Background
Frances Roush bought a house in Warsaw, Ohio, for $73,000 without obtaining an independent inspection. She later discovered bats and bat guano in the attic. Roush retained attorney James N. Blazek to sue the sellers and related real-estate defendants, but she terminated his services in August 2019, did not retain replacement counsel, and the underlying case was dismissed with prejudice.
Roush then sued Blazek for legal malpractice. After an earlier appeal reversed summary judgment for Blazek, the case proceeded to trial. The jury found that the real-estate defendants had committed fraud but separately found that their fraud did not proximately cause Roush damages. Following the interrogatory instructions, the jury returned a unanimous general verdict for Blazek without reaching whether he had breached a professional duty.
The Court’s Holding
The Fifth District affirmed. Although the findings of fraud and no proximately caused damages were inconsistent because resulting injury is an element of fraud, Roush did not object before the jury was discharged. Plain-error review therefore applied. The court held that the inconsistency did not satisfy that demanding standard because the no-damages answer was consistent with the general defense verdict, leaving it unclear which interrogatory answer failed to reflect the jury’s intent.
The court also rejected Roush’s challenges to Blazek’s expert testimony and the ordering of the interrogatories. The expert’s testimony about breach did not contribute to the verdict because the jury resolved the case at the underlying-damages stage, and the testimony did not violate the law-of-the-case doctrine. The prior appeal had found factual disputes under the summary-judgment standard; it had not dictated what evidence would be admissible at trial.
Finally, the court found no plain error in requiring the jury first to decide whether Roush would have recovered in the underlying action. Roush had litigated the malpractice claim under a case-within-a-case theory. The trial court also acted within its discretion by refusing her requested serious-emotional-distress instruction because her testimony that she was upset, fearful, and devastated did not supply evidence from which a jury could find serious emotional distress as defined in that instruction.
Key Takeaways
- A party claiming inconsistency between jury interrogatories and a general verdict must object before the jury is discharged or face the exceptionally demanding civil plain-error standard.
- An appellate decision reversing summary judgment because factual disputes exist does not necessarily restrict the evidence that may be presented when those disputes are tried.
- A malpractice plaintiff who litigates on a case-within-a-case theory may be required to establish that she would have recovered in the underlying action before the jury considers the attorney’s alleged breach.
- Evidence of being upset, fearful, or devastated did not, without more, require the requested instruction on serious emotional distress.
Why It Matters
The decision underscores the importance of reviewing jury interrogatories and raising any inconsistency while the jury remains impaneled. Once jurors are discharged, an appellate court generally will not correct an unpreserved inconsistency unless it threatens the basic fairness or legitimacy of the judicial process.
It also illustrates how a legal-malpractice plaintiff’s chosen theory shapes the verdict form and proof of causation. Where recovery depends on showing that the underlying litigation would have produced a favorable result, the jury may resolve that threshold issue without deciding whether counsel breached a duty.