On December 7, 2016, the Supreme Court of Ohio handed down a merit decision in Ratonel v. Roetzel & Andress, L.P.A, 2016-Ohio-8013. In a 6-1 decision written by Justice Pfeifer, in which Tenth District Court of Appeals Judge Betsy Luper Schuster, sitting for Chief Justice O’Connor, dissented without opinion, the court held that summary judgment in favor of the law firm was proper in this legal malpractice case. The case was argued February 23, 2016. Justice Pfeifer, senior associate justice, was acting Chief Justice in the case.
Lorna Ratonel and her company, Carmalor, Inc., were represented by the law firm Keating, Muething & Klekamp (“KMK”) in the purchase of a Dayton, Ohio apartment building known as Holden House. Ratonel later hired Mark Ropchock and his law firm, Roetzel & Andress, L.P.A. to sue KMK for legal malpractice for failure to make sure that Holden House was inspected prior to purchase. Ratonel also wanted Ropchock and Roetzel & Andress to pursue a legal malpractice case against KMK for an additional property known as French Village in Nebraska that Ratonel had bought. This appeal is about whether Ropchock and his firm ever agreed to do that, or limited their representation to the Holden House matter. On this issue, in a subsequent legal malpractice claim against Ropchock and Roetzel & Andress, the trial court granted summary judgment in favor of Ropchock and the firm on the potential malpractice claim relating to French Village.
In a split decision the Second District Court of Appeals reversed the trial court’s grant of summary judgment. In this appeal, the Supreme Court reinstates it.
Prof.Cond.R. 1.2(c) (A lawyer may limit the scope of a new or existing representation if the limitation is reasonable under the circumstances and communicated to the client, preferably in writing.)
Cuyahoga Cty. Bar Assn. v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369 (the scope of an attorney’s representation can be formed based on conduct of the attorney and the expectations of the client; it does not have to be expressly communicated.)
New Destiny Treatment Center, Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157 (to establish a cause of action for legal malpractice, a plaintiff must show the existence of an attorney-client relationship giving rise to a duty, a breach of that duty, and damages proximately caused by that breach.)
As with any tort claim, a plaintiff must prove duty, breach, causation, and damages. In a legal malpractice claim, the plaintiff must prove that the scope of the attorney client relationship includes the matter at issue. Here, Ratonel failed to do that.
Record Evidence on Scope of Representation
This was a very detailed, fact driven case. The original engagement letter between Ratonel and her company and Ropchock and his firm does not mention French Village at all. A paragraph in the engagement letter contains a clause that if Ratonel wished to retain the firm for additional services not specified in the letter, that could be worked out, but the record shows no such additional agreed-upon services.
The high court first held that the initial engagement letter properly limited the scope of representation to the Holden House Apartments.
Was the Initial Scope of Representation Expanded?
This is where things get messy.
May 13, 2009 Complaint
On May 13, 2009, Ropchock, on behalf of Ratonel, filed a complaint against KMK. The complaint related entirely to Holden House, except for a single paragraph which mentioned that KMK knew or should have known that the property known as the French Village Apartments in Nebraska was a limited dividend property. Ratonel claims this paragraph showed that French Village was included in the scope of the representation. The court disagreed, noting that nothing else in the complaint mentioned French Village, and no damages were sought based on KMK’s representation of Ratonel in the French Village Apartments matter. Further, the court notes that the complaint was later amended on August 4, 2010, with this paragraph eliminated.
January 20, 2010 Letter
A letter Ropchock drafted and sent to Ratonel for review included a section titled “KMK’s Liability for French Village.” But the letter also made clear that any claim against French Village flowed from a separate act of negligence. Ropchock claimed the reference was only a negotiating tool. And the record backed up Ropchock’s assertion that the letter was never sent to the firm representing KMK.
April 30, 2010 Email
Ropchock sent Ratonel an email in which he mentioned two alleged claims against KMK regarding French Village, noting that while he thought the case against Holden House was strong, “bringing up this highly speculative FV [French Village] claim weakened your good case,” concluding there was no viable claim against French Village.
May 11, 2010 Demand Letter
While the demand letter sent to the firm representing KMK included a reference to French Village, the demand itself was limited solely to the Holden House transaction.
August 4, 2010 Amended Complaint
The amended complaint filed against KMK was based only on its representation of Ratonel in the purchase of Holden House. There was no claim about French Village.
In her deposition, Ratonel admitted that she knew the complaint that was filed did not include a claim about French Village, that Ropchock had told her several times she had no claim about French Village, and that he refused to file such a claim.
The record demonstrated that Ratonel wanted Ropchock to represent her in a malpractice action regarding French Village, that he looked into it, but ultimately decided that claim was not viable, and clearly communicated that to her.
“We note that it is common for a client and counsel to discuss multiple potential claims and then later, after the attorney gathers evidence, agree to have the attorney pursue only those claims he believes are viable, “ Pfeifer wrote.
Summary judgment on this issue was correct. The court of appeals was reversed, and trial court’s grant of summary judgment reinstated.
I called this one wrong, thinking from the messy series of events there were genuine issues of material fact, while my then-student contributor Michael Elliot got it right. At the time of oral argument, Justice Pfeifer called this case “a train wreck of almost Biblical proportions.” Appellants’ counsel David Greer cautioned that it was a big policy case. But it looks like when it all got sorted out with a careful examination of the record, it wasn’t either, really.
At oral argument, Mr. Greer argued that the engagement letter, the amended complaint, and Ratonel’s deposition proved that the representation was limited to Hadden House, and that emails, drafts, and unsent demand letters did not change this. The court agreed.
To me, the holding in this case doesn’t really add anything to the already existing rule of Professional Conduct (1.2 (c)) that permits limited representation. The cautionary message here for lawyers is just make sure that any limitation on representation is clear, and clearly understood by your client.