[Cite as Taft, Stettinius, & Hollister, L.L.P. v. Calabrese, 2016-Ohio-4713.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TAFT, STETTINIUS, & HOLLISTER, : APPEAL NO. C-150097
LLP, TRIAL NO. A-1404456
:
Plaintiff-Appellee,
: O P I N I O N.
vs.
:
ANTHONY O. CALABRESE, III,
:
Defendant-Appellant/Third-party
Plaintiff-Appellant, :
vs. :
RALPH KOHNEN :
Third-Party Defendant-Appellee.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 30, 2016
Taft, Stettinius, & Hollister, LLP, and Russell S. Sayre, John B. Nalbandian and
Nicholas J. Pieczonka for Plaintiff-Appellee Taft Stettinius & Hollister, LLP, and
Third-Party Defendant-Appellee Ralph Kohnen,
Stefanik & Christie, LLC, and John R. Christie for Defendant-Appellant/Third-Party
Plaintiff-Appellant Anthony O. Calabrese, III.
OHIO FIRST DISTRICT COURT OF APPEALS
S TAUTBERG , Judge.
{¶1} This is an appeal from the trial court’s entry of summary judgment in
favor of the law firm of Taft, Stettinius, & Hollister, LLP, (“Taft”) and attorney Ralph
Kohnen on Anthony O. Calabrese’s claims for breach of contract, unjust enrichment,
and legal malpractice. We affirm.
Facts
{¶2} Kohnen is a partner at Taft. Calabrese hired Kohnen and Taft to
represent him in connection with a criminal matter. In pertinent part, the parties’
engagement letter stated:
You [Calabrese] have asked that we [Kohnen and Taft] represent you in
a criminal investigation of you currently being conducted by the Federal
Bureau of Investigation’s Cleveland Resident Agency and the United
States Attorney’s Office for the Northern District of Ohio. You have also
asked that we represent you in any criminal proceeding in which you are
a named defendant brought as a result of or at the conclusion of the
aforementioned investigation. * * * Our services will include related
proceedings before Courts of Appeals that are undertaken before final
judgment in your case at the trial court level, but the scope specifically
does not include any appeal from a final judgment at the trial court level.
{¶3} In return, Calabrese paid Taft and Kohnen a flat fee.
{¶4} Kohnen and other Taft attorneys represented Calabrese throughout the
federal investigation. On January 15, 2013, Calabrese pleaded guilty to federal
charges. In early April 2013, the Cuyahoga County Grand Jury indicted Calabrese on
state charges. According to Calabrese, these state charges stemmed from the same
conduct as the federal charges, and were similar in nature to the federal charges.
2
OHIO FIRST DISTRICT COURT OF APPEALS
Calabrese therefore believed that Taft would represent him on the state charges, and
he emailed Kohnen asking who Taft was sending to appear at Calabrese’s state
arraignment. On April 12, 2013, Kohnen informed Calabrese that the parties’
engagement letter did not contemplate representation on the state charges. Calabrese
thereafter retained other counsel for the state matter. But Calabrese continued to
dispute Taft and Kohnen’s determination that the engagement letter did not require
representation on the state charges. This disagreement eventually culminated in
Calabrese and Taft, but not Kohnen, executing an agreement tolling the statute of
limitations for all claims until August 4, 2014.
{¶5} Meanwhile, Taft and Kohnen continued to represent Calabrese in the
federal case. On June 21, 2013, Calabrese was sentenced to nine years in federal
prison. Taft and Kohnen claim that the last day that they provided representation to
Calabrese was on July 22, 2013. Calabrese claims that Taft and Kohnen continued to
represent him after sentencing in connection with Calabrese’s federal restitution order.
According to Calabrese, he was unaware that Taft and Kohnen had stopped
representing him until Calabrese’s federal prison account was debited on September
10, 2013. Apparently, the debiting of his account had alerted Calabrese to the fact that
Taft and Kohnen were not working on a restitution plan.
{¶6} On July 30, 2014, after learning that Calabrese was contemplating suing
Taft and Kohnen for failing to represent him in the state matter, Taft filed a complaint
for declaratory judgment under R.C. 2721.03 asking the court to declare that, under
the terms of its written contract with Calabrese, Taft had not been required to
represent Calabrese in the state case. Taft also requested a declaration that any
malpractice claim against Taft was time-barred.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} On August 4, 2014, Calabrese answered Taft’s complaint, filed a third-
party complaint against Kohnen, and counterclaimed against Taft, alleging breach of
contract, unjust enrichment, and legal malpractice claims against both Taft and
Kohnen. Taft and Kohnen subsequently moved for summary judgment on all of
Calabrese’s claims.
{¶8} The trial court determined that all of Calabrese’s claims sounded in
malpractice and were therefore subject to a one-year statute of limitations. The court
further determined that any malpractice claim had accrued on April 12, 2013 because
that was the date that Kohnen had informed Calabrese that he would not represent
him on the state charges. And because the parties’ tolling agreement had not been
personally signed by Kohnen, the agreement could not be enforced against him.
Without a claim against Kohnen—the only attorney named in Calabrese’s lawsuit—any
malpractice claim against Taft failed as a matter of law. The trial court therefore
granted summary judgment in favor of Taft and Kohnen as to all of Calabrese’s claims.
Taft later voluntarily dismissed its declaratory judgment action. This appeal followed.
Calabrese’s Assignments of Error
{¶9} Calabrese raises five assignments of error. He claims that (1) the trial
court erred in entering summary judgment because the state and federal cases were
“inextricably tied together,” (2) the trial court erred in entering summary judgment
because “the Taft law firm provided or should have provided legal services” to
Calabrese within one year of Calabrese’s malpractice claim, (3) the trial court abused
its discretion in denying a Civ.R. 56(F) motion Calabrese claims he filed, (4) the trial
court erred in entering summary judgment because Taft and Kohnen’s failure to
represent him in the state case breached their contractual obligations to Calabrese, and
(5) the trial court should have recused itself due to a “myriad of issues.”
4
OHIO FIRST DISTRICT COURT OF APPEALS
Summary Judgment
{¶10} Calabrese’s first, second, and fourth assignments of error challenge the
trial court’s summary-judgment order. We review the granting of summary judgment
de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Summary judgment is appropriate when (1) there is no genuine issue of material fact,
(2) the moving party is entitled to judgment as a matter of law, and (3) the evidence,
when viewed in favor of the nonmoving party, permits only one reasonable conclusion
and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Grafton; State ex
rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994). The moving
party bears the initial burden of informing the court of the basis for the motion and
demonstrating the absence of any genuine issues of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party meets its burden, the
nonmoving party must then present evidence that some issue of material fact remains
to be litigated. Id.
{¶11} We take Calabrese’s assignments of error out of order, and address the
fourth assignment of error first.
Malpractice or Breach of Contract Claim?
{¶12} In his fourth assignment of error, Calabrese alleges that the trial court
erred when it determined that his breach of contract claim was actually a malpractice
claim.
{¶13} “The term ‘malpractice’ refers to professional misconduct, i.e., the
failure of one rendering services in the practice of a profession to exercise that degree
of skill and learning normally applied by members of that profession in similar
circumstances.” Strock v. Pressnell, 38 Ohio St.3d 207, 211, 527 N.E.2d 1235 (1988),
citing 2 Restatement of the Law 2d, Torts, Section 299(A) (1965). A cause of action, no
5
OHIO FIRST DISTRICT COURT OF APPEALS
matter how it is labeled, will be subsumed into a malpractice claim where that claim
arises out of “the manner in which the attorney represented the client.” Muir v.
Hadler Real Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th Dist.1982);
see Hibbert v. Cincinnati, 4 Ohio App.3d 128, 131, 446 N.E.2d 832 (1st Dist.1982).
{¶14} Taft and Kohnen cite Waite, Schneider, Bayless & Chesley Co., L.P.A. v.
Davis, 5 F.Supp.3d 922 (S.D.Ohio 2014), in support of their position that Calabrese’s
contract claim sounded in malpractice. In Davis, Davis had entered into an agreement
with Waite, Schneider, Bayless & Chesley (“the Waite Firm”) whereby the Waite Firm
had agreed to represent Davis on claims related to Davis’s CNG investments. Davis
believed that the parties’ agreement covered cases beyond a single Hamilton County
case that had been pending at the time of the agreement. The Waite Firm disagreed,
and refused to represent Davis in three other CNG-investment-related actions that had
arisen after the parties’ entered their agreement. Davis ultimately hired other counsel
to handle those matters. Davis later sued the Waite Firm for breach of contract,
breach of fiduciary duty, and malpractice. In relevant part, the court determined that
Davis’s breach of contract claim was actually a claim for malpractice because the claim
went to the manner in which the Waite Firm had represented—or failed to represent—
Davis. The court reasoned that “[w]hile the Waite Firm’s attorneys may have breached
their contractual obligation by refusing to represent Davis in other actions, under Ohio
law, such breach constitutes malpractice.” Id. at 927. We believe that this is an
accurate interpretation of Ohio law. See Chambers v. Cottrell, 6th Dist. Lucas No. L-
10-1178, 2011-Ohio-144 (client’s allegation that her attorney’s failure to pursue a Dram
Shop Act claim as allegedly required by the parties’ contract went directly to manner in
which her attorney had represented or failed to represent her, and therefore the claim
sounded in malpractice); United States Fid. & Guar. Co. v. Pietrykowski, 6th Dist. Erie
6
OHIO FIRST DISTRICT COURT OF APPEALS
No. E99-38, 2000 Ohio App. LEXIS 460 (Feb. 11, 2000) (insurance company sued the
attorney it had hired to represent an insured, claiming that the attorney had failed to
provide a defense to the insured; the court found that all claims sounded in
malpractice because each claim, no matter how it was labeled, addressed issues of
what the attorney did or did not do in the course of representing the insured); Rumley
v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 718 N.E.2d 964 (10th
Dist.1998) (where attorney had agreed to represent a client, but later left his law firm
and client’s case was never reassigned to another firm attorney, client’s breach of
contract claim was actually a claim for malpractice).
