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Holley v. Massie2/1/1995
BROGAN, Judge.
The appellants, Brenda and Carl Holley, appeal from the order of the Greene County Common Pleas Court granting summary judgment upon their claim of legal malpractice against the appellees, Marshall Massie and Mary Nash.
In February 1987, the Holleys retained Marshall Massie to represent them in a personal injury suit arising from an automobile accident. In the complaint, the Holleys contended they were injured when their car was rear-ended in a chain-reaction accident caused by the defendants, Nola Kinzer and Linda Leshan.
The Holleys sought damages for medical expenses in excess of $40,000, lost wages of approximately $9,000, and damages for permanent injury , pain and suffering, and loss of consortium. On February 11, 1991, the court awarded Brenda Holley $10,800 and Carl Holley $5,000 upon the jury's verdict.
In support of their motion for summary judgment, the appellees attached the discovery depositions of the Holleys, Professor Thomas Hagel, and portions of the trial transcript.
Carl Holley testified that he was working as a welder/fitter at American Buildings at the time of the accident. He testified he suffered lower back and neck injuries as a result of the accident. He said his neck injury cleared up after six months and he still gets lower back pain occasionally.
In his deposition, Holley testified he told the jury he lost $10,000 in wages, and without the pain and suffering caused by the accident. He also testified that he informed the jury about the activities he could not do because of his injuries. He said Massie fell asleep during a videotape deposition of one of the doctors and again during the questioning of a witness by co-counsel Nash.
Brenda Holley testified she was unhappy with her representation by Massie because he fell asleep during the trial. She said one of the jurors told her after the trial that all of the jurors felt that when Massie went to sleep he must have felt he didn't have a case or didn't care or both.
Professor Thomas Hagel of the University of Dayton Law School testified he was retained to examine portions of the trial transcript, medical records, pleadings, and exhibits to determine whether the appellees were guilty of malpractice.
Hagel testified he believed the appellees were guilty of malpractice in three areas: (1) the handling of certain evidentiary matters at trial, (2) failing to properly pursue hedonic damages, and (3) Massie's breaching his duty to his clients by falling asleep at the trial.
Hagel testified he reviewed a list of exhibits prepared by Massie prior to trial and that portion of the trial record wherein the court ruled upon the admissibilitsof exhibits. He testified he never examined the exhibits themselves but concluded that Massie was guilty of malpractice in not gaining the admission of Exhibit 4, which was an estimate of the damage done to the Kinser vehicle, and Exhibit 5, which was an itemized list of medical bills totaling approximately $15,000.
Hagel admitted he did not know whether Exhibit 5 was a cumulative summary of other medical bills that were admitted in evidence. He admitted he did not know whether photographs admitted at trial adequately depicted the damage to the Kinzer vehicle. Hagel contended that the appellees should have presented documentary evidence of Carl Holley's lost wages, i.e., Exhibit 16. He admitted he did not have access to the entire transcript, and he acknowledged Holley may testify concerning his lost wages.
Hagel testified the appellees should have gained admission of Exhibits 21, 26 and 27. Exhibit 21, on counsel
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