LED. AUG 2 3 Zq1Z CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO CHARLES POWELL, Appellee, vs. JOHN H. RION, ESQ., et al. On Appeal from the Montgomery County Court of Appeals, Second Appellate District Court of Appeals Case No Ohio Supreme Court Case No Appellants. APPELLEE'S RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS JOHN H. RION, ESQ., NICOLE RUTTER-HIRTH, ESQ., KERI FARLEY, ESQ., MATTHEW BARBATO, ESQ. AND RION, RION AND RION L.P.A., INC. Counsel for Appellee, Charles Powell: Brian M. Garvine ( ) Law Office of Brian M. Garvine, LLC 5 East Long Street Suite 1100 Columbus, Ohio Telephone: (614) Facsimile: (614) brian(cdgarvinelaw.com Attorney for Appellee Charles Powell LED AUG 2 3 Zq1Z CLERK OF COURT SUPREME COURT OF OHIO Counsel for Appellants: Timothy R. Reid ( ) (COUNSEL OF RECORD) Ann E. Knuth ( ) Mansour, Gavin, Gerlack & Manos Co., LPA 55 Public Square, Suite 2150 Cleveland, Ohio Telephone: (216) Facsimile: (216) treidca)mggmlpa.com aknuthamggmlpa.com Attorneys for Appellants John H. Rion, Esq., Nicole RuttervHirth, Esq., Keri Farley, Esq., Matthew Barbato, Esq., Rion, Rion and Rion L.P.A., Inc.

2 TABLE OF CONTENTS 1. TABLE OF CONTENTS... i II. TABLE OF AUTHORITIES... ii III. THIS CASE DOES NOT PRESENT A SUBSTANTIAL CONSTITUTIONAL QUESTION OR A MATTER OF GREAT PUBLIC OR GENERAL INTEREST...1 IV. STATEMENT OF CASE AND FACTS ,3 V. LAW AND ARGUMENT , 4,5,6 Appellant's Proposition of Law: Proposition of Law. For purposes of determining when the statute of limitations begins to run in a claim for professional malpractice, the occurrence of a cognizable event does not require actual knowledge of each discrete act of professional malpractice and each discrete injury caused by each at. VI. CONCLUSION...:...:... 6 VII. CERTIFICATE OF SERVICE...7 i

3 II. TABLE OF AUTHORITY Cases Page Danziger v. Luse (2004), 103 Ohio St.3d 337, Ohio DeRolph v. State (1997) 78 Ohio St.3d Flagster Bank, F.S.B. v. Airline Union's Mtge. Co., 128 Ohio St.3d 529, 2011-Ohio Noble v. Colwell (1989) 44 Ohio St.3d Wilson v. Brush Wellman, Inc. (2004) 103 Ohio St.3d 538, Ohio ii

4 Ill. THIS CASE DOES NOT PRESENT A SUBSTANTIAL CONSTITUTIONAL QUESTION OR A MATTER OF GREAT PUBLIC OR GENERAL INTEREST The Ohio Supreme Court "will grant a motion to certify only if there is a substantial constitutional question or if the case is of public or great general interest." Noble v. Colwell (1989), 44 Ohio St.3d 92, 94 (emphasis added); Section 2(B)(2)(e), Article IV of the Ohio Constitution; S.Ct. Rule II, 1(A)(2), (3). The Supreme Court limits its discretionary review to novel issues because "[n]ovel questions of law or procedure appeal not only to the legal profession but also to this court's collective interest in jurisprudence." Noble, supra at 94. Cases of "public or great general interest" typically deal with weighty topics of statewide interest, such as public school funding, DeRolph v. State (1997), 78 Ohio St.3d 193, matters of first impression where the Supreme Court is asked to define the common law, Danziger v. Luse (2004), 103 Ohio St.3d 337, Ohio- 5227, or cases which require a novel application of this Court's Rules, Wilson v. Brush Wellman, Inc. (2004), 103 Ohio St.3d 538, Ohio The issues in this case are neither weighty, nor of broad interest. There is no constitutional question involved in this matter. It is not a matter of first impression. Further, it is a matter of limited interest; the issue of the statute of limitations in legal malpractice cases rarely arises. In fact, a cursory search on Westlaw reveals only 23 opinions in 2012 regarding this issue. 1

