Getch v. Orndorf , 2013 Ohio 3973 ( 2013 )

[Cite as Getch v. Orndorff, 2013-Ohio-3973.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CHERYL R. GETCH, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-G-3120
- vs - :
JEFFREY T. ORNDORFF CO., L.P.A., :
et al.,
:
Defendants-Appellees.
:
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 11M000368.
Judgment: Affirmed.
Brian D. Spitz and Fred M. Bean, 4568 Mayfield Road, Suite 102, South Euclid, OH
44121 (For Plaintiff-Appellant).
Timothy D. Johnson, Cavitch, Familo & Durkin Co, L.P.A., 1300 East Ninth Street, 20th
Floor, Cleveland, OH 44114 (For Defendants-Appellees).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Cheryl R. Getch, appeals the summary judgment of the Geauga
County Court of Common Pleas in favor of appellees, Jeffrey T. Orndorff Co., L.P.A., et
al. (collectively referred to as “Orndorff”), on appellant’s claim for legal malpractice
against Orndorff. At issue is whether the cognizable events occurred before Getch
discharged Orndorff and whether her malpractice claim is time-barred. Because we
hold the trial court did not err in entering summary judgment, we affirm.
{¶2} The statement of facts that follows is based on the parties’ depositions
and evidentiary materials submitted on summary judgment. Getch testified in her
deposition that, following the death of her husband, Donald Getch, in July 2009, she
retained Orndorff, a local attorney, to represent her as executrix in the administration of
her deceased husband’s estate.
{¶3} Getch first met Orndorff in his office in Chardon, Ohio on August 20, 2009.
During this meeting, Orndorff asked Getch to provide him with all documents in her
possession regarding the assets and liabilities of her late husband. She said that in
response to this request, she gathered a large amount of records, put them in a box,
and gave them to Orndorff.
{¶4} Getch testified that after a few months, her family members became
worried about Orndorff’s performance and questioned his competence. They told her
that she should “get rid of” Orndorff. However, she did not immediately follow their
advice. She testified her brother-in-law, Sherwood Wilson, called Orndorff “on her
behalf” and told him that Getch no longer required his services and that she was
terminating their relationship.
{¶5} Further, Getch testified as follows:
{¶6} Q. When you * * * fired Mr. Orndorff, why did you do that?
{¶7} A. I was panicking. Things weren’t getting done.
{¶8} Q. Had you expressed that to Mr. Orndorff before then?
{¶9} A. I tried.
{¶10} Q. What do you mean by that, you tried? Did you have
conversations with him?
2
{¶11} A. I called many occasions, but I wouldn’t get phone calls back.
{¶12} * * *
{¶13} Q. And do you know that he is not qualified as * * * someone
knowledgeable in probate matters?
{¶14} * * *
{¶15} A. I do now.
{¶16} * * *
{¶17} Q. How do you know that?
{¶18} * * *
{¶19} A. Truth? Well, when you got a judge asking you to get your will
probated and documents need signed and you can’t get these
things because you can’t get him to get the job done, I had to call
the judge because I was panicking. He wanted papers from me I
couldn’t get. So I called the judge and told them I couldn’t get my
files because Jeff’s secretary said I couldn’t get them until next
week and I said no, I want them now.
{¶20} Q. When did all that occur?
{¶21} * * *
{¶22} A. About the time I gave him the $2,000 check.
{¶23} Q. Which is dated January 21st?
{¶24} A. Yeah.
{¶25} Q. 2010?
3
{¶26} A. Around in that general area I demanded my files and everything
back. The judge sent me the papers I needed, I signed them and
sent them back to the judge. That’s how my husband’s will got
probated. (Emphasis added.)
{¶27} Getch testified that on January 21, 2010, she wrote a check to Orndorff for
$2,000. She testified she wrote him this check “[b]ecause [she] was letting him go and
[she] thought it was the fair thing to do. [She] thought [she] owed him money for
whatever he did do for [her].” She testified that on that date, she knew she was “letting
him go.” She states in her appellate brief that on January 21, 2010, she gave Orndorff
the check for $2,000. She testified that when she gave him this check, she told him his
services were no longer needed and demanded her records and a copy of her file.
