IN THE SUPREME COURT OF OHIO

ORIGINAL IN THE SUPREME COURT OF OHIO GLENN SMITH ) Case No. 12-2095 vs. Appellant, ) ) On Appeal from the Franklin County Court of Appeals, Tenth Appellate District CRAIG BARCLAY, ET AL. ) Court Of Appeals Case No. 11-AP-000798 Appellees. ) MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEES CRAIG D. BARCLAY, CRAIG D. BARCLAY, L.L.C. AND CRAIG D. BARCLAY D/B/A ALTON & BARCLAY, CO., L.P.A. Counsel for Appellant, Glenn Smith: Jack Morrison, Jr. (0014939) Thomas R. Houlihan (0070067) Vicki L. DeSantis (0075716) AMER CUNNINGHAM CO, L.P.A. 159 S. Main Street 1100 Key Building Tele. 330-762-2411 Fax 330-762-9918 Houlihan@amer-law.com 01 ^^'01i J D C^EW OF 00, IJRT SG^^^^^^^ ^^^^^^TCOF- OHIO Counsel for Appellees, Craig D. Barclay, Craig D. Barclay, L.L.C., and Craig D. Barclay d/b/a Alton & Barclay, L.P.A.: Christopher R. Meyer (0011419) Reese, Pyle, Drake & Meyer, P.L.L. 36 North Second St. P.O. Box 919 Newark, Ohio 43058-0919 Tele. 740-345-3431 Fax 740-345-7302 cmeyer@rpdm.com Counsel for Appellees, David Shroyer and Colley, Shroyer & Abraham, Co., L.P.A.: John C. Nemeth (0005670) David A. Herd (0059448) John C. Nemeth & Associates 21 East Frankfort Street Columbus, Ohio 43206 Tele. 614-443-4866 herd@nemethlaw.com JAN 0 9 l 0 13 CLERK QF Cql^RT SUPREME COURT OF QNI

I II. III. IV. V. TABLE OF CONTENTS WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF FACTS LAW AND ARGUMENT A. Appellant's Proposition of Law 1. The Legal Malpractice Statute of Limitations 2. The Cognizable Event Rule Under Zimmie Is An Objective Standard That Was Correctly Applied to the Facts of This Case CONCLUSION CERTIFICATE OF SERVICE 1 2 6 6 6 7 10 11 1

I. WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL INTEREST This case is not one of public or great general interest; rather, it involves a straightforward application of this Court's test in Zimmie v. Calfee, Halter & Griswolt ( 1989), 43 Ohio St. 3d 54 to determine the accrual date for the statute of limitations in a legal malpractice action. In Zimmie, this Court stated: "[A]n 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. The Zimmie test is frequently referred to as a two-part test or hybrid test because it combines a termination rule; that is, when the attorney-client relationship ends, with a discovery rule for determining the triggering event for the commencement of the statute of limitations. The parties agree that the attorney-client relationship in this case terminated on November 7, 2007-- almost two years before Smith's legal malpractice suit was filed--when Appellee Craig Barclay ("Barclay") sent Smith a letter declining representation in his potential medical malpractice case. Accordingly, the Tenth District Court of Appeals properly focused on the discovery rule in Zimmie to determine if there was a later accrual date for the statute of limitations. The Court of Appeals then correctly determined that the statute of limitations against Barclay accrued when Dr. Darrell Gill filed a motion for summary judgment in the underlying medical malpractice case on September 10, 2008, finding that to be the "cognizable event" triggering the statute of limitations for legal malpractice under Zimmie. In an attempt to make it appear as though the Tenth District has disregarded this Court's precedent, Smith claims that it has adopted a line of authority that "compresses" the Zimmie test 1

