O'Driscoll v. Paoloni

[Cite as O'Driscoll v. Paoloni, 2016-Ohio-8520.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

SEAN O’DRISCOLL, : OPINION

Plaintiff-Appellant, :
CASE NO. 2016-P-0031
- vs - :

ROBERT JOSEPH PAOLONI, ESQ., :
et al.,
:
Defendants-Appellees.
:

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2011 CV 854.

Judgment: Affirmed.

Christopher R. Fortunato, 13363 Madison Avenue, Lakewood, OH 44107 (For
Plaintiff-Appellant).

Kurt R. Weitendorf and Todd A. Mazzola, Roderick Linton Belfance, LLP, 50 South
Main Street, 10th Floor, Akron, OH 44308-1828 (For Defendants-Appellees).

CYNTHIA WESTCOTT RICE, P.J.

{¶1} Appellant, Sean O’Driscoll, appeals from the Portage County Court of

Common Pleas entry of summary judgment on his claim for legal malpractice against

appellees, Robert J. Paoloni, Esq., et al. At issue is whether appellant filed his cause of

action within the one-year limitation period set forth under R.C. 2305.11. We affirm the

judgment of the trial court.
 {¶2} In August 2006, appellee filed a complaint for divorce on appellant’s

behalf. The matter was ultimately tried before a magistrate, who issued his decision on

May 2, 2008. The parties discussed filing objections. Appellee maintained filing

objections would delay entry of final judgment which, in appellee’s view, would redound

to appellant’s detriment. To wit, the magistrate’s decision reduced the amount appellant

was paying in expenses and support from $1,700 per month to $600 per month.

According to appellant, he wanted objections to be filed because there were various

issues, including problems with the distribution of assets, problems with the allocation of

marital debt, as well as errors relating to other financial matters, that, in his view, the

decision failed to adequately address.

{¶3} Appellee did not file objections within the time allotted under Civ.R. 53; on

July 11, 2008, however, appellee filed a motion for clarification on three issues: the

calculation of appellant’s accumulated sick leave; a claimed miscalculation regarding

the equalization of assets; and the lack of a jointly-filed tax return for 2007. A hearing

on the motion was held on July 28, 2008, after which the trial court denied the motion.

Appellant did not contact or otherwise speak with appellee following this hearing. The

final divorce decree was entered on August 4, 2008. Appellee formally withdrew from

the case on June 11, 2009. Notwithstanding the lack of contact, appellant insisted

appellee remained “on the clock” as his attorney until the withdrawal.

{¶4} On May 18, 2010, appellant commenced an action for legal malpractice.

The matter was subsequently dismissed, but re-filed on July 11, 2011. Appellee filed

his answer, asserting various affirmative defenses, including an allegation that

appellant’s complaint was filed outside the applicable statute of limitations.

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 {¶5} On December 4, 2015, appellee filed a motion for summary judgment,

arguing appellant failed to file his complaint within one-year of the accrual of his claim.

Appellee emphasized that he was not involved in any additional work relating to

appellant’s case after the July 28, 2008 hearing. Appellee also pointed out appellant

had been consulting attorneys from Buckingham, Doolittle, and Burroughs (“BDB”) since

the magistrate’s entry was filed in May 2008. Appellee attached various documents,

including e-mails and letters exchanged between appellant and attorneys at BDB, to the

motion to illustrate appellant had effectively terminated his relationship with appellee

well before his formal withdrawal in June 2009.

{¶6} Specifically, in a July 23, 2008 letter to BDB attorney, Peter Cahoon,

Esq., appellant stated he discussed the May 2, 2008 magistrate’s decision with appellee

on May 12, 2008 for “almost 45 minutes.” In the document, appellant concedes

appellee asked him if he wanted to file objections to the decision. Regarding this

question, appellant noted “[t]he first thought that went through my head was that there

was no way I was going to pay him another dime, and I would never file objections with

him as my attorney.” (Emphasis sic.)

{¶7} In a July 25, 2008 memorandum, a BDB staff member advises Attorney

Cahoon that appellant had “stopped into the office” and provided BDB “with a notice in

regard to a hearing scheduled on Monday, July 28[, 2008] * * * for the motions filed in

July, which are also attached for your review. One of the motions was filed by

[appellant’s] prior attorney. [Appellant] wants to know if he should have his prior

attorney attend, or if he could officially change attorneys and have you * * * attend.”

