Socha v. Weiss

[Cite as Socha v. Weiss, 2017-Ohio-7610.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105468

MICHAEL P. SOCHA,
PLAINTIFF-APPELLANT
vs.

LEON A. WEISS, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-860199

BEFORE: E.A. Gallagher, P.J., Stewart, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: September 14, 2017
ATTORNEY FOR APPELLANT

Richard F. Swope
Swope and Swope
6480 East Main Street, Suite 102
Reynoldsburg, Ohio 43068

ATTORNEYS FOR APPELLEE

Clifford C. Masch
Brian D. Sullivan
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115
EILEEN A. GALLAGHER, P.J.:

{¶1} Plaintiff-appellant Michael Socha appeals from an order of the Cuyahoga

County Court of Common Pleas dismissing his complaint for legal malpractice against

defendants-appellees Leon Weiss and Erica Eversman (collectively, “appellees”) on the

ground that his claim was barred by the statute of limitations. For the reasons that

follow, we affirm.

Factual Background and Procedural History

{¶2} On June 12, 2014, Socha filed his original complaint for legal malpractice,

pro se, against appellees. He voluntarily dismissed his complaint without prejudice in

March 2015, after appellees filed a motion for judgment on the pleadings. On March 10,

2016, Socha refiled his complaint. Socha alleged that, “[i]n or about 1995-1999,” he had

retained appellees to represent him in a probate matter involving the estate of his sister,

Lucy Socha (the “probate matter”) and that the matter was “settled to the satisfaction of

all parties.” Socha further alleged that in May or June 2000, he asked appellees to return

certain “personal documents and records” he had provided to them in connection with the

probate matter but that appellees never responded to his request. Socha alleged that he

needed the documents to prepare a petition for postconviction relief in a criminal matter

(the “criminal case”).1 According to Socha, these documents could have been used to

1
In 1999, Socha was convicted of murdering his former brother-in-law, Edward Edwards.
See State v. Socha, 8th Dist. Cuyahoga No. 76913, 2001 Ohio App. LEXIS 2071 (May 10, 2001);
State v. Socha, 8th Dist. Cuyahoga No. 80002, 2002 Ohio App. LEXIS 1615 (Apr. 11, 2002).
“negate claims made by the State that the alleged victim was related to [Socha], a

falsehood which was used to the detriment of [Socha]” in the criminal case. Although

Socha acknowledged that appellees had sent “correspondence and billing documents” to

his criminal defense attorney while his criminal case was pending, he claimed that they

sent “none of the important documents.”

{¶3} Socha alleged that he “renewed” his request for the return of the documents

in May 2013, when his current counsel, Richard Swope, wrote to Attorney Weiss and

requested copies of the documents Socha had previously requested. Socha alleged that

following his receipt of the letter from Attorney Swope, Attorney Weiss “made a partial

return” of the documents Socha had requested but failed to return others.2 Socha also

alleged that appellees “were to return a deed to burial plots that were to be filed of

Specifically, Socha claims that appellees failed to return the following
2

documents:

6. 1992 (July) Dissolution of Marriage - Edward Hurr & Doris
Butcher
***
9. 1992 (August) Edward Edwards Driver’s License Abstract
10. 1986 Rental Agreement between Doris Edwards and her landlord
11. Affidavit signed by Doris Hurr alleging a divorce in California
12. 1st agreement listing items I was to receive
13. 2nd agreement — January 1999
14. Letter from veterinarian regarding date of examination of my horse
on March 26, 1999
15. Real estate documents, purchase of Parma home by Edward Hurr
& Doris Hurr
16. Declaratory Petition
17. Court docket of estate of Lucy Socha
18. Copy of transfer of cemetery lots to Michael Socha.
record” and that he “learned only after Defendants’ response” in 2013 “that this was not

done.”

