Harris v. Reedus

[Cite as Harris v. Reedus, 2015-Ohio-4962.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Felice L. Harris, :

Plaintiff-Appellant, :
No. 15AP-181
v. : (C.P.C. No. 14CVA-4020)

Benita D. Reedus, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on December 1, 2015

Hollern & Associates, and Edwin J. Hollern, for appellant.

Reminger Co. L.P.A., Jason D. Winter and Julian T.
Emerson, for appellee.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
{¶ 1} Plaintiff-appellant, Felice L. Harris ("appellant"), appeals the February 13,
2015 judgment of the Franklin County Court of Common Pleas granting summary
judgment in favor of defendant-appellee, Benita D. Reedus ("appellee"). For the reasons
that follow, we reverse the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} This action for legal malpractice arises from appellee's representation of
appellant in her divorce action, which we previously considered in Howard v. Howard,
10th Dist. No. 14AP-292, 2014-Ohio-5248. Although we discussed the history of this
matter in our prior decision, the following facts are relevant to the disposition of the
present appeal.
{¶ 3} On June 2, 2011, appellant, a licensed attorney, filed pro se a complaint for
divorce. On August 15, 2012, appellant entered into a written fee agreement with appellee
No. 15AP-181 2

for legal services in her divorce action. The agreement, which both parties signed,
encompassed work "through a final Judgment Entry," not including "the cost of appeals
or post-decree enforcement of Orders" and provided that the agreement "may not be
modified or changed in any manner except by a subsequent written Agreement signed by
both parties." (Agreement for Legal Services, Motion for Summary Judgment, Exhibit F.)
In the course of her representation of appellant, appellee drafted a divorce agreement
dividing the parties' assets and establishing December 31, 2009 as the termination date of
the marriage.
{¶ 4} On October 12, 2012, the domestic relations court adopted the divorce
agreement drafted by appellee, filing it as an agreed judgment entry and decree of divorce,
which both parties and their respective counsel signed. The agreement included
provisions distributing one-half of the marital share of appellant's ex-husband's pension
with the Ohio Public Employment Retirement System ("OPERS") by means of a Division
of Property Order ("DOPO"), which was to be completed by both parties.1 Specifically, the
agreement provided that appellant was "to receive one-half of the marital share of the
Defendant's OPERS retirement from the date of the marriage until December 31, 2009
* * *. The DOPO required herein shall be prepared by Pension Evaluators and the cost
will be divided equally between the parties. Both parties are ordered to cooperate with
Pension Evaluations to effectuate completion of the DOPO within 120 days of the signing
of this order." (Motion for Summary Judgment, Exhibit G, 3-4.)
{¶ 5} In April 2013, due to her former husband's noncooperation with the DOPO
obligations in the divorce decree, appellant contacted another attorney to assist with
enforcement. On October 11, 2013, appellant, through new counsel, filed a motion
pursuant to Civ.R. 60(B) in the domestic relations court for relief from the October 12,
2012 divorce decree. At the hearing on the motion, appellant explained that she
misunderstood how she would be receiving her marital share of her ex-husband's OPERS
benefits. As of the date of the divorce, appellant was aware that her ex-husband was
receiving a monthly benefit payment from OPERS. Appellant believed, based upon

1 "Using the process set forth in R.C. 3105.80 through 3105.90, a trial court can issue a DOPO, thereby
requiring the administrator of a public-retirement program to distribute benefits divided by a divorce
decree directly to a nonmember ex-spouse." Howard at ¶ 3, citing Thompson v. Thompson, 196 Ohio
App.3d 764, 2011-Ohio-6286, ¶ 13 (10th Dist.), fn.3.
No. 15AP-181 3

representations allegedly made by appellee, that she would "be getting a lump sum
payment" in the amount of her share of all the monthly payments that OPERS had
previously made to her ex-husband from the date of the divorce until the implementation
of the DOPO. (Feb. 12, 2014 Hearing, Motion for Summary Judgment, Exhibit K, 12.)
Appellant specifically stated when she learned that she was not going to receive a lump-
sum payment:
Q.: So, Felice, you then took all the necessary steps to attempt
to get your ex to cooperate with the -- doing the DOPO. When
did you then learn that the lump sum was not going to
approve?

[Appellant]: It was probably March. It was probably March of
2013.

Q.: All right. And, after that point you ended up seeking
counsel and eventually the decision was made to file the
60(B), is that correct?