into a one-part inquiry. (Appellant's Memorandum In Support of Jurisdiction, p. 12) He asserts that the motion for summary judgment "may have been sufficient to alert [him] that a potential problem, existed," but that the Court of Appeals has ignored that portion of the Zimmie test which requires that "the client is put on notice of a need to pursue his possible remedies against the attorney." Id. To the contrary, the Tenth District Court of Appeals specifically found that the September 10, 2008 motion for summary judgment "should have made Smith aware that a `questionable legal practice may have occurred' and [that Smith] might need to pursue remedies against his attorney." (November 20, 2012, Nunc Pro Tunc Decision p. 9) (Emphasis added). Smith contends that he was not put on "notice" of a need to pursue his possible remedies until the trial court issued a judicial detennination. However, as the Court recognized in its Decision, "[k]nowledge of a potential problem starts the statute to run, even when one does not know all the details." (November 20, 2012, Nunc Pro Tunc Decision, p. 9, quoting Halliwell v. Bruner, 8th Dist. No. 76933, 2000 WL 1867398, *6). Finally, contrary to Smith's argument, there is no conflict among the districts with regard to the application of the Zimmie test; rather, the courts of appeals have applied that test to different sets of facts, leading to different results. See, Taylor v. Brocker 117 Ohio App. 3d 174 (January 8, 1997). Accordingly, this Court should decline to' exercise jurisdiction. II. STATEMENT OF FACTS On October 14, 2009, Appellant Glenn Smith filed his Complaint against Appellee Craig D. Barclay ("Barclay") for legal malpractice, claiming Attorney Barclay failed to extend the statute of limitations for Smith's underlying medical malpractice claim against Darrell Gill, D.O. ("Dr. Gill"). Smith also sued Barclay's professional limited liability company, Craig D. Barclay, 2

LLC, and his legal secretary Kim Van Doom ("Van Doom"), alleging that they too were liable for the same mistake. In their Answer the Appellees asserted, inter alia, the statute of limitations. On July 17, 2006, Dr. Gill had cared for Smith in the emergency room at Doctor's Hospital, Nelsonville, Ohio. Before leaving the hospital after midnight, Smith triggered the oneyear medical malpractice statute of limitations relative to that care, when he threatened to sue Dr. Gill for medical malpractice. Only days before the statute was to run, Smith engaged Barclay to investigate the feasibility of bringing a medical malpractice case against Dr. Gill, with Smith and Barclay signing a Malpractice Claim Investigation Contingent Fee Agreement on July 11, 2007. Under the terms of the agreement, Smith requested Barclay "to investigate whether or not there is reasonable cause to believe" he had "a meritorious medical malpractice... claim." Barclay agreed to pursue a claim "ifthe results of the investigation reveal that the...claim is meritorious" and ifbarclay "agrees to pursue said claim." Further, Barclay "in his absolute discretion" was permitted "to withdraw at any time from the case, if the claim does not appear recoverable to him." With the statute of limitations deadline looming, Barclay acted to secure more time for his investigation, sending five 180-day letters by certified mail. Only one letter was addressed and sent directly to Dr. Gill at his residence. Although that certified letter was dated and sent on July 6, 2007, Dr. Gill did not sign for the letter until July 21, 2007-three days after the one-year anniversary of Smith's last treatment by Dr. Gill and Smith's threat to sue him. In due course, Barclay completed his case investigation; and by letter dated November 7, 2007, Barclay advised Smith: 3

"I cannot recommend the filing of a lawsuit, nor can I represent you should decide to do so...in these medical negligence cases, it is incumbent upon the patient to prove that the medical care providers failed to meet the acceptable standard of care in treating the patient, and that such failure was the direct cause of significant harm to that patient. Unfortunately, I believe I would have difficulty establishing either of these essential proof elements in this case." Undeterred, Smith sought out and engaged other legal counsel, and on January 4, 2008, attorneys Jack Morrison, Jr. and Vicki L. DeSantis of Amer Cunningham Co., LPA (collectively, "Amer Firm") brought Smith's medical malpractice claims against Dr. Gill and Doctor's Hospital. Dr. Gill answered on March 10, 2008, asserting the medical malpractice statute of limitations as an affirmative defense. On August 11, 2008, Dr. Gill filed a Motion For Leave To File Motion For Summary Judgment "to address [Smith's] failure to file his claim of medical malpractice against Dr. Gill within the applicable statute of limitations under Ohio Revised Code Section 2305.113." On September 10, 2008, Dr. Gill filed his Motion For Summary Judgment on the ground that "[Smith] failed to commence his medical malpractice claim against Dr. Gill within the oneyear statute of limitations in Ohio Rev. Code Section 2305.113. The care at issue occurred on July 17, 2006 and this lawsuit was not filed until January 4, 2008 (over one year and four months later)." Attached to the motion was an affidavit from Dr. Gill wherein he stated that he only rendered care and treatment to Smith on July 17, 2006, and that he "did not receive a 180-day letter in relation to this lawsuit." Based thereon, and upon Smith's own medical chart from the July 17, 2006 ER visit, wherein it is documented that "Smith was inquiring to the hospital staff whether they had ever heard of a malpractice lawyer," Dr. Gill's counsel argued that Smith's medical malpractice case "was time-barred as to Dr. Gill and should be dismissed. " One of Smith's lawyers, Vicki L. DeSantis, then contacted Barclay's office on September 4

19, 2008, asking for copies of the 180-day letters that Barclay had sent. Thereafter, on September 22, 2008, Barclay's legal secretary Van Doom faxed and mailed to attomey DeSantis an affidavit from Barclay with attachments, including the July 6, 2007, letter addressed and sent to Dr. Gill at his residence and the certified mail receipt showing that Dr. Gill had signed for the letter on July 21, 2007-three days after the one-year anniversary of Smith's last treatment by Dr. Gill and Smith 's threat to sue him. On October 3, 2008, Attomey DeSantis filed the Barclay affidavit and its attachments with Plaintiff's Brief In Opposition to Defendant's Motion for Summary Judgment, Motion to Strike Affidavit, and Motion For Sanctions. And the Amer Firm thereupon argued that Dr. Gill had been served "with 180-day letters at three locations to extend the one year statute on his medical malpractice claim." An affidavit from post office personnel was filed with the Court, further documenting July 21, 2007, as the date Dr. Gill signed for the 180-day letter addressed and sent to him at his residence. Contending that he did not remember signing for the 180-day letter on July 21, 2007, Dr. Gill, nonetheless, replied on October 10, 2008, that his personal receipt of the 180-day letter was three days too late anyway. Dr. Gill's motion for summary judgment was initially denied because the court concluded there was no proper evidence before it about when Appellant's statute of limitations for medical malpractice accrued. However, as stated above, the hospital records clearly documented the Appellant's threat to sue Dr. Gill for malpractice in the Emergency Room in Nelsonville at the time of his treatment by Dr. Gill on July 17, 2006. This evidence was eventually provided to the court in the proper form under Rule 56. And on August 21, 2009, the Court granted summary judgment to Dr. Gill on his statute of limitations defense. The Court of Appeals affirmed. Smith 5

v. Gill, 2010 WL 3353037, 2010-Ohio-4012 (Ohio App. 8 Dist. 2010). The Supreme Court declined review. Smith v. Gill, 127 Ohio St.3d 1485 (2010). Smith's legal malpractice case against Barclay was filed on October 14, 2009. The trial court found that the statute of limitations was triggered when Dr. Gill filed his September 10, 2008 motion for summary judgment. The trial court ultimately found that the statute of limitations expired before Smith's legal malpractice lawsuit was filed. The Tenth District Court of Appeals agreed and affirmed the grant of summary judgment. III. LAW AND ARGUMENT A. Appellant's Proposition of Law: IN A LEGAL MALPRACTICE CASE ARISING FROM UNDERLYING LITIGATION, A PLAINTIFF IS NOT PUT ON NOTICE OF A NEED (SIC) PURSUE POSSIBLE REMEDIES AGAINST THE DEFENDANT ATTORNEY UNTIL THE UNDERLYING TRIAL COURT RULES UPON DEFENSES THAT RESULTED FROM THE DEFENDANT ATTORNEY'S CONDUCT. Contrary to Appellant's Proposition of Law, the Tenth District Court of Appeals properly applied the test set forth in Zimmie and picked the proper accrual date for the legal malpractice statute of limitations. 1. The Legal Malpractice Statute oflimitations "[A]n action for malpractice *** shall be commenced within one year after the cause of action accrued ***" Ohio Rev. Code 2305.11(A). As stated above, this Court has promulgated a two-part test for "accrual": "[A]n 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." 6

Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, syllabus (1989) 2. The Ck-nizable Event Rule Under Zimmie Is An Obiective Standard That Was Correctly Applied to the Facts of This Case. The cognizable event rule was adopted by this Court to eliminate unfairness in cases where a party may be injured without knowing it. Flowers v. Walker (1992), 63 Ohio St.3d 546, 550 (citing the example of a surgical sponge not removed during an operation).1 The legal standard under Zimmie is an objective standard. It has been repeatedly found that "[a] cognizable event is that which would alert a reasonable person that a questionable legal practice may have occurred." DiSabato v. Thomas M. Tyack & Assoc. Co., L.P.A., 1999 WL 715901, *4 (Ohio App. 10 Dist. 1999, citing Zimmie, 43 Ohio St.3d at 58 (emphasis added); accord Burzynski v. Bradley & Farris Co., L.P.A., 2001 WL 1662042, *3, 200 1 -Ohio-8846, p. 4 (Ohio App. 10 Dist. 2001). Like any other potential tort plaintiff, the client is then "put on notice of a need to pursue his possible remedies." Zimmie, 43 Ohio St.3d at syllabus; accord Flowers, 63 Ohio St.3d at 549 (client then becomes obliged to "investigate the facts and circumstances relevant to her claim in order to pursue her remedies"). This Court has stated that the client -need not have actual knowledge of the facts, constructive knowledge being sufficient. Zimmie, 43 Ohio St.3d at syllabus ("knew or should have known") (emphasis added). Furthermore, "[a] plaintiff need not have discovered all the relevant facts necessary to file a claim in order to trigger the statute of limitations. [citation]" Flowers, 63 Ohio St.3d at 549. Thus, "[t]he focus should be on what the client was aware of and 1 Flowers is a medical malpractice case. But the same standard for "accrual" applies whether the action is for medical malpractice or for legal malpractice. Zimmie, 43 Ohio St.3d at 57. Accordingly, medical malpractice court opinions are frequently cited, and relied upon, in the legal malpractice context. E.g., id. 7

not an extrinsic judicial determination." McDade v. Spencer, 75 Ohio App.3d 639, 643 (10 Dist. 1991); Burzynski, 2001 WL 1662042, *3, 2001-Ohio-8846, p. 4. Smith argues that the assertion of a defense, or the filing of a motion, cannot trigger the running of the statute of limitations and "[o]nly when a trial court (or its equivalent) determines that the defense is valid should the legal malpractice statute of limitations begin to run." (Appellant's Memorandum in Support of Jurisdiction, p. 10). Smith cites Vagianos v. Halpern, 8th Dist. No 76408, 2000 WL 1844752 (December 14, 2000) and Vassil v. Gross & Gross, L.L.C., 8th Dist. No. 94919, 2011-Ohio-1920 (April 21, 2011) to support his position. The Eighth District in Vagianos and Vassil found, respectively, that the assertion of an affirmative defense of resjudicata in an Answer and that the notification of an employer that it intended to invoke a cross-default provision in an asset purchase agreement were not triggering events under Zimmie. Both were found to be nothing more that the "possibility or remote chance" of a probable malpractice claim rather than an "event whereby the client discovers or should have discovered that his injury was relation 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" under Zimmie. When analyzing the specific facts of the instant case, the Tenth District Court of Appeals properly recognized that the September 10, 2008 motion for summary judgment triggered the statute of limitations stating: "[t]his motion describes the exact nature of Barclay's questionable legal practice. Indeed, the conduct described. in Dr. Gill's September 10, 2008 summaryjudgment motion is the basis for Smith's complaint in the present case:" Accordingly, this motion should have made Smith aware that a "questionable legal practice may have occurred" and [that Smith] might need to pursue remedies against his attorney." (November 20, 2012, Nunc Pro Tunc Decision, p. 9, emphasis added). 8

