LARRY D. WALLING v. H. CHARLES WAGNER
C.A. CASE NO. 26807
T.C. NO. 14CV6596
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 19, 2016
2016-Ohio-5444
FROELICH, J.
Civil Appeal from Common Pleas Court
Rendered on the 19th day of August, 2016.
LARRY D. WALLING, Federal Correction Complex, Inmate #69415-061, P. O. Box 1033, Coleman, Florida 33521 Plaintiff-Appellant
HOLLY MARIE WILSON, Atty. Reg. No. 0074291 and JULIAN EMERSON, Atty. Reg. No. 0088429, 101 W. Prospect Avenue, Suite 1400, Cleveland, Ohio 44115 Attorneys for Defendant-Appellee
FROELICH, J.
{¶ 1} Larry Dwayne Walling appeals, pro se, from a judgment of the Montgomery County Court of Common Pleas, which granted attorney H. Charles Wagner‘s
I. Civ.R. 12(C) Motion for Judgment on the Pleadings
{¶ 2} “In the determination of a
{¶ 3} A motion for judgment on the pleadings is an appropriate vehicle to seek dismissal of a cause of action, where the running of the statute of limitations is apparent from the face of the complaint. Oskowski v. Mercy Med. Ctr., 2d Dist. Clark No. 95-CA-88, 1996 WL 125915, *2 (Mar. 22, 1996), citing Hughes v. Robinson Memorial Portage Cty. Hosp. 16 Ohio App.3d 80, 474 N.E.2d 638 (11th Dist. 1984), abrogated on other grounds in Edens v. Barberton Area Family Practice Ctr., 43 Ohio St.3d 176, 539 N.E.2d 1124 (1989).
{¶ 4} With respect to motions made pursuant to
{¶ 5} “A motion for judgment on the pleadings pursuant to
II. Facts and Procedural History
{¶ 6} Walling‘s claim relates to the legal representation he received in a case that was handled in the U.S. District Court, Sоuthern District of Ohio (Dayton).1
{¶ 7} For reasons that are not apparent from the record and are not relevant to this
{¶ 8} Walling was incarcerated for nine months for his “violation of parole.” It is unclear from the pleadings whether Wagner represented Walling in any proceedings related to the probation violation. Beginning in February 2008, Walling “retained * * * Wagner * * * to represent Him, after learning that [he] could be charged with a violation of the Federal law * * *, being a convicted felony [sic] in possession of a firearm.”
{¶ 9} In April 2008, Wagner advisеd Walling that the Drug Enforcement Agency would forego bringing charges against him for drug offenses if he would voluntarily forfeit the property confiscated in the searches of his home and safe deposit box. Walling signed the forfeiture documents, and no drug chаrges were filed. Walling was charged, however, with one count of possession of a firearm by a convicted felon. The complaint states that, while this charge was pending (around November 2010), Walling told Wagner that he would like to “retrieve” his prеviously forfeited property, but that Wagner refused to make any efforts in this regard, stating that he had done all that he could legally do.
{¶ 10} In 2011, Walling pled guilty to the firearm offense and was sentenced to 78 months of imprisonment.2
{¶ 11} On December 11, 2012, Walling filed a pro se motion for the return of his property (approximately $85,000 and multiple vehicles) in the federal district court. The Government opposed the motion. On April 15, 2013, the trial court overruled the motion; the decision and entry indicates that it was mailеd to Walling, with a “courtesy copy” also mailed to Wagner.
{¶ 12} On November 25, 2014, Walling, acting pro se, filed a complaint against Wagner in the Montgomery County Court of Common Pleas for legal malpractice (by committing breach of contract аnd breach of fiduciary duty) in failing to seek the return of his forfeited property. Wagner filed an answer. On February 17, 2015, Wagner filed a motion for judgment on the pleadings, in which he asserted that Walling‘s claim was barred by the one-year statute of limitations for legal malpractice claims. Walling opposed the motion. On July 22, 2015, the trial court granted Wagner‘s motion.
