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C "-''IN t IlE'Cb'&T OF COMMON PLEASCIVIL DIVISION

SIIMMIT COUNTY, OffiO

LEVERT GRIFFINP.O. Box 22142Akron, OH 44302

Plaintiff ) Case No. CV 05-11-6574

JUDGE JUDY HUNTER

LAWRENCE R. SMITHAttorney at Law ) MOTION FOR SIIMMARYOne Cascade Plaza, suite 710 ) JIIDGMENTAkron, OII 44308

Defendant ))

Now comes the Defendant, Attorney Lawrence R. Smith, by and through

undersigned counsel, as Defending Party pursaant to section (b) of Rule 56 of the Ohio

Rules of Civil Procedure, and hereby sets forth his Motion for Summary Judgment as

against Plaintiff, Levert Grif6n, pursuant to section (c) of Rule 56 of the Ohio Rules of

Civil Proc®dure. The basis for this motion is as follows:

l

STANDARD FOR REVIEW

Pursuafft to Ohio Civil Rule 56, "summary judgment shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,

show that there is no genuine issue as to any material faet and that the moving party is

entitled to judgment as a ntatter of law." OH. R. Civ. P. 56(c). The principal purpose of

Civil Rule 56 is to enable movement beyond allegations in pleadings and to analyze the

evidence so as to ascertain whether an actual need for a trial exists. Orner Primary

Aluminum Corp. v. Employers Ins. of Wausau et al, (2000) 725 N.E.2d 646, 653. The

purpose of summary judgment is not to try issues of fact, but is, rather, to determine

whether triable issues of fact exist. Lakota Local School Dist. Board of Education v.

Brickner, (1996) 671 N.E.2d 578, 581. Summary judgment is appropriate when the

plaintiff fails to produce evidence supporting the essentials of its claim. Welco

Irrdustries, Inc. v. Applied Companies, (1993) 617 N.E.2d 1129, 1132.

In this case, Plaintiffls complaint has provided no genuine issue as to any material

fact and the complaint is well outside the statate of limitations. Therefore, PlaintifP s

claim cannot go forward and Defendant is entitled to sumraary judgmentas a matter of

law.

STATUTE OF I.IMITATIONS

Pursuant to R.C. 2505.11, Ohio has a one year statute of limitations for legal

malpractice claims. Plaintiff Griffin filed his suit alleging malpractice on 12/19/2002,

three (3) years ago. After filing his suit, he then dismissed the suit against Attorney

Smith on 09/08/2003 and re-filed this action 11/7/2005, a fiill two (2) years later and a

fall year after the statute of liniitations had run its course. Because this suit was filed

outside of the statute of limitations, there is no genuine issue of material fact within

which relief can be granted. Therefore, Defendant Lawrence Smith is entitled to

Summary Judgment as a matter of law.

^Resp lysubmitted, / ^

Lawre . Smith, 0029026, Pro seOnbascade Plaza, Suite 710Akron, Ohio 44308330-376-9121 FAX: 330-376-9106

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was hand-delivered and/or

niailed by First Class United States Mail this day March 14, 2006, to Plaintiff:

Levert K. GriffinP.O. Box 22142Akron, OH 44302

Lawr e R. Smith, #0029026One Cascade Plaza, Suite 710Akron, Ohio 44308330-376-9121 FAX:330-376-9106

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NOTICE OFEXPIRATION OF SENTENCE

12/15/2004EfFechve Date

TO: Crriffin, Levert Knolly OFFENDER NUMBER: A433089

Having served the definite sentence imposed by the Court or the maximum sentencefor the offense(s) for which you were convicted, the rights forfeited by yourconviction pursuant to Section 2961.01 of the Ohio Revised Code are restored. Theseinclude. your rigbt to vote, to serve on juries, and, unless precluded by Sections2921.02, 2921.41 and 2921.43 or other Sections of the Revised Code, to hold anyoffice of honor, tmst or profit.

The expiration of your sentence does not relieve you of any disability prohibiting youfrom.possessing a firearm under Section 2923.13 of the Revised Code.

We offer our best wishes for your suacess in the future.

Date: 12/15/2004

I have this date received fromMarion Cornec6unai 7nsctu6on

my Certificate of Expiration of Sentence on Docket Number(s):

SKMmiTZgaWga.Coimty CR01071779

srden or C6ief of t6e APA

[/ ^St Signed:

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71i(8 DAY. to-vrlt 17m 190 dspr c[/lugast, A.D., 20(a, raw conaes tlce Pmna.nUmg

Attot'aw «ibehalf of the &ate of Ohio, the Ualeadant'e senbmcfag heseiag was held pacsaeat to

O.B.C. 2939.19. De&are oasnael, IAYVRENOE 8lUT11, w'as ptpeot es was tha Defendantwho

aaa afforded dl:lgb.te pareuant Oo C:da. R. 32. The Cawt has aansidaned the record, oral

atatetnants, as weII as the prtiwWae and purpoaea of am ►tcncug under O.R.C. 2929.11, aw.d the

sedmmners ahd reddivLwa factu[e nnda O.1LC. 2929.12

The Cmut t'iada that the Dafetdant ke:atoae an Ju(y 16, 2UOa, pied GU[L7Y to

TRAFF1CiUN0 IN MARWUANA, an ooabaiaad in Connta 3 and 4 of the lnaic++z-+• and GUILTY toRaAYS►r. USE OF FOOD STAMPS, an cos►tabied in Count 5 af tlme tadtet4taat, srLich c6qax

ucalemt atEw July 1, 1996, which plea was aocepted by tlw Caut.

Thaettpon, the Couet iaquiKd of the satd Aeteodant i[Le 6ad amything to mWwhy

bidgment ahaild not be pannuaced a5siart ylm; md having aothip; but what he Hul alreat(y

aaid ahawfi+g no ®ood aad eufficiept canae wb,y jud5mant dmuld aot be pronounoe&

MhjA ZALFsw7AA4 AllG 21 PM 4117

OtJMtN6 CCJINMyp, CR 01071T19

IN THE cOtiRroF COMMON PLEASCOUNTY OF,Sl1MN11T

,LtAY

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4Yhe Court t1irdh" Bnde t6e fOIlawinFporsuamt to O.R.C. 29'39.13(M:

priwa ia Caneiatmt wNh the pwposa a[ O.RC. 3919.11.

1T IS TFIMUWORE ORDBRLD AND AAIUDOED HY TH64 COURT the Ddaadant,

LEVI6RC RItOLLY C3RIFFAt, be t6e OA[O Dn+ A'l'M AND

CORR6GTION iar a definft tam of (7) marc4s an soi oltwo Gp) , wFuch is npt a

uQan^y 6ez.a pureaaat m O.R.C. as 292SA tor gusisdtamt orffia

crime dTRAPF1Cl^tid at AeA&uunNA, o3(Aj(1^, sela^Im ot tIx

BBh (S^ dep+ea, and 6or a ddadts Wm 8avan M montiu is a maadatory tarm

pueauant ta O R O. 2929.13(P(, 4919.1 . or 29AB.01, &r t of the crime of

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deoee, and tbat the amd Defendaat p^y the for rvhloh mm^altiaa is

1Le Court flutbc Cuids the DeSmdmt I. not amemhb to odnmimity and fhet

(i) ddeadaad has a lengthy crimonel hiatay;

p1 prior prleon oe^m earved;

(3) anyelh3ag>es...ou(a aemesa the aetbusnas osthe affaase;

(4) not to aaaiteeoe the Defeodennt to a pcriod of txprceraHoa moald xuatfraaa fiitane aiaxa by the DcLeadmt; AND

I

^A0^dOYfIW

lit"COMMON PLEA$ COtlAT^r

.IOUANALENTRY

oaqmOFou

THE BTATE OF OHIO °

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KaLaKLSL' AuGuSr j. 2-,=,03..

IN-THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT

STATE OF OHIO, ) CASE NO. 01-07-1179

Plaintiff, )

vs. ) TRANSCRIPT OF PROCEEDINGS(Sentencing)

LEVERT K. GRIFFIN,

Defendant.

APPEARANCES;

SCOTT PIEPHO, Assistant County Prosecutor,On behalf of the State of Ohio

LAWRENCE SMITH, Attorney at Law,On behalf of the Defendant.

BE IT REMEMBERED, that upon the hearing of

the above-entitled matter in the Court of Common

Pleas, Summit County, Ohio, before the Honorable

Patricia Cosgrove, Judge, on Aiigust 19, 2002 the

following proceedings were had, being a Transcript

of Proceedings:

Thomas G. LazarOfficial Court ReporterSummit County CourthouseAkron, Ohio 44308 (I

. ana ntiiuirr: auaLC Ul VI110 versus

3 Levert Griffin, Case No. 2001-07-1179.

4 THE COURT: Could I see counsel at side

5 bar?

6 (Side bar conference.)

7 THE COURT: As the parties know, this

8 matter is scheduled for sentencing, the

9 Defendant-having previously entered a guilty

10 plea to two felonies of the fifth degree,

11 trafficking in marijuana and illegal use of

12 food stamps.

13 Prosecutor Piepho.

14 MR. PIEPHO: Thank you, Your Honor.

15 As you know, this case was set to go to

16 trial and on the day of trial we pled it. I

17 would just call the Court's attention to Mr.

18 Griffin's extensive record. You have it in

19 front of you in the presentence.

20 The State's position is that despite

21 what we are dealing with today are two F-5's,

22 his record justifies imposing a sentence of

23 incarceration.

24 In additi.on, or independent of that,

25 it's my understanding that we are going to

OFFICIAL COURT REPORTER - C:A.T.

1 have to set.a trial date on the outstanding

2 charge of F-3 possession.

3 THE COURT: Attorney Smith.

4 MR. SMITH: Your Honor, as to the last

5 part first, that is correct. We want to set

6 a trial date.

7 But as to the sentencing in this

8 matter, I think one of the things that the

9 record indicates is that Levert has spent a

10 substantial amount of time incarcerated under

11 old law in which he did a considerable amount

12 of time for non-violent offenses.

13 Secondly, he did a whole year in the

14 Summit County jail in-between the first

15 offense he pled to and the second F-5 he pled

16 to. They knew he was in Summit County jail.

17 Nobody arrested him while the charge was

18 pending in the Summit County jail. He did

19 that whole year on a contempt out of Judge

20 McCarty's court. This case would have been

21 resolved for two years if, in fact, they

22 would have at that time brought the charge,

23 everything could have run concurrent.

24 I bring that to your attention because

25 Mr. Griffin has done a considerable amount of

OFFICIAL COURT REPORTER - C.A.T.

2 cnarge or F-3 possession.

3 THE COURT: Attorney Smith.

4 MR. SMITH; YourHonor, as to the last

5 part first, that is correct. We want to,set

6 a trial date.

7 But as to the sentencing in this

8 matter, I think one of the things that the

9 record indicates is that Levert has spent a

10 substantial amount of time incarcerated under

11 old law in which he did a considerable amount

12 of time for non-violent offenses.

13 Secondly; he did a whole year in the

14 Summit County jail in-between the first

15 offense he pled to and the second F-5 he pled

16 to. They knew he was in Summit County jail.

17 Nobody arrested him while the charge was

18 pending in the Summit County jail. He did

19 that whole year on a contempt out of Judge

20 McCarty's court. This case would have been

21 resolved, for two years if, in fact, they

22 would have at that time brought the charge,

23 everything could have run concurrent.

24 I bring that to your attention because

^ 25 Mr. griffin has done a considerable amount of

OFFICIAL COURT REPORTER - C.A.T.

1 jail time for that charge, over a year. I'm

2 hoping that the Court would take that into

3 consideration and grant him judicial release

4 on this case only, set a trial date on the

5 other case.

6 At the end of that trial the Court may

7 do whatever it wants. I don't•think.the

8 Court should presuppose necessarily what the

9 finding is going to be on that case.

10 These are two F-5 felonies, small

11 amount of marijuana. The other one is

12 trading food stamps for marijuana,

13 intertwined cases. I don't believe they rise

14 to the amount that needs to have

15 incarceration in this case.

16 Thank yQu.

17 THE COURT: Mr. Griffin, what wouTd.you

18 like to say to the Court prior to the

19 imposition of sentence?

20

21

22

23

24

25

THE DEFENDANT: Your Honor, let's bow

our heads in prayer for one moment.

God is good. Now is the time to raise

above, to lift the body and mind off

segregation and of those laws and raise above

racial injustice, and that I ask that you

^

1 look up and above the law and cause in this

2 case.

3 I am Levert K. Griffin. It is so

4 prayed. Amen.

5 THE COURT: Anything else, Mr. Griffin

6 that you want to say besides yqur prayer

7 - there?

8 THE DEFENDANT: No, my dear.

9 . THE COURT: I have reviewed the

10 presentence investigation in this case. I

11 have also reviewed notes from the interview

12. with the Probation Department.

13 Included in the presentence

14 investigation, as alluded to by your

15 attorney, is your substantial criminal record

.16 starting as far back as 1965. It is now the

17 year 2002. Many of those you got probation

18 for, and also there are many times or several

19 times in which you went to prison.

20 Starting in 1965, you got five years

21 probation for grand larceny. Probation

22 violation in '68. '69 a resisting arrest,

23 malicious destruction of property, assault

24 with a dangerous weapon. You pled to some of

25 those and got a fine and some days

1 '7

3

4

'75, robbery, grand larceny. That's

the time you went to prison for the first

5 time, 9 to 45 years. Paroled in 1978 or

6 '79. Theft previous, '80. You got out on

7 parole, 1983. '82, no disposition for that.

8 Unauthorized use of motor vehicle in

9 '82. Grand theft, went to prison 4 to 10,

10 ..released in '94. Domestic violence, 182 days

11 in Summit County jail in the year 2000.

12 Now we come to the instant offense.

13 You spoke to the Probation Department and you

14 indicated or admitted that you sold

15 marijuana, but you didn't think you were. a

16 big dealer. It says Mr. Griffin did not

17 appear to think his actions or arrests were

i8 of any significance.

19 Anything you want to say about that?

20 Selling marijuana is.against the law. You

21 think it's not significant to break the law?

22 MR. GRIFFIN: Your Honor, I know

23 selling marijuana is against the law. I also

24 know that marijuana smoking is against the

25 law. I thought I had a friend and Nabil

t;l

OFFICIAL COURT REPORTER - C.A.T.

1 Talafha who were smoking. I had no idea he

2 was selling marijuana. I thought I was

3 smoking marijuana with a,friend.

4 THE COURT: All right. After reviewing

5 the presentence investigation and the other

6 information, the Court finds based upon your

7 lengthy criminal record that to not sentence

8 you to prison would demean the seriousness of

9 the offense and not adequately protect

10 society from future criminal conduct.

11 I'm also taking into consideration some

12 of the things your attorney has indicated

13 regarding jail time in the past, although you

14 don't really seem to have learned a lesson

15 from that incarceration.

16 With reference to the trafficking in

17 marijuana, I will sentence you to prison for

18 a sentence of seven months. The illegal us,e

19 of food stamps, likewise, I'm also going to

20 sentence you to seven months. i'm going to

21 order that those sentences run concurrent and

22 not consecutively. Further, I will give you

23 credit for two days previously spent in

24 custody towards that sentence.

25 Now, I want to proceed to set a trial

OFFICIAL COURT REPORTER - C.A.T.

>..-= a-v a.a1GL lllaLLtli ..or zr1a1 tor

3 Thursday, December 19th at nine o'clock.

4 The Court is going to order that the

5 Defendant be returned no later than December

6 5th so that he may consult with counsel

7 regarding the prosecution of this case.

8 MR.-SMITH: Thank you, Your Honor.

9 (End of proceedings. )

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

OFFICIAL COURT REPORTER - C.A.T.

1 C E R T I F I C A T E

2

3

4 I, Thomas G. Lazar, Official Court Reporter,

5 Court of Common Pleas, Summit County, Ohio,

6 do hereby certify that I reported in

7 stenotypy the proceedings had and the

8 testimony taken in the foregoing-entitled

9 . matter, being a Transcript of Proceedings,

10 and do further certify that the foregoing

11 Transcript of Proceedings, consisting of 8

12 pages, is a true and accurate transcript of

13 said matter.

14

15

16Thomas G. Lazar

17 Offinial Court Reporter

18.

19 Dated: Akron, OhioAugust 18, 2003

20

21

22

23

24

25

OFFICIAL COURT REPORTER - C.A.T.

IN I YIt LAL1unI vr vve.n..vo . .^ ,v

DlnNla 7RI. FSK( COUNTY OF SUMMIT

2kil JAN 13 Pfi P. 26 SEPTEMBER Term 20 02

^^t-MVS.

T KNOLLY GRIFFINRLEVE

No. CR.01071779

JOURNAL ENTRY

THIS DAY, to-wit: The 17'h day of December, A.D., 2002, upon due consideration of this

Court, IT IS HEREBY ORDERED that the Defen¢ant's Motion to Reconsider Suppression Issue is

DENIED.

IT IS FURTHER ORDERED that the Motion to Suppress was Denied on January 14, 2002,

and further, said Defendant waived any irregularities in timeliness as to his right to a speedy trial

and time was not running since the Defendant was incarcerated. Also, time was stayed since the

Defendant failed the stipulated polygraph test given on August 12, 2002.

Now comes the Prosecuting Attorney on behalf of the State of Ohio, the Defendant,

LEVERT ICNOLLY GRIFFIN, being in Court with counsel, LAWRENCE SMITH, and said Defendant

was fully advised of his Constitational rights and is rights as required under Rule 11 of the Ohio

Rules of Crixuinal Procedure.

Thereupon, said Defendant retracts his plea of Not Guilty heretofore entered, and for plea

to said Indictment, says he is GUILTY of POSSESSION OF MARIJUANA, as contained in Count 1

of the Indictment, which offense occurred after July 1, 1996, which plea, voluntarily made and

with a full understanding of the consequences, is accepted by the Court.

Said Defendant was afforded all rights pursuant to Crim. R. 11. The Court has considered

the record, statements of counsel, as well as the principles and purposes of sentencing under

O.R.C. 2929.11, and the seriousness and reaidivism factors under O.RC. 2929.12.

The Court further finds the Defendant is not amenable to community control and that

prison is consistent with the purposes of O.R.C. 2929.11;

Thereupon, the Court inquired of the said Defendant if he had anything to say why

judgment should not be pronounced against him; and having nothing but what he had already

said and showing no good and eufficient cause why judgment should not be pronounced:

IT IS THEREFORE ORDERED AND ADJUDGED BY THIS COURT that the Defendant,

LEVERT KNOLLY GRIFFIN, be committed to the OHIO DEPARTMENT OF REHABILITATION AND

CORRECTION for a definite term of Two (2) Years, which is not a mandatory term pursuant to

O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of POSSESSION OF

MARIJUANA, Ohio Revised Code Section 2925.11(A), a felony of the third (3b) degree, and that

the said Defendant pay the costs of this prosecution for which execution is hereby awarded; said

dz

A-1

^ z :1m r 0

0In rn0x0

monies to be paid to the Summit County Clark of Courts, County Safety Buddiug, 53 University

Avenue, Aknon, Ohio 44308.

IT IS FUR.THER OR`DERED, pursuant to the above sentence that the Defendant be

conveyed to the Lorain Correctional Institution at Grafton, Ohio, to commence the prison intake

procedure.

IT is b`URTHER ORDERED that the sentences imposed in this case be served

CONCURRENTLY and not consecutively with each other.

After release from prison, the Defendant is ordered subject to postrelease control to the

ex6cnt the parole board tnay detern3ine as provided by law. Dcfendant is ORDERED to paY all

prosecution costs, inelnding any fees permitted pnrsuant to O.RC. 2929.18[A)(4).

1T IS FYIRT1iER ORDERED that the Defendant was satisfied wit& legal representation

given in this case.

rr IS FUKPf= ORDERED that credit for time served is to be calculated by the Summit

Countp Adult Probation Department and wM be fortiicnming in a subsequent journal entry.

rr IS FiIR7T3ER ORDERED that a warrant of the Court be issued by the Clerk of this Court

directed to the Sheriff of Summit County, Ohio, to return the said Defendant, LEVERT KNOLLY

GTZIFFtN, Inmate Nnmber 433-089, to the MARION CORRECTIONAL INST1TiPllON in Marion,

Ohio, to continue serving said sentence in this case.

APPROVED:December 19, 2002tms

c^ Prosecutor Oregory Peanock/Jap ColeCriminat AssignmentAttorney Lawrence SmithAdult Probation Department - JAII. CREDITBookingCourt Convep .Marion Correctional Inatitution - CERFiFIE©

PATRICIA A. COSGROVE, JudgeComrt of Couimon PleasS`nmmit County, Ohio

xi

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m

11v THE COURT OF COMMON PLEASCOUNTY OF SUMMIT

STATE OF OHIO,

Plaintiff,

vs.

LEVERT KDiOLLY GRIFFIN,

Defendant.

CASE NO. 2001-07-1779))) TRANSCRIPTOF PROCEEDINGS

)} (PLEA and SENTENCE)

)volume 1 of 1

APPEARANCES:

JAY COLE, Assistant Prosecuting Attorney

On Behalf of the State of Ohio

LAWRENCE R. SMITH, Attorney at Law

Or_ Behalf of Defendant

BE IT REMEMBERED that upon the hearing

of the above-entitled matter in the Court of Common

Pleas, Summit County, Ohio, before the Honorable

PATRICIA A. COSGROVE, Judge Presiding,

commencing on December 16, 2002, the following

proceedings were had, being a Transcript of

Proceedings:

TERESA A. ORLOVSKY, RMROfficial Court ReportersSummit County Courthouse209 South High StreetAkron, OH 44308

OFFICIAL COURT REPORTER - C.A.T.

1 December 16, 2002

2 P R O C E E D I N G S

4 MR. COLE: Levert Knolly Griffin, Case

5 Number 2001-07-1779.

6 Your Honor, Mr. Griffin is present with

7 h,is attorney, Mr. Smith, who is set for a

8 status today. We are set for trial on the

9 19th of December.

10 MR. SMITH: Your Honor, if it please the

11 Court, I would -- as I addressed the Court in

12 chambers, I need.to address certain things in

13 open court for Mr. Griffin.

14 He has filed a motion. He's requested

15 me to file a motion for reconsideration of the

16 original motion to suppress in which you

17 overruled our motion to suppress and he's

18 asked me to -- you to reconsider that in light

19 of Rule 16 Discovery.

20 And so it is a motion for

21 reconsideration.

22 Also, I am supposed to tell the

23 prosecutor that -- in open court that the --

24 Mr. Novelis -- is that how his name is -- the

25 snitch, what's his --

OFFICIAL COURT REPORTER - C.A.T.

2 MR. SMITH: Nabil Talafha in open court,

3 my client wants to have that recognized.

4 Secondly, we have a motion to dismiss

5 based on 2943.05 and DR-7-103, basically for

6 three different reasons.

7 One is,for the violation of the 90-day

8 rule of.incarceration.

9 Two would be that he was promised that

10 this case would be dismissed if he, in fact,

11 passed-the polygraph. He says he passed the

12 polygraph. This case has not been dismissed,

13 there#ore, it is in violation of double

14 jeopardy.

15 Also, a Brady violation because they are

16 withholding that he passed the polygraph.

17 The third one, Your Honor, is the fAct

18 that I guess he filed another notice to the

19 Court for -- that they reneged on the plea

20 agreement again; is that correct?

21 THE DEFENDANT: Yes, sir.

22 MR. SMITH: All right.

23 THE COURT: All right. Prosecutor Cole,

24 could you address some of these issues,

25 specifically the motion to dismiss based upon

il%

OFFICIAL COURT REPORTER - C.A.T.

1 speedy trial and/or the polygraph results.

2 MR. COLE: Yes, Your Honor.

3

4

5

6

First, I would note for the record that

on January 14th, 2002, the defendant waived

speedy trial.

THE COURT: I am sorry, what was that

7 date again?

8 MR. COLE: January 14th, 2002.

9 As far as the specifics, though, Your

10 Honor, the defendant in an unusual way pled

11 guilty to several of the counts of the

12 indictment and requested a trial on the

13 remaining count of the indictment, the

14 possession of marijuana, felony of the third

15 degree. He pled guilty to two counts of

16 trafficking in marijuana and illegal

17 possession of food stamps, all felonies of the

18 fifth degree. He was sentenced on those to

19 seven months, each. concurrent to run, and he

20 still is currently serving time on that.

21 So the time on the remaining count is

22 not running because he's been incarcerated on

23 that count as well.

24 So there is two reasons at this time the

25 90-day time has stopped.

7' e-I

OFFICIAL COURT REPORTER - C.A.T.

2 new trial date on the possession which the

3 court set for December 19th, and that was back

4 on August 18th of 2002.

5 This case has been set €or trial once,

6 twice, three times -- three times. The 19th

7 will be the fourth time. All of those

B continuances are at the defendant''s request.

9 Looking at the record, I do not see any

10 cont'snuances that were at the State's

11 request- So the time -- I don't believe even

12 the 90-day time, if he took all that intb

13 account, has run because all the continuances

14 were at defense request.

15 THE COURT: In terms of the polygraph,

16 the Court's understanding, at least based on

17 conversations with defense counsel and the

18 prosecutor, that in reference to the polygraph

19 that the defendant had failed the polygraph,

20 and the opinion of the polygraph operator was

21 that the defendant was showing deception

22 during that polygraph?

23 MR. COLE: That's correct.

24 The State has the ROI written by

25 Sergeant Matheny for the polygraph that was

OFFICIAL COURT REPORTER - C.A.T.

1 taken on August 12th, 2002. It indicates that

2 to the two questions, "Prior to being

3 arrested, did.you know the five pounds of

4 marijuana you were charged with possessing in

5 this case was in the garage" and question

6 number two, "On July 18th, 2002, did you know

7 there was five pounds of marijuana in the

8 garage before the police told you about it?"

9 And in Sergeant Matheny's opinion, the

10 physiological changes were indicative of

11 deception that occurred on both of the

12 relevant questions. So the defendant failed

13 the polygraph.

14 This is the written result of that.

15 The State has not reneged on its offer

16 to dismiss the case if the defendant passed

17 that, and there is no discovery violations

18 because the reports have always been in the

19 file since the date that he took the test.

20 THE COURT: All right. In reference to

21 the motions, the defendant's motion for

22 reconsideration of the motion to suppress is

23 hereby denied.

24 MR. SMITH: Your Honor, he asked me just

25 to note our continuing objection.

31OFFICIAL COURT REPORTER - C.A.T.

2 note that.

3 Further, that opinion stands based on

4 the reasons I put on the record at the time,

5 and the defendant has not given any new

6 salient evidence that would change that.

7 In reference to the motion to dismiss,

8 the Court finds that we are well within the

9 time parameters as indicated by the State.

10 All the continuances of the case, including

11 continuances of the trial date, was at the

12 defense request.

13 Additionally, it was the defendant who

14 wanted to enter a guilty plea to several of

15 the charges and specifically requested a trial

16 date on the possession of marijuana charge.

17 The defendant is currently still serving

18 a seven month prison sentence at this time, so

19 he's being held not only on the new charges or

20 the other charge, but he's being held on the

21 or serving the seven month sentence as well at

22 this point in time.

23 In terms of the polygraph, the rendition

24 here today by the prosecutor regarding the

25 unfavorable results to the defendant are what

3-1^,OFFICIAL COURT REPORTER - C.A.T.

1 the Court previously understood the results to

2 be. There is no violation of double jeopardy

3 or any evidence whatsoever in terms of

4 reneging on a plea agreement.

5 Go ahead.

6 MR. SMITH: Your Honor, my client has

7 asked me to put on the record that he believes

8 that his plea to the other counts eliminated

9 or vitiated the waiver at that point in time

10 and, therefore, double jeopardy does apply and

11 the 90-day rule does apply.

12 THE COURT: We didn't limit his -- at

13 the time he didn't limit it to I am just going

14 to waive time on these three charges, so I

15 don't accept that.

16 MR. SMITH: Understand.

17 T,HE COURT: Where do we go from here?

18 We have a trial date set. What do you

19 want to do?

20 MR. COLE: Set for the 19th, Your Honor.

21 THE DEFENDANT: I want to give her

22 these.

23 MR. SMITH: Your Honor, we are handing

24 you that he has taken and passed the drug

25 testing at the institution, and that

33OFFICIAL COURT REPORTER - C.A.T.

2 made available to him at the time.

3 So that's been submitted to the Court.

4 I have asked my client -- I suggested to

5 my client that he accept the offer as given by

6 the prosecutor today of entering a no contest

7 plea.

8 I have indicated to him I thought that

9 was the appropriate action in this matter, and

10 leave it- up to the Court that he trusts, and

11 he's indicated to me that he trusts what you

12 have done in the past and what -- your

13 handling of the case. He's indicated to me at

14 this time he wants to go forward at trial.•

15 The problem that I have with that, just

16 so this Court knows, is that he has also

17 contemporaneously filed a notice to me that he

18 intends to file a malpractice action against

19 me for my handling.of this case and the

20 representation of him in this matter.

21 I am willing to go forward at trial, but

22, it seems to me I have got a problem. And if

23 this Court can give me some guidance about

24 what this Court might want me to do on the

25 19th, I will gladly listen.

3fOFFICIAL COURT REPORTER - C.A.T.

1U

1 I thought he was going to enter a no

2 contest plea. He's indicated to me he does

3 not -- he wants to go.forward with the trial.

4 Is that right, Mr. Griffin?

5 THE DEFENDANT: May I speak with

6 permission --

7 THE COURT: Certainly.

9

10

11

THE DEFENDANT: And the reason why I

want to go forward with the trial is because I

don't want to go forward with the trial is

because when I waived the 90-day speedy trial,

12 that terminated when I was sentenced on August

13 the 19th. Therefore, I -- I would be

14 prejudiced to my substantial rights to a fair

15 trial with this Court because you have waived

16 the 90-day speedy trial and I still believe

17 that I still have that right to a 90-day

18 speedy trial from sentence August the 19th

19 until today, and that double jeopardy would

20 apply in that case because I still believe

21 that I passed the lie detector. It is

22 conclusive that the prosecutor reneged on its

23 plea negotiations.

24 MR. SMITH: Mr. Griffin, if that's true

25 and we want to go forward with that, and I

35OFFICIAL COURT REPORTER - C.A.T.

2 no contest plea we preserve our rights to take

3 those on appeal.

4 And if we are going to win those, we can

5 win it at the'Court of Appeals if those issues

6 are valid.

7 And I am stating it on the record, I

8 will assist you, and I think that,if you can

9 prove that, in fact, you did not -- that you

10 did pass-the polygraph and somehow that what

11 was told to the defense counsel and

12 prosecution was in error, that would be an

13 issue.

14 Also, if the Court of Appeals were to

15 believe that the 90-day rule was violated,

16 they could again issue an order terminating

17 the sentence.

18 THE DEFENDANT: All right. Your Honor,

19 with that being said on the record, and I have

20 asked my attorney the suit that was -- the

21 notice was -- it was to make sure that he

22 provided me with copies of all the proceedings

23 thus far and the appeal so that I can read and

24 review them for myself for my own personal

25 feelings, and along with that, I would also

OFFICIAL COURT REPORTER - C.A.T.

1L

1 ask that if we do accept the so-called two

2 years that he offered, that you would, since I

3 have done already time, I have already been

4 out of -- I have.been -- half my life hasbeen

5 in prison, something like 25 years, for minor

6 things, theft and stuff like that, that within

7 your heart you would consider, you know,

8 consider letting me out of there so I can

9 return back to my family and be able to be on

10 the streets instead of just keeping me locked

11 up. And I overcame an obstacle of drugs. And

12 that you would do that.

13 And with that said, that, yeah, I.would

14 go ahead and plead guilty because I don't

15 believe that I am going to get a fair trial on

16 the 19th.

17 MR. SMITH: Let's say no contest.

18 THE DEFENDANT: Or no contest.

19 What if I plead guilty, I mean.

20 MR. SMITH: Well, plead guilty.

21 THE DEFENDANT: What's the difference if

22 I don't want no appeal. What if I just plead

23 guilty.

24 THE COURT: If you don't want to

25 appeal --

31OFFICIAL COURT REPORTER - C.A.T.

2 Right, I want to get it over with. I

3 don't want no appeal. I don't believe I

4 have -- I will be prejudiced to my substantial

5 rights even if I have an appeal. I have

6 nothing coming because of my race and my

7 religion and,my property. I ain't got nothing

8 coming. All I want to do is get out.

9 THE COURT: All right.

10

12

THE DEFENDANT: That's all I want. I

just want out of the prison.

THE COURT: I mean, I understand that.

13 THE DEFENDANT: What's a no contest?

14 Guilty. I don't want no appeal. I ain't got

15 nothing coming in no appeal.

16 THE COURT: Let's me see counsel at side

17 bar for a moment.

18 (Whereupon, a side bar discussion was

19 had off the record.)

