a financial interest and that could be converted into

cash, his share of stock in Summit Pain Specialists, Inc., and the sum of $100,000 cash

that was being held as bond by the Summit County Clerk of Courts in his criminal case.

{¶10} After he was acquitted on 26 of the 27 charges in his criminal case, Mr.

Bressi filed two motions to discharge the prejudgment attachment order, which included

the $100,000 cash bond. See State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-

5211, ¶ 6. In December 2016, the Thompson matter was settled. Over time, assets were

released in various amounts in the different cases for settlement purposes and attorney

fees.

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 {¶11} The appellees also represented Mr. Bressi in his appeal of the attachment

order and motions to discharge the order in Thompson v. Summit Pain Specialists, Inc.,

9th Dist. Summit Nos. 27635 & 27638, 2016-Ohio-7030. The Ninth District noted that in

his first, second, and fourth assignments of error, Mr. Bressi was substantively

challenging the terms of the February 21, 2014 order of attachment and whether it was

wrongfully obtained. The court dismissed those portions of his appeal, concluding they

should have been timely appealed and that it lacked jurisdiction to consider the claimed

errors. Id. at ¶ 9-10, ¶ 21-33. Further, Mr. Bressi failed to provide a transcript of the

hearing on his motions to discharge the attachment. Id. at ¶ 31. In addressing his third

assignment of error attacking the trial court’s denial of his Civ.R. 60(B) motion for relief

from judgment of the prejudgment attachment order, the court found that the trial court

was correct in concluding that an acquittal on 26 of 27 criminal charges did not constitute

newly discovered evidence that rendered the attachment order inequitable pursuant to

Civ.R. 60(B)(2) or (4). Id. at ¶ 20.

Cuyahoga Case No. CV-18-900588

{¶12} In 2018, Mr. Bressi filed a complaint in the Cuyahoga County Court of

Common Pleas alleging three claims for relief: (1) negligence/breach of duty against both

appellees, (2) breach of agreement against Dr. Irwin, and (3) intentional and malicious

conduct (punitive damages) against Dr. Irwin. Dr. Irwin answered and asserted a

counterclaim for $97,299.58 for unpaid attorney fees. He also filed a motion to transfer

venue to Geauga County, which Mr. Ockerman joined. The Cuyahoga County Court of

Common Pleas granted the motion in April 2019.

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 Geauga County Case No. 19PTR000306

{¶13} In August 2019, the trial court issued a pretrial order requiring Mr. Bressi to

submit his expert report by November 22, 2019. Mr. Bressi failed to do so.

{¶14} In December 2020, Dr. Irwin filed a motion for summary judgment, arguing

that Mr. Bressi failed to support his claims with expert testimony. Attached to his motion

was an affidavit in which he attested that: Mr. Bressi suffered no damages since all of his

assets were returned, with the exception of those he agreed to turnover as part of a

settlement with the victims; Mr. Bressi failed to establish any act or omission that was the

proximate cause of any damages; and he did not deviate from the applicable standard of

care. Dr. Irwin also later filed two “Motions to Join in Defendant Ockerman’s Reply in

Support of Motion for Summary Judgment.”

{¶15} In January 2020, Mr. Ockerman moved for summary judgment, arguing that

Mr. Bressi failed to allege a prima facie case for legal malpractice because he failed to

produce the report of an expert to establish that appellees deviated from the proper

standard of care.

{¶16} Mr. Bressi filed a brief in opposition to Dr. Irwin’s motion for summary

judgment, arguing that the untimely Thompson appeal was negligence per se, i.e., that

Dr. Irwin fell below the requisite standard of care and that expert testimony was not

required. Attached to the brief in opposition was an affidavit from his attorney, Thomas

M. Wilson, which verified the authenticity of the Thompson appellate opinion. No

additional evidentiary quality material was submitted.

{¶17} In April 2020, the court extended Mr. Bressi’s deadline to produce an expert

report until May 20, 2020. On that day, Mr. Bressi designated Attorney Charles J.

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Kettlewell (“Mr. Kettlewell”) as his expert. Mr. Kettlewell’s report and affidavit were

attached to Mr. Bressi’s supplemental response in support of his brief in opposition to Dr.

Irwin’s motion for summary judgment. Mr. Kettlewell opined that both appellees fell below

the standard of care because they failed to timely appeal the attachment order and,

further, because they failed to file a transcript of the hearing on Mr. Bressi’s motions to

discharge on appeal.

{¶18} Mr. Bressi argued in his brief that any failure to produce an expert report is

now “null and void”; expert witness evidence is not necessary to establish proximate

cause in legal malpractice actions; the fact that appellees filed an untimely appeal is

evidence that they had a “good-faith basis for doing so, demonstrating proximate cause”;

and he suffered damages because the prejudgment attachment order included assets not

permitted by law to be attached.

{¶19} The parties filed a flurry of motions, including supplemental motions,

motions to join, replies and responses, which included two motions to strike: Dr. Irwin’s

motion to strike Mr. Bressi’s supplemental brief and Mr. Bressi’s motion to strike Mr.

Ockerman’s reply in support of his motion for summary judgment, both of which the trial

court denied.

{¶20} On September 14, 2020, the trial court awarded summary judgment to

appellees in separate judgment entries. After the trial court ruled on the summary

judgment motions, Mr. Bressi filed a motion for reconsideration, or in the alternative, a

Civ.R. 56(F) motion seeking a “stay” so he could conduct additional discovery. On

October 10, 2020, the court issued nunc pro tunc judgment entries granting summary

judgment to appellees, adding the language designating a final appealable order, “there

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is no just reason for delay.” Subsequently, Dr. Irwin voluntarily dismissed the pending

counterclaim.

Judgment Entry Granting Dr. Irwin’s Motion for Summary Judgment

{¶21} As for Dr. Irwin’s motion for summary judgment, the trial court found Mr.

Bressi alleged that he entered into an attorney-client relationship with Dr. Irwin in 2013

and that he paid Dr. Irwin over $177,000 for representation in at least three cases,

Thompson, Prather, and Geiger. Mr. Bressi filed claims for relief alleging that Dr. Irwin

was negligent (legal malpractice), breached his contract, and owes punitive damages.

{¶22} In his first claim for legal malpractice, Mr. Bressi alleged that Dr. Irwin

breached his duty to provide reasonable and/or adequate counsel by failing to timely file

an appeal of the February 21, 2014 prejudgment attachment order and to object to the

May 17, 2017 judgment entry in Thompson, in which the trial court ordered a partial

release of the attachment to pay the settlement agreement in Prather and pay attorney

fees to Dr. Irwin and Douglas Graf. He also alleged Dr. Irwin engaged in self-dealing.

{¶23} The trial court found that Dr. Irwin met his initial burden in the summary

judgment exercise by showing that he exercised professional judgment when he averred

that his representation was at or above the standard of care. The only breach of duty Mr.

Kettlewell identified was Dr. Irwin’s failure to timely appeal the attachment order. The trial

court found that missing an appellate deadline is negligence as a matter of law, and,

therefore, Dr. Irwin was negligent in that respect. However, the trial court also found Mr.

Bressi failed to establish that Dr. Irwin’s negligence was the proximate cause of the losses

he suffered, i.e., he failed to provide evidence that he would have prevailed in the appeal

but for Dr. Irwin’s negligence. As for damages, the trial court determined Dr. Irwin met

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his initial burden by averring Mr. Bressi suffered no damage, to which Mr. Bressi failed to

provide rebuttal evidence.

{¶24} The trial court found Mr. Bressi’s second claim for relief, breach of contract,

was essentially a legal malpractice claim. It determined Dr. Irwin met his initial burden by

averring his representation met the standard of care and proximately caused no damages

to Mr. Bressi, to which Mr. Bressi failed to provide rebuttal evidence. Since Mr. Bressi

submitted no evidence of damages, the trial court found his third claim for relief for

punitive damages necessarily failed.

