[Cite as Bates v. Meranda, 2016-Ohio-5749.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BRYAN W. BATES : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellant : Hon. William B. Hoffman, J. 

 : Hon. John W. Wise, J. 

-vs- : 

 : 

ZACHUARY MERANDA, ET AL. : Case No. 16-CA-28 

 : 

 Defendants- Appellees : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 15CV1053 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: September 2, 2016 

APPEARANCES: 

For Plaintiff-Appellant For Defendants-Appellees 

BRYAN BATES, Pro Se RICK E. MARSH 

P.O. Box 5500 ERIC S. BRAVO 

Chillicothe, OH 45601 Two Miranova Place 

 Suite 220 

 Columbus, OH 43215 
Licking County, Case No. 16-CA-28 2 

Farmer, P.J. 

{¶1} In May 2014, appellant, Brian Bates, hired appellees, Zachuary Meranda 

and the Meranda Law Firm, Ltd., to pursue a motion for judicial release on his behalf. 

Appellant was serving time in Chillicothe Correctional Institution. Because appellant 

was incarcerated, he asked his sister, LaDonna Cordell, to act as his agent in hiring 

appellees. 

{¶2} Ms. Cordell paid appellees $2,500 on behalf of appellant. On October 22, 

2014, appellees filed the motion for judicial release. By judgment entry filed November 

13, 2014, the trial court denied the motion. 

{¶3} On June 29, 2015, appellees filed a second motion for judicial release in 

contravention of appellant's April 2015 request not to do so, as appellant believed the 

October motion misrepresented several key material facts. On July 7, 2015, unaware 

that the second motion had been filed, appellant filed a pro se motion for judicial 

release. By judgment entry filed July 27, 2015, the trial court denied both motions. 

{¶4} In September 2015, appellant sent a letter to appellees requesting the 

return of the $2,500. Appellees denied the request. 

{¶5} On December 8, 2015, appellant filed a pro se complaint against 

appellees, claiming legal malpractice and fraud. Each side filed motions for summary 

judgment. By judgment entry filed April 21, 2016, the trial court granted appellees' 

motion for summary judgment and denied appellant's. 

{¶6} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 
Licking County, Case No. 16-CA-28 3 

I 

{¶7} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING 

DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS 

THAT NO "EXPERT AFFIDAVIT" WAS FILED WITH THE COURT ADDRESSING THE 

STANDARD OF CARE AND BREACH OF THAT STANDARD BY APPELLEES." 

II 

{¶8} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING 

DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS 

THAT PLAINTIFF-APPELLANT FAILED TO PLEAD THE CIRCUMSTANCES 

CONSTITUTING FRAUD." 

III 

{¶9} "THE TRIAL COURT ERRED AS MATTER OF LAW IN DENYING 

PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO 

CIVIL RULE 56." 

I, II, III 

{¶10} Appellant claims the trial court erred in granting summary judgment to 

appellees and in denying his motion for summary judgment. Appellant claims appellees' 

errors were so obvious no expert affidavit was needed, and the trial court erred in 

finding he failed to plead with specificity the elements of fraud. We disagree. 

{¶11} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: 
Licking County, Case No. 16-CA-28 4 

 Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any 

material fact remains to be litigated, (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 viewing such 

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. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 

628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 

Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274. 

{¶12} As an appellate court reviewing summary judgment motions, we must 

stand in the shoes of the trial court and review summary judgments on the same 

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio 

St.3d 35 (1987). 

{¶13} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 

15CA56, 2015-Ohio-4444, ¶ 13: 

 It is well established the party seeking summary judgment bears 

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

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 

L.Ed.2d 265(1986). The standard for granting summary judgment is 

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: "***a party 
Licking County, Case No. 16-CA-28 5 

seeking summary judgment, on the ground that the nonmoving party 

cannot prove its case, 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 the 

essential element(s) of the nonmoving party's claims. The moving party 

cannot discharge its initial burden under Civ.R. 56 simply by making a 

conclusory assertion the nonmoving party has no evidence to prove its 

case. Rather, the moving party must be able to specifically point to some 

evidence of the type listed in Civ.R. 56(C) which affirmatively 

demonstrates the nonmoving party has no evidence to support the 

nonmoving party's claims. If the moving party fails to satisfy its initial 

burden, the motion for summary judgment must be denied. However, if 

the moving party has satisfied its initial burden, the nonmoving party then 

has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts 

showing there is a genuine issue for trial and, if the nonmovant does not 

so respond, summary judgment, if appropriate, shall be entered against 

the nonmoving party." The record on summary judgment must be viewed 

in the light most favorable to the opposing party. Williams v. First United 

Church of Christ (1974), 37 Ohio St.2d 150. 

