[Cite as Robert J. Behal Law Office, L.L.C. v. Johnson, 2012-Ohio-1932.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

ROBERT J. BEHAL LAW OFFICES LLC                            JUDGES:
                                                           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                                 Hon. Sheila G. Farmer, J.
                                                           Hon. John W. Wise, J.
-vs-

PATRICK JOHNSON                                            Case No. 11CA000034

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Guernsey County Court of
                                                       Common Pleas, Case No. 10CV000056


JUDGMENT:                                              Affirmed


DATE OF JUDGMENT ENTRY:                                April 18, 2012


APPEARANCES:


For Plaintiff-Appellee                                 For Defendant-Appellant


JACK D'AURORA                                          PATRICK JOHNSON
The Behal Law Group LLC                                18351 Cadiz Road
501 S. High Street                                     Lore City, Ohio 43755
Columbus, Ohio 43215
Guernsey County, Case No. 11CA000034                                                  2

Hoffman, P.J.


          {¶1}   Defendant-appellant Patrick R. Johnson appeals the May 28, 2010 Entry

entered by the Guernsey County Court of Common Pleas, which granted summary

judgment in favor of plaintiff-appellee Robert J. Behal Law Offices, LLC. Appellant also

appeals the September 1, 2011 Findings of Fact/Conclusions of Law/Judgment Entry

entered by the same, which found Appellee was not entitled to a monetary award

against Appellant.

                            STATEMENT OF THE FACTS AND CASE

          {¶2}   On July 11, 2005, a magistrate conducted a final hearing in the divorce

trial of Appellant and his now ex-wife. Appellant was represented by Attorney Douglas

A. Moorehead during the proceedings. The magistrate issued a decision on August 4,

2005. Appellant and his mother, Anna Johnson, were unhappy with the magistrate’s

decision and Attorney Moorehead’s representation of Appellant.            Sometime in

August/September, 2005, Appellant and Mrs. Johnson allegedly retained Attorney

Robert Behal to bring a legal malpractice action against Attorney Moorehead.          It

appears from the record Attorney Behal filed objections to the magistrate’s decision in

the divorce proceeding as well as an appeal from the final judgment in the divorce

action.

          {¶3}   Attorney Behal claims to have informed Appellant he did not handle

malpractice cases and would have to refer him to another attorney. Appellant testified

he and his mother were “dumbfounded” and their “jaws dropped” when, in June/July,

2006, Attorney Behal informed them he would not represent Appellant in a malpractice

action and Appellant would have to hire another attorney.        Appellant’s malpractice
Guernsey County, Case No. 11CA000034                                                    3


action against Attorney Moorehead was filed by Attorneys Meizlish and Golden on

September 11, 2006.        Appellant voluntarily dismissed that malpractice case in

December, 2007.

      {¶4}   On October 22, 2009, Appellee filed an action against Appellant in the

Cambridge Municipal Court, seeking unpaid attorney fees. Appellant filed a pro se

answer and counterclaim. In his counterclaim, Appellant alleged Attorney Behal had

committed malpractice during his representation of Appellant.          Appellant sought

damages in excess of $15,000; therefore, the matter was transferred to the Guernsey

County Court of Common Pleas. On April 27, 2010, Appellee filed a motion for summary

judgment on the counterclaim, asserting the counterclaim was barred by the applicable

statute of limitations. Appellant filed an answer in opposition to the motion for summary

judgment on May 6, 2010.

      {¶5}   Via Entry dated May 28, 2010, the trial court granted summary judgment

in favor of Appellee, finding Appellant’s claim was time barred.           The trial court

conducted a bench trial on Appellee’s complaint on August 18, 2011. Via Findings of

Fact/Conclusions of Law/Judgment Entry dated September 1, 2011, the trial court

concluded Appellee was not entitled to a monetary award against Appellant.

      {¶6}   It is from these judgment entries Appellant appeals, raising as error:

      {¶7}   “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

WHICH APPLIED THE R.C. 2305.11(A) TO THE CONTRACT FOR LEGAL SERVICES

WHEN     THE    ATTORNEY       FAILED     TO    COMPLY      WITH     THE     RULES     OF

PROFESSIONAL RESPONSIBILITY.”
Guernsey County, Case No. 11CA000034                                                    4


      {¶8}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶9}   Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶10} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to
Guernsey County, Case No. 11CA000034                                                    5


some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                                I

      {¶11} In his sole assignment of error, Appellant contends the trial court erred in

granting summary judgment in favor of Appellee based upon a finding Appellant’s claim

was time barred because Attorney Behal allegedly failed to comply with the Code of

Professional Responsibility and Rules of Professional Conduct.

