[Cite as Bayus v. Chaney, 2013-Ohio-5269.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
GERALD BAYUS, JR., : OPINION
Plaintiff-Appellant, : CASE NO. 2013-T-0027 - vs - :
JOHN CHANEY, III, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV 1107.
Judgment: Affirmed.
Kevin J.M. Senich, Kevin J.M. Senich, L.L.C., 4438 Pearl Road, Cleveland, OH 44109-4225 (For Plaintiff-Appellant).
Cheryl D. Atwell and Holly Marie Wilson, Reminger Co., LPA, 101 West Prospect Avenue, Suite 1400, Cleveland, OH 44115 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Gerald Bayus, Jr., appeals from the judgment of the Trumbull
County Court of Common Pleas granting summary judgment to appellee, John Chaney,
III. At issue on appeal is whether the trial court erred in concluding, as a matter of law,
appellant’s complaint for legal malpractice was time-barred by operation of R.C.
2305.11(A). For the reasons discussed below, we affirm. {¶2} In 2007, appellant retained Attorney William Roux to advise him regarding
a legal separation from his wife. Appellee subsequently became involved in the
separation matter; the parties do not dispute appellee was, at least in part, representing
appellant at the time appellant and his wife entered a separation agreement in July
2007. In September 2007, a hearing was held relating to the separation; appellant was
present with Attorney Roux and wife was present with her counsel. The trial court
subsequently entered a decree of legal separation, incorporating the separation
agreement which included a shared parenting agreement.
{¶3} In February 2008, wife moved to terminate the shared parenting
agreement, which appellant, via appellee, opposed. Later, in September 2008, wife
filed a complaint for divorce. In December 2008, appellant, through appellee, filed a
motion to vacate the decree of legal separation. Appellant’s motion was premised upon
his belief that the separation agreement was a global settlement of all marital issues
and, by moving to modify custody, his wife was violating the agreement. And, if the
modification was permitted, appellant claimed the remaining aspects of the agreement,
including the resolution of property and spousal support, must be vacated. The court
denied the motion in July 2009. The court determined that, regardless of the
agreement, the trial court retained jurisdiction to modify custody as a matter of law. The
remaining aspects of the agreement, however, were non-modifiable. No appeal was
taken from this judgment. And, in August 2009, wife ultimately dismissed the complaint
for divorce and the parenting order was modified by agreement of the parties.
{¶4} On May 18, 2010, appellee sent appellant a letter regarding his ongoing
representation for the purposes of enforcing appellant’s parenting time. On May 28,
2 2010, appellant responded to the letter and terminated appellee’s representation. On
May 23, 2011, appellant filed a complaint alleging legal malpractice. Appellant later,
through new counsel, filed an amended complaint asserting the same cause of action.
{¶5} In support of the amended complaint, appellant alleged appellee breached
his professional duties by failing to valuate the marital estate; failing to properly prepare
the case for trial; and wrongfully advising appellant to settle his legal separation action
against his best interests. Appellee answered the complaint, denying the allegations
and asserting the cause was barred by the applicable statute of limitations.
{¶6} Appellee subsequently filed a motion for summary judgment in which he
alleged the latest date the action could have accrued was March of 2009. Appellee
asserted that the cognizable event triggering the alleged malpractice was when
appellant became actually aware that the separation agreement, in which he waived his
interest in wife’s retirement benefits, was non-modifiable. Appellee asserted appellant
had actual knowledge of the waiver of his interests in wife’s retirement at the time he
waived them in July 2007. And, even if appellant was unaware of the waiver at the time
he agreed to it, appellee argued appellant was clearly aware of the waiver when he
signed a pre-trial statement, in March 2009, acknowledging the waiver.
{¶7} Appellant filed a memorandum in opposition to appellee’s motion.
Appellant argued that, because appellee’s representation was related to the domestic
relations matter commencing with the separation agreement and continuous through
May 28, 2010, the cause of action accrued when appellant terminated their professional
relationship.
3 {¶8} On February 22, 2013, the trial court granted summary judgment in
appellee’s favor. In support, the court concluded the complaint was filed outside the
one-year statute-of-limitations period. The court reasoned that the termination of the
attorney-client relationship was inconsequential to the accrual date because the
termination date had no specific bearing on the facts alleged as a basis for appellant’s
cause of action. Appellant timely appealed and assigns the following error for our
review:
{¶9} “The trial court erred in granting defendant-appellee’s, John Chaney, III’s,
motion for summary judgment based upon its opinion plaintiff-appellant’s legal
malpractice action was barred by operation of R.C. 2305.11(A) where defendant-
appellee had undertaken to represent defendant-appellant [sic] in both a legal
separation action and in post-decree issues related to and arising from that legal
separation, had not declined to further represent defendant-appellant [sic] on such
related issues, and was discharged by defendant-appellant [sic] within one year prior to
the defendant-appellant’s [sic] complaint.”
{¶10} Summary judgment is a procedural tool that terminates litigation and thus
should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 66, 1993-Ohio-195, (1993). Keeping this in mind, an award of summary judgment is
proper where (1) there is no genuine issue of material fact remaining to be litigated; (2)
the movant 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 the
evidence in the non-moving party’s favor, that conclusion favors the movant. See e.g.
Civ.R. 56(C).
4 {¶11} When considering a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal
Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be resolved
in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359
(1992). In effect, a trial court is required to overrule a motion for summary judgment
where conflicting evidence exists and alternative reasonable inferences can be drawn.
Pierson v. Norfork Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-
6682, ¶36. On appeal, we review a trial court’s entry of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336 (1996).
{¶12} Pursuant to R.C. 2305.11(A), a cause of action for legal malpractice must
be brought within one year of its accrual. Under that statute, “‘an action for legal
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[Cite as Bayus v. Chaney, 2013-Ohio-5269.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
GERALD BAYUS, JR., : OPINION
Plaintiff-Appellant, : CASE NO. 2013-T-0027 - vs - :
JOHN CHANEY, III, :
Defendant-Appellee. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV 1107.
Judgment: Affirmed.
Kevin J.M. Senich, Kevin J.M. Senich, L.L.C., 4438 Pearl Road, Cleveland, OH 44109-4225 (For Plaintiff-Appellant).
Cheryl D. Atwell and Holly Marie Wilson, Reminger Co., LPA, 101 West Prospect Avenue, Suite 1400, Cleveland, OH 44115 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Gerald Bayus, Jr., appeals from the judgment of the Trumbull
County Court of Common Pleas granting summary judgment to appellee, John Chaney,
III. At issue on appeal is whether the trial court erred in concluding, as a matter of law,
appellant’s complaint for legal malpractice was time-barred by operation of R.C.
2305.11(A). For the reasons discussed below, we affirm. {¶2} In 2007, appellant retained Attorney William Roux to advise him regarding
a legal separation from his wife. Appellee subsequently became involved in the
separation matter; the parties do not dispute appellee was, at least in part, representing
appellant at the time appellant and his wife entered a separation agreement in July
2007. In September 2007, a hearing was held relating to the separation; appellant was
present with Attorney Roux and wife was present with her counsel. The trial court
subsequently entered a decree of legal separation, incorporating the separation
agreement which included a shared parenting agreement.
{¶3} In February 2008, wife moved to terminate the shared parenting
agreement, which appellant, via appellee, opposed. Later, in September 2008, wife
filed a complaint for divorce. In December 2008, appellant, through appellee, filed a
motion to vacate the decree of legal separation. Appellant’s motion was premised upon
his belief that the separation agreement was a global settlement of all marital issues
and, by moving to modify custody, his wife was violating the agreement. And, if the
modification was permitted, appellant claimed the remaining aspects of the agreement,
including the resolution of property and spousal support, must be vacated. The court
denied the motion in July 2009. The court determined that, regardless of the
agreement, the trial court retained jurisdiction to modify custody as a matter of law. The
remaining aspects of the agreement, however, were non-modifiable. No appeal was
taken from this judgment. And, in August 2009, wife ultimately dismissed the complaint
for divorce and the parenting order was modified by agreement of the parties.
{¶4} On May 18, 2010, appellee sent appellant a letter regarding his ongoing
representation for the purposes of enforcing appellant’s parenting time. On May 28,
2 2010, appellant responded to the letter and terminated appellee’s representation. On
May 23, 2011, appellant filed a complaint alleging legal malpractice. Appellant later,
through new counsel, filed an amended complaint asserting the same cause of action.
{¶5} In support of the amended complaint, appellant alleged appellee breached
his professional duties by failing to valuate the marital estate; failing to properly prepare
the case for trial; and wrongfully advising appellant to settle his legal separation action
against his best interests. Appellee answered the complaint, denying the allegations
and asserting the cause was barred by the applicable statute of limitations.
{¶6} Appellee subsequently filed a motion for summary judgment in which he
alleged the latest date the action could have accrued was March of 2009. Appellee
asserted that the cognizable event triggering the alleged malpractice was when
appellant became actually aware that the separation agreement, in which he waived his
interest in wife’s retirement benefits, was non-modifiable. Appellee asserted appellant
had actual knowledge of the waiver of his interests in wife’s retirement at the time he
waived them in July 2007. And, even if appellant was unaware of the waiver at the time
he agreed to it, appellee argued appellant was clearly aware of the waiver when he
signed a pre-trial statement, in March 2009, acknowledging the waiver.
{¶7} Appellant filed a memorandum in opposition to appellee’s motion.
Appellant argued that, because appellee’s representation was related to the domestic
relations matter commencing with the separation agreement and continuous through
May 28, 2010, the cause of action accrued when appellant terminated their professional
relationship.
3 {¶8} On February 22, 2013, the trial court granted summary judgment in
appellee’s favor. In support, the court concluded the complaint was filed outside the
one-year statute-of-limitations period. The court reasoned that the termination of the
attorney-client relationship was inconsequential to the accrual date because the
termination date had no specific bearing on the facts alleged as a basis for appellant’s
cause of action. Appellant timely appealed and assigns the following error for our
review:
{¶9} “The trial court erred in granting defendant-appellee’s, John Chaney, III’s,
motion for summary judgment based upon its opinion plaintiff-appellant’s legal
malpractice action was barred by operation of R.C. 2305.11(A) where defendant-
appellee had undertaken to represent defendant-appellant [sic] in both a legal
separation action and in post-decree issues related to and arising from that legal
separation, had not declined to further represent defendant-appellant [sic] on such
related issues, and was discharged by defendant-appellant [sic] within one year prior to
the defendant-appellant’s [sic] complaint.”
{¶10} Summary judgment is a procedural tool that terminates litigation and thus
should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d
64, 66, 1993-Ohio-195, (1993). Keeping this in mind, an award of summary judgment is
proper where (1) there is no genuine issue of material fact remaining to be litigated; (2)
the movant 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 the
evidence in the non-moving party’s favor, that conclusion favors the movant. See e.g.
Civ.R. 56(C).
4 {¶11} When considering a motion for summary judgment, the trial court may not
weigh the evidence or select among reasonable inferences. Dupler v. Mansfield Journal
Co., 64 Ohio St.2d 116, 121 (1980). Rather, all doubts and questions must be resolved
in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359
(1992). In effect, a trial court is required to overrule a motion for summary judgment
where conflicting evidence exists and alternative reasonable inferences can be drawn.
Pierson v. Norfork Southern Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-
6682, ¶36. On appeal, we review a trial court’s entry of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336 (1996).
{¶12} Pursuant to R.C. 2305.11(A), a cause of action for legal malpractice must
be brought within one year of its accrual. Under that statute, “‘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 * * * or when the attorney-client relationship
for that transaction or undertaking terminates, whichever occurs later.’” Smith v. Conley,
109 Ohio St.3d 141, 2006-Ohio-2035, ¶4 quoting Zimmie v. Calfee, Halter & Griswold,
43 Ohio St.3d 54 (1989), syllabus; See also Omni Food Fashion, Inc. v. Smith, 38 Ohio
St.3d 385 (1988).
{¶13} Appellant claims the legal separation action included ongoing, post-decree
custody representation and, as a result, the “transaction or undertaking” did not cease
until appellee’s representation was terminated. We do not agree.
{¶14} Although the record indicates appellee continued representing appellant
on custody issues, appellant’s complaint is limited to allegations of negligence resulting
5 from the advice provided and consequences relating to the separation agreement. The
complaint does not assert appellee breached a duty of care in his ongoing
representation vis-à-vis custody of appellant’s daughter.
{¶15} The limited nature of the allegations is further confirmed by the expert
report of Attorney John Zoller. Attorney Zoller’s evaluation was confined to appellee’s
representation regarding the implications of appellee’s advice relating to the separation
agreement; in particular, Attorney Zoller asserted appellee failed to advise appellant
that, while custody arrangements are always modifiable, the property division to which
appellant agreed was not modifiable. Thus, Attorney Zoller opined, appellant entered
the agreement with the misunderstanding that, by surrendering his economic interests,
he would, into perpetuity, maintain the custody rights for which he bargained.
{¶16} Appellant became aware of the purported breaches of appellee’s
professional duty, at the latest, when the trial court denied his motion for relief from
judgment. In that entry, the trial court noted that the separation agreement included an
integration clause stating “the parties confirm the Separation Agreement is complete
and final resolution of all issues between them, and understand they may not seek to
avoid the obligations herein in any later legal proceeding.” In light of this clause, the
division of marital property, liabilities, and spousal support were final and not subject to
change. The trial court determined, however, that, notwithstanding the integration
clause, “[t]he issue of parental rights is always within the continuing jurisdiction of the
Court * * *.” This judgment was entered on July 28, 2009.
{¶17} Given the foregoing entry, appellant had actual knowledge of the alleged
deficiencies in appellee’s representation in July 2009. And even though appellee
6 continued to represent appellant on issues relating to child custody subsequent to the
July 2009 judgment, his complaint does not allege appellee was negligent in this
capacity. Because appellant’s negligence claim stems exclusively from the purported
deficiencies of which appellant had notice in July 2009, and there are no allegations of
negligence in his complaint relating to appellee’s ongoing representation pertaining to
other custody issues, we hold appellant’s cause of action accrued, at the latest, on July
28, 2009. Pursuant to R.C. 2305.11, appellant’s complaint, filed on May 23, 2011, is
time-barred and appellee is therefore entitled judgment as a matter of law.
{¶18} Appellant’s sole assignment of error lacks merit.
{¶19} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.