Kilko v. HaverfieldKilko v. Haverfield
GEORGE KILKO, JR., PLAINTIFF-APPELLANT vs. WALTER & HAVERFIELD, DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-687268
RELEASED AND JOURNALIZED: December 23, 2010
Thomas Schmelzer
Stephanie J. Lane
Schmelzer & Lane
1370 Ontario Street
Suite 1814
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
George S. Coakley
Todd M. Jackett
Reminger & Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115-1093
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, George Kilko, seeks reversal of the trial court‘s grant of summary judgment in favor of appellee, Walter & Haverfield, L.L.P. (W&H), and the denial of his motion for leave to amend his complaint. After a thorough review of the record and the case law, we affirm the decisions of the trial court.
{¶ 2} Kilko owned several pieces of commercial real estate in northeast Ohio that were used for the operation of his various businesses. In March 2004, on the recommendation of his accountant, Kilko sought the services of
{¶ 3} Zwick turned over the job of transferring the real estate to an attorney at W&H, Eric Hall. Hall drafted deeds and other documents necessary for the transfer of the properties, which were then executed by Kilko. Hall filed the paperwork with the appropriate recorders’ offices and sent the recorded deeds to Kilko on April 28, 2005. From this information, it is apparent that Hall failed to transfer the property located at 1860-1870 Ridge Road in Painesville, Ohio (Ridge Road Property).1 This property was to be transferred to Bowhall, LLC. Hall thought the Ridge Road Property was titled in the name of GP&T, LLC, one of Kilko‘s LLCs for property in Euclid, Ohio. Kilko noticed that the Ridge Road Property was still titled in his name and informed Hall of that fact. The Ridge Road Property was never transferred to any LLC.
{¶ 5} Kilko asserts that he was not aware of the judgment lien until he attempted to sell the Ridge Road Property on March 12, 2008 because he had negotiated a payment plan with Viking and had been making payments. Upon the sale of the property, Kilko was required to satisfy the Viking judgment out of the sale proceeds.
{¶ 6} Kilko filed a malpractice suit against W&H on March 11, 2009 alleging that, as a result of W&H‘s malpractice, Kilko was required to satisfy the Viking judgment out of the proceeds of the sale of the Ridge Road Property, which he had intended to use to pay down other debts. As a result, he incurred an additional $2,000 per month in interest payments.
{¶ 7} W&H filed its answer and an amended answer asserting that the statute of limitations had run, barring Kilko‘s claim. W&H filed for summary judgment arguing the statute of limitations defense and that W&H could not be liable for the alleged malpractice of the law firm generally, but
{¶ 8} In response, Kilko petitioned the trial court to amend his complaint to include the individual attorneys involved. This motion was denied on December 22, 2009,3 and summary judgment was granted in favor of W&H on March 2, 2010. Kilko then timely filed an appeal citing two assignments of error.4
Law and Analysis
{¶ 9} Kilko first argues that the trial court abused its discretion when it denied his motions for leave to amend the complaint.
{¶ 10}
{¶ 11} The decision whether to allow a party leave to amend a complaint lies exclusively within the discretion of the trial court and the ruling will not be disturbed on appeal by a reviewing court absent an affirmative showing of an abuse of discretion. Richard v. WJW TV-8, Cuyahoga App. No. 84541, 2005-Ohio-1170, ¶21, citing Natl. Bank of Fulton Cty. v. Haupricht Bros. (1988), 55 Ohio App.3d 249, 251, 564 N.E.2d 101; Mead Corp. v. Lane (1988), 54 Ohio App.3d 59, 67, 560 N.E.2d 1319. To constitute an abuse of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 12} [A] plaintiff must move to amend under
{¶ 13} In Johnson, the Ninth District found that plaintiffs should not be permitted to sit by for [a 22-month] period and bolster up their pleadings in answer to a motion for summary judgment. Id., quoting Eisenmann v. Gould-Natl. Bakeries, Inc. (E.D.Pa.1958), 169 F.Supp. 862, 864, citing Cty. of Marin v. United States (N.D.Ca.1957), 150 F.Supp. 619, 623.
{¶ 14} In the present case, Kilko filed his original complaint on March 11, 2009. W&H then filed its motion for summary judgment on August 26, 2009. Almost a month later, on September 24, Kilko filed for leave to amend his complaint. This factor weighs heavily against permitting amendment.
{¶ 15} In denying Kilko‘s motion for leave to amend, the trial court found that suit against the individual attorneys [is] time-barred. Under
{¶ 16} As the trial court correctly found, whichever date is selected in the case, the claims Kilko is attempting to assert against the individual attorneys in his proposed amended complaint are barred by the statute of
{¶ 17}
{¶ 18} In Kraly, a plaintiff tried to amend its complaint to add a claim against an insurance company for uninsured motorist coverage and to add the insurance company as a party due to the insolvency of the original defendant‘s insurance carrier. The Court determined that the effect of the
{¶ 19} Kilko is attempting to add parties to his complaint, not due to mistaken identity, but to assert claims that should have been asserted in the original complaint. According to the holding in Kraly, this is not a situation that allows these claims to relate back to the original filing date, and therefore, they are beyond the one-year statute of limitations as set forth in
{¶ 20} The trial court did not abuse its discretion in denying Kilko leave to amend his complaint after W&H had filed for summary judgment and after the statute of limitations for the new claims he wished to assert had run.
{¶ 21} Kilko also argues that the trial court erred in granting summary judgment in favor of W&H.
{¶ 22} It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798.
{¶ 23} This court reviews the lower court‘s granting of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153. An appellate court reviewing the grant of summary judgment must follow the standards set forth in
{¶ 24} Kilko asserted claims of direct legal malpractice against W&H only.7 The Ohio Supreme Court has recently held that a law firm is a business entity through which one or more individual attorneys practice their profession. * * * Thus, in conformity with our decisions concerning the practice of medicine, we hold that a law firm does not engage in the practice of law and therefore cannot directly commit legal malpractice. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶18.
{¶ 25} In his original complaint Kilko did not name any of the individual attorneys who allegedly provided deficient services. He only asserted claims against W&H generally. The Ohio Supreme Court has determined that a law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice. Id. at ¶26.
{¶ 27} Even if this were not the case, the trial court found that the applicable statute of limitations had run.
{¶ 28} Kilko argues that, because he has a continuing attorney-client relationship with W&H and Zwick regarding these businesses, among other things, the relationship is ongoing and suit is not precluded by this statute. However, the language used in Zimmie makes clear that it is only the relationship for that particular matter that is determinative.
{¶ 29} Kilko was aware, or reasonably should have been aware of the failure to transfer the Ridge Road Property to an LLC at least one year prior to March 11, 2009, the date the complaint was filed. The sale agreement for the Ridge Road Property listed the seller as Kilko individually, not any LLC. Further, Kilko received real estate tax assessments in his name in 2005, 2006, 2007, and 2008. Various leases for the premises were also executed in the intervening time period by Kilko individually, rather than in the name of any company. This accumulation of evidence demonstrates that Kilko reasonably should have been aware of the fact that the Ridge Road Property was still titled in his name prior to March 2008.
{¶ 30} The attorney-client relationship established for the transfer of properties ended soon after those properties were transferred and the deeds sent to Kilko on April 8, 2005. He learned at that time that one property remained in his name. W&H last provided any sort of communication or
Judgment 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
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR
APPENDIX
Appellant‘s assignments of error:
I. The trial court abused its discretion when it denied appellant‘s motions for leave to amend the complaint.