[Cite as Brust v. Kravitz, 2016-Ohio-7871.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Shawn K. Brust, : 

 Plaintiff-Appellant, : 

 No. 16AP-201 

v. : (C.P.C. No. 15CVH-1926)

Janet E. Kravitz et al., : (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on November 22, 2016 

 

On brief: Shawn K. Brust, pro se. 

On brief: Janik L.L.P., Steven G. Janik, and Audrey K. 

Bentz, for appellee Janet E. Kravitz. 

On brief: Law Office of Gary S. Shroyer, and Gary S. 

Shroyer, for appellee H. Tim Merkle. 

On brief: Kegler Brown Hill + Ritter Co., LPA, Jonathan E. 

Coughlan, and Jason H. Beehler, for appellees Danny W. 

Bank and Lorie L. McCaughan. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Plaintiff-appellant, Shawn K. Brust, appeals from a judgment of the 

Franklin County Court of Common Pleas in favor of defendants-appellants Janet E. 

Kravitz, the Estate of Max Kravitz, H. Tim Merkle, Danny W. Banks, and Lorie L. 

McCaughan. For the reasons that follow, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On August 19, 1997, appellant was arrested for murder. Appellant hired 

Merkle and attorney Max Kravitz to represent him in his criminal case. There was no 
No. 16AP-201 2 

written fee agreement. On August 28, 1997, a Franklin County Grand Jury indicted 

appellant for aggravated murder in case No. 97CR-4790, with a specification that 

appellant had discharged a firearm from a motor vehicle ("drive-by specification"). The 

State of Ohio also brought a civil action against appellant seeking forfeiture of his 1986 

Subaru Trooper automobile allegedly used in the commission of the crime (case No. 

14CVH-13459). Appellant alleges that Max Kravitz also agreed to represent him in the 

forfeiture case for "the sum of $10,000.oo; from the funds paid into the defendants [sic] 

account." (Emphasis sic.) (Compl. at 3.) There was no written fee agreement. 

{¶ 3} On December 24, 1997, Merkle filed an answer on appellant's behalf in the 

forfeiture case. Bank and McCaughan of the Capital University Legal Clinic subsequently 

agreed to perform certain discovery-related work in the forfeiture case. 

{¶ 4} On October 1, 1998, a Franklin County jury found appellant guilty of murder 

but not guilty of the drive-by specification. On December 5, 1998, the trial court convicted 

appellant of murder and imposed a prison term of 15 years to life, with an additional 3 

years for a gun specification. Appellant appealed to this court from his conviction and 

sentence. On April 27, 1999, the trial court granted the parties' joint motion to stay the 

forfeiture case pending appellant's appeal of his conviction. The stay order permitted the 

parties to conduct discovery. 

{¶ 5} Appellant's complaint alleges that his state court appeal from his conviction 

and sentence concluded on August 2, 2000. Max Kravitz died in 2007, survived by his 

wife and former law partner, Janet E. Kravitz ("Kravitz"). 

{¶ 6} On March 10, 2014, approximately seven years after the death of Max 

Kravitz, the state moved the court to lift the stay in the forfeiture case due to the 

conclusion of the criminal case. The court lifted the stay on March 11, 2014. On March 

20, 2014, Bank and McCaughan moved the court for leave to withdraw as counsel for 

appellant in the forfeiture case. According to appellant's complaint, he was unaware that 

the forfeiture case had been stayed until he received correspondence from Bank informing 

him that Bank and McCaughan had recently moved the court for leave to withdraw. 

Appellant also claims that he did not know Bank and McCaughan had undertaken his 

representation in the forfeiture case until he received Bank's correspondence.
No. 16AP-201 3 

{¶ 7} Appellant filed a pro se motion for summary judgment in the forfeiture case 

on May 20, 2014. On June 27, 2014, the state dismissed the action by filing a notice of 

voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). Appellant filed a motion for the 

release of his property on August 13, 2014, which the trial court granted on October 1, 

2014.

{¶ 8} Appellant filed the instant action against appellees on March 4, 2015 

alleging legal malpractice, breach of contract, and promissory estoppel. On April 10, 

2015, Merkle filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). 

Appellant filed a memorandum in opposition on April 28, 2015. On May 4, 2015, Kravitz 

filed a motion to dismiss, pursuant to Civ.R. 12(B)(6), both individually and on behalf of 

the estate of Max Kravitz, deceased ("Estate"). Appellant filed a memorandum in 

opposition on May 19, 2015. On December 9, 2015, Bank and McCaughan ("clinic 

defendants") filed a motion for summary judgment, pursuant to Civ.R. 56(B), arguing that 

they were entitled to judgment as a matter of law due to appellant's failure to produce 

expert testimony in support of his claim of legal malpractice. Kravitz and the Estate also 

filed a motion for summary judgment on December 9, 2015, even though their prior 

motion to dismiss was still pending. 

