[Cite as Boyce v. Mark Bamberger Co., L.L.C., 2013-Ohio-3935.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

RAMON A. BOYCE                                        :

        Plaintiff-Appellant                               :            C.A. CASE NO.   2013 CA 18

v.                                                    :                T.C. NO.   11CV570

MARK BAMBERGER COMPANY, LLC,                          :                (Civil appeal from
et al.                                                                  Common Pleas Court)

        Defendants-Appellees                          :

                                                      :

                                            ..........

                                           OPINION

                        Rendered on the        13th           day of       September        , 2013.

                                            ..........

RAMON A. BOYCE, #588408, London Correctional Institute, P. O. Box 69, London, Ohio
43140
      Plaintiff-Appellant

RUDOLPH A. PECKINPAUGH, JR., Atty. Reg. No. 0015633 and JEFFREY M. STOPAR,
Atty. Reg. No. 0066640, One SeaGate, 24th Floor, P. O. Box 10032, Toledo, Ohio 43699
       Attorneys for Defendants-Appellees

                                            ..........

DONOVAN, J.

        {¶ 1}    Plaintiff-appellant Ramon A. Boyce appeals from a decision of the Clark
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County Court of Common Pleas granting defendant-appellee the Mark Bamberger Company,

L.L.C.’s (hereinafter Bamberger) motion to dismiss Boyce’s legal malpractice claims.

Boyce filed a timely notice of appeal on February 25, 2013.

       {¶ 2}    Between 2007 and 2009, in three separate cases, Boyce was found guilty in

the Clark County Court of Common Pleas of one count of burglary, six counts of receiving

stolen property, and one count of tampering with evidence. On May 15, 2009, Bamberger

was appointed as counsel to represent Boyce on appeal in Case Nos. 09-CA-30, 09-CA-31,

and 09-CA-44. Bamberger was subsequently appointed as appellate counsel to represent

Boyce in Case No. 09-CA-70 on August 10, 2009.

       {¶ 3}    On December 7, 2009, Bamberger filed an appellate brief on behalf of Boyce

which listed all four appellate case numbers. This Court consolidated the four cases into a

single appeal on April 23, 2010. On May 14, 2010, we issued an opinion affirming Boyce’s

conviction and sentence. State v. Boyce, 2d Dist. Clark Nos. 09CA30, 09CA31, 09CA44,

09CA70, 2010-Ohio-2127 (hereinafter “Boyce I”).

       {¶ 4}    On June 9, 2011, Boyce filed a complaint in which he alleged legal

malpractice, fraud, unjust enrichment, negligence, and breach of fiduciary duty against

Bamberger.     Bamberger received service of the complaint on June 14, 2011. On the

twenty-eighth day after service of the complaint on July 12, 2011, Bamberger filed a motion

requesting an extension of time in which to respond to the complaint. The trial court

granted Bamberger’s motion July 19, 2011, providing him until August 10, 2011, to respond.

On July 27, 2011, eight days after the trial court had already granted Bamberger’s request

for an extension, Boyce filed a motion for default judgment in which he objected to
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Bamberger’s requested extension. The trial court did not expressly rule on Boyce’s motion

for default judgment.

       {¶ 5}      On August 9, 2011, Bamber filed a motion to dismiss Boyce’s complaint on

the grounds that it was barred by the one-year statute of limitations for filing a legal

malpractice claim. Ultimately, the trial court granted Bamberger’s motion to dismiss in a

decision issued on January 29, 2013, finding as follows: 1) the “gravamen” of Boyce’s

complaint was Bamberger’s alleged legal malpractice; therefore, the one-year statute of

limitation applied to all of Boyce’s claims; 2) the “cognizable event” related to Boyce’s

claim was his becoming aware of this Court’s adverse opinion in Boyce I; and 3) Boyce

terminated his attorney-client relationship with Bamberger on May 17, 2010, when he

disclosed “his mistrust and lack of mutual confidence” in Bamberger’s appellate

representation.

       {¶ 6}      It is from this decision that Boyce now appeals.

       {¶ 7}      Because all of his assignments of error are interrelated, they will be

discussed together as follows:

       {¶ 8}      “THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE

COMPLAINT          AGAINST       THE    DEFENDANTS         FOR       LEGAL MALPRACTICE,

NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY,

ALLEGING STATUE [sic] OF LIMITATIONS.”