{¶28} Getch testified that on January 26, 2010, she and her son Brandon went
to Orndorff’s office together, and Orndorff gave them the materials she had previously
given him and a copy of her file. She said she picked up these records because she
was “going to switch attorneys.” She said that when she picked up the records, she had
already told Orndorff that he was discharged.
{¶29} Orndorff testified that on December 28, 2009, Getch’s brother-in-law,
Sherwood Wilson, called him and told him that he was calling for Getch and that she
had discharged him. Orndorff said he could hear Getch on the phone in the
background. Getch did not dispute that she was with Wilson during this phone call.
{¶30} Orndorff testified that on January 22, 2010, Getch gave him a check for
$2,000 and told him he was terminated. On January 26, 2010, Getch and her son drove
to Orndorff’s office to pick up Getch’s records, and Orndorff gave them her records.
4
{¶31} On January 28, 2010, Orndorff filed a motion to withdraw in the Lake
County Probate Court, stating that he was discharged by Getch on January 22, 2010.
On March 24, 2010, Orndorff filed a second motion to withdraw, advising the court that
Getch had retained substitute counsel. On March 29, 2010, the Probate Court granted
the motion. Orndorff never cashed the check Getch gave him.
{¶32} On January 26, 2011, Getch filed a complaint against Orndorff in the
Cuyahoga County Court of Common Pleas, alleging legal malpractice, breach of
contract, breach of fiduciary duty, and breach of confidentiality, demanding an
unspecified amount of damages in excess of $25,000 for each claim. Orndorff filed a
motion to transfer the case to the trial court due to improper venue. Over Getch’s
objection, the Cuyahoga County Court granted Orndorff’s motion and transferred this
case to the trial court.
{¶33} Orndorff filed an answer, denying the material allegations of the complaint
and asserting various affirmative defenses, including Getch’s failure to file her complaint
within the applicable statute of limitations.
{¶34} After the parties completed discovery, including depositions, Orndorff filed
a motion for summary judgment, arguing that Getch failed to file her complaint within the
one-year statute of limitations for legal malpractice claims. Getch filed a brief in
opposition, arguing her complaint was timely filed. She argued the statute of limitations
for malpractice did not begin to run until she picked up her file on January 26, 2010.
She also argued that her additional claims were separate from her malpractice claim
and that each had its own statute of limitations.
5
{¶35} In granting Orndorff’s motion for summary judgment, the trial court found
that each of Getch’s claims was a claim for legal malpractice because each arose from
the attorney-client relationship and was based on Getch’s allegation that Orndorff failed
to adequately perform his duties as her attorney. Thus, the one-year statute of
limitations applied to her case.
{¶36} The trial court found that the statute of limitations for Getch’s legal
malpractice claim began running on January 22, 2010, the date she terminated the
attorney-client relationship with Orndorff. The court based this finding on Getch’s
deposition testimony that on January 21, 2010, she wrote a check in the amount of
$2,000 because she was letting him go, and gave it to Orndorff on either January 21,
2010 or January 22, 2010. The court found that, although the record does not indicate
the exact date on which Getch decided that Orndorff was not performing his services
adequately, it had to be prior to January 21, 2010, because the sole purpose she wrote
the check on that date was because she was letting him go. The trial court found that
Getch’s affidavit, submitted in opposition to summary judgment, contradicts her prior
deposition because in her affidavit she said she made the payment due to Orndorff’s
invoices. The court found that, because Getch offered no explanation for this
contradiction, the court was required to base its decision on her deposition. The court
found that, because Getch filed her complaint on January 26, 2011, the complaint was
filed beyond the one-year statute of limitations and therefore was time-barred.
{¶37} Getch appeals the trial court’s judgment, asserting the following for her
sole assignment of error:
6
{¶38} “The Trial Court Committed Reversible Error In Determining That Getch
Filed Her Complaint Outside Of The Statute Of Limitations For Her Legal Malpractice
Claim.”
{¶39} Appellate courts review a trial court’s grant of summary judgment de novo.
Alden v. Kovar, 11th Dist. Trumbull Nos. 2007-T-0114 and 2007-T-0115, 2008-Ohio-
4302, ¶34.
