DAVID W. HARPER v. DAVID S. ANTHONY
No. 100082
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 23, 2014
[Cite as Harper v. Anthony, 2014-Ohio-214.]
BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-798073; JUDGMENT: AFFIRMED
Andrew J. Simon
James L. Simon
Freedom Square II, Suite 165
6000 Freedom Square Drive
Independence, Ohio 44131
ATTORNEYS FOR APPELLEE
Lori E. Brown
Colleen A. Mountcastle
Catherine F. Peters
Gallagher Sharp
Bulkley Building, 6th Floor
1501 Euclid Avenue
Cleveland, Ohio 44115
{¶1} This appeal presents us with the question of whether, under
{¶2} Anthony had provided legal representation to Harper in Harper‘s divorce case. On February 17, 2011, Harper filed a complaint against Anthony claiming legal malpractice (Harper I). Anthony filed an answer along with a counterclaim asserting that Harper was liable for unpaid legal fees.
{¶3} Harper did not file an answer to Anthony‘s counterclaim, and on December 16, 2011, Anthony moved for default judgment. On December 22, 2011, Harper filed a notice, pursuant to
{¶4} On December 21, 2012, Harper refiled his legal malpractice claim against Anthony (Harper II). Anthony filed a motion for summary judgment, arguing that Harper‘s legal malpractice claim was a compulsory counterclaim to Anthony‘s claim for
- The trial court erred in determining that the legal malpractice claim was barred by res judicata, because Harper had voluntarily dismissed the claim under
Civ.R. 41(A)(1)(a) , and so the claim was never decided on the merits. - The trial court erred in determining that a claim for legal malpractice is compulsory to a claim for unpaid legal fees, because a claim for legal malpractice does not arise from the creation of a contract; rather, the claim arises from conduct throughout the underlying representation.
We consider the assignments of error out of order for ease of discussion. For the reasons that follow, both assignments of error are overruled.
{¶5} We apply the de novo standard when reviewing an order granting summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We will affirm the trial court‘s order granting summary judgment if (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
{¶6} In the instant case, the trial court granted summary judgment in Harper II, concluding that the legal malpractice claim was a compulsory counterclaim to the claim
{¶7}
{¶8} Ohio courts use the logical relation test to determine whether a claim is a compulsory counterclaim. Rettig Ents. at paragraph two of the syllabus. Under this test, a compulsory counterclaim exists if that claim is logically related to the opposing party‘s claim such that separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts * * *. Id. Accordingly, multiple claims are compulsory counterclaims where they involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties. Id. at 279, quoting Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961).
{¶9} Harper argues that a claim for legal malpractice is not logically related to a claim for unpaid legal fees, but the Ohio Supreme Court has already decided that such claims are compulsory counterclaims under
{¶10} The issue before the Ohio Supreme Court was whether the plaintiff was entitled to a jury trial on the remaining counterclaim. The court concluded that the plaintiff‘s general jury demand served as notice to the defendant that she intended to exercise her constitutional right to a jury trial. In making this determination, the court stated that the general demand included the defendant‘s counterclaim, which was compulsory, since it arose out of the same operative facts as the underlying claims in the complaint. Id. at 438, citing
{¶11} In the case at bar, the trial court relied on Soler in concluding that Harper‘s legal malpractice claim was compulsory to Anthony‘s claim for unpaid legal fees. On appeal, Harper argues that the aforementioned language in Soler is merely dicta, that it need not be followed, and that Soler has nothing to do with the application of
{¶12} Harper argues that it is inequitable to require a party to bring a legal malpractice claim at the same time that another party files a claim for unpaid legal fees, because a legal malpractice claimant may not know that his claim has arisen until after the trial court resolves the claim for unpaid legal fees. But Harper‘s fear is unfounded, because a claim is compulsory under
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.
Zimmie v. Calfee, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus (discussing when the statute of limitations begins to run on a legal malpractice claim). Applying this definition to
{¶13} In this case, the record establishes that Harper‘s injury was discovered no later than February 17, 2011, because this is the date on which Harper filed his legal malpractice claim against Anthony. Accordingly, Harper‘s legal malpractice claim existed, for purposes of
{¶14} In his first assignment of error, Harper argues that, regardless of
{¶15} A voluntary dismissal pursuant to
{¶16} But a
{¶17} The Ninth District reached the same conclusion in a case factually and procedurally identical to the case at bar. Lenihan v. Shumaker, 9th Dist. Summit No. 12814, 1987 Ohio App. LEXIS 6693 (May 6, 1987). In that case the court reasoned that:
To hold otherwise would permit a defendant, who does not wish to have his compulsory counterclaim litigated in the same action as a claim against him, to defeat the mandatory provisions of
Civ.R. 13(A) and preserve his counterclaim by simply filing his claim in the first action then voluntarily dismissing the claim without prejudice.
{¶18} The trial court‘s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY