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Jim Brown Chevrolet3/23/2001
d its holding in Investors REIT, by stating that R.C. 2305.09(D) applies to accountant malpractice actions, and that the discovery rule is not applicable to accountant malpractice actions. Id. at 160; see, also Smith v. Rudler (Aug. 13, 1993), Ashtabula App. No. 92-A-1753, unreported, at 2, fn.1, 1993 WL 318797.
Furthermore, this court has held that " claim for breach of fiduciary duty, * accrues when the claimant's interest is impaired by such a breach. In addition, the discovery rule in R.C. 2305.09(D) does not apply to toll the statute of limitations for claims arising out of a breach of fiduciary duty." Stokes v. Berick (Dec. 23, 1999), Lake App. No. 98-L-094, unreported, at 5, 1999 WL 1313668, citing Herbert v. Banc One Brokerage Corp. (1994), 93 Ohio App.3d 271, 275.
In the instant matter, the evidence revealed that appellants filed their initial complaint on July 28, 1999. Thus, pursuant to the foregoing cases, any act or commission constituting a breach of fiduciary duty that occurred more than four years prior to the filing of the initial complaint was barred by R.C. 2305.09(D). Since appellants' claims occurred in 1991 and 1992, they are time barred by R.C. 2305.09(D).
Moreover, appellants' allegation that their cause of action did not accrue until 1997 when the damages were set at 4.7 percent of their LIFO reserves is not persuasive. It is our view that the "delayed damages" theory advanced in this matter by appellants is a version of the discovery rule. Hence, pursuant to Investors REIT, neither theory is available to claims of professional negligence brought against accountants.
Additionally, the Supreme Court has explained that " he four-year statute of limitations governing such claims in accountant negligence commenced to run when the allegedly negligent act was committed *." Investors REIT, 46 Ohio St.3d at 182. Therefore, it is our determination that any negligence that occurred took place in 1991 and 1992. We conclude that the trial court did not err by granting summary judgment in favor of appellees. Given the operation of R.C. 2305.09, appellees were entitled to judgment as a matter of law.
For the foregoing reasons, appellants' assignment of error is not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
PRESIDING JUDGE DONALD R. FORD
NADER, J., concurs,
GRENDELL, J., concurs with Concurring Opinion.
CONCURRING OPINION
GRENDELL, J.
The majority opinion in Investors REIT One v. Jacobs (1989), 46 Ohio St.3d 176, mandates concurrence with the majority's decision in this case. However, the dissenting opinion of Justice Sweeney in Investors REIT is more compelling and would lead to a more equitable rule of law in accountant malpractice cases.
Treating one group (here, accountants) more favorably than other groups (physicians, attorneys, etc.) makes no sense and is against the equal protection provision of the Fourteenth Amendment, United States Constitution, and Article I, Section 2 of the Ohio Constitution.
The "court's essential role in ensuring that cases be decided both fairly and equitably." Sweeney dissent, Investors REIT, supra, at 183. Unfortunately, this court is not in a position where it can redress this inequity because of Investors REIT. Such redress can only come from a reconsideration of this statute of limitation issue by the Ohio Supreme Court or statutory modification by the Ohio Legislature. Both such actions are strongly urged.
JUDGE DIANE V. GRENDELL
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