       {¶ 9}      “THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE

COMPLAINT AND NOT ENTERING DEFAULT JUDGMENT AGAINST THE

DEFENDANTS FOR NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF
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FIDUCIARY DUTY, AFTER THE DEFENDANTS FAILED TO DEFEND OR

OTHERWISE RESPOND AGAINST THE CLAIMS IN THE COMPLAINT.”

       {¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

THE COMPLAINT AGAINST THE DEFENDANTS FOR LEGAL MALPRACTICE,

NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY,

ALL AMOUNTED TO A SINGLE CLAIM OF MALPRACTICE, BECAUSE THIS

CONCLUSION WAS NOT INDEPENDENT OF THE TRIAL COURT AND WAS NOT

ADDRESSED IN THE AFFIRMATIVE DEFENSES AS A RESPONSE TO THE

COMPLAINT.”

       {¶ 11} “A motion to dismiss a complaint for failure to state a claim upon which

relief can be granted, pursuant to Civ.R.12(B)(6), tests the sufficiency of a complaint. In

order to prevail, it must appear beyond doubt from the complaint that the plaintiff can prove

no set of facts entitling him to relief. O’Brien v. University Community Tenants Union, Inc.,

42 Ohio St.2d 242, 327 N.E.2d 753 (1975). The court must construe the complaint in the

light most favorable to the plaintiff, presume all of the factual allegations in the complaint as

true, and make all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk

Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). We review de novo the trial court’s

granting of a Civ.R. 12(B)(6) motion to dismiss.” Grover v. Bartsch, 170 Ohio App.3d 188,

2006-Ohio-6115, 866 N.E.2d 547, ¶16 (2d Dist.).

       {¶ 12} Initially, we note that the trial court did not err when it found that all of the

separate claims in Boyce’s complaint for negligence, breach of contract, breach of fiduciary

duty, and unjust enrichment sound in legal malpractice.           “‘The applicable statute of
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limitations is determined from the gist of the complaint, not by the form of the pleading.’

Hibbett v. Cincinnati, 4 Ohio App. 3d 128, 131, 446 N.E.2d 832 (1st Dist.1982).

‘Malpractice by any other name still constitutes malpractice.’ Muir v. Hadler Real Estate

Mgt. Co., 4 Ohio App. 3d 89, 90, 446 N.E.2d 820 (10th Dist.1982). Malpractice consists of

‘the professional misconduct of members of the medical profession and attorneys’ and may

consist of either negligence or breach of contract. Id., quoting Richardson v. Doe, 176 Ohio

St. 370, 372, 199 N.E.2d 878 (1964). ‘It makes no difference whether the professional

misconduct is founded in tort or contract, it still constitutes malpractice.’ Id.”. Warman v.

L.Patrick Mulligan and Assoc., Co., 2d Dist. Montgomery No. 22503, 2009-Ohio-1940, ¶

17.

       {¶ 13} In his complaint, Boyce advances six causes of action, to wit: 1) Legal

Malpractice; 2) Legal Malpractice; 3) Negligence; 4) Breach of Contract; 5) Breach of

Fiduciary Duty; and 6) Unjust Enrichment. Under each cause of action, however, Boyce

merely repeats the following statement regarding the nature of his various claims:

               The defendant Mark J. Bamberger Company owed a duty or

       obligation to the Plaintiff and have engaged in the malpractice of law by

       employing attorneys who have failed to perform the duties as mandated by

       the Ohio Code of Professional Responsibility which has resulted in a breach

       of duty or obligation to the Plaintiff and have failed to conform to the

       standards as required by law which has resulted in damages to the Plaintiff in

       the from [sic] of a very long term in prison and separation for his family.

       {¶ 14} Clearly, each of the six claims advanced by Boyce stem from Bamberger’s
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legal representation during the course of the appeal in Boyce I. “Claims arising out of an

attorney’s representation are legal malpractice claims regardless of how they are pled.”

Huber v. Mues, 2d Dist. Clark No. 2011-CA-75, 2012-Ohio-2540, citing Katz, Teller, Brant

& Hild, L.P.A. v. Farra, 2d Dist. Montgomery No. 24093, 2011-Ohio-1985, ¶ 13.

Therefore, Boyce cannot avoid the statute of limitations by characterizing his claims as

anything other than legal malpractice.

