Walling v. Wagner

[Cite as Walling v. Wagner, 2016-Ohio-5444.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
LARRY D. WALLING :
:
Plaintiff-Appellant : C.A. CASE NO. 26807
:
v. : T.C. NO. 14CV6596
:
H. CHARLES WAGNER : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the ___19th___ day of _____August_____, 2016.
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LARRY D. WALLING, Federal Correction Complex, Inmate #69415-061, P. O. Box 1033,
Coleman, Florida 33521
Plaintiff-Appellant
HOLLY MARIE WILSON, Atty. Reg. No. 0074291 and JULIAN EMERSON, Atty. Reg.
No. 0088429, 101 W. Prospect Avenue, Suite 1400, Cleveland, Ohio 44115
Attorneys for Defendant-Appellee
.............
FROELICH, J.
{¶ 1} Larry Dwayne Walling appeals, pro se, from a judgment of the Montgomery
County Court of Common Pleas, which granted attorney H. Charles Wagner’s Civ.R.
12(C) Motion for Judgment on the Pleadings on Walling’s complaint for legal malpractice.
Wagner’s motion for judgment on the pleadings asserted, and the trial court found, that
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Walling’s claim for legal malpractice had been filed beyond the statutory limitations period.
For the following reasons, the judgment of the trial court will be affirmed.
I. Civ.R. 12(C) Motion for Judgment on the Pleadings
{¶ 2} “In the determination of a Civ.R. 12(C) motion, the nonmoving party is entitled
to have all of the material allegations in the pleading[s], with all reasonable inferences to
be drawn therefrom, construed in his favor as true.” American Tax Funding L.L.C. v.
Miamisburg, 2d Dist. Montgomery No. 24494, 2011-Ohio-4161, ¶ 31. With the
allegations so construed, entry of judgment on the pleadings pursuant to Civ.R. 12(C) is
only appropriate where the court finds, beyond doubt, that the plaintiff could prove no set
of facts in support of the claim that would entitle the plaintiff to relief. Hester v. Dwivedi,
89 Ohio St. 3d 575, 577-78, 733 N.E.2d 1161 (2000), citing State ex rel. Midwest Pride IV,
Inc. v. Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931 (1996); Portfolio Recovery
Assocs., L.L.C. v. VanLeeuwen, 2d Dist. Montgomery No. 26692, 2016-Ohio-2962, ¶ 15.
{¶ 3} A motion for judgment on the pleadings is an appropriate vehicle to seek
dismissal of a cause of action, where the running of the statute of limitations is apparent
from the face of the complaint. Oskowski v. Mercy Med. Ctr., 2d Dist. Clark No. 95-CA-
88, 1996 WL 125915, *2 (Mar. 22, 1996), citing Hughes v. Robinson Memorial Portage
Cty. Hosp. 16 Ohio App. 3d 80, 474 N.E.2d 638 (11th Dist. 1984), abrogated on other
grounds in Edens v. Barberton Area Family Practice Ctr., 43 Ohio St. 3d 176, 539 N.E.2d
1124 (1989).
{¶ 4} With respect to motions made pursuant to Civ.R. 12(C), a court may consider
material incorporated into the pleadings. Tran v. State, 10th Dist. Franklin No. 09AP-587,
2009-Ohio-6784, ¶ 18, citing Victory Academy of Toledo v. Zelman, 10th Dist. Franklin
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No. 07AP-1067, 2008-Ohio-3561, ¶ 7; State ex rel. Lockard v. Wellston City School Dist.
Bd. of Edn., 2015-Ohio-2186, 35 N.E.3d 880 (4th Dist.) (“all of the documents attached
to the complaint and the answer are documents that may be properly considered” in
rendering a judgment on the pleadings under Civ. R. 12(C)). See also Boyd v.
Archdiocese of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 14.
{¶ 5} “A motion for judgment on the pleadings pursuant to Civ.R. 12(C) presents
only questions of law, and the standard of review is de novo.” Inskeep v. Burton, 2d Dist.
Champaign No. 2007 CA 11, 2008-Ohio-1982, ¶ 7, citing Dearth v. Stanley, 2d Dist.
Montgomery No. 22180, 2008-Ohio-487. See also Offill v. State Farm Fire & Cas. Co.,
2d Dist. Montgomery No. 25079, 2012-Ohio-6225, ¶ 14. De novo review requires an
“independent review of the trial court’s decision without any deference to the trial court’s
determination.” Jackson v. Internatl. Fiber, 169 Ohio App. 3d 395, 2006-Ohio-5799, 863
N.E.2d 189, ¶ 17 (2d Dist.), quoting State ex rel. AFSCME v. Taft, 156 Ohio App. 3d 37,
2004-Ohio-493, 804 N.E.2d 88, ¶ 27 (3d Dist).
