[Cite as Fabec v. Frederick & Berler, L.L.C., 2022-Ohio-376.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CHRISTINA FABEC, ET AL., : 

 

 Plaintiffs-Appellants, : 

 No. 110562 

 v. : 

 

FREDERICK & BERLER, LLC, ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 10, 2022 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-20-928443 

 

Appearances: 

Hoover & Gialluca, LLC, and Dean S. Hoover, for 

appellants. 

Gallagher Sharp, LLP, Timothy T. Brick, and Lori E. 

Brown, for appellees. 

MICHELLE J. SHEEHAN, J.: 

Appellants Christina Fabec, Brad Fabec, and Capital Management 

Holdings, LLC (“Capital Management”) (hereinafter referred to collectively as 

“appellants”) appeal the grant of summary judgment in favor of appellees Michael 
Fine, Ronald Frederick, and Frederick & Berler, LLC (hereinafter referred to 

collectively as “appellees”) in an action brought for legal malpractice. After a 

thorough review of the record and law, we affirm. 

I. PROCEDURAL HISTORY AND FACTS 

Appellants filed a legal malpractice action against appellees 

regarding their representation of Christina Fabec in litigation between her and 

Capital Management. The prior litigation was based on claims regarding collection 

efforts by Capital Management upon a debt incurred by Christina Fabec. 

Specifically, in November 2015, Christina Fabec obtained a shortterm loan from a payday lender and eventually stopped making payments. In early 

2018, debt collectors began calling Christina Fabec and some of her relatives. 

Christina Fabec and her husband, Brad Fabec, contacted Michael Fine to file a 

lawsuit against the debt collectors, having retained appellees to bring a similar 

action in 2017. Fabec and Fine learned that the owners and collection agents of 

the debt were Debt Management Partners, LLC (“Debt Management”) and Capital 

Management. 

On June 5, 2018, Fine and Frederic filed a class-action lawsuit on 

behalf of Christina Fabec against Debt Management and Capital Management in 

the Cuyahoga County Court of Common Pleas. In July 2018, Debt Management 

caused the case to be removed to the United States District Court for the Northern 

District of Ohio, Eastern Division. 
On August 20, 2018, during a court telephone conference in the 

federal case, Debt Management and Capital Management verbally offered 

Frederick and Fine $6,000 to settle the case. This offer was rejected during the 

call without consulting Christina Fabec or her husband. On September 10, 2019, 

a court-ordered mediation was held and no settlement was reached. After the 

mediation, Dan D’Elia, a member of both Debt Management and Capital 

Management called the Fabecs directly and made an offer of $10,000 to settle the 

litigation. The Fabecs accepted the offer. On September 12, 2019, Brad Fabec sent 

an email to Fine discharging appellees from representing him and his wife. 

Christina Fabec thereafter cashed the settlement check on September 13, 2019. 

On September 16, 2019, a notice of dismissal was filed in the federal 

litigation. Fine and Frederick objected to the dismissal and filed a motion for 

sanctions. Capital Management filed a motion for sanctions against appellees. The 

federal court granted the motion to dismiss and denied the motions for sanctions. 

On January 27, 2020, Christina Fabec, Brad Fabec, and Capital 

Management filed a legal malpractice complaint against appellees. In the first 

count of the complaint, the Fabecs alleged that the lawyers filed a class action in 

the federal case without their knowledge, did not inform them of the 2018 

settlement offer, and prolonged the federal litigation in order to maximize their 

own fees. In the second count of the complaint, Capital Management alleged that 

the Fabecs’ attorneys and their firm engaged in malicious conduct and acted with 
malice toward Capital Management with the motive of maximizing their fees in 

contravention of the interests of their clients. 

On November 30, 2020, appellees filed a motion for summary 

judgment. As to the first count of the complaint, they argued that because Brad 

Fabec was not a party to the federal litigation, he could not incur damages for any 

failure to settle a lawsuit to which he was not a party. As to Christina Fabec, they 

argued that there is no evidence she suffered any damages as a result of any 

malpractice that they may have committed. As to the second count of the 

complaint, appellees argued that there is no evidence that they acted with malice 

that would sustain Capital Management’s claim of legal malpractice as a third 

party. 

