Kinasz v. Dickson , 110 N.E.3d 1034 ( 2018 )

[Cite as Kinasz v. Dickson, 2018-Ohio-1754.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106068
MARY KINASZ
PLAINTIFF-APPELLANT
vs.
BLAKE DICKSON, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-17-875393
BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
RELEASED AND JOURNALIZED: May 3, 2018
FOR APPELLANT
Mary Kinasz, pro se
2502 West 7th Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Blake A. Dickson
The Dickson Firm, L.L.C.
Enterprise Place, Suite 420
3401 Enterprise Parkway
Cleveland, Ohio 44122
FRANK D. CELEBREZZE, JR., J.:
{¶1} Plaintiff-appellant, Mary Kinasz, individually and as the executor of the estate of
Justyna Kinasz (“appellant”), brings this appeal challenging the trial court’s order granting
summary judgment in favor of defendants-appellees, Blake Dickson, et al. (“Dickson”),
regarding appellant’s claim for legal malpractice. Specifically, appellant argues that genuine
issues of material fact existed that precluded the granting of summary judgment. After a
thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} The instant matter arose from a dispute between appellant and Dickson regarding
Dickson’s representation in Cuyahoga C.P. No. CV-11-766580, a nursing home negligence case.
The negligence case settled in January 2013.
{¶3} In Cuyahoga C.P. No. CV-15-850029, appellant filed a complaint for legal
malpractice against Dickson on August 20, 2015. On February 4, 2016, appellant filed a notice
of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a). The trial court dismissed the case
without prejudice on February 5, 2016.
{¶4} Appellant refiled her legal malpractice claim against Dickson on February 3, 2017.
Appellant requested $25,000 in compensatory damages, punitive damages, attorney fees, and
costs.
{¶5} On April 7, 2017, Dickson filed a motion for summary judgment, arguing that
appellant’s claim was barred by the one-year statute of limitations and that she failed to establish
damages. Appellant filed a brief in opposition to Dickson’s summary judgment motion on June
7, 2017.
{¶6} On July 10, 2017, the trial court granted Dickson’s motion for summary judgment.
The trial court’s judgment entry provides, in relevant part, “construing all facts in favor of
[appellant] and finding no genuine issue of material fact remains, the court hereby grants
[Dickson’s] motion for summary judgment.”
{¶7} It is from this judgment that appellant filed the instant appeal on July 28, 2017.
She assigns one error for review:
I. The trial court erred in granting [Dickson’s] motion for summary judgment
finding that there are no genuine issues of material fact.
II. Law and Analysis
A. Standard of Review
{¶8} Summary judgment, governed by Civ.R. 56, provides for the expedited adjudication
of matters where there is no material fact in dispute to be determined at trial. In order to obtain
summary judgment, the moving party must show that “(1) there is no genuine issue of material
fact; (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 when viewing evidence in favor
of the nonmoving party, and that conclusion is adverse to the nonmoving party.” Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).
{¶9} The moving party has the initial responsibility of establishing that it is entitled to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).
“[I]f the moving party meets this burden, summary judgment is appropriate only if the
nonmoving party fails to establish the existence of a genuine issue of material fact.” Deutsche
Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 16, citing
Dresher at 293.
{¶10} Once a moving party demonstrates no material issue of fact exists for trial and the
party is entitled to judgment, the nonmoving party has a duty to come forth with argument and
evidence demonstrating a material issue of fact does exist that would preclude judgment as a
matter of law. Dresher at id. Summary judgment is appropriate if the nonmoving party fails
to meet this burden. Id.{¶11} As noted above, Dickson argued in his summary judgment motion that appellant’s
legal malpractice claim was barred by the applicable one-year statute of limitations and that
appellant failed to establish damages. The trial court granted Dickson’s motion for summary
judgment, concluding that there was no genuine issue as to any material fact. The trial court did
not, however, specify whether its determination was based on the statute of limitations, the issue
of damages, or both.
B. Statute of Limitations
{¶12} Appellant filed her original complaint on August 20, 2015. She refiled her
complaint in the instant matter on February 3, 2017.
The statute of limitations for a legal malpractice claim is one year after the cause
of action accrued. R.C. 2305.11(A). The cause of action accrues when there is
a cognizable event by which the plaintiff discovers or should have discovered the
injury giving rise to a claim and 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 terminates, whichever occurs later. Zimmie v. Calfee,
Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus.
Fourtounis v. Verginis, 8th Dist. Cuyahoga No. 105349, 2017-Ohio-8577, ¶ 16.
{¶13} In his motion for summary judgment, Dickson argued that appellant’s legal
malpractice claim was time-barred because (1) a “cognizable event” occurred more than one year
before her original complaint was filed, and (2) Dickson filed a motion to withdraw as counsel
and appellant retained new counsel more than one year before she filed her original complaint.
