IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiffs, : Case No. 10 CV 761

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO DIANA SIGMAN, : Plaintiffs, : Case No. 10 CV 761 v. : Judge Berens NELSON E. GENSHAFT, ET AL., : ENTRY Overruling Motion for Summary Judgment Defendants. : This matter is before the Court upon the Motion for Summary Judgment of Defendant Nelson E. Genshaft, filed August 25, For the following reasons, Defendant s motion is OVERRULED. STATEMENT OF THE CASE This is legal malpractice action arising from Defendant s representation of Plaintiff in proceedings before the Ohio Department of Insurance in 2007 through Defendant s motion for summary judgment is based solely on the statute of limitations applicable to a professional negligence action, R.C (A). From the affidavits submitted in support and in opposition to the motion for summary judgment, the following facts appear to be undisputed. Plaintiff retained Defendant to represent her in proceedings before the Ohio Department of Insurance in late The hearing on that matter took place between March 20, 2008 and November The hearing officer issued his report and recommendation on April 28, Plaintiff received a copy of that report and recommendation shortly thereafter. After receiving the hearing officer s report, Defendant informed Plaintiff that he would not represent her in submitting objections to the hearing officer s report or in appealing the decisions of the Department of Insurance. Defendant filed a Notice of Withdrawal with the 1

2 Department of Insurance on May 6, At that time, Plaintiff retained the services of attorney Steve Brooks to represent her in further proceedings before the Department of Insurance. Plaintiff received the final decision of the Department of Insurance on June 25, On that date, Steve Brooks told Plaintiff that he believed Defendant had failed to adequately represent her in the initial hearing. On June 29, 2009, Defendant met with Plaintiff and Steve Brooks and discussed the appeals process. LAW & ANALYSIS Summary Judgment Standard Civ.R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party. 1 The party moving for summary judgment must identify the basis of the motion to allow the non-movant a meaningful opportunity to respond. 2 Additionally, the movant must state specifically which areas of the opponent's claim raise no genuine issue of material fact and such assertion may be supported by affidavits or otherwise as allowed by Civ.R. 56(C). 3 The movant cannot rest on conclusory assertions that the non-movant lacks evidence. Rather, the moving 1 Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the syllabus. 2 Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d Id. at 115, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d

3 party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) [.] 4 If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the non-moving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial [.] 5 If the non-movant produces evidence that allows for conflicting inferences, the court may not weigh the evidence. 6 Instead, the trial court must resolve any doubts and construe the evidence in favor of the non-movant. 7 Applicable Statute of Limitations Defendant s motion for summary judgment is confined to the issue of whether Plaintiff filed her Complaint in this action within the applicable statute of limitations. R.C (A) states, an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim * * * shall be commenced within one year after the cause of action accrued. The Supreme Court of Ohio has held that [a]n action for legal malpractice accrues * * * 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. 8 A cognizable event is an event sufficient to alert a reasonable person that his attorney 4 Dresher, at Id. at White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, 919 N.E.2d 227, at 9, citing Hamilton v. Ohio Dept. of Rehab. & Corr., 2007-Ohio-1173, at Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 485, 696 N.E.2d Zimmie v. Calfee, Halter and Griswold (1989), 43 Ohio St.3d 54, 58, 538 N.E.2d 398,

4 has committed an improper act in the course of legal representation. 9 An attorney-client relationship terminates where there is conduct [that] dissolves the essential mutual confidence between attorney and client, such as a letter expressing a desire to terminate the relationship or the client retaining a new attorney for the same matter. 10 In any event, an attorney-client relationship exists only when the putative client reasonably believe[s] the relationship exist[s] and the attorney [will] therefore advance the interest of the putative client. 11 Arguments of the Parties Plaintiff filed the Complaint in this action on June 22, In this instance, Defendant argues that the cognizable event relative to Plaintiff s claim was the receipt of the hearing officer s report and recommendation on or about April 29, Defendant also argues that the attorney-client relationship between him and Plaintiff ended on or about May 6, 2009, when he filed a Notice of Withdrawal with the Department of Insurance and was replaced as Plaintiff s counsel by Steve Brooks. On the other hand, Plaintiff argues that the cognizable event was her receipt of the final decision of the Department of Insurance on June 25, Plaintiff further argues that an attorney-client relationship existed between her and Defendant until at least June 29, 2009, when Defendant met with her to discuss appealing from the Department s decision. A Genuine Issue of Material Fact Remains as to the Date of A Cognizable Event As an initial matter, the Court must address Defendant s attack on Plaintiff s affidavit in opposition to summary judgment. Defendant argues that Plaintiff s affidavit contradicts the deposition testimony Plaintiff previously gave in this action. Defendant correctly points out that 9 Cicchini v. Streza, 160 Ohio App.3d 189, 2005-Ohio-1492, 826 N.E.2d 379, at See DiSabato v. Tyack & Assocs. Co., LPA (Sept. 14, 1999), 10th Dist. App. No. 98AP-1282, citing Flynt,v. Brownfield, Bowen & Bailey (C.A.6, 1989), 882 F.2d 1048, and Brown v. Johnstone (1982), 5 Ohio App.3d 165, Henry Filters, Inc. v. Peabody Barns, Inc. (1992), 82 Ohio App.3d 255, 261, 611 N.E.2d