{¶ 9} On January 20, 2016, appellant filed a motion for leave to file a motion for 

summary judgment instanter pursuant to Civ.R. 56(A). While his motion to dismiss was 

pending, Merkle also filed a motion for leave to file a motion for summary judgment 

instanter on January 21, 2016. Merkle's proposed motion and memorandum in support 

"incorporates the Motions for Summary Judgment and Reply Memorandums in Support 

of Summary Judgment filed by his co-defendants." (Jan. 21, 2016 Mot. at 2.) Merkle's 

proposed motion also incorporates his own affidavit, previously filed by Kravitz, wherein 

Merkle opines that both he and Max Kravitz met the applicable standard of care in their 

representation of appellant in the forfeiture case. On February 10, 2016, Merkle filed his 

second affidavit in support of summary judgment. 

{¶ 10} On February 22, 2016, the trial court issued two separate decisions on the 

pending motions. In the first decision, the trial court dismissed appellant's claims against 

Kravitz and the Estate as untimely filed but denied Merkle's motion to dismiss. In the 

second decision, the trial court granted Merkle's motion for leave to file a motion for 
No. 16AP-201 4 

summary judgment instanter and then granted both Merkle's motion for summary 

judgment and the motion for summary judgment filed by the clinic defendants. The trial 

court "DISMISSED AS MOOT any and all other motions."1 (Emphasis sic.) (Feb. 22, 

2016 Decision at 16.) 

{¶ 11} Appellant has appealed to this court from the judgment of the trial court.

II. ASSIGNMENTS OF ERROR 

{¶ 12} Appellant appeals and assigns the following as error: 

[1.] The Trial Court Erred In Its Misconstruction Of The Law 

Based On Erroneous Findings Of Fact To The Prejudice Of 

The Appellant In Granting Appellee Janet E. Kravitz's Motion 

To Dismiss Appellant's Compliant [sic] For Legal Malpractice 

Against The Estate Of Max Kravitz As Time-Barred Under 

R.C. § 2305.11(A). 

[2.] The Trial Court Erred In Its Misconstruction Of The Law 

Based On Erroneous Findings Of Fact To The Prejudice Of 

The Appellant By Finding That Dismissal Was Warranted 

Because Appellant Failed To Present His Claims Against The 

Estate Of Max Kravitz Within Six Months As Required By R.C. 

§ 2117.06. 

[3.] The Trial Court Erred To The Prejudice Of The Appellant 

In Granting Appellee Merkle's Motion For Summary 

Judgment Prematurely Where Appellant Filed Several 

Motion's [sic] To Strike Appellee's Motion For Summary 

Judgment And The Affidavit's [sic] Filed In Support Of The 

Motion For Summary Judgment Which Failed To Comply 

With The Mandates Set Forth In Civil Rule 56(C), Civ. R. 

56(E) And Franklin Co. Local Rules 57.02 and 21.01, Which 

Constitutes Reversible Error By The Trial Court By Failing To 

Thoroughly Examine All Appropriate Materials Filed By 

Appellant Before Ruling On The Motion For Summary 

Judgment. 

[4.] The Trial Court Erred To The Prejudice Of The Appellant 

By Granting Capital University Law Clinic Defendants' Motion 

For Summary Judgment Where The Appellees' Breach Of 

Contract And The Damages Flowing Therefrom Was So 

Apparent As To Obviate The Need For Expert Testimony. In 

This Specific Case, It Could Be Determined As A Matter Of 

 

1 On February 24, 2016, appellant moved the trial court to strike Merkle's second affidavit. 
No. 16AP-201 5 

Law Under The Four Corners Of The Oral Contract That 

Expert Testimony Is Not Required To Establish Appellant's 

Claim That Appellees' Failed to Fulfill Their Contractual 

Obligations. 

III. LEGAL ANALYSIS 

A. First Assignment of Error

{¶ 13} In appellant's first assignment of error, appellant argues that the trial court 

erred when it determined that the one-year limitation period in R.C. 2305.11(A) barred 

his claim of legal malpractice against both Kravitz and the Estate.2 We disagree. 

{¶ 14} "A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which 

relief can be granted 'is procedural and tests the sufficiency of the complaint.' " McBroom 

v. Safford, 10th Dist. No. 11AP-885, 2012-Ohio-1919, ¶ 7, quoting State ex rel. Hanson v. 

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn. for the 

Defense of the Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). "In 

order for a trial court to grant a motion to dismiss for failure to state a claim upon which 

relief can be granted, it must appear 'beyond doubt from the complaint that the plaintiff 

can prove no set of facts entitling her to relief.' " McBroom at ¶ 7, quoting Grey v. 

Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-6167, ¶ 3 (8th Dist.), citing LeRoy v. 

Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. 

{¶ 15} "An appellate court employs 'a de novo standard of review for motions to 

dismiss filed pursuant to Civ.R. 12(B)(6).' " McBroom at ¶ 9, quoting Grey at ¶ 3, citing 

Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228 (1990). "Under de 

novo analysis, we are required to 'accept all factual allegations of the complaint as true 

and draw all reasonable inferences in favor of the nonmoving party.' " McBroom at ¶ 9, 

quoting Grey at ¶ 3, citing Byrd v. Faber, 57 Ohio St.3d 56 (1991). 