 On May 12, 2021, the trial court granted summary judgment. In 

deciding the motion, the trial court assumed that appellees committed legal 

malpractice by not informing Christina Fabec and her husband of the 2018 

settlement offer. Having assumed legal malpractice occurred, the trial court then 

determined as to Brad Fabec’s claim, he could not recover damages based on legal 

malpractice because he was not a party to the federal litigation. 

As to Christina Fabec’s claims, the trial court determined that she 

sustained no damages caused by the alleged legal malpractice. It found that by 

accepting a $10,000 settlement one year after she could have received a $6,000 

settlement, there was no evidence presented that there was a loss of time-value of 

money from 2018 to 2019. 
As to Christina Fabec’s potential claim that appellees could seek legal 

fees, the trial court found that appellees waived any claim to collect those fees by 

not filing a compulsory counterclaim in the instant litigation. As to her claim that 

she and her husband expended money and time opposing an eviction, the record 

showed that the eviction case was dismissed before any lawsuit was filed on 

Christina Fabec’s behalf. Regarding her claim that there was a lost opportunity for 

a larger settlement and that the underlying debt was not extinguished, the trial 

court found that her own actions in settling the case served to sever any causal 

connection between the alleged malpractice and damages from her own actions in 

settling the case. 

In finding summary judgment appropriate as to Capital 

Management’s claims, the trial court noted that there is little case law in Ohio to 

determine what constitutes malice in the context of third-party legal malpractice 

claims, concluding that as a minimum, “malice can’t be proved without something 

beyond the friction that arises from the inherently adversarial relationship 

between plaintiff’s counsel and a defendant in a lawsuit.” The trial court found 

that the rejection of the settlement offer did not amount to malice against Capital 

Management where the offer by both Debt Management and Capital Management 

was made in a proposed class-action suit before any discovery was conducted. The 

trial court concluded that 

the objective evidence of record, construed most favorably toward 

[Capital Management], does not create a genuine issue of material fact 

about whether [appellees] acted with malice, and without malice as a 
substitute for the attorney-client relationship or privity they cannot 

be liable to [Capital Management] for legal malpractice. 

II. LAW AND ARGUMENT 

A. Assignment of Error and Standards of Review 

Appellants raise one assignment of error, which reads: 

The trial court erred in granting summary judgment when the 

summary judgment evidence presented genuine issues of material 

fact. 

Civ.R. 56 (C) provides that summary judgment shall be rendered 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.” Summary 

judgment is proper where 

(1) there is no genuine issue of material fact; (2) the moving party is 

entitled to judgment as a matter of law; and (3) reasonable minds 

can come to but one conclusion and that conclusion is adverse to the 

nonmoving party, said party being entitled to have the evidence 

construed most strongly in his or her favor. 

Bohan v. McDonald Hopkins, LLC., 8th Dist. Cuyahoga No. 110060, 2021-Ohio4131, ¶ 19, citing Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 

1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 

Ohio St.3d 367, 696 N.E.2d 201 (1998). “The party moving for summary judgment 

bears the burden of demonstrating that no material issues of fact exist for trial.” 

Edvon v. Morales, 8th Dist. Cuyahoga No. 106448, 2018-Ohio-5171, ¶ 17, citing 
Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the movant 

satisfies the initial burden, then the nonmoving party has the burden to set forth 

specific facts that there remain genuine issues of material fact that would preclude 

summary judgment. Id. A trial court’s grant of summary judgment is reviewed de 

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

 In this case, the trial court granted summary judgment on claims of 

legal malpractice. In such an action, a plaintiff must show (1) an attorney-client 

relationship giving rise to a duty, (2) a breach of that duty, and (3) damages 

proximately caused by the breach. Montali v. Day, 8th Dist. Cuyahoga No. 80327, 

2002-Ohio-2715, ¶ 37, citing Krahn v. Kinney, 43 Ohio St.3d 103, 105, 538 N.E.2d 

1058 (1989). Summary judgment in a legal malpractice action is appropriate 

where a “‘plaintiff fails to establish a genuine issue of material fact as to any of the 

elements.’” New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-

Ohio-2266, 950 N.E.2d 157, ¶ 25, quoting Shoemaker v. Gindlesberger, 118 Ohio 

St.3d 226, 2008-Ohio-2012, 887 N.E.2d 1167, ¶ 8. 

