Michael Brautigam v. Geoffrey Damon, et al

Filing

OPINION filed : We AFFIRM the district court s adoption of the magistrate judge s report and recommendation; but regarding the grant of summary judgment in Crosthwaite s favor, we AFFIRM for the reasons stated by the magistrate judge and not on statute-of-limitations grounds. Decision not for publication. Danny J. Boggs, Alice M. Batchelder (CONCURRING IN THE JUDGMENT), and Helene N. White (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0324n.06
No. 16-3267
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL BRAUTIGAM,
Plaintiff-Appellant,
v.
GEOFFREY P. DAMON; DARYL CROSTHWAITE,
Defendants-Appellees,
ERIC C. DETERS; ERIC C. DETERS & ASSOC.,
Defendants.

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FILED
Jun 09, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO

Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. This diversity action alleging legal malpractice and
several other claims was before us on a prior appeal from a subject-matter-jurisdiction dismissal
for failure to meet the jurisdictional amount-in-controversy requirement. We reversed that
dismissal and remanded for further proceedings. Plaintiff-Appellant Michael Brautigam, an
attorney proceeding pro se, now challenges the district court’s order on remand affirming the
report and recommendation of a magistrate judge. The issues are whether the district court
properly concluded that the law of the case mandated dismissal of Brautigam’s malpractice
claims against Defendant Geoffrey P. Damon on statute-of-limitations grounds; whether the
district court should have granted Brautigam’s motion to file an amended complaint; whether the

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district court erred in dismissing the claims against Defendant Daryl Crosthwaite; and whether
the magistrate judge was biased. We affirm.1
I.
This court’s prior opinion explained:
In September [sic August] 2011, Brautigam sued [attorneys Geoffrey Damon,
Daryl Crosthwaite, and Eric C. Deters, as well as Eric C. Deters & Assoc.,
alleging] breach of a fiduciary duty, legal malpractice, unjust enrichment, and
negligence against all defendants; promissory estoppel against Damon only; and
conversion against Damon and Crosthwaite . . .
Brautigam alleged that he retained attorney Damon, a partner with
Butkovich & Crosthwaite Co., LPA (“B&C”), to represent him in two actions:
(1) a legal malpractice action against Paul Hackett and others (“Hackett
litigation”), and (2) a civil rights action against a judge for “falsely arrest[ing
Brautigam] and sentenc[ing Brautigam] to six months in jail.” Damon accepted
both cases on a contingency fee basis. Brautigam, however, paid Damon $16,500
of which Damon returned $10,000. Damon did not file the civil rights complaint,
and Brautigam contends that he has lost his right to recover as a result.
On August 3, 2010, Damon moved to withdraw as Brautigam’s counsel in the
Hackett litigation. The next day B&C mailed a letter to Brautigam, stating that
Damon was no longer associated with B&C and asking him to elect whether he
would like B&C to continue representing him in his “case(s).” According to
Brautigam, he elected to proceed with B&C. In mid-August, he was advised that
B&C would not be proceeding with the litigation and would help Brautigam
transition to a new attorney; but instead, B&C abandoned him as a client. In
November 2010, Damon’s motion to withdraw was granted. That same month,
Brautigam contends, he learned that Damon had left B&C and was working for
Eric C. Deters & Associates.
The defendants in the Hackett litigation successfully moved for summary
judgment. Brautigam’s complaint states that had “Damon met the applicable
standard of care[,] properly conducted discovery[, and] properly responded to
[defendants’] motion[s] for summary judgment,” defendants’ motions would not
have been granted. Brautigam unsuccessfully appealed that judgment to the Ohio
Court of Appeals . . . .

1

Brautigam filed an appellate brief that contravenes Fed. R. App. P. 28 by citing no authority or
standards of review and by failing to include: a jurisdictional statement, a statement of the case setting
out relevant facts and relevant procedural history, a table of contents, and a table of authorities.
Brautigam’s brief also violates Sixth Circuit Rule 28 by omitting “[a] designation of relevant documents
from the lower court record.” Defendants did not move to strike Brautigam’s appellate brief and have
responded to his arguments.