Judgment Entry Granting Mr. Ockerman’s Motion for Summary Judgment

{¶25} As for Mr. Ockerman’s motion for summary judgment, the trial court found

that Mr. Bressi alleged in his complaint that Mr. Ockerman’s deficient representation

caused him damages, citing the same breaches of duty the court noted in the judgment

entry awarding summary judgment for Dr. Irwin.

{¶26} The trial court found that Mr. Ockerman averred his representation was at

or above the standard of care, meeting his initial burden of showing that he breached no

duty. The trial court determined Mr. Bressi met his rebuttal burden of a breach of duty on

a single allegation, i.e., the filing of an untimely appeal was negligence as a matter of law.

Mr. Kettlewell opined that the untimely appeal and failure to file a transcript on appeal

were breaches of duty. Mr. Kettlewell, however, did not find that Mr. Ockerman breached

any other duty.

{¶27} The trial court concluded that Mr. Bressi did not meet his burden on

proximate cause or damages. Stated differently, Mr. Bressi did not establish that but for

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Mr. Ockerman’s failure to file a timely appeal, he would have prevailed on appeal and that

he suffered losses as a result.

{¶28} Mr. Bressi raises two assignments of error on appeal:

{¶29} “[1.] The Trial Court erred in granting Summary Judgment on behalf of

Appellees as it pertained to Proximate Cause.

{¶30} “[2.] The Trial Court erred in not finding damages caused by Appellees to

Appellant.”

Summary Judgment Standard of Review

{¶31} We review de novo a trial court’s order granting summary judgment. Sabo

v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. “‘A

reviewing court will apply the same standard a trial court is required to apply, which is to

determine whether any genuine issues of material fact exist and whether the moving party

is entitled to judgment as a matter of law.’” Id., quoting Hapgood v. Conrad, 11th Dist.

Trumbull No. 2000-T-0058, 2002-Ohio-3363, ¶ 13.

{¶32} “Since summary judgment denies the party his or her ‘day in court’ it is not

to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary

judgment standards has placed burdens on both the moving and the nonmoving party.

In Dresher v. Burt [75 Ohio St.3d 280, 662 N.E.2d 264 (1996)], the Supreme Court of

Ohio held that the moving party seeking summary judgment bears the initial burden of

informing the trial court of the basis for the motion and identifying those portions of the

record before the trial court that demonstrate the absence of a genuine issue of fact on a

material element of the nonmoving party’s claim. The evidence must be in the record or

the motion cannot succeed. The moving party cannot discharge its initial burden under

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Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no

evidence to prove its case but must be able to specifically point to some evidence of the

type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has

no evidence to support the nonmoving party’s claims.” Welch v. Ziccarelli, 11th Dist. Lake

No. 2006-L-229, 2007-Ohio-4374, ¶ 40.

{¶33} “If the moving party fails to satisfy its initial burden, the motion for summary

judgment must be denied. If the moving party has satisfied its initial burden, the

nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial. If the nonmoving party

fails to do so, summary judgment, if appropriate shall be entered against the nonmoving

party based on the principles that have been firmly established in Ohio for quite some

time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112[, 526 N.E.2d 798].” Id.

Elements of a Legal Malpractice Claim

Duty and Breach of that Duty

{¶34} To establish a claim for relief 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. Vahila v. Hall, 77

Ohio St.3d 421, 674 N.E.2d 1164 (1997), at syllabus. The plaintiff’s failure to prove any

one of these elements entitles the defendant-attorney to summary judgment. Gijbertus

D.M. van Sommeren v. Gibson, 2013-Ohio-2602, 991 N.E.2d 1199, ¶ 23 (6th Dist.).

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 {¶35} The Supreme Court has further held that, “[g]enerally, expert testimony [is]

required in regard to professional standards of performance”; however, where “the

claimed breach of professional duty is well within the common understanding of the

laymen on the jury,” such testimony is not deemed necessary. McInnis v. Hyatt Legal

Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984).

