[Cite as Vocaire v. Stafford & Stafford Co. L.P.A., 2011-Ohio-4957.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96302




                                  KELLY M. VOCAIRE
                                                            PLAINTIFF-APPELLANT

                                                      vs.

            STAFFORD & STAFFORD CO., LPA, ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-582893

        BEFORE: Cooney, J., Jones, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: September 29, 2011
                                            2

ATTORNEY FOR APPELLANT

Deborah L. Smith
151 East Market Street
P.O. Box 4270
Warren, Ohio 44482


ATTORNEYS FOR APPELLEES

John P. O’Neil
Gregory G. Guice
Reminger Co., L.P.A.
101 Prospect Avenue West
1400 Midland Building
Cleveland, Ohio 44115




COLLEEN CONWAY COONEY, J.:

          {¶ 1} Plaintiff-appellant, Kelly Vocaire (“Vocaire”), appeals the trial court’s

denial of her motion to amend the complaint and the dismissal of her complaint against

defendants-appellees, Stafford & Stafford Co. L.P.A., Vincent A. Stafford, and Kenneth

J. Lewis (collectively referred to as “Stafford”). We find no merit to the appeal and

affirm.

          {¶ 2} In this legal malpractice case, Vocaire alleges that Stafford negligently

failed to notify her of a critical hearing date upon withdrawing as her counsel in

proceedings pertaining to the custody and support of her child. The facts, as set forth in

the complaint, are as follows:
                                            3

       {¶ 3} Vocaire entered into an attorney-client relationship with Stafford in

December 1997. She retained Stafford to, among other things, correct a child support

order entered by the Stark County domestic relations court on February 11, 1998. On

February 18, 1998, Stafford filed a motion to vacate the February 11, 1998 child support

order, claiming it was entered in error.

       {¶ 4} Sometime in 2000, Stafford filed a motion for leave to withdraw as

Vocaire’s counsel.    On November 6, 2000, the court scheduled a final hearing for

January 10, 2001 and advised counsel that it would hear all pending motions, including

Vocaire’s motion to vacate the February 11, 1998 child support order. The court also

ordered Stafford to notify Vocaire of the final hearing date before it would approve the

motion to withdraw. The domestic relations court granted Stafford’s motion to withdraw

as counsel on November 22, 2000. Vocaire alleges that because Stafford never advised

her of the final hearing date, she did not appear for the hearing and the court substantially

increased her child support obligation.

       {¶ 5} The complaint further alleges that in October 2001, “Vocaire began

receiving notices from the Stark County Child Support Enforcement Agency showing her

monthly child support obligation to be $598.00 per month and further showing substantial

arrearages.”   When Vocaire brought the notices to Stafford’s attention, she claimed

Stafford falsely advised her that they would “‘take care’ of correcting the child support
                                              4

records and seek to amend the arrearages.” However, Stafford never filed a motion to

decrease the child support obligation and Vocaire continued to be in arrears.

       {¶ 6} Vocaire alleges that she learned “[s]ometime after October 2004” that the

domestic relations court held the final hearing on January 10, 2001 without notice to her.

According to the complaint, the parties’ attorney-client relationship “finally” terminated

on September 15, 2004, when Stafford again withdrew from its representation of Vocaire.

       {¶ 7} Vocaire filed the complaint in this case on January 27, 2006. Stafford filed

a timely motion to dismiss, arguing that: (1) Vocaire lacked standing to bring her claims

because she was not the real party in interest; and (2) Vocaire’s claims were barred by the

statute of limitations. Stafford attached unverified copies of a docket from the U.S.

Bankruptcy Court, Western District of Pennsylvania, to the motion to dismiss to

demonstrate that Vocaire had previously filed a Chapter 7 bankruptcy petition. In its

motion to dismiss, Stafford argued the trustee in bankruptcy, who was the real party in

interest, was not a party to the case and Vocaire lacked standing to file suit on her own.1

In response, Vocaire filed a motion for leave to amend the complaint, a brief in

opposition to the motion to dismiss, and a notice of bankruptcy proceedings and motion to

stay, which stayed the case indefinitely.


          All of a debtor’s property, including civil causes of action, is the property of the
       1


bankruptcy estate. In re Cottrell (C.A. 6, 1989), 876 F.2d 540, 542; 11 U.S.C.A. § 541; Civ.R. 17.
                                           5

      {¶ 8} The trial court reactivated the case in April 2010, after Vocaire and the

bankruptcy trustee obtained an order from the bankruptcy court terminating the stay and

granting permission to pursue the claim. However, in December 2010, the trial court

denied Vocaire’s motion to join the bankruptcy trustee and granted Stafford’s motion to

dismiss. This appeal followed.

      {¶ 9} Although Vocaire raises two assignments of error, we find the second

assigned error dispositive. In the second assignment of error, Vocaire argues the trial

court erred in granting Stafford’s motion to dismiss. She contends Vocaire should have

been permitted to join the bankruptcy trustee pursuant to Civ.R. 17(A) and that her claims

were not barred by the statute of limitations. We disagree.