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In October 2013, Damon filed a motion to dismiss, arguing that the amount-incontroversy requirement was not satisfied. See Fed. R. Civ. P. 12(b)(1). A
magistrate judge recommended granting that motion because Brautigam’s alleged
damages bore no rational relationship to his legal claims and thus were not
presented in good faith, and because Brautigam’s malpractice claims were
valueless. Over Brautigam’s objections, the district court adopted the report and
recommendation and dismissed the action for lack of subject-matter jurisdiction
....
. . . . Brautigam sought three categories of damages: unreturned legal fees;
recovery for his lost civil action; and damages for malpractice arising from
Damon’s handling of the Hackett litigation. The district court concluded that the
value of Brautigam’s claims was approximately $6,125, which was the
unrefunded amount Brautigam paid to Damon . . .[, and] determined that
Brautigam’s claim for the loss of the civil suit was valueless because absolute
judicial immunity provided a complete defense. Because a defense may not be
considered in determining whether the plaintiff has satisfied the jurisdictional
amount, the district court erred in excluding Brautigam’s valuation of these
damages from consideration. See Kovacs [v. Chesley], 406 F.3d [393,] 396 [(6th
Cir. 2005)].
The district court also erred in excluding Brautigam’s malpractice damages from
consideration. Those damages derived from Damon’s handling of the Hackett
litigation.
Brautigam maintained that Hackett settled a lawsuit without
Brautigam’s permission. Damon filed a state-court malpractice action against
Hackett seeking damages in excess of $75,000. Damon allegedly mishandled that
suit and withdrew from the litigation, forcing Brautigam to proceed pro se and
resulting in a judgment in Hackett’s favor. Brautigam appealed, and the state
court of appeals concluded that because Brautigam never returned his settlement
payment, Brautigam could not maintain an action attacking that settlement. The
district court determined that because Damon’s action against Hackett could not
succeed, Brautigam’s action against Damon was valueless. In his complaint,
Brautigam alleged that had Damon handled the Hackett litigation appropriately,
including advising him to return the settlement money, it would have been
successful.
In Ohio, a legal malpractice claim has four elements: (1) there was an attorneyclient relationship giving rise to a duty; (2) the attorney breached that duty; (3) the
plaintiff suffered damages; and (4) the damages were proximately caused by the
attorney’s breach. E.B.P., Inc. v. Cozza & Steuer, 694 N.E.2d 1376, 1378 (Ohio
Ct. App. 1997). “[A] settlement of the underlying action [does not] always
operate[] as a waiver of a client’s malpractice claim against his attorney.” Id. at
1379. Thus, Brautigam has stated a claim under Ohio law. Crosthwaite argues
that Brautigam cannot establish causation. But Brautigam is not required to prove
causation to satisfy the amount-in-controversy requirement. See Kovacs,
406 F.3d at 397; Vahila v. Hall, 674 N.E.2d 1164, 1168–69 (Ohio 1997).
Whether the claim will succeed is a merits assessment. Thus, on the face of
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Brautigam’s complaint, it does not appear to a legal certainty that Brautigam has
not satisfied the jurisdictional amount . . . . the district court should not have
dismissed this action for lack of subject-matter jurisdiction.
The district court dismissed Brautigam’s claims against the Deters defendants for
breach of fiduciary duty, legal malpractice, unjust enrichment, and negligence.
On appeal, Brautigam argues that his claims should not have been dismissed
because he continued to receive legal bills from Damon while Damon was
employed at Eric C. Deters & Associates, and Damon corresponded with him
using Eric C. Deters & Associates’ stationery. The attorney-client relationship is
terminated when there is an affirmative act by either party signaling the end of the
relationship. Flynt v. Brownfield, Bowen & Bally, 882 F.2d 1048, 1051 (6th Cir.
1989); Duvall v. Manning, No. 2010-L-069, 2011 WL 2119912, at*4 (Ohio Ct.
App. May 27, 2011). In August 2010 [by letter dated August 4, 2010], B&C
notified Brautigam that Damon had left B&C, and Brautigam stated that he
wanted to continue being represented by B&C. That same month [on August 3,
2010] Damon filed a motion to withdraw as Brautigam’s counsel and mailed a
copy of that motion to Brautigam. Damon and Brautigam both took affirmative
acts that terminated the attorney-client relationship. Damon did not start working
for Eric C. Deters & Associates until September 2010––after Damon and
Brautigam had severed their relationship. Brautigam does not point to any
evidence that he entered into an attorney-client relationship with the Deters
defendants, and there is no basis for finding that the Deters defendants owed a
duty to Brautigam. The district court properly dismissed Brautigam’s claims
against the Deters defendants.
Accordingly, the district court’s judgment is affirmed in part and reversed in part,
and this action is remanded for further proceedings.
Brautigam v. Damon et al., No. 14-3400, R. 30-1/Order entered 2/25/15 (emphasis added).
In addition to a claim of legal malpractice, Brautigam’s first amended complaint, filed in
September 2011, alleged claims of breach of fiduciary duty, unjust enrichment, negligence, and
conversion as to Defendants Damon and Crosthwaite, and promissory estoppel as to Damon
alone. The first amended complaint dropped B&C and Joseph Butkovich as defendants. Thus,
only Brautigam’s claims against Damon and Crosthwaite were at issue on remand.
Damon admitted stealing from B&C in March 2013 and was disbarred in May 2013. In
September 2013, Brautigam sought to file a second amended complaint, which added factual