Burden Shifting

{¶36} Any analysis on burden shifting in a legal malpractice summary judgment

exercise must begin with the standard set out in Vahila and the clarification of that

standard announced in Environmental Network Corp. v. Goodman Weiss Miller, L.L.P.,

119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173.

{¶37} At the outset, it is critical to note that the court’s clarification in

Environmental Network Corp. did not alter the burden placed on one bringing a legal

malpractice action to establish proximate cause and resultant damages. In the context

of this matter’s summary judgment exercise, one opposing summary judgment has the

reciprocal burden of producing evidentiary quality material demonstrating the existence

of a genuine issue as to a material fact relevant to proximate cause and damages.

{¶38} In Vahila, the Supreme Court of Ohio determined that “depending on the

situation, [a plaintiff may be required] to provide some evidence of the merits of the

underlying claim,” but the court declined to “endorse a blanket proposition that requires a

plaintiff to prove, in every instance, that he or she would have been successful in the

underlying matter.” Id. at 428.

{¶39} The plaintiffs in Vahila alleged losses of $100,000 and lost profits of at least

$200,000. Id. at 422. Thus, the Supreme Court of Ohio held that “given the facts of [the]

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case, [plaintiffs] have arguably sustained damage or loss regardless of the fact that they

may be unable to prove that they would have been successful in the underlying matter(s).”

Id. at 427. The court observed that “the requirement of causation often dictates that the

merits of the malpractice action depend upon the merits of the underlying case.” Id. at

427-428.

{¶40} In Environmental Network Corp., the Supreme Court of Ohio clarified its

decision in Vahila, observing that the Vahila court “rejected a wholesale adoption of a ‘but

for’ test for proving causation and the mandatory application of the ‘case-within-a-case

doctrine.’” Id. at ¶ 16. However, “in holding that not every malpractice case will require

that the plaintiff establish that he would have succeeded in the underlying matter, the

Vahila court necessarily implied that there are some cases in which the plaintiff must so

establish.” (Emphasis sic.) Id. at ¶ 17. “‘[D]epending on the situation, [a plaintiff may be

required] to provide some evidence of the merits of the underlying claim’ * * *.” Id. at ¶

15, quoting Vahila at 427-428.

{¶41} The Environmental Network Corp. court went on to explain when expert

testimony is needed on the merits of the underlying litigation: “Here, appellees’ sole

theory for recovery is that if the underlying matter had been tried to conclusion, they would

have received a more favorable outcome than they obtained in the settlement. Therefore,

unlike the plaintiffs in Vahila, who sustained losses regardless of whether their underlying

case was meritorious, appellees here could recover only if they could prove that they

would have succeeded in the underlying case and that the judgment would have been

better than the terms of the settlement. Thus, the theory of this malpractice case places

the merits of the underlying litigation directly at issue because it stands to reason that in

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order to prove causation and damages, appellees must establish that appellant’s actions

resulted in settling the case for less than appellees would have received had the matter

gone to trial.” Id. at ¶ 18.

{¶42} The Supreme Court of Ohio concluded, “This type of legal-malpractice

action, then, involves the case-within-a-case doctrine. That is, the plaintiff must establish

that he would have been successful in the underlying matter. In this type of action, it is

insufficient for the plaintiff to present simply ‘some evidence’ of the merits of the

underlying claim. To permit the plaintiff to present merely some evidence when the sole

theory is that the plaintiff would have done better at trial would allow the jury to speculate

on the actual merits of the underlying claim. Thus, in the case sub judice, appellees had

the burden of proving by a preponderance of the evidence that but for appellant’s conduct,

they would have received a more favorable outcome in the underlying matter.” Id. at ¶

19.

Proximate Cause

{¶43} In his first assignment of error, Mr. Bressi argues that the trial court erred in

finding that he did not establish proximate cause and that he needed an expert witness

to prevail because appellees’ failure to file a timely appeal and a transcript on appeal is

negligence as a matter of law.

{¶44} 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 discharging

the duties he or she has assumed. Harris v. Rossi, 2018-Ohio-4573, 123 N.E.3d 284, ¶

51 (11th Dist.).

