Hicks v. Garrett
2012 Ohio 3560
Ohio Ct. App.2012Background
- Hicks is executor for Thelma Gredick’s estate in a civil action involving misuse of funds from CDs tied to Gredick’s late husband.
- Garrett withdrew $154,417.19 from the CDs, endorsed by both parties, and deposited funds into Garrett’s accounts; later an amended estate schedule excluded the CDs.
- Gredick’s power of attorney was granted to Garrett; Hicks learned of the CDs’ status and pursued recovery beginning 2005.
- Suits included legal malpractice, negligent hiring/supervision, fraud, conversion, and undue influence against Garrett and EMS-related entities.
- Court granted partial summary judgment on statute-of-limitations issues; trial proceeded to jury on fraud/conversion/undue-influence claims against Garrett; directed verdicts favored EMS/Hicks; Hicks was awarded attorney’s fees; judgment affirmed in part, reversed and remanded in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations on legal malpractice claims | Hicks claims not time-barred | Claims accrued by 2002–2005 | Claims time-barred against EMS/Emershaw/Garrett |
| Statute of limitations on negligent hiring/supervision | Two-year limit tolled by discovery | Time-barred by discovery of injury in 2005 | Time-barred for EMS/Emershaw/garrett |
| Directed verdict on respondeat superior | Employer liable for Garrett’s actions | No nexus, independent acts | Directed verdict upheld for EMS/Emershaw/Hicks |
| Motion to amend to conform to evidence | Should add breach of contract/fiduciary duties/ unjust enrichment | Late, unsupported by opening statements | Denied to amend; harmless error |
| Mistrial/new trial denial | New theory after evidence should grant retrial | No basis after directed verdict/ dismissal kept consistent | Denied; no abuse of discretion |
Key Cases Cited
- Ladanyi v. Crookes & Hanson Ltd., 8 Ohio App.3d 264 (8th Dist. 2007) (limits on discovery rule for malpractice accrual)
- Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54 (1989) (accrual when cognizable event occurs)
- Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35 (1987) (standard for appellate review of summary judgment)
- Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143 (1991) (lodestar and DR 2-106 factors for attorney fees)
- Cundall v. U.S. Bank, 122 Ohio St.3d 188 (2009) (discovery rule for fraud/conversion accrual)