Kinasz v. Dickson

[Cite as Kinasz v. Dickson, 2018-Ohio-1754.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 106068

MARY KINASZ

PLAINTIFF-APPELLANT

vs.

BLAKE DICKSON, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-17-875393

BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.

RELEASED AND JOURNALIZED: May 3, 2018
FOR APPELLANT

Mary Kinasz, pro se
2502 West 7th Street
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Blake A. Dickson
The Dickson Firm, L.L.C.
Enterprise Place, Suite 420
3401 Enterprise Parkway
Cleveland, Ohio 44122

FRANK D. CELEBREZZE, JR., J.:

{¶1} Plaintiff-appellant, Mary Kinasz, individually and as the executor of the estate of

Justyna Kinasz (“appellant”), brings this appeal challenging the trial court’s order granting

summary judgment in favor of defendants-appellees, Blake Dickson, et al. (“Dickson”),

regarding appellant’s claim for legal malpractice. Specifically, appellant argues that genuine

issues of material fact existed that precluded the granting of summary judgment. After a

thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} The instant matter arose from a dispute between appellant and Dickson regarding

Dickson’s representation in Cuyahoga C.P. No. CV-11-766580, a nursing home negligence case.

The negligence case settled in January 2013.

{¶3} In Cuyahoga C.P. No. CV-15-850029, appellant filed a complaint for legal

malpractice against Dickson on August 20, 2015. On February 4, 2016, appellant filed a notice
of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). The trial court dismissed the case

without prejudice on February 5, 2016.

{¶4} Appellant refiled her legal malpractice claim against Dickson on February 3, 2017.

Appellant requested $25,000 in compensatory damages, punitive damages, attorney fees, and

costs.

{¶5} On April 7, 2017, Dickson filed a motion for summary judgment, arguing that

appellant’s claim was barred by the one-year statute of limitations and that she failed to establish

damages. Appellant filed a brief in opposition to Dickson’s summary judgment motion on June

7, 2017.

{¶6} On July 10, 2017, the trial court granted Dickson’s motion for summary judgment.

The trial court’s judgment entry provides, in relevant part, “construing all facts in favor of

[appellant] and finding no genuine issue of material fact remains, the court hereby grants

[Dickson’s] motion for summary judgment.”

{¶7} It is from this judgment that appellant filed the instant appeal on July 28, 2017.

She assigns one error for review:

I. The trial court erred in granting [Dickson’s] motion for summary judgment
finding that there are no genuine issues of material fact.

II. Law and Analysis

A. Standard of Review

{¶8} Summary judgment, governed by Civ.R. 56, provides for the expedited adjudication

of matters where there is no material fact in dispute to be determined at trial. In order to obtain

summary judgment, the moving party must show that “(1) there is no genuine issue of material

fact; (2) the moving party 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 when viewing evidence in favor

of the nonmoving party, and that conclusion is adverse to the nonmoving party.” Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶9} The moving party has the initial responsibility of establishing that it is entitled to

summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

“[I]f the moving party meets this burden, summary judgment is appropriate only if the

nonmoving party fails to establish the existence of a genuine issue of material fact.” Deutsche

Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing

Dresher at 293.

{¶10} Once a moving party demonstrates no material issue of fact exists for trial and the

party is entitled to judgment, the nonmoving party has a duty to come forth with argument and

evidence demonstrating a material issue of fact does exist that would preclude judgment as a

matter of law. Dresher at id. Summary judgment is appropriate if the nonmoving party fails

to meet this burden. Id.

{¶11} As noted above, Dickson argued in his summary judgment motion that appellant’s

legal malpractice claim was barred by the applicable one-year statute of limitations and that

appellant failed to establish damages. The trial court granted Dickson’s motion for summary

judgment, concluding that there was no genuine issue as to any material fact. The trial court did

not, however, specify whether its determination was based on the statute of limitations, the issue

of damages, or both.

B. Statute of Limitations
 {¶12} Appellant filed her original complaint on August 20, 2015. She refiled her

complaint in the instant matter on February 3, 2017.

The statute of limitations for a legal malpractice claim is one year after the cause
of action accrued. R.C. 2305.11(A). The cause of action accrues when there is
a cognizable event by which the plaintiff discovers or should have discovered the
injury giving rise to a claim and 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 terminates, whichever occurs later. Zimmie v. Calfee,
Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus.

Fourtounis v. Verginis, 8th Dist. Cuyahoga No. 105349, 2017-Ohio-8577, ¶ 16.