{¶14} In her brief in opposition, appellant argued that the statute of limitations should
have been extended because (1) Dickson filed a motion to withdraw as appellant’s counsel on
March 31, 2014, which the trial court granted on September 9, 2014; (2) on December 5, 2014,
she discovered that Dickson continued working on the nursing home negligence case after she
fired him on March 21, 2014, and that Dickson defrauded the estate out of $55,000; and (3) in
August and September 2014, she learned that Dickson manipulated the nursing home negligence
lawsuit and altered the outcome of the case. Appellant further asserted that she did not discover
the information in the trial court’s September 9, 2014 judgment entry in CV-11-766580 until
May 2017. The trial court’s judgment entry, addressing Dickson’s motions to intervene and to
withdraw as appellant’s counsel, provides, in relevant part:
The stipulation for dismissal and judgment entry, filed on 1/11/2013, in the instant
action states that “the attorneys for the respective parties, do hereby stipulate the
within case has been settled, to be dismissed with prejudice at defendant’s cost, at
a sum approved by both parties’.” The stipulation for dismissal was an
unconditional dismissal[.] It did not state that this court shall retain jurisdiction
over any and all post dismissal settlement issues and dispute. The stipulation for
dismissal dated January 11, 2013, dismisses the case with prejudice, without any
further filings as to the dismissal or settlement agreement in the instant action.
Therefore, this court does not have jurisdiction to entertain [Dickson’s] motion to
intervene in order to assert claim for unpaid attorney’s fees and costs.
Finally, appellant suggested that after she fired Dickson, he purposefully withheld her case files
and was uncooperative, aggressive, verbally abusive, and disrespectful towards her to ensure that
the statute of limitations expired.
{¶15} After reviewing the record, we find that appellant’s legal malpractice claim falls
outside the one-year statute of limitations under both the “cognizable event” test and the
termination of the attorney-client relationship test.
1. Cognizable Event
{¶16} In his motion for summary judgment, Dickson argued that appellant’s legal
malpractice claim was time-barred because a “cognizable event” occurred on January 11, 2013,
when appellant was dissatisfied with Dickson’s representation and the settlement he obtained.
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 (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, 43
Ohio St.3d at 58, 538 N.E.2d 398]; Asente at ¶ 14; see also [Krzywicki v. Gay, 8th
Dist. 8th Dist. Cuyahoga No. 105039, 2017-Ohio-5584, ¶ 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.
Socha v. Weiss, 8th Dist. Cuyahoga No. 105468, 2017-Ohio-7610, ¶ 13.
{¶17} In her complaint for legal malpractice, appellant raises the following allegations
against Dickson: (1) Dickson repeatedly withheld material information from her that obstructed
her ability to participate in the case; (2) Dickson refused to provide her with records belonging to
her mother in February 2014; (3) Dickson conducted himself in a manner that gave appellant the
impression that he would only complete tasks that he wanted to complete, rather than tasks that
appellant wanted him to complete; (4) Dickson yelled at appellant and directed profanities at her
in order to intimidate her, impede her participation in the case, reduce his own workload, and
obtain a settlement that was favorable to him, rather than appellant; (5) Dickson failed to follow
appellant’s explicit instructions regarding settlement on January 10, 2013; (6) Dickson dismissed
the case with prejudice without appellant’s knowledge or approval; (7) Dickson failed to inform
appellant about material events related to the settlement; (8) Dickson failed to memorialize the
settlement agreement in a timely fashion; (9) Dickson deliberately delayed settlement to obtain a
settlement that was favorable to him; and (10) Dickson’s conduct during the representation and
in settlement negotiations fell below the ordinary standard of care.
{¶18} The allegations in appellant’s complaint clearly indicate that a “cognizable event”
alerting appellant of a potential problem or that Dickson committed an improper act in his
representation occurred as early as January 10, 2013, when the nursing home negligence case was
settled. In her complaint, appellant explains that on or about January 10, 2013, when Dickson
presented a settlement document to her,
errors were discovered in the document few minutes after signing. Among other
things, the document was discovered to contain erroneous dates that extended
settlement payments deep into the future, and which Dickson knew would
materially impact [appellant’s] willingness to enter into the settlement. Dickson
showed little regard for [appellant’s] concerns[.]
Complaint at ¶ 12. This assertion demonstrates that appellant knew, or should have known, that
a questionable legal practice may have occurred in January 2013.
{¶19} In her complaint, appellant goes on to allege that she did not know the “full extent”
of Dickson’s improper conduct until December 2014 when he turned over her case files to
appellant’s new counsel. Complaint at ¶ 15. As noted above, there is no requirement that a
plaintiff know all of the relevant facts or the full extent of his or her injury in order for there to be
a cognizable event triggering the statute of limitations. Socha, 8th Dist. Cuyahoga No. 105468,
2017-Ohio-7610, at ¶ 13, citing Zimmie, 43 Ohio St.3d at 58, 538 N.E.2d 398. In this case,
even if appellant did not know all of the relevant facts or the full extent of her injuries until she
received her case files from Dickson, the allegations in her complaint clearly demonstrate that
she was “on notice” of Dickson’s allegedly questionable legal practices in January 2013. 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 the legal malpractice claim did not begin to run until
attorney returned client’s legal file). Accordingly, appellant’s subsequent discoveries did not
toll the statute of limitations.
{¶20} The evidence that Dickson submitted in support of his motion for summary
judgment supported his argument that a “cognizable event” occurred, putting appellant on notice,
more than one year before she filed her original complaint in August 2015. First, Dickson
submitted a copy of a November 5, 2013 letter in which appellant requested that he provide
various information and documentation to her, and asserted that she would “notify the Bar
Association” if Dickson failed to provide the information requested. Second, Dickson
submitted a copy of the grievance that appellant filed against him with the Cleveland
Metropolitan Bar Association on March 12, 2014. Third, Dickson submitted a copy of a June 2,
2014 letter that appellant’s new counsel wrote to the Cleveland Metropolitan Bar Association.
In this letter, appellant’s new attorney asserted that appellant retained him on March 27, 2014,
and that appellant “came to [him] stating that [Dickson] had not yet obtained the settlement funds
and refused to discuss the status of the [M]edicare lien with her.” Counsel further stated that
Dickson failed to provide appellant with information about the Medicare lien, Dickson’s fees,
and the litigation expenses that appellant advanced to Dickson. These documents demonstrate
that a “cognizable event” alerted, or should have alerted appellant, that a questionable legal
practice may have occurred more than one-year before appellant filed her original complaint in
August 2015.
{¶21} Based on the foregoing analysis, we find that appellant filed her original legal
malpractice complaint more than one year after a “cognizable event” occurred.
2. Termination of the Attorney-Client Relationship
{¶22} Dickson went on to argue in his summary judgment motion that appellant’s legal
malpractice complaint was time-barred because he moved to withdraw as counsel and appellant
retained new counsel more than one year before she filed the original complaint in August 2015.
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 v. Smith, 38 Ohio St.3d 385, 388, 528 N.E.2d 941(1988).] 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, L.L.P., 6th Dist. Lucas No. L-04-1138, 2005-Ohio-2105, ¶ 43.
Accelerated Sys. Integration, Inc. v. Ritzler, Coughlin & Swansinger, Ltd., 8th Dist. Cuyahoga
No. 97481, 2012-Ohio-3803, ¶ 43.
{¶23} “Generally, the attorney-client relationship is consensual, subject to termination by
acts of either party.” Columbus Credit Co. v. Evans, 82 Ohio App.3d 798, 804, 613 N.E.2d 671(10th Dist.1992). “A client may terminate the relationship at any time.” Id. In order to
determine the date of the termination of the attorney-client relationship, the parties’ actions must
be considered. Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 9.
{¶24} In the instant matter, appellant’s complaint alleged that Dickson began representing
her “not later than July 16, 2012[.]” Complaint at ¶ 8. In her brief in opposition to Dickson’s
summary judgment motion, appellant asserted that she fired Dickson on March 21, 2014.
{¶25} In support of his motion for summary judgment, Dickson submitted a letter that
appellant wrote to him on March 21, 2014. Therein, appellant stated, “You and your Associates
are terminated from representing the Estate of Justyna Kinasz and Myself, regarding the
Settlement of the Harborside Case and any Probate matters.” After receiving this letter,
Dickson filed a motion to withdraw as counsel on March 31, 2014.
{¶26} We find that this constitutes clear, unequivocal evidence of appellant’s termination
of the attorney-client relationship. The language of appellant’s March 21, 2014 letter was
patently inconsistent with a continued attorney-client relationship between appellant and
Dickson. Accordingly, the question of when the attorney-client relationship between appellant
and Dickson was terminated was properly decided as a matter of law. See Steindler, 8th Dist.
Cuyahoga No. 86852, 2006-Ohio-4097, at ¶ 11, 15.
{¶27} Finally, we note that appellant asserted in her brief in opposition that on December
5, 2014, she discovered that Dickson had continued working on the nursing home negligence
case after she fired him on March 21, 2014. She did not, however, allege that Dickson
continued to do any work for her, or that he provided any legal counsel to her relating to the
nursing home negligence case at any time after the case was settled in January 2013 or after she
fired Dickson.
{¶28} Based on the foregoing analysis, we find that appellant filed her original legal
malpractice complaint more than one year after the attorney-client relationship terminated.
Accordingly, appellant’s sole assignment of error is overruled.
{¶29} Based on our determination that appellant’s claim was barred by the one-year
statute of limitations, we need not consider, as an alternative basis for granting summary
judgment in favor of Dickson, whether appellant failed to establish damages proximately caused
by Dickson’s alleged breach of his professional duty arising from the attorney-client relationship.
III. Conclusion
{¶30} Viewing the evidence in a light most favorable to appellant, as we must, we find
that appellant failed to demonstrate the existence of a genuine issue of material fact in order to
defeat Dickson’s motion for summary judgment, and that reasonable minds can only conclude
that appellant’s legal malpractice claim was time-barred under both the “cognizable event” and
the termination of the attorney-client relationship tests. Accordingly, the trial court properly
granted summary judgment in favor of Dickson.
{¶31} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR