dissenting. I respectfully dissent. The majority has grounded its decision upon an analysis of “cognizable event” and the discovery rule as it applies to an invocation of the statute of limitations in malpractice cases. The problem is that the discovery rule is not relevant to a proper resolution of the case before us.
Two requirements must be met to apply the statute of limitations as a time bar to a malpractice action. First, the requisite time must have elapsed following the injury to the plaintiff. Second, the requisite time must have elapsed following a cognizable event leading-to the discovery of that injury.The majority has leaped to the second, or discovery, aspect without considering when the injury to the plaintiff occurred.
The claim of malpractice here was that the lawyers failed to attach a schedule of assets to an antenuptial agreement. Because of such failure, the antenuptial agreement was invalidated for non-disclosure. Thus, the injury was the invalidation of the antenuptial agreement.
On October 13, 1981, a trial court invalidated the antenuptial agreement. However, an appeal was taken. If the trial court’s determination had been reversed on appeal, there would have been no injury and no cause of action.3 *62There would have been no cause of action for the reason that the antenuptial agreement as drawn by the lawyer would have been valid.
The majority recognizes this when it states that “* * * a reversal would probably result in Zimmie having no legal malpractice action against appellees.” Nonetheless, the majority would compel the plaintiff to file his lawsuit even though there may be no cause of action. The majority would resolve the problem by having the malpractice proceedings stayed until the determination is made on whether a cause of action exists. That solution leads to the undesirable result of forcing plaintiffs to burden the courts with malpractice actions following an adverse lower court decision where a reversal of that lower court decision would establish that no cause of action ever existed. A legal cause of action is not a “now-you-see-it, now-you-don’t” proposition.
The accrual of a cause of action where the existence of malpractice depends upon court decision is a problem requiring focused analysis. Those cases differ from malpractice cases where the date of injury is a finite, determinable event and the dispute centers on when the injury was discovered.
The majority has not considered the case law applicable to the precise situation before us. While Ohio courts have not addressed the issue, other courts have. In Bowman v. Abramson (E.D. Pa. 1982), 545 F. Supp. 227, the court dismissed the plaintiff’s legal malpractice action because the medical malpractice holding upon which the action was based was on appeal in another court. The court specifically refused to stay the proceeding pending the outcome of the appeal, holding:
“[T]he discovery rule * * * is only used to toll the statute of limitations to prevent an injustice, never to start the statute to create one. Since the discovery rule is appropriately invoked only when the occurrence rule would lead to an unjust result, it logically follows that the discovery rule can only apply after an injury has occurred. * * * [If plaintiff unsuccessfully exhausts his appeal,] [o]nly then will he have suffered an injury to which the law may grant redress.” (Emphasis added.) Id. at 231.
In Amfac Distribution Corp. v. Miller (1983), 138 Ariz. 152, 673 P. 2d 792, the Arizona Supreme Court said:
“[T]o state a cause of action [in malpractice], the plaintiff * * * must have sustained some injury or damaging effect from the malpractice * * *. Negligence alone is not actionable; actual injury or damages must be sustained before a cause of action in negligence is generated. * * * [I]n legal malpractice cases, the injury or damaging effect on the unsuccessful party is not ascertainable until the appellate process is completed or is waived.by a failure to appeal.” (Emphasis added.) Id. at 153-154, 673 P. 2d at 793-794. “Only when * * * [plaintiff has sustained damages is he able to sue.” Id. at 154, 673 P. 2d at 794.
In Woodruff v. Tomlin (C.A. 6, 1975), 511 F. 2d 1019, 1021, the court held:
*63“[N]o cause of action [for ineffective and improper representation at trial and on appeal] accrued until after the plaintiffs discovered or could reasonably have discovered the malpractice and until after the judgment of the Circuit Court had become■ final. * * * The judgment did not become final until the Court of Appeals decided the appeal and the time to appeal to the Supreme Court of Tennessee had expired.” (Emphasis added.)
In Pioneer Natl. Title Ins. Co. v. Andrews (C.A.5, 1981), 652 F. 2d 439, the court found that a cause of action for legal malpractice arises only after the party suffers legally cognizable damages: “Florida law has long recognized that damages constitute an essential component of a cause of action. See 1 Fla. Jur. 2d, Actions §§ 24, 26 (1977). * * * [TJhe Florida statute of limitations begins to run not upon the discovery of a potential cause of action, but only upon the discovery of an existing cause of action.” (Emphasis added.) Id. at 442.
See, also, Ameraccount Club, Inc. v. Hill (Tenn. 1981), 617 S.W. 2d 876; Anderson v. Anderson (Ind. 1979), 399 N.E. 2d 391; Budd v. Nixen (1971), 6 Cal. 3d 195, 98 Cal. Rptr. 849, 491 P. 2d 433; Marchand v. Miazza (La. 1963), 151 So. 2d 372.
In the case before us, the appellant brought suit within one year of the date on which the existence of an injury arising from possible malpractice was established. His suit was not time-barred. Thus, I respectfully dissent.
Whether failure to attach a schedule of assets to an antenuptial agreement constitutes malpractice (the underlying issue) was a close question. The trial court’s resolution was but one opinion. Ultimately, the issues were accepted by the Ohio Supreme Court on appeal and cross-appeal as being of public or great general interest. Zimmie v. Zimmie (1984), 11 Ohio St. 3d 94, 11 OBR 396, 464 N.E. 2d 142. The appellant, in his brief, makes this persuasive argument:
“Zimmie reasonably and in good faith believed that the invalidation of the antenuptial agreement was due to error committed by the trial court * * *. Thus, *62Zimmie based on case precedent in Ohio and importantly, the Ohio Supreme Court decision in Hook v. Hook [(1982), 69 Ohio St. 2d 234, 23 O.O. 3d 239, 431 N.E. 2d 667], undertook a principled and good faith effort to overturn the decision invalidating the antenuptial agreement. Even as early as 1981, in Zimmie’s mind and justifiably so, his attorneys did not commit malpractice; rather the Court which threw out the antenuptial agreement committed error.” (Emphasis added and footnote deleted.)