{¶13} In his motion for summary judgment, Dickson argued that appellant’s legal

malpractice claim was time-barred because (1) a “cognizable event” occurred more than one year

before her original complaint was filed, and (2) Dickson filed a motion to withdraw as counsel

and appellant retained new counsel more than one year before she filed her original complaint.

{¶14} In her brief in opposition, appellant argued that the statute of limitations should

have been extended because (1) Dickson filed a motion to withdraw as appellant’s counsel on

March 31, 2014, which the trial court granted on September 9, 2014; (2) on December 5, 2014,

she discovered that Dickson continued working on the nursing home negligence case after she

fired him on March 21, 2014, and that Dickson defrauded the estate out of $55,000; and (3) in

August and September 2014, she learned that Dickson manipulated the nursing home negligence

lawsuit and altered the outcome of the case. Appellant further asserted that she did not discover

the information in the trial court’s September 9, 2014 judgment entry in CV-11-766580 until

May 2017. The trial court’s judgment entry, addressing Dickson’s motions to intervene and to

withdraw as appellant’s counsel, provides, in relevant part:

The stipulation for dismissal and judgment entry, filed on 1/11/2013, in the instant

action states that “the attorneys for the respective parties, do hereby stipulate the
 within case has been settled, to be dismissed with prejudice at defendant’s cost, at

a sum approved by both parties’.” The stipulation for dismissal was an

unconditional dismissal[.] It did not state that this court shall retain jurisdiction

over any and all post dismissal settlement issues and dispute. The stipulation for

dismissal dated January 11, 2013, dismisses the case with prejudice, without any

further filings as to the dismissal or settlement agreement in the instant action.

Therefore, this court does not have jurisdiction to entertain [Dickson’s] motion to

intervene in order to assert claim for unpaid attorney’s fees and costs.

Finally, appellant suggested that after she fired Dickson, he purposefully withheld her case files

and was uncooperative, aggressive, verbally abusive, and disrespectful towards her to ensure that

the statute of limitations expired.

{¶15} After reviewing the record, we find that appellant’s legal malpractice claim falls

outside the one-year statute of limitations under both the “cognizable event” test and the

termination of the attorney-client relationship test.

1. Cognizable Event

{¶16} In his motion for summary judgment, Dickson argued that appellant’s legal

malpractice claim was time-barred because a “cognizable event” occurred on January 11, 2013,

when appellant was dissatisfied with Dickson’s representation and the settlement he obtained.

A “cognizable event” is an event that is “‘sufficient to alert a reasonable person

that his or her attorney may have committed an improper act and that further

investigation is needed.’” Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th

Dist. Cuyahoga No. 98861, 2014-Ohio-25, ¶ 58, quoting Trustees of Ohio

Carpenters’ Pension Fund v. U.S. Bank Natl. Assn., 189 Ohio App.3d 260,
 2010-Ohio-911, 938 N.E.2d 61 (8th Dist). The focus is on what the client is or

should be aware of and how a reasonable person would react under the

circumstances. “The ‘cognizable event’ puts the plaintiff on notice to investigate

the facts and circumstances relevant to his or her claim in order to pursue

remedies.” Asente v. Gargano, 10th Dist. Franklin No. 04AP-278,

2004-Ohio-5069, ¶ 14, citing Flowers v. Walker, 63 Ohio St.3d 546, 549, 589

N.E.2d 1284 (1992). The plaintiff need not have discovered “all of the relevant

facts necessary to file a claim” or know the “full extent of the injury” before there

is a cognizable event sufficient to trigger the statute of limitations. [Zimmie, 43

Ohio St.3d at 58, 538 N.E.2d 398]; Asente at ¶ 14; see also [Krzywicki v. Gay, 8th

Dist. 8th Dist. Cuyahoga No. 105039, 2017-Ohio-5584, ¶ 17] (“An individual

need not be fully aware of the extent of his legal malpractice injuries; knowledge

of a potential problem starts the statute to run, even when one does not know all

the details.”). “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.” Asente at ¶ 14.

Socha v. Weiss, 8th Dist. Cuyahoga No. 105468, 2017-Ohio-7610, ¶ 13.