      {¶ 10} We review the trial court’s decision granting a motion to dismiss de novo.

 Hughes v. Miller, Cuyahoga App. No. 91482, 2009-Ohio-963. Civ.R. 12(B)(6) permits

a party to file a motion to dismiss a complaint for failure to state a claim for relief.

Civ.R. 12(B)(6) motions test the sufficiency of the complaint. State ex rel. Horwitz v.

Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 325,

603 N.E.2d 1005. In order for a court to dismiss a complaint under Civ.R. 12(B)(6), it

must appear beyond doubt that the moving party can prove no set of facts in support of
                                                 6

his claim that would entitle him to relief. Taylor v. London, 88 Ohio St.3d 137, 139,

2000-Ohio-278, 723 N.E.2d 1089, citing O’Brien v. Univ. Community Tenants Union,

Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus.

       {¶ 11} When reviewing a motion to dismiss for failure to state a claim, a court

must accept the facts stated in the complaint as true and must construe all reasonable

inferences in favor of the nonmoving party.            Mitchell v. Lawson Milk Co. (1988), 40

Ohio St.3d 190, 192, 532 N.E.2d 753. The court may not consider “matters outside the

pleadings,” unless the court converts the motion to dismiss into a motion for summary

judgment. “The matters outside the pleadings are specifically enumerated in Rule 56,”

and all parties are “given reasonable opportunity to present all material made pertinent to

such a motion by Rule 56.”            Civ.R. 12(B); S. Christian Leadership Conference v.

Combined Health Dist., 191 Ohio App.3d 405, 2010-Ohio-6550, 946 N.E.2d 282, ¶30.

Therefore, in our de novo review, we do not consider the unverified docket from the

bankruptcy court concerning Vocaire’s bankruptcy.2


            We are mindful that a trial court may take judicial notice of “appropriate matters” in
       2


considering a [Civ.R. 12(B)(6)] motion to dismiss for failure to state a claim. State ex rel. Neff v.
Corrigan, 75 Ohio St.3d 12, 16, 1996-Ohio-231, 661 N.E.2d 170. However, a trial court cannot take
judicial notice of court proceedings in another case, and may not take judicial notice of prior
proceedings in the court even if the same parties and subject matter are involved; a court may only
take judicial notice of the proceedings in the immediate case. Charles v. Conrad, Franklin App. No.
05AP-410, 2005-Ohio-6106, ¶26. The rationale for the rule is that the appellate court cannot review
the propriety of the trial court’s reliance on such prior proceedings because that record is not before
the appellate court. Id.; Northpoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342,
2008-Ohio-5996, 901 N.E.2d 869, ¶15-17.
                                            7

       {¶ 12} The facts set forth in the complaint demonstrate that Vocaire’s legal

malpractice claim is barred by the statute of limitations. 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.

       {¶ 13} 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
                                            8

O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 87, 90, 447 N.E.2d 727. The

statute of limitations does not begin to run until both prongs have been satisfied.

       {¶ 14} Vocaire claims Stafford was negligent in failing to notify her of the child

support hearing held on January 10, 2001. However, Vocaire admits she began receiving

notices from the Stark County Child Support Enforcement Agency showing that her

monthly obligation had increased to $598 per month in October 2001. She further

acknowledges that she complained about the increase to Stafford repeatedly “[f]rom

August, 2002 through September 15, 2004,” but claims they promised to “‘take care’ of

correcting the child support records and seek to amend the arrearages.”

       {¶ 15} The test for identifying a cognizable event is an objective one. Woodrow v.

Heintschel, Lucas App. No. L-10-1206, 2011-Ohio-1840, ¶40. How would a reasonable

person, dissatisfied with Stafford’s efforts to correct this problem, have reacted? “The

test necessarily takes into account all the relevant facts and circumstances.” Id. A

reasonable person would not have waited almost three years to investigate why her child

support payments increased by over $200 per month especially since the increased

monthly obligation applied retroactively for a total “in excess of $45,000.”

       {¶ 16} Vocaire obviously suspected there was a problem because she admits she

repeatedly asked her attorneys to correct it. By the time the attorney-client relationship

terminated on September 15, 2004, Vocaire should have known the increased child

support obligation was related to her attorney’s act or nonact, especially since they failed
                                              9

to “take care” of it as promised. Thus, the statute of limitations started running on

September 15, 2004, at the very latest. Yet Vocaire did not file the complaint until

January 27, 2006, well over one year later.

       {¶ 17} Therefore, the trial court properly dismissed the complaint as barred by the

statute of limitations, and the second assignment of error is overruled. Therefore, the

remaining issues regarding Vocaire’s standing in light of her seeking to join the

bankruptcy trustee and the denial of her motion to amend the complaint are moot.

       Judgment affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

LARRY A. JONES, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