Unlike the "mere possibility" or "remote chance" of a probable legal malpractice claim described in Vagianos and Vassil, the September 10, 2008 motion for summary judgment should have made Smith aware of a potential legal malpractice and placed him on notice that he might need to pursue remedies. Smith's Proposition of Law requires a "ruling upon defenses that resulted from the defendant's conduct" before a cognizable event can be found under Zimmie. However, the Eighth District has expressly declined to adopt a "time of actual injury" rule. Barna v. Joseph, 8th Dist. No. 56806, 1989 WL 70007 (June 22, 1989). And the Eighth District agreed in Vagianos that the Zimmie test requires, in determining the cognizable event, that "the focus should be on what the client was aware of and not on an extrinsic judicial determination." Id. at *2. Accordingly, what Smith asserts as the rule of law in the Eighth District and is belied by and contradicted by its own decisions. Smith cites Johnson v. Garretson, 12th Dist. No. CA92-01-001, 1992 WL 201039 (August 17, 1992), to support his argument that the statute of limitations begins to run from a trial court's grant of summary judgment and not some event prior to the court's ruling. The cursory description of the underlying facts in the decision indicates that the court decided that a client's general awareness that his attorney did not complete all necessary steps to accomplish transfer of a business was insufficient to constitute the triggering or cognizable event under Zimmie. However, the Johnson case dealt with an Answer that provided merely a "suggestion of potential problems." Id. at *3. Accordingly, Johnson is distinguishable. The Tenth District Court of Appeals has not diverged from this Court's precedent. Smith fails to recognize is that the test in Zimmie is an objective standard that is applied to vastly different fact patterns, leading to different results. In DiSabato v. Thomas M. Tyack & Assoc. 9

Co., L.P.A., 1999 WL 715901 (Ohio App. 10 Dist. 1999); McDade v. Spencer, 75 Ohio App.3d 639 (10 Dist. 1991) and Bowman v. Tyack 2009-Ohio-1331 (10 Dist. 2009) the Tenth District correctly applied the Zimmie test to the facts of each case before it. Thus in DiSabato, McDade and Bowman, as in the case at bar, the cognizable event was the filing of a motion in the trial court - an event "that would alert a reasonable person that a questionable legal practice may have occurred." Smith's subjective beliefs about the merit of Dr. Gills' motion for summary judgment are irrelevant. The test is when the injured party became aware, or should have become aware, of the extent and seriousness of the legal problem. What could be any more "serious" and "extensive" than a statute of limitations defense that destroys the lawsuit? Smith was objectively on notice that a questionable legal practice may have occurred no later than the September 10, 2008 motion for summary judgment. Once on notice, Smith, like any other potential tort plaintiff, was then "put on notice of a need to pursue his possible remedies." Zimmie, 43 Ohio St.3d at syllabus; accord Flowers, 63 Ohio St.3d at 549 (client then becomes obliged to "investigate the facts and circumstances relevant to her claim in order to pursue her remedies"). Consequently, the Tenth District Court of Appeals properly determined that the statute of limitations began to accrue on September 10, 2008. Conclusion This Court should decline to accept jurisdiction as there is no actual conflict between the district courts which have correctly applied the test set forth in Zimmie in an objective manner to the facts of the cases before them. The Tenth District Court of Appeals properly applied the Zimmie test to the facts of the case at bar and Appellant's appeal to this Court is without merit. 10

Respectfully submitted, Christopher R. Meyer (0011419) REESE, PYLE, DRAKE & MEYER, P.L.L. 36 North Second Street P.O. Box 919 Newark, Ohio 43058-0919 Telephone: (740) 345-3431 Facsimile: (740) 345-7302 Email: emeyer@rpdm.com Attorney for Defendants Craig. D. Barclay, Craig. D. Barclay, LLC and Craig. D. Barclay d/b/a Alton & Barclay Co., LPA, CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum In Opposition of Jurisdiction of Appellees Craig. D. Barclay, Craig. D. Barclay, LLC and Craig. D. Barclay d/b/a Alton & Barclay Co., LPA was served by ordinary U.S. Mail, postage prepaid, upon Thomas R. Houlihan, Jack Morrison, Jr., Esq. and Vicki L. DeSantis, Esq., Amer Cunningham Co., L.P.A., 159 South Main Street, Suite 1100, Akron, Ohio 44308 and John C. Nemeth, Esq. and David A. Herd, Esq., John C. Nemeth & Associates, 21 East Frankfort Street, Columbus, Ohio 43206 on this day of January, 2013. & en? y'^^^ Christopher R. Meyer 11