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 {¶8} Further, in an April 28, 2009 e-mail to BDB attorney Marietta Pavlidis,

Esq., appellant notes that, after the July 28, 2008 hearing, he “walked away from

[appellee] and never heard from him again, in any capacity. I never said, “You’re fired!”,

I just walked out. It was obvious to both of us I wanted nothing to do with the man

again. My divorce was final and I was rid of him.” Later in the letter, appellant stated he

needed appellee out of his life, emphasizing “I don’t want any correspondence from him,

ever.” Appellant further requested Attorney Pavlidis’ assistance in, what he viewed,

would be a foreseeable legal problem relating to distribution of his pension under the

trial court’s division of property order (“DOPO”).

{¶9} In his memorandum in opposition, appellant argued appellee was still his

attorney until the date of his withdrawal, June 11, 2009. He also attached various e-

mails between appellee and an associate who was also apparently involved with

appellant’s case, Anna Parise, which, he maintained, demonstrated appellant

continued, albeit passively, to represent him into the Spring of 2009.

{¶10} In particular, on April 13, 2009, Ms. Parise sent appellee an e-mail

advising him that, per the final divorce order, a QDRO must be prepared which must be

signed by appellant. That same day, appellee e-mailed his assistant directing her to

send Ms. Parise’s message and other relevant documentation to appellant. Appellee

also asked that appellant confirm he received the communication. On April 20, 2009,

appellee e-mailed his assistant, stating he had called appellant regarding the QDRO

issue and asked him to confirm he received the information. Appellee noted “[w]e have

heard nothing from him.”

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 {¶11} On April 30, 2009, appellee e-mailed Ms. Parise explaining he sent

appellant the information relating to the QDRO on April 13 and called him. Appellee

stated “[h]e has not acknowledged either of the attempts to contact him. The email did

not come back as unclaimed/bad address.” In a subsequent April 30 e-mail to Ms.

Parise, appellee reiterated that, despite many efforts to contact appellant, he had been

unable to do so. Later, on June 8, 2009, Ms. Parise sent appellee an e-mail relating to

the trial court’s DOPO for the division of appellant’s STRS benefits. Ms. Parise

requested appellee to execute the DOPO and return it to her. On the same date,

appellee e-mailed his assistant asking whether he “put an entry on withdrawing as

atty?” His assistant noted she would prepare the entry. Appellant subsequently

withdrew as counsel.

{¶12} In addition to the above communications, appellant asserted that, even

though he engaged BDB attorneys, they were being used for matters outside the scope

of the case for which he had retained appellant. He maintained BDB attorneys were not

working on any remaining issues associated with the divorce case; instead, they were

looking into custody issues related to his son Dane. Based upon the foregoing,

appellant maintained there were genuine issues of material fact as to whether appellee

was his attorney within a year of the filing date, i.e., May 18, 2010.

{¶13} After considering the parties’ respective positions, the trial court concluded

the attorney-client relationship terminated on April 28, 2009, more than one-year prior to

appellant filing his initial complaint and more than one-year after appellant became

aware of his potential cause of action. The court underscored that the April 28, 2009 e-

mail from appellant to BDB attorneys was captioned “non Dane issue” and sought BDB

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attorneys to represent him in the context of any issues that arose with respect to the

DOPO and potential problems surrounding his STRS account. The court therefore

determined appellant’s cause of action was barred by the applicable statute of

limitations and appellee was entitled to judgment as a matter of law. Appellant appeals

and assigns the following error:

{¶14} “The trial court erred when it granted summary judgment in favor of the

appellee when it found the cognizable event commencing the statute of limitations to

run on April 28, 2009.”

{¶15} Summary judgment is a procedural tool that terminates litigation and thus

should be entered with caution. Davis v. Loopco Industries, Inc., 66 Ohio St.3d 64, 66

(1993). Summary judgment is proper where (1) there is no genuine issue of material

fact remaining to be litigated; (2) the movant is entitled to judgment as a matter of law;

and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and, viewing the evidence in the non-moving party's favor, that conclusion

favors the movant. See, e.g., Civ.R. 56(C).

{¶16} When evaluating a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal

Co., 64 Ohio St.2d 116, 121 (1980). Instead, all questions must be resolved in the non-

moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359 (1992). Hence, a

trial court must overrule a motion for summary judgment where conflicting evidence

exists and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern

Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, ¶36. In short, the central

issue on summary judgment is, “whether the evidence presents sufficient disagreement

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to require submission to a jury or whether it is so one-sided that one party must prevail

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). An

appellate court reviews a trial court’s entry of summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

{¶17} Though this suit involves an action for legal malpractice, the central issue

for the trial court and on review is whether appellant’s claims are barred by the statute

of limitations. For legal malpractice, R.C. 2305.11 provides that the statute of limitations

is one year after the cause of action accrued.