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allegations of fraud but did not seek to add a fraud count. The motion was denied as moot due to
the dismissal for lack of subject-matter jurisdiction.
On remand, Defendants argued, and the magistrate judge agreed, that the opinion of the
court of appeals established the law of the case and compelled the district court to dismiss
Brautigam’s malpractice claims against Damon as barred by Ohio’s one-year statute of
limitations. Ohio Rev. Code § 2305.11. The magistrate judge concluded that Brautigam’s
remaining claims were subsumed under his legal-malpractice claim and recommended those be
dismissed as well. The district court overruled Brautigam’s objections to the magistrate judge’s
recommendation that summary judgment be granted on the legal-malpractice claim on statute-oflimitations grounds and rejected Brautigam’s argument that Damon’s pre-billing worksheets
established that he continued to represent Brautigam until within a year of Brautigam’s filing this
action. Also on remand, Brautigam sought leave to file a third amended complaint that would
add a fraud count and a gross-negligence count. The magistrate judge recommended that leave
to amend be denied.

The district court adopted the magistrate judge’s Report and

Recommendation in its entirety.
II.
We review the district court’s grant of summary judgment on statute-of-limitations
grounds de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). This court’s prior
determination that Brautigam’s legal-malpractice claim against Damon was barred by Ohio’s
one-year statute of limitations is the law of the case; the mandate rule “requires lower courts to
adhere to the commands of a superior court . . . . Accordingly, [u]pon remand of the case for
further proceedings after a decision by the appellate court, the trial court must ‘proceed in
accordance with the mandate and the law of the case as established on appeal.’” Allard Enters.,
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Inc. v. Advanced Programming Res., Inc., 249 F.3d 564, 569–70 (6th Cir. 2001) (citations
omitted). It is true that this court on Brautigam’s first appeal determined that his complaint
stated a claim of legal malpractice against Damon and Crosthwaite, but that was solely in the
context of reviewing whether Brautigam met the amount-in-controversy requirement of diversity
jurisdiction. See PID 3002; Brautigam v. Damon et al., No. 14-3400, R. 30-1/Order entered
2/25/15. We ruled definitively that the attorney-client relationship between Brautigam and
Damon was severed when Damon moved to withdraw as Brautigam’s counsel in the Hackett
litigation and Brautigam responded to B&C’s August 4, 2010 letter by electing to be represented
by B&C, rather than Damon. Brautigam does not contest that these events preceded the filing of
his complaint by more than one year. The district court was not free to ignore our ruling on this
matter and thus properly determined that Brautigam’s legal-malpractice claim against Damon
was barred.
Brautigam presents no argument regarding the dismissal of his remaining claims against
Damon: breach of fiduciary duty, unjust enrichment, negligence, conversion, and promissory
estoppel, and thus has abandoned those claims. See Enertech Elec., Inc. v. Mahoning Cty.
Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996).
III.
The district court did not abuse its discretion in adopting the magistrate judge’s
recommendation to deny Brautigam’s motion for leave to amend. See Coe v. Bell, 161 F.3d 320,
341 (6th Cir. 1998) (holding that review of denial of motion for leave to amend is for abuse of
discretion).

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Brautigam attached to his motion for leave to amend a proposed third amended
complaint, which added a fraud count alleging:
128. Defendant Damon committed fraud against Plaintiff and others by accepting
cases he did not intent [sic] to properly prosecute in exchange for whatever
money he could fleece from clients. Damon “played” his clients along, taking as
much money as possible for as long as possible, and then seeking to withdraw on
a pretext, and then hiding behind “a fee dispute” with the client. Defendant
Crosthwaite committed fraud by allowing this to happen either through willful
ignorance or acting in concert with Damon to obtain fees that Damon was
generating, including fees from Plaintiff. Defendant Crosthwaite further
committed fraud by actively concealing the true facts regarding Damon’s serial
predation from clients in the 4 August 2010 letter sent to Plaintiff and
substantially similar letters sent to B&C’s other clients. Crosthwaite intended to
and did mislead Plaintiff and other B&C clients as to the true facts of Damon’s
theft, in a fraudulent attempt to induce B&C clients including Plaintiff, to select
serial predator Damon as their counsel.
129. Defendant Crosthwaite is also liable for fraud in that, in possession of highly
credible information indicating that Defendant Damon was a serial predator,
Defendant Crosthwaite, acting in concert with Defendant Damon, both
affirmatively represented and deliberately omitted this information so that clients
of B&C such as Plaintiff were not able to make an informed decision as to who
should represent them, and how to proceed. Defendant Crosthwaite also directed
that B&C office manager Pattianne Menden to lie and/or affirmatively mislead
B&C clients as to the true facts concerning Damon’s serial predation in an
underhanded attempt to fraudulent [sic] induce B&C’s clients to select known
serial predator Damon as their counsel, thus shielding B&C and Defendant
Crosthwaite from liability from their active participation in this ongoing fraud.
This scheme was in furtherance of their mutual goals of avoiding being named in
malpractice suits and making payments to clients for the money stolen from them.
Defendant Crosthwaite was also instrumental in seeing that all restitution
payments went to B&C; no restitution payments were made to clients of B&C.

PID 2490-91. Brautigam attached as exhibits documents including: Damon’s indictment for
theft of $61,553.98 from B&C spanning from on or about January 1, 2009 through July 31, 2010;
Damon’s guilty plea to fourth-degree felony theft, entered March 11, 2013 in the Hamilton
County Court of Common Pleas; Damon’s suspension from the practice of law in the Southern

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District of Ohio on August 1, 2013; and Damon’s disbarment by the Supreme Court of Ohio.
The one-page memorandum Brautigam submitted in support of his motion stated in its entirety:
Plaintiff filed his complaint on 15 August 2011, his First Amended Complaint on
12 September 2011, and Motion for Leave to File Second Amended Complaint on
17 September 2013. Since that time, the case has been overtaken by events, as
there have been significant developments related to the case, including but not
limited to Defendant Damon’s felony conviction for his disbarment.
Additionally, some minimal discovery has taken place, which Plaintiff has
incorporated into the TAC [Third Amended Complaint]. The Motion for Leave to
File the Second Amended Complaint, was not acted on, and Magistrate Judge
Litkovitz directed that a new document be filed, if warranted.
Neither Defendant Damon nor Defendant Crosthwaite will be prejudiced by the
Court granting leave to file the SAC [presumably, second amended complaint].
The SAC removes confusion as to Defendants who are no longer in the case.
PID 2429.
Both Damon and Crosthwaite opposed Brautigam’s motion for leave to amend. Noting
that the case had been pending for over four years, but acknowledging that Brautigam was not
responsible for “this inordinate delay,” the magistrate judge determined that amendment would
be futile and unduly prejudice Defendants. The district court agreed.
As the magistrate judge acknowledged, through no fault of his own, Brautigam’s motion
for leave to amend to file a second amended complaint, filed on September 17, 2013, was denied
as moot when the district court dismissed the complaint for lack of subject-matter jurisdiction.
The first appeal to this court then took a year. The order reversing and remanding issued on
April 7, 2015, and Brautigam filed the instant motion for leave to amend soon after, on June 12,
2015. Under these circumstances, in the interest of fairness, we analyze Brautigam’s motion as
if he had filed it on September 17, 2013.
Brautigam alleged in his initial complaint that he became aware, in or about November
2010, that Damon maintained a separate IOLTA account, in violation of ethics rules, while
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employed at B&C. PID 8/Complaint filed 8/5/2011. The initial complaint also alleged that in or
about July 2010 B&C fired Damon “for stealing client funds, and other malfeasance.” PID 11;
that on or about April 15, 2011, the Cincinnati Bar Association filed a complaint against Damon
for stealing client funds; and that Damon breached his fiduciary duty to Brautigam by failing to
file actions as he had promised, by failing to vigorously pursue Brautigam’s claims, and by
taking Brautigam’s money for services that were either not completed or did not meet the
applicable standard of care.
The allegations against Damon in Brautigam’s initial and first amended complaints
largely overlap with those in the proposed third amended complaint; the only real difference is
that the third amended complaint explicitly pleaded a claim of fraud, which is subject to a fouryear limitations period.

See Ohio Rev. Code Ann. § 2305.09.

But Brautigam’s cursory

memorandum in support of his motion for leave to amend failed to explain why the fraud count
against Damon was not subsumed under the prior allegations or why the district court’s
discretion should be exercised in his favor to permit amendment at that point in the litigation.2
Brautigam’s first amended complaint, filed in September 2011, alleged that Crosthwaite,
through B&C, negligently hired Damon “with actual and constructive knowledge that the thief
Geoffrey P. Damon was, in fact, a thief who was preying on clients.” PID 112. The first
amended complaint further alleged that Crosthwaite had actual and constructive knowledge that
Damon was maintaining a separate IOLTA account, that Crosthwaite knew or should have
known that Damon was stealing from clients and failing to meet the standard of care in his
2

Brautigam’s motion to amend failed to satisfy Fed. R. Civ. P. 7, which requires that motions
“state with particularity the grounds for seeking the order.” See 6 Charles Alan Wright, Arthur R. Miller,
and Mary Kay Kane, Federal Practice and Procedure § 1486 p. 691-92 (2010) (“A motion to amend under
Rule 15(a), as is true of motions generally, is subject to the requirements of Rule 7(b), and must set forth
with particularity the relief or order requested and the ground supporting the application.”).

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representation, and that Crosthwaite was responsible for the acts and omissions of Damon.
Brautigam’s third amended complaint sought to add allegations regarding B&C’s August 4, 2010
letter to clients regarding their representation preference. As with the allegations against Damon,
the motion to amend did not adequately explain why the fraud claim was not subsumed under a
prior allegation. Additionally, the fraud allegations against Crosthwaite are largely based on an
alleged scheme to mislead clients into choosing to proceed with Damon, rather than with B&C.
However, it is undisputed that Brautigam opted to procced with B&C as counsel. Thus, these
allegations would have been futile if permitted. We find no abuse of discretion in the denial of
leave to file the third amended complaint.3
IV.
Without citing authority, Brautigam also asserts that the magistrate judge “is severely
biased” against him and should have ruled on his affidavit of bias and prejudice. Appellant Br.
33-36.