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 {¶45} Rule of Professional Conduct 1.3 states that “[a] lawyer shall act with

reasonable diligence and promptness in representing a client.’ A comment to this rule

explains that ‘[d]elay and neglect are inconsistent with a lawyer’s duty of diligence,

undermine public confidence, and may prejudice a client’s cause. Reasonable diligence

and promptness are expected of a lawyer in handling all client matters and will be

evaluated in light of all relevant circumstances. * * *” Comment 3, Prof.Cond.R. 1.3.

Given these conduct standards, it follows that attorneys are expected to keep themselves

advised of the progress of their cases. Id.

{¶46} And while failure to timely file an appeal may be negligence as a matter of

law, the client is still required to introduce evidence raising a genuine issue of material

fact that the attorneys’ negligence was a proximate cause of his loss.

{¶47} Mr. Bressi argues the trial court misapprehended the nature of his

allegations and, thus, applied the wrong legal standard. He claims that the “timing of the

appeal regarding the attachment,” not the claims underlying the Thompson cases against

him, is the crux of the legal malpractice.” Mr. Bressi therefore contends he did not need

to prove he would have been successful in the underlying Thompson litigation; that is, he

was not required to meet the elements of what is commonly referred to as the “case within

a case doctrine” because he “never raised the issue of settlement in the Thompson

Litigation having a different result but for the negligence of Appellees.”

{¶48} But, in fact, the trial court did not misapprehend the theory of this

malpractice action. The trial court did not find that Mr. Bressi had to offer evidence that

he would have prevailed on the merits of the Thompson case. Rather, the trial court

correctly observed: “Mr. Bressi placed the merits of the February 21, 2014, attachment

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order directly in issue; he must establish the attachment was overbroad or otherwise

improper and he would have prevailed if the appeal had been timely.” In other words, the

attachment proceeding was the subject of the “case.”

{¶49} In Mr. Bressi’s case, the requirement of causation dictates that the merits

of his malpractice claim depend on the merits of the underlying claim that the attachment

was in some fashion wrongful or improvident. This cannot be determined without expert

testimony.

{¶50} Thus, it bears repeating that when a plaintiff is claiming he would have been

better off had the underlying matter been tried rather than settled, the standard for proving

causation requires more than just “some evidence” of the merits of the underlying suit.

Environmental Network Corp. at ¶ 21. Likewise, when a client claims that he would have

been better off had an appeal been timely filed and properly supports his claim with a

transcript of the proceedings below, the standard for proving causation requires more

than just “some evidence” of the merits of the appeal. Id.

{¶51} We do not read the holding in Environmental Network Corp. to be limited to

trial vs. settlement or to exclude its application to a claim that Mr. Bressi would have

prevailed on his appeal of a prejudgment attachment order. “Where there is no

reasonable possibility that a decision of a trial court in a civil case would have been

reversed on appeal, an attorney who negligently fails to file a timely notice of appeal from

the decision is not liable in damages to his client for malpractice.” Belfer v. Spiegel, 18

Ohio App.3d 64, 480 N.E.2d 825 (8th Dist.1984), syllabus. Further, we agree with the

trial court that the good faith arguments of counsel contained in the briefing in Summit

County and the Ninth District Court of Appeals do not establish proximate cause, and Mr.

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Bressi fails to cite any authority to so establish. A “good faith argument” is not akin to a

successful appeal.

{¶52} Mr. Bressi failed to introduce any evidentiary quality material or affidavits

regarding the merits of his interlocutory appeal. The evidentiary materials listed in Civ.R.

56(C) include “‘the pleading, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if

any.’” Dresher at 293, quoting Civ.R. 56(C). “‘Requiring that the moving party provide

specific reasons and evidence gives rise to a reciprocal burden of specificity for the non-

moving party [outlined in Civ.R. 56(E) ].’” Id. at 294, quoting Mitseff at 115. Thus,

pursuant to Civ.R. 56(E), “[w]hen a motion for summary judgment is made and supported

as provided in this rule, an adverse party may not rest upon the mere allegations or

denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial. If the party does not so respond, summary judgment, if appropriate, shall be entered

against the party.” (Emphasis added.)

