[Cite as Cessna v. Landers, 2016-Ohio-5551.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

JOEL CESSNA                                         C.A. No.     15AP0060

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
WILLIAM D. LANDERS                                  COURT OF COMMON PLEAS
                                                    COUNTY OF WAYNE, OHIO
        Appellee                                    CASE No.   2014-CVC-H 000489

                                DECISION AND JOURNAL ENTRY

Dated: August 29, 2016



        MOORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant Joel Cessna appeals from the entry of the Wayne County

Court of Common Pleas granting summary judgment in favor of William D. Landers. We

reverse.

                                               I.

        {¶2}    Mr. Cessna’s brother passed away on January 2, 2013. Mr. Cessna, who was

named as the executor of his brother’s estate in his brother’s will, retained Mr. Landers in

conjunction with Mr. Cessna’s role as the executor of his brother’s estate.       Mr. Cessna

maintained that he had loaned his brother money on multiple occasions for use in his brother’s

used car sales business and sought to recover the money from the estate. Mr. Landers failed to

timely file Mr. Cessna’s claim against the estate, which resulted in the claim being barred.

Ultimately Mr. Cessna and Mr. Landers were removed from their fiduciary roles in the case. Mr.

Cessna then retained a different attorney at the recommendation of Mr. Landers. Under the
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guidance of the new attorney, Mr. Cessna ultimately came to an agreement with his brother’s

wife concerning the assets of the estate.

       {¶3}    In October 2014, Mr. Cessna filed a complaint alleging that Mr. Landers

negligently failed to timely file Mr. Cessna’s claims against the estate which he alleged totaled

around $170,000. Mr. Cessna maintained that, if the claims had been timely presented, he would

have recovered more than he did under the agreement he reached with his brother’s wife.

Additionally, Mr. Cessna sought to recover the attorney fees he paid to the attorney who took

over after Mr. Landers was released.

       {¶4}    Mr. Cessna moved for summary judgment, which Mr. Landers opposed. The trial

court denied the motion concluding genuine issues of material fact remained.

       {¶5}    Subsequently, Mr. Landers moved for summary judgment. Mr. Landers appeared

to concede for purposes of summary judgment that Mr. Cessna’s payments to his brother were

loans. However, Mr. Landers argued that they were oral loans that were subject to a 6-year

statute of limitations pursuant to R.C. 2305.07 and that Mr. Cessna’s causes of action related to

those loans accrued on the date the initial promise was made. Mr. Cessna’s most recent loan,

according to the checks and notations Mr. Cessna asserted evidenced the loans, was dated

January 2007. Accordingly, the statute of limitations expired before the claims could have been

filed in the probate action. Thus, Mr. Landers argued that Mr. Cessna could not demonstrate

that, but for Mr. Lander’s failure to file the claims, Mr. Cessna would have been successful in

pursuing the claims against the estate.

       {¶6}    Mr. Cessna opposed the motion. Mr. Cessna did not dispute that the claims were

subject to a 6-year statute of limitations; however, he argued that the statute of limitations did not

begin to run until his brother’s death, inasmuch as the loans were conditional loans that were
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conditioned on his brother’s ability to repay them. Mr. Cessna maintained that his brother could

not have repaid the loans prior to his death.

       {¶7}    Mr. Landers filed a reply brief in support of his motion arguing that there was no

evidence that Mr. Cessna’s brother was unable to repay the loans until his death. The trial court

found in favor of Mr. Landers concluding that Mr. Cessna failed to establish that he suffered

damages proximately caused by a breach of Mr. Landers’ duty.

       {¶8}    Mr. Cessna has appealed raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
       DEFENDANT-APPELLEE, [MR.] LANDERS[] SUMMARY JUDGMENT.

       {¶9}    Mr. Cessna argues in his sole assignment of error that the trial court erred in

granting summary judgment to Mr. Landers.

       {¶10} In reviewing a trial court’s ruling on a motion for summary judgment, this Court

applies the same standard as the trial court, viewing the facts of the case in the light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving party.

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Pursuant to Civ.R. 56(C),

summary judgment is proper if:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record

that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,
                                                  4


292-293 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering

specific facts to show a genuine issue for trial. Id. at 293; Civ.R. 56(E).

       To prevail upon a legal malpractice claim based upon negligent representation, a
       plaintiff must prove: “(1) that the attorney owed a duty or obligation to the
       plaintiff, (2) that there was a breach of that duty or obligation and that the attorney
       failed to conform to the standard required by law, and (3) that there is a causal
       connection between the conduct complained of and the resulting damage or loss.”

