[Cite as Simmons v. Rauser & Assoc., L.P.A., 2011-Ohio-4510.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96386

AARON SIMMONS

PLAINTIFF-APPELLANT

vs.

RAUSER & ASSOCIATES LPA, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-721101 

BEFORE: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: September 8, 2011 
ATTORNEY FOR APPELLANT 

Rosel C. Hurley, III 

Arnuma Law 

12800 Shaker Boulevard 

Suite 230 

Cleveland, Ohio 44120 

ATTORNEYS FOR APPELLEES 

Jason D. Winter 

Marianne K. Barsoum Stockett 

Holly M. Wilson 

Reminger Co., LPA 

1400 Midland Building 

101 Prospect Avenue, West 

Cleveland, Ohio 44115-1093 

SEAN C. GALLAGHER, J.: 

{¶ 1} Plaintiff-appellant, Aaron Simmons, appeals the judgment of the 

Cuyahoga County Court of Common Pleas that granted summary judgment in 

favor of defendants-appellees Rauser & Associates LPA and Denise Bartlett. 

For the reasons stated herein, we affirm the judgment of the trial court. 

{¶ 2} This is a legal malpractice action that arose from attorney Denise 

Bartlett’s representation of Simmons in connection with a Chapter 7 
bankruptcy filing, which was ultimately converted into a Chapter 13 filing. 

Bartlett is an attorney with the law firm of Rauser & Associates LPA. 

{¶ 3} Simmons instituted this action on March 12, 2010. In his 

amended complaint, Simmons alleged that he retained Bartlett in connection 

with a Chapter 7 bankruptcy and that he advised her that he had no interest 

in a five-year Chapter 13 plan. He further alleged that Simmons advised him 

to file a Chapter 7 bankruptcy despite his income being over twice the allowed 

income, that she told him to stop paying his bills, and that she advised him to 

purchase a vehicle in order to defeat the Chapter 7 “means test” in violation of 

federal bankruptcy laws. Following the filing by the U.S. Trustee of a motion 

to dismiss for abuse, Simmons’s Chapter 7 filing was converted to a Chapter 

13 filing in June 2008. 

{¶ 4} The defendants filed a motion for summary judgment, arguing that 

Simmons had failed to produce an expert report to establish that defendants 

breached the standard of care or proximately caused him damages. The trial 

court granted the motion, and this appeal followed. Simmons’s sole 

assignment of error is as follows: “The trial court erred when it granted 

summary judgment in favor of the defendant as a result of the plaintiff failing 

to provide an expert witness report even though an expert report is not needed 

because the actions of the defendant amounted to negligence per se.” 
{¶ 5} Appellate review of summary judgment is de novo, governed by the 

standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 

2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to 

the trial court’s decision and independently review the record to determine 

whether summary judgment is appropriate. Hollins v. Shaffer, 182 Ohio 

App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12. Under Civ.R. 56(C), 

summary judgment is proper when the moving party establishes that “(1) no 

genuine issue of any material fact remains, (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 construing the 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. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 

N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 

327, 364 N.E.2d 267. 

{¶ 6} Simmons’s complaint alleges that defendants are liable for legal 

malpractice committed in connection with their representation of him in the 

Chapter 7 bankruptcy. “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.” Vahila v. Hall (1997), 77 

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

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

Woodrow v. Heintschel, Lucas App. No. L–10–1206, 2011-Ohio-1840, ¶ 17; 

Williams-Roseman v. Owen (Sept. 21, 2000), Franklin App. No. 99AP-871. 

{¶ 7} Here, it is undisputed that Bartlett represented Simmons in the 

bankruptcy proceeding. Accordingly, she had a duty 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[.]’” See Palmer v. Westmeyer (1988), 48 Ohio 

App.3d 296, 298, 549 N.E.2d 1202, quoting 67 Ohio Jurisprudence 3d (1986) 

16, Malpractice, Section 9. 

{¶ 8} Simmons claims that when he retained Bartlett, he informed her 

that he had no interest in a Chapter 13 plan and that he wanted a Chapter 7 

bankruptcy with an elimination of all debts. He further asserts that Bartlett 

was negligent in her representation by advising him to proceed with a Chapter 

7 filing, advising him to stop paying his bills while she proceeded with the 

elimination of his debts, and advising him to purchase a vehicle, allegedly in 

order to deceive the Chapter 7 means test. According to the defendants, 
although Simmons’s income exceeded the amount for a Chapter 7 filing, he 

could still pass the means test calculation.1

{¶ 9} Generally, expert testimony is required to establish the breach of 

duty, unless the breach is so obvious that it may be determined by the court as 

a matter of law, or is within the ordinary knowledge of a lay person. Bloom v. 

Dieckmann (1983), 11 Ohio App.3d 202, 464 N.E.2d 187, syllabus; see, also, 

McInnis v. Hyatt Legal Clinics (1984), 10 Ohio St.3d 112, 113, 461 N.E.2d 

1295. Initially, we recognize that the requirements for a Chapter 7 

bankruptcy and the application of the means test are not matters within the 

ordinary knowledge of the layman. Furthermore, Simmons’s allegations are 

unsupported by any evidence in the record and he has failed to demonstrate 

that the alleged advice to purchase a vehicle constituted negligence as a 

matter of law.2 Expert testimony was therefore necessary to support a cause 

of action for malpractice. Additionally, Simmons failed to demonstrate 

whether the alleged malpractice proximately caused any actual damages. 

Without any affirmative evidence, we are simply left with an unsuccessful 

Chapter 7 bankruptcy. 

 1

 11 U.S.C. § 707(b)(1) establishes the means test to determine whether a presumption of 

abuse arises in a debtor’s bankruptcy case. 

2

 The provisions to which he cites, 18 U.S.C. § 152 and 157, do not clearly establish 

negligence per se.
{¶ 10} Therefore, we find the trial court properly awarded summary 

judgment in favor of the defendants. 

{¶ 11} Judgment affirmed. 

It is ordered that appellees recover from appellant 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 

common pleas court 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. 

SEAN C. GALLAGHER, JUDGE 

MARY J. BOYLE, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR