Login | January 15, 2021

9th District grants new trial on damages in legal malpractice case

TRACEY BLAIR
Legal News Reporter

Published: January 13, 2021

After an attorney was sued for legal malpractice in a Lorain County divorce case, she filed a counterclaim against her former client for breach of contract, accounts, unjust enrichment and abuse of process.
The legal malpractice claim and the breach of contract counterclaim proceeded to a jury trial.
The jury returned a verdict of $550,000 for Ann Alonso on her legal malpractice claim and also ruled in favor of Alonso on attorney Joan Jacobs Thomas’ breach of contract counterclaim.
Thomas filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial. The trial court granted Thomas’ motion for a new trial on damages only.
On appeal, Thomas argued the trial court erred in admitting the testimony of Alonso’s expert, domestic relations attorney David Badnell, regarding spousal support damages.
The 9th District Court of Appeals recently sustained the trial court’s decision to grant a new trial on damages.
Thomas represented Alonso in a divorce action from 2008 through May 2014. Alonso filed suit after retaining new counsel to represent her for the remainder of the divorce action.
Court records indicate that during closing argument, Alonso’s counsel relied upon Badnell’s expert testimony that she should have received a combined award of spousal support and child support in the amount of $5,500 per month for an indefinite period. Alonso’s counsel suggested to the jury that a period of 10 years was reasonable.
Alonso sought a total of $607,000 for Thomas’ alleged legal malpractice, of which “almost $400,000” was for spousal and child support damages.
After a hearing on the motions, the trial court determined that it had erred in admitting Badnell’s testimony regarding spousal support damages, and it could “back out” the improper damages
from the jury’s verdict.
The order for new trial was provisionally stayed pending Alonso’s decision to elect or to refuse a remittitur of $210,240. The trial court also granted Alonso’s motion for prejudgment interest. Alonso accepted the remittitur, which reduced the judgment to $339,760, plus prejudgment interest, and Thomas’ motion for new trial was denied.
In Judge Lynne Callahan’s opinion, the 9th District Court of Appeals agreed with Thomas that the trial court abused its discretion when it allowed Badnell to testify outside of his expert report.
Despite sustaining Thomas’ specific objection on the basis that Badnell was testifying outside his expert report and precluding further testimony on spousal support damages, the trial court denied Thomas’ motion to strike Badnell’s testimony regarding the spousal support damages, stating, “But you raised your objection, we dealt with it. You let it go in, so it’s hard to unring that bell.”
At the close of Alonso’s case, Thomas’ counsel moved for a directed verdict and renewed the objection to the trial court’s denial of the motion to strike and refusal to give a curative instruction.
“While the general objections in this case were deficient and could have been asserted with specificity to prevent the jury from receiving the testimony, the subsequent specific objection and motion to strike were made at a time that provided the trial court with the ability to minimize the prejudicial effect of Mr. Badnell’s improper testimony,” Callahan wrote. “Based upon the foregoing, we conclude that the trial court abused its discretion when its denied Ms. Thomas’ motion to strike and refused to give a curative instruction, and thereby allowed Mr. Badnell’s improper expert opinion regarding the amount and duration of spousal support damages to stand.
“Ms. Thomas also argues that the trial court erred when it overruled her objection and allowed Ms. Alonso’s counsel in closing argument ‘to tell the jury that Mr. Badnell opined and concluded that spousal support should have been $5,500 a month for 10 years[.]’ In light of our conclusion that the trial court abused its discretion in allowing Mr. Badnell’s testimony to stand, it follows that it was error to allow Ms. Alonso to reference this testimony in her closing argument.”
The panel also concluded Thomas was materially prejudiced by these evidentiary errors.
Appellate judges Julie Ann Schafer and Thomas Teodosio concurred. The case is cited Alonso v. Thomas, 2020-Ohio-6660.


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