{¶ 16} "Although a party may not generally raise an affirmative defense in a Civ.R. 

12(B)(6) motion, there is an exception where the existence of the affirmative defense is 

obvious from the face of the complaint." Morrow v. Reminger & Reminger Co. L.P.A., 

183 Ohio App.3d 40, 2009-Ohio-2665 (10th Dist.), ¶ 19, fn. 2; Reasoner v. Columbus, 

 

2 We note that appellant's assignments of error do not expressly challenge the trial court's dismissal of 

appellant's claim against Kravitz individually. Nevertheless, appellant raised that issue in his merit brief and 

Kravitz has responded in kind. Accordingly, we will address the dismissal of Kravitz in this decision. 
No. 16AP-201 6 

10th Dist. No. 02AP-831, 2003-Ohio-670, ¶ 12, citing Mankins v. Paxton, 142 Ohio 

App.3d 1, 9 (10th Dist.2001). For example, "[a] court may dismiss a complaint under 

Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the 

face of the complaint conclusively shows that the action is time barred." Pearson v. 

Columbus, 10th Dist. 14AP-313, 2014-Ohio-5563, ¶ 8, citing Ohio Bur. of Workers' Comp. 

v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 13. 

1. The Claim Against the Estate 

{¶ 17} Courts determine the applicable statute of limitations for a claim from the 

gist of the complaint and not from the label that a party may assign to a set of facts. 

Rumley v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 641 (10th 

Dist.1998). See also Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th Dist. No. 

98861, 2014-Ohio-25, ¶ 35, citing Hibbett v. Cincinnati, 4 Ohio App.3d 128, 131 (1st 

Dist.1982). When the gist of a complaint sounds in malpractice, the other duplicative 

claims, even those labeled as breach of contract and promissory estoppel, are subsumed 

within the legal malpractice claim. Id.

{¶ 18} The one-year statute of limitations contained in R.C. 2305.11(A) is 

applicable to all claims sounding in legal malpractice. Kravitz, Brown & Dortch, LLC v. 

Klein, 10th Dist. No. 16AP-200, 2016-Ohio-5594, ¶ 12, citing Illinois Natl. Ins. Co. v. 

Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., 10th Dist. No. 10AP-290, 2010-

Ohio-5872, ¶ 15. "[U]nder R.C. 2305.11(A), an action for legal malpractice accrues and 

the statute of limitations begins to run when there is a cognizable event whereby the client 

discovers or should have discovered that his injury was related to his attorney's act or 

non-act and the client is put on notice of a need to pursue his possible remedies against 

the attorney or when the attorney-client relationship for that particular transaction or 

undertaking terminates, whichever occurs later." (Emphasis added.) Zimmie v. Calfee, 

Halter & Griswold, 43 Ohio St.3d 54, 58 (1989), citing Omni-Food & Fashion, Inc. v. 

Smith, 38 Ohio St.3d 385 (1988). 

{¶ 19} The trial court concluded that the allegations in appellant's complaint 

conclusively established that the one-year limitations period in R.C. 2305.11(A) barred 

appellant's legal malpractice claims against the Estate. We agree. 
No. 16AP-201 7 

{¶ 20} The trial court first found that a cognizable event occurred on August 20, 

2002, when, according to appellant's complaint, the appeals in his criminal case reached a 

conclusion. The trial court reasoned that because appellant acknowledged that the legal 

basis for the state's forfeiture case was the drive-by specification in the indictment and 

because appellant was aware that the jury found him not guilty of specification, a 

reasonable person in appellant's position would have begun to make inquiries regarding 

the release of his 1986 Isuzu Trooper, at the latest, when his criminal appeals concluded. 

Appellant has not alleged that he contacted counsel regarding the return of his 1986 Isuzu 

Trooper at any time after August 20, 2002 and before the death of Max Kravitz in 2007. 

{¶ 21} Though the trial court found that the cognizable event occurred on 

August 20, 2002, the trial court did not conclude that appellant's cause of action accrued 

on that date nor did the trial court rule that appellant's malpractice claim against the 

Estate lapsed on August 20, 2003, one year after the cognizable event. Rather, the trial 

court recognized that the stay order in the forfeiture case had the affect of extending or 

tolling the limitations period for his legal malpractice claim against the Estate because the 

attorney-client relationship between appellant and Max Kravitz had not terminated. 

Along with the discovery rule, the termination rule creates an exception to the general 

principle that a claim accrues when the wrongful act occurs. Omni-Food. See also

Clemens v. Nelson Fin. Group, Inc., 10th Dist. No. 14AP-537, 2015-Ohio-1232, ¶ 48. In 

determining the accrual date of claims for legal malpractice, courts apply the discovery 

rule in combination with the termination rule. Id. Under the termination rule, accrual 

occurs when the attorney-client relationship for a particular transaction or undertaking 

terminates. Id., citing Omni-Food at paragraph one of the syllabus. 

{¶ 22} There is no dispute that Max Kravitz died in 2007. " 'Death is a tyrant that 

disregards all the relations between attorney and client; his stroke dissolves them.' " 

England v. Barstow, 30 Ohio App.2d 42, 44 (4th Dist.1972), quoting Cisna's Admr. v. 