20 THE COURT: Why don't you speak with

21 your client a second.

22 Go ahead.

23 (Pause.)

24 THE COURT: Do you want to enter a

25 guilty plea?

38OFFICIAL COURT REPORTER - C.A.T.

1 THE DEFENDANT: Yeah, I want to enter a

2 guilty plea 'cause a guilty plea is lesser

3 time then a no contest plea because that's

4 going against the court time and trying to.

5 save the court time and money.

6 THE COURT: All right. I want to make

7 sure that this is -- you know this is your

8 choice and this is --

9 THE DEFENDANT: Yeah.

10 THE COURT: This is what you want to

11 do.

12

13

14

1s

16

THE DEFENDANT: Yeah, yeah, perfectly.

THE COURT: All right. He is charged

with one count?

THE DEFENDANT: Hold it.

The only thing is, Judge, is when I

17 plead guilty, that does away with the two

18 years. Normally a person when he pleads, he

19 gets the lesser amount of the sentence. He

20 don't get the two years.

21 It carries from what? It carries one to

22 five?

23 THE COURT: One to five, right.

24 THE DEFENDANT: See, normally when a

25 person --

31q

OFFICIAL COURT REPORTER - C.A.T.

2 recommend two years. The Court has indicated

3 that given the fact that you have already

4 served a substantial amount of time, the Court

5 is willing to give you credit for the time

6 spent incarcerated toward reduction of that

7 two year sen•tence, so it is not going to be

8 two years.

9 THE DEFENDANT: Okay.

10 THE COURT: All right.

11

12

13

First, I want to make sure you are

making this plea of guilty of your own free

will.

14 THE DEFENDANT: Yes.

15 THE COURT: Apart from what's been said

16 on the record, has anyone forced you, coerced

17 you, threatened you, promised you anything in

18 order to get to you enter a plea of guilty to

19 this charge?

20 THE DEFENDANTe No.

21 THE COURT: You understand that by

22 entering a plea of guilty that you give up

23 your right to a trial, jury trial in this

24 case?

25 THE DEFENDANT: Yes.

4m

OFFICIAL COURT REPORTER - C.A.T.

16

1 THE COURT: If you chose to go forward

2 with your case, you would have the right to

3 subpoena witnesses that would be required by

4 law to appear in court and testify on.your.

5 behalf. Do you understand that?

6 THE DEFENDANT: Yes.

7 THE COURT: You would also have the

8 opportunity through your attorney to question

9 or confront each of the State's witnesses who

10 would testify against you in your trial. Do

11 you understand that?

12 THE DEFENDANT; Yes.

13 THE COURT: You have a constitutional

14 right not to take the witness stand in your

15 own defense and should you choose tb go to

16 trial, no one could force you to take the

17 witness stand and testify against yourself.

18 Do you understand that?

19 THE DEFENDANT: Yes.

20 THE COURT: The last right you give up

21 is that the State of Ohio would have to prove

22 each and every one of the elements of this

23 offense to a jury beyond a reasonable doubt.

24 . Do you understand that?

25 THE DEFENDANT: Yes.

`f)

OFFICIAL COURT REPORTER - C.A.T.

2 sentence, do you understand that the sentence

3 range for this offense is anywhere for a

4 minimum of one year up to a maximum of five

5 years?

THE DEFENDANT: Yeah.

7 THE COURT: Also, you are subject to

8 three years of post release control Do 0u

9

10

11

y

understand that?

THE DEFENDANT: Yes.

THE COURT: If you are placed on post

12 release control in the future and you have

13 certain violations, do you understand that

14 stricter conditions can be placed on you,

15 including enhancement of your sentence?

16 THE DEFENDANT: Yes.

17 THE COURT: Is there anything at all

18 about these proceedings so far that you do not

19 understand?

20 THE DEFENDANT: No.

21 MR. SMITH: Your Honor, I think you

22 should ask him whether or not he's at least

23 satisfied with the representation of counsel.

24 THE COURT: That was my next question.

25 Okay.

LtA

OFFICIAL COURT REPORTER - C.A.T.

1 And, Mr. Griffin, I want to make sure

2 that you are satisfied with the representation

3 you have had from Attorney Smith in this

4 case. Are you satisfied with the legal

5 representation from Attorney Smith in terms of

6 his representing you in this case?

7 THE DEFENDANT: Yes.

8 THE COURT: All right. So the earlier

9 comment regarding some comments you made in a

10 letter to Mr. Smith, I take it --

11 THE DEFENDANT: The notice of the

12 lawsuit?

13 THE COURT: Yes.

14 THE DEFENDANT: Yes, we just discussed

15 that.

16 THE COURT: Are no longer applicable --

17 THE DEFENDANT: Yeah. We already

18 discussed that.

19 THE COURT: - - as far as any claim of

20 malpractice?

21 okay. As far as you know, any claims of

22 malpractice, it is the Court's understanding

23 that you are withdrawing any of those

24 claims --

25 THE DEFENDANT: Oh, yes. That's

13OFFICIAL COURT REPORTER - C.A.T.

2

3

4

THE DEFENDANT: Oh, yes, that's already

withdrawn.

THE COURT: All right.

5 In reference then to the charge of

6 possession of marijuana, how do you plead?

7 THE DEFENDANT: Guilty.

8 THE COURT: The Court will accept that

9 plea of guilty, said plea being made

10 knowingly, intelligently, and voluntarily

11 entered.

12 Is there anything you would like to say,

13 Mr. Griffin, prior to sentencing?

14 THE DEFENDANT: Yeah. I am just

15 praying, you know, that, you know, in your

16 consideration, you know, your deliberations,

17 that you grant me relief in 30 days. I am

18 just praying you give me another chance.

19 I done, like.1 said before, I done 25

20 years, half my life in prison, and the reason

21 not because I am a bad fellow or I committed

22. such bodily harms or violence, it is because I

23 have always learned how to write everything

24 and put it in writing.and document and not.

25 cause trouble with anyone, but to make sure

^^OFFICIAL COURT REPORTER - C.A.T.

6U

1 that it was a dead scrolls or dead motions, to

2 make sure that I was heard.

3 That the time that I have done really

4 didn't call for me doing that kind of time.

5 And that I want to get -- I have been out

6 eight years, and the whole.eight years I have

7 been good. The only time I did a year in the

8 county jail and that was for contempt of a

9 court order. And I had to do it because I

10 filed and I wrote, and I document everything.

11 They take and use my grievances against me.

12 And I did a year for just contempt of

13 the court order.

14 I haven't done anything. I am not a

15 violent person. I don't have a violent past.

16 I was charged with a violent charge, but there

17 was no violence committed.

18 MR. SMITH: That's good.

19 THE COURT: All right.

20 The.Court has -- I have tried to take

21 into consideration some of those issues that

22 you just stated in reference to this in terms

23 of your prior criminal record. To not

24 sentence you to priso.n would demean the

25 seriousness of the offense and not adequatel.y

y5OFFICIAL COURT REPORTER - C.A.T.

1 protect society from future criminal conduct

2 by yourself.

3 However, the Court is going to sentence

4 you in the lower sentence range.

5 At this time the Court is going to

6 impose a two year sentence on you,for this

7 charge of possession of marijuana. The Court

8 is going to grant you credit for all time

9 previously spent incarcerated towards your

10 arrest, towards reduction of the sentence in

this case which should,be substantial. I am

guessing it would be seven months.

MR. SMITH: Correct, Your Honor.

14 THE COURT: Probably at least.

15 MR. SMITH: And I will see Mr. Griffin

16 tonight.

17 THE DEFENDANT: All right.

18 THE COURT: Good luck to you.

19 THE DEFENDANT: Seven months.

20

21

22

23

24

(An adjournment was taken.)

y^,25

.

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1

C E R T I F I C A T E

I, Teresa A. Orlovsky, Official Shorthand

Reporter, Court of Common Pleas, Summit County,

Ohio, do hereby certify that I reported in

stenotype the proceedings had in the

foregoing-entitled matter, being a

Transcipt of Proceedings, and do further

certify that the foregoing-entitled

Transcript of Proceedings consisting

of 21 pages is a true and complete record

of said proceedings.

TERESATERESA A. ORLOVSKY,Official Court Reporter

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LEVEIZT K. GIZIFF/N.

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Y^IE FiLES AS ABbas- PtAPFRS.

IN THE COURT OF CLan+is oF OHIO 2005 NOY I 7 AN I I^ Z ywww.cco.state.oh.us

LEVERT K. GRIFFIN

Plaintiff Case No. 2005-10993Judge Joseph T. Clark

V.

PRE-SCREENING ENTRYSHERRI B. WALSH, et al. ^

Defendants

• This case came to the court's attention in accordance with

L.C.C.R. 15(B).

Under R.C. 2743.02(S), only state agencies and

instrumentalities can be defendants in original actions in the

Court of Claims. Accordingly, Sherri B. Walsh, et al.,

prosecutor and Office of Sunmit County, Ohio (criminal division),

are dismissed as parties in this action.

This case will be dismissed unless a complaint is filed on

or before December 15, 2005, which pursuant to R.C. 2743.13(A)

and L.C.C.R. 4(A), names a state department,_board, office,

commission, agency, institution, or other state instrumentality

as defendant.

Plaintiff filed a poverty affidavit with the complaint.

Upon review,.the court has determined the validity of the.i

statement and hg`iceby waives payment of the filing fee only.

Entry cc:

Levert K. GriffinP.O. Box 22142Akron, Ohio 44302

Plaintiff, Pro se

FILEDCOURTOFOF

Case No. 2005-10993

Information Copy:

Paula Luna PaolettiSenior Deputy Attorney GeneralCourt of Claims Defense Section150 East Gay Street, 231^d FloorColumbus, Ohio 43215-3130

ADMIN/clc

2005 NOV 17 AM If: 23MY

JOURNALMD

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AP^L(CATra^! aF :

LEVEt2T K.I+RIFF/ti1.NV^S^•^J°.LRiNTtFF^

. . ...

gTATE OF aFl!-O.C

o" SufYIR! ►T Cou.NTy Y.RaSLCx'rzaR.

S3 GLAlIUE25rT.Y At1F+..

A142oN .OK 443og. 7DL.Cf^/V{K7/lfT'.

LEvErzr'^ SECotuh AmEtitn^ Cn^rPl^i^rt-Ar.^b. . . , -

MOTJON FOR 711RY 7MAL AhlEfSSLLES OF' DArhAGF.s

ux^r;low Com^ CLEU^z,^ N^ASrc Tr{os CouRr ^'4n ArnE^t^

ASk,.1-9u CMuJ;tr R. i41\r nftSz. rjsdAArrrM[3 AMqnav rDR

7URY TWAL euI'i)tE. 1 S S ua5 aF 1fAmAGlS.

LEUFRT.IiTF, u.St'oFaf^ âEFI.^ ?Gtz) CAaPLr•coNr^ AvS to. f,39.^

7t/RIS^IGZ-ION IS INVOkF^ YL[lSC^ l9S3 uAlDl'R oN+o L9W ^2.C 2:^2J0

95 FEJ.II]qnLT JitRIgDICTiCKI Antb TNiS AGTiauV f7RiSES GINDER R.C. Z307,-66 AND

ALLEGE A MALlcious PmSE:CUT/aVBY TFlE STar^aFOJ^o/.dF>^ivl^q,vrsl

46 5UfYlmR' CdCLAC17+ P/PESECuTVR SLIERRI B: Lt%ALSN,ETAL.. TciicrrLY,wa aR

SEvEf2ALLY.SE.a..CLAR1c.v.d1 bET.R¢N.. CORR..oN Mties sd iY.,Tzpme.sdeab

(Cr. c. zaoo).

PLAIWTIFF WENT THROLLr.A iUS ATTdIR1JEY LAWRSNCEJL:SMtTIl uu1An1

CRIMI ► L4L MAT'CE.R WE PLEA aLcr Tc A PLEA AGRsF.lnerut wiTN TNE DEFENriRl.ff'S/

ST'RrE, eB oAla•1PlRoSELu.Tioiv 7AY. CaLE,Eto.. SCoTT PNrEPp:fWD RIcNAtib S. ICR-

S!U!ESo . P82 GRim R. I(M..

L) PLAiNTiFF FILEh AN APPEAL Ild A ADST COAtUitr/e.V PE7"rne^/ ALL 7'sqE

WAYYD 7NE SLIPRF111E CO(LRZ' oF OHic ANb AT7Ef»Pi''F11 Ta PiETtT/ON FOR A uUR(T oF

fIAaEPS CARPILS YJ STRr6. AAID 'FEDERAL L'ou31T WrrH. nln PREUR/L .

Y}(WW.FORE. fYA/M7FF'S AEMAWD F'OR7tLRY TrY1AL JS fIJDORSF.& .

WtiEREFOIM IAIE PMY TNE CouRT ORDtX 714E_ EV/DENT/ARY NEARuf6 PRE•

'CKIAL ColJFE^.14/JAGRA^Ct a5 9FJ9R04G 441 7AE MEJZtTS Co/sYENSFiTORY DA(it -

AGES W EOLtiTY MD PdtN rriVE ANDIAGSS A PG18LlC APeLoGY >•eYC n7AKUtG ieE LATE

Ta 8s Ar bAuiD I.,x.IFFUV'S FtuIERAL oR LET ME BYNis BED Si a[ AIEbtD SEP8.2oo3 my

BRdI7{ER. AcbJ Wottl.b Tl1EY F6EL ,F rT uw6AS Tl4EJx BRn'T{lCZ uNDER IiS Ki^tla eF

CGRCLtMSTAMCES . WMliT EVER a'Tf1EA RE Li EF TlIE LouRT UEF_At i-o BE 7Lt5T' PlJh

PRoPrx. f bqulb rni GFiT BE L,auE BttT k WiL,( NEVER 8E FeRGarrE,ti LlKE /M ST:

DANIeL Boak oF bANlEC)

rr IS sv-PAME&

C'^^ = (;..i

IN THEAQMJRT OF COMMON PLEAS

I LEVERT K GRIFFIN,

i^Plaintiff,

iv.^

jAUGUSTINE O'NEIL,

Defendant.

COUNTY, OHIO

CASE NO.: CV 2002-12-7300

JUDGE JUDY HUNTER

ORDER

This matter comes before the Court upon the following: (1) Defendant's timely filed

IMotion for Summary Judgment; (2) Plaintiff's Motion for Leave to Plead and Motion to

jAmend Civ.R15(A); (3) Plaintiff's Motion for Extension of Time to File Summary Judgment;

II(4) PlaintifYs untimely filed Motion for Summary Judgment; (5)'PI"aintiff`'sl4lotion for Leave

fa Amend the Comtplaint to Recommence as against Lawrence R. Smith, Esq....Relief frogi

Judgment Civ.R.60(B); and (6) P1ainCtifs Motion to Reinstate Motion to Dismiss Withouti

Piejud'iaetlie Complaint and io Amend the Complaint as agaiust Lawrence R. Smith for Facts

Docketedon May 12, May 14, and/or June 3, 2004. s

Plaintiffs Motions.

Plaintigrequests leave to plead and to amend upon assertions that Defendant has failed to

respond to discovery requests. In addition, Plaintiff appears to request an Order strilring

Defendant's Motion for Summary Judgment as premature; or staying proceedings; or

dismissing the action; or rendering default judgment against Defendant. Upon due

consideration,'the Court finds Plaintiffs Motion to Amend not well taken and denies same.

Plaintiff served Defendant with "Request for Admissions Continue" by mail on April

22, 2004. There is no evidence that Defendant O'Neil has served upon Plaintiff a written

answer or objection addressed to the matter, as provided in Civ.R.36. Therefore, pursuant to

Civ.R.36, the matters of the genuineness of the documents enumerated in Plaintiff's Request

for Admissions Continue are deemed admitted.

Notwithstanding Defendant's failure to respond to Plaintiff's Request for Admissions,

the Court finds no reason to stay this matter, defer ruling on Defendant's timely filed Motion

for Summary Judgment, grant leave to amend the pleading at this late date, or otherwise modify

the case management order filed April 1, 2004. Plaintiff was well aware of the dispositive

imotions deadline when he served an additional Request for Admissions in late Apri12004.

IPlaintiffmight have timely filed a Motion for extension of time to respond to Defendant's

otion for Summary Judgment under the circumstances, but he failed to do so. Under the

ircumstances, Plaintiff's Motion to Amend...is denied.

On May 21, 2004, Plaintiff filed Levert's Motion for Extension of Time Civ.R.6(B) to

ile Summary Judgment Civ.R.56(E). Pursuant to the Court's April 1, 2004 case management

rder, all Motions for Summary Judgment were to have been filed on or before May 14, 2004.

pon due consideration, the Court finds Piaintiff s Motion for Extension of Time not well

en and denies same.

On June 1, 2004, Plaintiff filed his untimely Motion for Sununary Judgment without

eave of Court to do so. Under the circumstances, the Court will not consider Plaintiff's

otion for Summary Judgment.

... ........... ..... ..v.ak.uu... .., ^ct,U.it[ur.nce as agaIDS'S ALlomey Smith and fori^.I ICiv-R60(B) relief. The Court first notes that Attorney Smith has no authority to grant or deny

any Motion pending before this Conrt.

f

Snutl} arithout prejudice. The dismissal of Lawrence Smith as a party was ratified by the Court

1,.,byOrder filed September 8, 200dT1j,s:to atW is curcently scheduled to proceed to tFial oo

,September 30, 2004: Under.the circumstances, the Conrt finds that justice does uot^e_tliat

leave hE^^i#a"'^1am^ttff`to reinstate his c^aims against Lawrence Smith at tl^late ciate.

Inaddition, Plaintiff fails to allege any requisite grounds piusuant to Civ.R.609_3),

lwbich might erititle him to relie£ 1. Under the cinrumstances, the Court finds PlaintiflVr^quest

Relief fiom Judgment not well taken.. Wherefore; the Court denies Plsiutiff's 1vloti on for

teavcto Ainendtlie Gomplaint..: and for Relief from Judgmeni.

viawly, on 7ime 9, 2004, Plamtiff fiied a Motion to Reinstate Motion to Dismiss

witbout Piejudiix the Complaint andto Amend the Complaint as against I,awrence.R Smith

^c^^actsDocketed on May 12, Ms.y 14, and/or June 3, 20q4•'Qptt `review o€f'lainliff s

^^nsiipport of bis Motion, tIYC ^,^'""ou'tt''ca" gleanno insight mto.she:basis or

ubstance of Plsinti$'s Motion. It is not clear why Plaintiffseeks to reinstate a Motionlo

dism a party who haslong been dismissed from this action. In the same breath, bowevqr,

•Iainu$'seems to seek leave to reassert his dismissed claims against Lawrence Smith. T'Iqe

Cotut has akeadyfoimd aniendment at this late date not to be required in the interest of justice.

Fiu4lier, on Deceinber 31; 2002, j)laufdW' bis_pla^s against Lawrence^..T

Wherefore, Plaintiff's Motion to Reinstate Motion to Dismiss...and to 1lmend the Complaint i

denied:

Defendant's Motion for Summary Jiid¢ment

Defendant has filed a Motion for Summary Judgment in regard to Plaintiff s pending

I claim for legal malpractice. In support, Defendant asserts that no genuine issue of material fact

exists and that reasonable minds can only conclude, based on PlaintifYs lack of expert

testimony, that Defendant is entitled to judgment as a matter of law. Plaintiff did not file a

brief in opposition to Defendant's Motion.

Plaintiff filed his Complaint against Defendant O'Neil, alleging legal malpractice based

on Defendant's negligence. In support of his allegation of legal malpractice, Pl.aintiff claims

that Defendant refused to file proper motions in regard to a criminal matter in another court;

' that Defendant mishandled a matter for Plaintiff in a case in Domestic Relations Court; and that

Defendant defamed Plaintiff, breached a contract, and caused Plaintiff emotional distress. The

Court here notes that the allegations of defamation, breach of contract, and emotional distress,

while not pled with much specificity, still constitute separate and distinct causes of action in a

urisdiction subject to notice pleading. Defendant has not filed a Motion to Dismiss those

claims, nor does his Motion for Summary Judgment address the claims of defamation, breach

of conttact, or emotional distress. Therefore, the Court's niling on Defendant's Motion for

ummary Judgment in regard to Plaintiff's claim alleging legal malpractice cannot be

spositive of this entire action.

APPLICABLE LAW

In order to prevail on a motion for summaryjudgment pursuant to Civ.R. 56, the

oving party bears the burden of affirmatively showing that there is no genuine issue of

i --- -- ^ _„ --_- .,.... .I, ..,.,,1I Celotex Corp_ v. Catrett (1986), 477 U.S. 317, 322. See also Mitseffv. Wheeler (1988), 38

1Ohio St.3d 112. Moreover, a party seeldng 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 evidence in the record of the type outlined in Civ.R. 56

1which demonstrates the absence of a genuine issue of material fact on the essential elements of

jthe nonmoving party's claim. Dresber v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

Summaryj udgment is only appropriate if reasonable minds can conclude, based on the

evidence, that judgment for the movant is appropriate. See also Vahila v. Hall (1997), 77 Ohio

St.3d 421.ji

i^ The evidence presented on a motion for sumuiary judgment is always construed in favor

fofthe party opposing the motion who is given the benefit of all favorable inferences that can be

drawn from ik Williams v. Finst United Church of Christ (1974), 37 Ohio St.2d 150,153. As

the United States Supreme Court has stated, "on summary judgment the inferences to be drawn

from the underlying facts contained in [the affidavits, exhibits, and depositions] must be

viewed in the light most favorable to the party opposing the motion." United States v. Diebold,

c. (1962), 369 U.S. 654; Day v. United Auto.. Aero & Agr, lmp Wkrs. (1972), 466 F.2d 83,

99; EEOC v. United Ass'n of J. & A. of Plumb. And Pine 7ndust. (C.A. 61970), 427 F2d

1091, 1093 cert. da.nied, 404 U.S. 832. A summaryjudgment "should be used cautiously so

tbal a litigant's right to trial...is not usmped" Nonis v. Ohio Standard Oil Co. (1982), 70 Ohio

t2d 1, 2.

The nomnoving party has a reciprocal burden of specificity. Civ.R. 56(E) provides in

art: "Svhen a motion for summary judgment is made and supported as provided in this rule, an

dverse party may not rest upon mere allegations or denials of his pleadings, but his responses,

ry affidavit or as otherwise provided in this rules must set forth specific facts showing that

Ihere is a genuine issue for trial." In this Fegard, the claimant must present some evidence with

kespect to those elements which the party must establish at trial. Celotex Corp. v. Catrett

1986), 477 U.S. 317.

To prevail on a claim of legal malpractice based on negligent representation, Plaintiff

ust establish the following:

(1) that the attorney owed a duty or obligation to the plaintiff,(2) that there was a breach of that duty or obligation and that theattorney failed to conform to the standard required by law, and(3) that there is a causal connection between the conduct complainedof and the -resulting damage or loss.

ahila v. Hall (1997), 77 Ohio St.3d 421, 427.

In support of his Motion for Summary Judgment, Defendant cites case law for the

roposition that Plaintiff cannot prevail on his claim for legal malpractice without expert

estimony to establish the standard of care ordinarily exercised by members of the legal

rofession and that Defendant breached that standard of care. In further support, Defendant

erely avers in affidavit that he "represented Griffin to the best of his abilities, zealously and

rofessionally."

The Ohio Supreme Court was clear that, to prevail on a Motion for Summary Judgment,

e moving party has the initial burden to affirmatively demonstrate that there is no genuine

ssue of material fact as to every essential element of each count in the complaint, even with

egard to issues which the plaintiff bears the burden of proof, should the case go to tdal.

I ^ T r u aregar•_

Ehat he `= -__°' `---

tnembers ^ft.he ipY,--.^-- -

^•-' • i r ^ ^,^1 . ... ^ ...: asseltions

_'? ' v' ` st ue -xcrcised by

ksertions ..; a- `- -=4 -- _<_es. Under

_ _' _....., .,: ::.:..:.... .. x. . ...... ..::., e:.ar ^ ._. :: •^SOSe `^:;. v:.,..:. ^:- °;. ...^. " .'°_. d.. : : ° ; e=ists and that

F

, ^_ 1 l . l. ^ {. > T. f. ) rtµ•sT.,^ ^easonabre -un i qU- _;udgrnent

:^^' .a matter C`l___ . °, - c---=c _ : _^ --- •= ^ ----= . :. s emed.--^------

1111$ mat.=- --`p: _-h°:.'^t;uT°a r-

m • •m^ n_...-.,oI tlld Ori t..,,:-... ?. o=

imofional distress on Seitembel 30, 2004 at 9:00 a.m.

So ordered.

Attorney Augustine O'NeilLevert g. Crriffm, pro se

i_* s° rr•, uct 16; 2004 at 8:30 a.m. and

' xuc o.f, ?>. vach of contract, and

+rao7lsps teatiueg Issal ^ ^`

§ 2323.37 COURTS-COMM N PLEAS 364 J 365

Ia part thereof, after ten days notice of sach mo-tion, the court inay render'udgment in the name ofthe defendant, or'ltis legal reptesentatives, againstthe surety, his executors, or administrators, for theamount of costs adjudged against the plafntiff, orso much thereof as is unpaid. Execution. may beissued on such judgment, as in other cases, for theuse and benefit of the persons entitled to such costs.

IiLSPORY, a5 § 5944; SkC 1118; 51 v 57, f 547; CC S 1164D;8urtaa of Codc Revhia:. Rlf 10-1-59.

Crost-References to Related SectionsForeign wardr and guardisas, RC 1211 L43.

Companthe LegalationCoRection:

CA-Civ Proc C.ode 1128FL-Stat Ann if 34.191, 57.041IL-Ann Stat ch 77 11 et seqIN-Code § 34-1-32-9KY-Rev Stat Ann 1418.005MI-Comp Laws Ann $ 600.2655NY-Civ Prac L & R 15101

Research AidsSecurity for corts:

O-jur3d: Cost: 157Am-Jur2d: Caats §§ 31-46C.j.S.: Costs Si ^

West Key No. ReferenceCosu 105 et seq

CASE NOTES AND OAGL(1895) A judgment against principal binds the suretlS

and he canraa claim in replevin that plaintiff was therightful owner of the property: Woog v. Peoples Rank, 2NP 394, 4 OD 51 (CP).

§ § 2323.37 to 2323.45 Repealed,133 v H 1201, § 1(RS 44 5073, 5345-5352; S&C979, 1117, 1I1g; 51 v 57, 4495, 548-55r, &3 v ftB;94 v 283; CC 4411621-11629; 122 v 676; Sureauof Code Revision, 10-1-53; 125 v.903; 127 v 1039(1090)j. Eff 7-1-7L

Thece sections concemed judgment for mda. See nowCivR 54(D).

§ 2323 .46 Fees on summons to anotherCounty.

When a summons is tssued to another county, it; may be returned by mail, and the sheriff shall beI entitled to the same fees as if it had issued in theff county of which he is sheriff.

HISTORY: RS S 8351; SkC 1118; 51 v $7, i 898; CC S 11838;Sureau of Cnde Re+aioa. FR 10-1-53.

CASE NOTES AND OAG1. (19111) WhRethe legislature has power to provide f

mprepayment of fees for issuing wmmons, it has not dorcedeand therefore such Prepayment cannot rightfully beDmanded: State er rd. Judson v. Coetes, 8 NP 1i82, 11 O

670 (CP).

§_2323.51 Frivolous conduct in civilactions.

(A) As used in this section:(1) °Conduot" means filing a civil action, assert-

ing a claim, defense, or other position in conneotion witb a civil action, or taking any other actionin connection with a civil aotion.

[2) "Frivolout conduct" means conduct of aarty to a i.Tv0 action omunsel of record'atsa' eset ea t vio y serve.s memlv to Jlgm or meli-

ciousl iti ure anotber a e'It is not warrar^ed n er eal^en¢ law and

cannot e suor+nrW lry * fatth-apgument foran ertenafon, modification, or teversat of existingTaw.

(B)(1) Subject to d[visions (11)(2) and (3), (C).atta(0) ot is sectt tT- Wn;at au^t + pdor W hacommencement of the tri in a civil acHOn orwi m TW-a ty-one days after the entr) of 'udgment

• in crv-1i ach et^ court m a reaSDattorn s fees to a a to twhat aetion adversely

^ rivolous conduct. The awar mavassessed as provided in division B)(4)oF tTi'ts sec-

(2) An award of reasonable attorney's fee.s maybe made pursuant to division (B)(1) of this seotfonupon the motion of a party to a civil action, butonly after the court does ali of the following:

(a) Sets a date for a hearing to determinewhether particular conduct was frivolous, to deter-mine, if the conduct was frivolous, whether anyparty was adversely affected by it, and to deter-mine, if an award is to be made, the amount ofthat award;

(b) Gives notice of the date of the hearing de-scribed in divLSbn (R)(2)(a) of this section to eachparty or counsel of record who allegedly engaged infrivolous conduct atid to each party allegedly ad-versely affected by frivolous conduct;

(c) Conducts the hearing described in division(13)(2)(a) of tbis seetfon, allows the parties andcounsel of record involved to present any relevantevidence at the hearing, including evidence of thetype described In division (11)(5) of this sectton, de-termines that the conduct in question was frivolousand that a party was adversely affected'by it, andthen determines the amount of the award to bemade.

(3) The amount of an award that is made pursu-ant to division (B)(1) of this section shall not ex-ceed, and may be equal to or less than, whicheverofthefollowingisapplicable:

(a) If the party is being represented on a contin-gent fee basis, an amount that correspondS'to rea-sonable fees that would have been charged for legalservices necessitated by the frivolous conduct hadthe party been represented on an hourly fee basis or .another basis other than a contingent fee basis;

(b) In all situationa other than that deseribed in

A-rrACHinz,rr 03-

division (that wennecessita,

(4) Anant to diagainst a

(5) Indivisionbe awarcsel of recby the cdetermiritemizednecessitatime exwhichev

(a) Ifcounselattorne\with thby thatbasis otl

(b) Irdivisionassociat•

(C) Athis setamountney's feclient.

(D) iplicaticcedurethe ext.an awaof attoor subj

HISTt

See p2307.31

See pRC§S,

Cross-IDocurr

or

Open i

Resear

FrivulO+Am-C.).

WestPh;

Law I

Nego+

i

division (R)(3)(a) of this section, the attomey's feesthat were both reasonably incurred by a party andnem3tated by the frivolous oonduct.

(4) An award of reasonable attorney's fees pursu-ant to division (11)(1) of this section may be madeagainst a partlS his counsel of mord, or both.

(5).(B ^ of this seetion, each ^division rty who may

be awarded reamnable attorrtey's fees and his coam-sd of record may submit tn the court or bp otderedby the court to submit to it, for coraideraNon indetermining the amount of any stich award, anitemiaed lst or otber avidenee of the legel servicesnecessitated by the alle¢ed frivolmts condu.ct, thetime e:pended in rendering the services, andwhichever of the following is app)icable;

(a) If the party Is being represented by thatcounsel on a contingent fee basis, the reasonableattorney's fees that wouldhave been associatedwith those services had the party been representedby that counsrd on an hourly fee basis or anotherbes(s other thaa a contingent fee basis;^

(b) In aIl situations other than those described inh division (B)(5)(a) of this section, the attorne,y's fees

associated with those services.(C) An award of reaaonable attorne>3's fees under

this section does not affect or determine theamount of or the manner of computafion of attor-ney's fees as between an attorney and the attorney'sclient.

(D) This section does not affect or limit the ap-p)ication of any prwision of the Rules of Civll Pro-cedure or another sectton of the Revised Code tothe extent that such a provision or section pmhibitsan awerd of attorney's fees or authoHzm an awardof atturney's fees in a specified manner, ganerally,or subject to limitations.

1IL410RY:144 v H 787 (FA 1aS0A7h 143, H L Rn 1-8-89.

See provisions, S 3(A) of H 1(148 v -) following RC fY307.3L

See prm•iriom, Si 1, g of 11B 102 (143 v -)followingRC § 4305.1L

CmerRefaranm to Related SeatiemDocumentation requhed for medical, deotal, optometric

or chlmpraettc claim, RC f 2387.48.Open meetlegg exceptbng RC § 12L22,

Research AWsFrivabus ccnduct in malpcactice acdon:

O-]ntJd: Maiprac 84.5Am]ur8dr Fbys k^ SS 200-377Cj.Sn Phys; 77

West Key Na ReferencePhysicians and Surgenns 15(5,17)

Law Rewew

NegeBating between the Scylla of tderehng litigationabure end the Charybdis of cbRling Iegitimate adwcacy: An overview of Federat Ruie ll.aad oompara-ble Ohio previsiont James L. Crabam. 18 Capital-ULRev 1(18g9),

§ 2323.56

CASE NOYFS ANI) OAGL(11R A uisl court errs in awardiag attorncy fees on

tha besis that amofloa for new trial eomtitotad "frtwleoaoonduet" putwant to RC I 2=•^(A)(^ wham there isno evidence that the mo8on was nun fm the purpose ofharaatng or malkioady ie)mfog dro oppadag parq; andthe nmtbn wassupported by a guod faRh atgument for anmrtnodua of exWlog law: Sladoje a Sieteebek, 44 OApp3d I208, 54g NR4d70L •-+

2. (198g) In roRng on a motion for seoctions flled pnr•suant to RC S 2M.51, trivcbus conduct in a tiv8 action,tbo tomt should aatously reflect upon the nuances of the

the nature of aod thehnplkatiom that the case bv on

legal represeotatton. 7Les, for example,the ownt shodd mmlder whethar the tttorney made rea-aao"a'bk inqutry and tnveutgatboloto-tlwfacts and law ofthe arse conddertng the Nme ava8abliK Mulehester Farms,fm k Muiiin, 57 OMWd!d 34,565 NE4d 1291 (MC).