{¶40} In order for summary judgment to be granted, the moving party must
prove that
{¶41} (1) no genuine issue as to any 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 that reasonable minds can come to
but one conclusion, and viewing such evidence most strongly in
favor of the nonmoving party, that conclusion is adverse to the
party against whom the motion for summary judgment is made.
Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996).
{¶42} [T]he moving party bears the initial responsibility of informing the
trial court of the basis for the motion, and identifying those portions
of the record which demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party’s claim. The
“portions of the record” to which we refer are those evidentiary
materials listed in Civ.R. 56(C), such as the pleadings, depositions,
answers to interrogatories, etc., that have been filed in the case.
7
(Emphasis omitted.) Dresher v. Burt, 75 Ohio St.3d 280, 296
(1996).
{¶43} If the moving party satisfies its burden, then the nonmoving party has the
burden to provide evidence demonstrating a genuine issue of material fact. If the
nonmoving party does not satisfy this burden, then summary judgment is appropriate.
Civ.R. 56(E).
{¶44} With respect to a claim for legal malpractice, “R.C. 2305.11(A) provides
that a party must bring [such claim] within one year after the cause of action accrued.”
Biddle v. Maguire & Schneider, LLP, 11th Dist. Trumbull No. 2003-T-0041, 2003-Ohio-
7200, ¶17. In interpreting this statute, the Supreme Court of Ohio in Zimmie v. Calfee,
Halter & Griswold, 43 Ohio St.3d 54 (1989), held:
{¶45} 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 or when
the attorney-client relationship * * * terminates, whichever occurs
later. (Emphasis added.) Id. at syllabus, citing Omni Food Fashion,
Inc. v. Smith, 38 Ohio St.3d 385 (1988).
{¶46} “Zimmie and Omni-Food require two factual determinations: (1) When
should the client have known that he or she may have an injury caused by his or her
attorney? and (2) When did the attorney-client relationship terminate? The latter of
8
these two dates is the date that starts the running of the statute of limitations.” Smith v.
Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, ¶4.
{¶47} A “cognizable event” is an event sufficient to alert a reasonable person
that his attorney has committed an improper act in the course of legal representation.
Spencer v. McGill, 87 Ohio App.3d 267, 278 (8th Dist.1993). “[T]he focus should be on
what the client was aware of and not an extrinsic judicial determination.” McDade v.
Spencer, 75 Ohio App.3d 639, 643 (10th Dist.1991). “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, and the plaintiff need not have discovered all of the
relevant facts necessary to file a claim in order to trigger the statute of limitations.”
Asente v. Gargano, 10th Dist. Franklin No. 04AP-278, 2004-Ohio-5069, ¶14, citing
Flowers v. Walker, 63 Ohio St.3d 546, 549 (1992). The client need not be aware of the
full extent of the injury before there is a cognizable event. Asente, supra; Zimmie,
supra, at 58. “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, supra, citing Zimmie, supra.
{¶48} Alternatively, the termination of the attorney-client relationship depends on
an affirmative act by either party that signals the end of the relationship. Mastran v.
Marks, 9th Dist. Summit No. 14270, 1990 Ohio App. LEXIS 1219, *9 (Mar. 28, 1990).
Accord Savage v. Kucharski, 11th Dist. Lake No. 2005-L-141, 2006-Ohio-5165, ¶23;
Trickett v. Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A., 11th Dist. Portage No.
2000-P-0105, 2001 Ohio App. LEXIS 4806, *7 (Oct. 26, 2001). The attorney-client
relationship may terminate by a communication that the relationship has ended.
9
Merkosky v. Wilson, 11th Dist. Lake No. 2008-L-017, 2008-Ohio-3252, ¶24. This
communication can be written, as in a termination letter, or oral. Savage, supra;
Merkosky, supra. The issue of when the attorney-client relationship is terminated is a
question of fact. Trickett, supra, citing Omni-Food, supra, at 388. For a trial court to
grant summary judgment based on the affirmative act of either party terminating the
relationship, such “act must be clear and unambiguous, so that reasonable minds can
come to but one conclusion from it.” Id.
{¶49} The determination of the date a legal malpractice claim accrues is a
question of law reviewed de novo by an appellate court. Cicchini v. Streza, 160 Ohio
App.3d 189, 2005-Ohio-1492, ¶17 (5th Dist.), citing Whitaker v. Kear, 123 Ohio App.3d
413, 420 (4th Dist.1997).
{¶50} As a preliminary matter, we note that on appeal, Getch has abandoned
the argument she advanced in the trial court that, in addition to her claim for legal
malpractice, she has three other claims, each of which has a separate statute of
limitations. She therefore does not appeal the trial court’s finding that the only claim she
asserted is one for legal malpractice.
{¶51} Under her sole assignment of error, Getch asserts two issues. For her
first issue, she argues a genuine issue of material fact exists as to the date the attorney-
client relationship terminated.
{¶52} Getch testified during her deposition that on January 21, 2010, she wrote
a check to Orndorff for $2,000. She said she wrote the check “[b]ecause [she] was
“letting him go” and thought it was the fair thing to do. [She] thought [she] owed him
money for whatever he did do for [her].” She testified that when she wrote the check,
10
she knew she was “letting him go.” She states in her brief that on January 21, 2010,
she gave Orndorff the check. At that time, she told him his services were no longer
needed. Getch also testified that when she gave him the check, she demanded her
records back and a copy of her file. Orndorff agreed with Getch’s testimony regarding
this meeting, but testified it took place on January 22, 2010. Because Getch said she
wrote the check because she was letting Orndorff go and told him his services were no
longer required when she gave it to him, her check was the functional equivalent of a
termination letter. We agree with the trial court’s finding that, by these acts, Getch
clearly and unambiguously terminated the attorney-client relationship on January 22,
2010.
{¶53} Getch ignores her deposition testimony that she discharged Orndorff.
Instead, she argues the statute of limitations did not begin to run until March 29, 2010,
the date on which the Probate Court granted Orndorff’s second motion to withdraw.
Consequently, Getch argues the trial court erred when it found that the statute of
limitations began to run on January 22, 2010. We do not agree. The Supreme Court of
Ohio in Conley, supra, held:
{¶54} The determination [of the date of termination of an attorney-client
relationship] is not dependent on local rules of court. Attorneys are
required to follow local rules and must file the appropriate motion
with a court to withdraw from representation, but the date of
termination of the attorney-client relationship for purposes of R.C.
2305.11 is determined by the actions of the parties. Id. at ¶12.
11
{¶55} This court followed the analysis and holding of the Supreme Court of Ohio
in Conley in Duvall v. Manning, 11th Dist. Lake No. 2010-L-069, 2011-Ohio-2587, ¶33.
{¶56} Getch concedes that Orndorff was required by Rule 78.4 of the Lake
County Probate Court to file a motion to withdraw. Based on the foregoing authority,
the date on which the attorney-client relationship terminated is determined by the
conduct of the parties. As a result, the date on which Orndorff’s motion to withdraw was
filed or granted is irrelevant to the analysis.
{¶57} Alternatively, Getch argues the statute of limitations began to run on
January 26, 2010, the date she and her son picked up her records and a copy of her file
from Orndorff. However, the Eighth Appellate District rejected this argument in
Chambers v. Melling, Harding, Schuman, and Montello, 8th Dist. Cuyahoga No. 85045,
2005-Ohio-2456. In Chambers, the Eighth District held that the limitations period began
to run on the date of the client’s termination letter. Id. at ¶19. The court held it was
irrelevant that the client retrieved his file contents from the attorney after the date of the
termination letter. Id. Thus, the fact that Getch and her son picked up a copy of her file
and her records from Orndorff on January 26, 2010, is also irrelevant to the analysis.
{¶58} Getch argues she testified she did not know whether she was letting
Orndorff go on January 21, 2010. However, this argument ignores her deposition
during which she testified that on January 21, 2010, she wrote the check to Orndorff
because she was letting him go and that on that date, she knew she was letting him go.
{¶59} Getch also argues that in writing the check, she was merely trying to pay
Orndorff for his services based on “his previous requests for payment.” However, this
argument is not supported by the record. Getch did not testify in her deposition or state
12
in her affidavit that Orndorff ever requested payment of his fees. To the contrary, as
noted above, Getch testified she wrote the check “[b]ecause [she] was letting him go
and [she] thought it was the fair thing to do. [She] thought [she] owed him money for
whatever he did do for [her].” Thus, although Getch decided to pay Orndorff for the
work he had done, she testified she wrote him the check because she was letting him
go.