Beach, 15 Ohio 300, 301 (1846). Because the attorney-client relationship is a personal 

one, the death of either the client or the attorney terminates the attorney-client 

relationship. Id. See also Liberty Mut. Ins. Co. v. Paris, 8th Dist. No. 74064 (May 20, 

1999). "[A] lawyer's actual authority to represent a client ends when * * * the lawyer dies." 

Restatement of the Law 3d, The Law Governing Lawyers, Section 31(2)(d) (2000). 
No. 16AP-201 8 

{¶ 23} Because the attorney-client relationship between appellant and Max Kravitz 

terminated on the death of Max Kravitz in 2007, appellant's cause of action against the 

Estate for legal malpractice accrued in 2007, regardless whether the forfeiture case was 

still pending. Appellant did not file his complaint against the Estate until 2015, well 

beyond the one-year statute of limitations applicable to legal malpractice claims. Because 

the allegations of the complaint conclusively establish that appellant's cause of action for 

legal malpractice against the Estate lapsed in 2008, the trial court did not err when it 

dismissed appellant's complaint against the Estate, pursuant to Civ.R. 12(B)(6), for failure 

to state a claim on which relief can be granted. 

2. The Claim Against Kravitz Individually

{¶ 24} Appellant does not allege that Kravitz represented him in the forfeiture case 

or that she performed any legal work in that case. Accordingly, appellant's claim of legal 

malpractice against Kravitz is vicarious in nature. Under Ohio law, "a law firm may be 

vicariously liable for legal malpractice only when one or more of its principals or 

associates are liable for legal malpractice." Natl. Union Fire Ins. Co. v. Wuerth, 122 Ohio 

St.3d 594, 2009-Ohio-3601, ¶ 26. "The vicarious liability of a law firm and its principals 

* * * presupposes that a firm principal or employee is liable on one or more claims * * * 

and considers when the firm itself and each of its principals share in that liability." 

(Emphasis sic.) Id. at ¶ 25, quoting Restatement of the Law 3d, The Law Governing 

Lawyers, Section 58, Comment a (2000). 

{¶ 25} As we have affirmed the trial court's determination that R.C. 2305.11(A) 

barred appellant's legal malpractice claim against the Estate, Kravitz cannot be vicariously 

liable to appellant in her capacity as a partner in Kravitz & Kravitz. Accordingly, even if 

Ohio law permitted vicarious liability among partners in a law firm under the 

circumstances in this case, Kravitz cannot be vicariously liable to appellant because the 

applicable statute of limitations bars appellant's claim against the Estate. 

{¶ 26} For the foregoing reasons, appellant's first assignment of error is overruled. 

B. Second Assignment of Error 

{¶ 27} In appellant's second assignment of error, appellant takes exception to the 

trial court's alternative holding that R.C. 2117.06 barred appellant's claim against the 

Estate. R.C. 2117.06(A) and (B), pertaining to claims against a decedent's estate, provides 
No. 16AP-201 9 

that "[a]ll creditors having claims against an estate, including claims arising out of * * * 

tort * * * shall be presented within six months after the death of the decedent." Pursuant 

to R.C. 2117.06(C), claims not presented within six months after the death of the decedent 

are "forever barred." 

{¶ 28} The Estate argues that R.C. 2117.06(C) barred appellant's legal malpractice 

claim against the Estate due to appellant's failure to assert his claim within six months of 

the death of decedent. Appellant counters that he is not seeking recovery from the assets 

of the Estate but from the proceeds of any insurance policy owned by Max Kravitz during 

his lifetime that may have provided coverage for appellant's malpractice claim. 

Accordingly, appellant contends that his claim is exempted from R.C. 2117.06(C) by 

operation of R.C. 2117.06(G). 

{¶ 29} R.C. 2117.06(G) provides as follows: 

Nothing in this section or in section 2117.07 of the Revised 

Code shall be construed to reduce the periods of limitation or 

periods prior to repose in section 2125.02 or Chapter 2305. 

of the Revised Code, provided that no portion of any 

recovery on a claim brought pursuant to that section or any 

section in that chapter shall come from the assets of an estate 

unless the claim has been presented against the estate in 

accordance with Chapter 2117. of the Revised Code. 

{¶ 30} In overruling appellant's first assignment of error, we held that the trial 

court did not err when it determined that R.C. 2305.11(A) barred appellant's legal 

malpractice claim against the Estate because appellant did not file his complaint within 

one year of the death of Max Kravitz. Consequently, even if we accept appellant's 

contention that he is seeking recovery exclusively out of insurance proceeds and not from 

the assets of the estate, any trial court error with respect to its alternative holding under 

R.C. 2117.06 is harmless error. Appellant's legal malpractice claim against the Estate is 

time-barred regardless of whether appellant seeks recovery against the assets of the Estate 

or from a policy of insurance. 

{¶ 31} Accordingly, appellant's second assignment of error is overruled. 

