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Fleming v. Westmeyer10/21/2005
of action was barred by the one year statute of limitations found in R.C. 2305.11(A). Appellant filed a memorandum in opposition and a cross-motion for summary judgment in which he argued that Westmeyer admitted (in his deposition) that he should have proceeded under the theory of res ipsa loquitur. Appellees claimed that the inference of negligence that arises from this doctrine would have defeated Vanguard's motion for summary judgment.
{ } After both sides filed memoranda in opposition to each of their respective motions for summary judgment, the trial court granted appellees' motion summary judgment and denied appellant's motion for summary judgment. This appeal followed.
{ } Summary judgment is proper if there is no genuine dispute of a material fact so that the issue is a matter of law and reasonable minds could come to but one conclusion, that being in favor of the moving party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Our review the grant of summary judgment is de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 1996-Ohio-336.
{ } The party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying portions of the record that demonstrate an absence of any genuine issue of material fact as to the essential elements of the nonmoving party's claims or defenses. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party's burden has been satisfied, the burden shifts to the nonmoving party, as set forth in Civ.R. 56(E). Id. at 293.
{ } The determination of the date a cause of action for legal malpractice accrues is a question of law reviewed de novo by an appellate court. Whitaker v. Kear (1997), 123 Ohio App.3d 413, 420. Actions alleging legal malpractice must be commenced within one year after the cause of action accrues. R.C. 2305.11(A). The statute of limitations begins to run "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 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." (Emphasis added.) Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, syllabus. In this context, a cognizable event is an event that "puts a reasonable person on notice that a questionable legal practice may have occurred." Zimmie, 43 Ohio St.3d at 58; Lintner v. Nuckols, 12th Dist. No. No. CA2003-10-020, 2004-Ohio-348, at .
{ } In the case under consideration, the trial court found that a cognizable event occurred in July 1998 when appellant received a copy of the complaint that did not set forth either a medical malpractice claim or a products liability claim. The court further held that appellant's October 1, 2002 letter terminated the attorney-client relationship and, as a result, appellant was required to file his legal malpractice action, at the latest, on October 3, 2003. Because appellant filed that action on March 15, 2004, the court below found that it was time-barred by R.C. 2305.11(A).
{ } In his first assignment of error, appellant asserts that Westmeyer's October 1, 2002 letter did not terminate the attorney-client relationship because Westmeyer continued to represent appellant in his appeal of the negligence action to this court. Appellant further contends that due to the brevity of the trial court's judgment in disposing of his negligence suit, he could not discover that his injury
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