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Palmer v. Westmeyer12/16/1988
Per Curiam.
This cause is before the court on appeal from a judgment of the Lucas County Court of Common Pleas. The case involves claims by plaintiffs-appellants/cross-appellees David D. Palmer, Ok Sun Palmer, and Deanbern Investment Corporation against defendants-appellees/cross-appellants Joseph W. Westmeyer, Jr., Joseph W. Westmeyer, Jr. Co., L.P.A., and Mark Robinson for legal malpractice and against defendant-appellee/cross-appellant Deborah Hyndman, a paralegal and notary public. Appellees represented appellants in connection with the operation of the Asian Palace Restaurant which closed in 1982. Appellant David Palmer acted as general contractor of the restaurant and arranged for construction services for the restaurant. Several creditor lawsuits were later filed against the Palmers, individually, for nonpayment on these contractual obligations.
Initially, we must note that Deanbern Investment Corporation ("Deanbern") did not file a valid appellate brief. On May 24, 1988, Deanbern filed a pro se brief, signed by David D. Palmer, president. However, this brief was stricken by this court on July 27, 1988 based upon the authority of R.C. 4705.01, which prohibits the unauthorized practice of law, and Union Savings Assn. v. Home Owners Aid, Inc. (1970), 23 Ohio St.2d 60, 52 O.O. 2d 329, 262 N.E.2d 558, syllabus, which interprets R.C. 4705.01 as disallowing a corporate officer or appointed agent who is not an attorney from maintaining litigation pro se on behalf of the corporation. Appellants were given leave to hire an attorney to prepare and file a brief on behalf of the corporation. However, such was not done. Appellant David Palmer has filed a memorandum in opposition to appellees' motion to dismiss Deanbern and further motions. Therein, he requests leave "* * * to enter an appearance as a plaintiff-appellant relevant to a Shareholders' Derivative action * * *" and also requests "* * * an order from this court substituting as a party-plaintiff in this case David Palmer as a plaintiff in the place of Deanbern * * *." Such action by this court would not remedy the situation. In a shareholders' derivative action, appellant would still be representing the corporation's and/or shareholders' interests. Appellant's motions are denied. Therefore, appellees' motion to dismiss Deanbern, filed October 27, 1988, is hereby found well-taken and granted. See App. R. 18(C). Accordingly, Deanbern Investment Corporation is no longer involved in this appeal.
The trial court granted summary judgment against appellants in favor of appellees' and the judgment was later finalized by inclusion of language found in Civ. R. 54(B) that "* * * there is no just reason for delay. * * *"
Summary judgment is appropriate where it is shown "* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O. 3d 73, 74, 375 N.E.2d 46, 47.
Appellant David Palmer's first assignment of error states:
"The trial court erred in holding that as a matter of law the defendants, actions and violations of the Disciplinary Rules does not constitute malpractice.
Appellant Ok Sun Palmer's first assignment of error states:
"The trial court erred in holding that as a matter of law violations of the Disciplinary Rules does not constitute malpractice."
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