{¶4} In support of his allegations, Socha attached as exhibits to his complaint

copies of: (1) unsigned letters he allegedly sent to Attorney Weiss and Attorney Eversman

in May 2000, requesting affidavits for use in his petition for postconviction relief, (2) a

June 13, 2000 (unsigned) letter from Socha to Attorney Weiss requesting various

documents from the “Lucy Socha probate file,” (3) a May 22, 2013 letter from Attorney

Swope to Attorney Weiss requesting copies of the documents Socha requested in the June

13, 2000 letter, and (4) a July 23, 2013 letter from Attorney Swope to Attorney Eversman

requesting documents and a videotape deposition Socha had referenced in his May 2000

letter to Attorney Eversman.

{¶5} Socha claimed that appellees’ failure to “properly preserve Plaintiff’s records

and property, return said records and property, or notify him of their status upon multiple

requests” was “below the practice standards of competency,” violated Rules 1.15(a), (d)

and (e), 1.3 and 1.4 of the Ohio Rules of Professional Conduct and constituted legal

malpractice. Socha alleged that, as a result of appellees’ malpractice, he: (1) never

received copies of the “properly filed deed(s) to the Socha family grave sites”; (2) was

prevented from presenting grounds for relief in his petition for postconviction relief, and

(3) was forced to file suit in order to obtain “the remainder of his property and documents

still retained by [appellees].” Socha sought to recover in excess of $25,000 in damages

from appellees for their legal malpractice.
 {¶6} Appellees filed an answer to the complaint in which they admitted that they

had represented Socha in the probate matter and that the probate matter had settled “to the

satisfaction of all.” Attorney Weiss further admitted that, in December 2013, he

responded to a request from Socha’s counsel for documents and provided copies of

certain documents found in the portion of the file relating to the probate matter that was

then located. Appellees denied that any of the documents Socha had requested would

have been relevant to his petition for postconviction relief, denied that they violated any

ethical rules and denied that they committed legal malpractice. They raised the statute of

limitations and failure to state a claim upon which relief could be granted as affirmative

defenses. Appellees thereafter filed a motion for judgment on the pleadings, asserting

that Socha’s complaint was barred by the applicable statute of limitations. Socha

opposed the motion.

{¶7} On January 24, 2017, the trial court granted appellees’ motion for judgment

on the pleadings and dismissed the case with prejudice, concluding that Socha’s legal

malpractice claim was time-barred and reasoning as follows:

Plaintiff’s complaint for legal malpractice alleges that he has suffered
damages as a result of defendants’ failure to timely return certain
documents to him. Plaintiff’s complaint alleges that in May or June of
2000, he requested that defendants return documents to him, and defendants
failed to do so. * * * Even assuming arguendo that a claim for legal
malpractice could be based on defendants’ alleged failure to return
documents after the underlying case was adjudicated, any such claim is
time-barred by the one-year statute of limitations in ORC 2305.11(A). The
claim accrued in 2000 — when plaintiff requested and failed to receive the
documents — and plaintiff did not file his action until 2014. The fact that
plaintiff renewed his request in 2013 does not change that his cause of
 action accrued over a decade before that; his malpractice claim was clearly
filed outside the statute of limitations.

{¶8} Socha appealed, raising the following assignment of error for review:

The trial court erred in sustaining defendants-appellees’ motion for
judgment on the pleadings since the facts pleaded, if accepted, establish the
complaint was not time-barred.

Law and Analysis

Standard of Review

{¶9} Motions for judgment on the pleadings are governed by Civ.R. 12(C). Civ.R.

12(C) provides that “[a]fter the pleadings are closed but within such time as not to delay

the trial, any party may move for judgment on the pleadings.” In ruling on a Civ.R.

12(C) motion, the court is restricted to the allegations in the pleadings and any writings

attached as exhibits to the pleadings. Schmitt v. Educational Serv. Ctr., 8th Dist.