§ 2323.56 periodic payment of eertain fu-ture damages in tort actiomu.

(A) As used In this sactlon:(1) Economio loss" means any of the folfowing

types of fxcuniaryharm:(a) A4 wages, salarks, or other compensation

lust as a result of an injury to person that 1s a sub-ject of a tort actlon;

(b) All expenditures for medical care or treat-ment, rchabi(itation services, or other care, treat-ment, services, products, or acoomnwdatkns aa aresult of an iujury to person that is a subject of atort action;

(c) Any other erpenditures incurred as a result ofan injury to perma that is a svbject of a tort action.

(2) "Future damages" meaos any damages thatresu)t from an iniury to person that Ls a sub)ect of atort aetion and that will acerue.aRer the verdiet ordetardrinatlon of liability by the trier of fact Is ren-dared in tbat tort aoticm. ...

(3) "Medieal daim; "dental daim," "optometricalaim; and "chiropraetie daim" baee the samemeenln as in section 2305.11 oF the Revised Code.

(4) "^oneoonomic losd' means nonpecuntaryharm that reru)ts from an injury to pamn that is asubject of a tort actiam, induding, but not limitedtq pain and suffering, loss of sodety, oonsortium,compenionship, cere, assistance, attentloa, proteotion, advice, ipddance, counsel, instruetlon, train-Ing, or education, mental anguish; and any otherintan^ble )oss.

(5) Past damages" means any damages thatresult from an Injury to person that is a subject of atort action and that haue acorued by the ttrrc thatthe verdict or determination of liabi)ity by the trierof fact is rendered in that tort action, and any puni-tive or exemplary damages awarded.

(8) "Tort actlon" meanc a dvil action for dam-ages for in)ury to petaon. '"fbrt aetion" indadrsa aproduct liabitlty claim for damages for injury toperson that is subject to sections 2307.71 to 2307.80of the Revised Code, but dyae•wqt indude a dvil

i1.TTRCFIWtENT *,a

Civ. R- 10 RULES OF CIVIL PROCEDL'RE

(D) Copy blust Be Attached. When any c)a)m ordc:erse is founded on an account or other writteninstrument, a copy thereof must be attached to thepleading. H not so attached, the reason for theomtssion must be stated in the pleading.

(E) Size of Paper Filed. AR pleadings, motions,briefs, and other papets Rled xith the derk, indudingthose fRed by eleetronic means, shaR be on paper notexceeding 86 x 11 Inches In size aithout backing orcover.(.lmended effeeth'e Ju(y 1,1995; JW y 1. 1991.)

RLZE 11. SIGNL•\G OF PLEADI\GS,iIOTIOSS, OR OTHER PAPERS

Every pleadieg, motton, or other paper of a partprepresented by an attoraey shaR be signed by at leastone attorney of recoid in the attorney's ind(vidualname, whose address aad attorney reg)etration nunt-ber, H atty, shaR be stated. A party who is notrepresented by an attorney ahaR slgn the pleading,motion, or oeher paper and state the party's addt•ess.Except when othertrise speei6caqy provided by theseru)es, pleadfngs need not be verified or aanmpatdedby aRidavit. The slgnatltre of dn attorney or pro aeparty consdtutes a cetdtticate by the attorney or patf,ythat the attorney or patty has read the dotament;that to the best of the attprney's or party's knowiedge,information, and belief there Is good gtowd to eap-port it; and that it is not Interposed for deLtiy, It adocument is nat aigned or is signed eith Intent todefeat the purpose of this rtde, it may be stticken assham and false and the action may proceed as thoughthe document had not been served. For ailifW viola-tion of this rule an attorney or pro se party, uponmotion of a party or upon the rnurt's oxa motion, m$ybe subjected to appropriate action, induding an awardto the opposing party of eapeneea and reasonableattorney fees incurred In bringing aqv motioa underthis ttde.(Amendcd effecthe Ju(v 1, 199[,)

Staff Note (]uly 1, 1991 Amendment)Rule 11 Signing of Pleadings, hfotiom, and Other Papers.

The 1994 ameodment made tMee.ehangea to the rule, oraconcerning application to pro ee parties, a sewnd cotnernir.gthe senctlone that a judge may apply under the tule, and thethird tnnrerning troverage of the rule.

Prior to lhe 1994 amendment, Civ1t. 11 had been inter-preted not to apply to par0eacepmaentbtg themselres, f,e.,prose patties. See. e.q, ShqJlr n Heaae (19911, 66 OhioApp.3d 400, "084 N.E2d 7i: Gordon Pbod Sera, lac a HotDog Johnit Inc (1991>, 76 Obio App.Sd 111;, 115 a. 1, 601N.E.2d 131; Sterena a I(inrfy (1983), 81 Ohio App,Sd 211,212. 24 0.&R. 388, 494 M.E.2d 1160. (It ahoutd be trotedthat Shoper. Gonfon, and Sfarena aR Invohed representedpaHies. but tbose decierona argusbly apply to pto ae Pattiea,and they hat•e apparent)y been understoud to epply ta euchparties.) Hoa•ever, In aome rases pro ae panies axre ob+sened arguably- abusIng the ch,l Rttgation procesx (e.g, byp:acmg arandalaus n•attera in pleadings), but judpes could

not use Civ.R. II as a response. The amendment eerrectsthis de0clenry.

IL has been suggested that the problem artses fram the_ uneophistkation of some pro se partfes, and that any amend-

tnent may have a eh9ling effeet an leghimste am'ts, and mightcoe0ict with the liberal treatment often given pleadings fdedbY pro se partiee. e.g.. Hainea a Kenser (19T:), 404 US. 519.Hoattrr, maqy pro ae pct" are sophhtipted, e.g., thosewho fnquently Ne lanaWtC Idoreover, the tvle as amendedproteeta pro se part(ea (indeed, anyone subject to sanctions),stnce on(y'4sillfuP viWators are seneUoned. It is contem-plated that the eourt woukf have "suf0eient discretion to takeacewnt of thp special cireunutances that often ar(u in pm sesituatioro.' 97 F.R.D. I&i, 199 (1983) (Adtisory Comm(tteeNote to Fed.R,Civ,P. 11, as amended In 19s8 to, Intei alia,mske conduct by Pro ae paniea sanctioneble,).

The amendment also adds Isnqtage that permits judges toaward eapeosea and attorneys fees attributab)e tn the f0ingof a Civ.R, 11 motion At one poim the Supreme Court, tnwhat atguahty was d(ete, appeared to hold that the pm-amendment Lnguage, wh(ch stated that the judge eauld take"aPproPtfate action," wae Rmited to appropriate disciplinaryac0on tgsinat an attomay. $order City Snoinpa & LoanAstx a Moaa (11184), IS Ohfo St.3d 65, 67 n. 1, 472 N.E.2d360. Leter aaees, however, hmro appl!ed a broader tange ofsamlions for C(vS. 11 viotations, namely the sort added bythe amendment See, e.g., Stetxea a Kiraftc aup:u,' GordonFoed Sera, anprq, KenAtq:.3dp Schoe,8-er d! Ro:oe Ca, 4P.A atlerYer (19A9), 70 Ohb 493, 391 N.E.2d 40- Thus,the amendoamt merely eodifiea e.^dcting practice, and permitaeuch aanaiona to be app0ed, where appropriate, against pmse pattles aa we0.

Flnal(q, covenge of the rute ie expanded to Include mo-ttom and ather papen, not just pleadings. lfatten otherthan pleadings can give rise to conduct that concerns thetvle, aad the change conforms to Ped.R.Civ,P. li. Also, ftehould be noted, if It wes not cloar aiready, that the rulecm•eta pleadhtga, maUons, and other papers by arp, party,not merelY those of a plaintitY. However, it does not coverpapen sfgned by a non-par>,Y, such as an affWavit of a non-party submitted in support or In oppositionto a motion.

Nothing Inth(e ruie is intended to restrict the court'scontempt paasr-" 7be 1994 amendment also added the utrement that theattotaey's Ohio regbtratlon number be ncluded on everypleading. This eonforms tn the requirement found in theruies of superintendenca (C.ASup.R. 4, C.P.Sup.R. 9.01, andM.CSup.R. 19),

RL'I,E 12. DEFENSES AND OBJEGTIO\S-WHEN AND HOW PRESENT-ED-BY PLEADING OR AfOTIO1^'-M0-TIO\' FOR JUDGMENT ON THEPLEADINGS

(A) R'hen Answer Presented.(1) GettatoHy. The defendant shaR sen•e his an-

se'er aithin twenty-eight days after seniee of thesummons and complaint upon him; if service of noticehas been made by pub6cation, he shall sert-e hisattsa•er uithin twent<•-eight days after the completionof senxe by pubRcatioa

16

(2) O(1aith a pbserve anafter thehis repiytw•enty-ei;reply isdays afteothentieeur.der Lhisunles: a(a) If theing, de:ayserved uiaction; (bpleading,shall be :the pleadi

(B) Hufact, to aclaim, coushall be asone I5 rt',

may at th,(t:lack ofofjurisdic'.insu0ici=niprocecs, ^,ican be gt':,19 or P,uldefenses spleadingwaived byes ar objeIf a pleadi,adverse pr:pleading, hor fact todsmies forcan be graand s^ch rnwtion sh^judgmentProt-itied 'csuch m:aeenumeraterreasonablepertinent t,

(l`.) 3(oUtcr the plenot to dela,ment on th

(D) Prelcally er,umtrale, u•hetithe motionai ihi+ rie

:,; bn app:icati

34

3vided in this section. Ifd of reparatlons appealsward, and a remaininget of money by the state,- the payment of moneyof the appeal shaB beibed in this section.hall prepare itemized

and dtstributin8 theprepares pursuant to

ide. The itemized bIDsddress of the petsonshem.'DNA mtalyals' and

meanings as in sa%bnd Code.

137 r Sl4l (EB11-S3-77kEfr3-1a.a3h 140. S 172141 vlt 637 (E89.1a.aeb(Etr7-1-0ah lN .s a76

. 143 , 7^80.i7- 4eg); ^ab.SaflAV3{ taU. H Iki,1-03; leo.s t33,t I.eB130.S¢.f 3,aKt.1.o/.

95 (150 v -) .ead ea

ection 2743.191 of the: dreet )anuary l. RULLI,>ate of fbe seoaea arm. Sub. S.B. iSt of the.tasem6lK applld^theion 182 of the _Bevised^nonrttd ff reaoonaWyls thattbe mmpodfeisin e(fect pdor to theted in this actofS.B. i$3 (]Sllv-).de is amended (e&o-Sub.A.B.H6)andahoof fhe 125th Qerral

menu in putauonn ofoses that they am notI by that section to beadsMnt.ic is amended (etCoe-f (Am. Sub. I1.B. 6515, both of the 14516

tese mnandmeats tnd Code dWdosec thatam setpilred bythatto earh amendmmu.

tlve )anueey 1, 4004,and added -ony If

or mae tothe end

ydAiilon (l.)(2)(bYoNQ).•7. added (ANI)(q.(ve June 26, 4Mswatd is efty daBan

35 E00k3 SUPPLEMENT

Cumment, Legislative Service CommioiouSection 2743.191 of the Ravired Code ts emended by this

act (Am. Sub. S.B. 51(etrectlvo Javuay 1, 2ooe) and ako byAm. Sub. H.B. 9S (eQecthe Januery 1. 20B4). both of the125th C.enetal Auemblye Cumtarlwn ofthese ammadmenu inpuuuenee of seetlon 1.52 of the Bewed Code discloses thetthey ae not inemnd{able su that thoy are roqu4ed by tlutsectloo to be hammnized to give edeot to eadt amendmeat.

lNdo Aisam6isauve CodeOt6oe of the attomey genera6 cdme vic6m{ compematlon

aod assistance -Medkd examination of vi<Hms of renol ssault OAC eb.

101R7-1.

§ 2743.43 8agert teatlmouy, on Liabtlttyiseue3. .

(A) No person sbatl be deemed coiapetent m giwoespert testltnwry on tha IiabiGltl• Issues In a medkalclatm, as deBned in seMion 2905:11312305.11.3J of theRevised Code, enkss:

(1) Such person ts ucensed m practke matBdne andsu tgaryosteopathm nmdicine aodsurger); orpadia4inmedtdna and-aargery by the state moiBaal boerd or bythe Itoensing aadior1ty of any.statec

(2) Such person dewtes ahree•fourths of the per,sms ptofassionad iime m the atxrie dinlcal pactiee ofmedldae wstugeqt osteopathic medidue and surgery,

po ^tmadiane and smgeq; or to iN Inftrucibnmuntvarsity.

(B) Nodtbtg in divis(Drt (A) of this seetton S6a11 bemnsvaed to 1imt1 the powor of the erpt eotttt toadjudge theo^testlwamny of any eapert wttnass lnmmpe-

(C) N lo dt La (A) of th)s secdua ahall beconstrued m 8mit the power of the irW eourt to allowthe testlmmy of any other eapert wimavs tbat Isrelevant to the metlicat drdm itnvlved.

IDSIX/dE 136-v a 693 IEE 741&ffih 130 . H 1426 (E57J•766140 r S 431. 25411.40013.

Seo pmviAont, i B of SB 281 (149 v-.) folbwing RC9 8T112L

CASB NOTES AND OAG

N Natber Ac 4 4743.43 uur 1.hR B01(D) appBod tu a datm

^W) bosptsl, ^ ^aBegwl otedimi nulp.aoaoaBbotaK Stme,147 OfiioApp.3d 814, 7SB N.8.4d774 (YU01).'

§ 2743.48 cirtl aauon agatnat atate far*aougftd +mpctsnnment.

the Ravisod Code,a sedbn and aopdlon2743.^

aat meam an 6tdiHdudsa^HrBas of the

§ 2143.48

(2) The individual was found guAry oL but did notplead gutlty to, the particular charge or a iesser-included offense by the court or jury involved, and theoffense ofwldch the individual was found gut)ty was anaggmvated felony or febny.

(3) The individual was sentenced to an indefinite ordefinite term of impsisonment in a state oorrectionalinstimtion for the offense of which the individual wasfound gudty.

(9^ ) Tlte individuols conviction was vacated or wasmissed, or revetsed on appeal, the prosecuting

attomey in the case cannot or wql not seek any furthwappeal of right or upoa leave of court, and no criminalgroceeding is pend4ig, can be bmught, or wi)1 be

mugJtt by any pmsecuting attamey, ctty dtrector ofnx vWaae solidmr, or other chtef le¢el o@'acer of a

munMap'ai ootpotanon agalnst tne mdlvltlual tw any actassociated with that eomiction.

(5) Subsequent to sentendng and during or subse-quent m Imprisonment, ao error in proaedme resultedIn the indivlduals release, or it wes determined by aoourt of oommon plees that the o@'ense of which theIndividual was found guilty, inrluding a0 lesserin-duded o9'etues, either war not committed by thetndlrtduel or was not committed by any person.

(Bxl) When a court of common pleas detormines,on or after September 9A. 1986, that a person is a

imptlsoned indlvklual, the court shaN pro-vide person with a copy of this seo8on and otallyinform tha petson and tbe person8 attorney of thepetwns rights under this section to commence a oivBactton agatnst the state in the court ofdalms bacausa oftlu: petsont 1 fmprtsonment and m be repre-santed in that oi ' at.tion by counsal of the person'sown ctwlca.

(2) The court descrtbed in divtdon (B)(1) of thtseeet3on shall nodfy the clerk of the court of claims, inwriting andwithin aevendays afterthe date of the onnyof Its dntarmiuation that the person is a wmngful(yImprisoned indivtdod, of the name end ptoposedmatltn address of the person and of the fact tbat theperxoa has the rights to coromence a dv1) acUwl aod to6ave tegai representetton as provided In this sectfon.The derk of the court of daims shau moinWn in thederkf olHce a 8st of wtnugh* Impthaned Individualsfor whom notices, are reaHed wder thir secMUn andshall tseate flles m the derKs o@ke for each suchitulNWuaL

(CXI) in a cirit aclicn under this seotlon, a wtong-hdly tadivtdual has the rtght to lua^e coun-sel of the^^indtviduals own dwtoe.

(2) If a wmngfWly imprtsoned maMdual who B thesubjeet of a court deterodnatlon as deattibed )n d(vi-skm (B)(l) of ehB sectiw does not commenee a civtlsetlan under thit sa47on wtthm sk months after theeatry of thst detaradttatimt, the derk of the court ofdafmr shali send a latter m the w^mtg[olly imprtaonedinfivtdaal, at the address set rdt in the aot(cereoalved fsom the court of oamtmon pleu pursuant mdlvlsbn (B)(2) of this section or to any later addressptovtded by the ^ftil1 imprisonad indtvldual. thatremitds the wton^gfully yimprl9Lwd indlvtdual of the

LEt/ER7"t.f W187ruH't e.A.Mo.2i1

(1) T6 ind(vldeal was cherged wBh a viabtlOn of asanlm of the ReWad f'.ad® by an tndidment orinfetmation pior to, or oat or a&eti Saptamber 24,l^y andvtoltictt dtatged was aa aggtavatad

§ 2743.48PACE'S OHIO REVISED CODE ANNOTATED 36 1 37 2003 SUPPLEMEN-

wrongfully imprisoned individual's rights under this (d) The amount of the following cost debts thesection. Until the statute of IimitatWm provided in department of rehabilitation and mrrectson recovereddlvision (H) of this section explres and unless the fmm the wmngfully imprisoned individual who was inwmngfully imprisoned Individuel mmmences a civil mstody of the department or under the department'saction under this section, the clerk of the court of supervision:claims shall send a similar letter in a similar manner to (i) Any user fee or mpayment for services at athe wrongfully imprisoned individual at least once eech detention fadhty, including, but not limited to, a fee orthree montlu after the sending of the first reminder. mpayment for sick call visits;

(D) NotwltRstanding any provisions of this chapterto the mntrary, a wmngfully Impdsoned individual hasand may fsie a civfl action againrt the atate, in the murtof claims, to recover a sum of money as described inthis section, bec+use of the indivldualS wtnngful Im-prisonment. The court of daims shall have exdusive,original jurisdiction over sueh a civtl actlon. The clvllaction shall proceed, be heard, and be determined aiprovided In secHens 2743.01 to 2743.20 of the RevisedCode, except that if a proHsion of this section mn8ktswith a provision in any of those sections, the provfsionin this section mntrols.

(E)(1) In a civil action as described in dlNsson (D) ofthis section, the mmplainant may establish that theclaimant is a wrongfully imprtwned indhidud bysubmitting to the court of claims a certlfled mpy of thejudgm ent entry of the court of mmmon pleas assoc4ated with the claimant} mnviction and aententlng, anda certified mpy of the entry of the determinatlon of amurt of mmmon pjeu that the clalmant is a wmnq(ullyimprisoned indivsdud. No other evidence sha)I berequtred of the mmpleinent to establish that theclalmant is a wmngfully Imprisoned individual, and theclaimant shall be irrebuttably presumed to be a.wmng-fu8y imprisoned indiNdual.

(2) In a c[vil action as desedbed in division (D) ofthis sectlon, upon pretentation of requ/slte proof to themust, a wmngfu8y Imprlsoned Individual is entltled toreceive a sum of money that equals the total of each ofthe Following amounts:

(a) The amount of eny fine or murt msts imposedand paid and the reasanable attomeyi fees and otherexpensea incurred by the wrongfu8y imprisoned Indl-vidual 1n connection with all usociated criminal pso-ceedings and appeab, and, if app8cable, tm mnnectbnwlth obtaining the wmngfully Imprisoned indfvidualSdischarge fmm confinement in the rtste correctionalinstitution;

(b) For each fu8 year of imprisonment in the statemrrectional institution for the oRense of which thewrongfully imprisoned indfNdual was found gu8ty,forty thousand three hundred thirty dollasa or theadjusted amount determined by the auditor of statepursuant to sectlon 2743.49 of the Revised Code, andfor each part of a year of being so Imprisoned- apro-rated shareof fortythousand three hundred thirrydollars or the adjusted amount determined by theaudltor of stale pursuant to section 2743.49 of the

(ll) The cnrt of housing and feeding the wrongfullyimpdsoned individual in a detention fatlllty;

(i6) The mst of supervision of the wrongfully im-prtmned individual;

(iv) The cost of any arsdlary servtres provided to thewrongfully Imprisoned indtvldud.

M(1) If the murt of clasrtu detennines in a civilactson as described in division (D) of this sectlon thatthe mmplalnam tr a wsong(u8y imprtroned Indlvldual,H shall enter ^udgment for the wsunA}'u8y imprisonedlndihdual In t e smount of the sum o^' money to whkhthe wtongfiully impriwned individual is entitled undirisbn (E)(2) of thB section, In detennining that su ,the oourt of clalms shall not take Into wnsideration anyeapesues Incurred by the state or any ofits pohticalsubdtvisbns im mnnection with the arrest, prosemtion,and Imprlsonment of the wmn &(ss Ily imprlsoned Indf-rvidual, including, but oot Ihrdted to, expemes for food, (3nkrthlng, sheiter, and medloal services.

(2) If the wmngfu8y imprisoned individual was re p-resented in the civil sctlon under this sectlon bymunsel of the wro s impAsoned Indtldual's ownchoice, the murt o claims ihall include in the judg-nront entry referred to in dlrlsion ( F)(1) of this sectionan award for the reasonable attomeykfees of thatmunsel.7fiese fees sha8 be paid u provided in dsvisbn(C) of this sectbn.

(3) The sbte consents to be sued by a wmngfullyimprisoned Individual because the imprisonment waswmngful, and to lubilityon its part becxuse of that fact,only as ptovided in this seetion. However, thb sectiondoes not affect any 9ab8ity of the state or of itsemployees to a wsongfully imprisoned indhidual on aclaim for reltef that is not based on the fact of thewmngfufimpnsonmenR including, but not limited to, adatm for rc e8 f that arlses out of cirmmstances omsr•ring during the wrongfully Imprisoned IndMdual's oon-8nement in the state mrsar.tlonal Instltution.

(C) The clerk of the murt of clalms shall fonvard ac<rtiBed mpy of a judgment under divtston (F) of thissection to the prtsident of the mntm8ing board. Theboard shall take all actions necessesy to muse thepayment of the judgment out of the emergenry pur-poses special purpose acmunt of the board.

(H) To be eligible to retxwer a sum of money asdescribed In this sectlon because of wrongful Im prH-onment, a wrongfully Imprisoned indMdual shall nothave been, prior to September 24, 1988, the subject ofan act of the general assembly that authorized an award

xevisea Cotle; of mmpematlon for the wrongful imprisonment or(c) Any loss ofwages. salary, or other eamed inmme have been the subject of an action before the former

that directly resulted from the wmngfully imprisoned sundry clalmt board that re.sulted in an award ofIndsvidual's arrest, pmsecudon, mnviction, and wmng- mmpensatlon for the wrongful imprimnment. Addi-f lu impnsonment; tionally, to be eligible to so mmver, the wrongfull

imprlsoned Individual shall mmmence a ctvil action before thunder this seeNon in the murt of claims no later than numbemtwo years after the date of the entry of the detennina- (2) OnHon of a murt of mmmon pleas that the individual is a each odcwrongfully imprisoned individual. prepue .

tHSfOBn 141 v H nU9 (ER 9A490. ua r H asa (Etr wmngfulla-t7-aB); l4a v H Y/l (EH 10-0-91); 149 r 5 149. EH 4 be00a. fuu vear

The pmvissom of q 3 of SB 149 (149 v-) read u follwn:SECTION 3. S.H. 117.54, 2743.48. and 274J.49 of the

Redaed Code, a amended or enxted by this act, apply todril utions krwmngful imprisonment In the Ccun of Clrimsmmmenoed on ar after the effective date of th4 at, orcvmeseneadprfvrtosrsdpendingontheeBecthedateoftlW

CAS 5 AG^=``L^T^`^^ D&',5f\\

\\^)

t

Eapiratbe of sentersae7Ie pWntilfwv nnt ae innocent person wmdgfilll)'1m^YG-

oned, bW was entlHed to n:d,med mmprnsatlen for h gIbeeo inorcented put the eaplntion of hts sentence:nA;,, n.,y „r n.hsh. & r:,n. 1(I< Ohin Mit< Sd 1 727

doWf (guie-iperl8ed In dhidan (EHE)(b) of seslWn274348 of the Revised Cude trr thenaud do8arannuss^.edeeessMswik-panoaslt'.:9q,:thh sectico..of TLeadjn>s'iwnE s6all. be bssed on the j^arly average thaprevious ta'n yeais of the mnstsmer prtoe tsidas for a8urban mmmen or its suoceistve aqNvalmt, as dr:ter-mtned by the UNtedStates depastment of labor,busetm of laboP 3toNStks, or Rs successor in sesponsl-bi8ty, for all Hems, Serief A. Using the yearly averagefor.tbei.ImntFdlaeely.pre even-numbesed year asthe-6i5e`yZer, the auditor o rtatesha8 mmpare thetswat current average consumer price indes with thatdetermimd in the precedittg odd-numbered year andshall detersNne the perantage bsctease ar decrease.The auditorofstate sha8 multip 1y the percentagehsomfe or decrease by the actual dollar fsgure sper^-Bedin diridon (E)(2)(b) sif sectlon 2743A8 of theRevised Code or the achsal do8ar figure detemdnedfor the ptevfous odd-numbered year under this sectionand sha8 add the psoduct to or subtsss! the productfrom 8s oorsesportdhsg uxual dolka 8guro. u applks-ble, for the previous odd-numbered year.

(2) The audHOr of state sha8 calculate the adjust-mem under dlvision (A)(1) of this section on or beforethe thtrty-8rst day of January of eads-bdd-numbenedyear. The auditor of smte sha8 base the adjssstment onthe most cursentaonsumer pri<e index that b de-seribedtis^divlslon (A)(1) ofthts section and that is ineffect as of the first day of january of each odd-numbered year.

(8)(1) The auditor of state shall certify the calcvla-tlons made under division (A) of this seatlon on or

issstitutsonimpAsonedhtis'sonCode endThe repoitletlf contreport shxthe dmiamount ,and.a9 re:and mp.r

(3) Oneach oddtruumit cocurt of r

RLTfoet

See pm.} 2743.48.

§ 27

As use,Re•ised C

(A) "Cl;ries of per

(1) An,ofreparan

Revised C(a) Aa,

of the crln(i) A re(Y) A rt

permit re;as victims

(b) A dscribed in

(c) A tt.whn ksgall.of a victt,describedobhgation.injurlous ,may Inclu,expenses:

(d) A pany perso ror (c) of e

(2) AmofreparatiRevisad C

(a)Adence trtinjurions c

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1) TAE PFIRTI ES ARE Ni3r AA.! 1N F19AIT oR /MCd'YI PE'T'Erllr 1°ERSaVIf.

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IN THE COURT OF COMMON PLEASi^^^ ^^C ^^ ('^1 (: 22 CIVIL DIVISION

SUMMIT COUNTY, OHIO4:. ,; ,

CLthi( 0'r CUU t'^-'

LEVERT K. GRIFFINP.O. box 22142Akron, OH 44302

Plaintiff

-vs-

LAWRENCE R. SMITHOne Cascade Plaza, suite 710Akron, OH 44308

JUDGE JI1DY HUNTER

CASE NO: CV 05-11-6574

MOTION TO DISMISS

Now comes Defendant, LAVJRENCE R. SMITH, ESQ., and hereby moves this

honorable Court for an order disnassing the above captioned civil case pursuant to rule

Civil Rule 41(B).

Pursuant to R.C. 2505.11, Ohio has a one year statute of limitations for legal

malpractice claims. Plaintiff Griffin filed his suit alleging malpractice on 12/19/2002,

three (3) years ago. After filing his suit then dismissed his suit against Attomey Smith

09/08/2003 and re-filed this action 11/7/2005, a full two (2) years later and a f-ull year

after the statute of limitations had run its course. This case should be disniissed with

prejudice as the Court lacks jurisdiction over the subject matter.

Plaintiff Griff in has filed at least fourteen (14) civil suits in Summit County Common

Pleas Court alone within the last eleven (11) years. Plaintiff Griffin has inundated

Attorney Lawrence R. Smith with letters and motions in which he alleges that the

apartheid is alive and well in the civil and criminal justice system of Summit County

1

umo among omer uungs. A review or, r ►aaznuu vmmn- s nungs ana corresponaence,

particularly those with Attorney Smith, establish that he is a vexatious litigator pursuant

to R.C. 2323.52 in that he has habitually, persistently, and without reasonable grounds

engaged in vexatious conduct in a civil action or actions.

Whetefore, Defendant Lawrence Smith hereby moves this honorable Court for an

order disnussing the instant case with prejudice and that Plaintiff Levert Griffin be

deemed a vexatious litigator.

Lawrence R. Smith, #T029026, Pro seOne Cascade Plaza, Suite 710Akron, Ohio 44308330-376-9121 FAX:330-376-9106

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was hand-delivered and/or

mailed by First Class United States Mail this day December 27, 2005, to Plaintiff:

Levert K. CiriflinP.O. box 22142Akron, OH ^4302

^

. 3 uLf-

GL0N

Si3MMTT CO[JNTY, OHIO

6 `CG'111T :

LEVERT K: GRIFFINP.O. box 22142Akron, OH 44302

Plaintiff

-vs-

LAWRENCE P. SNIITHOne Cascade Plaza, suite 710Akron, OH 44308

JUDGE JUDY HUNTER

CASE NO: CV 05-11-6574

MOTION FOR LEAVETO FILE

Now comes Defendant, pro se, and hereby moves this honorable Court for leave

to file a motion to dismiss in the above captioned case. It is well setfled that the decision

to grant leave to plead is well within the discretion of the trial court. Patterson v. V & M

Auto Body (1992), 63 Oluo St.3d 573, 589 N.E.2d 1306. The Civil Rules instruct triai

courts to exeroise their discretion liberally. ("Leave of court shall be freely given when

justice so requires.") Civ.R. 15(A). Therafore, in the interest of justice, Defendant Smith

hereby moves this honorable Court for leave to file a motion to dismiss.

Lawrence R. Smith,WU029026, Pro seOne Cascade Plaza, Suite 710Akron, Ohio 44308330-376-9121 FAX: 330-376-9106

3

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was hand-delivered and/or

mailed by First Class United States Mail this day December 27, 2005, to Plaintiff:

Levert K. GriffinP.O. box 22142Akron, OH 44302

J

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NOTICE OFEXPIRATION OF SENTENCE

12/15/2004Effective Date

TO: (iritrm, Leve[t Knotly OFFENDER NC1M$ER: A433089

Having served the definite sentence imposed by the Court or the maximum sentencefor the offense(s) for which you were convicted, the rights forfeited by yourconvicbion pursuant to Set-t ►on 2961.01 of the Ohio Revised Code are restored. Theseinclude your right to vote, to serve on juries, and, unless precluded by Sections2921.02, 2921.41 and 2921.43 or other Sections of the Revised Code, to hold anyoffice of honor, trust or profit.

The expiration of your sentence does n t relieve you of any disability prohibiting youfrom.possessing a firearm under Section 2923.13 of the. Revised Code.

We offer onr best wishes for your success in the future .

Date: 12/15/2004

I have this date rweived fromivlarion Corrncaoual insaamon

my CertificatE of Expication of Sentence on Docket Number(s):

SatMmirn°Ws.^^ ^^•Mty CR01071779r°e

t0E caev. 1219a1

mdm or (:hief of the APA

Signcd

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9;r/A,IF- ^^^g^^^"., 25 2006 AUG --g pPi 3, 33

SU^ir^;r;COUNryPLEPsCLERK OF COURTS

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COURT OF APPEALS OF OHIONINTH APPELLATE DISTRICT

Docketing Statemeat Appeal No,

A tim Q ; ped caliy of tiual judgment be ing appealed m t be attached to this statement.

ZVACATR^ Gla rWameCauRareFConure-,Jff.Q^S ^urG DlLls^e^U^

versla

La+,rpwim R. S-,rr[tlV^AlH.^orr^ca^^

Trial Court Case Number^

Trial CoartJudgeTc.lDY t2

App.R 112 Espedited Appeai ^•}YOhw^a^e)

xHE RECORD

Mark the paragraph that applies.

TO T70: CI.ERKOF COUItTS: Ploase immediatety assemble andtcansme the tecoed ia this case. I certitjf that the pacagraphl nmrkedaccurately describes the aoWlue record to be filed

1. tK The reootd wiIl conast of ONLY the origimal papers, axldbhs, a oaliHed copy of the dodcet and jow•nal eotriea, and anytramaipts ofpraccedugg that wero ffied in the trial couct prior to Sosi judomt

2. _ The zecord wili inelude tlus origioai papera and exln'bits filed'm the trisi court and a ceitifled copy of the docket aud joumaleffitim, anda fall or paetial tmnseaipt ofproceadings prepaed fathis appealby an official caIIt reporter, who I savedwrthapraxipetlmtI also 61ed with this cwrt.

3. _ The record will ludude the original papas and estnbfts Slod in the trial coi¢t and a certified copy of the dodcerand joumalentries, andastarenmnt oftheevidme orproc:aedings pucsuautto App.R.9(C) or an agrecdstatesuntoftbecaseplasuamtoApp.R 9(D).

4. The iscord will inebede the original papets and exhibits Bled in the ttiai oourt and a certified copy of tfie doakG and jomaaiemities, aral both a ttanscript of proccedbWpaepazed by an official ownt npaater and a st^mmt of the evidence or wse pusmtnt toApp.R. 9(C) or ()).

Ifyou mtead to rely upon a transcript of prooeedhogs flied in an eatiierappeal,youmost seek permission from the coiatto supplement therecord in tLis appeat with the mmmipt fikd in the earlier appeaL

A time-stamped copy of the linal judgment being appealed most be attached to this statement.If the order tfom which this appeal is taken is not final and appealsble ander R.C. 2505.02, the Court must

dismiss the appeal.

1p

A party V41o Hies a nodce of appesi is an appeffant A party who woald be adversely atAected if the judgment below is reversed .should be designated as an appellee. All other patties to the actnm belowshoutd rerain [hee trial court desigaation (plaintiMdefmdan;third-party pta9ntlff, third-pmry defendan; petitioner, mspondart, tUc). See Local Rule 3.If a party was not represemd h^couasel in the proceedings below, plme provide the address and phone number ofthe patty. Ifthae areadditional parties and/or attorneys, please copy this page, completethe infocmation for the additional parties, andanch ittothis statmzart.Appellant must attach a copy of any order that resolved a claim against any of the parties.

Party's mmna ^C.i3 R. SmfrA,ES a& Paryrs nsme

Parry's desigoationAPPELLE.E Paws dasigoation

Attoraey's name Lt11M,^, .&Si+)OM AtOOmey's mm^e

AtCenleJl's ICoShadpn nnalber gg29o4U 'AaRney's registration nninher,

Addmssofcommalorpazt^fgCF1StADE PIZ. Addressofcoumelorparry

AW%io,n4 yy3o^

Phone hombv of coursel or oart4 330) ^76• a 1 eL 1 Phone numba ofcounsel or party

Party's naame Pacty's osox

PW9 d^OA P7rly'9 dCID^hen

Attaoay's Atmmey's ffine^

Attqney's reOOldonnomber Atlomey's registmIon numha

Address ofcounsd or petty Addnss ofcounsd or party.

Phone nomber ofcoun9el or party Phoae numbecofcounselor party..

Party's name Pecty's ^me

PffiLy'3. PBtly'S

Attomay's neme Attmoey's mme

Attomey's mgWration mimnbw Atmmey's registcation m,®ber

Address ofeouosel or party " Add= ofcowsel or party.

Phona nomha ofcommel or party Phone number ofaoensel or psrry

n A rr;L&F 3

_ t.usuomesrpor Felony

,_,._ Triai _ GuiltylNo contest plea

Charges

Senunx

Type ofAppeal: _ Defadnt's Appeal as of Right _ Siane's Appeal as of Right (R.C. 2945.67(A))Defindaat's Appeal by L.eave of Court StaLe's Appeal by Leave of Court

Is tbis an appeaF of postconvidion reliafpursuM to R.C. 2953.21?_Yes NoWimt was the original ch®rge aad scneace?Waa a Iteetmg held fn the hiai cowft? ^ Yes _ No

Is tlmaditect appaal from tleoonvidionpaodiog? _Yes NoIfthae is an appeat pen&g, xhet is the cave ameand

rs this an appwl Sor mviavrofaaftadog punuoa2 to RC. 29S3A8? Yes No

Was oounl eppoinmd faa• hial?

Was tmmaei appointod for appea(?Yes No

Yes __ No

CNiL CASETypsofacdminimt caaet

Must this eaae be eupadfoeQ as being ooa ofthe foU+owAmg typas of txsaz? ^ Yes No

- App.R. I 1.2(B) ar (C) appaals (shoitioa widmtrt pateaEal ooanma, adopdon, and pareaW iights)

_ App.R. I2.2(D) appeals (depmdmt abnsad, aeglec64 uaiuty, or ddfioquat cirild apPmfs)__ Appeal uadrrdedxm;rmdoaof tocai fiecal cwagmy6cooglrtby maoloipal ¢acporetionuaderRC. i Is.04(C)

ElecNon ooOmts as provtded in R.C.35I5.08

I CE1t11FYTHAT'ITTE ABOVE INFORMATION L4 ACC(JRATE TO THE BSST OF MY KNOWLSDGE AND THAT I FIAVE

ATTACM A COPY OF THEFINAL ]UD FROM WIIICH TF^IS^APPEAL IS TAKEN.

^__ ^ • - •^ -! by counsel)

PAGE 3 OF 3

c(Ct\ ur Luutt t J

IN THE COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

VERT K GRIFFIN

Plaintiff

S.

WRENCE R. SMTTH

Defendant

CASE NO.: CV 2005-11-6574

JUDGE HUNTER

ORDER

This matter comes before the Court on Defendant Lawrence R. Smi.th's

4otion for Leave to Plead and to file his Motion to Dismiss instanter. Upon review and for

pod cause shown, Defendant La.wrence R Smith is granted leave to plead and to file his

otion to Dismiss instanter. Plaintiffs Motion for Default Judgment is denied. Plaintiff

respond to the Motion to Dismiss within fourteen days from the date of this entry.

So Ordered.

I.evert K. Griffin, pro seAttorney Lawrence R. Smith

IN THE COURTSUMIVIIT

T K. GRIFFIN ) CASE NO.: CV 2005-11-6574)

Plaintiff ) JUDGE HZJNTER)

ORDER)

WRENCE R SMTTH )

)Defendant )

This matter comes before the Court on Plainti$'s Rebuttal to Motion to Dismiss and for

ave to file Discovery. The Court has been advised having reviewed the pending Motions,

;ponse brief, pleadings and applicable law. Upon review, the Court denies Plaintiff's request

or leave for further discovery. In ruling on a motion to dismiss pursuant to Civ. R 12(B)(6),

trial aoart is confined to the allegations in the pleadings. Savage v. Goatfrey (Sept. 28,

1),10th Dist. No. O1AP 388, 2001 Ohio App. Lexis 4406. As such, Plaintiff' is not entitled

such discovery during the pendmcy of the mofion to dismiss. Oliver v. Thompson Conrumer

7ectronics, Inc. (Dec. 16, 1998), 9th Dist. No. 97CA006948, 1998 Ohio App. Lexis 6095.

Plaintiff sb.all respond to the Motion to Dismi.ss within fourteen (14) days from the date

of tlris entry . No further extensions will granted.

So Ordered.

Stifrypii;` CJUPiT ;' --CLEf?t^ OF Cot1Rp5

LEVERT K. GRIFFIN

Plaintiff

ILAWRENCE R. SMTfH

Defendant

CASE NO.: CV 2005-11-6574

JUDGE HUNTER

ORDER

This matter comes before the Court on Defendant Lawrence R. Smith's Motion to

Dmmss the Complaint and Plaintiffs Opposition to Motion to Dismiss. As Defendant asserts

e affirmative defense of statute of limitations and makes reference to documents outside of

e Complaint; the Court converts Defendant's Mofion into a Motion for Summary Judgment

iu-suant to Civ.12.12(BS). The Court shall limit the Motion for Summary Judgment to the issue

f whetb.er Plaintiff has filed the instant action beyond the applicable statute of limitations

eriod for a legal malpractice action. Should this Court deny this Lmuted Motion for Summary

udgment, the Court will proceed with this matter, including Plaintffs right to discovery. The

u[t will permit additionai filmg on the issae of statute of limitations, if desired. Defendant's

brief in support of Summary Judgment shali be filed within fourteen (14) days from the date of

this entry and Plaintifr's brief in opposition to Summary 7udgment shall be filed witbin twenty

28) days from the date of this entiy. No ftther ext.ensions will be grented.

So Ordered.

IN THE COURT OP COMMON PLEASSUMMrP COUNTY, OHIO

Levert K. C,riffin, pm seAttomey Lawrence R Smith, pro se.

^

(.LLft7i Ui- i.J*:1 . l :

IN THE COURT OF COMMON PLEASI SUMMiT COUNTY, OHIO

LEVERT K. GRIFFIN

Plaintiff

vs.

LAWRENCE R. SMITH

Defendant

CASE NO.: CV 2005-11-6574

JUDGE HUNTER

ORDER(final and appealable)

This matter comes before the Conrt on Defendant La'wrence R. Smith's Motion for

Summary Judgment, Plaintiff's Response in Opposition to Defendant's Motion for Summary

Judgment, and Plaintiff's Motion for Summary Judgment. This Court has been advised, having

reviewed the competing Motions, response brief, exhibits, affidavit, and applicable law. Upon

review, the Court finds Defendant's Motion for Summaryjudgment well taken and it is

granted Conversely, the Court finds Plaintiff's Motion for Summary Judgment not well taken

and it is denied.

FACTS

Plainti$, Levert Gxiffin, brought this t;omplaint for Legal Malpractice against

Defendant, Attorney Lawrence Smith, on 11/05/05. Defendant inifially responded to the

Complaint be filing a Motion to Dismiss. As the Motion to Dismiss asserted the affirmafive

defense of sta#ute of limitations and made reference to documents outside of the Complaint, the

Court converted Defendant's Motion into a Motion for Sununary Judgment pursmt to Civ. R.

?I

1

iL^13J. Jee l.ourC Vraer n1eQ X 1/V0. in Salu lJruer, uns I.oUII nnIlteu lne lviouun tur JuILInuiy

Judgment to the issue of whether Plaintiff has filed the instant action beyond the applicable

statnte of limitations period for a legal malpractice action. Furthermore, the Order stated that

should this Court deny this limited Motion for Summary Judgment, the Court would then

proceed with this matter, including Plaintiff's right to discovery.'

Plaintiff has brought this legal malpractice claim against Defendant Smith based upon

Mr. Smith's representation of Plaintiff in various legal matters in Summit County - a municipal

court case (Complaint, paragraph 2), a domestic relations case in Dr 99-08-1975 (Complaint,

paragraph 3 and Notice of Filing Transcript), and a criminal case of CR 01-07-1779

(Complaint, paragraph 4, Notice of Filing Transcript, and Plaintiff, Exs. 2-5).

This Court notes that Mr. Griffin filed an identical legal malpractice Complaint against

Attorney Smith on 12/19/02 in case CV 02-12-7300 that was also set before this Court ? Jn the

earlier suit, Mr. Crriffin filed a Motion to Dismiss his claims without prejudice against Attomey

Smith on 12/31/02. This Court granted Mr. Griffin's Motion by journal entry on 9/8/03.

DISCUSSION

The Defendant argues that the statute of limitations for filing a legal malpractice claim

has expired in the present case. Ohio Revised Code Section 2305.11(A) sets forth in pertinent

part: "[A]n action for malpractice, other than an action upon a medical, dental, optometric or

chiropractic claim,... shall be commenced witbin one year after the cause of action accrues..."

The Ohio Supreme Court in Zimmie v. Calfee, Halter & Griswold (1989) 43 Ohio St.3d 54,

' A triai court has discretion to manage its discovery proceedings including ruling on motions for summaryjudgment in spite of an outstanding discovery request that would not aid in establishing or negatmg the facts at

issue. Hiiks v CYccolint (May 15, 2002), 9th Dist CA No. 20745, 2002 Ohio App. Lwcis 2344.z Mr. Griffin also filed an unrelated legal malpractice action against another Attomey in this same lawsuit.

q

begins to zun.

jU_]nder RC. 2305.11(A), an 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 attomey's

act or non-act and the client is put on notice of a need to pursue his possible

remedies against the attorney br when the attomey-client relationship for that

particular transaction or undertaking temiinates, whichever occurs later.

Id. at 58. See also Omni-Food & Fashion, Inc. v, Smith (1988), 38 Ohio St.3d 385.

"In other words, the statute of limitations does not begin to run until the later of the

following two events, viz.: (1) the termination of the attomey client relationship, or (2) the

occurrence of a'cogaizable event."' Wozniak v. Tonidandel, 121 Ohio App.3d 221, 226

(1997), citing In re America (Feb. 8, 1996), Cuyahoga App. Nos. 66808 and 66947, unrepozted,

1996 WL 50815, at 6.

"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... A cognizable event

can occur when the client learns of an adverse decision during litigation." Wozniak v.

Tonidandel, 121 Ohio App.3d 221, 226 (1997) (citations omitted).

"For putposes of the statue of limitations; an attorney-client relationship is consensual

in natnre and the actions of either party that dissolve the essential mutual confidence between

attomey and client can signal the termination of the relationship." Id at 226, referring to

Brown v. Johnstone (1982), 5 Ohio App.3d 165.

hi this case, the Court finds that the attorney-client relationship ended either shortly

before or rcfter the 12/16/02 sentencing hearing before Judge Cosgrove in CR 01-07-1779. At

said sentencing hearing, Attorney Smith informed the sitting judge that Mr. Cniffin intended on

filing a legal malpractice action against bim:

`The problem that I have with that, just so this Court knows, is that he alsocontemporaneously filed a notice to me that he intends to file a malpracticeaction against me for handling this case and representation of him in thismatter"

(12/16/02 Sentencing transcript, page 9.)

A review of the record indicates that the Mr. Griffin filed the legal malpractice action

against Attorney Smith three days later on 12/19/02 in CV 02-12-7310. As such, the Court

finds that the "cognizable event" leading to the malpractice action clearly was no later than on

12/19/02.

Based upon the 12/19/021ega1 malpractice lawsuit against Attorney Smith, Mr. Grif&n

had, pursuant to the "savings statute" - RC 2305.19, no later than one year from the voluntary

dismissal date of his suit to refile against Attomey Smith. As this Court granted Mr. Griffins

Motion to Voluntarily Dismi.ss Attorney Smith from suit on 9/8/03, Mr. C'rriffin had up to

9/8/04, the one year anniversary date, to refile his Complaint against Attorney Snuth. As Mr.

Griffin waited unti111/7/05 to refile his Complaint, he is beyond the requisite statate of

limitations.

Based on the above, the Court finds that the Plaintiff failed to file his medical

malpractice action within the one-year required by law. As such, Defendant's Motion for

Summary Judgment is grauted. Conversely, Plaintiff's Motion for Summary Judgment is

denied. Plainti$'s Motion for Sanctions and Attorney fees, Motion to Reinstate Motion for

Default Judgment, and Motion to Compel Discovery are all denied..

^

x auouau, w ^iv. a^ jotnj, uic %,icix u► l.uUrfS SnBll serve Apon an paiheS not ID(1ef811lt fbr

failure to appear notice of the jndgment entry of the Court.

So Ordered.

cc: Levert K. Griffin, pro se -Attomey Lawrence R Smith, pro se.

5

IN THE COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

CASE NUMBER : CV-2005-11-6574

GRIFFIN, LEVERT K.

(Plaintiff)

-VS-

SMITH, LAWRENCE R. ESQ.

(Defendant)

N O T I C E

TO: GRIFFIN, LEVERT K.P.O. BOX 22142AKRON, OH 44302

ORDER FILED: 04/14/2006

YOU ARE HEREBY NOTIFIED THAT A FINAL APPEALABLE ORDER IN THE ABOVE CASE HAS BEEN FILEDWITH THE CLERK OF THE COMMON PLEAS COURT. SA}D NOTIFICATION IS REQUIRED BY THE OHIOSUPREME COURT AND CML RULE 58(b)

The following represents information that has been entered on the docket of the Clerk of the Common PleasCourt regarding this order. A mwdmum of the first eight (8) lines of this entry are displayed.

FINAL APPEALABLE ORDER. THE COURT FINDS THAT THE PLAINTIFF FAILED TO FILE HIS MEDICALMALPRACTICE ACTION WITHIN THE ONE-YEAR REQUIRED BY LAW. AS SUCH, DEFENDANT'S MOTIONFOR SUMMARY JUDGMENT IS GRANTED. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS DENIED.PLAINTIFFS MOTION FOR SANCTIONS AND ATTORNEY FEES, MOTION TO REINSTATE MOTION FORDEFAULT JUDGMENT, AND MOTION TO COMPEL ARE ALL DENIED. THERE IS NO JUST CAUSE FORDELAY.JH

April 17, 2006 Diana Zaleski

Summit County Clerk Of Courts

••. ...r Vvv... v, vv..!/r,vn rLC^

SUMMIT COUNTY, OHIO

CASE NUMBER : CV-2005-11-6574

GRIFFIN, LEVERT K.

(Plaintiff)

-VS-

SMITH, LAWRENCE R. ESQ.

(Defendant)

TO: GRIFFIN, LEVERT K.P.O. BOX 22142AKRON, OH 44302

N O T I C E

ORDER FILED: 08/04/2008

YOU ARE HEREBY NOTIFIED THAT A FINAL APPEALABLE ORDER IN THE ABOVE CASE HAS BEEN FILEDWRH THE CLERK OF THE COMMON PLEAS COURT. SAID NOTIFICATION IS REQUIRED BY THE OHIOSUPREME COURT AND CML RULE 58(b)

The following represents information that has been entered on the docket of the Clerk of the Common PleasCourt regarding this order. A maximum of the first eight (8) lines of this entry are displayed.

FINAL APPEALABLE ORDER. THE COURT DENIES PLAINTIFF'S MOTION FOR RECONSIDERATION. COURTDENIES PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS. THE COURT DENIES THE PLAINTIFF'SMOTION FOR RELIEF FROM JUDGMENT. THERE IS NO JUST CAUSE FOR DELAY. JH

August 7, 2006 Diana Zaleski

olSummit County Clerk Of Courts

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99, 415 N.E.2dthe insured ad-member of thean authorizedicy.

that the pilotcontrol on theanother policyvisions togeth-? support thatthe policy lan-hich identifies

!s.Insured

s under Part I:

d any personircraft and anyIly responsibleaal use is withmed Insured."

liance on that

:ribing personshave no coun-ns for Part IIIpresent claimal Damage) ofelusion of thatin an unrelat-

mot create anthe definitionwith the pilot

uspends cover-iorized by thea pilot autho-the plane, theal insureds arethe plane's,ac-iission of the

Those'addi-pilot individu-

)r back seat, orresponsible forThe definitionthepersons orrotection fromffective and no)e an exclusionis afforded to

BROWN Y. JOHNSTONECite as 450 N.6.2d 897 (Ohio App. 1982)

anyone, regardless of whether permission Therefore, we affirm.was given by the insured for the flight.

That issue was considered and resolvedby the California Supreme Court in Nation-al Ins. Underwriters v. Carter (1976), 17Cal.3d 380, 131 Cal.Rptr. 42, 551 P.2d 362.In the Carter case, the insured claimed thesame supposed ambiguity between the defi-nition of persons insured and the pilot limi-tation clause. The court said:

"Defendants insist * * ` that the policyis ambiguous in that the insuring clausepurports to cover all permissive users whilethe pilot exclusion clause limits, or at theleast reduces, such coverage. 'However, de-fendants fail to recognize that the two pro-visions, the insuring and exclusionary lan-guage, fulfill two different functions. Theinsuring provision, on the one hand, has asits purpose the definition of those personswho, in addition to the named insureds, mayclaim coverage and protection with respectto aecidents to which the policy applies.The pilot exclusion clause, on the otherhand, specifies that the policy does not ap-ply unless the plane is piloted by a personnamed in that clause. The former clausedoes not purport to touch upon the subjectof pilots' qualifications, and the latterclause does not attempt to describe thosepersons who are deemed to be the 'insured.'Contrary to the defendants' assumption, thetwo provisions act independently of eachother. They are in harmony while perform-ing different offices." Id. at 385, 131 Cal.Rptr. 42, 551 P.2d 362.

We agree with that analysis.

Since the undisputed evidence establishesthat the pilot was not authorized by thepolicy to fly the plane, and since a clear andunambiguous exclusion suspends coveragewhile the plane is piloted by such an unau-thoriied person, no coverage applies here.There is no genuine issue of material fact,and the trial court properly granted sum-mary judgment to the defendant insurer.

* A motion to certify the record to the SupremeCourt of Ohio was overruledbn June 16, 1982

Judgment affirmed.

Ohio 693

PATTON, P.J., and CELEBREZZE, J.,concur.

f w^ T XEYNUMBEBSYSiEM

5 Ohio App.3d 165

BROWN, Appellant,

V.

JOHNSTONE, Appellee.*

Court of Appeals of Ohio,Summit County.

March 3, 1982. ;

In attorney malpractice suit, the Courtof Common Pleas, Summit County, grantedattorney's motion for summary judgmenton statute of limitations grounds, and plain-tiff appealed. The Court of Appeals, Sum-mit County, Mahoney, P.J., held that: (1)when attorney from local bar associationtold plaintiff that his workers' compensa-tion claim was closed, thathis workers'compensation claim attorney had been rep-rimanded as consequence of plaintiff's orig-inal complaint and that he should seek aidof another attorney, affirmative act hadoccurred which was sufficient to put plain-tiff on notice as a reasonable man thatattorneyclient relationship with workers'compensation claim attoeney had terminat-ed.

Judgment affirmed.

Hofstetter, J., dissented and filedopinion.

1. Limitation of Actions e-55(3)For purposes of application of statute

of limitations in action for legal mal-practice, conduct which dissolves essential

(case No. 82-619).

694 Ohio 450 NORTH EASTERN. REPORTER, 2d SERIES

mutual confidence between attorney andclient signals termination of attorney-clientrelationship. R.C. § 2305.11(A).

2. Attorney and Client e-76(1)

Attorney-client relationship is consen-sual in nature and actions of either partycan affect its continuance.

3. Attorney and Client 4^-76(1)Initiating grievance proceedings before

local bar association evidences client's lossof confidence in his attorney such as toindicate termination of professional rela-tionship.

4. Judgment 0-185(2)On motion for summary judgment, tri-

al court must view all evidence before it inlight most favorable to party opposing mo-tion. Rules Civ.Proc., Rule 56(C).

5: Limitation of Actions 0=95(1)When attorney from local bar associa-

tion told workers' compensation claimantthat his claim was closed, that attorney whorepresented him in claim had been: repri-manded as consequence of claimant's com-plaint and that claimant should seek aid ofanother attorney, affirmative act had oe-eurred which was sufficient to put claimanton notice as a reasonable man that attor-ney-client relationship with workers' com-pensation claim attorney had termiuated.

Syllabus by the Court

1. For purposes of the application ofthe statute of limitations in an action forlegal• malpractice, conduct which dissolvesthe essential mutual confidence between at-torney and client signals the termination ofthe attorney-client relationship.

2. The attorney-client relationship isconsensual in nature and the actions of

MAHONEY, Presiding Judge.

Ap¢ellant, William L. Brown, challengesthe trial court's granting of appellee's, Rob-ert Johnstone's, motion for summary judg-ment on the ground that the statute oflimitations, R.C. 2305.11, barred appellant'slegal malpractice suit. We affirm.

Facts

Brown retained Johnstone in 1963 to rep-resent him on a claim before the Bureau ofWorkmen's Compensation. After Brown'sclaim was denied he asserts that Johnstonerepresented to him that some type of settle-ment would be forthcoming. This occurredsometime in 1965. Between 1965 and 1977Brown claims to have talked to Johnstoneon the average of once a month regardingan eventual settlement. Johnstone's affida-vit, filed in this case, indicates that he spokewith Brown regarding the workers' com-pensation claim in August or September1977. The affidavit also states that John-stone had no further contact with Brownafter 1977. Brown confirmed this fact dur-ing his deposition.

Sometime in 1977 Brown contacted theAkron Bar Association seeking action on hisworkers' compensation case. The bar asso-ciation contacted Johnstone on this matterwhich resulted in the contact with Brownnoted above. Subsequently to this, onMarch 7, 1978, the bar association conducteda hearing regarding Johnstone's handling ofBrown's case. As a consequence of thehearing the bar association filed a com-plaint with the Board of CommissionersbnGrievances and Discipline which eventuallyrecommended a public reprimand. The rep-rimand was based on Johnstone's failure tonotify Brown or his previous counsel thathe was, in effect, withdrawing from thecase. The Ohio Supreme Court confirmedthis recommendation on June 28, 197& Ak-ron Bar Assn. v. Johnstone (1978), 54 OhioSt.2d 485, 377 N.E.2d 790 [8 0.0.3d 4641.

either party can affect its continuance. Brown had contact with attorneys JoelAberth and John Barrett of the Akron BarAssociation during the pendency of the dis-

A. William Zavarello, Akron, for appel- ciplinary proceedings against Johnstone.lant. Following the Supreme Court's disposition

of the case, Barrett contacted Brown toDavid M. Best, Akron, for appellee. indicate that his workers' compensation

idge.

own, challengesappellee's, Rob-summary judg-the statute of

wred appellant'saffirm.

e in 1963 to rep--e the Bureau of

After Brown'sthat Johnstone

te type of settle-;. This occurredn 1965 and 1977ed to Johnstonenonth regardinghnstone's affida-zs that he spoke3 workers: com-t or Septembertates that John-act with Browned this fact dur-

n contacted theing action on his

The bar asso-on this matter

act with Browntly to this, on;iation conductedone's handling of;equence of them filed a com-:ommissionersonwhich eventuallyimand. The rep-stone's failure toous counsel thatawing from theCourt eonfirmedne 28; 1978. Ak-e (1978), 54 Ohio1 [8 0.0.8d 464].

h attorneys Joelif the Akron Bardency of the dis-ainst Johnstone.ourt's dispositionacted Brown tos' compensation

BROWN Y. JOHNSTONE Ohio 695Cite as 460 N.E.2d 693 (Ohio App. 1982)

case was closed and that as a result of the when the attorney-client relationship finallySupreme Court's decision Johnstone would terminates."be reprimanded. A letter attached to Bar-rett's affidavit, and addressed to William L.Brown, indicates ^that Barrett sent Brown acopy of the Supreme Court decision of June28, 1978. It also advised Brown to discussthe decision with another attorney. Bar-rett sent this letter on September 1, 1978.

After seeking names of other attorneys,Brown contacted his present counsel, A.William Zavarello, in December 1978. Af-ter reviewing Brown's case, Zavarello fileda malpractice action on November 19, 1979.Appellant contends that no one ever in-formed him that Johnstone no longer repre-sented him and, therefore, he consideredJohnstone to be his attorney until he hiredZavarello. The trial court found that theattorney-client relationship terminatedwhen Brown filed his grievance with theAkron Bar Association. Therefore, thecourt found Brown's action to be barred bythe one-year statute of limitations.

Assignments of Error

"1. Where an. attorney represents aclient for many years, the relationship ofattorney and client remains in force untilnotice of termination or other clear mani-festation of intent to terminate is communi-cated from one to the other.

"2: On motion for summary judgment,the inferences to be drawn from the under-lying facts contained in depositions, affida-vits and exhibits in support thereof, mustbe viewed in the light most favorable to theparty opposing the motion."

The statute of limitations, R.C. 2305:11(A) provides in part:

"An action.for libel, slander, assault, bat-tery, malicious prosecution, false imprison-ment, dr malpractice `'' shall be broughtwithin one year after the cause thereofaccrued ` * * . "

In the syllabus of Keaton Co. v. Kolby(1971), 27 Ohio St.2d 234, 271 N.E.2d 772 [560.0.2d 139], the Ohio Supreme Court stat-ed:

"A cause of action for malpracticeagainst an attorney accrues, at the latest,

Therefore, the question before us is, uponthe record, when did the attorney-client re-lationship between Johnstone and Brownterminate.

There is a dearth of case law definingwhat constitutes the termination of an at-torney-client relationship. In the Keatoncase the court analogized to medical mal-practice suits and stated that the justifica-tion for the termination rule applies equallyto the attorney-client relationship. Keaton,supra, at 237, 271 N.112d 772. The Keaton

court cited to Wyler v. 7'ripi (1971), 25 OhioSt.2d 164, 167-168, 267 N.E.2d 419 [540.0.2d 283] (a medieal malpraGtice case) inwhich the court concluded:

"The justification given for the termina-tion rule is that it strengthens the physi-cian-patient relationship. .` `` In short, itwas thought that the termination rule isconducive to that mutual confidence whichis essential to the physician-patient rela-tionship.

[1] Although these cases state no crite-ria for when termination occurs, it is evi-dent that aonduct which dissolves the essen-tial mutual confidence between attorneyand client signals the termination of theprofessional relationship.

[2, 3] Brown asserts that terminationcould not occur until Johnstone or an attor-ney from the bar association explicitly stat-ed that Johnstone no longer representedhim. However, as appellee aptly states, theattorney-client relationship is consensual.innature and the actions of either,party canaffect its continuance. Initiating grievanceproceedings before the local bar associationevidences a client's loss of confidence in hisattorney such as to indicate a terminationof the professional relationship. This con-clusion is supported by the fact that Brownhad no further contact with Johnstone gfterhe eontacted the bar association.

The case before us must clear anotherhurdle, however, since the case comes tothis court upon the granting of a motion for

696 Ohio 450 NORTH EASTERN REPORTER, 2d SERIES

summary judgment. Civ.R. 56(C) providesin pertinent part:

"`'' Summary judgment shall be ren-dered forthwith if the pleading, depositions,answers to interrogatories, written admis-sions, affidavits, transcripts of evidence inthe pending case, and written stipulationsof fact, if any, timely filed in the action,show that there is no genuine issue as toany material fact and that the moving par-ty is entitled to judgment as a matter oflaw. '•• A summary judgment shall notbe rendered unless it appears from suchevidence or stipulation and only therefrom,that reasonable minds can come to but oneconclusion and that conclusion is adverse tothe party against whom the motion forsummary judgment is made, such party be-ing entitled to have the evidence or stipula-tion construed most strongly in his favor.

. .,.

[4] Therefore, as appellant correctlystates, the trial court must view all theevidence before it in a light most favorableto the party opposing the summary judg-ment. Accepting Brown's statement' thathe considered Johnstone to be his attorneyeven after he contacted the bar association,we still conclude that the trial court proper-ly granted summary judgment in this case.

[5] It is uncontroverted that as of Sep-tember 1, 1978, as a result of Brown's con-tact, Barrett from the Akron Bar Associa-tion told Brown that his workers' compen-sation claim was closed, that he should seekthe aid of another attorney and that John-stone had been reprimanded as a conse-quence of Brown's original complaint. Acopy of the decision was sent with Barrett'sletter. At this point an affirmative act hadoccurred which was sufficient to put Brownon notice as a reasonable man that theattorney-client relationship ivith Johnstonehad terminated. We need not reach theissue of whether Brown's belief,between1965 and 1977 that a settlement would beforthcoming, was a reasonable belief and ifhe in fact, as a reasonable man; should haverelied on the defendant's representations.In conjunction with Brown's prior actions toinitiate proceedings with the bar associa-

tion, Barrett's letter dissipates any sem-blance of a professional relationship be-tween Johnstone and Brown. Therefore,we hold that there is no genuine issue as tothe termination of the attorney-client rela-tionship between Johnstone and Brownmore than one year prior to the filing ofBrown's malpractice suit, even when theevidence is construed in a light most favor-able to Brown.

Because appellant filed his complaintmore than one year after the attorney-client relationship terminated, his action isbarred by the statute of limitations, R.C.2305.11. Therefore, appellee was entitledto judgment as a matter of law and summa-ry judgment was properly granted.

Summary

We overrule both of appellant's assign-ments of error and affirm the judgment ofthe trial court.

Judgment affirmed.

HUNSICKER, J., concurs.

HOFSTETTER, Judge, dissenting.

I respectfully dissent from the majorityopinion.

As it concerns the plaintiff on defend-ant's motion for summary judgment, thefact situation, illogical as it may seem tosome trained legal minds, requires the ques-tionable facts to be considered as factualquestions. As the majority opinion states,"Appellant contends that no one ever in-formed him that Johnstone no longer repre-sented him and, therefore, he consideredJohnstone to be his attorney until he hiredZavarello. The trial court found that theattorneyclient relationship terminatedwhen Brown filed his grievance with theAkron Bar Association."