{¶18} 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. Smith v. Conley,
109 Ohio St.3d 141, 2006-Ohio-2035, ¶4, 846 N.E.2d 509 quoting
Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54 (1989),
syllabus.

{¶19} Generally, “[a]n attorney-client relationship can terminate upon the

affirmative act of either party.” Savage v. Kucharski, 11th Dist. Lake No. 2005-L-141,

2006-Ohio-5165, ¶23; see also Trickett v. Krugliak, Wilkins, Griffiths & Dougherty Co.,

L.P.A., 11th Dist. Portage No. 2000-P-0105, 2001 Ohio App. LEXIS 4806, *7 (Oct. 26,

2001). To determine whether an attorney-client relationship has ended, “‘courts look for

a discrete act (or acts) by either party that signals the severing of their relationship.’”

Cotterman v. Arnebeck, 10th Dist. Franklin No. 11AP-687, 2012-Ohio-4302, ¶16,

quoting Woodrow v. Heintschel, 194 Ohio App.3d 391, 2011-Ohio-1840, ¶43 (6th Dist.);

see also Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, ¶9. (“[T]he date of

termination of the attorney-client relationship * * * is to be determined by considering the

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actions of the parties.”) Such acts include one party sending the other a letter stating

that the attorney-client relationship is over, as well as the client's retention of another

attorney for representation in the same matter for which the client had retained previous

counsel. Nichter v. Shamansky, 10th Dist. Franklin No. 14AP-811, 2015-Ohio-1970,

¶19-20; see also Savage, supra. “‘[T]he termination of the attorney-client relationship

depends, not on a subjective loss of confidence on the part of the client, but on conduct,

an affirmative act by either the attorney or the client that signals the end of the

relationship.’” (Emphasis omitted.) Duvall v. Manning, 11th Dist. Lake No. 2010-L-069,

2011-Ohio-2587, ¶27, quoting Mastran v. Marks, 9th Dist. Summit No. 14270, 1990

Ohio App. LEXIS 1219 (Mar. 28, 1990).

{¶20} The question of when an attorney-client relationship terminates is

generally a question of fact. Duvall, supra. A court, however, may decide the question

as a matter of law if either party has undertaken affirmative actions that are patently

inconsistent with the continued attorney-client relationship. Id. “For a trial court to grant

summary judgment on the grounds that an act of either party has terminated the

attorney-client relationship, the ‘act must be clear and unambiguous, so that reasonable

minds can come to but one conclusion from it.’” Id., quoting Mastran, supra.

{¶21} In this case, we conclude the trial court properly entered summary

judgment because the content of the April 28, 2009 e-mail to Attorney Pavlidis

unequivocally demonstrates he wished BDB attorneys to handle the remaining issues

surrounding the underlying divorce.

{¶22} The representations in this e-mail demonstrate appellant did not desire to

use appellee as his attorney to litigate certain legal issues he anticipated vis-à-vis the

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DOPO and the division of his STRS, i.e., outstanding issues associated with the divorce

action. Appellant not only makes it clear that he was dissatisfied with appellee’s

representation, e.g., his failure to file objections (even though he had stated in a

previous letter that he “would never file objections with him as my attorney”), he also

notes he did not return a voicemail from appellee’s office regarding the DOPO and the

pending STRS issues. Instead, appellant states he independently contacted STRS

representatives. Appellant proceeds to detail the information he received from STRS

and then emphasizes his need to remove appellee from his life. Appellant queries

whether he should have all future court papers sent directly to his address or directed to

Attorney Pavlidis. He concludes his e-mail by advising he wanted to let Attorney

Pavlidis know about his pension because an issue “may be coming up.” And if it does,

“how can we make sure the court’s division of property order that ends up in Columbus

is favorable for me?”

{¶23} Despite appellant’s testimony and representations that he was using BDB

only for issues relating to his son Dane, the April 28, 2009 e-mail, captioned “non Dane

issue,” demonstrates he intended to retain Attorney Pavlidis to represent him with any

future issue that might arise relating to his retirement and the finalization of the DOPO.

This is an affirmative action that is patently inconsistent with the attorney-client

relationship between appellant and appellee. This, coupled with the statements

regarding appellant’s irritation and dissatisfaction with appellee’s representation, was

sufficient to terminate appellant’s relationship with appellee.

{¶24} Appellant’s assignment of error lacks merit.

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 {¶25} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.

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