Zimmie v. Calfee, Halter & Griswold

Douglas, J.

The sole question in this appeal is whether appellant’s legal malpractice action against his attorneys, the appellees, was barred by Ohio’s one-year statute of limitations.

The statute of limitations applicable to legal malpractice actions is set forth in R.C. 2305.11(A) which stated, at the time of the commencement of the action herein, in relevant part: “[a]n action for * * * malpractice *57* * * shall be brought within one year after • the cause thereof accrued * * * ”2

In 1983, this court adopted the “discovery rule” as defining the date upon which a cause of action accrues and the statute of limitations begins to run in a medical malpractice action pursuant to R.C. 2305.11(A). Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 5 OBR 247, 449 N.E. 2d 438.

In Skidmore & Hall v. Rottman (1983), 5 Ohio St. 3d 210, 5 OBR 453, 450 N.E. 2d 684, syllabus, this court extended its “discovery rule” holding in Oliver to legal malpractice actions. This court held that under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the statute of limitations begins to run when the client discovers, or, in the exercise of reasonable care and diligence should have discovered the resulting injury.

This court, in Hershberger v. Akron City Hosp. (1987), 34 Ohio St. 3d 1, 516 N.E. 2d 204, established criteria to determine the date of an injury for the purpose of defining when a cause of action accrues in a medical malpractice action. We adopted an approach that requires an inquiry into the particular facts of the action and the following determinations: when the injured party became aware of, or should have become aware of, the extent and seriousness of his condition; whether the injured party was aware, or should have been aware, that such condition was related to a specific professional medical service previously rendered him; and whether such condition would put a reasonable person on notice of the need for further inquiry as to the cause of such condition.

Recently, in Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio St. 3d 385, 528 N.E. 2d 941, paragraph two of the syllabus, this court adopted the Hershberger factors for determining the accrual date in a legal malpractice action. Furthermore, in paragraph one of the syllabus of Omni-Food, this court applied the “termination rule” to legal malpractice actions and held that a cause of action accrues in a legal malpractice action under R.C. 2305.11(A) when the attorney-client relationship for that particular transaction or undertaking terminates or when the client discovers the resulting damage or injury, whichever occurs later.

The “extent and seriousness of his condition” language in Hershberger was further explained by us in Allenius v. Thomas (1989), 42 Ohio St. 3d 131, 538 N.E. 2d, 93. In Allenius, we found that a patient becomes or should become aware of the extent and seriousness of his injury when there is a “cognizable event” which does or should lead the patient to believe that the condition of which the patient complains is related to a medical procedure, treatment or diagnosis previously rendered to the patient and where the cognizable event does or should place the patient on notice of the need to pursue his possible remedies.

We are of the opinion that the same justifications set forth in Allenius for determining the date of discovery in a medical malpractice action are equally compelling in the legal malpractice context. Medical and legal malpractice actions should conform to the same standard for determining when a cause of action accrues and when the statute of limitations commences so we do not discriminate “for or against” doctors or “for or against” lawyers. Since 1983 and Skidmore, this *58court has recognized that the same principles that determine the accrual of the cause of action in medical malpractice claims also govern in legal malpractice actions.

Thus, 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. See Omni-Food, supra.

Based on the termination rule elucidated in Omni-Food, we find that Zimmie’s cause of action for legal malpractice against the appellees accrued in August 1980 when Zimmie terminated his relationship on all subsequent domestic relations matters with Calfee and retained another attorney.

However, this does not complete our inquiry. We must further determine when Zimmie’s legal malpractice action accrued under the discovery rule. Then we must compare the accrual dates based on the termination and the discovery rule. Whichever date is later will be the accrual date for the commencement of the statute of limitations in Zimmie’s legal malpractice action.

In this case, we find that the cognizable event whereby Zimmie discovered or should have discovered that he was injured by appellees’ action and was put on notice of his need to pursue his possible remedies against appellees was on October 13, 1981 when the trial court invalidated the antenuptial agreement. At that time, Zimmie should have realized that the property he brought into his marriage would not be protected from his wife Kathryn in the divorce proceeding, i.e., his monetary exposure in the divorce would be greater since the antenuptial agreement was invalid. When the trial court held that the antenuptial agreement was invalid, Zimmie was put on notice of his need to pursue further remedies against appellees, who had drafted the agreement.

Although Zimmie’s damages were not completely ascertainable after the trial court invalidated the antenuptial agreement, Zimmie was appreciably and actually damaged by the trial court decision. After the trial court decision, it is undisputed Zimmie had to make substantial alimony payments to his ex-wife, Kathryn, despite the pending appeals. Additionally, it is further undenied that Zimmie accrued attorney fees litigating the issues of alimony and property division.

In AUenius, we stated that we did not believe that an injured person must be aware of the full extent of the injury before there is a cognizable event. Instead, it is enough that some noteworthy event, the cognizable event, has occurred which does or should alert a reasonable person that an improper medical procedure, treatment or diagnosis has taken place.

In this case, the trial court’s invalidation of the antenuptial agreement was a cognizable event which should have alerted a reasonable person that a questionable legal practice may have occurred.

Adopting a rule of law that a client is entitled to exhaust all appellate remedies before the statute of limitations commences, as appellant suggests, would be counter to our holdings in Hershberger and its progeny. In these cases, we found that a factual inquiry into the circumstances of a case establishes when the cause of action *59accrues and the period of limitations commences in a malpractice action.

Furthermore, we do not believe that today’s holding will undermine attorney-client trust and confidence. The appellees in this case who committed the alleged malpractice were not representing Zimmie in his divorce action at the trial level. As a matter of fact, appellees had not represented Zimmie in his divorce litigation for more than a year before the trial court decision on October 13,1981. Thus, requiring appellant to sue appellees after the trial court decision would not interfere with the legal representation of Zimmie in the appellate courts in the divorce action.

In order to avoid needless litigation, if Zimmie had timely filed the malpractice action, the trial court could have been requested to stay this malpractice action until there was a final judgment from the appellate courts concerning the validity of the antenuptial agreement. The stay would eliminate any problems created by the possibility that the court of appeals or this court would reverse the trial court judgment, since such a reversal would probably result in Zimmie having no legal malpractice action against appellees.

For the foregoing reasons, we find that the cognizable event which should have caused Zimmie to discover that he had been injured by appellees’ actions was when the trial court invalidated the antenuptial agreement on October 13, 1981.

Comparing the accrual date of Zimmie’s legal malpractice action under the discovery rule, which is October 13, 1981, with the accrual date under the termination rule, which is August 1980, we find that the accrual date based on the discovery rule is later. Thus, October 13, 1981 is the accrual date for the commencement of the statute of limitations in Zimmie’s legal malpractice action.

Under R.C. 2305.11(A), a legal malpractice action must be brought within a year after the cause of action accrued. Since this complaint was filed on June 7, 1985, almost four years after October 13, 1981, the legal malpractice action is barred by Ohio’s statute of limitations.

Accordingly, the judgment of the court of appeals which upheld the trial court’s order granting a summary judgment in appellees’ favor is hereby affirmed.

Judgment affirmed.

Moyer, C.J., Holmes, Wright and Resnick, JJ., concur. Sweeney and H. Brown, JJ., separately dissent.

R.C. 2305.11(A) is applicable to both legal and medical malpractice actions.