Cain Ridge Beef Farm, L.L.C. v. Stubbins, Watson, Bryan & Witucky, LPA ( 2024 )

[Cite as Cain Ridge Beef Farm, L.L.C. v. Stubbins, Watson, Bryan & Witucky, LPA, 2024-Ohio-359.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
CAIN RIDGE BEEF FARM, LLC et al.,
Plaintiffs-Appellants,
v.
STUBBINS, WATSON, BRYAN & WITUCKY, LPA,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 23 MO 0006
Motion to Certify a Conflict
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Overruled.
Atty. Ethan Vessels, Fields, Dehmlow & Vessels, LLC, for Plaintiffs-Appellants and
Atty. Jonathan H. Krol and Atty. Steven A. Chang, Reminger Co., LPA, for Defendant-
Appellee.
Dated: February 1, 2024
–2–
PER CURIAM.
{¶1} Appellants, Cain Ridge Beef Farm, LLC et. al, move to certify a conflict.
They contend our decision in Cain Ridge Beef Farm, LLC v. Stubbins, Watson, Bryan &
Witucky, LPA, 7th Dist. Monroe No. 23 MO 0006, 2023-Ohio-4727, conflicts with an issue
of law set forth in the Eighth District Court of Appeals’ decisions in Vassil v. Gross &
Gross, L.L.C., 8th Dist. Cuyahoga No. 94919, 2011-Ohio-1920, and Bogart v. Gutmann,
2nd Dist. Miami No. 2017-CA-27, 2018-Ohio-2331, 115 N.E.3d 711. Appellants’ motion
is overruled.
{¶2} For certification of a conflict to the Ohio Supreme Court to be proper, there
must be conflicting decisions between appellate districts on a rule of law. Whitelock v.
Gilbane Bldg. Co., 66 Ohio St.3d 594, 598-99, 613 N.E.2d 1032 (1993). “Factual
distinctions are not a basis for certification.” Kinderdine v. Mahoning Cty. Bd. of Dev.
Disabilities, 7th Dist. Mahoning No. 14 MA 0174, 2016-Ohio-7017, ¶ 4. Further, the
conflict of law must be dispositive of the case. State ex rel. Davet v. Sutula, 131 Ohio
St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, ¶ 2.
{¶3} Appellants claim the Eighth District decisions set forth a rule of law differing
from this court’s in Cain Ridge Beef, supra, where we held:
Although Appellants had not yet lost on the merits in a court of law and there
was presumably the ability to recover the withheld royalty payments, this is
not the test. The focus of the discovery rule is not when an adverse legal
decision is rendered.
* * * Under Ohio law, a party need not have an adverse judicial decision
rendered against them to start a malpractice clock.
Id. at ¶ 44-45. However, this court also emphasized that “[w]hen a cause of action for
legal malpractice accrues is not statutorily defined and it is a fact-intensive determination.”
Id. at ¶ 30.
[T]he focus is not on when the negligent act or questionable legal conduct
occurred, but on when a reasonable person should have realized an injury
may result from his attorney's conduct. The critical question is when should
Case No. 23 MO 0006
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Appellants have known they may have an injury caused by their attorney?
Zimmie, syllabus.
Id. at ¶ 34. Although we held an adverse legal decision is not required, we did not
conclude it was irrelevant as Appellants suggest. Id.
{¶4} Furthermore, in Vassil, the court applied the same cognizable event test
employed by this court, stating:
In Zimmie II, the Supreme Court held that a cognizable event is that 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.
***
Although the validity of the antenuptial agreement had been at issue for
several years * * *, the [legal malpractice] claim for relief did not accrue until
the court struck down the antenuptial agreement.
This ruling comports with earlier decisions which have held that it is not the
possibility or remote chance that there has been malpractice that causes
the claim for relief to accrue, but rather an actual adverse ruling that may
constitute the cognizable event. * * * [T]he possibility or remote chance that
malpractice has occurred does not constitute a cognizable event.
***
* * * this rule is not applied where the record demonstrates that the plaintiff
discovered or should have discovered that his injury was related to his
attorney's act or omission and the client is put on notice of the need to
pursue possible remedies against the attorney.
Vassil, supra, at ¶ 17, ¶ 23-25. While we may not agree with the application of the
cognizable event test by the Vassil Court, it nevertheless applied the same standard.
{¶5} In Bogart v. Gutmann, supra, the Eighth District concluded the malpractice
claim failed for two reasons. It concluded the cause of action was not ripe since the
plaintiff filed suit too soon. The court opined that because the underlying defendant was
insolvent, it may not appear and defend a complaint if one were filed by Bogart, resulting
in a default judgment. Additionally, if Bogart were to file a second lawsuit to advance the
Case No. 23 MO 0006
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unraised cause of action, the court of appeals opined the underlying defendant could fail
to raise res judicata as a defense. Id. at ¶ 16-18. In light of these facts, Bogart concluded
the malpractice claim was not ripe. Id. Whether malpractice had occurred was too
remote.
{¶6} In addition, the court of appeals found there was no evidence showing
Bogart had been damaged by his attorney’s alleged malpractice, i.e., the decision not to
file a certain claim, because the underlying defendant was insolvent. Id. at ¶ 1. Bogart
could not establish an essential element of his malpractice claim. Accordingly, the court
found this was an independent reason to affirm summary judgment. Id. at ¶ 19-20.
{¶7} The Eighth District decisions in Bogart and Vassil are factually
distinguishable. Both cases apply the same rule of law to the particular facts before them.
Because there is no conflict on an issue of law, we overrule Appellant’s motion.
JUDGE CAROL ANN ROBB
JUDGE CHERYL L. WAITE
JUDGE MARK A. HANNI
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 23 MO 0006