III. When the Statute of Limitations Began to Run
{¶ 13} On appeal, Walling raises one assignment of error in which he asserts that the trial court erred in determining that his complaint was filed outside the statute of limitations. Walling claims that the court “never decided when and if termination of the professional relationship” occurred. While it is true that the court did not specify, definitively, when the relationship had terminated, it did find that the professional rеlationship ended no later than April 15, 2013, when the federal district court overruled Walling‘s pro se motion for the return of his property. Based on this conclusion, the court found that the complaint filed on November 25, 2014, was barred by the statute of
{¶ 14} It is undisputed that the statute of limitations for a legal malpractice claim is one year.
{¶ 15} A cause of action accrues “when 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 noticе 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, Halter & Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989). Thus, in determining whether an action was filed within the statute of limitations, a court must determine when the client should have known that he or she may have an injury caused by his or her attorney, and when the attorney-client relationship terminated. “The latter of these two dates is the date that starts the running оf the statute of limitations.” Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 4.
{¶ 16} Walling filed a pro se motion in federal court for return of the seized property on December 11, 2012. The common pleas court found that, at the time this motion was filed, Walling “was by then aware, or should have been aware, of the seriousness of his
{¶ 17} The trial court also analyzed when the attorney-client relationship had terminated, and it found that there were two possible dates. The first was, again, December 11, 2012. The court reasoned that the filing of a pro se motion on that date, seeking recovery of the forfeited property, “is evidence that the attorney-client relationship between Walling and Attorney Wagner [had] then terminated with respect to that particular transaction or undertaking.” Alternatively, the court stated that, even if the pro se filing was insufficient to demonstrate the prior termination of the attorney-client relationship, the district court‘s April 15, 2013, judgment dismissing Walling‘s motion for the return of thе seized property “functioned to terminate the attorney-client relationship,” because it was “a final order determining Walling‘s rights with respect to the legal matter for which he had retained Attorney Wagner.” The trial court concluded that, using еither date as the date on which the attorney-client relationship terminated, Walling‘s complaint was filed beyond the statute of limitations.
{¶ 18} We agree with the trial court that the district court‘s April 2013 judgment dismissing Walling‘s motion for the return of seized property wаs, at the latest, the point at which the attorney-client relationship terminated, and that Walling knew or should have known no later than that time that he may have a claim against Wagner for failing to pursue the return of his (Walling‘s) forfeited property. There is no suggestion in the pleadings that Walling and Wagner engaged in any professional relationship after April
{¶ 19} Having agreed with the trial court‘s conclusion that the cognizable event (here, the end of the attorney-client relationshiр) occurred no later than April 2013, we need not address the court‘s conclusion that the attorney-client relationship might have terminated earlier, with the filing of Walling‘s pro se motion in December 2012. We recognize that a defendant who is reрresented by counsel may not act as co-counsel on his own behalf. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 33; United States v. Mosely, 810 F.2d 93, 97 (6th Cir.1987), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“a person accused of a felony has a constitutional right to be represented by counsel and to have counsel appointed for him if he cannot afford one, or, alternatively, to represent himself in such proceedings.” (Emphasis added in Mosely)). See also Clark v. Perez, 510 F.3d 382 (2d Cir.2008) (“[T]here is no constitutional right to hybrid representation.“).
{¶ 20} We also recognize that, where a defendant who is represented by counsel files a pro sе motion for which defense counsel does not indicate his or her support, the pro se motion is not proper, and the trial court may strike it from the record. State v. Wyley, 8th Dist. Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9; State v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12
{¶ 21} Nonetheless, we are reluctant to conclude that a pro se filing should bе
{¶ 22} The assignment of error is overruled.
IV. Conclusion
{¶ 23} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Larry D. Walling
Holly Marie Wilson
Julian Emerson
Hon. Thomas J. Grady, Visiting Judge