{¶60} Next, Getch argues the fact that she wrote the check on January 21, 2010,
without more, is insufficient to show the date of termination of the attorney-client
relationship. However, the date she wrote the check is not the only evidence of the date
she terminated the relationship. She states in her brief that she gave Orndorff the
check on January 21, 2010. She testified that at that time, she told him his services
were no longer needed and demanded her records back.
{¶61} Getch also argues there is no evidence of when she gave the check to
Orndorff. Once again, in making this argument, Getch ignores her deposition. Getch
testified she wrote the check to Orndorff on January 21, 2010, and states in her brief
that she gave it to him on that date. Further, Orndorff testified she gave him the check
on January 22, 2010. Thus, Getch gave the check to Orndorff on either January 21,
2010 or January 22, 2010, either of which dates is beyond the one-year statute of
limitations.
{¶62} Next, as the trial court correctly noted, Getch’s affidavit, which she filed in
opposition to summary judgment, directly contradicts her deposition testimony. In
contrast to her deposition testimony, Getch stated in her affidavit that she wrote the
check based on Orndorff’s invoices and that she did not decide to discharge him until
13
January 26, 2010. The Supreme Court of Ohio in Byrd v. Smith, 110 Ohio St.3d 24,
2006-Ohio-3455, held: “An affidavit of a party opposing summary judgment that
contradicts former deposition testimony of that party may not, without sufficient
explanation, create a genuine issue of material fact to defeat the motion for summary
judgment.” Id. at paragraph three of the syllabus. Here, Getch did not offer any
explanation for the inconsistencies between her affidavit and her prior deposition
testimony concerning the reason she wrote the check or the date she decided to let
Orndorff go. For this reason, the trial court correctly disregarded the inconsistent
statements in Getch’s affidavit. It is noteworthy that on appeal, Getch does not even
attempt to explain the glaring contradictions between her deposition and her affidavit.
{¶63} Orndorff thus submitted evidentiary material establishing that Getch
terminated their attorney-client relationship at the latest on January 22, 2010. This
shifted the burden to Getch pursuant to Dresher, supra, to establish a genuine issue of
material fact with respect to the date the relationship terminated. She was thus required,
but failed, to present evidence that she terminated the relationship within the limitations
period, i.e., on or after January 26, 2010. As a result, the trial court did not err in finding
that Getch terminated the attorney-client relationship on January 22, 2010.
{¶64} For her second issue, Getch argues there is a genuine issue of material
fact regarding the date of the cognizable event.
{¶65} The trial court found that since Getch wrote the check on January 21,
2010 because she was letting Orndorff go, the date of the cognizable event had to be
prior to that date. Further, the court found that, since Getch terminated the attorney-
client relationship on January 22, 2010, the termination occurred after the date of the
14
cognizable event. Therefore, the statute of limitations began to run on January 22,
2010.
{¶66} This court considered the date of a cognizable event in Savage, supra. In
Savage, the client terminated the attorney-client relationship on May 13, 2002. This
court held, “unless there was a cognizable event occurring at a later date, whereby [the
client] discovered that his injury was related to [the attorney’s] act or non-act, [the
client’s] complaint for legal malpractice would have to have been filed by May 13, 2003.”
Id. at ¶24. In Savage, this court held that since the client was aware of the alleged
malpractice prior to his termination of the attorney-client relationship, the claim accrued
and the statute of limitations began to run on the termination date, May 13, 2002.
{¶67} Further, the Eighth District considered the date of a cognizable event in
Chambers, supra. There, the Eighth District held that the client’s June 2, 2002 letter to
the attorney terminating their relationship manifested the client’s intent to terminate the
attorney-client relationship and thus constituted a cognizable event. Id. at ¶19. The
appellate court held it was “irrelevant that [the client] delivered the letter to [the attorney]
* * * after June 2, 2002. * * * [I]t is the date the letter was drafted which determines the
cognizable event.” Id. The court further stated: “On June 2, 2002, [the client] intended
to discontinue his attorney-client relationship with the [attorney] and it was this date
when [the client] undeniably was aware of the conduct he now alleges constitutes
malpractice.” Id.
