Eighth District: Legal Malpractice Cases Allowed to Continue
On the same day last week the Eighth District Court of Appeals ruled in separate legal malpractice cases. One allowed a woman to continue her complaint against father-and-son attorneys whose advertising appeared to make them partners, and the other allowed an attorney who represented 11 clients in a joint action to withhold documents from one suing him.
On April 2, the Eighth District sided with Terese Komorowski in her appeal of a Cuyahoga County trial court’s grant of summary judgment to attorney John P. Hildebrand Sr. and his law firm John P. Hildebrand, Co. L.P.A. Komorowski filed a legal malpractice against John P. Sr. who goes by “Jack,” and his son John P. Hildebrand Jr. who goes by “Jake.”
In 2009, Komorowski’s husband died unexpectedly. He had two home mortgages, and while he was ill, he missed payments. It was not until after his death did his wife learn the mortgages were in default and she received notice from the first mortgage holder that it would foreclose if the missed payments plus penalties were not received. Because she had not signed the original loan, the bank would not discuss the matter with her, and when she tried to pay just the missed payments without penalties, the lender refused to accept her check.
Prior to the initiation of the foreclosure, Komorowski in July 2009 contacted Jake Hildebrand for legal assistance and he accepted a $1,800 retainer from her without a written fee agreement. Jake did not inform her that his law license was suspended in January 2009, and he testified he did not discover his license was suspended until November 2009.
A foreclosure action was filed against Komorowski in July 2009. A timely answer was not filed and a default judgment was granted in May 2010. Jake attempted to respond in the case in June 2010 using his father Jack’s name and attorney registration number and listing Jack as Komorowski’s attorney. The court denied the motion and sold Komorowski’s home at a sheriff’s sale. Shortly after filing the unsuccessful motion, Jake moved to New York and said he no longer represented Komorowski, but did not notify her of that. When she called and visited the office looking for him, she spoke to Jack. She testified that while attempting to reach Jake through his father, Jack told her he would take care of filing information in her case if necessary.
The Hildebrands operated out of the same office and used the name Hildebrand & Hildebrand from 2004 to 2009 in phone book listings, website site advertisings and letterhead. However, they testified that they operated separate practices that shared offices.
Komorowski sued both of them and the business entity John P. Hildebrand Co., L.P.A. set up by Jack for malpractice, conspiracy, fraud and conversion.
The trial court sided with Komorowski in her fraud claims against Jake, but granted summary judgment to Jack and his business entity after he successfully argued he had no attorney-client relationship with Komorowski.
Writing for the appeals court, Judge Frank D. Celebreeze Jr. wrote the trial court erred in the decision and that further evidence was required to determine if Jack actually represented Komorowski. Moreover, Judge Celebreeze ruled that Jack may be liable for the actions of Jake under the laws governing the operation of legal partnerships.
“The fact that Terese stated she did not hire Jack is not conclusive where she could hold the reasonable belief that she hired Jake as part of the Hildebrand & Hildebrand firm. In this present case, Jake and Jack held themselves out to be a legal partnership by advertising under the Hildebrand & Hildebrand name,” he wrote. “Under such circumstances, a partnership may be implied where a party relied on those representations.”
Relying on the First District Court of Appeals 2001 Allen v. Niehaus ruling, Judge Celebreeze noted that a formal partnership is not required for one lawyer to be liable for the actions of another lawyer acting as a partner, but rather they can be liable if their relations include the “essential elements of partnership.”
“The actions and advertisements of Jake and Jack leave no question that they held themselves out as a partnership,” he wrote.
The court sent the case back to the trial court to hear more evidence.
Judge Tim McCormack and Judge Melody J. Stewart concurred in the decision.
Meanwhile, a separate Eighth District panel reversed the decision of a Cuyahoga County trial court that would have allowed Anthony Galati to review correspondence made between his former joint plaintiffs in a lawsuit and attorney Timothy B. Pettorini.
Galati, a former American Family Insurance agent, sued Pettorini and his employer, the Critchfield, Critchfield & Johnson, Ltd. law firm, alleging legal malpractice.
Pettorini represented Galati and 10 other current and former American Family agents in a joint lawsuit for breach of contract and other claims against the insurance company. While the agents were able to pursue their case together and signed identical representation agreements with Pettorini, the company was able to force separate trials for each of them, and Galati’s was scheduled first. Before the case concluded, Galati reached a settlement with American Family in July 2012 agreeing to dismiss the case, but Pettorini continued to represent the other agents in their cases.
When he first agreed to represent the agents in April 2010, Pettorini had Galati and the others sign agreements acknowledging that by suing together they might receive lower recoveries than had they acted independently, but banding together would be less expensive for each agent. He also advised there could be a potential conflict of interest because of the joint representation, but the agents allowed for the conflict by signing a waiver to obtain the benefits of proceeding as a group.
A year after the settlement, Galati sued Pettorini claiming Pettorini negligently represented Galati in the trial with American Family, and as a result, Galati sustained $2 million in damages. As part of his suit against his former lawyer, Galati sought numerous communications between Pettorini and the other agents in the case. Claiming he still represented the others, Pettorini refused to turn over the documents.
The trial judge ordered an in camera review of the documents Galati sought and after seeing them, ordered eight of them to be turned over. Pettorini appealed to the Eighth District before providing them to Galati.
Writing for the court, Judge Larry A. Jones Sr. sided with Pettorini’s argument that joint-client privilege applies in cases where multiple clients hire the same attorney to represent them on a matter of common interest.
“In order to waive the joint-client privilege, all joint clients must consent to the disclosure,” Judge Jones ruled.
In this case, none of the other clients consented to having their communications with Pettorini released for disclosure, and Galati is not entitled to those communications for use outside of the matters where he and the others are being jointly represented by Pettorini.
Judge Eileen A. Gallagher and Judge Tim McCormack concurred in the decision.
Komorowski v. John P. Hildebrand Co., L.P.A., 2015-Ohio-1295
Galati v. Pettorini, 2015-Ohio-1305
Civil Appeals From: Cuyahoga County
Judgments Appealed From Are: Reversed
Date of Judgment Entry on Appeals: April 2, 2015
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