Although one may logically assume thatthe filing of a grievance with the bar asso-ciation against one's attorney would be tan-tamount to a termination of the attorney-client relationship, it is not neeessarily so.We have the plaintiff's own affidavit thatindicates otherwise, supported further bythe patience the plaintiff has exhibited with

:S

dissipates any sem-rnal relationship be-

Brown. Therefore,no genuine issue as to

attorney-client rela-finstone and Brownprior to the filing ofsuit, even when thein a light most favor-

filed his complaintafter the attorney-

minated, his action isz of limitations; R.C.appellee was entitledter of law and summa-perly granted.

mary

of appellant's assign-.ffirm the judgment of

d.

concurs.

adge, dissenting.ent from the majority

te plaintiff on defend-immary judgment, theical as it may seem toiinds, requires the ques-^ considered as factualmajority opinion states,s that no one ever in-anstone no longer repre-herefore, he consideredattorney until he hired

al court found that theslationship terminatedhis grievance with the

tion."ly logically assume thatvance with the bar asso-s attorney would be tan-iination of the attorney-it is not necessarily so.

tiff's own affidavit thate, supported further byaintiff has exhibited with

CUBBON Y. LOCKERCite as 450 N.E.2d 697 (Ohio App. 1982)

the defendant's dilatory tactics for fourteenyears. We also have the related matter ofthe Supreme Court's support of the Board

Ohio 697

5 Ohio App.3d 200

CUBBON, Appellant,

of Commissioners on Grievances and Disci- V.pline's uncontroverted finding in Akron BarAssn. v. Johnstone (1978), 54 Ohio St.2d 485,486, 377 N.E.2d 790 [8 0.0.3d 464], "thatrespondent, at that time, failed to notifyBrown or his previous counsel that he was,in effect, withdrawing from the case •'."

One who is unsuspecting and untrained inthe law, such as plaintiff Brown, could wellbelieve that the function of his grievancecomplaint would simply be that of enlistingthe bar association to urge Johnstone toexpedite the matters that he (Brown) wasunable on his own to get Johnstone to do,and that that would be the effect of apublic reprimand. After all, as Brown not-ed in his affidavit, he still considered John-stone as "our family lawyer."

The majority, in its opinion, correctlystated that the trial court must review allthe evidence before it in a light most favor-able to the party opposing the summaryjudgment. Then they accepted Brown's af-fidavit that he considered Johnstone to behis attorney even after he contacted the barassociation, but, incredulously, in my opin-ion, concluded that the trial court properlygranted summary judgment.

Concerning all the aspects of this case,and, most importantly, my acceptance, aswell as that of the majority, of Brown'sstatement that he still considered Johnstoneas his attorney after he contacted the barassociation, it appears to me that the endsof justice are defeated by the granting ofsummary judgment for the defendant. Theplaintiff should have his day in court. AGcordingly, I would reverse the trial court.

HUNSICKER, J., retired, of the NinthAppellate District, was assigned to activeduty under authority of Section 6(C), Arti-cle IV, Constitution.

HOFSTETTER, J., of the Eleventh Ap-pellate District, sitting by assignment in theNinth Appellate District.

LOCKER, Appellee.

Court of Appeals of Ohio,Lucas County.

March 5, 1982,

Landlord appealed from a judgmententered by the Toledo Municipal Court,granting judgment for landlord and award-ing landlord $20 as damages. The Court ofAppeals, Lucas County;held that: (1) ser-vice of three-day notice to vacate rentalpremises on tenant was an election of reme-dies by landlord for nonpayment of rentand operated as noticeto the tenant thatsaid tenancy was terminated, and (2) trialcourt did not err in awarding to landlorddamages representing rent due before timeof action, but not for rent not due whentenant was ousted, setoff against damagedeposit which was not returned to the ten-ant.

1. Landlord and Tenant e-103(1)

A landlord of residential premises maydeclare forfeiture of a lease agreement andevict the tenant if the tenant breaches thewritten rental agreement. R.C. §§ 1923.01et seq., 5321.01 et seq.

2. Landlord and Tenant *-99(1)

Service of three-day.notice to vacaterental premises upon tenant pursuant toforcible entry and detainer statute was anelection of remedies by landlord for nonpay-ment of rent and operated, as notice totenant that tenancg.was terminated.$.C.§ 1928.01 et seq.

3. Landlord and Tenant *-198

Upon landlord's election to terminatelease agreement because of tenant's failure

J

5-71 Nrcz 3(•2.^.y.5

^i•

tssnl J

JRDERED by the caet that the appy

r dismissal be, and hereby is, grantedRDINGLY, IT IS FURTHER 00by the court that tbis cause be, mddimieaed.

«-- - 6YV LW1W4O111/P! L1VlY.uuiYtl, aa weu al1 eluer-

_LIBURSS et al., Appellants ly citizens, as it related to iasuance of bondsand Croes-Appellees, for construction of senior citizen housing,

v. which caused clienTs to be indieted, were. . .:. . . .aufficient to state cause of action for legal

PBCS, SHAFFER & WIILIAMS et al., malpractice.Appellees and Crosass-AppellantO

No• 68809. . ,^• Negligence e-136(14)

Court o£Appeals of Ohio, Whether injury is foreseeable is factualissue.

Eighth Diatrict, Cuyahoga.County.Decided Jan E9, 1996. 4. Pretrial Procedure,-679

As factual isaue, foreseeability of injuryis neceasan7y more appropriate)y ted us-

Clients brought legal malpraelace action ing motion for summary judgment rathersgaW attorneys, alleging that attorneys' than motion to dismise, since allegations inf>uluia to , adviae them of oonflict between complaint must be taken as true and reason-

^'bowl law and federal sobady payment able inferencea therefrom drawn in lightiemq-pphich led to their indictment, conati- most favorable to 'plaintifis. Rules Civ.Proc.,1xL4^nalp;actice. The Court of Common Rules iqrB)(g) 56„ ,

P1epa;dGnied attorneys' motion for summary^ent, and diamissed aetion. Cllenta ap- 5 Judgment t-186

^^^TII^ ^^pp^^• The Trial court ruled on motion for summary,ppeals, Jamea D. Sweeney, J., held jndgment prior to motion to diamisa and o, s

^ij clients' allegations were sufficient to had jurisdiction to rule ontmotion for sum-^e of action for legal malpractice; mary judgment. Rules CIv.Proc., Rulescoint had juriadiction to rale on 12($)(6), 56.judgment motion; and (3) fact is--w}ien: limitations period began to & Judgment 6-181(7)IM$ummm7'Ndgment Fact issue as to when lmutationa eriodped m part, reveraed in part, and began to run precluded aummaty judgment

in legal malpractice action. Rulea Civ.Proc.,Rule 5.6.

d-;Clipnt ^109!at;fihgy attorneya falled to ad-coutlicy betcween state law that

0,h4ueing finance agency bondof . housing only for

of:age or older and federalVLbqn Development (HUD)all.gwed. Section 8 rent subsi-

d.t5cretionaiy appeal to theOhio was not allowed in

William K Redmond, Chagrin Falls, forappellants and cross-appellees.

Roetzel & Andress, :itonald B. Lee andLaura M. Faust, Canton, for appellants andcroaa-appelleea Peck, Shaffer & Williams andMark D. Blocher.

Gallagher, Sharp, Fulton, & Norman andJamea F. Sveeney, Cleveland; for appelleesand croea-appellants Gold, Rtitatorl,Schwartz & Gibbons and Robert Ranallo.

Mansour, Gavin, Gerlack & Manos. Co:,LFA, Thomas B. Braâiar and Patrick M.

(1996), 76 Ohlo St3d 1406, 666 N.E.2d 566.

.,........,..o.^., ___. ____Forbes & Teamor.

JAMES D. SWEENEY, Judge.

Plaintiffa-appeRants and ei•oss-appelleesWalter A. Burks, Burl® Development Corpo-ration, Beeldve Limited Partnerahip andDoan Lfroited Parfuership appeal from thetrial cotst granting a motion to dismiss onthe firat amended complaint purauant toCiv.R. 12ZBX6) in favor of the following de-fendante-appellees and croaw-appellants: (1)the law firm of Peck, Shaffer & Williams("Pec)P); (2) attorney Mark D. Bloeher("Bkreher"), who wae employed at the time ofthe allegedl.y tortfoua aefs by Peck; (3) thelaw firm of Gold, Eiotatbii, 8chwarta & Gl-bons Co., L.PA. ("Gold"); (4) attorney Rob-ert Ranallo ("Ranallo"), who was employed atthe time of the aIlegedly tortious acts byGold; and (6) the law fam of Rogers, Hor-ton, Forbes & Teamor ("Rogers-). Pjain-tiffa' complaint for legal malpractice, whichalleges that the defeudants' negHgence prwd-mately caused plaint(fPs' subsequent indfet-ment, is admittod by the parf3es to be a caseof fuat Wnpzeas3on in Ohfo. The cross-appeals argue that the trial court erred indenying summary judgment on the issue ofwhether plaintiffa' cauee of aeHon was barredby the applicable statute of limitations forlegai malpracFice. For the reasone adducedbelow, we affirm in part and reverse in part,and remand the cauae for farther praeeed-inga

A review of the record pn appeal indieatesthat the relationship between the plaintiffsand defendants origmated from the plaintiffs'attempt in the early to mid-1986a to pm'-chase the Doan and Beehive publie schoolbmldinga in the city of Oleveland and rehabil-itate and eonvert those buHdinga for use aseentor citizen housing, using 8ection 8 rentsubatdypaymente through the United StatesDepartment of Hou®ng and Urban Develop-ment ("HIID") to ensure repayment of twn-struction bonds iesued by the Ohio HousingFinance Agency ('OHFA"). Plaintiffs usedthe legal servicw of the defendants to plan,

1. Pleintiff-appollant Beehive - Partmrship wasconvicted of forgep, uttering a.nd tampedng withrecords in eoonection with the housing reaova-

through OHFA.

In October 1983, plaintiffs applied tuOHFA for the financing bonds. In February1984, following a public hearing, OHFA ap-proved the issuance of the requested bonds.

In December 1984, plaintiffa, by their owndeposition testimony, became aware of anage-related conftict between state and federalrestrictions relating to the issuance of OHFAbonds and the class of eligible recipienta ofSection 8 paymenta At the time, Ohio lawresttieted OHFA bond proceeds to the fi_nancing of housing only for persons sixty-twoyeara of age or older, while HUD regulationsallowed 8ection 8 rent subsidy payment re-cipients to be elderly citizens, which includeddisabled 'and handicapped individuals.Therefore, the 5nancing scheme using See.tion 8 payments was in direct conflict wit,hOhio law.

OHFA issued the original bond in Febru-ary 1985 in the amount of $2,325,000. Asupplemental bond bssuance was made byOHFA in June 1986 in the amount of $215,-000.

On May 14, 1991, plaintiffs were indictedby the Cuyahoga County Grand Jury for, asrelated to this appeal, the offenses of grandtheft (RC. 2918.02) and seeuring writmgs bydeception (R.C. 2913.48) surrounding the is-suance of the bonds. As alleged in the faetamended complaint, the age conflict was atthe heart of these offenaea because theOHFA bond proceeds were used beyond thescope of the authority given by the state ofOhio. On November 21, 1991, the plainfi8'ewere acquitted of these two offenees wltichrelated to the age contlict.t

JyOn May 12, 1992, plaint5ffa fded the origt

nal complaint herein againat the detendanr&alleging legal malpract3ce in connection witbtheir advice, or laok thereof, on the a8g-conflict issue as it relates to the bond iseo-ance which aRegedly caused the otient to baindietetL All the defendants named prell-,ously filed answers to this complain4 a%asr^'

tion project, but this oonviction wasthe ago-conflict issue.

^

1g88, plaintiffs applied tofinancing bonds. In February

g a public hearing, OHFA ap-suance of the requested bonds.

er 1984, plaintiffs, by their ownstimony, became aware of anonflict between state and federalelating to the issuance of OHFAie class of eligible recipients ofyments. At the time, Ohfo lawHFA bond proceeds to the fi-ousing only for persons aixty-twoor older, while FI[711 regulations

tion 8 rent subsidy payment re-Pe elderly citizens, which includedand handicapped individualathe fmancing scheme using 3eo-nents was in d'aeat conflict with

sued the original bond in Febrn-n the amount of $2,32.5,000. A;a1 bond issuance was made byJune 1986 in the amount of $216,-

. 14, 1991, pla9ntSffs were indicted

yahoga County Grand Jury for as

this appeal, the offenses of grand2913.02) and eeenring wt'itinp by

(R.O. 2918.43) aarrounding the ts-

the bon(b. As alleged in the 6tstcomplaint, the age confliet was at

t of these offense because tlie>nd proceeds were used beyond the

the authority given by the state d1991, the p]aiaomber 21vN ,eon

wb^iuitted of these two offenses

) the age conflict.t

Lay 12,1992, Plaintiffa filed the onPdanta:

Aaint herein against the defen

legal malpractice in connecHon "^vice, or lack thereof, on ^

d ^aue as it relates to the bonisich allegedly caused the client to

d. A11 the defendants name.ed answers to t}ris coxnpwA

roject, but this cunviction wes:-conflict issue.

waJ ^reu uy we JUf4u1p vl LIIIUI.M114uf.J.

On January 20, 1998, the parties stipulatedin the original case management order thatdiscovery would proceed only on issues rele-vant to the applieabflity of the statute ofIimitationa, and that discovery on other is-sues would proceed, if at all, after the trialcourt rules on the subsequent motions forsummary judgment on the statnte of limita-#ibns defense.

Defendants Peek and Bloeher filed a jointtiiotion for sumnmry judgment on the statutepf'limitations defense on August 16, 1993.dnAugust 18, 1998, defendant Rogers fi7edtty motion for summary judgment on theetatute of limitations defense. On August 20,JJ9% defendants Gold and Ranallo 57ed a

amJanuary 8,1994, a brlef in oppositiondefendants' motions for aumm ra yt on the statate of limitations de-

January 6, 1994, defendants Goldo filed a motion for leave to file aimsupport of summary judgment.,10„1994, defendants Peck anda motion for leave to fi1e a reply

Rpo?t of stunmary judgment. Alsq30,1994,.PlaintiHs filed a brief in

defendaat,s' lesve to fi1e replya motion to lift the sta on discov-_ y

January 11,1994, defendant Rogersn•for leave to conduct additionai

id motion for sununary judgment on theiike Af ]hynitations defense.

November 1, 1993, pmsuant to a jointon by the parties, the trial court modi-tlieoziglnal ease management order to

ow additional time for discovery to respondtLe `defendants' motions for summaty

on the statute of limitatlons de-

^ereattet', the Parties increased their mo-^pi'aCtice in the trial oourt. Plaintiffa

dito fi1e' a reply brief in suppmt'jtidgment• On January 14,1994,.eeknand B1Mhnr fSin,i n h.Icf in

4 plldntiffa' motion to litt the stay^On January 18, 1994, defen-nd:lZa^o filed a brief in oppo-tiffe' motion to lift the atay on

uy u,c W,YI LVUtIry 44 wlly'l, wlle p(iLnwlb

were given leave to file an amended com-plaint as to the legal malpractice counts only.

On June 26, 1994, defendants Peck andBlocher and defendant Rogers filed a motionto dismiss.

_ILOn Augast 15, 1994, plaintiffs filed thefirst amended complaint. This amendedpleading was eighty-one pages in length,contained three separate counts agaimt thetl'ree separate groups of attorneys, andcontained a total of two hundred sizteennumbered paragraphs. On August 29, 1994,prior to answering the amended complaint,defendants Gold and Ranallo filed a motionto dismiss the amended complaint. Plain-tiffa 5led a brief in oppositi.on to this .Gold/RanaIlo motion to dismiss on Septem-ber 8, 1994.

On September 12, 1994, defendants Peckand Blocher filed a motion to apply theirpreviously fIIed motion to dismiselfor sum-mary judgment to the amended complaint.On September 13, 1994, defendant RogersSled its motion to dismissithe amended com-plaint or, in the alternative, for summaryjudgment on the statute of limitations issue.Plaintiffs filed a bstef in opposition to thePecWBlocher motion on September 22, 1994.

On November 22, 1994, the trial court is-sued a series of orders, providing in perti-nent part the following: (1) all dispoaitivemotions of the defendants were eonsideredreHled against the amended complaint, and(2) the motions to dismisa filed in June 1994by defendant Rogers and defendantsPeck/Blocher were moot.

On March 27, 1995, plaintiM fded the fol-lowing joint motion wU respect to summaryjudgment (1) a motion for notice of intent toconvert motions to dismisa to motions foratunmar9 judgment, and (2) a motion to con-tinue the court's ruling to permit additionaldiscovery and the filing of additional evidencepursaant to Civ.R. 56(F). Also on March 27,1995, the trial court journalized the finalorder appealed from, wherein the court ad-dressed the cla9ma ra9sed in the amendedcomplaint and denied defendants' summaryjudgment on the iesue of the statute of lirni-tations, concluding that the action was tunely

3

di.smiss pursuant to l,'iv.lt. 1'Lkss)loy. vnMarch 28, 1995, the trisl eourt denied asmoot plaintiffa' motion for notice/motion tocontinue ruling filed on March 27,1995.

Plaintiffa have timely appealed, presentingthree asaignments of error. Defendantshave cross-appealed, arguing in the a[terna-tive that (1) the eourt lacked jurisdiction torule on the summary judgment motions oncedismissal had been granted, or (2) that sum-mary judgment on the issae of the stafute oflimitations should have been granted.

The plaintiffa' fhst assignment of errorprovides:

`°rhe lower court erred to the prejudice ofplainWs-appellants 'by diamissing theamended complaint purauant to Civ.R,12(B)(6)."

[1] The amended complaint aIlegas acanse of aclion for legal malpractice. Theelements for such a cause of action relatingto eivt7 matters are the following: "(1) anattorney-client relationship giping rise to aduty, (2) a breach of that dutyLILand (3)damages prox3matety caused by the breach."Kmh.n u Kinney (19g9), 43 Obio St.3d 103,105, 538 N.E2d 1O8, 1060, citing Mclnnis.uHyatt Legal Cdiniea (1984), 10 Obio St.3d112,10 OBR 487,461 N.E2d 1295.

The standard of review for a diemissa)pursuant to Civ.R.12(BH(l) was recently stat-ed by this court in Thompson v. Cent. Oha.oCelbular, lne. (1994), 93 Obio App.3d 530,538,639 N32d 462, 467:

"A motion to dismias for failure to state aola'vn upon which relief can be granted isprocedural and tests the saff'iciency of theemp)aint. State ex mL Hanson u Gue»rsey Cty. Bd of Com+nra. (1992), 65 OhioStBd 545; 606 N.E2d 378. It is well settledthat wehen a party filea a motion to dismissfor faihum to state a elairn, aIl the factuat al-[egations of the complaint must be taken astrue and all reasonable inferenm must bedrawn in favor of the non-moving pazt,y.'Byrd u Faber (1991), 57 Obio St.Sd 56, 60,665 N.E.2d 584, 589, citing MitcJeel2 u Laurson Milk Co. (1988), 40 Ohio St.3d 190, 192,532 N.E2d 763, 756. However, wh0e thefaetua[ allegations of the complaint are taken

clusions of a complaint are not consideredadmitted, * * * and are not sufheient towithstand a motion to dismias. ***' (Ci-tations omitted.) State ex reL Hickma.n vCapota (1989), 45 Ohio St.3d 324, 544 N.E.2d639.

"In resolving a Civ.R. 12(B)(6) motion,courts are confined to the averments setforth in the complaint and cannot consideroutside evidentiary materials unless the mo-tion is converted, with appropriate notice,into one for summary judgment under Civ.R.56. State ex reL Barnn v. Fuerst (1990), 55Ohio St.Sd 94, 563 N.E2d 719. In order fora court to grant a motion to dismiss forfai7ure to state a claim, it must appear 'be.yond doubt td4t the plaintiff can prove no setof faets in support of his claim which wouldentitle him to relief.' OBrien u Unio. Com-munity Tenants Union, Inc (1975), 42 OhioSt2d 242, 246, 71 0.0.24 223, 224, 327N.E.2d 753, 756."

[2] The trial court, In its judgment entry,dismissed the plaintiffa' cause of action forlegal malpractice coneluding that, as a matterof law, no duty emsted under the faeFs pre-sented because the re.asonable foreseeabgityof iqjury, viz,, the return of a trae bOl by thegrand jury, was laeldng. Absent a duty,which depends on the foreseeability of theinjury and the knowledge of the defendantsat the tVne of their aetlons forming the basisfor the breach of the duty to their el9ent,tLere could be no claim for reflef under anegligence theory. Mere7jee u Okio Welding

Prodncta, Inc. (1984), 15 Ohio St.3d 75, 16OBR 179,472 N.E2d 707. We also note thatthe court did not convert the motion to dis-mise to one for summary judgment.

-Li3, 4] Whether the iqjmy waa foeesee-,able is a factual iseue. JaJj'ers a 016'*<(1989), 43 Ohio St3d 140, 539 N.E.Ed 614Y.As a faetuat issue, foreseeab7ity of iR1ur1"Wnecessarily more approprlately test2d ns'nS *^

'motion for summary judgment rather than^

motion to dismiss sinoe the aIlegatioas 1ncomplaint must be taken as true andreasonable inferences therefrom drawntight most favorable to the Plaiatiffs•

SERIES

:te cannot be said about un-lusions. `Unsupported con-nmplaint are not considered

and are not sufficient to

ion to dismiss. * * *' (Ci-) State ex reL Hickman v.

,5 Ohio St.3d 324, 544 N.E.2d

a Civ.R. 12(B)(6) motion,tfined to the averments setImplaint and cannot consideriary materials unless the mo-ted, with appropriate notice,mmary judgment under Civ.R.

.el, Saran v. Fuerst (1990), 55563 N.E.2d 713. In order for•ant a motion to dismiss fore a claim, it must appear 'be-at the plaintiff can prove no set)port of his claim which would

relief.' O'Brien v. Univ. Com-

its Union, Inc. (1975), 42 Ohio

45, 71 0.0.2d 223, 224, 327

55."

ial court, in its judgment entry,plai7ttiffs' cause of action for

tice concluding that, as a mattertty existed under the facts pre-se the reasonable foreseeability., the return of a true bill by thewas lacking. Absent a duty,ds on the foreseeability of thehe knowledge of the defendants)f their actions forming the basisteh of the duty to their client,be no claim for relief under a

heory. Menifee v. Ohio Weidin9

ne. (1984), 15 Ohio St.3d 75, 15f2 N.E.2d 707. We also note thatid not convert the motion to dis-for summary judgment.

Vltether the injury was foresee-factual issue. Jeffers v. Olex°

3d 140, 539 N.E2d 614. ;Ohio St .d issue, foreseeability of injury t% ;'more appropriately tested using a,summary judgment rather than a.

hsmiss since the allegations " tiemust be taken as true and ttie1inferences therefrom drawn in

favorable to the plaintiffs.

BURKS v. PECIC, SHAFFER & WILLIAMS Ohio 1027Cite as 671 N.E.2d 1023 (Ohio App. 8 Dist. 1996)

Having reviewed the voluminous amended practice had expired.complaint, we conclude that plaintiffs' wise without merit.amended complaint alleged sufficient facts tostate a cause of action for legal malpractice.Accordingly, the trial court erred in grantingthe motion to dismiss.

The fust assignment of error by plaintiffsis sustained.

The second and third assignments of errorpresented by the plaintiffs are renderedmoot due to our ruling on the first assign-ment of error.2 App.R. 12(A)(1)(c).

We now turn our attention to the cross-assignments of the defendants. These cross-assignments of error fall into two generaltypes.

5] Cross-appellants Peck, Bloeher andgers argue fiist that the trial court lacked

p,r$ytcWon to rnte on tlle motions tor sunt-

,gary judgment after the trial court grantede monons to aLqmtss pursuant to (;iv lt, . .B)(6), These cross-assignments relativeti^ial'court jurisdiction over competing dis-sitive motions are without merit. While

record demonstrates that the trial eourtd on the dispositive motions in the same

e.nt entry apd opinion, that final ordery coricluded that the motions for sum-judgment on the statute of limitations

e were denied one paragraph prior to the'.s ruling on the motions to dismiss. Ac-ngly, the trial court maintained jurisdic-to rule on the motions for summarygnt.

Next, cross-appellants Peck, Blocher,41Itanalloargue that the trial court

not,;granting the motions for sum-gment on the issu2j&f whether theatatute of lhnitations for legal mal-^::

i,

zs follows: -

econ and third assignments of error re-46 rhsmisselof the amended cumplairit

lower court violated appellants' rights toand to due process under Article I,

`16 uf the Ohio Constitution by: affirma-' enting appellants from engaging in

.on the merits aod. from calling wit-y,recasting the allegations of the

aeomplaint; by creatin sua s onte a, g, p ,w^ianing the ti hi h ha bac on w c s no asis

and which was neither pled nor6lotion as a defense in law; and by

This argument is like-

In addressing this argument we note thefollowing langaage by Judge Krupansky ascontained in Wilkerson v. Eatar, Corp. (Mar.10y 1994), Cuyahoga App. No. 65812, unre-ported, 1994 WL 77719:

"Civ.R. 56(C) specifically provides that be-fore summary judgment may be.granted, thecourt must determine that (1) no genuineissue, as to any material fact remains to belitigated; (2) the moving party is entitled tojudgment as a matter of law; and (3) itappears from the 'evidence that reasonableminds can come to only one conclusion, andviewing such evidence most strongly in favorof the non-movant, the conclusion is adverseto that party. Osborne v. Lyles (1992), 63Ohio St.3d 326, 587 N.E.2d 825.

"A motion for summary judgment forcesthe non-moving party to produce evidence onissues for which that party bears the burdenof production at trial. Wing v. Anchor Me-dia; Ltd. of Texas (1991), 59 Ohio St.3d 108,570 N.E.2d 1095 (syllabus). The evidentiarymaterials must be timely $iled. Civ.R. 56(C).The non-movant must also present specificfacts and may not rely merely upon thepleadings or upon unsupported allegations.Shaw v. J. Pollock & Co. (1992), 82 OhioApp.3d 656, 612 N.E.2d 1295." See, also,Celotex Corp. v. Catrett (1986), 477 U.S. 317,322-323, 106 S.Ct. 2548, 2552-2553, 91L.Ed.2d 265, 273-274.

Additionally, "the dispute must be 'materi-al' in that the facts involved have the poten-tial to affect the outcome of the lawsuit.Anderson v. Liberty Lobby, Ine. (1986), 477U.S. 242, 248, 106 S.Ct. 2505, 2510, 91L.Ed.2d 202, 211. The issue to be triedmustalso be `genuine,' allowing reasonable ntindsto return a verdict for the non-moving party.

dismissing the amended complaint on the barthus created without notice or the opportunity tobe heard."

"fhe lower court erred to the prejudice ofappellants by attempting to convert the motionsto dismiss, filed pursuant to Civ.R 12(BX6), intomotions for summary judgment when it was notpermissible and by doing so without notice andwithout affording appellants the opportunity tofile all materials made pertinent by Civ.R 56 andby deciding material issues of fact in derogationof the only evidence in the record."

.,.., Y, , u.0. at aaa-zDZ, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211-214." Manofsky v.Goodyear Tire & Rubber Co. (1990), 69 OhioApp.3d 663, 666, 591 N.E2d 752, 754.

In Zimmie v. Calfee, Halter & Grisurold(1989), 43 Ohio St.3d 54, 538 N.E.2d 398,syllabus, the Supreme Court stated the fol-lowing:

"Under R.C. 2305.11(A), an action for legalmalpractice accrues and the statute of limita-tions begins to run when there is a cogniza-ble event whereby the client discovers orshould have discovered that his injury wasrelated to his attorney's act or non-act andthe client is put on notice of a need to pursuehis possible remedies against the attoruey orwhen the attorney-elient relationship for thatparticular transaction or undertaidng termi-nates, whichever occurs later. (Omni-Food& Fashion, Inc. v. Smith [1988], 38 OhioSt.3d 385, 528 N.E.2d 941, applied.)" See,also, Burgess v. Eli Lilly & Co. (1993), 66Ohio St.3d 59, 609 N.E.2d 140 (lmowledge ofan injury and the cause of the injury isrequired before a cause of action accrues andthe statute of limitations begins to run).

_Wn the present case, there was an abun-dance of documentary evidence by way ofaffidavits, deposition testimony and other-wise (newspaper articles, police search rec-ords, etc.) offered by the oppasing parties onthe issue as to when Burks knew or shouldhave known that his iqjury (the May 14,1991indietment) was related to his attorneys' actor non-act. Certainly, one cannot have

109 Ohio App.3d 9

„LsCSIK, Appellee,

v.

BLUE CROSS & BLUE SHIELDOF OHIO, Appellant,

No. 69125.

Court of Appeals of Ohio,Eighth District, Cuyahoga County.

Decided Jan. 29, 1996.

Insured . sought declaration that hishealth insurer, who had paid insured's medi-cal biDs arising from accident with uninsuredmotorist, liad no subrogation right againstinsured's recovery of uninsured motorist(IJM) benefits from his automobile insurer.The Cuyahoga County Common Pleas Courtgranted summary judgment to insured, andhealth insurer appealed. The Court of Ap-peals, Nahra, P.J., held that references inhealth policy's subrogation provision to "com-pensation" recovered from "responsible thirdparty" were ambiguons, precluding health in-surer's subrogation claim.

Affirmed.

knowledge of an injury prior to the injury 1101. Insurance a606(4)itselE Accordingly we concur in the trial,

Subrogation provision of health insur-t i thu d ti th t tht' aco erm na onr s e a e ere w s agenuine issue of fact whether the original ance poliey requiring insured to reimbursecomplaint filed on May 12, 1992 was filed insurer for "compensation" recovered from

°responsible third party was ambiguous,within the one-year statute of limitations for'slegal malpractice. precluding insurer, who had paid insured

The judgment is affirmed in part and re- medical bills arising from accident with unin-ationm asserti n subrot frd t i ggsure mo or os

iversed n part, and the cause is remanded for pght against insured's recovery on uninsuredh dfurt er procee mga' motorist (UM) chiim against automobile in-

Judgment accordingly. surer.

SPELLACY, CJ., and PATTON, J., 2. Insurance e-606(4)concur.

,., Health insurer that has paid medicw righlSxFrxuxaEwsrsn, benefits to its insured is subrogated to

,9"s'h ¢•2'j^

-cZj^k

underlying claim upon which the Tennesseejudgment was predicated. We agree. Thecomplaint herein alleges that defendantsGene and Shirley Brockmeyer executed anagreement as guarantors of a loan to de-fendant Gene R. Brockmeyer & Company, acopy of the agreement being attached tothe complaint. The complaint furtheralleges that plaintiff obtained the Tennes-see judgment upon the loan and that nopart of the judgment has been pai(L It isapparent from the complaint that plaintiffseeks to recover from defendants the un-paid balance upon the loan, which allegedlyhad been reduced to judgment in Tennes-see. However, for the reasons we haveetated above, plaintiff. is not entitled tofound its claim upon the Tennessee judg-ment since defendants had no opportunityin Tennessee to make any defense that theymay have with respect to the alleged bal-ance due upon the loan.

Under such circumstances, we see no val-id reason for denying plaintiff e motion toamend its complaint to allege the underly-ing obligation upon which the Tennesseejudgment was founded, affording to de-fendants a full opportunity to rpake anydefense that they may have. In fact, thetrial court in the judgment entry failed todirectly address the issue raised by the mo-tion to amend but, instead, merely renderedfinal judgment for defendants necessitatingan appeal. Civ.R. 15(A) states with respectto amendment of pleadings, " • ' ' [])eaveof court shall be freely given when justiceso requires." In opposition, defendantsmerely point outthe long lapse of timebetween the filing of plaintiff's complaintand the judgtnent of the trial court Whiledefendants contend they are prejudiced bythe filing of an amended complaint afterthe lapse of such a long period of time, theyset forth nothing but the lapse of time tojustify their'coutention. A large part ofthe delay was caused by an earlier motionto dismiss filed by defendants upon groundsof failure to join an indispensable party,which was erroneously sustained by the tri-al court resulting in a reversal. upon appealto this court and remand for further pro-ceedings. Unfortunately, the jurisdictional

issue was not determined at that time.However, the pleadings are clear as to de-fendants Gene and Shirley Brockmeyer thatplaintiff seeks recovery against them asguarantors of the loan. They have nowbeen granted the relief they sought-anopportunity to defend upon the merits as towhether there is anything due plaintiffupon the underlying loan of which they areguarantors. How they can be prejudicedby being afforded thisopportunity is notreadily apparent. Accordingly, the secondassignment of error is well taken.

For the foregoing reasons, the first as.signment of error is overruled, and thesecond assignment of error is sustainecl;and the judgment of the Franklin CountyCourt of Common Pleas is modified so as togrant summary judgment to defendantsupon the issue of enforceability of the Ten-nessee judgnient but to allow plaintiff leaveto amend its complaint so as to allege aclaim predicated upon the underlying loanagreement; and this cause is remanded tothat court for implementation of the modi-fied judgment and for further proceedingsin accordance with law consistent with thisdecision. The costs of this action are as-sessed equally against plaintiff and defend-ants.

Judgment accordingly.

STRAUSBAUGH and McCORMAC, JJ.,concur.

w^ n'YXUMBExsnSifMi

4 Ohlo App 3d 128

HIBBETT, APpellant,

v.

CITY OF CINCINNATI et al.; Schwartzet al, Appellees.

Court of Appeals of Ohio,Hamilton County.

April 28; 1982.

Suit was instituted against defendantattorneys and others for alleged negligence,

tined at that time.s are clear as to de-^ley Brockmeyer thatry against them as.n. They, have nowief they sought-anupon the merits as toything due plaintiffgin of which they arey can be prejudicedis opportunity is notwrdingly, the secondwell taken.

reasons, the first as-; overruled, and thef error is suatained;the Franklin County

as is modified so as toment to defendants

orceability of the Ten-to allow plaintiff leaveunt so as to allege an the underlying loancause is remanded to

nentation of the modi-or further proceedingsEw consistent with thisof this action are as-

3t plaintiff and defend-

V!Y•

and McCORMAC, JJ.,

tlOMBENMIEM

App 3d 128

T, Appellant,

V.

NATI et aL; Schwartz

Appellees.

ippeals of Ohio,ton County.

I 28, 1982,

tuted against defendantrs for alleged negligence,

u,caon oa wn^act, ana xrauo. The trial

court, Hamilton County, granted summaryjudgment for defendant attorneys, andplaintiff appealed. The Court of Appeals,Black, J., held that: (1) attorney-olient rela-tionship terminated, at the latest, for pur-poses of accrual of cause of action, whenthe court of common pleas journalized anentry permitting defendants to withdraw asattorneys for plaintiff and substituting an-other individual as counsel; (2) one-yearstatute of limitations for malpractice ap-plied when essential ground or object ofcause of action was malpractice; and (3) no"saviugs" statute otherwise operated to tollstatutory period.

Affirmed.

1. Limitation of Actions *^55(3)Cause of action for malpractice against

an attoraey acerues, at the latest, for pur-pose of oue-year period of limitations whenthe attorney-client relationship terminates.R.C. § 2305.11.

2. Limitation of Actions 0=55(3)Attorneyr-client relationship terminat-

ed, at the latest, when the court of common<pleas journalized an entry permitting de-fendants -to withdraw as attorneys forplaintiff and substituting another individu-al as counsel, and thus alleged cause of

dure, but from the essential ground or ob-ject of the wmplaint.

5. Fraud (3-1

"Fraud" may be broad)y defined as theconcealment or misrepresentation of a factor a set of facts material to the transactionbetween the parties, the, falsity of which isknown to the defendant, or if not aetpallyknown, should have been known, by whichfalsity the defendant intends to mislead theplaintiff or reliance on whicli the plaintiffacts to his detriment.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

6. Attorney and.Client ea114Claimed .•nongs in form of a promise

that a client will receive probation in returnfor entering a plea of guilty and adviceabout pleading guilty without testing con-stitutionality of a search and seizure lackthe cracial misrepresentation element of aclaim of fraud.

7. Limitation of Actions e=+95(1)Legal malpractice is equivalent to

- medical malpractice in every respect, in-cluding the rejection of the"diseovery" the-ory of accrual for limitation purposes.Rules Civ.Proc., Rules 59(B), 56(C); R.C.§ 2305.11.

action for malpractice accrued no later than 8. Limitation of Actions o>95(1)

that date. R.C. § 2805.11. Cause of action against defendant ab3. Attorney and Client ®=129(1) torneys for legal malpractice accrued for

Essential ground or object af plaintiff's limitation purposes at time attomey-alientcomphunt against: two attorneys who origi- E'elationship terminated, not at time effects:naily defended her against criminal chargea .of alleged malpractice became manifest.inuesti Rule Cin P R ll l 4 Bo s v.was roa, uega es 5 ( ), 56(C); R.C.malpractice, thus in-Y9king:a one-year period of limitations for 2SO5.11.

luse, irre8pective of allegations of com-.llaint intending to otherwise classify claimst1d:.Ehus-invoke longer periods of limitation

4or:;-negligence ; breach of eontract andlfzaud ::.rR C. §§ 2805.07, 2805:09(C, D),=511.

4:,Limitatiott of.Actions a- 16"";77fe applicable statute of limitations is!e?Rr.fhined not from the language or the,_._ . .,; .

e complaint of pleading or proce-

9. Limitation of Actions m51Authority given the Supreme Court un-

der the Constitution to preseribe rules ofpraotice and procedure does not mean thatthe statutes of limitations have been sup-planted; the Supreme Court has not setfiling deadlines, even if it has sueh authoii-ty, and to the contrary has enforced theexisting statutes. R.C. .§ 2305.11; Const.Art. 4, § 5.

10. Limitation of Actions e=76(1)The savings provision of the limitations

statute allows the imprisonment of a partyto toll the time only when the party isimprisoned at the time the cause of actionaccrues, but does not allow the imprison-ment of a party to toll the time when itoccurs after the cause of action has accrued.R.C. § 2305.16.

Syllabus by the Court

1. For purposes of applying the appli-cable statute of limitations, the cause ofaction is determined not from the languageor the form of the complaint or other plead-ing or procedure, but from the gist (easen-tial ground or object) of the complaint.

2. For a cause of action in legal mal-practice, the applicable statute of limita-tions is R.C. 2305.11, and the cause of actionacerues when the attorney-client relation-ship terminates.

3. When there is no demonstration ofany misrepresentation, a cause of action forfraud does not arise..

4. Under the saving provision of R.C.2305.16, imprisonment of a party tolls thetime only when the party is imprisoned atthe time the cause of action acetves, andimprisonment does not toll the time when itoccurs after the cause of action has accrued.

Jim Rimedio and Rodger N. Walk, Cincin-nati, for appellant.

Taft, Stettinius & Hollister, Robert G.Staebler and Thomas R. Sehuck, Cincinnati,,for appellees Allen Schwartz and Robert I{.Sachs.

BLACI{, Judge.

Plaintiff-appellant, Sylvia Jean Hibbett(Hibbett), brought suit for negligence,breach of contract and fraud against AllenSchwartz and Robert K. Sachs (Schwartzand Sachs), the two attorneys who original-

t. Appenant does not argue that any cause ofaction arising under federal statutes remainsviable against Schwartz and Sachs. We can-not conceive of any, because the federal stat-utes require "state action," and criminal de-

ly defended her against criminal charges ofpossession of drugs and carrying a oon-cealed weapon. She also named as defend-ants the city of Cincinnati and Larry Han-dorf, the arresting officer, for violation ofher civil rights under federal statutes.'Schwartz and Sachs were dismissed as de-fendants, with prejudice, when the trialcourt granted their motion for summaryjudgment. The court having determinedthat under Civ.R. 54(B) there was no justreason for delay, Hibbett appealed assert-ing in her single assignment of error thatthe granting of summary judgment forSchwartz and Sachs was prejudicial error.

The issue presented is whether eonsider-ing Hibbett's eomplaint and the documenta-tion submitted under Civ.R. 56(C), the trialcourt properly determined that Hibbett'ssuit was barred by R.C. 2305.11, the statuteof limitations requiring claims for mal-practice to be filed "within one year afterthe cause thereof accrued." We hold thatthe trial court did not err, because (1) thegist (essential ground or object) of Iiibbett'scause of-^ction was malpractice, (2) hercomplaint was filed four years and thirtydays after the latest date upon which thecause of action could have acerued, and (3)no "savings" statute tolled the statutoryperiod so that the lapse of time would becomputed to be less than one year.

[1, 21 R.C. 2305.11 applies to legal mal-practice as well as to medical malpractice.See Riehardson v. Doe (1964), 176 Ohio St.370, 372,199 N.E.2d 878 [27 O.O.Zd 345], Acause of action for malpractice against anattorney aoorttes, at the latest, when theattorney-client relationship . terminates.Keaton Co. v. Kolby (1971), 27 Ohio St.2d234,271 N.E.2d 772 [56 0.0.2d 139]. In theinstant case, the attorney-client relationshipterminated, at the latest, on January 21,1977, when the court of eommon pleas jour-nalized an entry permitting Schwartz andSachs to withdraw as attorneys for Hibbett.

fense attorneys do not participate in any formof "state action" in the normal run of things.No participation by Schwartz and Sacbs in"state action" is demonstrated by the record inthe instant case.

:riminal charges ofI carrying a con-, named as defend-tti and Larry Han-er, for violation offederal statutes!

re dismissed as de-s;, when the trialltion for summary rhaving determined Ethere was no just

:tt appealed assert-tment of error thatlary judgment foras prejudicial error.

;s whether consider-and the documenta-iv.R. 56(C), the trialined that Hibbett's, 2305,11, the statutelg claims for' mal-ithin one year afterued." We hold thaterr, because (1) the

s object) of Hibbett'smalpractice, (2) heraur years and thirtydate upon which thehave aocrued, and (3)tolled the statutory

tae of time would beian one year•

applies to legal mal-medical malpractice.

e (I964), 176 Ohio St.78 [27 0.O.2d 8451 Aialpractice against anthe latest, when tha

.tionship terndnate%(1971), 27 Ohio St.2d

56 0.0.2d139]. In therneyclient relationshiPiatest, on January 2I;

of common pleas jout`^mitting Schwartz ands attorneys for Ilibbett

ot particiiatrun of things^the =wrmatSchwartz and Sachs ia

,onstrated bY the record,41

Ctte as, 446 N.E2d aS2 (Ohio App. 1982)

and substituting Harry H. McIlwain ascounsel. The complaint was filed fouryears and thirty days later, on February 20,1981.

[3] Hibbett submits that she escapes theobvious consequences of the foregoing cir-cumstances for any one or more of severalreasons. Her principal argument is thatthe allegations of her complaint set forththe claims that are subject to other statutesof limitations. She stated a claim for negli-gence, which invokes the four-year bar un-der R.C. 2305.09(D), there being no physicalinjury to her person or property. She alsostated a claim for breach of oral contract,which invokes the six-year bar under R.C.2405.07. A claim for fraud invokes thefour-year bar of R.C. 2805.09(C), with atime computation beginning only after thefraud is discovered. We are not persuaded.We believe that the gist of Hibbett's suit ismalpractice, irrespective of the allegationsof -the complaint intending to classify herclaims in some other way.

We must examine the factual basis of herc^^i>ria. against the attorneys in order tod@i:ermine what is the gist of the lawsuit.Qs.^vill develop from the following summa-4: ;... . . . .

the central circumstances are those in-volved in the negotiation of a plea bargainyfis,th the prosecution.

w,);ibbett was indicted for illegal possessionQf,heroiq(forty bags), a probationable felo-4y,.of-the third degree, and for carrying a;yncealed weapon, a non-probationable felo-

^g;y, Rfthe third degree. The drugs had been'found in her purse when it was seized with-out a warrant from the front seat of her

;sfter the car had been towed to theice station. Prior to that, a handgun had

bbserved by the police concealed insideear•:when :Hibbett entered the car toove:identification documents from heretto show to the officer. As soon as he

?ithe:concealed weapon, he arrested her.

dtgh'it was recognized by Schwartz}eLa that the seareh and seizure of thepnightwell be considered unconstitu-?:.anote that under a 1981 case, the searchseizJre of the purse might well be constitu-

tional under the then state of the law,2 theyrecommended, and Hibbett accepted, a bar-gain whereby in exchange for a plea ofguilty to a drug charge, the prosecutionwould reduce the drug charge to a fourthdegree felony and dismiss the weaponscharge. Hibbett would thus plead guilty toa fourth degree felony and be eligible forprobation. The judge entered into a per-sonal colloquy with Hibbett under Crim.R.11(C), accepted the guilty plea, and referredher to the probation department for presen-tence investigation. At the sentencinghearing on July 29, 1976, after an extendeddiscussion with counsel about the informa-tion in the presentence report (undisolosed)and her current circumstances, the courtgave Hibbett a recess in order to consultwith her attorneys about withdrawing theguilty plea. After she chose to allow theplea to remain, the court imposed a sen-tence of six months to five years.

An appeal was filed (case No. C-77068)and. was later brought to a sdccessful con-clusion when her new counsel (of record onJanuary 21, 1977, as noted) obtained a re-versal of the conviction because the judgefailed to comply strictly with the require-ments of Crim.ll. 11(C) under the then stateof the law.

On remand, Hibbett's motion to suppressthe heroin was heard and overruled. Aftera bench trial, she was found guilty of athird degree drug felony and sentenced toeighteen months to ten years. (The weap-ons charge had been dismissed.) That judg-ment, bowever, was reversed on appeal bythis court on February 20, 1980, case No.C-780728, on the grounds that the searchand seizure were too remote in time and .place from the arrest to be valid under theprinciples then laid down by the UnitedStates Supreme CourL After the secondreritand of the case, the drug charge wasdismissed on February 27, 1980. In -brief,Hibbett claims that her attorneys wrongedher by not pursuing the motion to suppressat the earliest instanee.

tional. New York v. Belton (1981), 453 U.S..454, 101 S.Q. 2880, 69 L.Ed.2d 768.

[4] We hold that the gist of Hibbett'sclaims against her attorneys is to recoverdamages eaused by their alleged mal-practice (professional misconduct). In Ohiothe applicable statute of limitations is de•termined not from the forin of pleading orprocedure, but from the gist of the com-plaint. Andrianos v. Community TractionCo. (1951), 155 Ohio St. 47, 97 N.E.2d 549[44 0.0. 72] (a claim for personal injuriescaused by a common carrier must bebrought within two years, even though theform of the action was in contract); Cox v.Cartwright (1953), 96 Ohio App.. 245, 121N.E.2d 678 [54 0.0. 281] (an action againsta dentist for damagds caused by improperfitting of false teeth is one for malpracticeand is governed by the statute of limita-tions applicable to malpractice, not the stat-ute of lindtations applicable to contracts).Despite 'Hibbett's attempt to label her ac-tion a suit.for negligence or a suit forbreach of contract, the real gtnund of herclaim is malpractice. The applicable stat-ute of limitations is R.C. 2305.11, imposing aone-year deadline, the computation ofwhich commenced with the withdrawal ofSchwartzand Sachs from the eriminal case.

[5,61 Hibbett's attempt to claim fraudfails not only for the same reasons, but alsobecause the "evidence" presented under themotion for summary judgment disclosesthat the defendant attorneys were notguilty of fraud. Fraud may be broadlydefined as the concealment or misrepresen-tation of a fact or a set of facts material tothe transaction between the parties; thefalsity of which is known to the defendant(or if not actually known, should have beenknown), by which falsity the defendant in-tends to mislead the plaintiff and in re-liance on wbich the plaintiff acta to hisdetriment. 24 Ohio Jurisprudence 2d 635,Fraud and Deceit, Section 20; Tibbs Y. Na-tional Homes Constr. Corp. (1977), 52 OhioApp,?d 281, $69 N.E.2d 1218 [6 0.03d 3601;Manning v. Len Immke Buick Inc. (1971),

& It is conceivable that a Iawyer might actfrauduiently in advising a cnent, but in thenormal course of the practice, advice aboutwhat success a motion to suppress migbt enjoybefore the courts, even if wrong, is not the type

28 Ohio App.2d 203, 276 N.E.2d 253 [570.0.2d 3081 The only misrepresentationsor concealments advanced by Hibbett aretwo: a promise she would receive probationafter her guilty plea; and counsel's adviceabout pleading guilty without testing theconstitutionality of the search and seizureof her purse. Neither of these claimedwrongs can form the crucial element (mis-representation) of a claim of fraud. As tothe promise about probation, Hibbett toldthe judge during the hearing held underCrim.B. 11(C) on her guilty plea, in answerto a specific question, that no promises hadbeen made to her as an inducentent. Sheeannot now evade that admission againstinterest. As to the advice to plead guiltywithout pursuing a motion to suppress, therecord fails to disclose any misrepresenta-tion by the lawyera9 They declared in opencourt with Hibbett ptesent that theythought the search was unlawful but none-theless recommended a plea bargain thatwould dismiss the nonprobationable weaponcharge and give Hibbett a chance to receiveprobation on a reduced drug charge. Whenit became apparent at the sentencing hear-ing that the court was reacting adversely toHibbett's interests, after it had reviewedthe presentence report with its apparentnegative information about Hibbett but be-fore the court imposed sentence, Hibbettwas given ample opportunity to withdrawher guilty plea. She decided not to do so.Based on the presentence report, a sentenoaof imprisonment was imposed. Hibbettmay have been surprised and disappointed,but she was not defrauded.

[7,8] She makes the further argumentthat her cause of aetion against the attor-neys did not accrue until the effects of theirmalpractice beeame manifest; that is, notuntil this court of appeals found her motionto suppress to be well taken and reversedher second convietion. This argument iefeckless. The Supreme Court has made le-

of misrepresentation on w2dch a clalm of frauilcan be based. Fraud contemplates a misrepi'E±sentation of fact, not a ndsstatement oflegpl:<^..probabinties.

6 N.E.2d 253 [57misrepresentations:d by Hibbett areI receive probationid counsel's adviceithout testing thesearch and seizureof these claimed

icial element (mis-n of fraud. As tottion, Hibbett toldearing held underIty plea, in answerat no promises hadinducement. Sheadmission against

ice to plead guiltyon to suppress, theany misrepresenta-ey declared in openmesent that theyunlawful but none-plea bargain that

)bationable weapona chance to reoeiveIrug abarge. Whenae sentencing hear-meting adversely tor it had reviewedwith its apparent

out Hibbett but be-sentence, Hibbett

tunity to withdrawxided not to do so.e report, a sentenceimposed. Hibbettd and disappointed,ied.

further argumenti against the attor-I the effects of theirnifeat; that is, not.ls found her motiontaken and reversed

This argament isCourt has made le-

which a claim of fraudrtemplates a mtsrepmmisstatement of legal

^e as, aw rv.eaa aa i tunro App, 19a2]

gal malpractice equivalent to medical mal-practice in every respect, including the re-jection of the "discovery" theory of accrual.Keaton Co. v. Kolby, supra.

[9] We find no merit in Hibbett's argu-ment that because Section 5, Article IV,Ohio Constitution; gives the Supreme Courtthe authority to prescribe rules of practiceand procedure, the statutes of limitationsare supplanted. Assuming but not decidingthat these constitutional provisions grantauthority to the Supreme Court to set filingdeadlines, the court has not done so. Onthe contrary, it has enforced the eidstingstatutes, including. R:C. 2305.11. KeatonCo. v. Kolby; supra. .

[10] Finally, we hold that R.C. 2805.16,4the saving statute covering disafiilities, didnot toll any of the time between the aocrualof the cause of actaou and the filing of theeomplaint. Imprisonment tolls time onlywhen the plaintiff is in prison at the timethe cause of action accruea: After thecause of action acerues, time is tolled onlywhen the person entitled to bring the actionbecomes of unsound mind .and is so adjudi-cated. The record in the instant case showsthat Hibbett was imprisoned from February16, 1977 to Fe6ruary. 3,1978, after her causeagcrued on January 21, 1977.

The single asaignment of error is merit-lesa. We affirm-

Judgment affirmed:.

PAI,DIER, P.J., and DOAN, J., concur.

$ 'R.C. 2305.16 reads in full as fonows:'- ` ', Unless otherwise sIxdaityproWded tn se^

Uons 2305.04to 2305.14, inclusive; and sections1307„98 and 1304.29 of theRevLsed Code, if apersori entitled tobrhng any action mentioned

^' in su6h sections, unless for penalty or forfei-ture, Is;at the dme the^aauseotactlon acuves ,

u^avithinthe'age of ndnority, of unsound mtnd, ora' 1mP{isoned.. such person, may bringit within

,pe respective times ihoited by such secnops,8lfter such disalipitq is removed: When theYatdtesta- of two or more parties are joint and

i?vnaeparable, the disability of one sha0inure to_;the.benentofall.

4Ohio App.3d 133

GREEN, Appellant,

V.

GREEN; Appellee.

Court of Appeals of Ohio,Lucas County.

May 7, 1982i;

Wife appealed from the dismissal bythe Court of Comnion Pleas, Lucas County,of her complaint' for assault and batteryagainst husband. The Court of Appeals,Lucas County, Connors, P.J., held that:. (1)the doctrine of interspousal immunity didnot bar the action; (2) the action wasbarred by the one year statute of limita-tions goverhing assault and battery actions;and (3) the one year statinte of limitations isreasonable.

Judgment affirmed.

1. Husband and Wife 0-205(2)One spouse may sue the other, during

coverture, for serious injuries intentionallyinflicted during marriage in that doctrineof interspousal tort immunity does not ap-ply to intentional torts.

2. Limitation of Actions s- 73(4)One year statute of-limitationa for as-

sault and battery action was not tolled dur-ing coverture so as to permit wife to main-tain action against husband for assault 18

"After the causeof such action accrues, ifthe person entitled to'bring such acfton be-comes of msound mindandisadjudiC9tedassuch by a court of competent judsdic(ton or isconfined in an iestitution or hospital under adiagnosed condition or disease which rendershini of unsound mLid, tlietime during which heIs of unsound mind and so adjudicated or soFonfined,shall.not be computed.as any;patt ofthe period within. which the action must bebrought" (Emphasis added.)

. • 'vt^,ti p (I'

tive evidence to support the trial court'sdetermination that its previous judgmentwould produce an unjust result for themother, the child, and the appellant.

[14] Appellant contends the motion tovacate was not filed in a timely manner.Civ.R. 60(B) requires that the motion befiled within a reasonable time after thejudgment is entered which is sought to bevacated. Appellee testified she sought le-gal counael to delete appellant's name"fromthe child's birth certificate in early 1982.She even sought the consent of her ex-hus-band to such amendment. As problemsbetween appellant and appellee escalated inrelation to the ehild's visitation, appelleefiled a motion for specific and definite visi-tation periods. Appellee attempted to in-troduce evidence that appellant was not thebiological father. After the court grantedappellant's request for definite visitationprivileges, this action was initiated at therequest of the welfare" department. Thedecision to entertain a Rule 60(B) motionnecessarily involves the trial court determi-nation that it has been timely sought.That determination involves diacretian onthe trial court's behalf. Mount Olive Bap-tist Chsereh v. Pipkins Paints (1979), 64Ohio App.2d 285, 413 N.E.2d 850 [180.0.3d 319]. In light of the evidencepresented, we perceive no abuse of discre-tion in determining that the motion wastimely filed. The third assignment of erroris overruled.

The judgment of the trial court is. af-firmed.

Judgment a,jJ6rmed

KERNS and WIISON, JJ., concur.

16 Ohio App.3d 80

HUGHES, Appellant,

v.

GEORGE F. & MARY A. ROBINSONMEMORIAL PORTAGE COUNTY

HOSPITAL et al., Appellees.

Court of Appeals of Ohio,Portage County.

March 26, 1984.

In medical malpractice action, the Por-tage County Common Pleas Court granteddefendants' motions for judgment on thepleadings,, and plaintiff appealed. TheCourt of Appeals, Ford, J., held that: (1)defendants could file motion for judgmenton the pleadings without firat filing an-.swer; (2) a defendant was not estoppedfrom asserting statute of limitations by itsfm"lure to present defense in its answer;and (3) action commenced 182 days afterplaintiff mailed hil notice to defendantswas time barred.

Judgment affirmed.

1. Pleading ea350(7)

Where judgment on pleadings wassought, court was bound to consider onlyface of complainti

2. Pleading e>349Even if defendants' failure to answer

is considered to be admission of allegationscontained in complaint, where basis of mo-tion for judgment on pleadings is violationof statqte of limitations, face of complaintis sufficient to rule on motion. Rules Civ.Proc., Rule 12(B).

3. Pleading 6-360(1)

Trial court could rule on motion forjudgment on pleadings, even though de-fendants had failed to file answers prior totheir motions. Rules Civ.Proc., Rule12(B)(6), (C).

4. Limitation of Actions e-13

Defendant in medical malpractice suitwas not estopped from asserting statute of

terson v. Teodosio (1974), 34 Ohio St.2d161, 166, 297 N.E.2d 118 [63 0.0.2d 262];Conant v. Johnson (1964), 1 Ohio App.2d133, 136, 204 N.E.2d 100 [30 0.0.2d 157].Even if the defendants' failure to answer isconsidered to be an admission of the allega-tions contained in the complaint, where, ashere, the basis of the motion is a violationof the statute of limitations, the face of thecomplaint is sufficient to rule on the mo-tion. Hence, to expedite disposition of thecase, the court could rule on the motionsfor judgment on the pleadings of Dr. Silkand Robinson Memorial Hospital, eventhough these defendants had not filed an-swers prior to their motions.

[4] An added question is whether Physi-cian's Emergency Services was estoppedfrom asserting the statute of limitationsbecause it failed to present it in its answer.Former Civ.R. 12(H) provided that:

"A party waives all defenses and objec-tions which he does not present either bymotion as hereinbefore provided or if hehas made no motion, by responsive plead-ing '' ' except '`` the objection offailure to state a legal defense to a claim,may be made by a later pleading, if one ispermitted, by motion for judgment on thepleadings, or at the trial on the merits * *."

Under this rule, Physician's EmergencyServices could still assert the statute oflimitations as grounds for a grant of judg-ment on the pleadings because it is a legaldefense to the claim. Moreover, Physi-cian's Emergency Services could havemoved to amend its claim to assert thestatute of limitations. See Mills v. White-house Trucking Co., supra. Thus, thecourt did not err in allowing the assertionof the statute of limitations because it ex-pedited the case by consolidating the mo-tions which had to be filed by Physician'sEmergency Services. See id.

[5] R.C. 2305.11(A) provides that mal-practice suits must be brought within oneyear of the date that the action accrues.

tion:

"If a written notice, prior to expiration oftime contained in this division, is given toany person in a medical claim that an indi-vidual is presently considering bringing anaction against that person relating to pro-fessional services provided to that individu-al, then an action by that individual againstthat person may be commenced at any timewithin one hundred eighty days afterthat notice is given." (Emphasis added.)

This statute has been interpreted to re-quire that the plaintiff bring his actionwithin one hundred eighty days of notify-ing a defendant and not merely.within onehundred eighty days after expiration of thestatute's time limitation. Glenboski v. St.Alexis Hospital (1979), 65 Ohio App.2d 165,417 N.E.2d 108 [19 0.0.3d 122]. The appel-lant provided notice within the one-yearstatute of limitations.

The instant case presents the issue ofwhen that notice was "given" under R.C.2305.11(A). The appellant filed his com-plaint on February 11, 1483, one hundredeighty-two days after the "mailing" of hisAugust 13, 1982 letter of intention to sue,one hundred seventy-eight or one hundredseventy-nine days after the defendants ac-tually received the letter. If notice is "giv-en" under the statute when the letter wasmailed, the appellant's action was barredby the statute of limitations provided inR.C. 2305.11(A); if notice is given onlywhen a defendant actually receives the no-tice, the decision of the trial court was inerror.

The issue is one of first impression inthis court and has never been decided bythe Supreme Court. Gingerich v. Pokor-ney (1977), 50 Ohio Misc. 1, 361 N.E.2d1098 [4 0.0.3d 32], was the first case tointerpret the statute and held that noticeshould be considered "given" when mailedso that a plaintiff's notice would definitelyfall within the one-year statute of limita-tions and that survival of an action wouldnot be based on vagaries of the postalservice. Cases adhering to this line ofreasoning are Anderson v. Bickmore

640 Ohio 474 NORTH EASTERN REPORTER, 2d SERIES

pleadings, without having filed an answer.It argued that the statute of Gmitationshad expired, and that the appellant nevernotified it of his pending claim. The hospi-tal's motion was granted that day.

On March 18, 1983, Dr. Silk also movedfor judgment on the pleadings despite thefact that he had never filed an answer. Healso raised the argument that the statuteof limitations had expired.

On March 30, 1983, Physician's Emergen-cy Services moved for judgment on thepleadings arguing that the statute of limi-tations had run.

On April 1, 1983, Dr. Schulze likewisemoved for judgment on the pleadings.

The appellant then filed briefs in opposi-tion to all four of the defendants' motions.Each brief contained a copy of a letterdated August 13, 1982, addressed appropri-ately to each defendant, whieh indicatedthe appellant's intention to extend the stat-utory time limit applicable for malpracticesuits an extra one hundred eighty days asprovided in R.C. 2305.11(A). The lettershad been mailed by certified mail and cop-ies of the return receipts showed that Dr.Silk had received the letter on August 16,1982 and that Dr. Schulze and Physician'sEmergency Services received the letter onAugust 17, 1982; the return receipt fromRobinson Memorial Hospital was not dated.

On April 28, 1983, the appellant moved toamend his complaint to allege that eachdefendant had received his August 13, 1982letter on the respective dates listed on thecertified mail return receipts; and also toallege that Robinson Memorial Hospitalhad received the letter on August 17, 1982.

On June 7, 1983, the court found that theappellant's action was barred by the stat-ute of limitations and granted the defend-ants' motions for judgment on the plead-ings.

The appellant presents two assignmentsof error:

"1. The trial court erred to the preju-dice of plaintiff/appellant in granting themotions of defendants for judgments onthe pleadings.

"2. The trial court erred to the preju-dice of plaintiff/appellant in failing togrant his motion for leave to file hisamended complaint instanter."

The appellant's first assignment of erroris not well-taken.

A preliminary question that must be an-swered here is whether the motions forjudgment on the pleadings filed by Robin-son Memorial Hospital and Dr. Silk wereproperly before the trial court for decision.Civ.R. 12(C) provides that

"After the pleadings are closed but with-in such time,as not to delay the trial, anyparty may move for judgment on the plead-ings."

The appellant argues that Robinson Me-morial Hospital and Dr. Silk could not filemotions for judgment on the pleadingswithout first filing answers because thepleadings had not been "closed" underCiv.R. 12(C). However, Civ.R. 12(BX6) mo-tions raising the defense of the statute oflimitations are perpiissible and timely aslong as they are filed prior to the filingdate of an answer and when the bar of thestatute is obvious from the face of thecomplaint. Mills v. Whitehouse TruckingCo. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668[69 0.0.2d 3501. The reason advanced forthis is that where the issue is clear the casewill be expedited. This rationale is appro-priately stated in Mills, supra, at 60, 320N.E.2d 668:

"`'' The purpose behind the allow-ance of a Civ.R. 12(B) motion to dismissbased upon the statute of limitations is toavoid the unnecessary delay involved inraising the bar of the statute in a respon-sive pleading when it is clear on the face ofa complaint that the cause of action isbarred. The allowance of a Civ.R. 12(B)motion serves merely as a method for expe-ditiously raising the statute of limitationsdefense. * * * "

[1-3] The same logic applied hereshows that the trial court did not err.Here, where judgment on the pleadingswas sought, the court was bound to con-

640 Ohio 474 NORTff RA84ERN REPOICpER, 2d SER1F8

Pleadinge, without having Eled an aoawer. "2 The trlal murt erred to the preju-

it argued that the statute uf limitations dice of plilnpff/apPellant in failing to

had expQed, endthat the appellant never grant his motlon for lesve to f6e his

notlfied it of bie.panding claim. The hoepi- amended complaint inamnte*."

ta['s motion wae greated that day. The appellant's firet aseignment of errorOn Marc7^ 18, 188,4. Dc Silk alea moved is not welFtaken.t

judgtneat oo the Plead'mga deaPitr the A preliminary question that muet be an-fhat be hW nevar filed an eoawer. He awered here is whether We motions for

abo rafaed the arBUment thaE the atatnte jmdgment on the pleadings fded by Robin-of limimtiove had exVired. son Menmrial llospital and Dr. Silk were

Oa March 30,1988, Phyeieian'e Emugen- poaperly hefore the trial court for decision.ty Servicm moved for judgment on the CvR 12(G7 provides thatpleadfngs arguing that the statute of Iimi- ^^After the Pleadiags are closed but wit},-WUO°a had run' m euch time a.s not to delay the trial, any

On Apn7 1, 1983, Dt. ScAmlae likewiae party may move for judgment on the pleadmoved for judgment on the pleadings. iAgs; 1

The appellant then hled briefa in apposo The appellant arguea that Robinaon Me-tion to all four af the defetWanta' matiune. reariel Hospital and Dr. Silk could not filep.sch brkf rqntainod a wpy of aletter motlons for judgment on the pleadinesdated August 13. 1982, addressed approprH witfwut faat £i6ng enswers be®uee thealely to each defendant, which indicated pleadings had not been "closed" underthe appellant'e intention to exteod the atab Civ.R. 12(0). However, Civ.R. 12(5x6) mo-utay time limit applicebk far melPracbra tione raising D'e deferue of the amtnte ofsaim ao extre one hundred elghty days es hesitstions are permissible and time[v asprovided in R.G 8305.11(A). The letters long ue they are filed prior Eo the filinghad been mailed by eertiSM'nm7 and aoF date of oa anewer and wben the bar of theiea of the ratnrn receipts abowed that D, atatute is obvious fYom the tece of theSilk had received the letter m+ August 16, ro^aplaint Milla .y. {phitehaase TnuL'n81982 and tbat Dr. Schulae and Pbyeieian'e Co. (1974), 40 Ohio St2d 55, 320 N.E.Pd g68Emergeney Sarviem xaceived the letter on [69 0.0.2d 3601 The reason advanced forAugnst 1T, 1982; the ratun receipt from this ie thatwhere the ieeue is clesr the easeRobineon Memorial Hoapitsl was not dsted will be ^pditad. This rationele ia appro-

On Apri126,1988, tM appeEant moved to prialely ataWd in Mllle, auyr4 at 60, 320amepd his complaint to aBege that eseh N.E.2d 668:defendant bad received hie Auguat 18,1982 ,phe purpose behind the illow-letter on the xeepeettve datee 1'uted on the ance of a Gv1i. 12(B) mation to djamicecerpfied ma0 raturn receipta; and also tasIlege that

Robaeon Memorisl Roapital beaed upon the statute of limHatwm is ta

had received tM letter on Auguet 1T, 198E. avoid the aonecrseary delay involved in

Oo Jurm T, 1983, the court found that the raismg the bar of the atamte in a respoo-

appellant'e aetaon was barred bY theamb sive pleading when it ie clear on the face of

a cemplaint that the cause of actloa isute of 1'm(tatloosand granied the defend- barred. The allowance of a Qv.R. 12(B)anfa' tnotions for judgment on the plssd motion aervee merely se a mefhod for expei^Sa^ ditinuely raising the statute of limifffifons

'[he appellant presents two aasigamenfa defenee.of error.