{¶68} Applying the foregoing authority here, three cognizable events occurred,
any one of which was sufficient to start the running of the statute of limitations. First,
Getch’s brother-in-law called Orndorff on December 28, 2009, and said that Getch
15
discharged him. The brother-in-law made this call to Orndorff on Getch’s behalf and in
her presence.
{¶69} Second, because Getch testified she was panicking over Orndorff’s failure
to perform acts she believed were necessary to administer the estate, she had to
believe “she may have an injury caused by her attorney.” This is the definition of a
cognizable event. Conley, supra.
{¶70} Third, Getch’s act of writing the check was a cognizable event because it
manifested her intent to terminate the parties’ attorney-client relationship. Chambers,
supra. When she wrote the check, she was undeniably aware of the conduct she now
alleges constitutes malpractice. Id. In the complaint, she alleged that Orndorff
negligently administered her husband’s estate. She alleged Orndorff “did little work” in
administering the estate and “failed to prepare and file documentation that would have
assisted Plaintiff’s case.” Thus, the same conduct that caused Getch to discharge
Orndorff is alleged as grounds of her complaint.
{¶71} While Getch may not have discovered all of the relevant facts in support of
her claim, the foregoing events constituted cognizable events since they alerted her or
should have alerted her “that * * * improper [legal work] ha[d] taken place.” Zimmie,
supra, at 58.
{¶72} Orndorff thus submitted evidence that the cognizable events occurred
before Getch discharged him on January 22, 2010. Because Getch filed her complaint
on January 26, 2011, she had the burden to present evidence that a cognizable event
occurred within one year of the filing of the complaint, i.e., on or after January 26, 2010.
Because she failed to do so, the trial court did not err in finding that the cognizable
16
events occurred before Getch discharged Orndorff. Since the cognizable events and
the termination date occurred on or before January 22, 2010, the trial judge did not err
in finding the complaint was time-barred.
{¶73} We therefore hold the trial court did not err in granting summary judgment
in favor of Orndorff on Getch’s legal malpractice claim.
{¶74} For the reasons stated in the opinion of this court, Getch’s assignment of
error is overruled. It is the judgment and order of this court that the judgment of the
Geauga County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J., concurs in judgment only, with a Concurring Opinion,
DIANE V. GRENDELL, J., concurs in judgment only, with a Concurring Opinion.
_____________________
TIMOTHY P. CANNON, P.J., concurs in judgment only, with a Concurring Opinion.
{¶75} I respectfully concur in judgment only with the opinion of the majority.
{¶76} I agree with the majority’s conclusion that the statute of limitations for a
legal malpractice action begins to run either (1) when the attorney-client relationship has
been terminated or (2) when a cognizable event occurs, such that 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”—whichever occurs
later. Zimmie v. Calfee, 43 Ohio St.3d 54, 58 (1989), citing Omni-Food & Fashion, Inc.
v. Smith, 38 Ohio St.3d 385 (1988), paragraph one of the syllabus. However, I do not
agree with the trial court and the majority’s interpretation and application of the law to
the facts of this case.
17
TERMINATION OF RELATIONSHIP
{¶77} The date upon which an attorney-client relationship is terminated, for the
purpose of determining when a legal malpractice cause of action accrues, depends on
an affirmative act by either party that communicates to the other that the relationship
has been terminated. Mastran v. Marks, 9th Dist. Summit No. 14270, 1990 Ohio App.
LEXIS 1219, *9 (Mar. 28, 1990). See also Merkosky v. Wilson, 11th Dist. Lake No.
2008-L-017, 2008-Ohio-3252, ¶24 (“the attorney-client relationship may terminate by a
communication”); and Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, ¶12 (“the
date of termination * * * for purposes of R.C. 2305.11 is determined by the actions of the
parties”).
{¶78} The majority points to Getch’s deposition testimony, which states she
wrote the check to Orndorff on January 21, 2010, because she was “letting him go.”
However, her subjective intent to terminate Orndorff when writing out the check is
insufficient to terminate the relationship if it was not also communicated to Orndorff in
some way. Duvall v. Manning, 11th Dist. Lake No. 2010-L-069, 2011-Ohio-2587;
Mastran, supra. Thus, as a matter of law, it cannot be held that the relationship
terminated because Getch wrote the check on January 21, 2010.
