injury is economic loss as opposed to personal injury. See Hercules, 566 A.2d at 42.
In accordance with Ohio law, QueTel must demonstrate that it was in privity with CCI regarding the escrow agreement in order to maintain an actionable legal malpractice claim against Cohen, Todd. See Simon, 512 N.E.2d at 638. Privity is found where a plaintiff has a vested right in the transaction at issue. Id. A vested right is one that is "fixed, settled, absolute and not contingent upon anything." Rehor v. Case Western Reserve University, 43 Ohio St. 2d 224, 331 N.E.2d 416, 420 (Ohio 1975). In determining privity here, then, the Court must establish whether or not QueTel had a vested right in the November 1988 escrow agreement. The Court finds that QueTel did not have a vested right since any right or interest in receiving payments from CCI by way of disbursements from Cohen, Todd was "contingent upon" the deposit of funds in the escrow account by the State Department. Accordingly, QueTel was not in privity with Cohen, Todd's client, CCI, and therefore cannot maintain a legal malpractice claim against Cohen, Todd under Ohio law.
C. PUNITIVE DAMAGES
The parties dispute whether QueTel is entitled to punitive damages in this case. See Pltf. Complaint at 8; Cohen, Todd's Memo at 11-13. Since the Court has found no cause of action, QueTel is not entitled to any damages against Defendant Cohen, Todd and there is no need to consider this dispute.
The Court concludes that Cohen, Todd has shown there are no material facts in dispute and that Cohen, Todd is entitled to Summary Judgment as a matter of law, under both the breach of contract claim and the malpractice claim asserted by QueTel. Therefore, this case shall be dismissed against Cohen, Todd pursuant to Federal Rule of Civil Procedure 56. The Court shall enter an Order of even date herewith consistent with the foregoing opinion.
March 20, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
EDITOR'S NOTE: The following court-provided text does not appear at this cite 787 F. Supp. 1.
ORDER - March 20, 1992, Filed
For reasons set forth in the Court's Memorandum Opinion filed on this date, it is, by the Court, this 20 day of March, 1992,
ORDERED that Defendant Cohen, Todd's Motion for Summary Judgment shall be, and hereby is, GRANTED pursuant to Federal Rule of Civil Procedure 56 and that the above-entitled case shall be dismissed with prejudice against Defendant Cohen, Todd; and it is,
FURTHER ORDERED that the above-entitled case shall be, and hereby is, dismissed without prejudice against remaining Defendants CCI and Christine Davis for failure to effect service of process, pursuant to Federal Rule of Civil Procedure 4(j), in light of the fact that the permitted time for service of process has expired.
CHARLES R. RICHEY
UNITED STATES DISTRICT COURT