{¶15} Here, Calabrese is alleging that his attorney had a contractual obligation
to represent him in both the federal and state cases, and that the failure to represent
him in the state case constituted a breach of contract. This claim sounds in malpractice
because it challenges the manner of Kohnen’s representation. Moreover, the operative
allegations upon which Calabrese relies for his breach of contract claim are the same
for his malpractice claim. We therefore find that the trial court correctly determined
that Calabrese’s breach of contract claim was a malpractice claim.
{¶16} Calabrese’s fourth assignment of error is overruled.
Statute of Limitations for Malpractice
{¶17} Next, we address Calabrese’s first and second assignments of error. In
his first assignment of error, Calabrese contends that the trial court erred in entering
summary judgment because the state and federal cases were “inextricably tied
together.” While not entirely clear from Calabrese’s brief, it appears that this
assignment of error goes to whether the trial court correctly determined that
Calabrese’s malpractice claim was time-barred. In Calabrese’s second assignment of
7
OHIO FIRST DISTRICT COURT OF APPEALS
error, he alleges that the trial court erred in ruling that his malpractice claim was
untimely. We address these assignments of error, together.
{¶18} The statute of limitations for a legal-malpractice action is one year from
when the cause of action accrued. R.C. 2305.11(A). A cause of action accrues “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 v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d
398 (1989). Therefore whether the statute of limitations bars a legal-malpractice claim
turns on 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, 846 N.E.2d 509, ¶ 4.
{¶19} Taft and Kohnen claim that the attorney-client relationship ended when
Kohnen informed Calabrese on April 12, 2013, that Kohnen and Taft would not
represent Calabrese on the state charges. This statement would normally suffice for
purposes of R.C. 2305.11 to establish a termination of the attorney-client relationship.
See Conley at ¶ 10-11. And it does suffice to show that the attorney-client relationship
as to the state charges, if one had ever existed, had ended. However, it is undisputed
that Taft and Kohnen continued to represent Calabrese after April 12, 2013. Under the
termination test, the statute of limitations begins to run “when the attorney-client
relationship for * * * [a] particular transaction or undertaking terminates.” (Emphasis
added.) Zimmie at 58. The parties’ engagement letter stated that Taft and Kohnen
8
OHIO FIRST DISTRICT COURT OF APPEALS
agreed to represent Calabrese “in any criminal proceeding” in which Calabrese was a
named defendant “brought as a result of or at the conclusion of the aforementioned
investigation.” The state and federal cases were both criminal proceedings naming
Calabrese as a defendant and—according to Calabrese’s version of events—were
brought at the conclusion of or as the result of the investigation referenced in the
engagement letter. Viewing this evidence in a light most favorable to Calabrese, the
state and federal cases could be fairly characterized as the same “undertaking.” The
question then becomes, when did Taft and Kohnen stop representing Calabrese in this
undertaking?
Calabrese’s Confusion of Discovery and Termination Tests
{¶20} Calabrese argues that the attorney-client relationship in the federal case
did not terminate until he “discovered” that his federal prison account had been
debited on September 10, 2013. Calabrese’s argument seems to combine the tests set
forth in Conley, i.e., the termination test and the discovery test. These tests involve
two distinct analyses. Even assuming that Calabrese did not “discover” that Taft and
Kohnen had stopped representing him in the federal case until his federal prison
account had been debited, this “discovery” is irrelevant. The discovery rule tolls the
running of the statute of limitations until the time that a client discovers or should
have discovered his or her alleged injury. Conley at ¶ 4. Here, Calabrese’s malpractice
claim revolves around Taft’s refusal to represent him in the state case. He did not
allege in his complaint that Taft or Kohnen committed malpractice in connection with
the debiting of his federal prison account. Consequently, his “discovery” of the
debiting of his federal prison account has no relevance to his malpractice claim.