{¶53} Mr. Bressi’s argument is devoid of discussion of proximate cause. It jumps

from negligence as a matter of law to an assertion that since “he did not have access to

the monies,” he was damaged. The complaint against appellees does not contain any

allegations as to proximate cause. His briefs in opposition to the motions for summary

judgment are not supported by even his own affidavit outlining in what way the assets

were “wrongfully attached” and what “assets were exempt.”

{¶54} In the one piece of evidentiary quality material presented to the trial court,

Mr. Kettlewell failed to opine as to proximate cause and any loss as a direct and proximate

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result of appellees’ failure to file a timely appeal or provide a transcript on appeal. Without

expert testimony, it cannot be determined whether: the untimely appeal of the

prejudgment attachment order was a proximate cause of any loss to Mr. Bressi, in that

the order of attachment was either wrongfully obtained pursuant to one of the grounds

set forth in R.C. 2715.01; any of Mr. Bressi’s property (as opposed to that of his wife or

the trust) was exempt from attachment; or any other evidence supports the claim that the

prejudgment attachment was unlawful.

{¶55} We agree with the trial court that Mr. Bressi failed to provide rebuttal

evidence to the appellees’ affidavits in which they averred they made no act or omission

which proximately caused Mr. Bressi any damage. While it is clear appellees were

negligent, there is simply no evidence appellees’ negligence was the proximate cause of

any loss. Because Mr. Bressi failed to raise a genuine issue of material fact that

appellees’ malpractice was the proximate cause of any loss, summary judgment was

properly granted in their favor.

{¶56} Mr. Bressi’s first assignment of error is without merit.

Damages

{¶57} In his second assignment of error, Mr. Bressi contends the trial court erred

in finding that he failed to provide rebuttal evidence that appellees’ negligence caused

him to suffer damages and attorney fees.

{¶58} Plaintiffs in legal malpractice cases must prove a causal connection

between the attorney’s malpractice and their damages. Paterek v. Petersen & Ibold, 118

Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, ¶ 39. When an attorney commits

malpractice in a civil case, the lion’s share of the damages derives from the lost claim.

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Id. at ¶ 28. The Supreme Court of Ohio has recognized that “‘a plaintiff in a legal-

malpractice case may seek other types of consequential damages, such as additional

attorney fees incurred to correct the mistakes of the malpracticing attorney.’” Id., quoting

Krahn v. Kinney, 43 Ohio St.3d 103, 106, 538 N.E.2d 1058 (1989). Mr. Bressi, however,

did not allege any other additional types of consequential damages. Thus, the focus of

his damages is the value of the lost claim that the attachment was either wrongful or that

the trial court failed to exempt assets from the attachment. “In proving what was lost, the

plaintiff must show what would have been gained.” Id. at ¶ 37.

{¶59} Mr. Bressi was required to produce some evidence that due to appellees’

negligence, he suffered additional harm separate and apart from the prejudgment

attachment itself. Mr. Bressi cannot simply rest on the incomplete allegations of his

complaint and the arguments presented by his counsel in briefing before the Summit

County Court of Common Pleas and the Ninth District Court of Appeals. As already noted,

Civ.R. 56(E) clearly states “an adverse party may not rest upon the mere allegations or

denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for

trial. If the party does not so respond, summary judgment, if appropriate, shall be entered

against the party.” (Emphasis added.) See Dresher at 294, quoting Mitseff at 115 (“It

should be noted that placing * * * requirements on the moving party does not mean the

nonmoving party bears no burden. Requiring that the moving party provide specific

reason and evidence gives rise to a reciprocal burden of specificity for the non-moving

party * * *”) (Emphasis added.)

{¶60} Mr. Bressi’s second assignment of error is without merit.

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 {¶61} The judgment of the Geauga County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.

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Case No. 2020-G-0271