The trial murt erred to U. preju- [1-81 The eame logie applied b

motiona of defendsnts for ludgtnenta an W^

the pleadinge.roug1i4 thearourt was, bound th ron-

1fUGHES v. GEORGE F. & MARY A ROBINSON HOSP. Ohio 641ere.av Innuxp> 1awl

sider only the fnce af the compbtinc Pe-feraon v. Teodosin (1974),34 Ohio St2d161, 166, 297 N.E.2d 113 163 0.0.2d 2621Conant v. lahnaan (1964), 1 Ohio App.yA183, 135, 204 N.E2d 100 [30 0.0.20 .1571Even if the defendents' faJure m answer isconidered to be ao admission of the alllega-tiom contained'm the complaint, where, ashcre, the basis of the mutbn ia a violationof the statute of ]imimtiona, the face of thecomplamt u sufficient m rule on Ehe mo-tion. Hen<e, ta expedite disposition of thecaek the court wuld ruje on the motionafur judgment nn the pleadinga of Dr. Silkand Robineoo Memoriel Hospital, eventhough theee detendaata had not filed ao-awere prior m tbeir motiooa.

141 An added question is whether PhysFamn's Emmgenry Services wae esWppedfrom aseerting the etatute of limitationsberame it faikdto present it in ite answer.Former Civ.R. 12QI) provided that

"A partY waives aR defenses and objectione which be doee not present either bymotbn as hereinbefore provided or if hehee made no motun, bY responeive plead-ing ''' except ''' the objeetion offailure to state a legal defenee tu a clalm,may be made by a later pleading, if one iePsrmitted, by motion for judgment on thepleadinga, or at the trial an the mexita' '.'

"If a written notice, prior to expiration ofthne contained in this division, is given toany person in a medical claim that an individual is presently mnsidering bringiug anaction against tbat pexson relating to pro-fessional services pmvi]ed to that individu-al, tben an action by that individ& agynsttimt person may be ronunenced at anytmewttAiu one hundred epghty days aftarfkat V. is givan." (Emphasis added.)

This atatute has been interpreted m mquire that the plaintiff bring his actiouwithin one hundred eighty days of notify-ing a defendant aod not merely witbin onehundred eighty days af[er expiration of theatatute'a time limhatfaa Glendoaki u StAlenia Hospitai (1979), 65 Ohio App.2d 165,417 N.E.2d 108 [19 0.0.Sd 122]. The appel-lant provided natke within t.he oneyearetatute oflfmitatione.

The instant ®ae presents the iesue ofwhen that nutice was "g4 ea" uuder R.C.2305.11(A). The appellant filed his com-pla'ud on February 11, 1983, one hundredeighty-two days after the "mailing" of hisAugust 13, 1882 letter of intention ru sue,one hundred eeventyeight or one hundredsrvonty-ninr days after the defendants ac-fually received the letter. If nutice is "glv-

" under the statute when the letter wasmaikd, the appellant's action wee barred

Under this rule, Physician's Emergency by the statute of limitatione provided 'mServices could ah'll sasert the statute nf RC. 2305.11(A); if notice is given onlylimitations es grounds for a grant of judg- w'hen a defendant actually receives thenoment an the plead'n,ga becmme 0 fa a legal tice, the decision of the trul court wae indefeoae po the claim. Moreover, Physi erroncan'e Emergency Hervlcee could have The issue is one of fust impxession inmoved fa amend de clalm tu assert the this court and has never been decided byt t fa e ute o lumtatona, See dBHs v. [Fhite-

kuuse yYuckixg Co., supra. Thua, thecourt did mt err in allowiog the assertionof the afatute of limitations be auae it ex-peditad the case by conanlidating the motiaoe whieh had to be £ded by Physiaan'eEmergency Servioes. S. id

[5] R.C. 2303.11(A) prov'o3es that mal-pmetice anita must be brought within oneY. of the date that the actfon accruce.

the Supreme Court Gingerich a. Pokor-ney (1977), So Ohio Misc. 1, 361 N.E.P.d1098 [4 0.0.3d 32], wae the 8rst ase tointnrpret tbe aftatute and heM that naticeshuuld be considered "given" when mailedeo that a plaintlf£s notlce would definitelyfall within the uoeyear statute of limita-Uoos and tbat survival of an action wouldnot be based on vagaries of the postaleervlce. Cases adhering to this line ofreasbning are Axdermx u Eiokmure

__. __642 Ohio 474 NORTH EASTERN REPORTER, 2d SERIES

(1979), 66 Ohio Misc. 15, 19, 420 N.E.2d 137[14 0.0.3d 399]; and Athey v. OrthopedicAssoc, ofZanesville (Dec. 9, 1982), Muskin-gunl App. No. 82-21, unreported. The onlycomment on this issue agrees and adds theadditional rationale that if the legislaturehad intended to have notice "given" onlywhen actually received they would haveused the word "received" in the statute.See Recent Cases, Practice and Proce-dure--Statute of Limitations-Medical Mal-praetiee (1981), 10 Cap.U.L.Rev. 909, at914-915.

Other authority has specifically rejectedthis conclusion in Gingerich v. Pokorney,supra, and held that notice is given onlywhen a defendant actually receives theplaintiff's written letter. See Lambert v.Sang Woo Ha (App.1979), 16 0.O.3d 91;Joknson v. St. Luke's Hospital (1981), 2Ohio App.3d 427, 442 N.E.2d 768. Thesecourts cite the general rule stated in Moorev. Given (1884), 39 Ohio St. 661, secondparagraph of syllabus, that when a statuterequires notice and is silent concerning itsform or manner of service, actual servicealone will satisfy the statute; and State, exret. Peake v. $d. of Edue. (1975), 44 OhioSt.2d 119, 122, 339 N.E.2d 249 [13 0.0.2d437], where the court used Moore v. Givento reject a claim that notice required underR.C. 3319,11 for the dismissal of a teacherwas given when mailed.

[6,7] In policy and statutory construc-tion arguments, the courts followingGengerich v. Pqkorney, supra, probablyhave the better argument. We agree withthese courts and hold that notice is "given"under R.C. 2305:11(A) when a plaintiffmails his letter so that abnormalfties andvariances in postal delivery will not normal-ly be permitted to extinguish a plaintiffsclaim or unnecessarily extend it. More-over, had the legislature meant to saywlien notice is "received," it would haveused such language. While this rule wouldin most circumstances favor survival of aclaim, the appellant's claim here was

barred by the statute of limitations becausehe failed to bring suit within one hundredeighty days of the time that he mailed hisnotice. The trial court's judgment on thepleadings was therefore not error.

With respect to appellant's second as-signment of error, denial of the appellant'smotion to amend was likewise not errorunder these circumstances. Amendment ofthe iromplaint to state the dates of thedefendants' actual receipt of the letterwould have no bearing on the validity ofthe appellant's claim. Thus, appellant wasnot prejudiced by denial of the motion andthe decision of the trial court must beaffirmed.

For the foregoing reasons, the decisionof the trial court is affirmed.

Judgment aff^rmed

16 Ohio App.3d 120

The STATE of Ohko, Appellee,

v.

TOLLIVER, Appellant.•

Court of Appeals of Ohio,Cuyahoga County.

March 26, 1984.

Defendant was convicted before theCourt of Common Pleas, Cuyahoga County,of possession of cocaine in less than thebulk amount, and he appealed. The Courtof Appeals, MeManamon, 1., held that: (1)prosecutor's inquiries concerning defensewitness' alleged sexual transformation, andinjection of his personal opinions concern-ing character of witness, as well as his

"A motion for leave to appeal to the Supreme (case No. 84-685).Court of Ohio was overruled on June 13, 1984

206 Ohio 546 NORTH EASTERN REPORTER, 2d SERIES

month after an initial payment of $150.This motion is granted.

An application for reinstatement to thepractice of law filed by O'Neill will not beconsidered until all costs are paid in full.

MOYER, C:J., and SWEENEY,HOLMES, DOUGLAS, WRIGHT,HERBERT R. BROWN and RESNICK,JJ., concur.

46 Ohio St.3d 176

_}76INVESTORS REIT ONE, Appellant,

V.

JACOBS et al., Appellees.

INVESTORS REIT TWO, Appellant,

V.

FORTMAN et al., Appellees.

No: 88-982.

Supreme Court of Ohio.

Submitted April 27, 1989.

Decided Nov. 8, 1989.

Real estate investment trusts filedcomplaints against former trustee, attor-neys, and accountants. The trial courtgranted motions for dismissal or summaryjudgment. On appeal, the Court of Ap-peals, Franklin County, affirmed dismissalof claims purportedly alleging accountantnegligence as untimely but reversed andremanded dismissal claims founded infraud, conversion, and breach of trust.The Supreme Court, John V. Corrigan,Judge, Eighth Appellate District, held that:(1) claims of accountant negligence.:weregoverned by four-year statute of limita-tions for general negligence claims, nottwo-year period for claims of bodily injuryor injury to personal property or one-year,limitations period for professional malprac

tice claims; (2) discovery rule was notavailable to claims of professional negli-gence brought against accountant; and (3)by its express terms, four-year limitationsperiod did not begin to run on claimspresented in fraud or conversion until com-plainants had discovered, or should havediscovered, claimed matters.

Affirmed.

Sweeney, J., concurred in part and dis-sented in part and filed opinion in whichDouglas, J., joined.

1. Limitation of Actions G=95(10)

Discovery rule is not available toclaims of professional negligence brought

against accountants.

2. Accountants C-10Claims of accountant negligence are

governed by four-year statute of limita-tions for general negligence claims, nottwo-year period for claims of bodily injuryor injury to personal property or one-yearlimitations period for professional malprac-tice claims. R.C. §§ 2305.09(D), 2305.10,2305.11(A).

3. Limitation of Actions e-95(7), 100(1)Four-year limitations period for gener-

al negligence claims does not begin to runon claims presented in fraud or conversionuntil complainants have discovered, orshould have discovered, claimed matters.R.C. § 2305.09(D).

Syllabus by the Court.

1. Claims of accountant negligenceare governed by the four-year statute oflimitations for general negligence claimsfound in R.C. 2305.09(D), not by the two-year period for bodily injury or injury topersonal property set forth in R.C. 2305.10,or by the one-year limitations period forprofessional malpractice claims in R.C.2305.11(A).

2a. The discovery rule is not availableto claims of professional negligencebrou 1 against accountants.

2b. However, by the express terms ofR.C. 2305.09(D), the four-year limitationsperiod does not commence to run on claims

:ES

:overy rule was notof professional negli-st accountant; and (3);, four-year limitationsin. to run on claimsr conversion until com-vered, or should havematters.

ncurred in part and dis-filed opinion in which

tctions (S=95(10)e is not available tomal negligence broughts.

-10:ountant negligence areryear statute of limita-

negligence claims, not)r claims of bodily injqryrnal property or one-yearfor professional malprac-

§§ 2305.09(D), 2305.10,

Actions "5(7), 100(1)

nitations period for gener-ims does not begin to runted in fraud or conversionnts have discovered, orcovered, claimed matters.

)).

us by the CourG

of accountant negligencey the four-year statute ofgeneral negligence claims;305.09(D), not by the two-bodily injury or injury to

ty set forth in R.C. 2305.10,year limitations period forialpractice claims in R.C.

iscovery rule is not availableprofessional negligence

ct accountants.;ver, by the express terms ofI), the four-year limitationst commence to run on claime

INVESTORS REIT ONE v. JACOBS Ohio 207Cite aa Si6 N.E.2d 206 (Ohio 1989)

presented in fraud or conversion until thecomplainants have discovered, or shouldhave discovered, the claimed matters.

The matter now before us derives fromthe litigation arising out of the demise oftwo real-estate investment trusts, Iuves-tors, REIT One (°IRO°) and InvestorsREIT Two ("IRT°).

-On April 23, 1980, IRO and IRT filedseparate complaints against Larry ForSman, forn)er trustee, and others, includingattorneys and accountants, who had partici-pated in transactions involving the trusts.The transactions -at issue were allegedlymarked by a scheme to defraud. that in-volved eonflicts of interest and breaches oftrust and fiduciary duty on the, parts ofFortman and the other named defendants.

The accountant defendants included Coo-pers & Lybrand, an international firm ofcertified public accountants with an officelocated in Columbus, Ohio; H. MartinWestfall, partner ih charge of the Colum-bua office of Coopers & Lybrand; and part-ners Jerry D. Sullivan and David A. Ga-ston: r. Hereafter the accountant defendantswil1 be collectively referred to as "C & L."G}&L, it is alleged, served as accountantsfoi+'IRO and IRT from, respectively, 1969.n'd 1972 through at least part of 1975:greover, it is alleged, C & L served asi ountants for many of the. trusts' related

ties, including subsidiaries, limited part-hips and joint ventures.

39ta 1complaint IRT alleged that Fort-,ad acted detrimentally to the best

of the trust;'and that such actionsdommitted inteutioually, knowingly,

lly; and withJy79scienter with a pur-to 21efraud and deceive IRT; IRT was;by defrauded and deceived, as a resulthieh IRT.has been damaged." IRTek_:alleged that the named defendants,

ug;G & L, had "knowingly, intention-wifh, scienter, and with a purpose

i'aud `and deceive IRT, participated,nd abetted Fortman in defrauding: a- result of which IRT has been

ed." The alleged fraud perpetratedreaulted in the loss of the entire

investment of $10,000,000 by the benefi-ciaries of IRT.

The complaint further alleged that sinceno "authority existed for transactions inassets of IRT reflected on the financialstatements of IRT for the years 1972through 1974, Coopers & Lybrand (includ-ing Westfall, Sullivan and Gaston) was ei-ther grossly negligent, reckless or elseknowingly participated in a fraud upon IRTperpetrated by Fortman." Alleging that C& L had knowledge of the conflict-of-inter-est transactions engaged in by Fortman,IRT claimed that C' & L "profited fromsuch conflicts through the receipt of fees,estiniatedto be in the hundreds of thou-sands of dollars, from IRO, IRT andthe C& L Audit Entities."

The IRT complaint further alleged:

"Coopers & Lybrand intentionally pre-pared notes to the financial statements ofIRT for the years 1972 through 1974 in afashion designed to obscure the entitieswith whom IRT had dealings, the proper-ties invnlved in the transactions, the profitsor other monies received by C & L AuditEntities and by Fortman and his affiliates,and that such transactions violated the IRTDeclaration of Trust and constitutedbreaches of fiduciary duty. Coopers &Lybrand (and Westfall, Sullivan, and Ga-ston) knew all of such facts but intehtional-ly disguised such facts to conceal suchfacts from the beneficiaries of IRT, theSecurities and Exchange Commission and.other users of the financial information,with the purpose of the continued realiza-tion of.fees by Coopers & Lybrand fromthe C & L Audit Entitiea and to conceal thefalsity of prior Coopers & Lybrand certifi-cations of IRT financial statements.',"

IRT summarized its allegations against C& L:

"Such intentional omissions constitutebreaches uf its assumed duties to IRT andits beneficiaries and constitute a furtheract of fraud by Coopers & Lpbrand "(Emphasis added.)

In its prayei for relief on its claimsagainst C & L, IRT sought damages in-curred for breach of contract ($10,000,000);the repayment to IRT of all fees received

208 Ohio 546 NORTH EASTERN REPORTER, 2d SERIES

by C & L; and a finding that C & L isjointly and severally liable, along with theother defendants, for other damages. IRTalso prayed for $100,000,000 in punitivedamages from the named defendants.

IRO filed its complaint against thenamed defendants the same day as didIRT-Apri1 23, 1980. With leave of court,the complaint was subsequently amendedin what the court of appeals has aptlydescribed as "excruciating length."

The complaint asserted claims againstFortman and certain other trustees andattorneys and against the C & L account-ants. In substance, the complaint allegedthat the named defendants had knowinglyparticipated in a "scheme and conspiracy todeceive and defraud IRO" and thereby de-plete the trust's assets.

As to the C & L defendants, the com-plaint contained specific allegations:

"C & L defendants entered the schemeand conspiracy to deceive and defraud IROin 1969. ' ' * Each [aVuntant17sdefen-dant] individually participated in thescheme and conspiracy by performing actshereinafter referred to as the acts of C &L.

"In addition, C & L and Westfall receivedtitle to a property of IRO to pay thefees purportedly owed to C & LThat transfer took place in March, 1975and subsequently C & L concealed thetransaction ''`. The transaction was en-tered into pursuant to the scheme and con-spiracy of which C & L defendants wereparticipants * ' ' "

Attacking the accountants' professionalefforts, IRO also claimed:

"Further, as to financial statements for1974 and prior periods, purported to beaudited. by C & L, those financial state-ments were not audited in accordance withgenerally accepted auditing standards andwere simply another part of the schemeand conspiracy. * * " Such financialstatements and C & L's purported auditsviolated '''[the terms of the trust]."(Emphasis added.)

IRO further alleged that C & L hadbreached its contract to audit the financialstatements of IRC in accordance with gen-erally accepted standards for the years1969, 1970, 1971, 19.72, 1973 and 1974, withthe breach not discovered. until after June13, 1979.

Arising out of the broad allegations ofconspiracy and fraud are charges that C &L had failed to comply with generally ac-cepted auditing standards and procedures.IRO summed up its claims alleging:

"The acts of C & L defendants men-tioned herein were taken intentionallywith a purpose to deceive and defraudIRO, and as a result thereof IRO was de-ceived and defrauded and has suffered thedamage herein set forth." (Emphasis add-ed.)

As damages, IRO sought "[a]gainst eachdefendant, jointly and severally, for fraudand deceit, judgment in the collectiveamount of the gross capital contributed toIRO by its beneficiaries ''' and anaward of punitive and exemplary damages. . *." Against the C & L defendantsIRO sought, for breach of contraet, anamount equal to the collective gross capitalcontribution by the IRO beneficiaries; andfor the alleged wrongful taking of the IROproperty to cover fees, the return of theproperty.

The trial court granted the defendant'svarious motions for dismissal or for sum-mary judgment, finding that the trusts hadfailed to timely commence their actions un-der the pertinent statutes of limitations.On appeal, IRO and IRT contended, amongtheir various assignments of error, that the:trial court erred in finding their claims ofaccountant malpractice, fraud, conversionand breach of trust time-barred by eitherR.C. 2305.09 or 2305.11.

The court of appeals affirined the trialcourt's dismissal of the trusts' claims purportedly alleging accountant negligence astime-barred under the four-year limitationsperiod set forth in R.C. 2305.09(D). How-ever, the appeals court reversed and re-manded the trial court's dismissal of theclaims founded in fraud, conversion andbreach of trust, finding that under the ex-

S

It.hatC&Lhado audit the financialccordance with gen-ards for the years1973 and 1974, with

:red. until after June

broad allegations ofire charges that C &ly with generally ae-ards and procedures.:laims alleging:

L defendants men-taken intentionallyteceive and defraudthereof IRO was de-and has suffered therth." (Emphasis add-

mught "[a]gainst eachd sevei'ally, for fraudnt in the collectivecapital contributed toiaries * ' ' and anid exemplary damagesie C & L defendantsreach of contract, ancollective gross capitalIRO beneficiaries, andgful taking of the IRO

'ees, the return of the

ranted the defendant's. dismissal or for sum-ding that the trusts hadimence their actions un-statutes of limitations.I IRT contended, amongtmenta of error, that the, finding their claims ofctice, fraud, conversionit time-barred by either05.11.peals affirmed the trialf the trusts' claims pur-,ccountant negligence asthe four-year limitationsR.C.2305.09(D). How-court reversed and re-court's dismissal of thei fraud, eonversion andnding that under the ex-

INVESTORS REIT ONE v. JACOBS Ohio 209Cite es 546 N.E.2d 706 (Ohio 1989)

press terms of R.C. 2305.09(D), the stat-ute's four-year limitations period did notcommence to run on these latter claimsuntil the complainants discovered or shouldhave discovered the claimed matters.

The cause is now before this court pursu-ant to the allowance of a motion to certifythe record.

Crabbe, Brown, Jones, Potts & Schmidt,Charles E. Brown, Steven B. U79Ayers, JillT. Fleishman, Strip, Fargo, Schulman &Hoppers, A.C. Strip, John Z. Fargo andMichael P. Vasko, Columbus, for appet-lants•

Vorys, Sater, Seymour & Pease, David S.Cupps, F. James Foley and Charles P. Hur-ley, Columbus, for appellees.

Squire, Sanders & Dempsey, David J.Young, Kevin R. McDermott, Michael W.Petfit and Kim L. Swanson, Columbus, urg-ing affirmance for amicus curiae, Ohio Soc.of Certified Public Accountants.

JOHN V. CORRIGAN, Judge, Court ofAppeals.

[1] The issue presented for our consid-eration by the appellant-trusts, IRO andIRT;queries whether the discovery rule isavailable to extend the.governing statuteoflimitations on the claims of IRO and IRTsgainst the accountant-defendants for neg=]igence. The "discovery rule" generallyprovides that a cause of action accrues for

Ir:',-RC: 2305.09 provides:"An. action for any.of the following causes

shall be brouglit within four years after the"cause thereof accrued: . '. . -,'^ "(A) For lrespassing upon reai property;

{;ib "(B)For.the recovery of personal property, or7for taking^or detaining it;

e C_, ( ) For relief on the ground of fraud;(D) For an injury to the rights ofthe plaintiff

-pt arising on contract nor enumerated in seo-, 2305.10 to 2305.12, inclusive, 2305.14 and.24 of the Revised Code.

,*tlie action isJbr trespassing under groundjGry to mines, or for the wrong/al taking of

anal property, the causes thereol shall notc+Jue wrtil the wrongdoeris discovered• nor fj,

P`ils`'/or Jr(iud until the fraud is discovered."

phasis added.)

C. 2305:10 provides, in relevant part:!Artaction for bodilv iniurv or iniurine uer-nal._ property shall be brought _ within two

safter the cause thereof arose."

purposes of the governing statute of limita-ticns at the time when the plaintiff dis-covers or, in the exercise of reasonablecare, should have discovered the com-plained of injury. See Oliver v. KaiserCommunity Health. Found (1983), 5 OhioSt.3d 111, 5 OBR 247, 449 N.E.2d 438;Skidmore & Hall v. Rottman (1983), 5Ohio St.2d 210, 5 OBR 453, 450 N.E.2d 684.We find that the discovery rule is not avail-able to claims of professional negligencebrought against accountants.

R.C. 2305.091 provides a general limita-tions period of four years for tort actionsnot specifically covered by other sections ofthe Ohio Revised Code. See Mahalsky v.Salem Tool Co. (C.A. 6, 1972), 461 F.2d581, 585. General tort claims, includingthose for negligence, are governed by R.C.2305.09(D). Richard v. Staehle (1980), 70Ohio.App.2d 93, 24 0.O.3d 121, 434 N.E.2d1879. Likewise, general claims-of profes-sional negligence which are outside the am-bit of R.C. 2305.10 2 and 2305.11 s are alsogoverned by the four-year limitations peri-od in R.C. 2305:09. See id

Ohio courts have consistently interpretedR.C. 2305.11(A) restrictively and have re-fused to extend the statute to include pro-fessional malpractice claims which are nei-ther considered specifically by the terms ofthe statute nor traditionally included underthe common-law definition of "malp-ra^ticel8o:"' See, e.g., Hocking Conserp-

3. RC. 2305.11(A), as effective July 1, 1976, pro-vided in relevant part:

"An action forlibel. slander, assault, battery,malicious prosecution, false imprisonment, ormalpractice, including an action for malpracticeagainst a physician, podiatrist, or a hospital; orupon a statute for a penalty of forfeittae, shallbe brought within one year afterthe causethereof accrued ". * *." (Subsequently amend-ed.)

4. At commoa law, the common meaning andlegal definition of the term "malpractice" waslimited to the professional misconduct of medi-cal professionals andattoineys. Riehardson v.Dae (1964), 176 Ohio St. 370, 372, 27 0.0.2d345,347,.199 N.E.2d 878, 880 (citing Long v. Bower-sax [1909], 19 Ohio Dec. 494,.498-499, 8, OhioN.P. [N.S.] 249, 254).

210 Ohio 546 NORTH EASTERN REPORTER, 2d SERIES

ancy Dist, v. Dodson-Lindblom Assoc.(1980), 62 Ohio St.2d 195, 16 0.0.3d 217,404 N.E.2d 164 (professional engineer);see, also, Lombard v. Medical Center(1982), 69 Ohio St.2d 471, 23 0.0.3d 410,433 N.E.2d 162 (nurses and.laboratorytechnicians); Neilsen v. Barberton Citi-zens Hospital (1982), 4 Ohio App.3d 18, 4OBR 39, 446 N.E.2d 209 (nurse); Reese v.K-Mart Corp. (1981), 3 Ohio App.3d 123, 3OBR 140, 443 N.E:2d 1391 (pharmacist).Accountants are neither included specifical-ly by the terms of R.C. 2305.11 nor arethey traditionally considered professionalssubject to malpractice claims at commonlaw: Thus, R.C. 2305.11 does not governclaims brought against accountants for al-leged professional misconduct:

This court has found that the two-yearstatute of limitations contained in R.C.2305.10 governs claims of bodily injury re-sulting from the alleged negligence ofhealth-care professionals other than thoseexpressly included in R.C. 2305.11. See

Depending on the claim and the applicablestatute, the date of discovery may toll therunning of the governing statute of limita-tions until the plaintiff discovers or, in theexercise of reasonable care, should havediscovered the complained-of injury.

Malpractice claims brought under R.C.2305.11(A) "shall be brought within oneyear after the cause of action accrued."However, the statute does not expresslyconsider the time when such a cause ofaction accrues; and, consequently, the mat-ter has been relegated to determination bythe Ohio judiciary.

In Oliver v. Kaiser Community HealthFound, supra, this court determined thatthe discovery rule was applicable to medi-cal malpractice claims brought under R.C.2305.11(A). See, also, Hershberger v.Akron City Hospital (1987), 34 Ohio St.3d1, 516 N.E.2d 204 (explaining Oliver, su-pra, and its progeny); Frysinger v. Leech(1987), 32 Ohio St.3d 38, 512 N.E.2d 337(explaining and modifying Oliver, supra ).

Whitt v. Columbus Cooperative (1980), 64 _LVlThis court has likewise determined thatOhio St.2d 355, 18 0:0.3d 512, 415 N.E.2d the discovery rule is applicable to claims in985; Rxchardson v. Doe (1964), 176 0hioSt. 370, 27 0.0.2d 345, 199 N.E.2d 878. We:have not extended the statute to includegeneral negligence claims. Thus, R.C.2305.10 is not applicable to claims of negli-

legal malpractice brought under R.C. 2305:11(A). Skidmore & Hall v. Rottman, su-pra; see, also; Zimmie v. Calfee, Hatter &Griswold (1989), 43 Ohio St3d 54, 538N.E.2d 398.

gence against acoountants.

[2] We find that claims of accountantnegligence are governed by the four-yearstatute of limitations for general negli-gence claims found in R.C. 2305.09(D), notby the two-year period for bodily injury orinjury to personal property set forth inR.C. 2305.10, or by the one-year limitaHonsperiod for professional malpractice claimsin R.C. 2305.11(A). See Holsman Neon &Electric Sign Co. v. Kohn (1986), 34 OhioApp.3d 53, 516 N.E.2d 1284; Richard v.Staehl4 supra

This coart has determined that, in somecircumstances, a discovery rule is appropri-ate for calculating when a.cause of actionaccrues for purposes of defining a limita-tions period. Within the parameters of. ex-pressly defined circumstances, the dis-covery rule is applicable to claims broughtunder R.C. 2305.09, 2305.10 and 2305.11(A).

The General Assembly has incorporateda discovery rule into the terms of R.C.2305.10, which provides that an action forbodily injury or injury to personal propertyshall be brought within two years after thecause of action arose. Effective June 12,1980, the terms of the statute expresslyincluded a discovery rule for claims of bodi-ly injury caused by exposure to aabestos orto chromium. (138 Ohio Laws, Part II,3412.) In O'Stricker v. Jim Walter Corp.(1983), 4 Ohio St.8d 84, 4 OBR 835, 447N.E.2d 727, this court expanded the dis-covery rule incorporated into R.C. 230510to include general claims of bodily injury,when the claimed injury does not manifestitself immediately. The General Assemtilyhas further amended R.C. 2305.10 to ex;tend the terms of its discovery rule tazclaims of bodily injury caused by exposiu'e:

`to certain specified chemicals and drug

and the applicablewery may toll the; statute of limita-.iscovers or, in thecare, should haveed-of injury.

ought under R.C.-ought within onef action accrued."loes not expresslyi such a cause ofsequently, the mat-p determination by

;ommunity Healthirt determined thatapplicable to medi-

brought under R.C.5, Hersh6erger v.1987), 34 Ohio St.3dplaining Oliver, su-Frysinger v. Leech38, 512 N.E.2d 337ing Oliver, supra).vise determined thatpplicable to claims inght under R.C. 2305:fall v. Rottman, su-e v. Calfee, Halter &Ohio St.3d 54, 538

ibly has incorporated) the terms of R.C.es that an action forrto personal propertyin two years after the;. Effective June 12,the statute expresslyule for claims of bodi-cposure toasbestos orOhio Laws, Part II,v. Jim Walter Corp.84, 4 OBR 335, 447

nt expanded the dis-ated into R.C. 2305.10laims of bodily injury,ury does not manifestrhe General Assemblyd R.C. 2305.10 to ex-its discovery rule tory caused by exposurechemicals and drugs.

INVESTORS REIT ONE v. JACOBS Ohio 211Cite w 546 N.A2d 206 (Ohto 1989)

See R.C. 2305.10, as amended August 26,1982 and May 31, 1984. (139 Ohio Laws,Part I, 866, 867, and 140 Ohio Laws, Part I,1767, 1768.)

[31 The discovery rules adopted by thiscourt and by the General Assembly forbodily injury claims brought under R.C.2305.10, and the discovery rules determinedin Oliver, supra, and Skidmore, supra, formedical and attorney malpractice claimsarising under R.C. 2305.11(A), are not avail-able to negligence clainu; brought underR.C. 2305.09(D). However, R.C. 2305.09(D)expressly includes its own ]imited discoveryrule:

"If the action is for trespassing underground or injury to mines, or for thewrongful taking of personal property, thecauses thereof shall not accrue until thewrdngdoer is discovered; nor, if it is forfraud, until the fraud is discovered."

