 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Galloway v. Horkulic9/24/2003
JUDGMENT: Affirmed.
. Plaintiff-appellant Attorney William Galloway appeals from the decision of the Jefferson County Common Pleas Court that dismissed the declaratory judgment action he filed against his former clients, defendants-appellees Jefferey and Rebecca Horkulic. We are asked to determine whether a trial court can dismiss a declaratory judgment action, which essentially seeks a preemptive declaration of where the injured parties should bring their suit. Because declaring the proper application of procedural rules, such as the rule on venue, is not a recognized function of a declaratory judgment action, the judgment of the trial court is affirmed.
STATEMENT OF THE CASE
. On November 19, 1999, the Horkulics, who were Jefferson County residents, were in an automobile accident in Mahoning County caused by another Jefferson County resident. The Horkulics hired Attorney Galloway to represent them in their personal injury action. Attorney Galloway's law offices were located in West Virginia, but he was licensed to practice law in Ohio, where he agreed to file the lawsuit. Unfortunately, Attorney Galloway missed the statute of limitations for filing suit. Thus, settlement discussions began between the Horkulics and Attorney Galloway and his legal malpractice insurer.
. On October 11, 2002, Attorney Galloway filed a complaint for a declaratory judgment against the Horkulics. The complaint alleged that the parties dispute which law applies to their respective conduct and the affect of that law on any alleged claims, defenses, and damages. He asked that the legal malpractice suit be heard in Ohio and included a jury demand stating that the amount of damages was contested.
. On October 18, 2002, the Horkulics filed a motion to dismiss the declaratory judgment action. First, they cited Civ.R. 12(F) and asked the court to strike any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter. Second, they cited Civ.R. 12(B)(6) and asked the court to dismiss the action for failure to state a claim for which relief can be granted. Third, they cited R.C. 2721.07 and noted that the court should refuse to enter a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the action. The Horkulics also cited case law providing that three requirements must be met: the action must fall within the spirit of the declaratory judgment act; the action must involve a real case or controversy that is justifiable in nature; and speedy relief must be necessary to avoid the loss of rights. The Horkulics concluded that the complaint in declaratory judgment was without merit and did not meet the declaratory judgment requirements.
. They also claimed that jurisdiction in the State of Ohio was not proper. In support, they argued that the legal malpractice occurred in West Virginia by pointing out that Attorney Galloway was hired in West Virginia, held himself out to the public as working in West Virginia, had his principal place of business in West Virginia, has never had an office in Ohio, negotiated their case from West Virginia, and mailed them documents from West Virginia. Finally, they cited various rules and statutes dealing with frivolous conduct and asked for attorney fees and costs. The Horkulics summarized that Attorney Galloway is essentially suing them for not suing him, in an attempt to forum shop.
. Attorney Galloway filed an opposition memorandum on October 25, 2002. He noted the high standard for dismissing complaints for failure to state a claim. Attorney Galloway also argued that any malpractice occurred in Ohio and should be governed by Ohio
Page 1 2 3 4 5 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|