       {¶11} Lamtman v. Ward, 9th Dist. Summit No. 26156, 2012-Ohio-4801, ¶ 8, quoting

Vahila v. Hall, 77 Ohio St.3d 421 (1997), syllabus. “[T]he requirement of causation often

dictates that the merits of the malpractice action depend upon the merits of the underlying case.”

Lamtman at ¶ 8, quoting Vahila at 427-428. “When the theory of the plaintiff’s malpractice case

is that his attorney’s alleged breach of duty cost him a favorable outcome, he places the merits of

the underlying litigation directly at issue. In order to prove causation in these cases, the plaintiff

must prove that but for the attorney’s conduct, the plaintiff would have obtained a better outcome

in the underlying case.” (Internal quotations and citations omitted.) Lamtman at ¶ 8.

       {¶12} Mr. Cessna did not dispute below that his malpractice claim placed the merits of

his underlying case directly at issue.      Thus, in order to establish proximate cause in the

malpractice case, Mr. Cessna would need to prove that, absent Mr. Landers’ breach of duty, Mr.

Cessna would have achieved a better result in the probate matter. See id.

       {¶13} It was Mr. Cessna’s contention that he was entitled to be paid by the estate for

numerous loans he had made to his brother for use in his brother’s used car sales business.

Those loans were oral loans, the existence of which Mr. Cessna asserted was demonstrated by

copies of checks and notations in his check register. The notations and checks bear dates

beginning in the 1990’s with the most recent check dated January 4, 2007. The total amount of

the alleged loans was around $170,000. Thus, it was Mr. Cessna’s claim that Mr. Landers’
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breach of duty did proximately cause Mr. Cessna damages because Mr. Landers’ failure to

timely file the claims barred Mr. Cessna from asserting the claims in the probate matter.

        {¶14} In the trial court, Mr. Landers argued that Mr. Cessna could not establish that,

absent Mr. Landers’ breach of duty, Mr. Cessna would have achieved a better result in the

probate matter because the statute of limitations for Mr. Cessna’s claims had expired before the

claims were due to be filed in the probate matter. Mr. Landers argued that they were oral loans

that were subject to a 6-year statute of limitations pursuant to R.C. 2305.07 and that Mr.

Cessna’s causes of action relating to those loans accrued on the date the initial promise was

made. As Mr. Cessna’s most recent loan was dated in January 2007, Mr. Landers contended that

the statute of limitations expired before any of the claims could have been filed in the probate

action. Thus, Mr. Landers maintained that the claims accrued when the checks were issued.

        {¶15} Mr. Cessna did not dispute that the claims were subject to a 6-year statute of

limitations; however, he argued that the statute of limitations did not begin to run until his

brother’s death because the loans were conditional loans that were conditioned on his brother’s

ability to repay them. Mr. Cessna maintained that his brother could not have repaid the loans

prior to his death.

        {¶16} Accordingly, the issue before this Court is a very narrow one. The issue of

whether Mr. Landers breached a duty or even whether Mr. Cessna’s payments to his brother

were in fact loans is not before us. Instead, we examine only whether Mr. Landers satisfied of

his burden of demonstrating the absence of a genuine issue of material fact with respect to

whether Mr. Landers’ alleged breach of duty proximately caused Mr. Cessna any damages. In so

doing, we must determine whether Mr. Landers demonstrated that Mr. Cessna’s claims in the

probate matter were barred by the statute of limitations.
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       {¶17} We conclude that genuine issues of material fact remain with respect to when the

causes of action would have accrued; thus, Mr. Landers has not demonstrated the absence of a

genuine issue of material fact with respect to the statute of limitations issue.

       {¶18} R.C. 2305.07 provides that, “[e]xcept as provided in sections 126.301 and

1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or

upon a liability created by statute other than a forfeiture or penalty, shall be brought within six

years after the cause thereof accrued.” Unlike other statutes of limitations, R.C. 2305.07 does

not specify when a claim has accrued. See Desai v. Franklin, 177 Ohio App.3d 679, 2008-Ohio-

3957, ¶ 15 (9th Dist.); see also Akron Concrete Corp. v. Medina City School Dist. Bd. of Edn.,

9th Dist. Medina No. 11CA0089-M, 2012-Ohio-2971, ¶ 12 (“Section 2305.07 does not provide

any guidance for determining when a cause of action ‘accrues’ for purposes of that section.”).

Thus, the statute leaves that determination to the judiciary. See id.

       {¶19} Mr. Landers argues that, because Mr. Cessna repeatedly indicated during his

deposition that there were no terms of repayment or specified date upon which he expected to

repaid, the claims accrued on the date the promise was made. See Oelschlager v. White, 9th Dist.

Summit No. 24551, 2009-Ohio-6618, ¶ 7. While there is case law that would support Mr.

