[Cite as Lloyd v. Ernst, 2019-Ohio-756.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




DAMON S. LLOYD,                                  :

        Appellant,                               :       CASE NO. CA2018-05-058

                                                 :               OPINION
    - vs -                                                        3/4/2019
                                                 :

DAVID ERNST, et al.,                             :

        Appellees.                               :



             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. CA2018-05-058



Damon S. Lloyd, 15802 State Route 104 North, Chillicothe, Ohio, 45601, pro se

David Ernst, Ernst & Associates, 11 S. Broadway, Suite 200, Lebanon, Ohio, 45036, pro se



        HENDRICKSON, P.J.

        {¶ 1} Plaintiff-appellant, Damon Lloyd, appeals a decision of the Warren County

Court of Common Pleas granting summary judgment in favor of defendants-appellees, David

Ernst, Attorney at Law and Ernst & Associates, Attorneys at Law (collectively "Ernst"). For

the reasons that follow, we affirm the decision of the trial court.

        {¶ 2} Lloyd was indicted for murder with a firearm specification. In late 2006, Lloyd

retained Ernst to conduct his defense. At that time, Lloyd paid Ernst a retainer fee of
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$20,000. Following a bench trial, Lloyd was found guilty as charged in the indictment and

was sentenced to an aggregate prison term of 18 years to life. Thereafter, in April 2007,

Ernst filed a Notice of Appeal on Lloyd's behalf and a motion to withdraw as counsel.

Ultimately, Ernst was not consulted for any appeal taken by Lloyd. Upon the conclusion of

Ernst's representation of Lloyd, the firm mailed Lloyd an itemized final invoice.

       {¶ 3} In June 2016, Lloyd sent Ernst a demand letter requesting the return of

$15,000. In response, Ernst sent a letter to Lloyd detailing the "propriety of the legal

defense" and provided another copy of the final invoice originally provided to Lloyd in 2007.

       {¶ 4} In July 2016, Lloyd filed a complaint against Ernst alleging claims of breach of

contract, fraud, legal malpractice, and unjust enrichment. Specifically, Lloyd alleged he

retained Ernst in 2006 for his criminal defense due to Ernst's expertise and knowledge;

however, due to the manner in which Ernst handled Lloyd's defense, he was sentenced to 18

years to life in prison. The complaint further alleged Ernst fraudulently charged Lloyd for

legal services.

       {¶ 5} In March 2018, Lloyd moved for summary judgment on all claims. In his

motion, Lloyd argued that Ernst improperly advised him to forego a jury trial, to reject a

stipulated charge of manslaughter, and advised him that he would be acquitted of all

charges. Lloyd further claimed Ernst deliberately withheld evidence that the victim of the

homicide had an extensive criminal record, and failed to produce the evidence at Lloyd's trial.

In support, Lloyd attached an affidavit from his wife. In the affidavit, Lloyd's wife averred she

had personal knowledge of the matter and that Ernst made the representations set forth in

the complaint. Lloyd also attached an unauthenticated, handwritten list of case numbers

from various courts allegedly pertaining to the murder victim's criminal history and an

unauthenticated 2007 billing invoice from Ernst.



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       {¶ 6} Thereafter, Ernst filed a response to Lloyd's motion for summary judgment and

also moved to dismiss Lloyd's complaint because it was time barred and failed to state a

claim upon which relief could be granted. In support of their motion, Ernst attached the

affidavit of David E. Ernst and a copy of the underlying criminal case docket. Because

Ernst's motion was supported by evidence outside of the pleadings, the trial court converted

Ernst's motion to dismiss into a motion for summary judgment. Subsequently, Lloyd filed a

motion to strike Ernst's motion, arguing the pleading was "impertinent, immaterial, and

scandalous." Ultimately, the trial court found that Ernst was entitled to judgment as a matter

of law on each of Lloyd's claims. As a result, the trial court granted Ernst's motion for

summary judgment and dismissed the complaint in its entirety. Lloyd now appeals, raising

four assignments of error.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE

CLAIM FOR BREACH OF CONTRACT

       {¶ 9} Assignment of Error No. 2:

       {¶ 10} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE

CLAIM FOR FRAUD

       {¶ 11} Assignment of Error No. 3:

       {¶ 12} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE

CLAIM FOR LEGAL MALPRACTICE

       {¶ 13} Assignment of Error No. 4:

       {¶ 14} THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN DENYING THE

CLAIM FOR UNJUST ENRICHMENT

       {¶ 15} We review a trial court's ruling on a motion for summary judgment de novo.

Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, ¶ 14
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(12th Dist.). "De novo review means that this court uses the same standard that the trial

court should have used, and we examine the evidence to determine whether as a matter of

law no genuine issues exist for trial." Morris v. Dobbins Nursing Home, 12th Dist. Clermont

No. CA2010-12-102, 2011-Ohio-3014, ¶ 14. Summary judgment is proper if there are no

genuine issues of material fact to be litigated, the moving party is entitled to judgment as a

matter of law, and reasonable minds can come to only one conclusion, and that conclusion is

adverse to the nonmoving party. Civ.R. 56(C); Williams v. McFarland Properties, LLC, 177

Ohio App.3d 490, 2008-Ohio-3594, ¶ 7 (12th Dist.).

       {¶ 16} The moving party bears the initial burden of demonstrating the absence of a

genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the moving

party meets its burden, the nonmoving party has a reciprocal burden to set forth specific facts

showing a genuine issue for trial. Id. In determining whether a genuine issue of material fact

exists, the evidence must be construed in favor of the nonmoving party. Vanderbilt v. Pier

27, L.L.C., 12th Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 8.

                                      Legal Malpractice

       {¶ 17} Lloyd argues that the trial court erred in finding that his legal malpractice claim

was barred by the statute of limitations. Specifically, Lloyd contends the statute of limitations

did not begin to run until either July 2016, when he was provided the final invoice from Ernst,

or February 2018, when he discovered the murder victim's criminal record.

       {¶ 18} Pursuant to R.C. 2305.11(A), an action for legal malpractice must be

commenced within one year after the cause of action accrued. "[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 nonact 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
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transaction or undertaking terminates, whichever occurs later." Zimmie v. Calfee, Halter &

Griswold, 43 Ohio St.3d 54 (1989), syllabus.

       {¶ 19} The record reflects that the attorney-client relationship relating to Lloyd's

criminal defense ended in April 2007, over nine years before Lloyd filed his complaint. At

that time, Ernst filed a Notice of Appeal on Lloyd's behalf and encouraged him to seek

separate counsel for any appeal, including any appeal related to a claim of ineffective

assistance of counsel. April 2007 was also when Ernst provided an itemized invoice to Lloyd

and his family. Furthermore, Ernst's affidavit confirmed that the invoice was accurate and

that it was sent. In his affidavit, Ernst further averred that all issues relating to Lloyd's

defense were fully explored, developed and presented. This included defense theories

relating to the murder victim's prior criminal history and propensity for violence. Lloyd failed

to present any credible evidence challenging the truthfulness or accuracy of the affidavit in

response.

       {¶ 20} In light of the above, it is apparent that any malpractice claim stemming from

Lloyd's criminal defense accrued in April 2007. At that time, Lloyd possessed sufficient

information to discover the alleged injuries related to Ernst's acts or nonacts and was on

notice that he needed to pursue his potential remedies against Ernst. As such, Lloyd's 2016

claim for malpractice is barred by the applicable statute of limitations. Because Lloyd's legal

malpractice claim is barred by the statute of limitations, the trial court did not err in granting

summary judgment in Ernst's favor. Accordingly, this court overrules Lloyd's third assignment

of error.

                         Breach of Contract and Unjust Enrichment

       {¶ 21} Although Lloyd addresses his breach of contract and unjust enrichment claims

separately, for the purposes of this appeal we will address them together. Lloyd first argues

that the trial court erred in disposing of his breach of contract claim where a contract existed
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between the parties and Ernst failed to fulfill his obligations pursuant to that contract. He

further contends the trial court erred in dismissing his unjust enrichment claim because Ernst

retained a benefit from their agreement, despite the incompetence demonstrated throughout

Lloyd's criminal defense and in the firm's billing invoice. However, we find that because

these claims are duplicative of Lloyd's malpractice claim, Ernst is entitled to summary

judgment.

       {¶ 22} It is well-settled that a client's action against his attorney for damages resulting

from the manner in which the attorney represented the client constitutes an action for

malpractice within the meaning of R.C. 2305.11(A). Grenoble v. Rion, Rion, Rion, L.P.A.,

Inc., 12th Dist. Preble No. CA2014-07-006, 2015-Ohio-971, ¶ 23. As such, complaints

sounding in malpractice subsume other, duplicative claims within the malpractice claim. Id.

at ¶ 24; see also Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th Dist. Cuyahoga No.

98861, 2014-Ohio-25, ¶ 35. "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 (1988).

       {¶ 23} "A party cannot transform one cause of action into another through clever

pleading or an alternate theory of law in order to avail [himself] of a more satisfactory statute

of limitations." Wilkerson v. O'Shea, 12th Dist. Butler No. CA2009-03-068, 2009-Ohio-6550,

¶ 12. Malpractice by any other name or label still constitutes malpractice – it makes no

difference whether the professional misconduct is predicated upon tort or contract. Id. at ¶

31, citing Muir v. Hadler Real Estate Mgmt. Co., 4 Ohio App. 3d 89, 90 (10th Dist.1982).

       {¶ 24} Lloyd's breach of contract and unjust enrichment claims are premised upon

Ernst's alleged acts or omissions committed in the representation of Lloyd. Therefore, his

causes of action are solely for legal malpractice regardless of how they are labeled. Because
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any legal malpractice claim is barred by the statute of limitations, reasonable minds could

only conclude that Ernst is entitled to judgment as a matter of law on Lloyd's breach of

contract and unjust enrichment claims as well. As such, Lloyd's first and fourth assignments

of error are overruled.

                                            Fraud

       {¶ 25} In his remaining assignment of error, Lloyd argues that the trial court erred in

dismissing his claim for fraud. However, as with his breach of contract and unjust enrichment

claims, Lloyd's claim for fraud clearly sounds in legal malpractice. This court has recognized

that legal malpractice includes billing errors and overcharging a client for legal services.

Wilkerson at ¶ 13. Moreover, in situations where the substance of a fraud claim involves

legal malpractice, a plaintiff is required to allege that the defendants committed the actions

for their own personal gain. DiPaolo v. DeVictor, 51 Ohio App.3d 166, 173 (10th Dist.1988);

see also Dottore at ¶¶ 44-45. Without such an allegation, a fraud claim cannot stand as a

separate claim from the legal malpractice claim. Id.

       {¶ 26} The substance of Lloyd's claim relies upon alleged errors he identified in the

final invoice he was provided. Because the basis of Lloyd's fraud claim rests in the manner

in which he was represented, Lloyd is required to allege that Ernst committed the errors for

personal gain. After a review of the record, there is no such allegation here, nor was any

evidence presented with Lloyd's summary judgment motion to support such an allegation.

As a result, Ernst's claim for fraud is simply a reconfigured claim for malpractice and is time

barred. Therefore, we find that Lloyd's fraud claim is without merit, and overrule his second

assignment of error.

       {¶ 27} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.


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