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Fleming v. Westmeyer10/21/2005
DECISION AND JUDGMENT ENTRY
{ } This accelerated case is before the court on appeal from a judgment of the Lucas County Court of Common Pleas. Appellant, Robert Fleming, asserts that the following errors occurred in the trial court proceedings:
{ } "1. The trial court erred in granting summary judgment in favor of Joseph Westmeyer below upon the basis of the period of limitations and other matters."
{ } "2. The trial court erred in failing to award summary judgment to plaintiff-appellant below upon his cross motion supported by the defendant's admission and other evidentiary materials."
{ } On September 2, 1997, appellant Robert J. Fleming was injured while he was using a welding machine at Vanguard Sentinel Joint Vocational School ("Vanguard"). Appellant subsequently hired appellee, Joseph W. Westmeyer, Jr. ("Westmeyer"), to represent him in a lawsuit against Vanguard. The parties, and appellant's father, William W. Fleming, entered into a contingency agreement under which appellee would be paid a fee only if appellant prevailed on his cause of action.
{ } The sole claim raised in appellant's lawsuit was negligence; specifically, appellant alleged that his injuries resulted from Vanguard's "failure to properly maintain their equipment and lack of due regard for the safety of others." See Fleming v. Vanguard Joint Vocational School, 6th Dist. No.S-02-03, 2003-Ohio-2134, at . Vanguard filed a motion for summary judgment, supported by the deposition of appellant's teacher and the affidavits of two individuals who inspected the welding machine after the accident. Id. at . In opposition, appellant filed the affidavit of his alleged expert; however, the affidavit did not set forth the qualifications of the affiant. Id. After Vanguard filed a motion to strike the affidavit, appellant filed the resume of the alleged expert. Id. The trial court, without any explanation, granted Vanguard's summary judgment motion. Id. at .
{ } In a letter dated October 1, 2002, Westmeyer informed appellant that it would not be in appellant's best interest to appeal the common pleas court's judgment. Appellant and his father, who wanted to appeal the negligence action, contacted Westmeyer, who continued to refuse to appeal the case. Ultimately, however, after some argument, the parties reached an agreement whereby Westmeyer would pursue an appeal for a flat fee of $800 for "costs."
{ } On appeal, this court affirmed the trial court's grant of summary judgment to Vanguard. Id. at . We concluded that:
{ } "* * * ppellant has failed to present sufficient evidence that Vanguard breached its duty of care in maintaining the welding machine or that an electrical malfunction in the machine was the proximate cause of his alleged injuries. In fact, beyond the bare and vague allegations in the complaint, appellant has offered nothing to show the welding machine malfunctioned at all." Id. at . Our decision was released and journalized on April 25, 2003.
{ } On March 15, 2004, appellant filed the instant legal malpractice action against Westmeyer and appellee, Westmeyer Law Offices. He alleged that Westmeyer failed to adequately represent him in his negligence action against Vanguard, as well as in failing to raise any claim against his "medical care providers" and the manufacturer of the welder. Appellant also maintained that Westmeyer failed to adequately respond to Vanguard's motion for summary judgment and to properly represent appellant in his appeal of the negligence case.
{ } Appellees answered, and, after conducting discovery, filed a motion for summary judgment in which they claimed that appellant's cause
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