       {¶ 15} Actions that allege malpractice by an attorney must be commenced within

one year after the cause of action accrues. R.C. 2305.11(A). An action for legal malpractice

accrues and 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.” Zimmie v. Calfee, Halter &

Griswold, 43 Ohio St. 3d 54, 538 N.E.2d 398, syllabus (1989). A “cognizable event” is an

event sufficient to alert a reasonable person that his attorney has committed an improper act

in the course of legal representation. Spencer v. McGill, 87 Ohio App. 3d 267, 278, 622

N.E.2d 7 (8th Dist.1993).

       {¶ 16} When determining the accrual date of R.C. 2305.11(A) in a legal

malpractice action, the trial court must “explore the particular facts of the action” and make

several determinations. Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 388, 528

N.E.2d 941 (1988). Specifically, the court must determine (1) “when the injured party

became aware, or should have become aware, of the extent and seriousness of his or her
                                                                                            7

alleged legal problem,” (2) “whether the injured party was aware, or should have been

aware, that the damage or injury alleged was related to a specific legal transaction or

undertaking previously rendered him or her,” and (3) “whether such damage or injury would

put a reasonable person on notice of the need for further inquiry as to the cause of such

damage or injury.” Id.

       {¶ 17} Boyce contends that the applicable statute of limitations began to run on

June 10, 2010, the date he first became aware of the alleged malpractice when he received a

letter from Bamberger, dated June 7, 2010. The letter stated that it contained a copy of

“transcripts for your [Boyce’s] case” and offering to assist Boyce “now and in the future”

with any other matters. Boyce asserts that his receipt of the letter on June 10, 2010, was the

“cognizable event” whereby he discovered Bamberger’s malpractice because some of the

transcripts were purportedly missing from the file.

       {¶ 18} Conversely, Bamberger argues that statute of limitations began to run, at the

latest, on May 17, 2010, when Boyce filed several motions with this Court, most notably

“Leave to Dismiss Counsel of Record” and “Leave to Represent Self Pro-Se.” Our review

of Bamberger’s motion to dismiss is limited to the pleadings, and Boyce’s complaint makes

no mention of the June 7, 2010, letter. Rather, Boyce alleges in his complaint that he

“found out” on May 20, 2010, that we affirmed his conviction and sentence in Boyce I and

that “Bamberger raised one assignment of error that was meritless and used case laws that

were bad law...[and] counsel failed to raise any arguments on Case No. 08 CR 363.”

       {¶ 19} Thus, we conclude that Boyce’s argument that he first learned of Bamberger’s

alleged malpractice on June10, 2010, is not supported by the pleadings. The record in this
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matter supports the conclusion that the cognizable event which put Boyce on notice of

Bamberger’s alleged malpractice was May 20, 2010, when he received a copy of Boyce I.

Accordingly, Boyce’s complaint, filed on June 9, 2011, was filed outside the one-year statute

of limitations for legal malpractice and is, therefore, untimely. Additionally, Bamberger’s

appellate representation of Boyce effectively ended on May 14, 2010, when Boyce I was

issued by this Court.

        {¶ 20} Lastly, we find no merit to Boyce’s argument that Bamberger failed to

respond in a timely fashion to the complaint. A review of the record indicates that Boyce

filed his complaint on June 9, 2011. Pursuant to Civ. R. 12(A), Bamberger was required to

respond to the complaint within twenty-eight days, or by July 12, 2011. On July 12, 2011,

Bamberger filed a timely motion for a time extension in which file a response to the

complaint. The trial court granted Bamberger’s motion on July 19, 2011, giving him until

August 10, 2011, to respond to the complaint. On August 9, 2011, clearly within the time

allotted by the trial court, Bamberger filed his motion to dismiss Boyce’s complaint.

Although the trial court never expressly addressed Boyce’s motion for default judgment filed

on July 27, 2011, the court implicitly overruled the motion by granting Bamberger’s motion

for an extension of time. See Brenman v. Reck, 2d Dist. Miami No. 2004 CA 3,

2004-Ohio-5828, ¶ 17.

        {¶ 21} Boyce’s first, second, and third assignments of error are overruled.

        {¶ 22} All of Boyce’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                         ..........
[Cite as Boyce v. Mark Bamberger Co., L.L.C., 2013-Ohio-3935.]
HALL, J. and CELEBREZZE, J., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Ramon A. Boyce
Rudolph A. Peckinpaugh, Jr.
Jeffrey M. Stopar
Hon. Richard J. O’Neill