[Appellant]: That's correct.

Q.: All right. Felice, would you have negotiated the resolution
that you had, had you been aware that there was going to be
no lump sum payment for those twenty-four months or so?

[Appellant]: No.

(Feb. 12, 2014 Tr. 16, Motion for Summary Judgment, Exhibit K.)
{¶ 6} On March 12, 2014, the domestic relations court denied appellant's Civ.R.
60(B) motion. Upon appeal, we affirmed the March 12, 2014 decision of the domestic
relations court. Howard at ¶ 16.
{¶ 7} On April 11, 2014, appellant filed a complaint in the trial court alleging that
appellee committed legal malpractice. In her complaint, appellant alleged that she "first
learned that she should seek legal representation for a potential legal malpractice claim
* * * on April 17, 2013." (Complaint, 2.) On September 29, 2014, appellee filed a motion
for summary judgment asserting that no material issues of fact remained for trial because
appellant's claim was time-barred as a matter of law. On October 21, 2014, appellant filed
No. 15AP-181 4

a memorandum contra appellee's motion for summary judgment. On February 13, 2015,
the trial court granted summary judgment in favor of appellee.
II. Assignment of Error
{¶ 8} Appellant appeals assigning the following error for our review:
THE TRIAL COURT ERRED BY GRANTING DEFEND-
ANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

{¶ 9} In her assignment of error, appellant argues that the trial court erred by
granting summary judgment in favor of appellee because it incorrectly determined the
cognizable event for purposes of the statute of limitations of appellant's legal malpractice
claim.
{¶ 10} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is
appropriate only when the moving party demonstrates: (1) no genuine issue of material
fact exists; (2) the moving party is entitled to judgment as a matter of law; and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 11} "Statutes of limitations serve a gate-keeping function for courts by
' "(1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of
action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences
engendered by delay—specifically, the difficulties of proof present in older cases." ' "
Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio-1961,
¶ 7, quoting Pratte v. Stewart, 125 Ohio St.3d 473, 2010-Ohio-1860, ¶ 42, quoting Doe v.
Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 10. Nevertheless,
"statutes of limitations are remedial in nature and are to be given a liberal construction to
permit cases to be decided upon their merits, after a court indulges every reasonable
presumption and resolves all doubts in favor of giving, rather than denying, the plaintiff
an opportunity to litigate." Flagstar at ¶ 7, citing Draher v. Walters, 130 Ohio St. 92, 94
No. 15AP-181 5

(1935), overruled on other grounds, Peters v. Moore, 154 Ohio St. 177 (1950). See also
DeTray v. Mt. Carmel Health, 10th Dist. No. 96APE08-1010 (Apr. 17, 1997).
{¶ 12} Generally, a cause of action exists from the time the wrongful act is
committed. Flagstar at ¶ 13. However, because application of the general rule in certain
circumstances " ' "would lead to the unconscionable result that the injured party's right to
recovery can be barred by the statute of limitations before he is even aware of its
existence," ' " Ohio has created an exception commonly known as the discovery rule. Id. at
¶ 13, quoting O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 87 (1983), quoting Wyler v.
Tripi, 25 Ohio St.2d 164, 168 (1971). The discovery rule provides that a cause of action
does not arise until the plaintiff knows, or by the exercise of reasonable diligence should
know, that he or she has been injured by the conduct of the defendant. Flagstar at ¶ 14.
{¶ 13} The Supreme Court of Ohio has adopted the discovery rule in legal
malpractice cases. Skidmore & Hall v. Rottman, 5 Ohio St.3d 210 (1983), paragraph one
of the syllabus; Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54 (1989), paragraph
one of the syllabus. Under R.C. 2305.11(A), a legal malpractice claim must be commenced
within one year following the date upon which the cause of action accrued. See Bowman
v. Tyack, 10th Dist. No. 08AP-815, 2009-Ohio-1331, ¶ 9. The Supreme Court has
established the following two-part test to ascertain when a claim for legal malpractice
accrues under the discovery rule:
Under R.C. 2305.11(A), an action for legal malpractice accrues
and the statute of limitations begins to run when there is a
cognizable event whereby the client discovers or should have
discovered that his injury was related to his attorney's act or
non-act and the client is put on notice of a need to pursue his
possible remedies against the attorney or when the attorney-
client relationship for that particular transaction or
undertaking terminates, whichever occurs later.