B. The Trial Court Properly Granted Summary Judgment as to Brad 

and Christina Fabec’s Claims 

 In resolving the motion for summary judgment, the trial court 

presumed appellees committed malpractice by failing to present the settlement 

offer to the Fabecs. In evaluating claims in a legal malpractice claim, a plaintiff is 

required to “provide some evidence of the merits of the underlying claim” in which 

the alleged legal malpractice occurred but may not be required to prove full success 
in the underlying litigation. Vahila v. Hall, 77 Ohio St.3d 421, 428, 674 N.E.2d 

1164 (1997). In a case where a plaintiff claims she would have been better off but 

for the alleged legal malpractice, the plaintiff must show that “but for appellant’s 

conduct, they would have received a more favorable outcome in the underlying 

matter.” Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 

Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 19. Further, there must be a 

showing of damages to maintain a legal malpractice action. Montali at ¶ 37; 

Huffman v. Huntington Bancshares, Inc., 10th Dist. Franklin No. 18AP-667, 2019-

Ohio-2531, ¶ 33. 

In this case, the trial court granted summary judgment in favor of 

appellees against Brad Fabec because he was not a party to the litigation in which 

the alleged malpractice occurred, finding he could not have incurred damages. 

Brad Fabec argues that he does have standing to bring a claim because he was in 

an attorney-client relationship with appellees and that he sustained damages 

because his attorneys “lied” to him about the settlement offers. But because Brad 

Fabec was not entitled to any settlement in the federal litigation, any damages 

resulting from malpractice in that litigation would be damages available to the 

plaintiff, Christina Fabec, not to him. The trial court correctly determined Brad 

Fabec could not claim damages from malpractice occurring in litigation to which 

he was not a party and in granting summary judgment for appellees as to Brad 

Fabec’s claims. 
 Christina Fabec claimed appellees caused the following damages as 

a result of their legal malpractice, 1) the loss of use of the settlement proceeds, 2) a 

loss of time and expense contesting an eviction, 3) exposure to a claim by the 

defendants for their legal fees incurred in the federal litigation, 4) the loss of a 

larger possible settlement with Capital Management, and 5) continuing liability for 

the underlying consumer debt. The trial court found that these claims of damage 

are either unsupported by the evidence in the record or unrecoverable as a matter 

of law. We agree. 

The litigation in federal court in which the alleged malpractice 

occurred was settled. Appellees argued that because Christina Fabec settled the 

case on her own and collected more than the prior settlement offer, she cannot 

show that she was entitled to any damages, even were they found to have 

committed malpractice. In order to show there is a genuine issue of material fact 

as to damages, the record thus must contain some evidence that Christina Fabec 

sustained damages caused by appellees’ alleged malpractice and that she “would 

have received a more favorable outcome in the underlying matter.” Environmental 

Network Corp., 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, at ¶ 19. 

Christina Fabec produced no evidence that showed the receipt of a 

$6,000 settlement offer in 2018 produced actual economic damages as to any 

time-value calculation where she received a $10,000 settlement offer a year later. 

There was no evidence that would support the conclusion that $6,000 received in 

2018 was greater in value than the $10,000 she received in 2019, especially 
considering that had the original settlement offer been accepted, attorney fees and 

costs would have been deducted. 

 Christina Fabec paid appellees no fees from the $10,000 settlement 

and will not be liable for any fees that may have been due appellees because the 

trial court found appellees waived collection of those fees by not filing a 

compulsory counter claim in the lawsuit as required by Civ.R. 13(A).1 As to the 

claim she suffered damages because she could have used the money to contest an 

eviction action, that eviction action was dismissed prior to the initial offer of 

settlement. 

 Christina Fabec also claimed damages due to a lost opportunity for 

a larger settlement and because the eventual settlement did not discharge her 

original debt. However, a plaintiff seeking damages in a legal malpractice case 

must show that the alleged malpractice caused the damages. Montali, 8th Dist. 

