Smith v. Wittenberg

Opinion

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT

LUCAS COUNTY

SHANNON SMITH, ET AL., CASE NO. L-25-00233

PLAINTIFFS-APPELLANTS,

v.

SHELDON WITTENBERG, OPINION AND JUDGMENT ENTRY

DEFENDANT-APPELLEE.

Appeal from Lucas County Common Pleas Court Civil Division

Trial Court No. CI 2025-01894

Judgment Affirmed

Date of Decision: September 8, 2026

APPEARANCES:

John Rutan for Appellants Brittany H. Asmus for Appellee

ZIMMERMAN, J.

{¶1} Plaintiffs-appellants, Shannon Smith and Gregory Smith (collectively “the Smiths”), appeal the September 3, 2025 judgment of the Lucas County Court of Common Pleas granting a motion for judgment on the pleadings filed by defendant-appellee, Sheldon Wittenberg (“Wittenberg”), and dismissing the Smiths’ legal-malpractice action with prejudice. For the reasons that follow, we affirm.

{¶2} This case stems from Wittenberg’s legal representation of the Smiths in criminal cases. The Smiths retained Wittenberg to defend them in separate but related assault charges pending in Toledo Municipal Court. The matter proceeded to trial on April 3, 2024. At trial, the Smiths learned that the matter would not be heard by a jury and that they would not be able to argue self-defense due to Wittenberg’s failure to file a notice of self-defense.

{¶3} At the conclusion of the bench trial, the Smiths were found guilty and the municipal court proceeded directly to sentencing. In addressing mitigation, Wittenberg noted the lack of criminal record for his clients and acknowledged that his representation was deficient due to his failure to file a notice of self-defense. Wittenberg stated, “The facts were such that probably I should have filed a criminal self-defense. So it’s my fault, and I feel badly for these two.” (Apr. 3, 2024 Tr. at

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79). Wittenberg further stated, “Your Honor, my only statement to The Court is, if not for lack of proper representation, this wouldn’t have happened.” (Id. at 83). The municipal court imposed a suspended jail term of 180 days for each, probation for one year, and restitution of $964.32. Wittenberg informed the municipal court that he would pay the restitution amount. Wittenberg stated, “And I apologize to my clients. I will give to whoever - - victims advocate or whoever, a check in the amount of $964.32 for restitution as agreed to the prosecutor.” (Id.).

{¶4} Following their convictions, the Smiths retained new legal counsel. On May 10, 2024, the Smiths filed identical motions for new trial arguing that Wittenberg’s ineffective assistance of counsel constituted an irregularity in the proceeding that prevented them from having a fair trial. The municipal court denied the motions and the Smiths timely appealed.

{¶5} On January 31, 2025, this court reversed the municipal court’s judgment in State v. Smith, 2025-Ohio-311, ¶ 28 (6th Dist.). In Smith, we determined that Wittenberg provided ineffective assistance of counsel and that this deficiency prevented the Smiths from having a fair trial. Id. at ¶ 1. We explained as follows:

Trial counsel, in this case, failed to preserve the defense by filing notice according to Crim.R. 12.2. As a result, the trial court did not consider self-defense in entering judgment. Where the evidence demonstrates a defendant is entitled to a self-defense jury instruction, trial counsel is prejudicially ineffective in failing to request that instruction. State v. Wilson, 2024-Ohio-776, ¶ 29. Additionally, failing to preserve a potentially complete defense to the charges is an

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omission that could not be considered a trial tactic. State v. Kole, 92 Ohio St.3d 303, 306-307 (2001).

Put simply, trial counsel’s error caused the trial court to preclude consideration of self-defense, as a defense to the assault charges.

Accordingly, we find Gregory Smith’s first assignment of error and Shannon Smith’s second assignment error well-taken. . . .

Smith at ¶ 26-27.

{¶6} Thereafter, on May 23, 2025, the Smiths filed a complaint against Wittenberg in Lucas County Common Pleas Court asserting claims for legal malpractice, breach of fiduciary duty, and emotional distress. On May 29, 2025, the Smiths filed an amended complaint asserting additional claims for loss of consortium and false light invasion of privacy. Wittenberg filed his answer and affirmative defenses to the amended complaint on June 24, 2025.

{¶7} On July 24, 2025, Wittenberg filed a motion for judgment on the pleadings arguing that the Smiths’ claims were time-barred under R.C. 2305.11(A). Specifically, Wittenberg argued that the one-year statute of limitations began to run on April 3, 2024—the date of trial and resulting convictions, or alternatively, when the Smiths retained new counsel on April 16, 2024, thereby terminating their attorney-client relationship with Wittenberg.

