[Cite as Smith v. Candiello, 2016-Ohio-844.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Darrick E. Smith                                   Court of Appeals No. L-15-1125

        Appellant                                  Trial Court No. CI0201401354

v.

Vedo R. Candiello                                  DECISION AND JUDGMENT

        Appellee                                   Decided: March 4, 2016


                                               *****

        Tim A. Dugan, Steven L. Crossmock, and Stevin J. Groth, for appellant.

        Laurie J. Avery and Taylor C. Knight, for appellee.

                                               *****
        SINGER, J.

        {¶ 1} Appellant, Darrick Smith, appeals the judgment of the Lucas County Court

of Common Pleas granting appellee, Vedo R. Candiello’s, motion to dismiss for failure to

state a claim. The trial court held the one-year statute of limitations under R.C.

2305.11(A) barred appellant’s legal malpractice claim against appellee. We affirm.
       {¶ 2} Appellant provides one assignment of error:

              The trial court erred in finding that the statute of limitations barred

       appellant’s action for professional malpractice against appellee.

                                   I. Factual Statement

       {¶ 3} The following facts were alleged in the complaint. Appellant was convicted

of trafficking drugs in September 1999. In December 2009, a federal complaint was filed

against appellant, and shortly thereafter, he was indicted for being a felon in possession

of a firearm. Appellant retained appellee to represent him on that charge. In May 2010, a

jury trial was held wherein appellant was found guilty and sentenced to prison. The Sixth

Circuit Court of Appeals affirmed the conviction. Then, on July 30, 2012, appellant filed

a motion to vacate his sentence “under Title 28 United Stated Code Section 2255,

ineffective assistance of counsel.” On October 22, 2013, appellant’s conviction was

vacated because appellee received deficient representation and was prejudiced as a result.

Appellant was released on bond and the indictment against him was ultimately dismissed.

       {¶ 4} On February 4, 2014, appellant filed his complaint for legal malpractice

against appellee with the trial court. According to the complaint, appellant was

incarcerated as a consequence of appellee’s ineffective assistance of counsel at

appellant’s 2010 trial.

       {¶ 5} On April 10, 2014, appellee filed a motion to dismiss appellant’s legal

malpractice claim based on the statute of limitations, which time-barred appellant’s

claim. Responses and replies were filed.



2.
       {¶ 6} On September 11, 2014, oral arguments occurred. The trial court granted

appellee’s motion to dismiss on April 14, 2015. The trial court concluded a cognizable

event for appellant’s legal malpractice claim occurred on July 30, 2012, when appellant

knew, or should have known, of his injuries related to appellee’s action or inaction.

Appellant filed a timely appeal.

                                   II. Standard of Review

       {¶ 7} A Civ.R. 12(B)(6) motion involves the claimant’s “failure to state a claim

upon which relief can be granted.” In order to grant such as a motion, the trial court must

conclude that the claimant’s “set of facts” do not “warrant recovery.” Doe v. Robinson,

6th Dist. Lucas No. L-07-051, 2007-Ohio-5746, ¶ 17, citing O’Brien v. Univ. Community

Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The facts alleged

within the claimant’s complaint are presumed to be true and all reasonable inferences

must be construed in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40

Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). When a Civ.R. 12(B)(6) motion presents

matters which are outside of the pleading, “the motion shall be treated as a motion for

summary judgment and disposed of as provided in Rule 56. Provided however, that the

court shall consider only such matters outside the pleadings as are specifically

enumerated in Rule 56. All parties shall be given reasonable opportunity to present all

materials made pertinent to such a motion by Rule 56.” Civ.R. 12(B).

       {¶ 8} The appellate court reviews a trial court’s decision to grant a Civ.R.

12(B)(6) motion using a de novo standard. Perrysburg Twp. v. Rossford, 103 Ohio St.3d



3.
79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, referring to Cincinnati v. Beretta U.S.A. Corp.,

95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 4-5.

                                  III. Law and Analysis

       {¶ 9} R.C. 2305.11 establishes the statute of limitations for legal malpractice

claims within the state of Ohio. A plaintiff must file his or her complaint for legal

malpractice within one year of the date that the claim accrued. R.C. 2305.11(A). As

reflected within Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 58, 538

N.E.2d 398 (1989), the Supreme Court of Ohio has created a two prong test to evaluate

when the accrual date for a legal malpractice action starts. The Zimmie court held that a

claim for a legal malpractice accrues, and the statute of limitations starts to run, when

              [(1)] 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 [(2)] when the attorney-client relationship

       for that particular transaction or undertaking terminates, whichever occurs

       later. Id.

       {¶ 10} “The bar of the statute of limitations is an affirmative defense and it is not

one of the defenses specifically permitted to be raised by Civ. R. 12(B) prior to a

responsive pleading unless the complaint conclusively shows on its face that it is barred

by the statute of limitations.” Walker v. Nationwide Mut. Ins. Co., 10th Dist. Franklin




4.
No. 15AP-520, 2015-Ohio-5371, ¶ 4, citing Paul v. World Metals, Inc., 9th Dist. No.

20130, 2001 WL 196513 (Feb. 28, 2001).

       {¶ 11} Here, both appellee and appellant attached exhibits to their respective

filings, and neither party objected to those exhibits. While the trial court did not

explicitly convert the motion to dismiss to a motion for summary judgment, procedurally,

the trial court treated the Civ.R. 12(B)(6) motion as a motion for summary judgment, and

both parties had the opportunity to present matters outside of the pleadings. We shall

also regard the Civ.R. 12(B)(6) motion as a motion for summary judgment, and review

the trial court's judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996).

       {¶ 12} Applying the Zimmie test to the facts in the present case, we find the record

shows that it was conceded by appellant that the attorney-client relationship ended more

than one year from the time the legal malpractice complaint was filed. Therefore, we

must determine when a cognizable event occurred.

       {¶ 13} Appellant argues the trial court erred when it ruled a cognizable event

occurred on July 30, 2012, when he filed his motion to vacate sentence. Appellant

contends he was “specifically prevented from ever exploring the possibility of ineffective

assistance of counsel” until he filed his motion to vacate. Appellant maintains he had no

notice that his counsel was ineffective until October 22, 2013, when his motion to vacate

was granted. Appellant further submits he had no damages for which he could have filed

suit until October 22, 2013, and no real damages became apparent until the indictment



5.
was dismissed on December 9, 2013. Appellant therefore asserts a cognizable event

occurred at the earliest, on October 22, 2013, or the latest, December 9, 2013.

       {¶ 14} Appellee counters a cognizable event occurred when appellant filed a

motion in which he alleged ineffective assistance of counsel. Appellee contends although

appellant may not have had full knowledge about his injuries or the legal importance of

his ineffective assistance of counsel claim, appellant had awareness, or should have had

awareness of alleged ineffective assistance on July 30, 2012, the date the motion to

vacate sentence was filed.

       {¶ 15} In the case of Asente v. Gargano, 10th Dist. Franklin No. 04AP-278, 2004-

Ohio- 5069, ¶ 14, the court recognized 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.” (Citation omitted.)

       {¶ 16} In Deutsch v. Keating, Meuthing, & Klekamp, 2d Dist. Montgomery No.

CA020121, 2005-Ohio-206, ¶ 16, the court found a claimant does not have to realize the

complete extent of his injury before a cognizable event can occur.

       {¶ 17} In Taylor v. Oglesby, 6th Dist. Lucas No. L-05-1064, 2006-Ohio-1225, ¶

14, this court determined a cognizable event occurred when the former client, through

new counsel, filed a motion to reopen his criminal appeal in which it was specifically

alleged that former counsel was ineffective. At that point in time, the former client was

put on notice of a possible malpractice claim by the former counsel. Id.




6.
       {¶ 18} Here, a cognizable event occurred on July 30, 2012, when appellant filed

his motion to vacate sentence based on ineffective assistance of counsel. As of that date,

appellant was put on notice of a possible legal malpractice claim against appellee. Since

the statute of limitations began to run on July 30, 2012, and appellant’s complaint was

not filed until February 4, 2014, beyond the one-year limitations period for filing a legal

malpractice action, appellant’s claim is barred. Appellant’s assignment of error is

therefore not well-taken.

       {¶ 19} The judgment of the Lucas County Common Pleas Court is affirmed. Costs

of the appeal are assessed to appellant pursuant to App.R. 24.

                                                                       Judgment affirmed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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