Zimmie at paragraph one of the syllabus. Thus, a court must make two factual
determinations: "(1) When should the client have known that he or she may have an
injury caused by his or her attorney? and (2) When did the attorney-client relationship
terminate? The latter of these two dates is the date that starts the running of the statute of
limitations." Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, ¶ 4.
No. 15AP-181 6

{¶ 14} The determination of the date of accrual of a cause of action for legal
malpractice is a question of law that an appellate court reviews de novo. Bowman at ¶ 10,
citing Ruckman v. Zacks Law Group, 10th Dist. No. 07AP-723, 2008-Ohio-1108, ¶ 17;
Smith v. Barclay, 10th Dist. No. 11AP-798, 2012-Ohio-5086, ¶ 21, citing DiSabato v.
Thomas M. Tyack & Assoc. Co., L.P.A., 10th Dist. No. 98AP-1282 (Sept. 14, 1999).
{¶ 15} Here, appellant admits that the attorney-client relationship in question
terminated over one year before she filed her complaint. Thus, we must examine when a
cognizable event occurred such that appellant should have known that she had an injury
caused by her attorney. Id. at ¶ 4. We have previously discussed the concept of a
"cognizable event," as follows:
"A 'cognizable event' is an event sufficient to alert a reasonable
person that his attorney has committed an improper act in the
course of legal representation. As this court has noted, the
focus should be on what the client was aware of and not an
extrinsic judicial determination. The 'cognizable event' puts
the plaintiff on notice to investigate the facts and circum-
stances relevant to his or her claim in order to pursue
remedies, and the plaintiff need not have discovered all of the
relevant facts necessary to file a claim in order to trigger the
statute of limitations. The injured person need not be aware of
the full extent of the injury before there is a cognizable event.
Rather, it is enough that some noteworthy event, the
cognizable event, has occurred that does or should alert a
reasonable person that a questionable legal practice may have
occurred. A client is also not permitted to exhaust all appellate
remedies before the statute of limitations commences."

Bowman at ¶ 12, quoting Asente v. Gargano, 10th Dist. No. 04AP-278, 2004-Ohio-5069,
¶ 11, discretionary appeal not allowed, 105 Ohio St.3d 1439, 2005-Ohio-531.
{¶ 16} Here, appellant argues that the cognizable event did not occur until April 17,
2013 when she first met with new counsel and learned that there was a problem with her
divorce decree. Appellant supports her contention with reference to her own affidavit and
the affidavits of her new attorneys who represented her in post-divorce proceedings. The
trial court found, based on appellant's testimony at the Civ.R. 60(B) hearing, that the
cognizable event occurred in March 2013 when appellant "first learned that OPERS would
not pay her in a lump sum." (Feb. 13, 2015 Decision and Entry, 5.)
No. 15AP-181 7

{¶ 17} Upon our independent review, "indulg[ing] every reasonable presumption
and resolv[ing] all doubts" in a light most favorable to appellant, we find that the
cognizable event occurred no earlier than April 17, 2013. Flagstar at ¶ 7. While appellant
stated that she "learn[ed] that the lump sum was not going to approve" in March 2013, it
is not clear whether the lack of approval resulted from her ex-husband's noncooperation
or because of issues with the drafting of the divorce decree. (Feb. 12, 2014 Tr. 16, Motion
for Summary Judgment, Exhibit K.) Appellant's affidavit, in which she states that she
learned in March 2013 that the consulting company processing the DOPO "would not
move forward and approve anything (the lump sum or the monthly payments) without
[her ex-husband's] release," supports the conclusion that appellant's testimony was
referring to her ex-husband's noncooperation. (Appellant's Affidavit attached to Memo
Contra, 1.)
{¶ 18} Appellee suggests that appellant's affidavit cannot be considered to create a
genuine issue of material fact because it contains "naked contradictions" of appellant's
prior testimony. (Appellee's Brief, 32.) However, we have held that "an affidavit does not
contradict [testimony] if it explains, supplements or clarifies the earlier testimony, and
such affidavit testimony can be considered to create genuine issues of material fact
sufficient to defeat a motion for summary judgment." Ohio Farmers Ins. Co. v. Ohio
School Facilities Comm., 10th Dist. No. 11AP-547, 2012-Ohio-951, ¶ 22, citing Purcell v.
Norris, 10th Dist. No. 04AP-1281, 2006-Ohio-1473, ¶ 12. We find that appellant's affidavit
does not contradict her prior testimony but, rather, merely explains and clarifies it, as
such testimony was made in response to an ambiguous question and, therefore, unclear.
In support of this conclusion, we note that appellant's answer regarding her knowledge in
March 2013 was made directly after discussing her husband's noncooperation and that
neither appellant nor her questioner specifically mentioned OPERS or knowledge of
problems with the divorce decree. Thus, because appellant's affidavit merely clarifies her
prior testimony, we find no inconsistency. Purcell at ¶ 13.
{¶ 19} Further, appellee's own exhibits in support of her motion for summary
judgment contain a letter from the DOPO processing company requesting a release form
signed by appellant's ex-husband dated March 14, 2013, and a letter sent by appellant to
her ex-husband on March 25, 2014 informing him that he was "required to complete the
No. 15AP-181 8

