Guilford v. Zaner , 2023 Ohio 2098 ( 2023 )

[Cite as Guilford v. Zaner, 2023-Ohio-2098.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
BRUCE E. GUILFORD,
CASE NO. 4-22-19
PLAINTIFF-APPELLANT,
v.
LORIN ZANER, ESQ., OPINION
DEFENDANT-APPELLEE.
Appeal from Defiance County Common Pleas Court
Trial Court No. 20-CV-45121
Judgment Reversed and Cause Remanded
Date of Decision: June 26, 2023
APPEARANCES:
Larry W. Zukerman and Brian Murray for Appellant
David R. Hudson and Taylor Knight for Appellee
Case No. 4-22-19
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Bruce E. Guilford (“Guilford”) appeals the judgment
of the Defiance County Court of Common Pleas, alleging that the trial court erred
in granting the Civ.R. 12(C) motion for judgment on the pleadings filed by
defendant-appellee Lorin Zaner (“Zaner”). For the reasons set forth below, the
judgment of the trial court is reversed.
Facts and Procedural History
{¶2} On July 25, 2018, Guilford was indicted on four criminal charges,
including rape, sexual battery, abduction, and gross sexual imposition. He had
previously retained Zaner to represent him in this matter. On March 11, 2019, Zaner
advised Guilford to accept a plea agreement. On March 12, 2019, Guilford pled
guilty to one count of gross sexual imposition. Shortly after this change of plea
hearing, Guilford retained different attorneys. On April 17, 2019, Zaner filed a
motion to withdraw as defense counsel. The trial court granted this motion on April
17, 2019.1 Guilford then filed several motions, seeking to withdraw his guilty plea.
These motions were ultimately successful.
1
On appeal, the parties do not raise the issue of the statute of limitations. However, we note that “[a]n 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 against the attorney or when the
attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later.”
Starner v. Onda, 10th Dist. Franklin No. 22AP-599, 2023-Ohio-1955, ¶ 25, quoting Zimmie v. Calfee, Halter,
& Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), at the syllabus. See also Omni-Food & Fashion, Inc.
v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941 (1988). The complaint indicates that Zaner withdrew as defense
counsel for Guilford on April 17, 2019. The complaint instituting this action was filed on May 20, 2019.
The face of the complaint does not indicate when Guilford may have become aware of the injury alleged in
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{¶3} On May 20, 2020, Guilford filed a complaint that raised legal
malpractice claims against Zaner. He alleged that Zaner incorrectly informed him
that the plea agreement “includ[ed] ‘a guarantee of no jail time.’” (Doc. 1). He
further alleged that Zaner breached his professional duty by “failing to discover,
compel, and/or obtain previously recorded statements of the complaining witness
and/or the complaining witness’s significant other * * *.” (Doc. 1).
{¶4} On May 12, 2022, Zaner filed a Civ.R. 12(C) motion for judgment on
the pleadings, arguing “no facts to support any breach of duty exist[ed] within the
four corners of the Complaint * * *.” (Doc. 11). In particular, Zaner argued that
duty to disclose exculpatory evidence rested with the prosecutor and that he could
not be held to breach a duty for failing to seek such evidence. On December 6,
2020, the trial court granted Zaner’s motion for judgment on the pleadings.
Assignment of Error
{¶5} Guilford then filed his notice of appeal on December 28, 2022. On
appeal, he raises the following assignment of error:
The trial court erred to the prejudice of Appellant by granting
Appellee’s Motion for Judgment on the Pleadings (Journal
Number 20) and dismissing Appellant’s Complaint because
construing the material allegations in Appellant’s Complaint,
with all reasonable inferences to be drawn therefrom in favor of
Appellant, Appellant was able to prove facts in support of his
claim that would entitle him to relief—specifically, that Appellee
breached a legal duty owed to Appellant—and, therefore,
his complaint. But since this issue of the statute of limitations was not raised on appeal, we make no
determination on this issue in this opinion.
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Case No. 4-22-19
material factual issues exist and Appellee was not entitled to
Judgment on the Pleadings.
Legal Standard
{¶6} Under Civ.R. 12(C), “[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.”
Civ.R. 12(C). “In determining whether to grant a motion for judgment on the
pleadings, a court must examine solely the pleadings.” McComb v. Suburban
Natural Gas Co., 85 Ohio App.3d 397, 400, 619 N.E.2d 1109, 1111 (3d Dist.). “If
the trial court ‘finds beyond doubt, that the plaintiff could prove no set of facts in
support of his claim that would entitle him to relief,’ then the grant of the motion
for judgment on the pleadings is proper.” Smith v. Wal-Mart Stores East, LP, 2019-
Ohio-5037, 150 N.E.3d 499, ¶ 8 (3d Dist.), quoting Reznickcheck v. North Cent.
Correctional Institution, 3d Dist. Marion No. 9-07-22, 2007-Ohio-6425, ¶ 12.
{¶7} When a Civ.R. 12(C) motion is being considered, “the nonmoving party
is entitled to have all material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, construed in his or her favor.” Klever v. Sullivan,
3d Dist. Crawford No. 3-07-33, 2008-Ohio-1784, ¶ 4, quoting Hawthorne v. Migoni,
5th Dist. Tuscarawas No. 2003 AP 070054, 2004-Ohio-378, ¶ 9. On appeal, “Civ.R.
12(C) * * * presents only questions of law * * *.” Peterson v. Teodosio, 34 Ohio
St.2d 161, 297 N.E.2d 113 (1973). Thus, appellate courts “review a trial court’s
decision on a Civ.R. 12(C) motion for judgment on the pleadings under a de novo
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standard.” Provens v. Woodridge Place Apartments, 10th Dist. Franklin No. 22AP-
760, 2023-Ohio-1388, ¶ 8.
{¶8} In considering a Civ.R. 12(C) motion, “the principles of notice pleading
apply * * *.” David v. Matter, 2017-Ohio-7351, 96 N.E.3d 1012, ¶ 8 (6th Dist.).
See Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207,
¶ 19 (applying the requirements of Civ.R. 8(A) and 9(C) to a Civ.R. 12(C) motion).
“This means that outside of a few specific circumstances, such as claims involving
fraud or mistake, see Civ.R. 9(B), a party will not be expected to plead a claim with
particularity.” Maternal Grandmother v. Hamilton County Department of Job and
Family Services, 167 Ohio St.3d 390, 2021-Ohio-4096, 193 N.E.3d 536, ¶ 10.
{¶9} “Instead, ‘[a] pleading that sets forth a claim for relief’ needs to include
only ‘(1) a short and plain statement of the claim showing that the party is entitled
to relief, and (2) a demand for judgment for the relief to which the party claims to
be entitled.’” Ohio Neighborhood Preservation Association v. Alaura, 10th Dist.
Franklin No. 22AP-347, 2023-Ohio-1281, ¶ 10, quoting Civ.R. 8(A). The purpose
of the notice pleading requirements is “to give the defendant fair notice of the
plaintiff’s claim and the grounds upon which it is based.” Patrick v. Wertman, 113
Ohio App.3d 713, 717, 681 N.E.2d 1385, 1387 (3d Dist. 1996), quoting Kelley v. E.
Cleveland, 8th Dist. Cuyahoga No. 44448, 1982 WL 5979, *2 (Oct. 28, 1982). A
Civ.R. 12(C) motion should not be granted simply if it appears “doubt[ful] that
plaintiff will win on the merits.” Patrick at 716.
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{¶10} “To establish a cause of action for legal malpractice, a plaintiff must
show ‘the existence of an attorney-client relationship giving rise to a duty, a breach
of that duty, and damages proximately caused by that breach.’” Ratonel v. Roetzel
& Andress, L.P.A., 147 Ohio St.3d 485, 2016-Ohio-8013, 67 N.E.3d 775, ¶ 6,
quoting New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-
Ohio-2266, 950 N.E.2d 157, ¶ 25.
“The duty of an attorney to his client is to ‘* * * exercise the
knowledge, skill, and ability ordinarily possessed and exercised by
members of the legal profession similarly situated, and to be
ordinarily and reasonably diligent, careful, and prudent in discharging
the duties he has assumed.’” Yates v. Brown, 185 Ohio App.3d 742,
2010-Ohio-35, [925 N.E.2d 669,] ¶ 17 (9th Dist.), quoting Palmer v.
Westmeyer, 48 Ohio App.3d 296, 298[, 549 N.E.2d 1202] (6th
Dist.1988), quoting 67 Ohio Jurisprudence 3d, Malpractice, Section
9, at 16 (1986).
Phillips v. Wilkinson, 10th Dist. Franklin No. 17AP-231, 2017-Ohio-8505, ¶ 14.
See State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132, ¶ 127 (“As a
general matter, trial ‘counsel has a duty to make reasonable investigations * * *.’”),
quoting State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373, 383 (1989). See
also Merkosky v. Wilson, 11th Dist. Lake No. 2008-L-017, 2008-Ohio-3252, ¶ 6.
Legal Analysis
{¶11} In his Civ.R. 12(C) motion, Zaner’s basic contention was that
Guilford’s complaint contained “no facts to support any breach of duty * * *.” (Doc.
11). He noted that “[e]ach of Plaintiff’s alleged breaches of duty relate[d] to his
allegation that Zaner failed to obtain potentially exculpatory information * * *.”
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(Doc. 15). Zaner argued that, “[u]nder Brady v. Maryland, the duty to disclose
potentially exculpatory evidence rested with the prosecutor.” (Doc. 11), citing
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1197-1198, 10 L.Ed.2d 215 (1963).
Thus, he asserts that he “had no duty to pursue the evidence” identified by Guilford
in his complaint as “this duty rest[ed] solely with the prosecutor * * *.” (Doc. 11).
{¶12} However, we find this argument to be unpersuasive. Regardless of
what duties Brady imposed upon the prosecutor, defense counsel still had a duty to
be reasonably diligent in investigating the facts and evidence in Guilford’s case.
Thus, contrary to his assertions, Zaner did have a legal duty under the law that could
be breached with respect to his handling of the evidence in Guilford’s case. In his
complaint, Guilford alleged that Zaner breached this duty and alleged facts related
to this purported breach. Thus, considering the allegations as true as required by
the standard for Civ.R. 12(C) motions, Guilford has set forth what is necessary to
raise legal malpractice claims in his complaint.
{¶13} In conclusion, having examined all of the material allegations in the
complaint, we cannot conclude, beyond doubt, that Guilford could prove no set of
facts in support of his claim that would entitle him to relief. We specifically do not
rule as to whether his claims will ultimately prove to have merit. However, his
complaint can withstand the challenge brought pursuant to Civ.R. 12(C). Thus, the
trial court erred in granting judgment on the pleadings in this case. Accordingly,
Guilford’s sole assignment of error is sustained.
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Conclusion
{¶14} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Defiance County Court of Common Pleas
is reversed. This cause of action is remanded to the trial court for further
proceedings that are consistent with this opinion.
Judgment Reversed
And Cause Remanded
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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