{¶8} On September 3, 2025 the trial court granted Wittenberg’s motion for judgment on the pleadings and dismissed the Smiths’ claims with prejudice. The trial court determined that the Smiths’ legal-malpractice claim was barred by the one-year statute of limitations under R.C. 2305.11(A). In reaching its decision, the

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trial court found that the Smiths’ amended complaint established that a cognizable event occurred on April 3, 2024—the date of trial and resulting convictions. The trial court further found that the attorney-client relationship terminated on May 10, 2024—the date the Smiths retained new counsel and filed motions for new trial. Since the Smiths did not file the legal-malpractice action until May 23, 2025, the trial court determined that the malpractice claim was barred under R.C. 2305.11(A). The trial court further determined that the Smiths’ other claims were time-barred under the gist-of-the-complaint doctrine espoused in Henderson v. Mockensturm, Ltd., 2024-Ohio-6129, ¶ 31-32 (6th Dist.).

{¶9} On September 22, 2025, the Smiths filed a notice of appeal. They raise a single assignment of error for our review.

Assignment of Error

The trial court erred as a matter of law by granting Defendant’s motion for judgment on the pleadings under Civ.R. 12(C) and misidentifying the cognizable event for accrual under R.C.

2305.11(A). The one-year statute of limitations did not begin to run until the Court of Appeals reversed the convictions on January 31, 2025 which first established actual, compensable injury resulting from Defendant’s malpractice.

{¶10} In their sole assignment of error, the Smiths argue that the one-year statute of limitations did not begin to run until January 31, 2025—the date the municipal court’s judgment in their criminal cases was reversed. According to the Smiths, “[i]t was at that moment, and not before, that [we] became aware—and

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could reasonably have become aware—that [Wittenberg’s] negligence directly caused [our] convictions.” (Appellants’ Brief at 3).

Standard of Review

{¶11} We review de novo a trial court’s order granting a motion for judgment on the pleadings. Hoeflinger v. AM Mart, LLC, 2017-Ohio-7530, ¶ 15 (6th Dist.).

{¶12} Pursuant to Civ.R. 12(C), a party may move for judgment on the pleadings “[a]fter the pleadings are closed but within such time as not to delay the trial[.]” A Civ.R. 12(C) motion presents only questions of law. Mendoza v. Seger, 2019-Ohio-4284, ¶ 11 (6th Dist.). “In ruling on a Civ.R. 12(C) motion, a court may consider both the complaint and the answer, as well as any material attached as exhibits to those pleadings.” Valentine v. Hood, 2023-Ohio-2250, ¶ 12 (6th Dist.). “Dismissal is appropriate under Civ.R. 12(C) when (1) the court construes as true, and in favor of the nonmoving party, the material allegations in the complaint and all reasonable inferences to be drawn from those allegations and (2) it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief.” Reister v. Gardner, 2020-Ohio-5484, ¶ 17.

Analysis

{¶13} There is no dispute in this matter that the Smiths’ complaint filed on May 23, 2025 alleged a legal-malpractice claim under R.C. 2305.11(A), which is subject to a one-year statute of limitations. Rather, the parties dispute when the Smiths’ malpractice claim began to accrue.

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{¶14} Under R.C. 2301.11(A), an action for legal malpractice accrues, and the statute of limitations starts to run, upon the latter of two occurrences: (1) “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 (2) “when the attorney-client relationship for that particular transaction or undertaking terminates.” Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 58 (1989). Therefore, to avoid the statute of limitations, the Smiths’ malpractice claim must have accrued no earlier than May 23, 2024—one year prior to the commencement of this action.

{¶15} “A ‘cognizable event’ is something ‘noteworthy’ that should have alerted a reasonable person that a questionable legal practice may have occurred.” Woodrow v. Heintschel, 2011-Ohio-1840, ¶ 36 (6th Dist.). It is something that puts “a reasonable person on notice of the need for further inquiry as to whether a mistake in lawyering may have occurred.” Michael v. Stanard, 2025-Ohio-741, ¶ 20 (8th Dist.). “When it occurs, the client is then obliged to act and make inquiry . . . [and] not ignore the issue and refrain from action.” Woodrow at ¶ 36. Thus, the question to be determined is, “When should the client have known that he or she may have an injury caused by his or her attorney?” Smith v. Conley, 2006-Ohio-2035, ¶ 4.

