x999-2" type="dissent"> Parrino, Judge,

dissenting.

I accept the statement of the history of this appeal as recited in the majority opinion prior to its determination of appellant’s assignments of error.

Sawchyn appealed the judgment entered against him in the court of common pleas in case No. 94589. The appeals and cross-appeals emanating from that judgment were jointly dismissed by all parties in the following dismissal entry:

“Now come all the parties and hereby jointly dismiss all appeals and cross-appeals pending in the Court of Appeals Case Nos. 55322, 55406 and 55445.”

All that the appellate record in the case sub judice discloses is that there was a “Joint Dismissal of Appeals.” Nowhere in this joint dismissal entry is there any reference to the then-pending malpractice action filed by Sawchyn against Westerhaus in the court of common pleas in case No. 154056. There is nothing in the record of the appeal in the case sub judice to show that appellant’s malpractice action against appellee was settled. The specific terms of the “Joint Dismissal of Appeals” are not contained in the record of the appeal before us.

The trial court in C.P. case No. 154056 first denied appellee’s motion for summary judgment. Thereafter upon the filing of appellee’s motion for reconsideration to which the “Joint Dismissal of All Appeals” entry was attached, the court granted appellee’s motion for summary judgment.

*31 It is clear that the determination of the merits of a judgment on appeal must be made by an appellate court upon consideration of the assignments of error contained in the briefs, the record and the oral arguments. App.R. 12(A).

Since there is nothing in the record of the case sub judice to show that the appellant settled his malpractice case against appellee in case No. 154056, I must conclude that the trial court erred in its entry of summary judgment in favor of appellee.

In his complaint appellant contends that he hired appellee to represent him on the punitive damages claim made against appellant and that appellee negligently failed to protect appellant on that claim. It is our role to determine whether appellant has stated a cause of action against appellee in his complaint. I think he has. At this time, however, it is not our role to determine the merit of appellant’s claim. I do not believe that the trial court was justified in granting appellee’s motion for summary judgment on the basis of the joint dismissal entry and other material submitted by appellee in support of his motion.

For these reasons I must respectfully dissent from the majority’s determination of appellant’s first and fourth assignments of error. I would reverse and remand this cause to the trial court for further proceedings according to law.

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