E rea z ^^ CLERK OF COURT REME COURT OF OHIO IN THE SUPREME COURT OF OHIO ^^ WALDRON, Case No Appellant

Transcription

1 0^^ IN THE SUPREME COURT OF OHIO ^^ WALDRON, Appellant V. RICKEY, et al., Case No On Appeal from the Hamilton County Court of Appeals, First Appellate District Case No. C Appellees MEMORANDUM OF APPELLEES, ROBERT E. RICKEY, AND PURDY AND RING IN OPPOSITION TO JURISDICTION John W. Hust, ( ) Schroeder Maundrell Barbiere & Powers 5300 Socialville-Foster Road, Suite 200 Mason, OH fax jhust@smbplaw.com ATTORNEY FOR APPELLEES F. Harrison Green, ( ) Executive Park, Suite Executive Park Drive Cincinnati, OH (fax) fhgreen@fuse.net ATTORNEY FOR APPELLANT E rea z CLERK OF COURT REME COURT OF OHIO ^t^ OF ^3 t,. ^ ^x f,t^` 4jvi.fi,s f

2 TABLE OF CONTENTS AND RESPONSE TO ASSIGNMENTS OF ERROR TABLE OF CONTENTS i THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND NOR IS IT A CASE OF PUBLIC AND GREAT GENERAL INTEREST STATEMENT OF THE CASE AND FACTS RESPONSE TO WALDRON'S PROPOSITION OF LAW CONCLUSION PROOF OF SERVICE i

3 THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS IT A CASE OF PUBLIC AND GREAT GENERAL INTEREST This case involves application of the statu te of limitations in a professional negligence case, R.C , to the assumed-as-true testimony of Appellant (hereinafter "Waldron"). After reviewing de novo the Trial Court's decision granting Appellees' (hereinafter "Rickey") summary judgment, the Court of Appeals affirmed. Waldron's Memorandum in Support of Jurisdiction states that this case presents "concerns of Constitutional violations", but makes no further argument in support of that contention. Nor does the Memorandum set forth a proposition of law relating to a Constitutional issue. Further, as a procedural matter, it is likely that Waldron waived any constitutional claim as none was asserted in opposition to Rickey's Motion for Summary Judgment or as an assignment of error in Waldron's brief to the Court of Appeals. This Court generally does not consider issues which the Court of Appeals did not review. State ex rel, Ohio's Civ. Serv. EmployeesAss'n. v. State Employment Relations Brd. (2004), 104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, 24. Also, constitutional issues are not properly before this Court when they were not assigned as errors in the Court of Appeals. City of Cincinnati v. Whalen, 44 Ohio St.2d 58, 61, 337 N.E.2d 773 (1975). Similarly, this case is not a matter of public or great general interest. It involves the application of well-settled case law and the professional negligence statute of limitations to undisputed facts testified to by Waidron. 1

4 STATEMENT OF THE CASE AND FACTS In June 2010, Waldron hired Rickey to represent him in a divorce action filed in Hamilton County, Ohio. On April 7, 2011, the domestic relations magistrate presided over a property trial. Waldron testified he was very displeased with Rickey's handling of the trial. Waldron itemized his dissatisfaction as including, inter alia, Rickey's failure to properly present the prenuptial agreement at the hearing; failure to provide information requested by opposing counsel related to the disagreement; failure to file Waldron's property statement and provide it to the Court and opposing counsel; failure to advise Waldron to obtain an appraisal of real estate that was at issue; and failure to pursue the issue of stock owned by Waldron's ex-wife. Waldron testified immediately after the hearing he was "pretty upset" with Rickey's handling of the hearing. He testified that "... at the end of that hearing I was of the opinion that Bob [Rickey] was not prepared, Bob had not done what I had expected him to do and basically just was not professional." On May 26, 2011, Rickey told Waldron a decision had been mailed to his "old office" in Brown County and they made arrangements to meet the following day, May 27, 2011 at the Brown County Courthouse. Both in his answers to interrogatories and his deposition testimony, Waldron testified that he fired Rickey on May 27, 2011 because of Rickey's mishandling of issues relating to the prenuptial agreement and the valuation of the martial real estate. Waldron testified he believed he lost on both issues due to Rickey's representation of him. Waldron further testified he also was also unhappy about the magistrate's decision because Rickey 2

