McGlothin v. Schad
957 N.E.2d 810
Ohio Ct. App.2011Background
- McGlothin was sentenced 28 years to life for murder and related offenses; Schad represented him on direct appeal.
- The First District affirmed in 2007 and the Supreme Court of Ohio declined review in 2008.
- McGlothin filed a Rule 26(B) application in 2009 alleging ineffective assistance of counsel; the First District reopened the appeal and found error in failing to challenge the sentence for allied offenses.
- Resentencing in 2009 did not change the term, and McGlothin pursued a legal-malpractice claim in 2010 in Warren County Court.
- Schad moved for judgment on the pleadings arguing a statute of limitations defense and failure to plead damages; the trial court granted the motion, concluding the claim was time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the malpractice statute of limitations accrue? | McGlothin argues accrual depends on when damages are discovered. | Schad contends accrual occurred at cognizable event when injury tied to attorney's act was discoverable. | Accrual occurred at the cognizable event (discovery of injury) per Zimmie, March 31, 2009. |
| Whether the attorney-client relationship terminated before the suit was filed to toll the statute? | Relationship continued beyond appellate reopening, tolling the period. | Termination occurred when McGlothin independently sought reopening on April 1, 2009. | Relationship terminated April 1, 2009, ending tolling. |
| Does timely filing after accrual bar the claim even with tolling considerations? | Damages should be recoverable for incompetent services already alleged. | More than one year elapsed between accrual (March 31, 2009) and filing (August 18, 2010). | Statute of limitations barred the malpractice claim. |
Key Cases Cited
- Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54 (1989) (two-step accrual test for legal-malpractice actions; cognizable event and termination)
- Omni-Food, & Fashion, Inc. v. Smith, 38 Ohio St.3d 385 (1988) (attorney-client relationship termination and tolling)
- State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565 (1996) (statutory/claims accrual considerations in tort and related actions)
- Peterson v. Teodosio, 34 Ohio St.2d 161 (1973) (pleadings standard and de novo review of Civ.R. 12(C))
- Union Twp. v. Union Twp. Professional Firefighters’ Local 3412, 142 Ohio App.3d 542 (2001) (Civ.R. 12(C) standard; consideration of pleadings and attached writings)