5 the Ohio Supreme Court has held that an affidavit of a party that is inconsistent with that party s deposition testimony does not demonstrate the existence of a genuine issue of material fact. 12 In this instance, however, there is no evidence before the Court of any inconsistency. Although Defendant cited to Plaintiff s deposition testimony in his reply memorandum, that deposition has not been filed. Accordingly, that deposition was not filed at least one day before the hearing, as required by Civ.R. 32(A), and may not be considered as evidence in the hearing upon Defendant s motion. Therefore, Plaintiff s affidavit is properly before the Court. The applicable statute of limitations in this action began running at the time of the later of two events, either the end of the attorney-client relationship or the time of a cognizable event. In this instance, the materials before the Court leave no genuine issue of material fact as to the termination of the attorney-client relationship between Defendant and Plaintiff. Viewing the evidence in a light most favorable to Plaintiff, the Court finds that reasonable minds could come to only one conclusion on that issue. Plaintiff had retained an attorney to replace Defendant and Defendant had officially withdrawn from the proceedings in which he had been representing her by May 6, The combination of those events must lead reasonable minds to conclude that Plaintiff could have no reasonable belief that Defendant was her attorney after May 6, That Defendant extended Plaintiff and her new attorney the professional courtesy of deadline reminders and a discussion of the law pertaining to appeals is not sufficient to have given Plaintiff a reasonable belief that Defendant had become her attorney again. May 6, 2009 was more than one year before Plaintiff filed her Complaint in this action. Therefore, if the cognizable event relating to Plaintiff s claim did not occur after that date, 12 Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio

6 Plaintiff s claim must fail as untimely. In this instance, viewing the evidence in a light most favorable to Plaintiff, the Court finds that a genuine issue of material fact remains as whether the cognizable event occurred after June 22, Defendant asserts that Plaintiff knew or should have known of her claim against Defendant on April 28, 2009, when she received a copy of the hearing officer s report and recommendation. But Plaintiff s affidavit testimony states that the hearing officer s report did not alert her to potential malpractice because Defendant assured her that the recommendation was not binding and advised her that the recommendation would likely be rejected and that Plaintiff would likely receive the same sanction as a colleague had received. According to Plaintiff s affidavit, Defendant had predicted that sanction since the beginning of the representation. Therefore, the Court finds that reasonable minds could conclude that Plaintiff was not aware of any adverse effects of Defendant s alleged negligence until the final decision of the Department of Insurance on June 25, As an adverse effect, or harm, is an essential element of a legal malpractice claim, 13 reasonable minds could conclude that Plaintiff was not aware of a claim against Defendant until she was aware that she had been harmed by Defendant s alleged negligence. 14 Therefore, the Court finds that reasonable minds could come to more than one conclusion and that the possible conclusions would not all be adverse to Plaintiff. Further, the Court finds that Defendant is not entitled to judgment as a matter of law based on the statute of limitations. Accordingly, the Court OVERRULES Defendant s motion for summary judgment. IT IS SO ORDERED. 13 Paterek v. Petersen & Ibold, 118 Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, at See Crytal v. Willsman, 151 Ohio App.3d 512, 2003-Ohio-427, 784 N.E.2d 764, at

7 Judge Richard E. Berens Copies to: D. Joe Griffith, Courthouse mailbox Rick E. Marsh, Melissa M. Ferguson, Two Miranova Place, Ste. 500, Columbus, OH Filed October 18,

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