5 IV. STATEMENT OF CASE AND FACTS The initial Complaint was filed September 29, 2009 by Attorney Byron K. Shaw, a criminal attorney who had never previously filed a legal malpractice action. On November 17, 2009, Powell dismissed his original Complaint, without prejudice. The Complaint was re-filed October 6, 2010, by Powell, pro se. On March 11, 2011, Powell amended his re-filed Complaint when he retained the undersigned. On June 10, 2011, Appellants filed their Motion for Summary Judgment. On June 21, 2011, Powell filed his Memorandum in Opposition to Appellant's Motion for Summary Judgment. On June 29, 2011, after a brief oral argument on a telephone conference with the Court, the Trial Court granted Appellants' Motion for Summary Judgment with no written opinion. On July 7, 2011, the Court entered a Journal Entry granting Appellants' Motion for Summary Judgment. By way of history, on or about July 31, 2007, Powell hired Appellants to represent him in a case captioned State of Ohio v. Charles W. Powell, case number 07-CRB , in the Municipal Court of Fairborn, Ohio, Criminal Division (the "Prior Litigation"). Appellants had an attorney-client relationship with Powell in the Prior Litigation. Appellants' conduct fell below the standard of care of a competent lawyer practicing criminal law in the State of Ohio including, but not limited to, Appellants' failure to indicate to the Court in the Prior Litigation that Powell's plea to voyeurism did not require registration on the Sex Offender Registry; failure to properly advise Powell with respect to the consequences of entering a guilty plea to voyeurism (Appellants wrongly advised Powell that a guilty plea to voyeurism required him to register on the

6 Sex Offender Registry, which in fact, was not true); incorrectly advising Powell that entering a guilty plea to voyeurism would result in a requirement to file with the Sex Offender Registry for a period of one year; and a general failure to competently represent Powell. As a result of Appellants' negligence and malpractice, among other results, Powell pled guilty to voyeurism in the Prior Litigation and was wrongly placed on the Sex Offender Registry, which resulted in, among other results, Powell being discharged from the United States Air Force. On July 9, 2010, the Greene County Court of Appeals vacated Appellant's guilty plea to the voyeurism charge and found that "Powell received ineffective assistance of counsel in that he was not advised that voyeurism was a registration exempt sexually oriented offense absent a separate order by the court removing the presumptive exemption. Further, the record is unrebutted that counsel for Powell, who was illprepared, misled Powell in advising him that the registration was subject to expungement within a brief period." V. LAW AND ARGUMENT Appellant's Proposition of Law: For purposes of determining when the statute of limitations begins to run in a claim for professional malpractice, the occurrence of a cognizable event does not require actual knowledge of each discrete act of professional malpractice and each discrete injury caused by each act. This Court recently reiterated basic principles regarding statutes of limitations. This Court stated, "statutes of limitations serve a gate-keeping function that: (1) ensure fairness to the defendant, (2) encourage prompt prosecution of causes of action, (3) suppress stale and fraudulent claims claims, and (4) avoid the inconveniences engendered by delay - specifically, the difficulties of proof present in older cases. Pratte v. Stewart, 125 Ohio 3

7 St.3d 473, 2010-Ohio-1860, 929 N.E.d2d 415, 42, quoting Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, 10. That being said, statutes of limitations are remedial in nature and are to be given a liberal construction to permit cases to be decided upon their merits, after a court indulges every reasonable presumption and resolves all doubts in favor of giving, rather than denying, the plaintiff an opportunity to litigate. Draher v. Walters (1935), 130 Ohio St. 92, 94, 3 O.O. 121, 196 N.E. 884, overruled on other grounds, Peters v. Moore (1950), 154 Ohio St. 177, 42 O.O. 254, 93 N.E.2d 683. Flagster Bank, F.S.B. v. Airline Union's Mtge. Co., 128 Ohio St.3d 529, Ohio-1961, 7. (emphasis added) Appellants argue the Court of Appeals "erroneously concluded that the finding of a cognizable event required that Powell had knowledge of [sic] entire breadth of how the acts of Rion and its Lawyers adversely impacted him." The Court of Appeals reached no such conclusion. Instead the Court of Appeals correctly recognized the distinction between being dissatisfied with the quality of legal work and understanding that there was an actual legal wrong: While it is true that the client need not be aware of the full extent of the injury resulting from the event, it must be enough to alert a reasonable client that he or she relied to their detriment on the legal advice. It is not sufficient that the client be dissatisfied with the advice or its result, but rather that the harm be of such a nature and degree that the reasonable person client would be alerted that the harm was the result of something that his or her attorney did legally wrong. See, Opinion p. 12, 18. Appellants also argue the Court of Appeals "glossed over Powell's complaint to the Dayton Bar Association..." That is an incredible assertion. The Court of Appeals exhaustively analyzed both Powell's Complaint to the Dayton Bar Association and the Dayton Bar Association's response. In fact, in its Opinion, the Court of Appeals directly 4

