[Cite as Thomas v. Kramer, 194 Ohio App.3d 70, 2011-Ohio-1812.]




               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 95791


                             THOMAS, EXR., ET AL.,

                                                Appellants,
                                                   v.

                             KRAMER, Appellee, et al.



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-699449


        BEFORE:          Sweeney, P.J., Cooney, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                        April 14, 2011
       Law Offices of Michael Cretella, L.L.C., and Michael Cretella; Kathleen O.
Tatarsky; and Sean Gregor, P.L.L.C., and Sean C. Gregor, for appellants.

    Haber, Polk & Kabat, L.L.P., Richard C. Haber, and Bradley J. Barnes; and Joel I.
Newman, for appellee.




      JAMES J. SWEENEY, Presiding Judge.

      {¶ 1} Plaintiffs-appellants Laurel Thomas, individually and as executor of the

estate of Craig Thomas, and MTI Computer Services, Inc., appeal the court’s granting of

summary judgment to defendant-appellee Edward G. Kramer in this case alleging

attorney misconduct.   After reviewing the facts of the case and pertinent law, we affirm.

      {¶ 2} In 1992, Laurel and her husband Craig retained defendant, who is an

attorney, to handle the legal end of purchasing MTI, a computer maintenance and service

company. Defendant had previously represented Laurel in the 1980s in a civil-rights

action against her former employer.

      {¶ 3} According to plaintiffs, defendant was paid $25,000 in 1992 for his legal

services involving MTI’s acquisition. Defendant denies this, alleging that he and Craig

discussed giving defendant a 15 to 25 percent share in MTI in lieu of payment for legal

services because Craig had no money to pay defendant at the time.           According to
defendant, however, he never received this equity interest; instead, he was placed on

MTI’s board of directors.

       {¶ 4} According to plaintiffs, numerous checks were written to defendant from

1993 to 1998 totaling $365,000.1 Plaintiff argues that these were loans that defendant

never repaid.

       {¶ 5} According to defendant, however, MTI owed him about $125,000 for the

services that he had rendered in negotiating the sale of MTI. He stated:

       {¶ 6} “Craig didn’t want to have me submit a bill for that because it would effect

his bottom line. So when I needed some money, he agreed to loan the money to me at

interest and I agreed to do that since I was going to get money for services that I had

rendered * * *.”

       {¶ 7} On February 16, 1999, an attorney representing MTI sent defendant a letter

captioned “Reciprocal Accounts Due.”      The letter stated that defendant recently invoiced

MTI $44,213.64 “for legal services rendered from 1991 to date.”       The letter also stated

that defendant owed MTI $88,616.90, consisting of an $85,000 personal loan to

defendant and $3,616.90 for services MTI rendered to defendant.            According to the

letter, MTI was willing to credit the amount defendant was owed for legal services




       Although plaintiffs argue that “[i]n all, corporate records and bank checks
       1

indicate that a sum of $365,000 was loaned to [defendant] during the time he
performed legal services for appellants,” the loans plaintiffs identify total $415,000.
against defendant’s debt.    MTI proposed that the parties agree to “specific payment

terms” and that defendant “execute a promissory note to [MTI] for the amount due.”

       {¶ 8} In 2000, defendant was removed from MTI’s board of directors.

Defendant alleges that Craig canceled the amount due on the loans in exchange for

defendant giving up his 15 to 25 percent interest in MTI.

       {¶ 9} On February 17, 2007, Craig passed away.       Laurel was appointed executor

of his estate, and she took over as CEO of MTI.

       {¶ 10} In March 2008, Laurel allegedly became aware of the money MTI had paid

to defendant.   Laurel contacted an attorney who represented MTI to investigate.         At

that time, defendant was representing Craig’s estate in a civil lawsuit. In February 2009,

Laurel terminated this representation.

       {¶ 11} On July 22, 2009, plaintiffs filed suit against defendant, alleging attorney

misconduct. On August 31, 2010, the court granted summary judgment for defendant,

finding that the one-year statute of limitations for legal malpractice began to run in March

2008 and that the claim was thus time-barred. The court also found that the statute of

limitations had run for “any claims for breach of fiduciary duty * * *, as defendant ceased

to be a member of the corporate board in 2000.”        Additionally, the court found that

plaintiffs did not “properly plead a claim of breach of oral contract,” as all allegations

“involve[d] alleged payment of money to defendant while in his capacity as counsel for

the plaintiff corporation which would be part [of] any claim for legal malpractice which

has already been found to be barred.”
       {¶ 12} Plaintiffs appeal and raise three assignments of error for our review, the

first of which states as follows:

       {¶ 13} “I.   The trial court erred in granting appellee’s motion for summary

judgment where genuine issues of material fact exist with regard to when the

attorney-client relationship ended.”