5 had failed to raise the issue of stock owned by his ex-wife and because he failed to argue that a large portion of his pension funds were pre-marital. Testifying that he was upset about "so many things", Waldron terminated the attorney-client relationship with Rickey: Q. Yeah. And I gather that at the conclusion of this, after you read it, that's when you told Mr. Rickey -- and I was just reading your answer to your interrogatory. 'Plaintiff told Mr. Rickey that he would no longer be representing him as his attorney as a result of the way his case was handled.' A. That was on the steps of the courthouse when I said that. Q. As you were leaving? A. I was upset, and (-- because when I read that Bob had not submitted anything, I took that as that weighed very heavy in the magistrate's decision that Bob had not furnished them any of the information that I had furnished him. It upset me. And I got up from the table, and I went out the front of the courthouse. And Bob followed me out, and he said, 'Tim, wait a minute.' And I stopped, and he started to try to explain -- well, no. I looked at him, and I said - and he had marked on the bottom -- where it said I should pay $2,000 of her legal expenses, he had marked that out and put'na'. And I said, `What is this?' And he said, 'Don't worry about it. I've taken care of it. You don't have to worry about that.' And I said, "Well, you're not my attorney anymore. I don't require your services anymore.' Q. And he didn't render any other services after that for you? A. I never spoke a word to the man since that day.' Finally, in his answers to interrogatories, Waldron stated under oath that he terminated the attorney-client relationship on May 27, 2011 "as a result of the way his case was handled," The one-year statute of limitations for legal malpractice accrued on May 27, 2011, when Waldron met with Rickey to review and discuss the magistrate's decision in his pending divorce action and fired Rickey on the spot because he was angry with the magistrate's decision and Rickey's representation of him, which he described as "terrible". Because May 27, 2012 fell on a Sunday, and because the following day was a legal ' Waldron dep., pp

6 holiday, Waldron had until Tuesday, May 29, 2012 to file his action for legal malpractice. However, Waldron did not file this action until May 31, 2012, two days after the expiration of the statute of limitations. RESPONSE TO WALDRON'S PROPOSITION OF LAW The statute of limitations for legal malpractice accrues when a client meets with his attorney and fires him because he is angry with an adverse court decision which he blames on his attorney's representation. Waldron's proposition of law is nothing other than a claim that the lower courts erred in concluding that the cognizable event occurred on May 27, 2011, when Waldron received the magistrate's decision, which made him angry and terminated the attorney-client relationship on the spot. Under R.C (A), a legal malpractice action must be brought within one year of the accrual of the action. "[Ujnder R.C (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, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989). Here, the cognizable event and the termination of the relationship occurred on the same date. Waldron does not dispute that the attorney client relationship terminated on May 27, 2011, when he fired Rickey. (Waldron Memorandum, p. 11). The undisputed facts establish that the cognizable event occurred at the latest on May 27, Although 4

7 the Trial Court and Court of Appeals, based on the record, could readily have found that the cognizable event occurred at the property hearing on April 7, 2011, the Court of Appeals gave Waldron the benefit of any doubt and concluded that the cognizable event occurred on May 27, 2011, when Waldron and Rickey met at the courthouse to discuss the magistrate's decision. Waldron testified that as early as the property hearing itself, i.e., April 7, 2011, he was dissatisfied with Rickey's handling of his divorce case. He was critical of Rickey in a number of respects, including being unprepared for the hearing, not preparing a property statement on Waldron's behalf, failing to respond to discovery requests from his wife's attorney, failing to obtain a real estate appraisal, and being unprepared to proceed on the prenuptial agreement. His dissatisfaction with Rickey's representation grew afterhe had a chance to review the magistrate's decision on May 27, He believed at that time that Rickey's mishandling of his case had damaged him financially in several respects. He contended that Rickey should have arranged for an appraisal of the real estate because the property was overvalued by $50,000.00, which resulted in his wife receiving a larger share of the marital property. He also was critical of Rickey's failure to raise the issue of his wife's ownership of approximately $22, in Bob Evans stock orthe issue that a large portion of his retirement account was pre-marital property. Waldron argues that a cognizable event did not occur until June 3, 2011, when he met with his new attorney who advised him that the deadline for filing objections to the magistrate's decision had passed. He also argues that the May 27, 2011 meeting was not a cognizable event because he was not aware of his rights to appeal the magistrate's 5

