        [Cite as Taft, Stettinius, & Hollister, L.L.P. v. Calabrese, 2016-Ohio-4713.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



TAFT, STETTINIUS, & HOLLISTER, :                              APPEAL NO. C-150097
LLP,                                                          TRIAL NO. A-1404456
                                    :
    Plaintiff-Appellee,
                                    :                               O P I N I O N.
  vs.
                                    :
ANTHONY O. CALABRESE, III,
                                    :
    Defendant-Appellant/Third-party
Plaintiff-Appellant,                :

  vs.                                              :

RALPH KOHNEN                                       :

    Third-Party Defendant-Appellee.
                                                   :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 30, 2016


Taft, Stettinius, & Hollister, LLP, and Russell S. Sayre, John B. Nalbandian and
Nicholas J. Pieczonka for Plaintiff-Appellee Taft Stettinius & Hollister, LLP, and
Third-Party Defendant-Appellee Ralph Kohnen,

Stefanik & Christie, LLC, and John R. Christie for Defendant-Appellant/Third-Party
Plaintiff-Appellant Anthony O. Calabrese, III.
                         OHIO FIRST DISTRICT COURT OF APPEALS



S TAUTBERG , Judge.

       {¶1}   This is an appeal from the trial court’s entry of summary judgment in

favor of the law firm of Taft, Stettinius, & Hollister, LLP, (“Taft”) and attorney Ralph

Kohnen on Anthony O. Calabrese’s claims for breach of contract, unjust enrichment,

and legal malpractice. We affirm.

                                            Facts

       {¶2}   Kohnen is a partner at Taft.       Calabrese hired Kohnen and Taft to

represent him in connection with a criminal matter. In pertinent part, the parties’

engagement letter stated:

       You [Calabrese] have asked that we [Kohnen and Taft] represent you in

       a criminal investigation of you currently being conducted by the Federal

       Bureau of Investigation’s Cleveland Resident Agency and the United

       States Attorney’s Office for the Northern District of Ohio. You have also

       asked that we represent you in any criminal proceeding in which you are

       a named defendant brought as a result of or at the conclusion of the

       aforementioned investigation. * * * Our services will include related

       proceedings before Courts of Appeals that are undertaken before final

       judgment in your case at the trial court level, but the scope specifically

       does not include any appeal from a final judgment at the trial court level.

       {¶3}   In return, Calabrese paid Taft and Kohnen a flat fee.

       {¶4}   Kohnen and other Taft attorneys represented Calabrese throughout the

federal investigation.   On January 15, 2013, Calabrese pleaded guilty to federal

charges. In early April 2013, the Cuyahoga County Grand Jury indicted Calabrese on

state charges. According to Calabrese, these state charges stemmed from the same

conduct as the federal charges, and were similar in nature to the federal charges.



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                          OHIO FIRST DISTRICT COURT OF APPEALS



Calabrese therefore believed that Taft would represent him on the state charges, and

he emailed Kohnen asking who Taft was sending to appear at Calabrese’s state

arraignment.    On April 12, 2013, Kohnen informed Calabrese that the parties’

engagement letter did not contemplate representation on the state charges. Calabrese

thereafter retained other counsel for the state matter. But Calabrese continued to

dispute Taft and Kohnen’s determination that the engagement letter did not require

representation on the state charges.      This disagreement eventually culminated in

Calabrese and Taft, but not Kohnen, executing an agreement tolling the statute of

limitations for all claims until August 4, 2014.

       {¶5}    Meanwhile, Taft and Kohnen continued to represent Calabrese in the

federal case. On June 21, 2013, Calabrese was sentenced to nine years in federal

prison. Taft and Kohnen claim that the last day that they provided representation to

Calabrese was on July 22, 2013. Calabrese claims that Taft and Kohnen continued to

represent him after sentencing in connection with Calabrese’s federal restitution order.

According to Calabrese, he was unaware that Taft and Kohnen had stopped

representing him until Calabrese’s federal prison account was debited on September

10, 2013. Apparently, the debiting of his account had alerted Calabrese to the fact that

Taft and Kohnen were not working on a restitution plan.

       {¶6}    On July 30, 2014, after learning that Calabrese was contemplating suing

Taft and Kohnen for failing to represent him in the state matter, Taft filed a complaint

for declaratory judgment under R.C. 2721.03 asking the court to declare that, under

the terms of its written contract with Calabrese, Taft had not been required to

represent Calabrese in the state case.      Taft also requested a declaration that any

malpractice claim against Taft was time-barred.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}   On August 4, 2014, Calabrese answered Taft’s complaint, filed a third-

party complaint against Kohnen, and counterclaimed against Taft, alleging breach of

contract, unjust enrichment, and legal malpractice claims against both Taft and

Kohnen.    Taft and Kohnen subsequently moved for summary judgment on all of

Calabrese’s claims.

       {¶8}   The trial court determined that all of Calabrese’s claims sounded in

malpractice and were therefore subject to a one-year statute of limitations. The court

further determined that any malpractice claim had accrued on April 12, 2013 because

that was the date that Kohnen had informed Calabrese that he would not represent

him on the state charges. And because the parties’ tolling agreement had not been

personally signed by Kohnen, the agreement could not be enforced against him.

Without a claim against Kohnen—the only attorney named in Calabrese’s lawsuit—any

malpractice claim against Taft failed as a matter of law. The trial court therefore

granted summary judgment in favor of Taft and Kohnen as to all of Calabrese’s claims.

Taft later voluntarily dismissed its declaratory judgment action. This appeal followed.

                           Calabrese’s Assignments of Error

       {¶9}   Calabrese raises five assignments of error. He claims that (1) the trial

court erred in entering summary judgment because the state and federal cases were

“inextricably tied together,” (2) the trial court erred in entering summary judgment

because “the Taft law firm provided or should have provided legal services” to

Calabrese within one year of Calabrese’s malpractice claim, (3) the trial court abused

its discretion in denying a Civ.R. 56(F) motion Calabrese claims he filed, (4) the trial

court erred in entering summary judgment because Taft and Kohnen’s failure to

represent him in the state case breached their contractual obligations to Calabrese, and

(5) the trial court should have recused itself due to a “myriad of issues.”



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                          OHIO FIRST DISTRICT COURT OF APPEALS



                                Summary Judgment

         {¶10} Calabrese’s first, second, and fourth assignments of error challenge the

trial court’s summary-judgment order. We review the granting of summary judgment

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

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) the evidence,

when viewed in favor of the nonmoving party, permits only one reasonable conclusion

and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Grafton; State ex

rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994). The moving

party bears the initial burden of informing the court of the basis for the motion and

demonstrating the absence of any genuine issues of material fact. Dresher v. Burt, 75

Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party meets its burden, the

nonmoving party must then present evidence that some issue of material fact remains

to be litigated. Id.

         {¶11} We take Calabrese’s assignments of error out of order, and address the

fourth assignment of error first.

                   Malpractice or Breach of Contract Claim?

         {¶12} In his fourth assignment of error, Calabrese alleges that the trial court

erred when it determined that his breach of contract claim was actually a malpractice

claim.

         {¶13} “The term ‘malpractice’ refers to professional misconduct, i.e., the

failure of one rendering services in the practice of a profession to exercise that degree

of skill and learning normally applied by members of that profession in similar

circumstances.” Strock v. Pressnell, 38 Ohio St.3d 207, 211, 527 N.E.2d 1235 (1988),

citing 2 Restatement of the Law 2d, Torts, Section 299(A) (1965). A cause of action, no



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                         OHIO FIRST DISTRICT COURT OF APPEALS



matter how it is labeled, will be subsumed into a malpractice claim where that claim

arises out of “the manner in which the attorney represented the client.” Muir v.