C. Third Assignment of Error 

{¶ 32} In appellant's third assignment of error, appellant contends that the trial 

court erred when it granted summary judgment in favor of Merkle. We disagree. 
No. 16AP-201 10 

{¶ 33} Pursuant to Civ.R. 56(C), 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. Harless v. 

Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary 

judgment on grounds that the non-moving party cannot prove its case, the moving party 

bears the initial burden of informing the trial court of the basis for the motion and 

identifying those portions of the record that demonstrate the absence of a genuine issue of 

material fact on an essential element of the non-moving party's claims." Lundeen v. 

Graff, 10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 

280, 293 (1996). Once the moving party meets its initial burden, the nonmovant must set 

forth specific facts demonstrating a genuine issue for trial. Dresher at 293. 

{¶ 34} Appellate review of summary judgments 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. "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." Id., 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." Id., 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). 

{¶ 35} "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, 77 

Ohio St.3d 421 (1997), syllabus. " 'If the party moving for summary judgment in a 

negligence action can point to evidence illustrating that the nonmoving party will be 
No. 16AP-201 11 

unable to prove any one of these elements, then the movant is entitled to judgment as a 

matter of law.' " Chilton-Clark v. Fishel, 10th Dist. No. 16AP-76, 2016-Ohio-7135, ¶ 11, 

quoting Second Natl. Bank of Warren v. Demshar, 124 Ohio App.3d 645, 648 (11th 

Dist.1997). 

{¶ 36} In McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112 (1984), 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. " '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.' " Lundeen at 

¶ 17, quoting Northwestern Life Ins. Co. v. Rogers, 61 Ohio App.3d 506, 512 (10th 

Dist.1989). Accordingly, " '[i]n all but a few cases, expert testimony is required to support 

allegations of professional malpractice.' " Lundeen at ¶ 17, quoting Party Dock, Inc. v. 

Nasrallah, 10th Dist. No. 99AP-1345 (Oct. 5, 2000), citing Bruni v. Tatsumi, 46 Ohio 

St.2d 127, 130 (1976). 

{¶ 37} " '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 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). Here 

appellant alleges that his attorneys, including Merkle, breached a duty of care owed to 

him by failing to enter written fee agreements, failing to properly allocate fees between his 

criminal case and forfeiture case, failing to move the court for the return of his vehicle on 

the completion of his criminal case on October 30, 1998, improperly seeking a stay in the 

forfeiture case, and failing to request the stay be lifted on August 2, 2000. Appellant also 

alleges that the liability of each attorney who represented him in his forfeiture case is joint 

and several. 

{¶ 38} In his motion for summary judgment, Merkle relied on his own affidavit in 

support of his motion for summary judgment. Merkle's co-defendant, Kravitz, submitted 
No. 16AP-201 12 

Merkle's first affidavit on January 15, 2016, as an exhibit to a reply brief in support of the 

motion for summary judgment on behalf of Kravitz individually and the Estate. The trial 

court expressly relied on Merkle's first affidavit in granting Merkle's motion for summary 

judgment. The affidavit provides, in relevant part, as follows: 

2. I am an attorney duly licensed to practice law in the state of 

Ohio since 1979. 

* * * 

5. In 1997, I, along with Max Kravitz ("Max"), were retained 

by the parents of Shawn Brust to represent him in relation to a 

criminal charge against him for aggravated murder, among 

other things. 

6. In addition to the criminal case, a civil forfeiture action was 

filed in which Mr. Brust's 1986 Isuzu Trooper ("Vehicle") was 

sought to be forfeited by the State of Ohio ("Forfeiture 

Action"). 

7. Following a criminal jury trial, Mr. Brust was convicted of 

the lesser charge of murder and sentenced by the Court to 18 

years to life in prison. 

8. Following his conviction for murder, Mr. Brust expressed 

no desire or concern to me about the status of the Vehicle or 

the return of it to him. 

9. Despite the fact that the Vehicle was not returned to Mr. 

Brust immediately following the criminal trial, the State of 

Ohio was under no obligation to dismiss or drop the 

Forteiture Action and could have elected to proceed in the 

Forfeiture Action. 

10. Based on this, it is unlikely that the Vehicle would have 

been returned to Mr. Brust immediately following the 

criminal case. 

11. Mr. Brust has suffered no damage as the vehicle was 

ultimately released to him after the State of Ohio dismissed its 

Forfeiture Action. 

* * * 
No. 16AP-201 13 

13. Based upon my knowledge, experience, training, and 

education, the actions undertaken by both Max and me on 

behalf of Mr. Brust in handling his matters were at or above 

the standard of care for such representation in the legal 

community.

14. The opinions expressed herein are made with a 

reasonable degree of professional certainty. 

(Emphasis added.) (Merkle Aff. at 1-2.) 

{¶ 39} An affidavit from the acting attorney is a legally sufficient basis on which to 

grant a motion for summary judgment in a legal malpractice action absent any opposing 

affidavit of a qualified expert witness for the plaintiff. Yates at ¶ 17. The trial court 

determined that Merkle's affidavit provided the necessary evidentiary support for 

Merkle's argument that he met the applicable standard of care in his representation of 

appellant in the forfeiture case. The trial court granted summary judgment in favor of 

Merkle because appellant failed to produce rebuttal testimony from a legal expert 

establishing the applicable standard of care, a breach of the standard of care by Merkle, 

and damages proximately caused thereby. 

