[Cite as Smith v. Law Office of Karen Oakley, L.L.C., 2023-Ohio-3819.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

SHAWN D. SMITH, JR.

 Appellant

v.

LAW OFFICE OF KAREN OAKLEY, 

LLC, et al.

 Appellees

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C.A. No. 29809

Trial Court Case No. 2022 CV 00805

(Civil Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on October 20, 2023

. . . . . . . . . . . 

SHAWN D. SMITH, JR., Appellant, Pro Se

 

G. TODD HOFFPAUIR and GEORGE D. JONSON, Attorneys for Appellees

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} Shawn D. Smith, Jr. appeals pro se from the trial court’s entry of summary 

judgment against him on his legal-malpractice complaint against appellees Karen Oakley 

and the Law Office of Karen Oakley, LLC. 

{¶ 2} Smith’s complaint alleged legal malpractice based on attorney Oakley’s 

handling of a federal petition for a writ of habeas corpus. On appeal, Smith contends the 
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trial court erred in entering summary judgment against him where Oakley’s filing of the 

petition beyond the statute of limitations and other deficiencies, including failure to object 

to a federal magistrate’s report and recommendation, were so plainly prejudicial that he 

did not need expert testimony to prove malpractice. 

{¶ 3} We see no error in the trial court’s entry of summary judgment. Even 

assuming, arguendo, that Oakley provided deficient representation by filing an untimely 

petition and in other ways, Smith was not prejudiced because the substantive claims in 

his petition for a writ of habeas corpus lacked merit. Accordingly, the trial court’s judgment 

will be affirmed.

I. Background

{¶ 4} Smith received a sentence of 37 years to life in prison in 2017 for murder and 

related crimes. On direct appeal to this court, he raised an issue under Batson v. 

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He also challenged the 

trial court’s exclusion of evidence about the victim’s reputation for violence as well as its 

admission of other-acts evidence involving him. We rejected each argument and affirmed 

in State v. Smith, 2d Dist. Montgomery No. 27585, 2018-Ohio-2567. We subsequently 

affirmed the trial court’s dismissal of a post-conviction-relief petition in State v. Smith, 2d 

Dist. Montgomery No. 28127, 2019-Ohio-4483. 

{¶ 5} Smith then filed a petition for a writ of habeas corpus in federal court on 

December 28, 2020. As grounds for relief, he raised the same arguments that we had 

rejected on direct appeal. In a February 1, 2021 report and recommendation, a federal 

magistrate found Smith’s petition barred by the applicable statute of limitations and 
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recommended dismissal. Nevertheless, the magistrate also addressed the merits of 

Smith’s arguments. The magistrate concluded that our rejection of the Batson argument 

on direct appeal was a reasonable application of Batson and its progeny. With regard to 

the exclusion of evidence about the victim’s reputation, the magistrate found the issue 

procedurally defaulted because Smith had raised it on appeal as an evidentiary question 

rather than a constitutional one. Even setting aside the default, the magistrate concluded 

that the issue lacked merit in the absence of clearly established U.S. Supreme Court 

authority holding that exclusion of such evidence violated federal due process. Finally, 

with regard to other-acts evidence involving Smith, the magistrate found the issue 

procedurally defaulted in multiple ways. Once again, the magistrate also rejected Smith’s 

argument on the merits in the absence of clearly established U.S. Supreme Court 

precedent requiring exclusion of the evidence. Smith filed no objections to the 

magistrate’s report and recommendation, which a federal district court judge adopted on 

February 26, 2021.

{¶ 6} On February 24, 2022, Smith filed a legal-malpractice complaint against 

Oakley and her law office based on her handling of his habeas petition. The complaint 

included causes of action for malpractice, unjust enrichment, and breach of contract. The 

trial court dismissed the claims for unjust enrichment and breach of contract under Civ.R. 

12(B)(6) because they restated the malpractice claim. Oakley and her law firm then 

moved for summary judgment on the malpractice claim. The motion was supported with 

affidavits from Oakley and attorney Keith E. Golden, who opined about Oakley’s 

performance in handling the habeas petition. Following briefing, the trial court sustained 
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the motion on May 2, 2023, reasoning in part:

Plaintiff has failed to file any Civ.R. 56 evidence in opposition to 

Defendant’s Motion for Summary Judgment. Plaintiff asserts that no expert 

evidence is needed because the legal malpractice of untimely filing the 

Petition is clear. The U.S. Dist. Court for the Southern District of Ohio, 

Western Division at Dayton, though, still addressed the merits of the Writ of 

Habeas Corpus despite any alleged untimely filing. Mr. Golden stated that 

Oakley acted as a reasonable attorney in all respects with regard to her 

representation of Mr. Smith in the habeas corpus petition proceeding and 

that Plaintiff did not proximately sustain any damages from Oakley’s 

representation of him. Based on the uncontroverted evidence presented, 

the Court finds that Defendants are entitled to summary judgment as prayed 

for in their motion. 