Cuyahoga No. 80327, 2002-Ohio-2715, at ¶ 37. A plaintiff’s actions after the 

alleged legal malpractice may sever any finding of causation. Modesty v. Michael 

H. Peterson & Assocs., 8th Dist. Cuyahoga No. 85653, 2005-Ohio-6022, ¶ 12-13. 

 In this case, the trial court found, and we agree, that because 

Christina Fabec voluntarily settled the case with D’Elia, she prevented “[appellees] 

from getting any settlement from [Capital Management], much less one for more 

1 Appellees do not contest that they are precluded from attempting to collect any fees from 

Christina Fabec in the future, stating in their brief to this court, “[T]he trial court properly 

found there was no evidence that the [appellees] sought payment or that Mrs. Fabec was 

contractually obligated to pay the fees.” 
than $10,000.” (Emphasis sic.) Further, the trial court found that by negotiating 

the terms of the settlement on her own, appellees could not be liable for any 

unfavorable terms in that settlement. 

 Christina and Brad Fabec also argue that they suffered noneconomic damages that preclude summary judgment. In their complaint, the 

Fabecs sought general damages for the alleged malpractice. In defense of 

appellees’ motion for summary judgment, the Fabecs point to their own affidavits 

filed in the case that they suffered “emotional distress and outrage.” Those 

statements alone do not provide evidence that they are entitled to damages for 

emotional distress or anguish, which requires some evidence that the emotional 

injury was severe and debilitating. Cunningham v. Hildebrand, 142 Ohio App.3d 

218, 228, 755 N.E.2d 384 (8th Dist.2001); Paugh v. Hanks, 6 Ohio St.3d 72, 451 

N.E.2d 759 (1983), paragraph 3a of the syllabus; see also C.R. Withem Ents. v. 

Maley, 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, ¶ 50. Because there is 

no evidence of severe or debilitating emotional injury in the record, the trial court 

did not err by granting summary judgment as to those claims. 

 Finally, Christina and Brad Fabec both claim that the possibility of 

nominal damages prevents the grant of summary judgment. In the case of legal 

malpractice, nominal damages are not available to a plaintiff where the plaintiff 

cannot prove actual damages. See Oblak v. Lawrence, 8th Dist. Cuyahoga No. 

54473, 1988 Ohio App. LEXIS 4141 (Oct. 13, 1988) (It would be error to award 
nominal damages where no damages were proven in legal malpractice case.).2 In 

this case, there was no evidence that the alleged legal malpractice was shown to 

result in damages; accordingly, nominal damages would not be recoverable and 

the trial court did not error by granting summary judgment as to the Fabecs’ 

claims. 

C. The Trial Court Properly Granted Summary Judgment as to Capital 

Management’s Claims 

 Capital Management argues that appellees’ alleged malpractice by 

not informing Christina Fabec of the settlement offer was performed with the 

intent of harming it by prolonging the litigation. “‘[A]n attorney is immune from 

liability to third persons arising from his performance as an attorney in good faith 

on behalf of, and with the knowledge of his client, unless such third person is in 

privity with the client or the attorney acts maliciously.’” Scholler v. Scholler, 10 

Ohio St.3d 98, 103, 462 N.E.2d 158 (1984), quoting Petrey v. Simon, 4 Ohio St.3d 

154, 157, 158-159, 447 N.E.2d 1285 (1983). Capital Management thus can only 

maintain a claim of legal malpractice if it is able to show evidence that appellees 

acted with malice. 

2 The bar to recovering nominal damages in a malpractice action was first noted in Craig 

v. Chambers, 17 Ohio St. 253, 253 (1867), in which the court held, “[In] an action against 

the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence, 

or want of due skill in the defendant, will not be entitled to recover nominal damages.” In 

contrast, in a case involving an intentional tort, nominal damages could be recoverable 

without a showing of actual damages. See Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 

(1956).
 In the context of a third-party legal malpractice claim, this court has 

noted that malice “is indicative of ‘the state of mind under which a person 

intentionally does a wrongful act without a reasonable lawful excuse and with the 

intent to inflict injury under circumstances that the law will imply an evil intent.’” 

