DEAN O. GRENOBLE, Appellant, - vs - RION, RION, RION, L.P.A., INC., et al., Appellees.
CASE NO. CA2014-07-006
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
3/16/2015
2015-Ohio-971
M. POWELL, J.
CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 14-CV-030155
Rion, Rion, Rion, L.P.A., Inc., Jon Paul Rion and Nicole Rutter-Hirth, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402, for appellees
O P I N I O N
M. POWELL, J.
{¶ 1} Plaintiff-appellant, Dean O. Grenoble, appeals pro se a decision of the Preble County Court of Common Pleas granting summary judgment in a legal malpractice action to defendants-appellees, the law firm of Rion, Rion, Rion, L.P.A., Inc., and two of its attorneys, John H. Rion and Jon Paul Rion. For the reasons discussed below, we affirm the decision of the trial court.
{¶ 3} This court subsequently affirmed appellant‘s conviction and sentence. State v. Grenoble, 12th Dist. Preble No. CA2010-09-011, 2011-Ohio-2343. As a result, appellant‘s bond was “cancelled” and he was ordered to appear to begin serving his sentence. Appellant did not voluntarily appear, and he was returned to Ohio only after significant extradition efforts by the state. Appellant alleges that his failure to appear was due to the advice of appellees to challenge extradition from Arizona, and that this advice led to the forfeiture of a bond he had posted.1 Regardless, appellant began serving his eight-year prison term in October 2011.
{¶ 4} In December 2011, appellees, on behalf of appellant, moved the trial court for a modification of appellant‘s sentence. On December 22, 2011, the trial court filed an entry denying the motion.
{¶ 5} On January 23, 2012, appellant, acting through new counsel, appealed the denial of his motion to modify sentence. In his brief, filed on April 19, 2012, appellant argued he received ineffective assistance of counsel during appellees’ representation. This court affirmed the trial court‘s refusal to modify appellant‘s sentence. State v. Grenoble, 12th Dist. Preble No. CA2012-01-001, 2012-Ohio-5961.
{¶ 6} On January 16, 2014, the clerk of the trial court received a document from appellant that was captioned “Motion to Proceed In Forma Pauperis.” (Emphasis sic.) The motion indicated that “[appellant‘s] Affidavit of Indigency and the statement of the institution cashier is attached hereto and made a part hereof[,]” but these documents are not in the record. On January 30, 2014, the trial court granted appellant‘s motion and allowed him to file a complaint without the normal deposit of court costs. On that same day, appellant‘s complaint, captioned “Complaint in Legal Malpractice,” was filed with the trial court.
{¶ 7} Appellees moved to dismiss appellant‘s complaint on the ground that the statute of limitations had expired on his legal malpractice claim. The trial court converted appellees’ motion into a motion for summary judgment, and appellees subsequently filed a memorandum in support of summary judgment accompanied by supporting affidavits and other exhibits. Appellant filed pro se a memorandum in opposition that was not accompanied by any supporting affidavits or exhibits.
{¶ 8} On June 26, 2014, the trial court found that appellant‘s claim was barred by the statute of limitations, and therefore granted summary judgment in favor of appellees.
{¶ 9} Appellant now appeals, raising three assignments of error.
{¶ 10} Assignment of error No. 1:
{¶ 11} THE TRIAL COURT JUDGE VIOLATED
{¶ 12} Appellant observes that the timestamp on his “Motion to Proceed In Forma Pauperis” indicates the motion was received by the clerk of the trial court on January 16, 2014. Yet, appellant notes that the trial court did not grant his motion or approve the filing of his complaint until January 30, 2014. Appellant asserts the trial court violated
{¶ 13} Appellant‘s reliance on
{¶ 14} In addition, appellant failed to comply with the statutory process for obtaining a waiver of deposit.
[I]f a plaintiff makes an affidavit of inability either to prepay or give security for costs, the clerk of the court shall receive and file the petition. Such affidavit shall be filed with the petition, and treated as are similar papers in such cases.
{¶ 15} Thus, if the clerk is presented with any paper that is properly prepared and accompanied by an affidavit of indigency, it is the clerk‘s duty under
{¶ 16} In the present case, appellant‘s complaint was not accompanied by either the requisite filing fee or an affidavit of indigency. Instead, appellant presented the clerk with a “Motion to Proceed In Forma Pauperis.” Although the clerk‘s timestamp indicates this motion was received on January 16, 2014, the clerk did not have the authority to grant the motion and file appellant‘s complaint at that time. Therefore, the clerk rightly submitted the motion to the trial court for a determination as to appellant‘s right to file his complaint. The record indicates the court considered appellant‘s motion within a reasonable time, and the clerk duly filed the complaint after the motion was granted on January 30, 2014.
{¶ 17} Consequently, appellant‘s first assignment of error is overruled.
{¶ 18} Assignment of error No. 2:
{¶ 19} DEFENDANT‘S WERE DIRECTLY RESPONSIBLE, AS DETERMINED FROM THEIR CONTRACTUAL REQUIREMENTS, FOR PLAINTIFF‘S SIGNIFICANT LOSS OF PROPERTY, CAUSING THE SUIT TO FALL UNDER THE TWO YEAR STATUTE OF LIMITATIONS OF
{¶ 20} Appellant argues the trial court erred by applying the one-year statute of limitations for malpractice claims to his case. Appellant contends the trial court should have instead applied the two-year statute of limitations for a product liability action pursuant to
1. Standard of Review
{¶ 21} Appellate review of a trial court‘s decision to grant summary judgment is de novo. Ward v. Graue, 12th Dist. Clermont No. CA2012-06-046, 2013-Ohio-1107, ¶ 10. Thus, the appellate court uses the same standard the trial court should have used, and examines the evidence to determine whether as a matter of law no genuine issues exist for trial. Id. Pursuant to
2. The Statute of Limitations
{¶ 22} To determine which statute of limitations governs a given claim, “courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial.” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984); DLK Co. of Ohio v. Meece, 12th Dist. Warren No. CA2012-07-060, 2013-Ohio-860, ¶ 18.
{¶ 23} It is well-settled that a client‘s action against his attorney for damages resulting from the manner in which the attorney represented the client constitutes an action for malpractice within the meaning of
{¶ 24} Upon review, we find that the statute of limitations for malpractice under
{¶ 25} First, we note that the services of an attorney do not constitute a “product” as contemplated by product liability claims pursuant to
{¶ 26} Moreover, all of appellant‘s claims arose out of the manner in which appellant was represented within the attorney-client relationship. Appellant‘s argument for the application of the statute of limitations for the tortious taking of personal property,
{¶ 27} Clearly, appellant‘s claims sound in legal malpractice, notwithstanding appellant‘s attempts to label them otherwise. Wilkerson, 2009-Ohio-6550 at ¶ 30, citing Callaway v. Nu-Cor Auto. Corp., 166 Ohio App.3d 56, 2006-Ohio-1343, ¶ 14 (10th Dist.). Complaints sounding in malpractice subsume other, duplicative claims. Illinois Natl. Ins. Co. v. Wiles, Boyle, Burkholder & Bringardner Co., L.P.A., 10th Dist. Franklin No. 10AP-290, 2010-Ohio-5872, ¶ 15. Therefore, appellant‘s claims are subject to the one-year statute of limitations set forth in
3. Application of R.C. 2305.11(A)
{¶ 28} Having determined that
{¶ 29} The Ohio Supreme Court has determined that an action for legal malpractice accrues and the statute of limitations begins to run when either a cognizable event occurs or the attorney-client relationship terminates, whichever comes later. Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54 (1989), syllabus. A cognizable event occurs when the party discovers or should have discovered that he was injured by the attorney‘s actions or nonactions. McGlothin v. Schad, 194 Ohio App.3d 669, 2011-Ohio-3011, ¶ 12 (12th Dist.). The injured party does not need to be aware of the full extent of his injury for a cognizable event to occur, but the event should alert the party that there was a questionable legal practice. Id. For example, a cognizable event occurs when the client alleges ineffective assistance of trial counsel on appeal. Id. at ¶ 13.
[T]he client retaining other counsel * * *. [W]hen the underlying action has concluded or when the attorney has exhausted all remedies in the case. * * * [W]hen there is a lack of subsequent legal remedies in a particular transaction and there is no communication between the parties regarding any related legal matter.
(Citations omitted.) McGlothin at ¶ 15.
{¶ 31} In the present case, appellant argues that the cognizable event occurred on January 28, 2013, when a former attorney and a librarian in the prison law library helped him understand he may have a claim against appellees. Yet, as noted above, appellant‘s complaint was not filed until January 30, 2014, one year and two days after appellant alleges the claim for malpractice accrued.
{¶ 32} “Under
{¶ 33} In addition, we note that even if appellant had properly filed his complaint on January 16, 2014, as he contends, appellant‘s malpractice claim would nonetheless be barred by the one-year statute of limitations under
{¶ 34} Accordingly, appellant‘s second assignment of error is overruled.
{¶ 35} Assignment of error No. 3:
{¶ 36} PLAINTIFF SUSTAINED INJURY DUE TO LACK OF COMMUNICATION AND FAULTY LEGAL ADVICE FROM HIS LAWYER‘S WHICH CREATED A SITUATION WHERE PLAINTIFF SUSTAINED SIGNIFICANT PROPERTY LOSS. [SIC]
{¶ 37} In his third assignment of error, appellant seems to argue the trial court erred in granting summary judgment to appellees because a genuine issue of material fact still existed for trial. In view of our disposition of appellant‘s second assignment of error, his third assignment of error is rendered moot and we decline to address it.
{¶ 38} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.