The district court adequately addressed this argument in overruling Brautigam’s

objections to the magistrate judge’s Report and Recommendation:
Plaintiff’s Affidavit of Bias and Prejudice (Doc. 134) alleges bias and prejudice
. . . and requests that [the magistrate judge] recuse herself from further
participation in this case. The Affidavit attaches, and relies wholly upon, a
Complaint of Judicial Misconduct that Plaintiff filed in the United States Court of
Appeals for the Sixth Circuit.
Recusal is only warranted where a “reasonable, objective person, knowing all of
the circumstances, would have questioned the judge’s impartiality.” See Hughes
v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990). This is an objective
standard and it is not based “on the subjective view of a party.” Browning v.
Foltz, 837 F.2d 276, 279 (6th Cir. 1988) . . . . Plaintiff’s subjective speculation
alone is insufficient to support his allegation of judicial bias . . . .
Here, Plaintiff’s allegations of bias relate to the Magistrate Judge’s conclusions in
the case based on her view of the law, not based on any personal bias. Moreover,
3

Brautigam makes no argument regarding the gross negligence claim.

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Plaintiff’s allegations are wholly speculative. For example, Plaintiff speculates
that the Magistrate Judge dismissed his case “to control her calendar and to
protect then 94 year old Senior Judge Spiegel.” However, he offers no evidence
in support of his conclusory allegations. Furthermore, the Court of Appeals
dismissed Plaintiff’s Complaint of [Judicial Misconduct], finding no support for
his allegations. Specifically, the Court concluded that “[t]he gravamen of the
complaint is the complainant’s dissatisfaction with the subject judge’s Report and
Recommendation.” (Order with Supporting Memorandum, Case No. 06-1590035). The Court further concluded “[t]hat part of the complaint that charges the
subject judge with recommending dismissal of the complaint in order to control
her calendar, which is based on the date that document was entered on the docket,
is frivolous and/or lacks sufficient evidence from which an inference that
misconduct has occurred can be made.” (Id.). Thus, Plaintiff’s argument is not
well-taken.
PID 3118-20.4
V.
Brautigam also claims that the district court did not “truly conduct a meaningful de novo
review of the magistrate judge’s Report and Recommendation” and overlooked his theory of the
case that includes fraud. He cites no facts or authority in support of either argument and neither
warrants discussion; the district court’s decision states that it “reviewed the comprehensive
findings of the Magistrate Judge and considers de novo all of the filings in this matter.” PID
3114.
VI.
Although Brautigam does not explicitly challenge the grant of summary judgment in
Crosthwaite’s favor, Crosthwaite addresses the merits of that ruling.

We agree with the

magistrate judge that summary judgment in Crosthwaite’s favor was proper on the basis that
Brautigam introduced no evidence that he and Crosthwaite had an attorney-client relationship

4

We do not address Brautigam’s assertion, unsupported by authority, that he was subject to
“second-class status as a pro se litigant.” See Appellant Br. 30-33.