(Footnotes omitted.) 

{¶ 7} This appeal followed.

II. Analysis

{¶ 8} Smith presents the following two assignments of error:

I. THE COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT IN 

FAVOR OF THE DEFENDANTS ON THE LEGAL MALPRACTICE CLAIM.

II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

DID NOT CONSIDER A MATERIAL FACT BEFORE IT WHEN IT 

RESOLVED THE CASE BY ENTRY. 
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{¶ 9} In his first assignment of error, Smith contends the trial court erred in failing 

to recognize that he was not required to present expert testimony to prove legal 

malpractice. He maintains that no expert was required because Oakley’s malpractice was 

so obvious that it could be determined by the trial court as a matter of law and that it was 

within the ordinary knowledge and experience of a layman. 

{¶ 10} Smith cites four acts by Oakley that he claims obviously breached her duty 

of care and proximately caused him to suffer damage or harm. Those acts are (1) filing

his habeas petition outside of the statute of limitations, (2) failing to inform him of the 

federal magistrate’s report and recommendation, (3) failing to file objections to the report 

and recommendation, and (4) failing to inform him of the federal district court’s adoption 

of the report and recommendation in time to appeal. According to Smith, each of these 

acts constituted obvious malpractice, rendering expert testimony on the issue 

unnecessary. He argues that Oakley’s actions prevented him from fully pursuing habeas 

relief. He also asserts that he was not required to establish that he would have prevailed 

on his petition to establish damage or harm. 

{¶ 11} Smith’s second assignment of error repeats the arguments raised under the 

first assignment of error. While stressing Oakley’s failure to file an objection to the 

magistrate’s decision, he alleges that the same four acts constituted obvious legal 

malpractice without the need for him to present expert testimony to prove it. 

{¶ 12} Under Civ.R. 56(C), summary judgment may be granted when the moving 

party demonstrates that (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 
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conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio 

St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment is de 

novo. Gilliland v. Adams, 2d Dist. Montgomery No. 29732, 2023-Ohio-3083, ¶ 24.

{¶ 13} To prevail on a legal malpractice claim, a plaintiff must prove that counsel 

owed him a duty, that counsel breached the duty and failed to conform to the standard 

required by law, and that there was a causal connection between counsel’s conduct and 

resulting damage or loss. Massie v. White, 2d Dist. Miami No. 2018-CA-17, 2019-Ohio811, ¶ 14.

{¶ 14} In their summary-judgment motion, Oakley and her law firm primarily relied 

on an affidavit from attorney Golden. He expressed his professional opinion about 

Oakley’s representation of Smith, whether she met the applicable standard of care, and 

whether Smith proximately sustained any damage as a result of Oakley’s actions. Golden 

was unable to form an opinion as to whether Oakley provided deficient representation 

regarding the untimeliness of the habeas petition. He opined that she acted as a 

reasonable attorney and met the standard of care, however, in raising the issues that she 

did. He also averred that Smith suffered no damage or harm from the petition’s 

untimeliness given that the magistrate addressed Smith’s arguments and rejected them 

on their merits. 

{¶ 15} In a pro se memorandum opposing summary judgment, Smith presented 

no evidence at all. As he does on appeal, he argued that Oakley’s challenged actions 

constituted obvious examples of legal malpractice and that he did not need to rely on 
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expert testimony to oppose summary judgment. He also asserted that Oakley’s expert, 

attorney Golden, had failed to review his trial transcripts. In reply, Oakley and her law firm 

pointed out Smith’s failure to present any competing evidence to demonstrate a genuine 

issue of material fact as to whether her performance proximately caused him any harm. 

The trial court entered summary judgment against Smith, finding no genuine issue of 

material fact for trial. 

{¶ 16} Upon review, we see no error in the trial court’s ruling. For purposes of our 

analysis, we will assume arguendo that Oakley breached a duty or obligation to Smith in 

the ways he mentions by (1) filing his habeas petition outside of the statute of limitations, 

(2) failing to inform him of the federal magistrate’s report and recommendation, (3) failing 

to file objections to the report and recommendation, and (4) failing to inform him of the 

federal district court’s adoption of the report and recommendation. We also will accept 

arguendo that Smith was not required to present evidence from a legal expert to avoid 

summary judgment. In its ruling, the trial court noted Smith’s failure to submit any Civ.R. 

56 evidence, expert or otherwise, without stating that expert testimony necessarily was 

required or that Smith’s lack of an affidavit from an expert was the basis for its ruling. 

{¶ 17} The primary impetus behind the trial court’s summary judgment decision 

appears to have been the absence of a genuine issue of material fact as to whether 

Oakley’s performance proximately caused Smith any harm. Although Oakley filed an 

untimely petition, the trial court noted that the federal magistrate nevertheless had 

addressed and rejected Smith’s habeas claims on their merits. Those were the same 

claims that we had rejected on direct appeal. We see no genuine issue of material fact 
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as to whether Smith might have prevailed on his habeas claims if only Oakley had filed 

the petition sooner. Nor did Oakley’s failure to inform Smith of the magistrate’s report and 

recommendation, failure to file objections to the report and recommendation, or failure to 

inform him of the federal district court’s adoption of the report and recommendation 

proximately cause any harm. Again, we see no genuine issue of material fact as to 

whether Smith might have prevailed on his habeas petition if only Oakley had done these 

other things. The reason is that none of these actions by Oakley would have had any 

bearing on the merits of Smith’s habeas claims. 

{¶ 18} On appeal, Smith insists he was not required to show M his habeas claims 

would have succeeded to prove legal malpractice. This argument implicates the “someevidence” and “case-within-a-case” causation standards applicable to legal-malpractice 

claims. The some-evidence standard applies where a plaintiff has suffered damage or 

loss regardless of whether he would have been successful in the underlying matter. 

Massie, 2d Dist. Miami No. 2018-CA-17, 2019-Ohio-811, at ¶ 21, quoting McCarty v. 

Pedraza, 2014-Ohio-3262, 17 N.E.3d 71, ¶ 17-18 (2d Dist.), citing Vahila v. Hall, 77 Ohio 

St.3d 421, 427, 674 N.E.2d 1164 (1997). In such a case, a malpractice plaintiff need only 

present “some evidence” on the merits of the underlying claim. Id. The case-within-a-case 

standard applies where the malpractice theory places the merits of the underlying 

litigation directly at issue. Id. In such a case, a malpractice plaintiff must show that he 

would have been successful in the underlying litigation but for the alleged malpractice. 

Id., quoting McCarty at ¶ 17-18, citing Environmental Network Corp. v. Goodman Weiss 

Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 17-19. Absent 
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such a showing, causation and damages cannot be proven. Id. 

{¶ 19} Here Smith’s malpractice claim was premised on Oakley (1) filing his 

habeas petition outside of the statute of limitations, (2) failing to inform him of the federal 

magistrate’s report and recommendation, (3) failing to file objections to the report and 

recommendation, and (4) failing to inform him of the federal district court’s adoption of the 

report and recommendation. For purposes of legal malpractice, these alleged 

shortcomings mattered only if at least one of Smith’s habeas claims was meritorious. 

Therefore, the case-within-a-case standard applied, and Smith was required to prove that 

he would have been successful but for Oakley’s actions. Unfortunately for Smith, his

habeas claims lacked merit without regard to Oakley’s challenged conduct. That being 

so, the trial court correctly found no genuine issue of material fact as to whether Oakley’s 

performance proximately caused Smith any harm.

{¶ 20} Finally, Smith alleges that attorney Golden failed to review his trial 

transcripts. Assuming arguendo that this assertion is true, it fails to persuade us that the 

trial court erred in entering summary judgment. Smith’s legal-malpractice claim is not that 

better habeas issues existed and that Oakley provided deficient representation by not 

finding them. Nor has Smith cited any meritorious substantive issue reflected in his trial 

transcripts that Golden failed to notice. Regardless of the extent of Golden’s review of the 

record, the fact remains that this court rejected the merits of the issues Smith raised on 

direct appeal, and the federal magistrate did the same when reviewing those substantive

issues in the habeas petition. According to his affidavit, Golden also conducted his own 

review of the “Docket Reports, Pleadings and Judgments” in Smith’s trial-court case, his 
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direct appeal, and his habeas case in federal court. Based on that review, Golden 

concluded that Smith “did not proximately sustain any damages from Attorney Oakley’s 

representation of him.” Smith presented no evidence to the contrary, and we see no 

genuine issue of material fact for trial.

{¶ 21} Based on the reasoning set forth above, Smith’s two assignments of error 

are overruled.

III. Conclusion

{¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.

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EPLEY, J. and HUFFMAN, J., concur.