{¶14} In his December 8, 2015 complaint against appellees, appellant alleged 

legal malpractice and fraud. In his April 6, 2016 motion for summary judgment, 
Licking County, Case No. 16-CA-28 6 

appellant argued the two motions for judicial release filed by appellees contained 

specific falsehoods: 

 [T]his is not a complicated land transaction or whether the motion 

for judicial release could have been better written or even a case of an 

outrageous fee. It simply involves an attorney that for what ever reason 

filed not one, but two motions for judicial release that contain the exact 

same fraudulent information despite being instructed not to file a second 

motion for judicial release. This case is not even an interpretation of law, 

as it would never benefit a client to lie to the sentencing judge about facts 

related to the sentence he imposed, nor would it ever be ethical for an 

attorney to to (sic) file a motion that contained fraudulent facts. This is 

certainly a case that could be determined by this Court and is within the 

knowledge of a layperson. 

{¶15} Attached to the motion were the two motions for judicial release, one filed 

on October 22, 2014, and the second filed on June 29, 2015. Appellant complains of 

the following identical information contained in each motion: 

 In support of this Motion for Judicial Release, the Defendant 

submits the following as evidence of his rehabilitation and motivation to 

become a productive member of society. The offense was committed 

under circumstances unlikely to recur. Prior to the offense, the Defendant 
Licking County, Case No. 16-CA-28 7 

had never accepted responsibility and treatment for his actions. Since the 

Defendant's incarceration, he has made full use of the programs available 

to him in prison. In addition to Defendant's participation in the available 

programs, the Defendant has taken advantage of the opportunity to 

become employed through the prison and has held various job since he 

began his prison term.*** 

 *** 

 The Defendant shows genuine remorse for the offense. At 

sentencing he demonstrated his remorse for his actions. The Defendant 

realizes the gravity of his crime, and its impact not only upon himself, but 

his family, friends and society as a whole. He is greatly remorseful for his 

irresponsible and illegal behavior and has expressed the same to 

Counsel, the Court, and all involved. 

{¶16} Also attached to the summary judgment motion was a letter appellant had 

sent to appellees prior to the motions being filed wherein appellant claimed his 

continued innocence and informed appellees of the following: 

 I have not been able to take any of what the State deems as 

rehabilitative classes. In 2008 I was told I did not need any class but 

could be placed on a waiting list. I sign up for the classes only to be told I 

have too much time and they put me on a waiting list. My case manager 

said she would get me into victim awareness before you file in October. 
Licking County, Case No. 16-CA-28 8 

She has previously promised she get me in the same class for the last two 

years. 

{¶17} In its April 21, 2016 judgment entry granting summary judgment to 

appellees, the trial court determined the following: 

 Defendant Meranda's affidavit asserts that he acted in accord with 

his duty to plaintiff and the requisite standard of care. Plaintiff failed to 

provide the Court with an affidavit from an expert addressing the standard 

of care and breach of that standard by the defendant. Further, even 

assuming plaintiff's assertion that defendant breached the duty of care, he 

has come forth with no evidence that the alleged breach was the 

proximate cause of any damages. Thus, defendants are entitled to 

judgment on this claim. 

 Plaintiff's second claim is for fraud. This claim fails to meet the 

requirements of Civ.R. 9(B) as plaintiff has not pleaded the circumstances 

constituting fraud with any particularity in the complaint. Plaintiff asserts in 

various pleadings that defendants made fraudulent statements in the 

motions filed with the Guernsey County Court of Common Pleas. Plaintiff 

does not allege, however, that defendants committed a fraudulent act 

against him. Plaintiff, according to his own allegations, was aware that the 

alleged fraudulent statements made to the Court were false. Therefore, 
Licking County, Case No. 16-CA-28 9 

he could not have justifiably relied upon them to his detriment. 

Accordingly, defendants are entitled to judgment on this claim. 

{¶18} In his December 8, 2015 complaint, appellant's first cause of action was 

for legal malpractice. To prevail on a legal malpractice claim, appellant must prove: "(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-Ohio-259, 

syllabus. "In all but a few cases, expert testimony is required to support allegations of 

legal malpractice." Brunstetter v. Keating, 11th Dist. Trumbull No. 2002-T-0057, 2003-

Ohio-3270, ¶ 16. As explained by our brethren from the Eleventh District in Passerall v. 