enclosed forms and return them to [OPERS]." (Appellant's Motion for Summary
Judgment, Exhibit K.) These documents demonstrate only that appellant continued to
seek her ex-husband's cooperation in March 2013. Thus, because it is reasonable to
conclude that appellant's statements at the Civ.R. 60(B) hearing refer to her ex-husband's
noncooperation, a separate consideration from an awareness of legal malpractice such as
to trigger a cognitive event, we cannot find, under a light most favorable to appellant, that
appellant should have discovered in March 2013 that her injury resulted from appellee's
alleged actions.
{¶ 20} Although we recognize that appellant " 'need not have discovered all of the
relevant facts necessary to file a claim in order to trigger the statute of limitations,' "
nothing in the record establishes that a "noteworthy event * * * occurred that does or
should alert a reasonable person that a questionable legal practice may have occurred"
prior to April 17, 2013. Bowman at ¶ 12, quoting Asente at ¶ 11. Therefore, under the facts
and circumstances of this case and "indulg[ing] every reasonable presumption and
resolv[ing] all doubts in favor of giving, rather than denying, [appellant] an opportunity to
litigate," we find that the cognizable event occurred no earlier than April 17, 2013.
Flagstar at ¶ 7. Thus, the trial court erred in finding that the statute of limitations barred
appellant's claim for legal malpractice.
{¶ 21} Accordingly, we sustain appellant's assignment of error.
III. Disposition
{¶ 22} Having sustained appellant's assignment of error, we reverse the judgment
of the Franklin County Court of Common Pleas and remand this matter to that court for
further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.

SADLER, J., concurs.
BRUNNER, J., dissents.

BRUNNER, J., dissenting.
{¶ 1} I respectfully dissent from the opinion of the majority. I would affirm the
trial court's decision, taking into account the fact that appellant is a licensed attorney in
the state of Ohio. When the domestic relations court denied her Civ.R. 60(B) motion on
No. 15AP-181 9

March 12, 2014, appellant was on notice then and there that she had a problem. She is an
attorney, and even though the area of the law involving OPERS payments may not be her
primary area of legal expertise, she, like all other licensed attorneys in Ohio, is trained in
research and, having been so trained, completed a particularized curriculum of legal
education that at least prepared her to ask questions (holding a better understanding than
the non-legal trained person) to "know what she does not know." She should have
questioned and investigated further. Moreover, the statute of limitations for legal
malpractice in Ohio, especially for an attorney plaintiff, is an answer readily obtainable by
even a non-legal Internet "Google" search. It is this critical factor of her status as an
attorney that leaves me unable to concur with the opinion of the majority.
{¶ 2} I would apply the ancient maxims to appellant's lack of diligence in
pursuing her claim for legal malpractice and in failing to observe the corresponding
statute of limitations: " 'Ignorantia facti excusat, ignorantia juris non excusat' (Ignorance
of fact excuses, ignorance of the law does not excuse); and 'Volenti non fit injuria' (that to
which a person assents is not esteemed in law an injury)." Scott v. Ford, 45 Or. 531, 535
(1904), quoting Broom, Legal Maxims 253, 268 (8th Ed.). Appellant sat on her rights in
failing to act with diligence to protect them. Accordingly, I would affirm the judgment of
the trial court, finding that recovery against appellee is barred by the statute of
limitations. I would not judicially extend the statute of limitations, especially in the case
of an attorney plaintiff for an action in legal malpractice.
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