Hadler Real Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th Dist.1982);

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

       {¶14} Taft and Kohnen cite Waite, Schneider, Bayless & Chesley Co., L.P.A. v.

Davis, 5 F.Supp.3d 922 (S.D.Ohio 2014), in support of their position that Calabrese’s

contract claim sounded in malpractice. In Davis, Davis had entered into an agreement

with Waite, Schneider, Bayless & Chesley (“the Waite Firm”) whereby the Waite Firm

had agreed to represent Davis on claims related to Davis’s CNG investments. Davis

believed that the parties’ agreement covered cases beyond a single Hamilton County

case that had been pending at the time of the agreement. The Waite Firm disagreed,

and refused to represent Davis in three other CNG-investment-related actions that had

arisen after the parties’ entered their agreement. Davis ultimately hired other counsel

to handle those matters. Davis later sued the Waite Firm for breach of contract,

breach of fiduciary duty, and malpractice. In relevant part, the court determined that

Davis’s breach of contract claim was actually a claim for malpractice because the claim

went to the manner in which the Waite Firm had represented—or failed to represent—

Davis. The court reasoned that “[w]hile the Waite Firm’s attorneys may have breached

their contractual obligation by refusing to represent Davis in other actions, under Ohio

law, such breach constitutes malpractice.” Id. at 927. We believe that this is an

accurate interpretation of Ohio law. See Chambers v. Cottrell, 6th Dist. Lucas No. L-

10-1178, 2011-Ohio-144 (client’s allegation that her attorney’s failure to pursue a Dram

Shop Act claim as allegedly required by the parties’ contract went directly to manner in

which her attorney had represented or failed to represent her, and therefore the claim

sounded in malpractice); United States Fid. & Guar. Co. v. Pietrykowski, 6th Dist. Erie



                                           6
                         OHIO FIRST DISTRICT COURT OF APPEALS



No. E99-38, 2000 Ohio App. LEXIS 460 (Feb. 11, 2000) (insurance company sued the

attorney it had hired to represent an insured, claiming that the attorney had failed to

provide a defense to the insured; the court found that all claims sounded in

malpractice because each claim, no matter how it was labeled, addressed issues of

what the attorney did or did not do in the course of representing the insured); Rumley

v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 718 N.E.2d 964 (10th

Dist.1998) (where attorney had agreed to represent a client, but later left his law firm

and client’s case was never reassigned to another firm attorney, client’s breach of

contract claim was actually a claim for malpractice).

       {¶15} Here, Calabrese is alleging that his attorney had a contractual obligation

to represent him in both the federal and state cases, and that the failure to represent

him in the state case constituted a breach of contract. This claim sounds in malpractice

because it challenges the manner of Kohnen’s representation. Moreover, the operative

allegations upon which Calabrese relies for his breach of contract claim are the same

for his malpractice claim. We therefore find that the trial court correctly determined

that Calabrese’s breach of contract claim was a malpractice claim.

       {¶16} Calabrese’s fourth assignment of error is overruled.

                    Statute of Limitations for Malpractice

       {¶17} Next, we address Calabrese’s first and second assignments of error. In

his first assignment of error, Calabrese contends that the trial court erred in entering

summary judgment because the state and federal cases were “inextricably tied

together.” While not entirely clear from Calabrese’s brief, it appears that this

assignment of error goes to whether the trial court correctly determined that

Calabrese’s malpractice claim was time-barred. In Calabrese’s second assignment of




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                          OHIO FIRST DISTRICT COURT OF APPEALS



error, he alleges that the trial court erred in ruling that his malpractice claim was

untimely. We address these assignments of error, together.