{¶ 40} Appellant's position throughout this litigation has been that expert 

testimony is not required for him to satisfy the elements of his claim for legal malpractice. 

Consequently, in opposing summary judgment, appellant has produced no expert opinion 

testimony that Merkle breached a duty of care owed to appellant. Nor has appellant 

presented the testimony of an expert witness in support of his claim that Merkle may be 

held jointly and severally liable to him, under the circumstances of this case, for any 

breach of the applicable standard of care by Max Kravitz. 

{¶ 41} As noted above, expert testimony is not required only in cases in which the 

breach is " 'so obvious that it may be determined by the court as a matter of law,' " Bloom 

v. Dieckmann, 11 Ohio App.3d 202 (1st Dist.1983), quoting Annotation, 14 A.L.R.4th 170, 

173 (1982), or where the claimed breach of a professional duty is within the common 

understanding of a layman. Lundeen at ¶ 17, citing McInnis at 113. For example, "[t]he 

failure to abide by a client's specific instructions may be sufficient to establish a breach of 

a professional duty without expert testimony." Dimacchia v. Burke, 904 F.2d 36 (6th 

Cir.1990), citing McInnis at 113. Similarly, expert testimony may not be necessary to 
No. 16AP-201 14 

support a legal malpractice claim where the attorney fails to file a viable claim before the 

statute of limitations expires. DePugh v. Sladoje, 111 Ohio App.3d 675, 681-82 (2d 

Dist.1996). 

{¶ 42} In Yates, the plaintiff brought a malpractice action against Brown, an 

attorney who represented her in her divorce action. Plaintiff alleged that Brown was 

negligent in the performance of his duties. Plaintiff also filed a complaint for malpractice 

against another attorney who had represented her in the same divorce action. The trial 

court granted summary judgment in favor of Brown because he had presented evidence 

that the plaintiff had not produced expert testimony in support of her claim. In affirming 

the trial court's ruling, the Ninth District Court of Appeals stated: 

Where multiple attorneys were involved in the underlying 

representation, and where the plaintiffs have alleged negligent 

representation by more than one attorney, the trial court did 

not err by concluding that expert testimony was necessary to 

establish a prima facie case of legal malpractice in regard to an 

individual attorney. In fact, expert testimony would be critical 

under these circumstances to determining causation and 

either parsing or eliminating liability. 

Id. at ¶ 24. 

{¶ 43} Appellant has not alleged that he gave any specific instructions to Merkle 

regarding the forfeiture case. Nor has appellant alleged that his property was forfeited 

due to Merkle's failure to take any particular action in his forfeiture case. Additionally, 

appellant's allegations regarding attorney fees are not within the common understanding 

of laymen or so obvious that it may be determined by the court as a matter of law. Nor is 

the appropriate legal strategy in the defense of a civil forfeiture case. Given the allegations 

of legal malpractice raised by appellant in this case, we hold that the trial court did not err 

when it determined that appellant was required to produce expert testimony to both 

support his prima facie case for legal malpractice and to overcome Merkle's properly 

supported motion for summary judgment. 

{¶ 44} Additionally, as was the case in Yates, appellant has sued several attorneys 

who represented him in the forfeiture case. Like the plaintiff in Yates, appellant has failed 

to produce expert testimony in support of his claim of legal malpractice. Moreover, each 

of the attorneys who represented appellant in this case, with the exception of decedent, 
No. 16AP-201 15 

Max Kravitz, has filed an affidavit averring that they met the applicable standard of care 

in their representation of appellant. Under these circumstances, expert testimony was 

required to establish appellant's prima facie case of legal malpractice in regard to any 

single attorney who represented him in the forfeiture case including expert opinion 

regarding causation and the parsing or elimination of individual attorney liability. Id. See

also Gijbertus D.M. van Sommeren v. Gibson, 6th Dist No. L-12-1144, 2013-Ohio-2602 

(though there is no general requirement for expert testimony on the causation element of 

a legal malpractice claim, certain factual circumstances, such as multiple attorney 

representation, may make such testimony necessary); Troyer v. Hardin, N.D. Ohio No. 

5:10CV2391 (Feb. 17, 2012), citing Yates (where client "asserted malpractice was 

committed by numerous attorneys, she cannot demonstrate that [one attorney] was the 

proximate cause of any damage without expert testimony that would differentiate 

between [that particular attorney] and the [other] defendants"). Appellant's failure to 

produce the required expert testimony in opposition to Merkle's properly supported 

motion for summary judgment prevents a judgment in appellant's favor as a matter of 

law. 

{¶ 45} In order to avoid the impact of Merkle's affidavit and appellant's own failure 

to produce expert testimony in support of his malpractice claim, appellant's third 

assignment of error challenges the admissibility of Merkle's affidavit and argues that the 

trial court prematurely ruled on Merkle's motion for summary judgment. 

