Trustees of Ohio Carpenters' Pension Fund v. U.S. Bank National Ass'n

938 N.E.2d 61, 189 Ohio App. 3d 260
CourtOhio Court of Appeals
DecidedMarch 11, 2010
DocketNo. 93295
StatusPublished
Cited by10 cases

This text of 938 N.E.2d 61 (Trustees of Ohio Carpenters' Pension Fund v. U.S. Bank National Ass'n) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trustees of Ohio Carpenters' Pension Fund v. U.S. Bank National Ass'n, 938 N.E.2d 61, 189 Ohio App. 3d 260 (Ohio Ct. App. 2010).

Opinion

Colleen Conway Cooney, Judge.

{¶ 1} Plaintiff-appellant, Trustees of the Ohio Carpenters’ Pension Fund (“the Fund”), appeals the trial court’s granting summary judgment to defendantappellee, Baker & Hostetler, L.L.P. (“Baker”) regarding the Fund’s legal-malpractice claim and denying the Fund the opportunity to amend its complaint. Finding no merit to the appeal, we affirm.

{¶ 2} The instant case involves alleged malpractice while Baker represented the Fund in connection with the LaCentre development project. During the relevant time, the Fund lent millions of dollars to another of Baker’s clients, Robert Lontkowski, to develop LaCentre in a transaction that the Fund claims caused it to sustain significant financial losses.

{¶ 3} In October 2007, the Fund sued Baker for legal malpractice, breach of fiduciary duty, negligent misrepresentation, and restitution. Baker moved for summary judgment in January 2009. In March 2009, the Fund opposed Baker’s motion and moved to amend its complaint to add a fraud claim based on newly acquired evidence. Thereafter, in May 2009, the trial court denied the motion to amend and granted summary judgment as to all of the claims against Baker.

[263]*263{¶ 4} The Fund now appeals, raising four assignments of error for our review. The first three assignments of error relate to the trial court’s grant of summary-judgment, and the fourth relates to the trial court’s denial of the Fund’s motion to amend. In the first and second assignments of error, the Fund alleges that the lower court erred in granting summary judgment because there exist genuine issues of material fact regarding (1) the occurrence of a cognizable event giving rise to a legal-malpractice claim and (2) the date that the Fund and Baker’s attorney-client relationship terminated.

{¶ 5} In the third assignment of error, the Fund alleges that the trial court erred in granting summary judgment based upon unauthenticated exhibits and speculative hearsay testimony that violated Civ.R. 56. We overrule this assignment of error because the Fund has not identified the specific exhibits that it claims are inadmissible. App.R. 12(A)(2) and 16(A)(7). Accordingly, we turn to the remaining assignments of error.

Standard of Review

{¶ 6} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.

{¶ 7} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.

[264]*264Statute of Limitations for Legal-Malpractice Claims

{¶ 8} The Ohio Supreme Court explained the statute of limitations in legal-malpractice actions in Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 4, holding:

R.C. 2305.11(A) is the statute of limitations for the filing of legal-malpractice claims: “[A]n action for * * * malpractice * * * shall be commenced within one year after the cause of action accrued * * “Under R.C. 2305.11(A), 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.” Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, 538 N.E.2d 398, syllabus, citing Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio St.3d 385, 528 N.E.2d 941. Zimmie and Omni-Food require two factual determinations: (1) When should the client have known that he or she may have an injury caused by his or her attorney? and (2) When did the attorney-client relationship terminate? The latter of these two dates is the date that starts the running of the statute of limitations. Zimmie, syllabus; Omni-Food, paragraph one of the syllabus.

{¶ 9} In the instant case, the parties entered into a tolling agreement on January 1, 2007, pertaining to all of the claims that were not already barred by the statute of limitations. Because we hold that both the termination date and the cognizable event took place before January 1, 2006, the statute of limitations bars the legal-malpractice claim.

The Cognizable Event

{¶ 10} A “cognizable event” is an event sufficient to alert a reasonable person that his or her attorney may have committed an improper act and that further investigation is needed. See Zimmie at 58, 538 N.E.2d 398; Halliwell v. Bruner (Dec. 14, 2000), Cuyahoga App. Nos. 76933 and 77487, 2000 WL 1867398. Thus, the statute of limitations begins to run when the client obtains constructive knowledge of relevant facts. Flowers v. Walker (1992), 63 Ohio St.3d 546, 589 N.E.2d 1284.1

{¶ 11} In the instant case, we find that several cognizable events occurred before January 1, 2006, which should have alerted the Fund to further investigate Baker’s legal services. In January 2000, Lontkowski applied to the Fund’s [265]

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Bluebook (online)
938 N.E.2d 61, 189 Ohio App. 3d 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustees-of-ohio-carpenters-pension-fund-v-us-bank-national-assn-ohioctapp-2010.