       {¶ 14} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison

Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. The Ohio Supreme Court stated the

appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201, as follows:

       {¶ 15} “Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is

no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter

of law, and (3) reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party, said party being entitled to have the evidence construed

most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,

653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary

judgment bears the burden of showing that there is no genuine issue of material fact and

that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d

280, 292-293, 662 N.E.2d 264, 273-274.”

       {¶ 16} Pursuant to R.C. 2305.11(A), a one-year statute of limitations applies to

legal-malpractice claims.    The Ohio Supreme Court explained the accrual date for a

legal-malpractice action in Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d
54, 58, 538 N.E.2d 398.     “[A]n 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.”

       {¶ 17} The “discovery rule” turns on the factual question of a cognizable event,

which includes making the following determinations: “when the injured party became

aware of, or should have become aware of, the extent and seriousness of [the injury];

whether the injured party was aware, or should have been aware, that such condition was

related to a specific professional [legal] service previously rendered * * *; and whether

such condition would put a reasonable [client] on notice of the need for further inquiry as

to the cause of such condition.” Id. at 57, citing Hershberger v. Akron City Hosp.

(1987), 34 Ohio St.3d 1, 516 N.E.2d 204.

       {¶ 18} This court has held that “the ‘termination rule’ turns on the factual question

of whether there was an ‘affirmative act by either the attorney or the client that signals the

end of the relationship.’” N. Shore Auto Sales, Inc. v. Weston, Hurd, Fallon, Paisley &

Howley, L.L.P., Cuyahoga App. No. 86332, 2006-Ohio-456, ¶ 16, quoting Mastran v.

Marks (Mar. 28, 1990), Suppit App. No. 14270.         The phrase “particular transaction or

undertaking” limits the termination rule and avoids a standard based on continuous

representation.   Otherwise, the statute of limitations could be defeated “where, for
example, a client with knowledge of the attorney’s malpractice may unduly perpetuate the

attorney’s potential liability and exposure to suit.” Omni-Food & Fashion, Inc. v. Smith

(1988), 38 Ohio St.3d 385, 388, 528 N.E.2d 941. See also Slavens v. Spetnagel (July 26,

1996), Jackson App. No. 95CA769 (holding that a “particular transaction” in the context

of legal malpractice “encompasses all dealings related to the proceeding in which the

alleged malpractice occurred that are not of a general nature”).   Although there are three

plaintiffs in the case at hand—Laurel individually, Laurel as executor of her late

husband’s estate, and MTI—the alleged misconduct concerns the attorney-client

relationship between defendant and MTI.        At deposition, Laurel conceded that the

allegations of misconduct did not involve her personally or the estate.      Therefore, we

focus our analysis on defendant’s representation of, and relationship with, MTI, as a

corporate entity, rather than Laurel Thomas.       “A corporation is an entity separate and

apart from the individuals who compose it; it is a legal fiction for the purpose of doing

business.” (Emphasis omitted.) Agley v. Tracy (1999), 87 Ohio St.3d 265, 268, 719

N.E.2d 951.

       {¶ 19} In the instant case, the court found that, “pursuant to [Laurel’s] own

testimony, the events of March 2008 qualify as a cognizable event,” which triggered the

statute of limitations.   Based on this finding, the court granted defendant summary

judgment on plaintiffs’ legal-malpractice claim.

       {¶ 20} Laurel testified in her deposition that she first became concerned about

defendant owing money to MTI in March 2008.            However, our review of the record
shows that MTI was “concerned” about defendant’s debt long before Laurel became

aware of the situation.   MTI was aware that checks were allegedly written to defendant

from 1992 through 1998, as MTI was a party to the transactions.

       {¶ 21} To the extent that defendant’s alleged misconduct was the failure to pay his

debt to MTI, this too was uniquely within MTI’s scope of knowledge. In other words,

MTI discovered, or should have discovered, the injury when defendant failed to pay back

money MTI loaned him.