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and Crosthwaite could not be held liable for legal malpractice committed by Damon on a
respondeat superior theory:
Turning to the merits of plaintiff’s legal malpractice claim against defendant
Crosthwaite, “it is well-settled that the first, and indispensable, element of a direct
claim for legal malpractice is the existence of an attorney-client relationship.”
Nat’l Union Fire Ins. Co. v. Pittsburgh, PA v. Wuerth, 540 F. Supp.2d 900, 913
(S.D. Ohio 2007), aff’d 349 F. App’x 983 (6th Cir. 2009) (citing Krahn v. Kinney,
538 N.E.2d 1058 (Ohio 1989) . . . To demonstrate this essential element of his
legal malpractice claim against Crosthwaite, plaintiff relies solely on the Court of
Appeals’ finding that plaintiff “has stated a claim under Ohio law.” For the
reasons discussed above, plaintiff cannot rely on the Court of Appeals’ finding
that he has stated a claim for legal malpractice to satisfy the more demanding
summary judgment standard . . . .
Plaintiff has failed to introduce any evidence to demonstrate the existence of an
attorney-client relationship with Crosthwaite. There is no dispute that plaintiff
was represented by Damon at all relevant times. Further, plaintiff alleges that
“[a]t all relevant times [he] was [r]epresented by B&C, [n]ever Damon [a]lone.”
In support of his position, plaintiff relies on: (1) his deposition testimony that he
hired B&C and was represented by the firm; (2) a contingency fee agreement
which plaintiff concededly never signed pursuant to which Damon purportedly
agreed to take plaintiff’s case “on behalf of B&C”; and (3) the inclusion of the
firm’s name on pleadings filed in the state court case . . . . This evidence is not
material to the question of whether Crosthwaite as an individual member of the
B&C law firm represented plaintiff and had an attorney-client relationship with
him. Plaintiff has not introduced any other evidence to show that Crosthwaite
represented him in the Hackett litigation or agreed to represent him in the case
against Judge Ruehlman. Thus, plaintiff has failed to carry his burden on
summary judgment to produce sufficient evidence to permit a reasonable
factfinder to conclude he had an attorney-client relationship with Crosthwaite.
Plaintiff cannot prevail on his legal malpractice claim against defendant
Crosthwaite under a direct theory of liability.
Nor can plaintiff hold defendant Crosthwaite liable for any legal malpractice
committed by Damon under a theory of vicarious liability or respondeat superior.
Under this theory of liability, an employer is vicariously or secondarily liable for
the negligence of its employee, whose liability is primary. [citations omitted]
“For the wrong of a servant acting within the scope of his authority, the plaintiff
has a right of action against either the master or the servant, or against both . . .”
[Taylor v. Belmont Cmty. Hosp., No. 09 BE 30 2010 WL 3328650, at *2 (Ohio
App. 9th Dist. Aug. 16, 2010)] (quoting Losito v. Kruse, 136 Ohio St. 183, 187,
24 N.E.2d 705 (1940)) . . . .
Under Ohio law, a legal professional association is liable upon contract and for
the torts of an attorney performed within his or her actual or apparent authority.
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No. 16-3267, Brautigam v. Damon et al.
David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 607 N.E.2d 1173, 1183
(Ohio App. 8th Dist. 1992) (citing Reitner v. Kelley, 457 N.E.2d 946, 951 (Ohio
App. 10th Dist. 1983)). Further, individual shareholders of a legal professional
association can be held liable for the debts of his association. KMS Energy, Inc.
v. Titmas, 610 N.E.2d 1080, 1081 (Ohio App. 9th Dist. 1992) (citing Gov. Bar. R.
III) (each member of a limited liability company “shall be jointly and severally
liable for any liability of the firm based upon a claim arising from acts and
omissions in the rendering of legal services while he or she was a member,
partner, or equity holder . . . .”).
Plaintiff’s legal malpractice claim against Crosthwaite which is premised on the
theory of vicarious liability must fail because plaintiff does not seek to hold
Damon’s employer, B&C, vicariously liable for Damon’s torts. Plaintiff has not
named B&C as a defendant in this lawsuit and, therefore, the legal professional
association cannot be held liable in this matter for Damon’s tortious acts and
omissions. Plaintiff has presented the Court with no authority that Crosthwaite, as
an individual member of a law firm, may be held vicariously liable under the
circumstances of this case. Because plaintiff has not brought a claim against
B&C, there is no basis for imposing vicarious liability on Crosthwaite as an
individual member of the firm for any torts committed by Damon.
PID 3004-07 (citations omitted).
We AFFIRM the district court’s adoption of the magistrate judge’s report and
recommendation; but regarding the grant of summary judgment in Crosthwaite’s favor, we
AFFIRM for the reasons stated by the magistrate judge and not on statute-of-limitations
grounds.5

5

The district court affirmed the magistrate judge’s Report and Recommendation in its entirety,
including the dismissal of claims against Crosthwaite on statute-of-limitations grounds.

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Case: 16-3267

Document: 15-2

Filed: 06/09/2017

No. 16-3267, Brautigam v. Damon et al.
ALICE M. BATCHELDER, Circuit Judge. I concur in the judgment.

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