{¶17} In her complaint for legal malpractice, appellant raises the following allegations

against Dickson: (1) Dickson repeatedly withheld material information from her that obstructed

her ability to participate in the case; (2) Dickson refused to provide her with records belonging to

her mother in February 2014; (3) Dickson conducted himself in a manner that gave appellant the

impression that he would only complete tasks that he wanted to complete, rather than tasks that

appellant wanted him to complete; (4) Dickson yelled at appellant and directed profanities at her
in order to intimidate her, impede her participation in the case, reduce his own workload, and

obtain a settlement that was favorable to him, rather than appellant; (5) Dickson failed to follow

appellant’s explicit instructions regarding settlement on January 10, 2013; (6) Dickson dismissed

the case with prejudice without appellant’s knowledge or approval; (7) Dickson failed to inform

appellant about material events related to the settlement; (8) Dickson failed to memorialize the

settlement agreement in a timely fashion; (9) Dickson deliberately delayed settlement to obtain a

settlement that was favorable to him; and (10) Dickson’s conduct during the representation and

in settlement negotiations fell below the ordinary standard of care.

{¶18} The allegations in appellant’s complaint clearly indicate that a “cognizable event”

alerting appellant of a potential problem or that Dickson committed an improper act in his

representation occurred as early as January 10, 2013, when the nursing home negligence case was

settled. In her complaint, appellant explains that on or about January 10, 2013, when Dickson

presented a settlement document to her,

errors were discovered in the document few minutes after signing. Among other
things, the document was discovered to contain erroneous dates that extended
settlement payments deep into the future, and which Dickson knew would
materially impact [appellant’s] willingness to enter into the settlement. Dickson
showed little regard for [appellant’s] concerns[.]

Complaint at ¶ 12. This assertion demonstrates that appellant knew, or should have known, that

a questionable legal practice may have occurred in January 2013.

{¶19} In her complaint, appellant goes on to allege that she did not know the “full extent”

of Dickson’s improper conduct until December 2014 when he turned over her case files to

appellant’s new counsel. Complaint at ¶ 15. As noted above, there is no requirement that a

plaintiff know all of the relevant facts or the full extent of his or her injury in order for there to be

a cognizable event triggering the statute of limitations. Socha, 8th Dist. Cuyahoga No. 105468,
2017-Ohio-7610, at ¶ 13, citing Zimmie, 43 Ohio St.3d at 58, 538 N.E.2d 398. In this case,

even if appellant did not know all of the relevant facts or the full extent of her injuries until she

received her case files from Dickson, the allegations in her complaint clearly demonstrate that

she was “on notice” of Dickson’s allegedly questionable legal practices in January 2013. See

Chernett Wasserman Yarger, L.L.C. v. ComScape Holding, Inc., 8th Dist. Cuyahoga No. 100907,

2014-Ohio-4214, ¶ 40-44 (rejecting argument that attorney’s alleged legal malpractice continued

and that the statute of limitations on the legal malpractice claim did not begin to run until

attorney returned client’s legal file). Accordingly, appellant’s subsequent discoveries did not

toll the statute of limitations.

{¶20} The evidence that Dickson submitted in support of his motion for summary

judgment supported his argument that a “cognizable event” occurred, putting appellant on notice,

more than one year before she filed her original complaint in August 2015. First, Dickson

submitted a copy of a November 5, 2013 letter in which appellant requested that he provide

various information and documentation to her, and asserted that she would “notify the Bar

Association” if Dickson failed to provide the information requested. Second, Dickson

submitted a copy of the grievance that appellant filed against him with the Cleveland

Metropolitan Bar Association on March 12, 2014. Third, Dickson submitted a copy of a June 2,

2014 letter that appellant’s new counsel wrote to the Cleveland Metropolitan Bar Association.

In this letter, appellant’s new attorney asserted that appellant retained him on March 27, 2014,

and that appellant “came to [him] stating that [Dickson] had not yet obtained the settlement funds

and refused to discuss the status of the [M]edicare lien with her.” Counsel further stated that

Dickson failed to provide appellant with information about the Medicare lien, Dickson’s fees,

and the litigation expenses that appellant advanced to Dickson. These documents demonstrate
that a “cognizable event” alerted, or should have alerted appellant, that a questionable legal

practice may have occurred more than one-year before appellant filed her original complaint in

August 2015.

{¶21} Based on the foregoing analysis, we find that appellant filed her original legal

malpractice complaint more than one year after a “cognizable event” occurred.

2. Termination of the Attorney-Client Relationship

{¶22} Dickson went on to argue in his summary judgment motion that appellant’s legal

malpractice complaint was time-barred because he moved to withdraw as counsel and appellant

retained new counsel more than one year before she filed the original complaint in August 2015.