       {¶ 22} There is no evidence in the record concerning the terms of the loans or

payments, if any, made by defendant.    However, on February 16, 1999, MTI attempted

to collect at least a portion of defendant’s debt, specifically mentioning that defendant

owed MTI $85,000 as the result of a personal loan.       This is a cognizable event that

triggered the statute of limitations for a legal-malpractice claim.     To hold that the

cognizable event was Laurel’s discovery of defendant’s failure to pay MTI would

circumvent the statute of limitations. Corporations, and the individuals who run them,

would be able to dodge statute-of-limitations accrual dates simply by replacing corporate

officers.

       {¶ 23} Accordingly, we conclude that under the discovery rule, the statute of

limitations for legal malpractice in this case began to run on February 16, 1999, which is

when there is evidence to support MTI’s knowledge of defendant’s misconduct. We

now turn to the accrual date under the second prong of the Zimmie test—the termination
rule or “when the attorney-client relationship for that particular transaction or

undertaking” terminated.

        {¶ 24} It is undisputed that defendant sat on MTI’s board of directors through

2000.    However, there is no evidence in the record that defendant performed legal work

for MTI after 2000, other than consulting on a limited number of employment-related

issues that were being handled in New York.              Laurel’s deposition testimony is

inconsistent about the time frame of defendant’s involvement in MTI’s employment

cases, admitting that her “dates are a little blurry.”     Nonetheless, the latest date she

remembered was “around” March 2008.

        {¶ 25} Asked if she ever communicated to defendant that he was no longer

performing legal services for MTI, Laurel replied, “Not to my knowledge.”

        {¶ 26} Defendant testified in deposition that he did not recall the date when he last

represented MTI in a legal matter, although he remembered advising MTI regarding

employment issues after Craig’s death in February 2007. Defendant testified about two

documents that are not part of the record on appeal:    an invoice he sent to MTI on March

17, 2008, for legal services involving employment-discrimination matters and a letter he

sent to MTI’s accountant on September 15, 2008, indicating, for the purpose of an audit,

that he was involved with MTI regarding employment-discrimination matters.

According to defendant, he has no evidence of when his work on these matters

terminated, but he believes that “there was no additional work that was done after

September 15, 2008.”
       {¶ 27} Nonetheless, the dates of the employment-law representation are immaterial

to plaintiffs’ claims; we find defendant’s sporadic involvement with MTI’s

employment-law matters to be a separate and distinct undertaking from the debt he

amassed while on the board.     To the extent that defendant’s alleged malpractice involved

money that he failed to repay to MTI, the attorney-client relationship for this “particular

transaction or undertaking” terminated no later than 2000, when defendant was removed

from the board of directors.

       {¶ 28} The policy behind the statute of limitations in a legal-malpractice action,

including the discovery and termination rules, is “to give the injured client adequate time

to seek relief on the merits without undue prejudice to professional defendants due to

stale claims.”      Vail v. Townsend (1985), 29 Ohio App.3d 261, 504 N.E.2d 1183,

paragraph three of the syllabus. Furthermore, “conduct which dissolves the essential

mutual confidence between attorney and client signals the termination of the professional

relationship.” Brown v. Johnstone (1982), 5 Ohio App.3d 165, 166, 450 N.E.2d 693.

According to the record, MTI did not loan defendant money after 1998, it attempted to

collect $85,000 in 1999, and it removed defendant from the board in 2000. Plaintiffs

presented no evidence of an ongoing attorney-client relationship to toll the statute of

limitations subsequent to these events.

       {¶ 29} In summary, plaintiffs’ claim for legal malpractice, which was filed in July

2009, is time-barred using both the discovery rule and the termination rule to determine

the accrual date.    Looking at the evidence in a light most favorable to plaintiffs, as we
must, there are no genuine issues of material fact.   Plaintiffs’ first assignment of error is

overruled.

       {¶ 30} In plaintiffs’ second assignment of error, they argue as follows:

       {¶ 31} “II.   The trial court erred in granting appellee’s motion for summary

judgment when it found that appellants did not properly plead breach of oral contract

separate and apart from their claim of legal malpractice.”

       {¶ 32} A legal-malpractice action may be predicated upon contract or tort, Muir v.

Hadler Real Estate Mgt. Co. (1982), 4 Ohio App.3d 89, 90, 446 N.E.2d 820, and “the

applicable statute of limitations is determined not from the form of pleading or procedure,

but from the gist of the complaint.” Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128,

131, 446 N.E.2d 832.      “Malpractice by any other name still constitutes malpractice.”

Muir at 90.

       {¶ 33} In the instant case, the court found that plaintiffs’ allegations involving the

loans were part of the legal-malpractice claim, which was filed outside the statute of

limitations. Plaintiffs’ allegations of misconduct included “charging excessive fees,”

sitting on MTI’s board while extracting loans from MTI, and “failing to exercise

independent judgment while acting as counsel” to MTI.            Plaintiffs fail to identify

evidence in the record of excessive fees.    Additionally, they do not identify any specific

instances of “failing to exercise independent judgment” unrelated to the alleged loans.

       {¶ 34} Assuming the only allegation of breach of contract involved the loans, this

claim would still be barred by the applicable statute of limitations.   There is no evidence
of a written contract between MTI and defendant involving loans or, for that matter, legal

fees.   Thus, we analyze whether there was a breach of an oral contract, which is subject

to a six-year statute of limitations under R.C. 2305.07.             Similar to the statute of

limitations   for   a   legal-malpractice   claim,   the   statute     of   limitations   for   a

breach-of-oral-contract claim begins to run when the cause of action accrues.         When the

subject of the oral contract is a loan, the accrual date is when the loan is due to be repaid,

the lender requests payment, and the borrower fails to pay.                 Dandrew v. Silver,

Cuyahoga App. No. 86089, 2005-Ohio-6355.

        {¶ 35} Plaintiffs argue that MTI first demanded payment on June 17, 2009, when

an attorney representing MTI sent a letter to defendant attempting to collect a debt.

According to plaintiffs, defendant did not respond to this letter. This letter is not a part

of the record on appeal.

        {¶ 36} Defendant, on the other hand, argues that MTI first demanded payment in

the February 16, 1999 letter MTI sent to defendant attempting to resolve the “reciprocal

accounts due” between the parties.     The letter refers to defendant’s $85,000 loan from

MTI, suggests that it be offset by an amount MTI owed defendant, and “propose[s] that

[defendant] execute a promissory note to [MTI] for the amount due, with specific

payment terms, as mutually agreed to by [defendant and MTI].”

        {¶ 37} Plaintiffs argue that this 1999 letter was not a demand for payment.

Rather, plaintiffs argue, it “suggested that a promissory note be finalized”; however, that
never happened.       Plaintiffs also argue that, at best, the 1999 letter attempted to collect

only a portion of the loans. Plaintiffs cite no legal authority to support these arguments.

       {¶ 38} We find that the February 16, 1999 letter is an attempt to collect a debt,

which is sufficient to trigger the statute of limitations for a breach-of-oral-contract claim.

 Plaintiffs filed their complaint more than six years after the accrual date for this cause of

action. Accordingly, the court did not err by granting summary judgment to defendant

under a breach-of-contract theory, and plaintiffs’ second assignment of error is overruled.

       {¶ 39} Plaintiffs’ third and final assignment of error states the following:

       {¶ 40} “III.    The trial court erred in granting appellee’s motion for summary

judgment when it failed to address appellants’ claim of unjust enrichment.”

       {¶ 41} Plaintiffs alleged unjust enrichment in their complaint using the following

language:

       {¶ 42} “As a result of the conduct of the Defendant Kramer, the other Defendants

became unjustly enriched.        All of the foregoing Defendants knew, or should have

known, that Defendant Kramer was borrowing excessive amounts of money from MTI

which were used to benefit all of the Defendants while he was representing the foregoing

Plaintiffs.” (Emphasis added.)

       {¶ 43} Plaintiffs initially filed this action against three defendants—Edward

Kramer and two of his former law partners.        On February 2, 2010, plaintiffs voluntarily

dismissed “any and all claims as alleged against” the two former law partners, “with the
understanding that the case will proceed against Defendant Edward G. Kramer.”              The

court issued a journal entry reflecting this dismissal on February 5, 2010.

       {¶ 44} Plaintiffs’ complaint expressly alleges a cause of action for unjust

enrichment against the defendants other than Edward Kramer.          It is undisputed that the

other defendants were not parties to the case when the court granted summary judgment;

therefore, it did not err in failing to address this cause of action, as it was no longer in

front of the court.

       {¶ 45} Assuming arguendo that a claim for unjust enrichment against defendant

was properly before the court, it was filed outside the one-year statute of limitations for

legal malpractice for the reasons delineated above.           Assuming further that the

unjust-enrichment claim could stand independent of a legal-malpractice claim, it was filed

outside of the six-year statute of limitations under R.C. 2305.07.

       {¶ 46} Accordingly, plaintiffs’ third and final assignment of error is overruled.




                                                                         Judgment affirmed.



       COONEY and ROCCO, JJ., concur.