II. Facts and Procedural History
{¶ 6} Walling’s claim relates to the legal representation he received in a case that
was handled in the U.S. District Court, Southern District of Ohio (Dayton). 1
{¶ 7} For reasons that are not apparent from the record and are not relevant to this
1 The facts and, to some extent, the procedural history of the case are gathered from the
complaint, the answer, and the attachments thereto, in keeping with the narrow scope of
Civ.R. 12. The documents attached to Walling’s complaint and/or Wagner’s answer in
this case include Walling’s own affidavit, copies of the dockets of the federal district court’s
proceedings related to the forfeiture of several of Walling’s vehicles and his 2011
conviction of possession of a firearm by a convicted felon, several of the filings in federal
court related to Walling’s request for return of his forfeited property, and the district court’s
decision overruling that motion.
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appeal, in January 2008, Walling was on probation. When a probation officer visited his
home on January 3, various indicia of new crimes and/or probation violations were found,
including a kilogram of cocaine, more than $50,000 in cash, titles to several vehicles, and
a firearm. Keys to a safe deposit box were also found and, when a search warrant was
obtained and executed, $32,000 in cash was found in the safe deposit box.
{¶ 8} Walling was incarcerated for nine months for his “violation of parole.” It is
unclear from the pleadings whether Wagner represented Walling in any proceedings
related to the probation violation. Beginning in February 2008, Walling “retained * * *
Wagner * * * to represent Him, after learning that [he] could be charged with a violation of
the Federal law * * *, being a convicted felony [sic] in possession of a firearm.”
{¶ 9} In April 2008, Wagner advised Walling that the Drug Enforcement Agency
would forego bringing charges against him for drug offenses if he would voluntarily forfeit
the property confiscated in the searches of his home and safe deposit box. Walling
signed the forfeiture documents, and no drug charges were filed. Walling was charged,
however, with one count of possession of a firearm by a convicted felon. The complaint
states that, while this charge was pending (around November 2010), Walling told Wagner
that he would like to “retrieve” his previously forfeited property, but that Wagner refused
to make any efforts in this regard, stating that he had done all that he could legally do.
{¶ 10} In 2011, Walling pled guilty to the firearm offense and was sentenced to 78
months of imprisonment.2
2 The appellate briefs suggest sentences of different lengths: Walling’s brief refers to an
87-month sentence, which was apparently discussed during the plea negotiations and at
the sentencing hearing; Wagner’s brief refers to a 97-month sentence. The district
court’s judgment imposes a 78-month sentence, but notes that the sentence “was
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{¶ 11} On December 11, 2012, Walling filed a pro se motion for the return of his
property (approximately $85,000 and multiple vehicles) in the federal district court. The
Government opposed the motion. On April 15, 2013, the trial court overruled the motion;
the decision and entry indicates that it was mailed to Walling, with a “courtesy copy” also
mailed to Wagner.
{¶ 12} On November 25, 2014, Walling, acting pro se, filed a complaint against
Wagner in the Montgomery County Court of Common Pleas for legal malpractice (by
committing breach of contract and breach of fiduciary duty) in failing to seek the return of
his forfeited property. Wagner filed an answer. On February 17, 2015, Wagner filed a
motion for judgment on the pleadings, in which he asserted that Walling’s claim was
barred by the one-year statute of limitations for legal malpractice claims. Walling
opposed the motion. On July 22, 2015, the trial court granted Wagner’s motion.
III. When the Statute of Limitations Began to Run
{¶ 13} On appeal, Walling raises one assignment of error in which he asserts that
the trial court erred in determining that his complaint was filed outside the statute of
limitations. Walling claims that the court “never decided when and if termination of the
professional relationship” occurred. While it is true that the court did not specify,
definitively, when the relationship had terminated, it did find that the professional
relationship ended no later than April 15, 2013, when the federal district court overruled
Walling’s pro se motion for the return of his property. Based on this conclusion, the court
found that the complaint filed on November 25, 2014, was barred by the statute of
reduced from the 87 months imposed at the time of sentencing * * * to correct an error in
the calculation of the 87 month sentence.”
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limitations.
{¶ 14} It is undisputed that the statute of limitations for a legal malpractice claim is
one year. R.C. 2305.11(A). A cause of action, no matter how it is labeled, will be
subsumed into a malpractice claim where that claim arises out of “the manner in which
the attorney represented the client.” Muir v. Hadler Real Estate Mgt. Co., 4 Ohio App. 3d
89, 90, 446 N.E.2d 820 (10th Dist.1982); Taft, Stettinius, & Hollister, L.L.P. v. Calabrese,
1st Dist. Hamilton No. C-150097, 2016-Ohio-4713, ¶ 13. Thus, Walling’s references to
Wagner’s breach of contract and breach of fiduciary duty do not change the nature of his
claim as one alleging legal malpractice.
{¶ 15} A cause of action 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.” Zimmie v. Calfee, Halter & Griswold,
43 Ohio St. 3d 54, 58, 538 N.E.2d 398 (1989). Thus, in determining whether an action
was filed within the statute of limitations, a court must determine when the client should
have known that he or she may have an injury caused by his or her attorney, and when
the attorney-client relationship terminated. “The latter of 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, 846 N.E.2d 509, ¶ 4.
{¶ 16} Walling filed a pro se motion in federal court for return of the seized property
on December 11, 2012. The common pleas court found that, at the time this motion was
filed, Walling “was by then aware, or should have been aware, of the seriousness of his
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attorney’s alleged non-action and the possible damage * * * .” Thus, if this were the latter
of the two dates, his complaint for malpractice, filed on November 25, 2014, was filed
more than one year from when the cause of action accrued and outside of the statute of
limitations.
{¶ 17} The trial court also analyzed when the attorney-client relationship had
terminated, and it found that there were two possible dates. The first was, again,
December 11, 2012. The court reasoned that the filing of a pro se motion on that date,
seeking recovery of the forfeited property, “is evidence that the attorney-client relationship
between Walling and Attorney Wagner [had] then terminated with respect to that
particular transaction or undertaking.” Alternatively, the court stated that, even if the pro
se filing was insufficient to demonstrate the prior termination of the attorney-client
relationship, the district court’s April 15, 2013, judgment dismissing Walling’s motion for
the return of the seized property “functioned to terminate the attorney-client relationship,”
because it was “a final order determining Walling’s rights with respect to the legal matter
for which he had retained Attorney Wagner.” The trial court concluded that, using either
date as the date on which the attorney-client relationship terminated, Walling’s complaint
was filed beyond the statute of limitations.
{¶ 18} We agree with the trial court that the district court’s April 2013 judgment
dismissing Walling’s motion for the return of seized property was, at the latest, the point
at which the attorney-client relationship terminated, and that Walling knew or should have
known no later than that time that he may have a claim against Wagner for failing to
pursue the return of his (Walling’s) forfeited property. There is no suggestion in the
pleadings that Walling and Wagner engaged in any professional relationship after April
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2013. Nor is there any allegation that Walling and Wagner even communicated after the
charges against Walling were resolved in 2011, at which point Wagner had already told
Walling that he (Wagner) would not make any effort to recover the forfeited property. For
these reasons, the trial court properly concluded that the cognizable event had occurred
no later than April 2013, and that Walling’s November 2014 complaint for legal
malpractice was barred by the statute of limitations.
{¶ 19} Having agreed with the trial court’s conclusion that the cognizable event
(here, the end of the attorney-client relationship) occurred no later than April 2013, we
need not address the court’s conclusion that the attorney-client relationship might have
terminated earlier, with the filing of Walling’s pro se motion in December 2012. We
recognize that a defendant who is represented by counsel may not act as co-counsel on
his own behalf. State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227,
¶ 33; United States v. Mosely, 810 F.2d 93, 97 (6th Cir.1987), citing Faretta v. California,
422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (“a person accused of a felony has
a constitutional right to be represented by counsel and to have counsel appointed for him
if he cannot afford one, or, alternatively, to represent himself in such proceedings.”
(Emphasis added in Mosely)). See also Clark v. Perez, 510 F.3d 382 (2d Cir.2008)
(“[T]here is no constitutional right to hybrid representation.”).
{¶ 20} We also recognize that, where a defendant who is represented by counsel
files a pro se motion for which defense counsel does not indicate his or her support, the
pro se motion is not proper, and the trial court may strike it from the record. State v.
Wyley, 8th Dist. Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9; State v. Davis, 10th Dist.
Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12
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{¶ 21} Nonetheless, we are reluctant to conclude that a pro se filing should be
construed as irrebuttable evidence that the attorney-client relationship has come to an
end. The filing of a pro se document is effectuated by the clerk, not the court, and such
filings are not uncommon. Many litigants who file motions or other documents on their
own behalf may not fully understand that, in the court’s view, it is not appropriate for them
to do so. Moreover, in certain situations, courts have the discretion to hear from a
represented defendant personally. See, e.g., United States v. Rivernider, __ F.3d __,
2016WL3632496, * 9, fn. 5 (2d Cir.2016); Klayman v. Luck, 8th Dist. Cuyahoga No.
91298, 2008-Ohio-5876, ¶ 18 (a civil case); State v. Kirk, 5th Dist. Delaware No. 01-CA-
A-11-058, 2002-Ohio-3584, ¶ 21 (a criminal case). To hold that a pro se filing, without
more, is proof of the termination of the attorney-client relationship is to give too much
weight and too drastic an effect to such a filing. Regardless, in this situation, Walling
was aware in April 2013, when his pro se motion was dismissed, of any potential
malpractice involving not having property returned to him.
{¶ 22} The assignment of error is overruled.
IV. Conclusion
{¶ 23} The judgment of the trial court will be affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Larry D. Walling
Holly Marie Wilson
Julian Emerson
Hon. Thomas J. Grady,
Visiting Judge