{¶ 46} Appellant first contends that the affidavits filed by Merkle in support of his 

motion for summary judgment contain conclusory assertions that are not admissible in 

evidence. We disagree. 

{¶ 47} "When an affidavit containing opinions is made part of a motion for 

summary judgment, it is properly considered by a trial or reviewing court when it meets 

the requirements set forth in Civ.R. 56(E) and the Ohio Rules of Evidence." Franjesh v. 

Berg, 9th Dist. No. 17534 (Oct. 2, 1996), citing Tomlinson v. Cincinnati, 4 Ohio St.3d 66 

(1983). Civ.R. 56(E) requires that supporting affidavits "be made on personal knowledge, 

shall set forth such facts as would be admissible in evidence, and shall show affirmatively 

that the affiant is competent to testify to the matters stated in the affidavit." Pursuant to 

Evid.R. 705, an "expert may testify in terms of opinion or inference and give the expert's 
No. 16AP-201 16 

reasons therefor after disclosure of the underlying facts or data." Pursuant to Evid.R. 704, 

an expert's opinion is not objectionable solely because it embraces an ultimate issue to be 

decided by the trier of fact if that opinion is otherwise admissible. Douglass v. Salem 

Community Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, ¶ 20 (7th Dist.). 

{¶ 48} In this instance, Merkle avers that he is an attorney licensed to practice law 

in the state of Ohio, he has personal knowledge of the relevant facts and circumstances 

underlying his representation of appellant in both the criminal case and the forfeiture 

case, and his opinions regarding the applicable standard of care and breach are based on 

his knowledge, experience, training, and education as an attorney. Thus, the averments in 

Merkle's affidavits are admissible opinions and not unsupported conclusions. 

{¶ 49} Appellant next argues that the trial court violated Loc.R. 57.02 of the Court 

of Common Pleas of Franklin County, General Division, and abused its discretion when it 

considered Merkle's affidavit because it was not attached to his motion for summary 

judgment. We disagree. 

{¶ 50} Loc.R. 57.02 provides that "[a]ll affidavits, depositions, and other 

evidentiary materials permitted by Civ.R. 56(C) in support of or in opposition to the 

motion for summary judgment shall be filed with the motion." The record shows that 

Kravitz timely submitted Merkle's affidavit on January 15, 2016, as support for the motion 

for summary judgment she filed on her own behalf and on behalf of the Estate. Kravitz 

filed the motion for summary judgment prior to the time Merkle filed his motion for 

summary judgment. Merkle's proposed motion for summary judgment expressly 

incorporated his own previously filed affidavit. Civ.R. 56(C) provides, in relevant part, 

that "[s]ummary 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." (Emphasis added.) 

{¶ 51} There is nothing in the Ohio Rules of Civil Procedure or the Local Rules of 

the Franklin County Court of Common Pleas that expressly prohibits a party from joining 

a motion filed by a co-defendant or incorporating evidentiary materials filed by a codefendant. Appellant's literal interpretation of Loc.R. 57.02 is inconsistent with Civ.R. 
No. 16AP-201 17 

56(C) and does not advance the stated purpose of the local rules, which is to expedite the 

disposition of civil cases while at the same time safeguarding the rights of litigants and the 

just processing of their cases. See Rules of Practice of the Court of Common Pleas, 

Statement of Purpose. Moreover, appellant cannot claim unfair prejudice arising from 

the trial court's consideration of Merkle's affidavit given the fact that appellant had prior 

notice of the affidavit and a reasonable opportunity to submit rebuttal evidence. On this 

record, we find that the trial court did not abuse its discretion in denying appellant's 

motion to strike and in considering Merkle's affidavit in ruling on Merkle's motion for 

summary judgment. 

{¶ 52} Appellant next contends that the trial court violated Loc.R. 21.01 when it 

prematurely ruled on Merkle's motion for summary judgment. Loc.R. 21.01 provides as 

follows: 

All motions shall be accompanied by a brief stating the 

grounds and citing the authorities relied upon. The opposing 

counsel or a party shall serve any answer brief on or before the 

14th day after the date of service as set forth on the certificate 

of service attached to the served copy of the motion. The 

moving party shall serve any reply brief on or before the 7th 

day after the date of service as set forth on the certificate of 

service attached to the served copy of the answer brief. On the 

28th day after the motion is filed, the motion shall be deemed 

submitted to the Trial Judge. 

(Emphasis added.) 

{¶ 53} As noted above, Merkle filed his motion for leave on January 21, 2016. 

Appellant opposed the motion and moved to strike Merkle's first affidavit. On 

February 22, 2016, the trial court granted Merkle's motion for leave instanter and denied 

the motion to strike. Accordingly, Merkle's motion for summary judgment was deemed 

filed on January 21, 2016. Under Loc.R. 21.01, Merkle's motion for summary judgment 

was deemed submitted on February 18, 2016. Thus, the trial court did not violate Loc.R. 

21.01 when it ruled on the motion on February 22, 2016. 

{¶ 54} To the extent that appellant argues that he was unfairly prejudiced by the 

trial court's consideration of Merkle's second affidavit filed on February 10, 2016, there is 

no indication in the trial court's decision that it considered the second affidavit. The trial 
No. 16AP-201 18 

court quoted appellant's previously filed affidavit and expressly relied on the opinions 

expressed in that affidavit when it granted Merkle's motion for summary judgment. The 

trial court did not mention Merkle's second affidavit. Moreover, because the trial court 

had not yet ruled on appellant's motion for leave to file a motion for summary judgment 

instanter, Merkle's second affidavit was timely filed in opposition thereto. See Civ.R. 

56(C). Consequently, the record does not disclose any trial court error with regard to 

Merkle's second affidavit. 

{¶ 55} Finally, to the extent that appellant claims that the trial court failed to 

consider evidence appellant submitted in opposition to the motion for summary 

judgment, we note that the trial court decision contains a detailed recitation of the 

evidentiary materials submitted by appellant. Thus, the record demonstrates that the trial 

court considered appellant's evidence but found it to be insufficient to create a genuine 

issue of material fact in light of the unrebutted expert testimony submitted by Merkle. 

{¶ 56} For the foregoing reasons, appellant's third assignment of error is 

overruled. 

 D. Fourth Assignment of Error 

{¶ 57} In appellant's fourth assignment of error, appellant contends that the trial 

court erred when it granted summary judgment in favor of the clinic defendants. We 

disagree. 

{¶ 58} The clinic defendants timely filed their own affidavits in opposition to 

appellant's motion for leave to file a motion for summary judgment instanter. The trial 

court relied on the affidavits in granting summary judgment. McCaughan's affidavit 

provides, in relevant part, as follows: 

3. I am a licensed attorney in Ohio * * *. 

4. I am a Professor of Clinical Studies for the Capital 

University Law School and co-director of the Capital Legal 

Clinic * * *. 

* * * 

6. In the fall of 1999, Columbus attorney Max Kravitz 

approached the Capital Legal Clinic for assistance with 

drafting and serving discovery in a civil forfeiture action 
No. 16AP-201 19 

related to a criminal matter that he and attorney Tim Merkle 

had been handling for a criminal defendant named Shawn 

Brust. 

* * * 

8. Mr. Kravitz asked if Danny Bank and I would agree to 

assist (pro bono) in drafting and serving discovery in the civil 

forfeiture matter, which we agreed to do. The sole purpose for 

which my services were engaged was to pursue discovery in 

the civil forfeiture action. 

9. Accordingly, Mr. Bank and I drafted discovery requests, 

filed a notice of appearance in the civil forfeiture action on 

October 19, 1999, and served discovery requests that same day 

on the Franklin County Prosecutor's Office. 

10. We received responses to the discovery requests that we 

served. 

11. We had no further involvement with this matter * * *. 

12. Although I understand that Mr. Kravitz was paid for his 

work on the criminal matter, neither I nor the Capital Legal 

Clinic received any financial payment of any kind in return for 

our services in drafting and serving discovery in the civil 

forfeiture matter. We performed the work pro bono. 

* * * 

16. * * * I believe to a reasonable degree of professional 

certainty that my actions in representing Mr. Brust in a 

limited capacity in the forfeiture action met the acceptable 

standard of professional care.

(Emphasis added.)3 (Jan. 25, 2016 Memo. in Opp., Ex. B at 1-2.) 

{¶ 59} As noted above, appellant failed to produce expert testimony in support of 

his legal malpractice claim. Appellant argues that expert testimony is not necessary to 

create an issue of fact regarding either a breach of the applicable standard of care by the 

clinic defendants or a causal connection between the alleged breach and appellant's 

damages. As noted in connection with appellant's third assignment of error, appellant's 

 

3 The averments in the affidavit of Bank mirror those of McCaughan. 
No. 16AP-201 20 

allegations of legal malpractice in this case are neither within the common understanding 

of laymen or so obvious that it may be determined by the court as a matter of law. 

Accordingly, Ohio law required appellant to present expert testimony in order to satisfy 

the elements of his prima facie case for legal malpractice and to rebut the expert opinion 

testimony regarding the applicable standard of care. Appellant also failed to present 

expert testimony in support of his theory that under the circumstances of this case, each 

of the attorneys who represented him in the forfeiture case are jointly and severally liable 

to him for any breach of the standard of care that may have occurred during his 

representation. 

{¶ 60} The clinic defendants have presented undisputed evidence that they agreed 

to represent appellant in the forfeiture case for the limited purpose of drafting and serving 

written discovery. The clinic defendants also produced undisputed expert opinion 

testimony that in representing appellant in a limited capacity in the forfeiture case that 

they met the acceptable standard of professional care performing legal work for appellant. 

Appellant failed to produce any competent evidence to rebut the expert opinion testimony 

of Bank and McCaughan. Accordingly, we hold that the trial court did not err when it 

granted summary judgment in favor of the clinic defendants. Appellant's fourth 

assignment of error is overruled. 

IV. CONCLUSION 

{¶ 61} Having overruled appellant's assignments of error, we affirm the judgment 

of the Franklin County Court of Common Pleas. 

Judgment affirmed.

TYACK and KLATT, JJ., concur. 

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