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McGuire v. Draper11/4/2002
DECISION AND JUDGMENT ENTRY
APPEARANCES
CIVIL APPEAL FROM COMMON PLEAS COURT
. This is an appeal from a Highland County Common Pleas Court summary judgment in favor of Reminger and Reminger Co., L.P.A. and Nicholas D. Satullo, defendants below and appellees herein. The trial court determined that no genuine issues of material fact remained for resolution regarding whether appellees (1) committed legal malpractice, (2) converted another's property, and (3) spoilated evidence.
. John M. McGuire, plaintiff below and appellant herein, raises the following assignments of error:
FIRST ASSIGNMENT OF ERROR:
. "THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY SUSTAINING THE APPELLEES' MOTIONS FOR SUMMARY JUDGMENT."
SECOND ASSIGNMENT OF ERROR:
. "THE TRIAL COURT ERRED TO THE DETRIMENT OF APPELLANT BY ENTERTAINING APPELLEES FIRST SUMMARY JUDGMENT WITHOUT ALLOWING APPELLANT TO CONDUCT DISCOVERY."
THIRD ASSIGNMENT OF ERROR:
. "WHETHER THE TRIAL COURT IMPROPERLY DENIED DISCOVERY FROM ZURICH."
. Appellees raise the following cross-assignment of error:
. "THE TRIAL COURT SHOULD HAVE GRANTED SATULLO AND REMINGER AND REMINGER SUMMARY JUDGMENT AS TO THE CLAIM OF CONVERSION AT THE SAME TIME THAT IT DECIDED THAT THE LEGAL MALPRACTICE CLAIM AGAINST SATULLO COULD NOT SURVIVE."
. On February 11, 1995, K-Mart Corporation (K-Mart) terminated appellant's employment. In June of 1995, appellant retained the law firm of Draper, Hollenbaugh and Briscoe, Co., L.P.A. Co., H. Ritchey Hollenbaugh, and David L. Petitjean (the Hollenbaugh defendants) to represent him in a wrongful discharge action against K-Mart.
. On August 14, 1995, the Hollenbaugh defendants filed a complaint on appellant's behalf against K-Mart. The complaint alleged that K-Mart unlawfully terminated appellant on the basis of age, in violation of R.C. 4112.02. Subsequently, the complaint was dismissed for the failure to file within the applicable statute of limitations.
. The Hollenbaugh defendants notified appellant of his rights against them and contacted their insurance carrier, Zurich-American InsuranceGroup (Zurich). Zurich, in turn, referred the matter to appellees.
. Hollenbaugh consulted with Satullo regarding appellant's potential claim for malpractice. In order to protect against further malpractice claims and also to limit any potential liability, Satullo recommended, and Hollenbaugh agreed, that a second complaint alleging alternative theories of relief should be filed on appellant's behalf against K-Mart.
. Although Satullo recommended filing the second complaint, the Hollenbaugh defendants independently analyzed the alternative theories of relief to present in the second complaint and independently drafted the second complaint. The Hollenbaugh defendants sent Satullo a copy of the second complaint. Subsequently, the second complaint was dismissed based on res judicata.
. On March 20, 2000, appellant filed an amended complaint against the Hollenbaugh defendants and the appellees. In his complaint, appellant asserted various claims, including legal malpractice. Appellant alleged that the Hollenbaugh defendants breached the standard of care by failing to file the initial complaint within the statute of limitations period. As to the appellees, appellant claimed that after the Hollenbaugh defendants filed the complaint, they consulted with appellees and that the Hollenbaugh defendants and the appellees failed to amend the complaint prior to the dismissal to include additional causes of action tha
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