Cordell, 11th Dist. Ashtabula No. 2014-A-0050, 2015-Ohio-1767, ¶ 28: 

 "The merits of the malpractice action often depend on the merits of 

the underlying case when proximate cause is an issue. As such, a plaintiff 

in a legal malpractice action may be required to demonstrate the merits of 

the underlying claim. Eastminster Presbytery v. Stark & Knoll, 9th Dist. 

No. 25623, 2012-Ohio-900, ¶ 6, citing Vahila at 427-428. Although the 

Ohio Supreme Court has held that the 'case-within-a-case' doctrine does 

not apply to every legal malpractice case, Vahila at 428, it remains 

relevant in cases where 'the theory of the malpractice case places the 

merits of the underlying litigation directly at issue.' Eastminster at ¶ 7, 
Licking County, Case No. 16-CA-28 10 

quoting Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 

119 Ohio St.3d 209, 2008-Ohio-3833,***¶ 18. In order to prove causation 

in these cases, the plaintiff must prove that but for the attorney's 

negligence, the plaintiff would have obtained a better outcome in the 

underlying case. Eastminster at ¶ 7, citing Environmental Network at ¶ 18. 

In this way, '[a]ll the issues that would have been litigated in the previous 

action are litigated between the plaintiff and the plaintiffs former lawyer, 

with the latter taking the place and bearing the burdens that properly 

would have fallen on the defendant in the original action. Similarly, the 

plaintiff bears the burden the plaintiff would have borne in the original 

trial(.) Id., quoting Restatement of the Law 3d, Law Governing Lawyers 

390, Section 53, Comment b (2000).' " (Parallel citation omitted.) C & K 

Indus. Servs. v. McIntyre, Kahn & Kruse Co., L.P.A., 8th Dist. Cuyahoga 

No. 98096, 2012-Ohio-5177, ¶ 16. 

{¶19} In their February 4, 2016 motion for summary judgment, appellees 

included the affidavit of appellee Zachuary Meranda, Esq., who averred the following in 

part: 

 7. In preparation for the Motions for Judicial Release, I talked to 

members of his family in order to obtain a factual basis for asserting that 

Mr. Bates should be entitled to judicial release. 
Licking County, Case No. 16-CA-28 11 

 8. In my representation of Mr. Bates, including the preparation and 

filing of the two Motions for Judicial Release, I did not fall below the 

standard of care for an attorney handling such matters and there was 

nothing that I did or did not do that resulted in the continued incarceration 

of Mr. Bates. 

 9. In my Motions for Judicial Release, I represented to the court 

that Mr. Bates would be employed if he were released and that he would 

never engage in such conduct again and that he was remorseful for what 

he had done. 

{¶20} Under the standard that the trial court is to resolve all factual issues in a 

light most favorable to the non-moving party, we accept as true that appellant has no 

remorse for the actions that caused his convictions. However, by his own admission, he 

sought help from programs during his incarceration, but was denied access. Therefore, 

the claim of participating in programs is both true and misleading at the same time. 

{¶21} Notwithstanding, the trial court decided the issue of legal malpractice on a 

lack of proximate cause. In other words, there is nothing in the record to establish that 

these two inaccuracies were the reason why the motions for judicial release were 

denied. Without a link of causation between the claimed inaccuracies in the motions 

and the denials of the motions, there is no proof of legal malpractice. Appellant argues 

it is so obvious, an expert opinion or an affidavit was not necessary. We disagree. We 

find the res ipsa loquitur doctrine to be inapplicable sub judice. Without a causal link, 

appellant cannot survive appellees' motion for summary judgment. 
Licking County, Case No. 16-CA-28 12 

{¶22} On the fraud claim, the trial court found it was not pled with specifically as 

required by Civ.R. 9(B) which states: "In all averments of fraud or mistake, the 

circumstances constituting fraud or mistake shall be stated with particularity. Malice, 

intent, knowledge, and other condition of mind of a person may be averred generally." 

{¶23} In his complaint under "COUNT TWO," appellant merely stated, 

"Defendant(s) violated Ohio Revised Code §2305.09 FRAUD." This does not satisfy the 

requirements of Civ.R. 9(B). 

{¶24} Upon review, we find the trial court did not err in granting summary 

judgment to appellees and in denying appellant's motion for summary judgment. 

{¶25} Assignments of Error I, II, and III are denied. 

{¶26} The judgment of the Court of Common Pleas of Licking County, Ohio is 

hereby affirmed. 

By Farmer, P.J. 

Hoffman, J. and 

Wise, J. concur. 

 

 

 

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