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Fleming v. Westmeyer10/21/2005
(the grant of summary judgment to appellees) was related any non-act or act on the part of Westmeyer until the release and journalization of our April 25, 2003 decision. Thus, appellant argues, in essence, that the cognitive event triggering the running of the statute of limitations and the termination of the attorney-client relationship occurred on the same date.
{ } A review of the record of this cause reveals that appellant was aware of the common pleas court's grant of summary judgment to Vanguard at the time it was entered. Nonetheless, this judgment contained no rationale for the trial court's decision. The question is, therefore, whether the grant of summary judgment, in and of itself, was sufficient to put appellant on notice that a questionable legal practice may have occurred and that appellant may have needed to pursue possible remedies against Westmeyer.
{ } Because it is not unusual, but certainly not a preferable or a widespread practice, for a trial court to simply grant summary judgment without offering any explanation or analysis, we must answer this question in the negative. We are also of the opinion that the fact that appellant felt that the trial court's decision was "wrong" and wanted to appeal that decision was insufficient to constitute the notice required to commence the running of the statute of limitations found in R.C. 2305.11(A). Adoption of such a standard would preclude most, if not all, legal malpractice actions.
{ } Consequently, we conclude that the "cognitive event" that started the running of the one year statute of limitations for appellant's legal malpractice claim was our April 25, 2003 decision in which we discussed the fact that appellant offered little or no evidence to create a question of fact on the elements of breach of duty and causation. Fleming, at . Based on the foregoing, we find that, as a matter of law, that the trial court erred in granting summary judgment to appellees. Appellant's first assignment of error is found well-taken.
{ } In his second assignment of error, appellant maintains that the common pleas court erred in denying his motion for summary judgment on the merits of his legal malpractice claim. The denial of a motion for summary judgment, absent special circumstances, is considered an interlocutory order not subject to immediate appeal. See Celebrezze v. Netzley (1990), 51 Ohio St. 3d 89, 90. A special circumstance occurs when the denial of a motion for summary judgment is made in a special proceeding, as defined in R.C. 2505.02(A)(2). See Stevens v. Ackman, 91 Ohio St.3d 182, 186-187, 2001-Ohio-249. Legal malpractice is not a special proceeding; rather, it "is a common-law action, grounded in tort, which seeks monetary damages." Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107; Haynes v. City of Franklin (1999), 135 Ohio App.3d 82, 88; Mickel v. Lucas County Children Servs. (Jan. 4, 2002), 6th Dist. No. L-01-1458, 2002-Ohio-130. Accordingly, the denial of appellant's motion for summary judgment is not a final, appealable order; therefore, we lack the jurisdiction to address appellant's second assignment of error.
{ } On consideration whereof, this court finds that substantial justice was not done the party complaining, and the judgment of the County Court of Common Pleas as it relates only to the grant of summary judgment to appellees is reversed. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant
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