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Miller v. Miller & Miller Accountants9/5/2001
based the granting of partial summary judgment as to the claims arising out of any actions of Mr. Troyer because appellant had expressly covenanted not to sue him. The covenant not sue specifically released Mr. Troyer from any claims related to the transaction and subsequent operations: In consideration of the terms, conditions and agreements to be performed as contained in a certain agreement between the parties dated October 19, 1992, the undersigned Raymond Miller, Gary Underhill, Robert Troyer, Refurbco Communications, Inc. and Unique Communications, Inc. do hereby jointly and severally, promise, covenant and agree that none of them, nor any one claiming through them, will bring, commence, prosecute or maintain any suit or action in any court against any of them on account of, arising out of, or in any way connected with the sale of stock of Refurbco Communications, Inc., and that none of them will enforce, prosecute or recover upon, any claim or right of action whatsoever which any of them may have in any way connected with the said transaction, and the subsequent operations of Refurbco, Inc. and Unique, Inc. See, Agreement attached to Appellee's Motion for Summary Judgment as Exhibit B.
By virtue of the two-issue rule, a decision which is supported by one or more alternate grounds properly submitted is invulnerable to attack on one issue only: 'This rule as generally applied is that, where there are two causes of action, or two defense, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded.' Hampel v. Food Ingredients Specialties, Inc. (2000), 89 Ohio St.3d 169, 185, quoting H.E. Culbertson Co. v. Warden (1931), 123 Ohio St. 297, 303.
We have granted Assignment of Error I and the jury verdict was for the entire amount of damages claimed by appellant minus his own comparative negligence. Therefore, the partial summary judgment on the issue of Mr. Troyer's conduct is moot. Assignment of Error V is denied.
VI.
Appellant claims he is entitled to prejudgment interest. Given the state of the record and the granting of a new trial or remittitur with the subsequent appeal, we find this issue is not ripe for review.
CROSS-ASSIGNMENT OF ERROR I
Appellee claims the trial court erred in not directing the verdict or in not granting a judgment notwithstanding the verdict based upon appellee's failure to introduce expert testimony or other supporting evidence to establish accounting malpractice. We disagree. Appellee argues this case involved an accounting malpractice claim that necessitated the establishment in the record by an expert as to what appellee did to breach the standard of care. In support of this argument, appellee relies on the long established line of cases in Ohio requiring expert testimony as to the standard of care in medical malpractice claims: It is well settled in Ohio that in order to prevail in a medical malpractice claim, a plaintiff must demonstrate through expert testimony that, among other things, the treatment provided did not meet the prevailing standard of care. Ramage v. Central Ohio Emergency Services, Inc. (1992), 64 Ohio St.3d 97, 102.
Proof of the recognized standards must necessarily be provided through expert testimony. This expert must be qualified to express an opinion concerning the specific standard of care that prevai
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