8 decision, nor was he aware of the full extent of his damages. This Court has previously rejected these arguments. See, Flowers v. Walker, 63 Ohio St.3d 546, 549, 589 N.E.2d 1284 (1992); Zimmie v. Ca/fee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989). In Flowers v. Walker, supra, this Court stated: A "cognizable event" is the occurrence of facts and circumstances which lead, or should lead, the patient to believe that the physical condition or injury of which she complains is related to a medical diagnosis, treatment or procedure that the patient previously received... Moreover, constructive knowledge of facts, rather than actual of their legal significance, is enough to start the statute of limitations running under the discovery rule... a plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations... Rather, the 'cognizable event' itself puts the plaintiff on notice to investigate the facts and circumstances relevant to her claim in order to pursue her remedies.,.. 63 Ohio St.3d at 549 (Emphasis original and internal citations omitted). As to Waldron's contention that he was not aware of the full extent of his injuries of May 27, 2011, this Court in Zimmie stated: In Allenius, we stated we did not believe that an injured person must be aware of the full extent of the injury before there is a cognizable event. Instead, it is enough that some noteworthy event, the cognizable event, has occurred which does or should alert a reasonable person that an improper medical procedure, treatment or diagnosis has taken place. In this case, the trial court's invalidation of the antenuptial agreement was a cognizable event which should have alerted a reasonable person that a questionable legal practice may have occurred. 43 Ohio St.3d at 53. As to Waldron's argument that the statute did not begin to run on May 27, 2011 because the magistrate's decision was not final, this Court in Zimmie stated: 6

9 Adopting a rule of law that a client is entitled to exhaust all appellate remedies before the statute of limitations commences, as appellants suggest, would be counter to our holdings in Hershberger and its progeny. 43 Ohio St.3d at 58. Given the similarity of the facts in this case to the facts presented in Zimmie, the underlying malpractice in Zimmie involved an antenuptial agreement, one of the primary issues in this case. In Zirrtrrrie, the Trial Court found the antenuptial agreement invalid. The client appealed the decision and lost in the Court of Appeals and ultimately in this Court. After this Court affirmed the decision finding the antenuptial agreement invalid, the client commenced a legal malpractice action against the attorney who had drafted the agreement. The client argued the statute of limitations began to run when this Court announced its decision. This Court rejected the argument and found that the cognizable event occurred when the Trial Court invalidated the antenuptial agreement. See also, Bowman v. Tyack, 10th Dist. No. O8AP-815, 2009-Ohio-1331, 12 ("A client is also not permitted to exhaustal! appellate remedies before the statute of limitations commences."); Wozniak v. Tonidandel, 121 Ohio App.3d 221, 699 N.E.2d 255 (8t" C}ist.1997)("A cognizable event can occur when the client learns of an adverse decision during litigation."). CONCLUSION Rickey respectfully requests this Court to decline to take jurisdiction of this case, as it does not involve a substantial Constitutional question, nor is it a case of public and great general interest. Waldron has identified no reason why this Court should revisit its clear and well-established jurisprudence regarding the application of the statute of limitations in 7

10 professional negligence cases. Respectfully submitted: PROOF OF SERVICE 7 ust, ( roeder Maundrell Barbiere & Powers 5300 Socialville-Foster Road, Suite 200 Mason, OH fax jhust@smbplaw.com ATTORNEY FOR APPELLEES I certify that an accurate copy of the foregoing was sent via to F. Harrison Green, Attorney for Plaintiff, fhgreen@fuse.net, Executive Park, Suite 230, 405 Executive Park Drive, Cincinnati, OH this 215i day of February, ^.A.. -^^ Ahn/W. Hust ^-^/ 8