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{¶16} Restricting our review to the pleadings and any material attached as exhibits to those pleadings, we determine that the Smiths’ amended complaint establishes April 3, 2024—the date of trial and resulting convictions—as when the Smiths should have known that they have an injury caused by Wittenberg’s malpractice. In their amended complaint, the Smiths alleged that Wittenberg committed legal malpractice when he failed to adequately represent them in their criminal cases. Significantly, the Smiths alleged that Wittenberg committed malpractice when he failed to file the required self-defense notice which resulted in the municipal court refusing to consider evidence of self-defense at trial. Since the Smiths’ amended complaint asserted that Wittenberg’s malpractice “resulted in wrongful convictions,” the date of trial and resulting convictions is the date that the Smiths should have known that they had an injury caused by Wittenberg. Therefore, the cognizable event that should have put the Smiths on notice that their attorney may have committed malpractice occurred on April 3, 2024.

{¶17} On appeal, the Smiths argue that they could not have reasonably discovered the extent of Wittenberg’s malpractice and their injury until the appellate court reversed their convictions on January 31, 2025. However, the standard is not that of the subjective belief of each particular plaintiff. “The test for identifying a cognizable event is an objective one.” Woodrow, 2011-Ohio-1840, at ¶ 40 (6th Dist.). “The test necessarily takes into account all the relevant facts and circumstances.” Id. Moreover, a plaintiff is not entitled to exhaust all appellate

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remedies before the statute of limitations begins to runs. Zimmie, 43 Ohio St.3d at 58-59. “[A] cognizable event is not dependent upon a judicial determination” since “it is the underlying factual circumstances, rather than the decisions of courts, which ultimately provide notice of potential malpractice to a putative plaintiff.” Michael, 2025-Ohio-741, at ¶ 25 (8th Dist.).

{¶18} Here, the Smiths discovered at the April 3, 2024 trial that their cases would not be heard by a jury and that they would not be permitted to introduce evidence of self-defense due to Wittenberg’s failure to file the required notice. At the conclusion of trial and prior to sentencing, Wittenberg made statements on the record acknowledging his deficient representation, apologizing to the Smiths, and offering to pay the restitution amount. These facts would certainly have alerted a reasonable person that a questionable legal practice may have occurred. See Woodrow at ¶ 36 (explaining that a cognizable event is something noteworthy that should alert a reasonable person that a questionable legal practice may have occurred).

{¶19} Having determined that the April 3, 2024 trial and resulting convictions was a cognizable event, we turn to the second occurrence triggering R.C. 2305.11(A)’s statute of limitations—the termination of the attorney-client relationship—to decide whether the Smiths’ legal-malpractice claim accrued later than April 3, 2024.

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{¶20} “[T]he date of termination of the attorney-client relationship for purposes of R.C. 2305.11 is determined by the actions of the parties.” Smith, 2006- Ohio-2035, at ¶ 12. “Conduct indicating the end of the attorney-client relationship includes the client retaining another attorney to file a suit regarding the same subject matter for which the client had retained previous counsel.” Asente v. Gargano, 2004-Ohio-5069, ¶ 13 (10th Dist.).

{¶21} In this case, the pleadings and attached exhibits reflect that the attorney-client relationship between Wittenberg and the Smiths ended, at the latest, on May 10, 2024, when newly-retained counsel filed identical motions in the Smiths’ criminal cases seeking a new trial on the basis of Wittenberg’s ineffective assistance of counsel. Thus, the termination of the attorney-client relationship occurred, at the latest, on May 10, 2023. Since this is the later occurrence, this date is controlling for the purpose of our analysis—the Smiths’ legal-malpractice complaint must have been filed no later than May 10, 2025, to avoid the statute of limitations. Because the complaint was not filed until May 23, 2025, the Smiths’ malpractice action against Wittenberg is time-barred.

{¶22} Based on the foregoing, we conclude that the Smiths’ May 23, 2025 malpractice action against Wittenberg was not timely filed under R.C. 2305.11(A). As such, the trial court properly granted judgment on the pleadings to Wittenberg and dismissed all claims with prejudice.

{¶23} The Smiths’ sole assignment of error is overruled.

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{¶24} Having found no error prejudicial to the appellants herein in the particulars assigned and argued in their sole assignment of error, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and MILLER, J.J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignment of error is overruled and it is the judgment and order of this Court that the judgment of the trial court is affirmed with costs assessed to Appellants for which judgment is hereby rendered. The cause is hereby remanded to the trial court for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s judgment entry and opinion to the trial court as the mandate prescribed by App.R. 27; and serve a copy of this Court’s judgment entry and opinion on each party to the proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED: /hls

Judges William R. Zimmerman, Mark C. Miller, and John R. Willamowski, from the Third District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.