      {¶12} In his counterclaim, Appellant alleged Attorney Behal committed

malpractice by failing to file a malpractice action against Attorney Moorehead. It was

upon this assertion and the facts related thereto the trial court found Appellant’s

counterclaim was barred by the applicable statute of limitations. However, in his Brief to

this Court, Appellant asserts Attorney Behal committed malpractice by failing to execute

a written retention agreement in violation of R. 1.5(b) of the Rules of Professional

Conduct. We will not address this argument as Appellant cannot change the theory of

his case and present this new argument for the first time on appeal. Odita v. Phillips,

10th Dist. No. 09AP-1172, 2010-Ohio-4321, ¶ 47, citing Abshire v. Mauger, 10th Dist.
Guernsey County, Case No. 11CA000034                                                       6

No. 09AP-83, 2010-Ohio-787; see also State ex rel. Gutierrez v. Trumbull Cty. Bd. of

Elections (1992), 65 Ohio St.3d 175, 177.

        {¶13} We now address the issue of whether the trial court’s grant of summary

judgment based upon the expiration of the statute of limitations was appropriate in this

case.

        {¶14} The statute of limitations for a legal malpractice claim is one year. R.C.

2305.11(A). A legal malpractice action 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 nonact, and the client is put

on notice of the 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 (1989), 43 Ohio St.3d 54,

538 N.E.2d 398, at syllabus.

        {¶15} A “cognizable event” is an event sufficient to alert a reasonable person

that in the course of legal representation, his attorney committed an improper act.

Wozniak v. Tonidandel (1997), 121 Ohio App.3d 221, 699 N.E.2d 555. In other words, a

cause of action does not arise “until the plaintiff knows, or by the exercise of reasonable

diligence should know, that he or she has been injured” by the defendant's conduct.

Flagstar Bank, F.S.B. v. Airline Union's Mtge. Co., 128 Ohio St.3d 529, 2011–Ohio–

1961, 947 N.E.2d 672, ¶ 14, citing Collins v. Sotka (1998), 81 Ohio St.3d 506, 507, 692

N.E.2d 581. “The rule entails a two-pronged test—i.e., actual knowledge not just that

one has been injured but also that the injury was caused by the conduct of the

defendant.” Id., citing O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 87, 90, 447
Guernsey County, Case No. 11CA000034                                                   7


N.E.2d 727. The statute of limitations does not begin to run until both prongs have been

satisfied.

       {¶16} The evidence reveals the cognizable event in the instant action was a

meeting in early July, 2006, at which Appellant learned Attorney Behal would not handle

the malpractice case against Attorney Moorehead. At the latest, we find the cognizable

event occurred on September 11, 2006, when Attorneys Keith Golden and Jodie

Meizlish of Krupman, Golden, Meizlish, & Marks, LLP filed the professional negligence

action against Attorney Moorehead. Appellant asserted his malpractice claim in his

counterclaim filed December 28, 2009, some three years after the latest cognizable

event in September, 2006.1 .

       {¶17} Appellant’s sole assignment of error is overruled.

       {¶18} The judgment of the Guernsey County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur                             s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE




1
 We find Appellant’s attempt to cast his claim as one for breach of contract to avoid the
one year statute of limitation to no avail. See, Warman v. L. Patrick Mulligan & Assoc.,
Co., 2nd Dist. No. 22503, 2009-Ohio-1940.
Guernsey County, Case No. 11CA000034                                           8


           IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


ROBERT J. BEHAL LAW OFFICES LLC          :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
PATRICK JOHNSON                          :
                                         :
       Defendant-Appellant               :         Case No. 11CA000034


       For the reasons stated in our accompanying Opinion, the judgment of the

Guernsey County Court of Common Pleas is affirmed. Costs to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Sheila G. Farmer___________________
                                         HON. SHEILA G. FARMER


                                         s/ John W. Wise______________________
                                         HON. JOHN W. WISE