{¶21} Turning to the termination test, and upon a review of the record, we
hold that there is no genuine issue of fact concerning when Taft’s and Kohnen’s
9
OHIO FIRST DISTRICT COURT OF APPEALS
representation ended. Kohnen had terminated the attorney-client relationship, if one
had ever existed on the state case, on April 12, 2013. And Kohnen’s affidavit stated
that he provided no further services to Calabrese after July 22, 2013—the day after
final judgment was entered in the federal case. Further, the parties’ engagement letter
stated that Taft and Kohnen would represent Calabrese through “final judgment.”
Calabrese failed to offer any evidence of the type contemplated by Civ.R. 56(C) and (E)
to show that Kohnen had continued to represent him after Calabrese had been
sentenced in federal court. Calabrese did submit to the trial court one email from Taft
attorney Chad Ziepfel suggesting that Ziepfel may have continued to work on the
federal case after sentencing, but this fails to create a genuine issue of fact concerning
when Kohnen’s attorney-client relationship with Calabrese had ended. Calabrese did
not allege that Ziepfel committed acts of malpractice. Kohnen is the only attorney
named as a counterclaim defendant and the only attorney alleged to have committed
malpractice, and the claim against him is barred by the statute of limitations. In the
absence of a claim against Kohnen, Calabrese’s malpractice claim against Taft fails as a
matter of law. See Natl. Union Fire Ins. Co. of Pittsburgh, P.A. v. Wuerth, 122 Ohio
St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, paragraphs one and two of the syllabus.
The Tolling Agreement
{¶22} Finally, Calabrese asserts that, even if he should have filed his lawsuit on
or before July 22, 2014, the tolling agreement that he executed with Taft tolled the
statute of limitations for his malpractice claim against Taft and Kohnen until August 4,
2014. Taft contends that the tolling agreement applies to claims against Taft, only, and
not against Kohnen. Taft is correct.
{¶23} The tolling agreement in this case provided, “This agreement is made
and entered into by and between Taft, Stettinius & Hollister, LLP (“the Firm”) and
10
OHIO FIRST DISTRICT COURT OF APPEALS
Anthony O. Calabrese III (“Claimant”).” Kohnen was not named in the agreement and
he did not sign the agreement.
{¶24} It is well-settled that common words appearing in a written instrument
are to be given their plain meaning. Alexander v. Buckeye Pipeline Co., 53 Ohio St.2d
241, 245, 374 N.E.2d 146 (1978). Under the plain meaning of these words, the tolling
agreement did not toll the statute of limitations against Kohnen.
{¶25} Because the tolling agreement did not apply to Kohnen, and because
Kohnen is the only attorney that Calabrese sued for malpractice, Calabrese cannot
maintain a malpractice claim solely against Taft—whether it was timely or not. See
Wuerth. The trial court therefore properly entered summary judgment in favor of Taft
and Kohnen on the basis that Calabrese’s claims were untimely.
{¶26} Calabrese’s first and second assignments of error are overruled.
Civ.R. 56(F)
{¶27} In Calabrese’s third assignment of error, he claims that the trial court
abused its discretion when it failed to grant his Civ.R. 56(F) motion.
{¶28} Under Civ.R. 56(F), a party opposing a motion for summary judgment
may move for a continuance where that party needs more time to conduct discovery.
The motion must be supported by an affidavit establishing the reasons for the
requested continuance. Civ.R. 56(F). Calabrese failed to abide by this requirement,
and failed to file a separate and identifiable motion. See Civ.R. 7(B); Civ.R. 10. Rather,
Calabrese merely stated on pages 19 and 20 of his memorandum in opposition to
summary judgment that in the event the trial court did not agree that there were issues
of fact, then he was entitled to conduct full discovery before the summary judgment
motion should be considered. This does not constitute a proper request under Civ.R.
56(F). To the extent that these few lines could be considered a “motion” under Civ.R.
11
OHIO FIRST DISTRICT COURT OF APPEALS
56(F), we hold that the trial court did not err in denying it since the motion was not
supported by an accompanying affidavit, as required. See Sipple v. A.G. Edwards &
Sons, Inc., 1st Dist. Hamilton No. C-010701, 2002-Ohio-4342. Calabrese’s third
assignment of error is overruled.
Bias of Trial Court
{¶29} In his fifth and final assignment of error, Calabrese contends that the
trial judge was biased, and that he should have recused himself from the case. This
court does not have the authority to determine whether a trial judge was biased or
prejudiced. Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). The
exclusive means for judicial review of a judge’s potential bias or prejudice is to file an
affidavit of disqualification with the Ohio Supreme Court pursuant to R.C. 2701.03.
State v. Gandy, 1st Dist. Hamilton No. C-050804, 2006-Ohio-6282, ¶ 22. Calabrese’s
fifth assignment of error is overruled.
{¶30} The trial court’s judgment is affirmed.
Judgment affirmed.
CUNNINGHAM, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry this date.
12
Taft, Stettinius, & Hollister, L.L.P. v. Calabrese
Combined Opinion