Fourtounis v. Verginis, 2017-Ohio-8577, 101 N.E.3d 101, ¶ 22 (8th Dist.), quoting, 

Criss v. Springfield Twp., 56 Ohio St.3d 82, 85, 564 N.E.2d 440 (1990), citing 

Black’s Law Dictionary 956 (6th Ed.1990). 

 The Tenth District Court of Appeals noted that it “defined ‘malice’ 

in the context of these types of cases to include actions taken by the attorney with 

an ulterior motive separate and apart from the good-faith representation of the 

client’s interests.” (Citations omitted.) Ryan v. Wright, 10th Dist. Franklin No. 

06AP-962, 2007-Ohio-942, ¶ 19. That court further noted that “[m]alice has also 

been defined in this context to imply ‘“[a] condition of mind which prompts a 

person to do a wrongful act willfully, that is, on purpose, to the injury of another 

without justification or excuse.’’’” Id., quoting Moffitt v. Litteral, 2d Dist., 

Montgomery No. 19154, 2002-Ohio-4973, ¶ 82, quoting Black’s Law Dictionary

956 (6th Ed.1990). The Second District Court of Appeals found that 

[i]n our opinion, malice, as a substitute for an attorney-client 

relationship, cannot be predicated on actions by the attorney that the 

attorney is permitted to take, or even negligently may take, as part of 

the representation of plaintiffs’ adversarial client. To constitute 

malice, the actions of the attorney must include a disregard of rights 

that the attorney, not the client, is required to protect and must 

include harm beyond that which legal action necessarily may inflict. 

In most circumstances, an attorney is not obligated to protect the 

rights of an adversary. Undoubtedly, every lawyer who throws a family 
out into the cold in the dead of winter by pursuing a forcible-entryand-detainer action has a great probability of causing harm. That 

scenario does not result in malpractice liability. Therefore, in our 

view, to constitute malice as a conscious disregard for the rights of 

others causing substantial harm that will suffice to substitute for an 

attorney-client relationship, facts must exist that demonstrate extralegal activity. 

Id. at ¶ 35. 

 In this case, the trial court found that “malice can’t be proved without 

something beyond the friction that arises from the inherently adversarial 

relationship between plaintiff’s counsel and a defendant in a lawsuit.” After 

reviewing the alleged malpractice, the failure to notify Christina Fabec of the initial 

settlement offer, the trial court concluded that appellees’ actions did not constitute 

malice. The trial court considered the circumstances in which appellees rejected 

the $6,oo0 settlement, noting that appellees were bringing a class-action suit, no 

discovery was had, and the settlement offer came from two defendants whose 

respective roles in the underlying claims were specifically not known. 

In arguing error, Capital Management does not point to any specific 

evidence of ill-will on Fine’s or Frederick’s part that would allow a reasonable 

inference that the rejection of the offer without consulting Christina Fabec was 

done separate and apart from representing the interests of their client and the 

potential class they sought to represent. Accordingly, we agree with the trial court 

that Capital Management did not present objective evidence of actual malice that 

would entitle it to assert standing to maintain its third-party action for legal 

malpractice. 
Appellants’ assignment of error is overruled. 

III. Conclusion 

 The trial court did not error in granting summary judgment to 

appellees where no recoverable damages accrued from the alleged malpractice. 

Brad Fabec could not show he suffered damages where he was not a party to the 

lawsuit in which the alleged acts of malpractice occurred. The record did not reflect 

that Christina Fabec suffered actual monetary damages due to appellees’ alleged 

malpractice. Further, where no damages are shown in a legal malpractice case, 

nominal damages are not available. Finally, Capital Management failed to allege 

facts that demonstrated appellees acted with malice intended to harm Capital 

Management. 

 Judgment affirmed. 

It is ordered that appellees recover of appellants 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. 

_____________________________ 

MICHELLE J. SHEEHAN, JUDGE 

SEAN C. GALLAGHER, A.J., and 

MARY J. BOYLE, P.J., CONCUR