Landers’ assertions, see id., we conclude that the record discloses at the least an issue of fact

with respect to whether the loans were conditional loans.

       {¶20} This court has previously concluded that “[a]n obligation to repay a loan ‘when

able,’ does not accrue immediately so as to start the running of the statute of limitations. Such a

promise to repay is conditional, and the lender’s cause of action accrues when the ability to pay

arises.” (Citation omitted.) Barna v. Seal, 9th Dist. Summit No. 8478, 1977 WL 198962, *1

(Aug. 3, 1977); see also Oelschlager at ¶ 10, quoting Crawford v. Kring, 7th Dist. Columbiana
                                                7


No. 97-CO-15, 1998 WL 635879, *2 (Sept. 8, 1998). “Under the rule, the statute of limitations

begins to run as soon as the ability to pay becomes a fact regardless of the creditor’s awareness

of it.” Id. at *2.

        {¶21} At his deposition Mr. Cessna made repeated references that, when viewed in a

light most favorable to him, would indicate that the loans in question were to be repaid when Mr.

Cessna’s brother was able to do so. For example, with respect to the loans generally, Mr. Cessna

testified that he and his brother agreed that his brother would pay him back “whenever he would

be able to.” When discussing an $8,500 loan to his brother and asked about the terms of

repayment, he testified that “we had an understanding [that] when he was able to pay he would.”

In discussing a loan he made on March 25, 2000, Mr. Cessna indicated that his brother would

pay him “whenever he could.” Accordingly, there was evidence presented that the loans were

conditional.

        {¶22} Further, we cannot conclude that Mr. Cessna’s statements that he and his brother

agreed the loans would be paid when his brother was able, or the similar averments in his

affidavit, contradicted the portions of Mr. Cessna’s deposition testimony during which, with

respect to specific checks, he indicated that there were no terms of repayment and that there was

no specified date of repayment. That section of Mr. Cessna’s deposition testimony occurred

after Mr. Cessna had already explained that his brother would pay Mr. Cessna back when he was

able to do so. Viewing the testimony in a light most favorable to Mr. Cessna, a trier of fact could

conclude that Mr. Cessna repeatedly stated that there were no terms of repayment and no

specified date of repayment because Mr. Cessna did not view the agreement as having specific

terms; instead, they agreed his brother would pay Mr. Cessna when his brother was able. Or the

trier of fact could find that Mr. Cessna viewed it as unnecessary to repeatedly explain that his
                                                 8


brother would repay him when he was able when Mr. Cessna had previously offered that

explanation. Thus, when asked about specific dates and terms, Mr. Cessna simply responded in

the negative. Viewed in this manner, there is no contradiction.

       {¶23} Nonetheless, even if we assume the loans were conditional, the statute of

limitations would begin to run when Mr. Cessna’s brother was able to pay Mr. Cessna back. See

Barna, 1977 WL 198962, at *1. Mr. Landers argues that Mr. Cessna’s brother was able to pay

Mr. Cessna back prior to his death; however, Mr. Landers has not set forth a specific date he

believes marks the beginning of the running of the statute of limitations period, if the loans were

in fact conditional. Absent knowing when the statute of limitations began to run, we have no

way to determine when it expired.

       {¶24} Mr. Landers argued that Mr. Cessna’s brother could have repaid the loans after

Mr. Cessna’ brother sold the car connected to the loan at issue. Mr. Cessna sought payment on

over 30 separate “loans.” Nothing in the record indicates when the cars or parts that went along

with those loans were sold, or how much profit, if any, was made on the sale, assuming they

were sold. The record is devoid of the kind of evidence that would be necessary to determine

that the statute of limitations had in fact expired on the “loans” Mr. Cessna made.

       {¶25} Accordingly, we cannot say that Mr. Landers met his burden. Mr. Landers

asserted that Mr. Cessna could not establish the element of proximate cause in the legal

malpractice case because Mr. Cessna’s claims in the underlying probate matter would have been

barred by the statute of limitations. As we cannot say that there is an absence of a genuine issue

of material fact on that point, we likewise cannot conclude that Mr. Landers has established that

Mr. Cessna cannot prove that Mr. Landers’ breach of duty proximately caused him damage. The
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trial court erred in granting summary judgment to Mr. Landers in light of the limited argument

Mr. Landers made below.

       {¶26} Mr. Cessna’s assignment of error is sustained.

                                                III.

       {¶27} The judgment of the Wayne County Court of Common Pleas is reversed, and the

matter is remanded for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT
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WHITMORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

BRYAN K. BARNARD, Attorney at Law, for Appellant.

TIMOTHY T. BRICK and HOLLY M. OLARCZUK-SMITH, Attorneys at Law, for Appellee.