Cuyahoga No. 97623, 2012-Ohio-2210, ¶ 9. “‘Civ.R. 12(C) requires a determination

that no material factual issues exist and that the movant is entitled to judgment as a matter

of law.’” Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d

509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc.

v. Pontious, 75 Ohio St.3d 565, 569-570, 664 N.E.2d 931 (1996). Judgment on the

pleadings is appropriate where, after considering the material allegations of the pleadings

and all reasonable inferences to be drawn therefrom in a light most favorable to the

nonmoving party, the court finds that the moving party is entitled to judgment as a matter

of law. Id.
 {¶10} We review a trial court’s decision to grant a motion for judgment on the

pleadings de novo. Id. “If a statute of limitations defense is pleaded and the pleadings

unequivocally demonstrate that the action was commenced after the limitations period

expired, Civ.R. 12(C) relief is appropriate.” Mangelluzzi v. Morley, 2015-Ohio-3143,

40 N.E.3d 588, ¶ 9 (8th Dist.), citing Steinbrink v. Greenon Local School Dist., 2d Dist.

Clark No. 11CA0050, 2012-Ohio-1438, ¶ 13; see also Gides v. Marcus & Millichap, 8th

Dist. Cuyahoga No. 102595, 2015-Ohio-4383, ¶ 10 (“When a party raises a statute of

limitations defense in its answer, the defense is available as grounds for a motion to

dismiss brought pursuant to Civ.R. 12(C).”), citing Zhelezny v. Olesh, 10th Dist. Franklin

No. 12AP-681, 2013-Ohio-4337, ¶ 14.

Statute of Limitations for Legal Malpractice Claims

{¶11} Under R.C. 2305.11(A), a legal malpractice claim must be commenced

within one year after the cause of action accrued. A cause of action for legal

malpractice accrues, and the statute of limitation begins to run, when (1) there is a

cognizable event whereby the client discovers or should have discovered that his or her

injury was related to the attorney’s action or omission, putting the client on notice of a

need to pursue any possible remedies against the attorney or (2) the attorney-client

relationship for that particular transaction or undertaking terminates, whichever occurs

later. Zimmie v. Calfee, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989); Krzywicki v. Gay,

8th Dist. Cuyahoga No. 105039, 2017-Ohio-5584, ¶ 14.
 {¶12} In this case, Socha filed his original complaint on June 12, 2014. His

malpractice claim is predicated on appellees’ failure to return documents he allegedly

requested 14 years earlier. Even assuming a claim for legal malpractice could be based

on counsel’s failure to return documents after the matter was resolved, we find no error

by the trial court in determining that any such claim was barred by the applicable statute

of limitations.

Accrual Based on Cognizable Event

{¶13} 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, ¶

10 (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 at 58; Asente at ¶

14; see also Krzywicki at ¶ 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.

{¶14} Socha contends that appellees had a duty to preserve the documents from the

probate matter and that they breached this duty when they failed to return the documents

to him. He contends that the first “cognizable event” of appellees’ alleged malpractice

was Attorney Weiss’ “partial return” of documents, which occurred on or after June 14,

2013, less than a year before he filed his original complaint. We disagree.

{¶15} It is clear from the allegations of Socha’s complaint that a “cognizable

event” occurred in 2000 when Socha failed to receive the documents he had then

requested from appellees. Although Socha argues that he was not “put on notice” that

any documents still remained in appellees’ possession until Attorney Weiss returned some

of the documents in 2013, he alleged in his complaint that he first requested the

documents in May or June 2000, when they were “required for use” in his “timely filed,”

pro se, petition for postconviction relief and that “many of the documents were

unavailable in any other form.” Accordingly, Socha first knew or should have known

that he might have an injury caused by appellees in 2000 — when appellees failed to

provide the documents he requested in time for him to use them in his pro se petition for

postconviction relief — not in 2013 — when he “renewed” his request for the documents

through counsel.
 {¶16} Even if Socha was unaware that appellees still possessed some or all of the

documents he requested, appellees’ failure to provide the documents when Socha initially

requested them in 2000 put him on notice of his need to investigate appellees’ alleged

failure to respond to his request. This is not a case in which appellees’ alleged legal

malpractice could not have been discovered until the client received and reviewed the

requested documents. Compare Monastra v. D’Amore, 111 Ohio App.3d 296, 305-306,

676 N.E.2d 132 (8th Dist.1996) (finding genuine issues of material fact existed,

precluding summary judgment on statute of limitations grounds, where evidence indicated

that injuries caused by attorney’s alleged malpractice could not have reasonably been

discovered by client until her legal file was turned over to new counsel). The mere fact

that appellees may have continued to possess portions of the legal file relating to the

settled probate matter does not mean that the statute of limitations was tolled on Socha’s

malpractice claim until appellees returned the documents to Socha. 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 legal malpractice claim did not begin to

run until attorney returned client’s legal file).

{¶17} To the extent that appellees had some obligation to “deal with the grave

plots” as part of their representation of Socha, which they failed to do, it is clear, based on

the allegations of the complaint, that Socha was “on notice” of this in 2000 as well.

Socha alleges that appellees “were to return a deed to burial plots which were to be
properly filed of record.” “Copy of transfer of cemetery lots to Michael Socha” was one

of the documents Socha specifically requested in his June 13, 2000 letter to Attorney

Weiss that he alleged he never received.

Accrual Based on Date of Termination of Attorney-Client Relationship

{¶18} Socha also asserts that his legal malpractice claim was not time-barred

because so long as appellees did not return the records he had requested, “deal with the

grave plots” or provide formal notice of the termination of their attorney-client

relationship, their attorney-client relationship continued indefinitely. He further

contends that the date of the termination of his attorney-client relationship with

appellees is a factual issue that could only be determined by a trier of fact. Once again,

we disagree.

{¶19} As this court previously explained in Accelerated Sys. Integration, Inc. v.

Ritzler, Coughlin & Swansinger, Ltd., 8th Dist. Cuyahoga No. 97481, 2012-Ohio-3803:

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, 38 Ohio
St.3d at 388[, 528 N.E.2d 941]. 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, LLP, 6th Dist. Lucas No. L-04-1138, 2005-Ohio- 2105, ¶ 43.

Id. at ¶ 43.

{¶20} The “particular transaction or undertaking” at issue was appellees’

representation of Socha in the probate matter. In his complaint, Socha alleged that he

“employed” appellees “[i]n or about 1995-1999” to “represent him in a claim involving a

probate matter regarding the estate of Lucy Socha.” He further alleged that “[p]laintiff’s

claim was settled to the satisfaction of all parties without having to proceed to trial.”

Although the complaint does not specifically allege when the probate matter was settled,

from the allegations of the complaint as a whole (as well as the documents attached as

exhibits to the complaint), it is clear that the probate matter was settled prior to Socha’s

request for the documents in May or June 2000. There is no allegation that appellees

continued to do any work for Socha or to provide Socha any legal counsel relating to the

probate matter at any time after the probate matter settled — much less as of June 2013, a

year before Socha filed his original complaint. Accepting the allegations of the

complaint as true and viewing the facts alleged in the light most favorable to Socha, the

only reasonable conclusion that could be drawn from those facts is that the attorney-client

relationship between Socha and appellees ended many years before Socha filed his

original complaint in 2014.

{¶21} Construing the material allegations of the pleadings and all reasonable

inferences to be drawn therefrom in a light most favorable to Socha, we find that

Socha’s legal malpractice claim was time-barred under R.C. 2305.11(A). Accordingly,
the trial court did not err in granting appellees’ motion for judgment on the pleadings and

dismissing Socha’s complaint with prejudice. Socha’s assignment of error is overruled.

{¶22} Judgment affirmed.

{¶23} It is ordered that appellees recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to Cuyahoga County Court of Common

Pleas 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.

_____________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., AND
ANITA LASTER MAYS, J., CONCUR