8 quoted significant portions of Powell's grievance and the Dayton Bar Association's Response. After analyzing both documents, the Court of Appeals concluded, "In June 2008, Powell was dissatisfied with the manner in which defendants handled his case, but he was not yet aware that defendants' representation of him detrimentally affected the outcome of his case." See, Opinion p. 11, 17. The Court of Appeals also stated, "In the underlying criminal case, we held that Powell should have been advised by his lawyers that voyeurism was registration-exempt and not subject to expungement. His letter to the Dayton Bar Association complained of neither of these, because he had no way of knowing of the error of such lack of advice until he was released from supervision and sought to remove his sexual offender classification." See, Opinion p.12, 19. Regarding the Dayton Bar Association's response to Powell's complaint, the Court of Appeals correctly indicated, "not every violation of the ethical rules contained in the Rules of Professional Conduct constitutes legal malpractice, and not every act of legal malpractice constitutes a violation of ethical rules requiring discipline." See, Opinion p. 14, 26. As a result, the Court of Appeals held, "therefore, the fact that the Dayton Bar Association found no breach of the ethical rules for attorneys that would warrant formal disciplinary action is not the equivalent of finding that the defendants had not committed actionable legal malpractice, since those are not necessarily the same thing. Id. The Court of Appeals comprehensively and correctly evaluated both Powell's grievance and the Dayton Bar Association's response. 5

9 The Court of Appeals also analyzed Powell's deposition testimony and noted "also, although Powell was aware, by the time he filed his grievance with the Dayton Bar Association, that Rion, Rion, and Rion had "made numerous horrendous decisions that could have jeopardized my case." (emphasis added) See, Opinion pp , 17. The Court of Appeals emphasized "could have" because that was the point. Powell was not aware that Appellant's may have committed legal malpractice at the time he complained to the Dayton Bar Association. Finally, the Court of Appeals went beyond the issue of whether Powell was aware of the full extent of his injuries. The Court of Appeals stated, "It was not simply that Powell was not aware of the full extent of his injury, but there is a genuine issue as to whether he was or should have been aware that any injury he did sustain was the result of faulty legal advice as opposed to bad communication by his lawyers and an unfortunate, but unavoidable, outcome of his criminal charges." See, Opinion p. 15, 28. The Court of Appeals analyzed all of the evidence and clearly did not depart from well-established precedent. To the contrary, the Court of Appeals cited and applied the applicable precedent, including the cases cited by Appellant. Appellant simply disagrees with the Court of Appeals' decision. That is their right. However, the Court of Appeals comprehensively analyzed the record and correctly applied the law. VI. CONCLUSION As set forth above, there are no substantial constitutional questions, nor items of great public importance implicated in this case. As a result, this Court should decline review of this case. 6

10 Brian M. Garvine ( ) Law Office of Brian M. Garvine, LLC 5 East Long Street Suite 1100 Columbus, OH Telephone: (614) Facsimile: (614) Attomey for Appellee Charles Powell VII. CERTIFICATE OF SERVICE This certifies that the forgoing document was served upon the following by regular U. S. Mail this 23rd day of August, 2012: Timothy R. Reid Ann E. Knuth Mansour, Gavin, Gerlack & Manos Co., L.P.A. 55 Public Square, Suite 2150 Cleveland, Ohio Attorneys for Appellants John H. Rion, Esq., Nicole Rutter-Hirth, Esq., Keri Farley, Esq., Matthew Barbato, Esq., Rion, Rion and Rion L.P.A., Inc. 7