Generally, the determination of whether an attorney-client relationship has ended
is a factual question to be resolved by the trier of fact. Mobberly v. Hendricks,
98 Ohio App.3d 839, 843, 649 N.E.2d 1247 (9th Dist.1994). As recognized by
the Ohio Supreme Court, “the question of when an attorney-client relationship for
a particular undertaking or transaction has terminated is necessarily one of fact.”
[Omni-Food & Fashion v. Smith, 38 Ohio St.3d 385, 388, 528 N.E.2d 941
(1988).] But one party or the other may undertake affirmative actions that are so
inconsistent with a continued relationship that the question of when an
attorney-client relationship has ended may be taken away from the trier of fact,
and decided as a matter of law. Steindler v. Meyers, Lamanna & Roman, 8th
Dist. Cuyahoga No. 86852, 2006-Ohio-4097, ¶ 11. Also, “where reasonable
minds can come but to one conclusion from the evidence to determine when the
attorney-client relationship ends, the termination may be decided as a matter of
law.” McGlothin v. Schad, 194 Ohio App.3d 669, 2011-Ohio-3011, 957 N.E.2d
810 (12th Dist.), citing Trombley v. Calamunci, Joelson, Manore, Farah &
Silvers, L.L.P., 6th Dist. Lucas No. L-04-1138, 2005-Ohio-2105, ¶ 43.

Accelerated Sys. Integration, Inc. v. Ritzler, Coughlin & Swansinger, Ltd., 8th Dist. Cuyahoga

No. 97481, 2012-Ohio-3803, ¶ 43.

{¶23} “Generally, the attorney-client relationship is consensual, subject to termination by

acts of either party.” Columbus Credit Co. v. Evans, 82 Ohio App.3d 798, 804, 613 N.E.2d 671

(10th Dist.1992). “A client may terminate the relationship at any time.” Id. In order to
determine the date of the termination of the attorney-client relationship, the parties’ actions must

be considered. Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 9.

{¶24} In the instant matter, appellant’s complaint alleged that Dickson began representing

her “not later than July 16, 2012[.]” Complaint at ¶ 8. In her brief in opposition to Dickson’s

summary judgment motion, appellant asserted that she fired Dickson on March 21, 2014.

{¶25} In support of his motion for summary judgment, Dickson submitted a letter that

appellant wrote to him on March 21, 2014. Therein, appellant stated, “You and your Associates

are terminated from representing the Estate of Justyna Kinasz and Myself, regarding the

Settlement of the Harborside Case and any Probate matters.” After receiving this letter,

Dickson filed a motion to withdraw as counsel on March 31, 2014.

{¶26} We find that this constitutes clear, unequivocal evidence of appellant’s termination

of the attorney-client relationship. The language of appellant’s March 21, 2014 letter was

patently inconsistent with a continued attorney-client relationship between appellant and

Dickson. Accordingly, the question of when the attorney-client relationship between appellant

and Dickson was terminated was properly decided as a matter of law. See Steindler, 8th Dist.

Cuyahoga No. 86852, 2006-Ohio-4097, at ¶ 11, 15.

{¶27} Finally, we note that appellant asserted in her brief in opposition that on December

5, 2014, she discovered that Dickson had continued working on the nursing home negligence

case after she fired him on March 21, 2014. She did not, however, allege that Dickson

continued to do any work for her, or that he provided any legal counsel to her relating to the

nursing home negligence case at any time after the case was settled in January 2013 or after she

fired Dickson.
 {¶28} Based on the foregoing analysis, we find that appellant filed her original legal

malpractice complaint more than one year after the attorney-client relationship terminated.

Accordingly, appellant’s sole assignment of error is overruled.

{¶29} Based on our determination that appellant’s claim was barred by the one-year

statute of limitations, we need not consider, as an alternative basis for granting summary

judgment in favor of Dickson, whether appellant failed to establish damages proximately caused

by Dickson’s alleged breach of his professional duty arising from the attorney-client relationship.

III. Conclusion

{¶30} Viewing the evidence in a light most favorable to appellant, as we must, we find

that appellant failed to demonstrate the existence of a genuine issue of material fact in order to

defeat Dickson’s motion for summary judgment, and that reasonable minds can only conclude

that appellant’s legal malpractice claim was time-barred under both the “cognizable event” and

the termination of the attorney-client relationship tests. Accordingly, the trial court properly

granted summary judgment in favor of Dickson.

{¶31} Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR