[Cite as Dervin & Assocs., Inc. v. Amer Cunningham Co., LPA, 2025-Ohio-4761.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DERVIN & ASSOCIATES, INC., Case No. 2025CA00004 fka CHRISTOPHER COX INSURANCE & INVESTMENTS, INC. Opinion and Judgment Entry
Plaintiff-Appellee Appeal from the Stark County Court of Common Pleas, Case No. 2023CV01548 -vs- Judgment: Reversed in part; Affirmed in part; AMER CUNNINGHAM CO., LPA, Final Judgment Entered ET AL., Date of Judgment Entry: October 15, 2025 Defendants-Appellants
BEFORE: Craig R. Baldwin, William B. Hoffman, David M. Gormley, Appellate Judges
APPEARANCES: Laura L. Mills, Esq., Pierce C. Walker, Esq., Mills, Mills, Fiely & Lucas, LLC, for Plaintiff-Appellee; Hamilton DeSaussure, Jr., Esq., David W. Hilkert, Esq., Stark & Knoll Co., LPA, for Defendants-Appellants OPINION
Hoffman, J.
{¶1} Defendants-appellants Amer Cunningham Co., LPA and Jack Morrison, Jr.
appeal the judgment entered following jury trial in the Stark County Common Pleas Court
awarding Plaintiff-appellee Dervin & Associates, Inc. fka Christopher Cox Insurance &
Investments, Inc. (hereinafter “the Agency”) damages of $178,500.00 on its claim for legal
malpractice, and also appeal the judgment dismissing Appellants’ counterclaim for breach
of contract pursuant to Civ. R. 12(B)(6).
STATEMENT OF THE FACTS AND CASE
{¶2} Albert Dervin and Christopher Cox were each 50% shareholders and
officers of the Agency when it was known as Christopher Cox Insurance & Investments,
Inc. Dervin initiated a lawsuit on May 6, 2019, for judicial dissolution of the Agency,
naming both Cox and the Agency as defendants. Cox hired Appellants to represent
himself personally and to represent the Agency. Dervin asserted Appellants had a conflict
of interest representing both Cox and the Agency because of Dervin’s 50% ownership of
the Agency; however, the dual representation continued.
{¶3} On October 23, 2019, Dervin filed a lawsuit alleging conversion and
misappropriation of funds against Cox, in part concerning the alleged use of corporate
funds to pay Cox’s legal fees in conjunction with the judicial dissolution action. The case
was consolidated with the dissolution suit.
{¶4} On October 24, 2019, the Agency, which was represented by Appellants,
filed a lawsuit against Dervin’s daughter and her separate agency, alleging misappropriation of trade secrets, conspiracy, and tortious interference with business
relations.
{¶5} In January of 2023, Dervin, Cox and the Agency reached a settlement in
the consolidated dissolution and conversion case. As a part of the settlement, the
agency’s action against Dervin’s daughter was dismissed with prejudice. The dissolution
and conversion case was dismissed with prejudice on January 17, 2023.
{¶6} The Agency and Albert Dervin personally filed the instant legal malpractice
action against Appellants on August 28, 2023. Appellants filed a counterclaim for breach
of contract, alleging by filing the malpractice action, the Agency breached the terms of the
settlement agreement which released them from future liability. The trial court dismissed
the counterclaim pursuant to Civ. R. 12(B)(6).
{¶7} Appellants filed a motion for summary judgment, arguing in part the legal
malpractice action was barred by Ohio’s statute of repose for legal malpractice and by
the voluntary payment doctrine. The trial court overruled the motion.
{¶8} The case proceeded to jury trial in the Stark County Common Pleas Court.
The jury found in favor of the Agency on its claim for legal malpractice, and awarded
damages in the amount of $178,500.00. The jury found in favor of Albert Dervin on his
individual claim for legal malpractice, but awarded $0 in damages.1 The trial court entered
judgment in accordance with the jury’s verdict.
{¶9} It is from the December 12, 2024 judgment of the trial court Appellants
prosecute their appeal, assigning as error:
1 Amy Dervin and her agency were plaintiffs in the trial court, alleging abuse of process against Appellants.
The jury found in favor of Appellants. Amy Dervin and her agency are not parties to this appeal. I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN
IT FAILED TO GRANT APPELLANTS’ MOTION FOR SUMMARY
JUDGMENT BECAUSE THE AGENCY’S MALPRACTICE CLAIM WAS
BARRED BY THE STATUTE OF REPOSE.
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN
IT FAILED TO GRANT APPELLANTS’ MOTION FOR DIRECTED
VERDICT BECAUSE THE AGENCY’S MALPRACTICE CLAIM WAS
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DENIED MORRISON’S MOTION FOR DIRECTED VERDICT
BECAUSE THE COMPLAINT WAS BARRED BY A SETTLEMENT
AGREEMENT AND RELEASE THE AGENCY SIGNED.
IV. THE AGENCY’S MALPRACTICE CLAIM IS BARRED BY THE
VOLUNTARY PAYMENT DOCTRINE AND THUS, THE VERDICT IN THE
AGENCY’S FAVOR, MUST BE REVERSED.
V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
ALLOWING AN EXPERT TO OPINE THAT AN ATTORNEY BREACHED A
DUTY OF CARE IN UNDERTAKING A DUAL REPRESENTATION WHEN
TWO COURTS HAD SPECIFICALLY AND PREVIOUSLY ALLOWED IT.
VI. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE’S
12(B)(6) MOTION DISMISSING THE COUNTERCLAIMS OF MORRISON
AND AMER CUNNINGHAM FOR BREACH OF THE SETTLEMENT
AGREEMENT. I.
{¶10} In their first assignment of error, Appellants argue the trial court erred in
overruling their motion for summary judgment, in which they argued the instant legal
malpractice action was barred by the statute of repose. We agree.
{¶11} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.
56(C), which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor. {¶12} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record demonstrating the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion the non-moving party has
no evidence to prove its case. The moving party must specifically point to some evidence
which demonstrates the moving party cannot support its claim. If the moving party
satisfies this requirement, the burden shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 1997-
Ohio-259, citing Dresher v. Burt, 1996-Ohio-107.
{¶13} R.C. 2305.117(A) is a statute of limitations, providing a legal malpractice
claim shall be brought within one year of the time the cause of action accrued. R.C.
2305.117(B)(1) is a statute of repose, providing no legal malpractice claim shall be
commenced more than four years after “the occurrence of the act or omission constituting
the alleged basis of the legal malpractice.”
{¶14} Statutes of repose and statutes of limitation have distinct applications.
Antoon v. Cleveland Clinic Found., 2016-Ohio-7432, ¶ 11. “Both share a common goal of
limiting the time for which a putative wrongdoer must be prepared to defend a claim.” Id.
A statute of limitations establishes “a time limit for suing in a civil case, based on the date
when the claim accrued (as when the injury occurred or was discovered).” Id., quoting
Black's Law Dictionary (10th Ed. 2014). A statute of repose bars “any suit that is brought
after a specified time since the defendant acted * * * even if this period ends before the
plaintiff has suffered a resulting injury.” Id. {¶15} In the instant case, Appellants argue the date of the act or omission
constituting the alleged basis of the legal malpractice action was June 6, 2019, the date
on which Appellants entered an appearance on behalf of both the Agency and Cox in the
dissolution action. Because the instant legal malpractice action was filed on August 29,
2023, Appellants argue the action is barred by the four-year statute of repose for legal
malpractice.
{¶16} In overruling Appellants’ motion for summary judgment, the trial court held:
Furthermore, because the conduct giving rise to the claims herein
was not a single act or omission but was a continuing course of conduct
ongoing for a period of years, Defendants have failed to demonstrate the
absence of a genuine issue of material fact as to the precise date or dates
of the occurrences of the acts that form the basis of Plaintiffs’ claims.
{¶17} Judgment Entry, November 25, 2024, pp. 6-7.
{¶18} The Agency argues the instant action is timely, citing Zimmie v. Calfee,
Halter & Griswold, 43 Ohio St.3d 54 (1989). However, the legal analysis in Zimmie
begins, “The sole question in this appeal is whether appellant's legal malpractice action
against his attorneys, the appellees, was barred by Ohio's one-year statute of limitations.”
Id. at 56. Zimmie analyzes the application of the statute of limitations, not the statute of
repose at issue in this case. At oral argument, the Agency argued Zimmie “marries” the
statute of repose and the statute of limitations. The Agency further argued this “marriage”
of the statutes of repose and limitations was recognized by the court in Owens v. Purcel, 2024-Ohio-1514 (6th Dist.), which Appellants cite in their brief. We reject the Agency’s
argument. It is impossible for Zimmie to “marry” the statute of repose and the statute of
limitations for legal malpractice because Zimmie was decided in 1989, and the statute of
repose for legal malpractice was first enacted in 2021. Further, we find Owens v. Purcel
does not recognize Zimmie “married” the two statutes, but rather cites Zimmie while
clarifying the distinction between the statutes of repose and limitations:
Under R.C. 2305.11(A), an action for legal malpractice against an
attorney must be commenced within one year after the cause of action
accrued. The Ohio Supreme Court has applied a discovery rule to legal-
malpractice claims, however. Zimmie v. Calfee, Halter & Griswold, 43 Ohio
St.3d 54, 57, 538 N.E.2d 398 (1989). Under that discovery rule, “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
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.” Id.
at syllabus.
In addition, effective June 2, 2021, the legislature enacted a statute
of repose, R.C. 2305.117(B), applicable to legal-malpractice claims.
Statutes of limitations and statutes of repose both limit the time for bringing
a claim, but they operate differently and target different actors. Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 9-10. “A
statute of limitations establishes ‘a time limit for suing in a civil case, based
on the date when the claim accrued (as when the injury occurred or was
discovered).’” Id. at ¶ 9, quoting Black's Law Dictionary 1707 (11th Ed.
2019). It “operates on the remedy, not on the existence of the cause of
action itself.” Id., citing Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503
N.E.2d 717 (1986), fn. 17 (Douglas, J., concurring). “Statutes of limitations
emphasize plaintiffs’ duty to diligently prosecute known claims.” Id. at ¶ 10.
“A statute of repose, on the other hand, bars ‘any suit that is brought
after a specified time since the defendant acted ... even if this period ends
before the plaintiff has suffered a resulting injury.’” Id. at ¶ 9, quoting Black's
at 1707. It “bars the claim—the right of action—itself.” Id., citing Treese v.
Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist. 1994). In
contrast to statutes of limitations, “[s]tatutes of repose ... emphasize
defendants’ entitlement to be free from liability after a legislatively
determined time.” Id. at ¶ 10.
{¶19} Id. at ¶¶ 10-12.
{¶20} In support of their argument the trial court erred in finding a continuing
course of conduct by Appellants extended the date on which the statute of repose began
to run, Appellants cite Tarahfields v. Wilson, 2025-Ohio-1337 (10th Dist.). In that case,
the trial court found a legal malpractice action was barred by the statute of repose
because the actions or omissions upon which the appellants based their malpractice claims occurred in 2017, and the complaint was not filed until 2022, more than four years
later. In affirming the trial court’s dismissal of the action, the court of appeals noted the
appellants alleged conduct by the attorney extending beyond 2017; however, the
allegations of post-2017 conduct did not change the fact the harm in the case arose from
the actions or omissions which occurred in 2017. Id. at ¶ 61. The court concluded there
was nothing in the actions or inactions of the attorney from 2018 forward which caused
the appellants new or additional harm. Id.
{¶21} Appellants have also cited to a case from Illinois which we find instructive
on the issue of whether a continuing course of conduct alters the date on which the statute
of repose begins to run. In Lamet v. Levin, 2015 Il. App (1st) 143105, the plaintiff argued
the attorney engaged in ongoing malpractice regarding counterclaims and defenses
raised in the underlying action. The plaintiff argued the final act of negligence occurred
in 2011. The court found the act or omission which started the clock on the statute of
repose occurred in 1994. The court held the statute of repose began to run on the date
the defendant “invaded the plaintiff’s interest and inflicted injury, and this is so despite the
continuing nature of the injury.” Id. at ¶ 20. The period of repose is not tolled by the
attorney’s ongoing duty to correct past mistakes. Id.
{¶22} In its complaint, the Agency alleged Appellants committed malpractice by
representing both the Agency and Cox in the underlying dissolution and conversion action
despite a conflict of interest between the Agency and Cox. The complaint also alleged
Appellants committed malpractice by refusing to remedy the situation after the conflict of
interest was brought to Appellants’ attention, continuing to represent both parties until the
conclusion of the lawsuit in 2023. {¶23} We find the act or omission which started the four-year clock running on the
statute of repose occurred on June 6, 2019, when Appellants first entered an appearance
on behalf of both Cox and the Agency in the underlying action, and inflicted injury on the
Agency by virtue of the asserted conflict of interest. The complaint alleged no new harm
or injury by the ongoing nature of the representation, and the time was therefore not
extended by Appellants’ refusal to withdraw from representation after the conflict of
interest was drawn to their attention. While the Agency continued to accrue monetary
damages by the conflict of interest in the nature of the continuing accumulation of attorney
fees paid to Appellants, no new act or omission which caused new, different, or additional
harm to the Agency occurred after the initial entry of appearance on June 6, 2019. We
therefore find the trial court erred in finding the action was not barred by the statute of
repose due to the continuing nature of the representation. We find the trial court erred in
failing to dismiss the complaint for legal malpractice on summary judgment.
{¶24} The first assignment of error is sustained.
II., III., IV., V.
{¶25} Appellants’ second, third, fourth, and fifth assignments of error are rendered
moot by our conclusion the trial court erred in failing to dismiss the complaint on summary
judgment.
VI.
{¶26} In their sixth assignment of error, Appellants argue the trial court erred in
dismissing their counterclaim for breach of contract on the Agency’s Civ. R. 12(B)(6)
motion for judgment on the pleadings. We disagree. {¶27} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, our standard of review is de
novo. Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5. A Civ.R. 12(B)(6) motion to
dismiss for failure to state a claim upon which relief can be granted is procedural and
tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn. for the Defense of the Washington
Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). In considering a motion to
dismiss, a trial court may not rely on allegations or evidence outside of the complaint.
State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). Rather, the trial court
may review only the complaint and may dismiss the case only if it appears beyond a doubt
the plaintiff can prove no set of facts entitling the plaintiff to recover. O'Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. Civ. R. 12(B)(6)
dismissal is proper where the claim for relief arises from a contract which is incorporated
into and attached to the complaint, and the contract indicates the requested relief is not
warranted. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d
106, 109 (1995).
{¶28} Appellants argue the Agency released all future claims against them in the
settlement agreement of the previous action between Cox, Dervin, and the Agency. As
such, they argue the Agency breached the settlement agreement by bringing the instant
malpractice action, and the trial court erred in dismissing their counterclaim based on
breach of the agreement. The release in the settlement agreement provides in pertinent
part: Release. Excepting therefrom any liabilities of the Agency as set
forth in Section 5, the Parties, on behalf of themselves and their heirs,
executors, predecessors, successors, attorneys, agents, representatives,
and assigns do hereby release and discharge each Party, together with their
predecessors, successors, assigns and their past, present, and future
officers, directors, shareholders, interest holders, members, agents,
employees, managers, representatives, assigns and successors in interest,
from all known and unknown charges, complaints, claims, grievances,
liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts,
penalties, fees, wages, mental anguish, emotional distress, expenses
(including attorneys’ fees and costs actually incurred), and punitive
damages, of any nature whatsoever, known or unknown, which a Party has,
had, or may have occurring prior to the Effective Date of this Agreement,
against any other Party, whether or not apparent or yet to be discovered,
for any acts or omissions related to or arising from the Lawsuits and/or this
Agreement.
{¶29} Appellants argue as attorneys for Cox and the Agency, they are “agents” or
“representatives” within the terms of this release, and thus are released under the terms
of the agreement from liability for legal malpractice. We agree with the trial court’s
conclusion that under the clear and unambiguous language of the settlement, Appellants
are not “agents” or “representatives” released from further claims. The trial court stated: Defendants contend that they should be included in the categories
of “agents” and “representatives,” but this argument is not supported by the
document itself. In reviewing the entire release sentence, the Court
observes that where the parties intended to include “attorneys”, they did so
expressly, by using the word “attorneys”, as contrasted with the less precise
terms “agents” or representatives”. The agreement states: “…the Parties
on behalf of themselves and their heirs, executors, predecessors,
successors, attorneys, agents, representatives, and assigns do hereby
release and discharge each Party, together with their predecessors,
successors, assigns and their past present, and future officers, directors,
shareholders, interest holders, members, agents, employees, managers,
representatives, assigns and successors in interest…” Had the parties
intended to release and discharge their respective attorneys or the other
parties’ attorneys, they clearly could have chosen language to do so. They
did not. Similarly, Paragraph 9, (Confidentiality) states that the terms of the
Agreement are confidential and shall not be disclosed except to “the Parties’
respective professional representatives, partners, shareholders, directors,
officers, employees, attorneys, agents, representatives, affiliates and
insurance companies…” This provision again makes it clear that the parties
distinguished between attorneys and agents or representatives; when the
parties intended to include attorneys, they did so explicitly and precisely.
Defendants note that the agreement states it was to be read “as
broadly as permissible to effectuate the Parties’ mutual intent”, but that same paragraph goes on to restate with clarity precisely what that “mutual
intent” was – namely, “to resolve and release any and all claims, rights
obligations, or disputes, whether known or unknown, that any of the Parties,
and/or one, some or all of the same has or may have as of the date of this
Agreement against one, some or all of the other Parties.” Again, here was
another opportunity for the parties to have indicated that they intended to
release claims against their own or each other’s attorneys. They did not do
so.
{¶30} Judgment Entry, June 26, 2024, pp. 10-11.
{¶31} We agree with the well-reasoned opinion of the trial court. Expressio unius
est exclusio alterius is an interpretative maxim meaning if certain things are specified in
a law, contract, or will, other things are impliedly excluded. Crockett Homes, Inc. v. Tracy,
2024-Ohio-1464, ¶ 146 (7th Dist.). When the parties intended to use the word “attorneys,”
they did so specifically. It is clear from the plain language of the agreement “agents” and
“representatives” as used in the release language did not include attorneys. The
agreement specifically names “attorneys” in the same grouping with “agents” and
“representatives” at several points in the agreement, but does not include “attorneys” in
the release language. By the use of the specific word “attorneys “at several points in the
agreement, attorneys are impliedly excluded from the more general terms of “agents” and
“representatives.” We find Appellants were not released from liability by the clear and
unambiguous language of the settlement agreement, and the trial court did not err in dismissing Appellants’ complaint for breach of the settlement agreement pursuant to the
Agency’s Civ. R. 12(B)(6) motion.
{¶32} The sixth assignment of error is overruled.
{¶33} The judgment of the Stark County Common Pleas Court awarding Appellee
damages on its complaint for legal malpractice is vacated. Pursuant to App. R. 12(B), we
hereby enter final judgment dismissing Appellee’s complaint for legal malpractice against
Appellants. The judgment of the Stark County Common Pleas Court dismissing
Appellants’ counterclaim for breach of contract is affirmed. Costs are to be split evenly
between the parties.
By: Hoffman, J.
Baldwin, P.J. and
Gormley, J. concur