       {¶18} The statute of limitations for a legal-malpractice action is one year from

when the cause of action accrued. R.C. 2305.11(A). A cause of action accrues “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, 58, 538 N.E.2d

398 (1989). Therefore whether the statute of limitations bars a legal-malpractice claim

turns on two factual determinations: “(1) When should the client have known that he

or she may have an injury caused by his or her attorney? and (2) When did the

attorney-client relationship terminate? The latter of these two dates is the date that

starts the running of the statute of limitations.” Smith v. Conley, 109 Ohio St.3d 141,

2006-Ohio-2035, 846 N.E.2d 509, ¶ 4.

       {¶19} Taft and Kohnen claim that the attorney-client relationship ended when

Kohnen informed Calabrese on April 12, 2013, that Kohnen and Taft would not

represent Calabrese on the state charges. This statement would normally suffice for

purposes of R.C. 2305.11 to establish a termination of the attorney-client relationship.

See Conley at ¶ 10-11. And it does suffice to show that the attorney-client relationship

as to the state charges, if one had ever existed, had ended. However, it is undisputed

that Taft and Kohnen continued to represent Calabrese after April 12, 2013. Under the

termination test, the statute of limitations begins to run “when the attorney-client

relationship for * * * [a] particular transaction or undertaking terminates.” (Emphasis

added.) Zimmie at 58. The parties’ engagement letter stated that Taft and Kohnen



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                         OHIO FIRST DISTRICT COURT OF APPEALS



agreed to represent Calabrese “in any criminal proceeding” in which Calabrese was a

named defendant “brought as a result of or at the conclusion of the aforementioned

investigation.” The state and federal cases were both criminal proceedings naming

Calabrese as a defendant and—according to Calabrese’s version of events—were

brought at the conclusion of or as the result of the investigation referenced in the

engagement letter. Viewing this evidence in a light most favorable to Calabrese, the

state and federal cases could be fairly characterized as the same “undertaking.” The

question then becomes, when did Taft and Kohnen stop representing Calabrese in this

undertaking?

       Calabrese’s Confusion of Discovery and Termination Tests

       {¶20} Calabrese argues that the attorney-client relationship in the federal case

did not terminate until he “discovered” that his federal prison account had been

debited on September 10, 2013. Calabrese’s argument seems to combine the tests set

forth in Conley, i.e., the termination test and the discovery test. These tests involve

two distinct analyses. Even assuming that Calabrese did not “discover” that Taft and

Kohnen had stopped representing him in the federal case until his federal prison

account had been debited, this “discovery” is irrelevant. The discovery rule tolls the

running of the statute of limitations until the time that a client discovers or should

have discovered his or her alleged injury. Conley at ¶ 4. Here, Calabrese’s malpractice

claim revolves around Taft’s refusal to represent him in the state case. He did not

allege in his complaint that Taft or Kohnen committed malpractice in connection with

the debiting of his federal prison account.      Consequently, his “discovery” of the

debiting of his federal prison account has no relevance to his malpractice claim.

       {¶21} Turning to the termination test, and upon a review of the record, we

hold that there is no genuine issue of fact concerning when Taft’s and Kohnen’s



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                         OHIO FIRST DISTRICT COURT OF APPEALS



representation ended. Kohnen had terminated the attorney-client relationship, if one

had ever existed on the state case, on April 12, 2013. And Kohnen’s affidavit stated

that he provided no further services to Calabrese after July 22, 2013—the day after

final judgment was entered in the federal case. Further, the parties’ engagement letter

stated that Taft and Kohnen would represent Calabrese through “final judgment.”

Calabrese failed to offer any evidence of the type contemplated by Civ.R. 56(C) and (E)

to show that Kohnen had continued to represent him after Calabrese had been

sentenced in federal court. Calabrese did submit to the trial court one email from Taft

attorney Chad Ziepfel suggesting that Ziepfel may have continued to work on the

federal case after sentencing, but this fails to create a genuine issue of fact concerning

when Kohnen’s attorney-client relationship with Calabrese had ended. Calabrese did

not allege that Ziepfel committed acts of malpractice. Kohnen is the only attorney

named as a counterclaim defendant and the only attorney alleged to have committed

malpractice, and the claim against him is barred by the statute of limitations. In the

absence of a claim against Kohnen, Calabrese’s malpractice claim against Taft fails as a

matter of law. See Natl. Union Fire Ins. Co. of Pittsburgh, P.A. v. Wuerth, 122 Ohio

St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, paragraphs one and two of the syllabus.

                              The Tolling Agreement

       {¶22} Finally, Calabrese asserts that, even if he should have filed his lawsuit on

or before July 22, 2014, the tolling agreement that he executed with Taft tolled the

statute of limitations for his malpractice claim against Taft and Kohnen until August 4,

2014. Taft contends that the tolling agreement applies to claims against Taft, only, and

not against Kohnen. Taft is correct.

       {¶23} The tolling agreement in this case provided, “This agreement is made

and entered into by and between Taft, Stettinius & Hollister, LLP (“the Firm”) and



                                           10
                         OHIO FIRST DISTRICT COURT OF APPEALS



Anthony O. Calabrese III (“Claimant”).” Kohnen was not named in the agreement and

he did not sign the agreement.

       {¶24} It is well-settled that common words appearing in a written instrument

are to be given their plain meaning. Alexander v. Buckeye Pipeline Co., 53 Ohio St.2d

241, 245, 374 N.E.2d 146 (1978). Under the plain meaning of these words, the tolling

agreement did not toll the statute of limitations against Kohnen.

       {¶25} Because the tolling agreement did not apply to Kohnen, and because

Kohnen is the only attorney that Calabrese sued for malpractice, Calabrese cannot

maintain a malpractice claim solely against Taft—whether it was timely or not. See

Wuerth. The trial court therefore properly entered summary judgment in favor of Taft

and Kohnen on the basis that Calabrese’s claims were untimely.

       {¶26} Calabrese’s first and second assignments of error are overruled.

                                           Civ.R. 56(F)

       {¶27} In Calabrese’s third assignment of error, he claims that the trial court

abused its discretion when it failed to grant his Civ.R. 56(F) motion.

       {¶28} Under Civ.R. 56(F), a party opposing a motion for summary judgment

may move for a continuance where that party needs more time to conduct discovery.

The motion must be supported by an affidavit establishing the reasons for the

requested continuance. Civ.R. 56(F). Calabrese failed to abide by this requirement,

and failed to file a separate and identifiable motion. See Civ.R. 7(B); Civ.R. 10. Rather,

Calabrese merely stated on pages 19 and 20 of his memorandum in opposition to

summary judgment that in the event the trial court did not agree that there were issues

of fact, then he was entitled to conduct full discovery before the summary judgment

motion should be considered. This does not constitute a proper request under Civ.R.

56(F). To the extent that these few lines could be considered a “motion” under Civ.R.



                                           11
                          OHIO FIRST DISTRICT COURT OF APPEALS



56(F), we hold that the trial court did not err in denying it since the motion was not

supported by an accompanying affidavit, as required. See Sipple v. A.G. Edwards &

Sons, Inc., 1st Dist. Hamilton No. C-010701, 2002-Ohio-4342. Calabrese’s third

assignment of error is overruled.

                                          Bias of Trial Court

       {¶29} In his fifth and final assignment of error, Calabrese contends that the

trial judge was biased, and that he should have recused himself from the case. This

court does not have the authority to determine whether a trial judge was biased or

prejudiced. Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). The

exclusive means for judicial review of a judge’s potential bias or prejudice is to file an

affidavit of disqualification with the Ohio Supreme Court pursuant to R.C. 2701.03.

State v. Gandy, 1st Dist. Hamilton No. C-050804, 2006-Ohio-6282, ¶ 22. Calabrese’s

fifth assignment of error is overruled.

       {¶30} The trial court’s judgment is affirmed.

                                                                     Judgment affirmed.
CUNNINGHAM, P.J., and MOCK, J., concur.


Please note:
               The court has recorded its own entry this date.




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