{¶79} However, Getch did testify in her deposition that when she gave the check
to Orndorff she communicated to him that his services were no longer required.
Orndorff’s deposition testimony confirms this. Their testimony conflicts as to whether
this conversation occurred on January 21 or January 22, 2010. Either way, it was not
error for the trial court to determine that this affirmative act was what terminated the
attorney-client relationship. Accordingly, the date on which Getch’s son picked up her
18
file from Orndorff’s office, i.e. January 26, 2010, is irrelevant to the analysis, as it
occurred after the attorney-client relationship had been terminated.
DISCOVERY OF COGNIZABLE EVENT
{¶80} Patterned after medical malpractice cases, the Ohio Supreme Court has
adopted the “discovery rule” as an alternative to the “termination rule” in determining
when a cause of action for legal malpractice begins to accrue. Omni-Food & Fashion,
38 Ohio St.3d at 387. A “cognizable event” occurs when the injured party discovers or
should have discovered that she was injured by an act or non-act of her attorney.
Zimmie, 43 Ohio St.3d 54 at syllabus, citing Omni-Food & Fashion, supra. Determining
the date of a cognizable event requires the trial court to make very specific factual
findings:
{¶81} [W]hen the injured party became aware, or should have become
aware, of the extent and seriousness of his or her alleged legal
problem; whether the injured party was aware, or should have
been aware, that the damage or injury alleged was related to a
specific legal transaction or undertaking previously rendered him
or her; and whether such damage or injury would put a reasonable
person on notice of the need for further inquiry as to the causes of
such damage or injury. Omni-Food & Fashion at 388.
{¶82} The trial court held, and the majority agrees, that the date of the
cognizable event “had to be prior to January 21, 2010” because that was the date Getch
wrote the check to Orndorff. The trial court states Getch’s sole purpose for writing this
check was because she had “decided that Mr. Orndorff was not performing his duties
19
satisfactorily” and “was letting him go.” However, as recited in the standard above, a
cognizable event requires much more than a general dissatisfaction with one’s attorney.
It must be an event significant enough to cause a reasonable person to be aware that a
legal wrong has been committed and thereby put the client on notice that she should
pursue possible remedies. See Powell v. Rion, 2d Dist. Montgomery No. 24756, 2012-
Ohio-2665, ¶18 (“[i]t is not sufficient that the client be dissatisfied with the advice or its
result, but rather that the harm be of such a nature and degree that the reasonable
person client would be alerted that the harm was the result of something that his or her
attorney did legally wrong”). The fact that a client wants to change attorneys could be
based on a number of factors, not all of which necessarily assess that the attorney had
engaged in professional negligence. Thus, determination of the date of the “cognizable
event” must be based on something other than the date of termination of the
relationship.
{¶83} The majority concludes that, prior to January 26, 2010, “three cognizable
events occurred, any one of which was sufficient to start the running of the statute of
limitations.” First, the majority cites the phone call made by Getch’s brother-in-law
“Woody” to Orndorff in an attempt to discharge him as a cognizable event. “Woody”
had no authority to terminate an attorney-client relationship to which he was not a party.
Further, the phone call did not indicate that Getch had become aware of a legal wrong
that may have caused her injury. A decision to terminate an attorney is not always
based on an awareness or suspicion of malpractice, and the evidence shows nothing
more than Getch and her family had become worried and dissatisfied with Orndorff.
The majority’s focus on this phone call is misplaced.
20
{¶84} Second, the majority states that because Getch was “panicking over
Orndorff’s failure to perform acts she believed were necessary to administer the estate,
she had to believe ‘she may have an injury caused by her attorney.’” (Emphasis
added.) The majority is making an impermissible assumption in labeling this as a
cognizable event. “[T]he focus should be on what the client was aware of and not an
extrinsic judicial determination.” Hilario v. Taft, 8th Dist. Cuyahoga No. 95262, 2011-
Ohio-1742, ¶21. Based on the record, more than one reasonable conclusion could be
reached from the fact that Getch was panicking: it could have been mere impatience or
dissatisfaction, not that she was aware of an injury caused by Orndorff.
{¶85} Third, the majority states that “Getch’s act of writing the check was a
cognizable event because it manifested her intent to terminate the * * * relationship.”
This analysis again makes an assumption not in the record: that she was terminating
Orndorff because she was aware of the possibility that she had been injured by his
failure to properly advise her regarding the estate. Further, even if this assumption
were proven, the cognizable event would be whatever had prompted her to write the
check—not the act of writing the check itself.
{¶86} There is, in fact, no evidentiary material in the record to establish when a
“cognizable event” occurred. However, under the facts of this case, Orndorff was still
entitled to summary judgment.
{¶87} Normally, by moving for summary judgment on the basis that the statute of
limitations had expired, Orndorff would have the burden to produce evidence from which
reasonable minds could only reach the conclusion that a cognizable event had occurred
prior to January 26, 2010. Other courts have stated that the party asserting the statute
21
of limitations defense has the burden of “identifying the date of the ‘cognizable event.’”
Powell, supra, ¶8, citing Werts v. Penn, 164 Ohio App.3d 505, 2005-Ohio-6532, ¶11 (2d
Dist.). However, this has the potential, under certain fact patterns, to create an
irreconcilable dilemma for the moving party.
{¶88} Orndorff testified at deposition that he properly advised Getch during the
course of his representation. He took the position that he did nothing to cause harm to
Getch. Therefore, according to him, there never was a cognizable event. This should
satisfy his burden with regard to whether any “cognizable event” occurred before
January 26, 2010. He is not obligated to assert that he was negligent in some way or
that he did anything to cause harm to appellant in such a way that she knew, or should
have known, of such harm. If he had the burden to establish the date of the cognizable
event under these facts, it would be tantamount to him having to produce evidence of
an event that he testified never occurred.
{¶89} As a result, under the Dresher v. Burt, 75 Ohio St.3d 280 (1996) reciprocal
burden rule, this placed upon Getch the burden of establishing the date on which the
“cognizable event” occurred. Getch simply did not meet that burden. Only Getch
knows when she “knew or should have known” that she had been harmed. However,
she asserts in her brief that Orndorff did not present sufficient evidence in this regard.
The fact is, there is no testimony or other evidence as to when she knew she had been
harmed. It could have been prior to her termination of the relationship, or it could have
been later. The point is, only she knows, and she has never indicated when she first
knew she had been harmed.
22
{¶90} In summary, I concur with the majority’s decision to affirm summary
judgment in this case. In a malpractice case where the defendant denies wrongdoing,
claiming there was no harm caused by professional negligence, the contention is there
never was a cognizable event. In that case, the burden is on the plaintiff to respond to
the motion for summary judgment with evidentiary material sufficient to establish when
the plaintiff knew or should have known that a cognizable event occurred. This
evidence must be sufficient to raise a question of fact regarding the date of any such
cognizable event. In this case, since no such evidence was produced, the grant of
summary judgment was proper.
_____________________
DIANE V. GRENDELL, J., concurs in judgment only, with a Concurring Opinion.
{¶91} I concur in the judgment to affirm the decision of the lower court granting
summary judgment in favor of Jeffrey T. Orndorff Co., L.P.A. However, I reach this
conclusion by a less complicated trail than my fellow judges.
{¶92} Under Ohio law, the date that the statute of limitations begins to run on a
claim of legal malpractice is the latter of “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.” Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538
N.E.2d 398 (1989), syllabus.
23
{¶93} In this case, the latter of these events occurred on January 21 or 22, 2010,
when Cheryl Getch tendered payment to Orndorff and advised him that his services
were no longer needed. It is not necessary to consider possible cognizable events that
occurred prior to the termination of Orndorff’s services, nor is that decision relevant.
{¶94} Moreover, the effort to address the issue of possible cognizable events
leads to the erroneous conclusion by the other concurring judge that the burden of proof
as to the running of the statute of limitations in a legal malpractice case can somehow
shift to the plaintiff. That is simply incorrect.
{¶95} The statute of limitations in this case began to run on January 21 or 22,
2010, the date on which Cheryl Getch terminated the attorney-client relationship with
Orndorff.
{¶96} The decision of the trial court is correct. For this reason, I would affirm
that decision.
24