McOwen v. Zena
2012 Ohio 4568
Ohio Ct. App.2012Background
- McOwen engaged Zena in Oct 2003 to pursue claims against Milentijevic for her home construction project.
- Zena filed suit on Feb 10, 2004 for damages; Milentijevic counterclaimed and sought documents.
- Zena failed to respond to Milentijevic's motions; Milentijevic obtained default judgment and sanctions on June 23, 2005.
- Zena dismissed McOwen's case without her consent on June 23, 2005, but McOwen was unaware for years.
- McOwen indicated termination of engagement by letter on July 25, 2008; she later sought her file, which was not provided.
- McOwen learned on Aug 13, 2008 that her case had been dismissed, and filed a legal-malpractice complaint on Aug 10, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the attorney-client relationship terminate? | McOwen contends August 11, 2008. | Zena argues termination occurred July 25, 2008 or earlier. | August 11, 2008 unequivocally terminated the relationship. |
| When did the cognizable event occur for accrual? | Cognizable event on August 13, 2008 when informed of dismissal. | Event occurred earlier or later per court’s view of discovery. | Cognizable event occurred August 13, 2008. |
| Is the malpractice suit timely under the one-year statute after accrual? | Within one year of August 13, 2008 filing on August 10, 2009 was timely. | Filed after one year from accrual; time-barred. | Yes, timely; complaint could survive Civ.R. 12(B)(6). |
Key Cases Cited
- Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54 (Ohio 1989) (two-date accrual rule: later of cognizable event or termination determines start of limitations)
- Cook v. Caruso, 6th Dist. No. L-05-1208, 2006-Ohio-1982 (6th Dist. 2006) (cognizable event analysis for legal malpractice)
- Harman v. Wise, 7th Dist. No. 00 CA 50, 2001-Ohio-3489 (7th Dist. 2001) (termination concepts and mutual confidence between attorney and client)
- Duvall v. Manning, 11th Dist. No. 2010–L–069, 2011-Ohio-2587 (11th Dist. 2011) (termination communication can be unequivocal termination)
- Griggs v. Bookwalter, 2d Dist. No. 21220, 2006-Ohio-5392 (2d Dist. 2006) (cognizable event and discovery sufficient to start clock)