While expressly providing a. discoveryrule for certain actions arising under R.C.2305.09, no such rule. was extended to gen-eral negligence claims. The General As-sembly's failure to include general negli-gence claims under the discovery rule setout in R.C. 2305.09 argues strongly that itwas not the legislature's intent to apply thediscoveryrule to such claims. See Kirshe-man v: Paulin (1951), 155 Ohio St. 137,146, 44 0.0. 134, 139, 98 N.E.2d 26, 31(eiiplafning the statutory significance ofthe' Latin phrase, expressio unius est ex-cl7i.'stio alterius ). The legialature's expressipclusionof a discovery rule for certainitii4's arising under R.C. 2305.09, includingfraud and conversion, implies the exclusionofother torta arising under the statute,

:luding negligence. See tid

u'Squire v. Guardian Trust Co. (1947),OTub; App, 371, 35 0.0. 144, 72 N.E.2dthe"Court of Appeals for Cuyahogaty considered the availability of a dis-fy rule on multiple claims against di-irs bf a bank for money losses sufferedr bank. The trial court found the

s'sounding in negligenee but distinct'Shy claims of fraud to be time-barred2 four-year statute of Hmitations of11224 (presently encoded as R.C.• The trial court further fonnd

that the running of the statute of.limita-tions was not tolled by the alleged conceal-ment of the claimed negligence.

In a statement of what is stillgood law,the reviewing court in Squire, supra, ex-plained:

"In some states applicable statdtes of

limitations are by express provision

_ysatherein tolled until the discovery of the

wrong. * * ' [Citation omitted.] In ourown state, the statute is tolled in like man-ner in cases of fraud and certain trespasses.(Section 11224, General Code .[R.C. 2305.-09].)

"If the Legislature had deemed it expedi-euEit could have so provided, either geher-ally as to cases of concealed torts, or in thebanking act as to wrongful acts of officersand directors. It has not done so, and therelief if it is extended should be furnishedbylegislative act, not by judicial.legisla-tion.i, . it . , . .

"No exception has been provided cover-ing mere concealment as distinguishedfrom direct and specific allegaGons of factshowing fraud.

"Facts alleged showing mere conceal-ment are not sufficient, therefore, to tollthe statute." Id. at 384-385, 35 0.0, at150, 72 N.E.2d at 146.

. In the case now before us, IRO and IRTasserted in their complaints that C & L hadserved as acconlitants for IRO and IRTthrough at least part of 1975. The ac-countants prepared annual audits for theyears 1969 through 1974, which wereturned over to the trusts on completion. Itwas not until April 23, 1980, more thanfour years later, that complaints were filedagainst the defendants on behalf of the

. . . .trusts.

For reasons set forth above, we find thatthe trusts' causes of action commeuced nolater than 1975. Since the discovery ruleset forth in R.C. 2805.09(D) is applicable toclaims founded in fraud, conversion andbreaeh of trust by the terms of the statute,the court of appeals appropriately reversed

212 Ohio 546 NORTH EASTERN REPORTER, 2d SERIES

and remanded the summary judgmentsgranted on such claims. However, we con-cur with the court of appeals that the dis-covery rule is inapplicable to the trusts'purported claims in accountant negligencearising under R.C. 2305.09(D). The four-year statute of limitations governing suchclaims in accountant negligence com-menced to ran when the allegedly negli-geqt act was committed or, in this case, nolater than 1975.

The General Assembly has not adopted adiscovery rule aplicable to general negli-gence claims arising under R.C. 2305.09.This court will not interpret R.C. 2305.09 toinelude a discovery rule for professionalnegligence claims against accountants aris-ing under R.C. 2305.09 absent legislativeaction on the matter..

° Accordingly, we affirm the judgment ofthe court of appeals, finding that no issuehad been established which would ensurethe survival of the appellants' claims inaccountant negligence brought more thanfour years after the cause of action ac-crued. The appellants' claims sounding inaccountant negligence are tiime-barred bythe four-year limitations period in R.C.2305.09. However, we note that the appel-lants' claims in fraud, conversion andbreach of trust brought against the ac-countants and other named defendants inthis case survive, pending the trial court'sdeterminations on the reversal and remandordered by the court of appeals.

Judgment affirmed.

MOYER, C.J., and HOLMES,STEPHENSON and RESNICK, JJ.,concur.

SWEENEY, Judge, concurring in partand dissenting in part.

I wholeheartedly concur in the majority'sfirst paragraph of the syllabus regardingthe proper statute of limitations applicableto claims sounding in accountant malprac-tice or negligence. Contrary to the argu-ments of amicus curiae, the Ohio Societyof Certified Public Accountants, the two-year limitations period set forth in R.C.2305.10 is inappropriate for determiningthe timeliness of a malpractice or negli-gence claim brought against an accountant.R.C, 2305.10 contemplates an action forbodily injury not covered by a more specificstatutory limitations period, or for injuringpersonal property. The instant action,however, is for professional malpractice ornegligence of accountants. As appellantscorrectly submit, the essence of their claimis the failure of the accountants to performduties attendant to accounting services, notthe accountants' physically injuring the ap-pellants' personal property. Therefore, thelimitations period set forth in R.C. 2305.09is most appropriate for determining thetimeliness of actions in accountant malprac-tice or negligence.

Notwithstanding the foregoing, I strong-ly disagree with the majority's paragraph2a of the syllabus which precludes applica-tion of the "discovery rule" for claims ofprofessional negligence brought against ac-countants. Therefore, I must dissent fromthe majority's refusal to place accountantson equal footing with other professionals(i.e., physicians and attorneys) with regardto determining the accrual of a professionalnegligence or malpractice claim.

The majority apparently declines to applya discovery rule to actions grounded inaccountant negligence simply because theGeneral Assembly did not adopt such a ruleSWEENEY and DOUGLAS, JJ.,

concur in part and dissent in part.

EARL E. STEPHENSON, J., of theFourth Appellate District, sitting forWRIGHT, J.

• JOIIN V. CORRIGAN, J., of the1s3Eighth Appellate District, sitting for

HERBERT R. BROWN, J.

in its enactment of R.C. 2305.09(D). How-ever, such perfunctory reasoning has beenrepeatedly eschewed by this court in other"discovery" cases. See, e.g., 0'Stricker v.Jim Walter Corp. (1983), 4 Ohio St.8d 84, 4OBR 335, 447 N.E.2d 727; Oliver v. Kaiser

Community Health Found. (1983), 5 OhioSt.3d 111, 5 OBR 247, 449 N.E.2d 438.More importantly, such reasoning ignores

concurring in part

ur in the majority'ssyllabus regarding

mitations applicableiccountant malprac-mtrary to the argu-ze, the Ohio Societycountants; the two-I set forth in R.C.ite for determiningaalpractice or negli-;ainst an accountant.)lates an action fored by a more specific,eriod, or for injuringThe instant action,;sional malpractice ortants. As appellantsessence of their claimecountants to performeounting services, notaically injuring the ap-perty. Therefore, theforth in R.C. 2305.09for determining the

in accountant malprac-

he foregoing, I strong-^ majority's paragraphrhich precludes applica-Iry rule" for claims ofnce brought against ac--re, I must dissent fromsal to place accountantsrith other professionalsI attorneys) with regardaccrual of a professional)ractice claim.

arently declines to applyto actions grounded in;nce simply because thedid not adopt such a rulef R.C. 2305.09(D). How-'tory reasoning has beened by this court in other

See, e.g., 0'Stricker v.(1983), 4 Ohio St.3d 84, 4

:.2d 727; Oliver V. KaiBertth Found. (1983), 5 OhioR 247, 449 N.E.2d 438.r, such reasoning ignores

INVESTORS REIT ONE v. JACOBS Ohio 213Cae ac 546 N.H.2d 206 (Ohio 1989)

this court's essential role in ensuring that escape liability for injuries he has inflictedcases be decided both fairly and equitably.Under the majority's rationale, one couldalmost make the argument that the Gener-al Assembly did not. intend accountants tobe liable for malpractice at all, since, unlikeother professions, accountant malpracticeis not mentioned in R.C. Chapter 2305. Inany event, legislative inaction on a particu-lar issue does not necessarily mean that thelegislature made a conscious decisionagainst a certain point of view. See Qli-ver, supra.

, Like attorney and physician malpractice,accountant malpractice can entail deleteri-obs consequences that are deserving of ju-dicial redress. The majority's refusal toapply a discovery rule in the accountantmalpractice area has the effect of denyinga claim of an injured party before the in-jured party, knew any such claim existed.In my view, the majority's application ofR.C. 2305.09(D), so as to bar the claims ofaccountant malpractice plaintiffs who didnot know or could not reasonablyhaveknown of,their injuries, clearly violates the"opencourts" or "right-to-a-remedy" provi-sion of Section 16, Article I of the OhioConstitution. This provision states:

""All courts shall beopen, and every per-son, for an injury done him in his land,goqds, person, or reputationjo4shall haveFemedy by due course of law, and shallhave justice administered without denial ordelay." See Hardy v. VerMeulen (1987),A2;,Ohio St.3d 45, 512 N.E.2d 626.

Ai)dy,.failing to apply a discovery rule totan a(4ecoun t malpr ctice claims, the majority

ilas accorded a veritable "sacred cow" sta-a whereby,accountants are-treated differ-Wfrom all other professionals. As an-uants. submit on page two of their reply

': "All that is ezpected of a profession-hether he be a doctor, lawyer, or ac-ttant, is that he perform his duties hon-thcompletely, and competently accord-

the standard of care required for theazlai•: profession. Merelv because an

tantv'dates' an aiidit report or mere-use an accountant is not considered'::-guara.ntor of the accuracy of an

ddes not entitle the accountant to

by his negligence on one who is unablethrough due diligence to promptly uncoverthe wrong done to him.. An accountantshould be allowed no more protection fromhis wrongdoing than is a physician or anattorney."

In my opinion, the discovery rule in thiscontext is not only fair, but also eminentlysensible. Research reveals that the viewthat a cause of action against an account-ant for negligence accrues, and the statuteof limitations commences to run, when theinjured party discovers, or in the exerciseof reasonable diligence should have discov-ered the negligent act has wide supportthroughout the country. The followingcases have eatablished or reiterated someform of a discovery rule to govern account-ant malpractice actions in their respectivejurisdictions. See Sato v. Van Denburgh(1979), 123 Ariz. 225, 599 P.2d 181; Mooniev. Lynch (1967), 256 Cal.App.2d 361, 64Cal.Rptr. 55; Brueek v. Krings (1982), 230Kan. 466, 638 P.2d 904; Leonhart v. At-kinson (1972), 265 Md. 219, 289 A.2d 1;Frank Cooke, Inc. v. Hurwitz (1980), 10Mass.App. 99, 406 N.E.2d.678; Brower v.Davidson, Deckert, Schutter & Glaasman,P.C. (Mo.App.1984), 686 S.W.2d 1; Chis-holm v. Scott (1974), 86 N.M. 707, 526 P.2d1300; see, also, Annotation (1969), 26 A.L.R.3d 1438. I believe that in the interest ofjustice, fairness and consistency, Ohioshould also adopt a discovery rule for de-termining the accrual date for causes ofaction sounding in accountant malpractice.

Accordingly,.while I would affirm thecourt of appeals' judgment that R.C. 2305:09(D) is the proper statute of limitationsgoverning accountant malpractice actions, Iwould reverse the court of appeals in partand adopt the discovery:rule for claims ofaccountant malpractice.

DOUGLAS, J., concurs in the foregoingopinion.

S•h'E'Z'I

708 Ohio 617 NORTH EASTERN REPORTER, 2d SERIES

1. Administrative Law and Proceduree=229

Doctrine of exhaustion of administra-tive remedies is a court-made rule of judi-cial economy which is generally required asa matter of preventing premature interfer-ence with agency processes, so that agencymay function efficiently and so that it mayhave an opportunity to correct its own errors, to afford parties and courts the bene-fit of its experience and expertise, and tocompile a record which is adequate forjudicial review.

2. Administrative Law and Procedureea229

Purpose of doctrine of exhaustion ofadministrative remedies is to permit admin-istrative agencyto apply its special exper-tise and in developing a factual recordwithout premature judicial intervention.

3. Administrative Law and Procedurea;-229

Failure to exhaust administrative rem-edies is not a jurisdictional defect, and sucha failure will not justify a collateral attackon an otherwise valid and final judgment;it is an affirmative defense which must betimely asserted in an action or it will beconsidered waived.

4. Pretrial Procedure e-624

Before court caii dismiss a complaintfor failure to state a claim upon whichrelief can be granted, it mustappear be-yond a doubt that plaintiff can prove no setof facts in support of claim which wouldentitle him to relief. Rules Civ.Proc., Rule12(BX6).

5. Pretrial Procedure 4-679

In construing complaint upon motionto disniiss for failure to state a claim, courtmust presume all factual allegations ofcomplaint are true and.make all reasonableinferences in favor of.,nonmoving party.Rules Civ.Proc.; Rule 12(B)(6).

6. Civil Rights e-192, 196.1

To establish § 1983 claim, two ele-ments are required: conduct in controversymust be committed by a person acting un-der color of state law; and conduct must

deprive plaintiff of rights, privileges or inmunities secured by the Constitution olaws of the United States. 42 U.S.C.q§ 1983.

_L^117. Pretrial Procedure «561.1

Affirmative defenses may generall

not be raised by motion to dismiss fo

failure to state a claim. Rules Civ.Proc

Rule 12(B)(6).

8. Pretrial Procedure c-681Assuming that failure to exhaust a(

ministiative remedies was affirmative difense, it was error to dismiss complaint fefailure to state a cause of action, despitdefendants' claim that consent decree riquired exhaustion of administrative remidies, where amended complaint did not coitain consent decree and court therefoiconsidered material not in complainRules Civ.Proc., Rule 12(B)(6).

9. Pretrial Procedure -r--554

Standard to apply for dismissal due tlack of subject matter jurisdiction is whet]er plaintiff has alleged any cause of actidwhich court has authority to decide. RulCiv.Proc., Rule 12(B)(1).

10. Pretrial Procedure 0-681In determining whether plainGiff

alleged a cause of action sufficient to wistand a motion to dismiss for lack of sject matter jurisdiction, trial court isconfined to allegations of complaint, andmay consider material pertinent to suinquiry without converting motion into ofor summary judgment. Rules Civ.PrRule 12(B)(1).

11. Pretrial Procedure 0-554

Court may dismiss complaint forof jurisdiction over subject matter on bof complaint alone, complaint supplemenby undisputed facts evidenced in theord, or complaint supplemented by unputed facts plus court's resolution ofputed facts. Rules Civ.Proc., Rule 12(B

12. Administrative Law and Procede=229

Contract may provide basis for etion of administrative remedies req

ment.

2d SERIES

atiff of rights, privileges or im-cured by the Constitution or! United States. 42 U.S.C.A.

11 Procedure e=561.1tive defenses may generallyed by motion to dismiss forate a claim. Rules Civ.Proc.,^).

Procedure e=681

ig that failure to exhaust ad-remedies was affirmative de-error to dismiss complaint for

ate a cause of action, despiteclaim that consent decree re-istion of administrative reme-tmended complaint did not con-

decree and court thereforematerial not in complaint.,oc., Rule 12(B)(6).

'rocedure Q-554

1 to apply for dismissal due toct matter jurisdiction is wheth-as alleged any cause of actionias authority to decide. Rulesde 12(B)(1).

Procedure <=:-681

mining whether plaintiff hasse of action sufficient to with-)n to dismiss for lack of sub-urisdiction, trial court is notllegations of complaint, and it,r material pertinent to sucqut converting motion into onejudgment. Rules Civ.Pro6;

Procedure Q=554

ty dismiss complaint fori over subject matter on btlone, complaint supplemend facts evidenced in thelaint supplemented by unilus court's resolution ofRules Civ.Proc., Rule 12(B

rative Law and Proced

may provide basis for e!nistrative remedies reql

13. Administrative Lawa229

Civil Rights e-194

JOHNSON v. WILKINSON Ohio 709Cite as 617 N.E2d 707 (Ohio App. 4 nist. 1992)

and Procedure missing his amended complaint brought un-

Frost consent decree in federal actioninvolving prison conditions and requiringexhaustion of administrative remedies didnot re,quire inmate to exhaust administra-tive, remedies before bringing § 1983 ins}ate court where consent decree limitedexhaustion requirement.to civil, actions con-sidered by "this Court; ' meaning the feder-al slistrict court. 42 U.S.C.A. § 1983.

14:;Appeal and Error u-854(2)

'^^1teviewing court is not authorized toewrse correct judgment merely because

d'eous reasons were assigned as thethereof.

Gourts e.-472.1mrt of Claims had exclusive, originalyjjon over inmate's state law claims

at prison officials who were state em-f Cl imsas inasmuch as only CourL o

4ete`rmine initially whether officialsy. ..natled to persona tmmum

27i3.02(F).

f0ights ^210. . .. .. . ^.jt,tes § 1983 claims against prisonty officials were not subject todefenses. 42 U.S.C.A. § 1983.

n0-472.1'ofClaiins did not have exclusiveii`oVer inmate's statelaw claimsoiiii`ty emllloyee. R.C. § 2743:

Johnson, pro se.

Atty, Gen.,. Gary D. AndorkaMyers, Asst. Attys. Gen.,

ur appellees Reginald A.L. Morris and Susan Dunn.

c; Y1ard, Ross Connty Pros.!9the,, for appellee George T.

udge: ,

'J6hpson; plaintiff-appellant,^ judgment entered by the

urt of Common Pleas dis-

der Section 1983, Title 42, U.S.Code for adeclaratory judgment, injunctive relief anddamages against Reginald A. Wilkinson,Director of the Ohio Department of Reha-bilitation and Corrections, Terry L. Morris,Warden of the Chillicothe Correctional In-stitution ("CCI"), Susan Dunn, DeputyWarden of CCI, and George T. Wright,Director of Environmental Health for Ross

County.

Appellant assigns the following errors:

"I. The trial court erred to the prejudiceof plaintiff-appellant in making a factualdetermination that -plaintiff-appellant hadnot exhausted administrative remedies pri-or to litigation of his claims to the court.

"II. The-trial court erred.to the preju-dice of plaintiff-appellant in granting themotion to dismiss without first accepting astrue the well pleaded allegations of thecomplaint and construing them most favor-ably to plaintiff-appellant.

°III. The trial court erred to the preju-dice of plaintiff-appellant in dismissing hiscomplaint su¢ sponte as to the defendantHealth Inspector."

JUiaOn April 29, 1992, appellant, an in-mate incarcerated at CCI, filed a complaintfor declaratory judgment, injunctive reliefand nioaey damages which named appel-lees as defendants in boththeir individualand official capaciUes. Prior to any motionor responsive pleading to the original com-plaint, appellant filed an amended com-plaint seeking similar relief- against thesame defendants on May 22, 1992. Thecomplaint; as amended,statedthat it wasbeing brought pursuant to Section 1983;Title 42, U.S.Codeto challenge confinementconditions at CCI. The amended complaintalso raises state 7aw claims against appel-lees by alleging that they 'violated statestatutes and health and fire regulationsand thit they were guilty of gross negli-gence and/or willful and wanton miscon-duct. The amended complaint alleged thatCCI's conditions included lack of fire safetydevices and fire escapes, inadequate plumb-ing, heating and cooling, unsanitary kitch-en, dining; and living areas, overcrowding,

710 Ohio 617 NORTH EASTERN REPORTER, 2d SERIES

insufficient toilet facilities, asbestos con-tamination, inadequate hospital facilities,lack of security, and rodent and insectinfestation. The amended complaint fur-ther provided:

"12. On or about November 4, 1991,plaintiff filed a grievance to the Institution-al Inspector at CCI alleging inter alia thatthe crowding of additional beds into thehall ways [sic] of D dormitory and otherareas was in essence creating a situationwhereby if an emergency would occurmany could be seriously injured. The de-fendants have not responded to any of thecomplaints.

"13. Due to the seriousness of the over-crowding at CCI, including but not limitedto, the forcing of some 44 beds into the hallways [sic] of CCI, plaintiff fileda blotion toEnforce in the federal court while beingunder the impression that CCI was in factunder a consent decree which could be en-forced. However, after some research andlater finding out that the eonsent decreedid not involve such situations, plaintiffinunediately dismissed the motion, to en-force based on jurisdiction and, filed thecase sub judice to this Court. ••'"

The amended complaint did not incorpo-rate the consent decree. Appellant. re-quested a declaratory judgment that appel-lees' procedures and acts "violated plain-tiff's rights under Ohio Statutory Laws,regulations, health and fire codes, and fur-ther violate plaintiff's rights under theUnited States Constitution.." Appellantfurther prayed for injunctive relief, com-pensatory and punitive damages.

On May 28, 1992, appellees Wilkinson,Morris and Dunn filed a motion to dismissappellant's.amended complaint pursuant toCiv.R. 12(BH1) and (6). The Civ.R. 12(B)(1)motion to dismiss for lack of subject matterjurisdiction was based upon their conten-tion that the Court of Claims, not a com-mon pleas court, had exclusive initial juris-diction in Section 1983 actions against stateemployees. ,. The Civ.R. 12(B)(6) motion: todismiss for failure to state a claim uponwhich relief can be granted was based onseveral grounds, including that appellanthad failed toW4exhaust his administrative

remedies pursuant to Ohio Adm.Code 5120-9-31 as required by the consent decreeentered in Frost v. Denton (Dec. 30, 1982),S.D.Ohio No. C-2-79-62, unreported. Anuncertified copy of that decree was at-tached to the dismissal motion.

On June 8, 1992, appellee Wright filed ananswer to appellant's amended complaintwhich asserted several defenses, includingfailure to state a claim upon which reliefcan be granted and lack of jurisdiction overthe subject matter, and requested dismiss-al. Appellanf subsequently filed a memo-randum in opposition to appellees Wilkin-son, Morris and Dunn's motion to dismiss.On July 28, 1992, the trial court entered ajudgment dismissing appellant's amendedcomplaint on the basis that appellant hadnot complied with the Frost consent decree,since he "failed to establish he had ex-hausted his remedies prior to filing thisaction."

Appellant's first assignment of error as-serts that the trial court erred in making afactual determination that he had not ex-hausted his administrative remedies priorto litigation of his claims to the court. Hissecond assignment of error asserts that thetrial court erred in granting the motions todismiss without accepting as true the alle-gations of his amended complaint and con-struing the allegations most favorably toappellant. In that these assignments oferror raise similar issues of law, we willconsider them jointly.

Under either a Civ.R. 12(B)(1) or (B)(6)dismissal motion, we must independentlyreview the issue as a matter of law. How-ever, the legal standard involved varies de-pending upon whether the trial court gran4ed either appellees' Civ.R. 12(B)(1) or (BK^motion to dismiss when it determined that,;appellant had failed to exhaust his adminis;

ktrative remedies as required by the Fra4

consent decree. Civ.R. 12(B)(1) permits diemissal when the trial court lacks subjmatter jurisdiction and Civ.R. 12(B)(6) pvides for dismissal when the complaintto state a claim upon which relief cangranted.

ERIES

to Ohio Adm.Code 5120-by the consent decreeDenton (Dec. 30, 1982),

!-79-62, unreported. Anof that decree was at-nissal motion.

, appellee Wright filed antnt's amended complaintveral defenses, includingclaim upon which relief

d lack of jurisdiction over°, and requested dismiss-isequently filed a memo-tion to appellees Wilkin-lunn's motion to dismiss.the trial court entered aing appellant's amendedbasis that appellant hadthe Frost consent decree,to establish he had ex-dies prior to filing this

assignment of error as-court erred in making a

;ion that he had not ex-tistrative remedies prior.claims to the court. Hisof error asserts that thegranting the motions to

cepting as true the al]e-^nded complaint and con-,tions most favorably tot these assignments ol• issues of law, we willitly.

Civ.R. 12(B)(1) or 06)we must independena matter of law. How,dard involved varies d1her the trial court g

Civ.R. 12(B)(1) or (Bwhen it determinedI to exhaust his admitia required by thev:R. 12(B)(1) permitsrial court lacks suband Civ.R. 12(B)(6)

when the complain)on which relief can

JOHNSON Y. WILKINSON Ohio 711Cite as 6l7 N.F..2d 707 (Ohio App. 4 Dtel. 1992)

[1,21 In Ohio, the doctrine of exhaus- that the failure to exhaust administrativeAon of administrative remedies is a court- remedies does not affect a court's subjectmade rule of judicial economy which is matter jurisdiction, but merely is an affir-generally required as a matter of prevent- mative defense that must be timely raiseding premature interference with agency and established.' Therefore, we must pro-processes, so that the agency may function ceed initially pursuant to the legal standardefficiently and so that it may have an op- set forth for Civ.R: 12(B)(6) rather thanportunity to correct its own errors, to af- Civ.R. 12(B)(1).ford the parties and the courts. the benefitof its experience and expertise, and to com- [4, 5] In order for a court to. dismiss apile a record which is adequate for judicial complaint pursuant to Civ.R. 12(B)(6) for

review: Nemazee v. Mt. Sinai Med. Ctr. failure to state a claim upon which relief

(1990), 56 Ohio St.3d 109, 111, 564 N.E.2d can be granted, it must appear beyondfi doubt that the plaintiff can prove no set ofciting Weinberger v. Sal477 479-480 ,,,

(1975), 422 U.S. 749, 765, 95 S.Ct. 2457, facts in support of his claim which wouldOhi St tli Y k o eef. or v. a2466-2467; 45 L.Ed.2d 522, 538-539. The entitle him to re

60 Ohio St.3d 143,y po'se of the doqtrine is to permit an Highway Patrol (1991),O Brlenilstrative agency to. apply its special 144, 573 N.E.2d 1063, 1064-1065;

Use and in developing a factual record v. Univ. Community Tenants Union, Inc.ut 'premature judicial intervention. (1975), 42 Ohio St.2d 242, 245, 71 0.0.2d

ee, sitp ra, 56 Ohio St.3d at 111, 564 L°tl, °" "•"•`° °°' "-' °°^^ "'

bt 4'15-480. construing a complaint upon a motion to

dismiss for failure to state a claim, weFailure to exhaust administrative must presume all factual allegations of theSs tiot a jurisdictional defect and complaint are true and make all reasonablejustify a collateral attack on an inferences in favor of the nonmoving party

e"validand final judgment; it is an porly supra. Unlike motions under Civ.R.i$ve defense which must be timely 12(B)(1), here the court is restricted to thein. an action or it will be consid- complaint in answering this question ofze^. G¢nnon u Perk (1976), 46 mK,, See, e.g., Jenkins v. Eberhart (1991),

301, 309-310, 75 0A.2d 358, 71 Ohi 594 NE2d 29 30-351 354A 3 , ,,o pp. di$ N.E.2d 342, 347-348; Driscoll 31, citing State ex re1..Alford v. Willongh-town Assoc. (1975), 42 Ohio St.2d b 58 OhioCiy Seruice Comm. (1979),y1 0.0.2d 247, 254, 328 N.E.2d 39012 00,3d 229 2302d 221St 223 ,,. ,ienote that in Nemazee, supra, N 2d 782 784 ,E. .

.^d at111, 564 N.E.2d at 479, fn.l•eme Court ofOhio stated in [6-8] To establish a Section 1983 claim,pt 'titation of any supportive two elements are requved: (1) the conduct

nd; without expressing any de- in controversy must be committed by ae its prior holdings in Gan- person acting under color of state law; and

iscoll; that the failure to ex- (2) the conduct must deprive the plaintiff ofl`strative remedies was a juris- rights, privileges orglsimmunities secuied

•gnd that the. issues "are the by the Constitution or laws of the Uniteduitfier Civ.R. 12(B)(1) or States. Shirokey v. Marth (1992), 63 0hioin the fact that these state- St.3d 113, 116, 585 N.E.2d 407, 416; 1946C,Gzpressly included in the St. Clair Corp. v. Cleveland" (1990), 49

we are persuaded that Ohio St.$d 33, 34, 550 N.E.2d 456, 459.Drisuoll control. We hold Appellees do not deiiy on appeal that appel-

suggest that there is no authori- - appropriate" when a plaintiff has failed -towdJcta'sassertion that this exhaiust administrative remedies that are a

na.tter iurisdiction. See. e.e.. orereauisite to thesuit (emphasis added). Attller} Federal Practice and Pro= any rate, our conciusion in this case would be

) 195,`Section 1350, sfating the same concerning the Nemazee dicta SeeP.:-:12(h)(I): monon "may bc ^^ ^ discussion,- in/raC

712 Ohio 617 NORTH EASTERN REPORTER, 2d SERIES

lant's complaint sufficiently alleges both ofthe foregoing elements: Rather, appelleesclaim that the Frost consent decree re-quired dismissal because appellant hadfailed to exhaust the administrative reme-dies specified in that decree. However,appellant's amended complaint did not con-tain this decree. Instead, an uncertifiedcopy of the decree was attached to appel-lees Wilkinson, Morris and Dunn's motionto dismiss. Affirmative defenses may gen-erally not be raised by Civ.R. 12(Bx6) mo-tions. They are properly raised by motionsfor summary judgment. See, e.g., State exrel. Freeman v. Morris (1991), 62 OhioSt.3d 107, 109, 579 N.E.2d 702, 703-704.Therefore, assuming that failure to ex-haust administrative remedies is an affir-mative defense that does not affect subjectmatter jurisdiction pursuant to Gannonand Drfscol y supra, the trial court erred ingranting appellees' Civ.R. 12(B)(6) motionto dismiss since it considered material notcontained in the amended complaint.

[9-11] Alternatively, assuming, ar-guendo, that under the circumstances ofthis case, the language in Nemazee at 56Ohio St.3d at 111, 564 N.E.2d at 479, fn. 3,controls and the failure to exhaust adminis-trative remedies is a jurisdictional prerequi-site, we are not persuaded that our resultwould be different. The standard to applyfor a dismissal pursuant to Civ:R. 12(B)(1),lack of jurisdiction over the subject matter,is whether the plaintiff has alleged anycause of action which the court has authori-ty to decide. McHenry v. Indus. Comm.(1990), 68 Ohio App.Bd 56, 62, 587 N.E.2d414, 418-419; Avoo Financial Seru. Loan,Inc. v. Hale (1987), 36 Ohio App.3d 65, 520N.E.2d 1378. However, in determiningwhether the plaintiff has alleged a cause ofaction sufficient to withstand a Civ.R.12(B)(1) motion to'diamiss, the trial court isnot confined to the allegations of the com-plaint and it may consider material perti-nent to such inquiry without converting themotion into one for summary judgment.Qmethnnte Tlon L'nrn r Cnlarrnhin. Ans

court may dismiss a complaint for lack ofjurisdiction over subject matter on the ba-sis of (1) the complaint alone; (2) the com-plaint supplemented by undisputed factsevidenced in the record; or (3) the com-plaint supplemented by undisputed factsplus the court's resolution of disputedfacts. Jenkins, supra, 71 Ohio App.3d at355, 594 N.E.2d at 31, citing Williamson v.Tucker (C.A.5, 1981), 645 F.2d 404, 413.

[12,13) We begin our analysis of Civ.R.12(B)(1)'s application to appellant's actionby noting that his amended complaint is atleast partially premised on claims broughtpursuant to Section 1983, Title 42,U.S.Code. It has been hlvexpressly held bythe Supreme Court of Ohio that exhaustionof state administrative remedies is not re-quired prior to obtaining relief pursuant toSection 1983, Title 42, U.S.Code in statecourt. Gibney v. Toledo Bd. of Edn.(1988), 40 Ohio St-3d 152, 532 N.E,2d 1300,syllabus, citing Felder v. Casey (1988), 487U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123.Appellees, however, rely upon the "par-ties"' agreement as set forth in the Frostconsent decree rather than upon statutoryor case law. We note that a contract mayprovide the basis for an exhaustion of ad-ministrative remedies requirement. Nema-zee, supra, 56 Ohio St.3d at 112, 564N.E.2d at 480-481. The 1982 consent de-cree issued by the United States DistrictCourt for the Southern District of Ohio,,'Eastern Division, provided:

:"1. This is a class action for declaratoryand injunctive relief brought under 42U.S.C. Section 1983 and 28 U.S.C. Sections2201 and 2202, filed on January 16, 1979.1

"2. In an order of November 17, 197%'the Court certified this action under Rulg23(b)(2), Federal Rules of Civil ProcedureThe Court certified a plaintiff class of allpresent and future inmates of the Chillkcothe Correctional Institute (CCI).

,1 * * ♦

Transm. Corp. (1976), 48 Ohio St.2d 211, 2 "105. All inmate complaints regarmn0.0.3d 393, 358 N.E.2d 526, paragraph one compliance with the terms of paragrap.of the syllabus; McHenry, supro, 68 Ohio 104 or any other item, term, or conditiaApp.3d at 62, 587 N.E.2d at 418-419. A mentioned in this consent decree shall

SERIES

Liss a complaint for lack ofr subject matter on the ba-mplaint alone; (2) the com-mted by undisputed factste record; or (3) the com-mted by undisputed facts.'s resolution of disputed

supra, 71 Ohio App.3d atat 31, citing Williamson v.1981), 645 F.2d 404, 413,

begin our analysis of Civ.R.ation to appellant's actionlis amended complaint is atIremised on claims broughtSection 1983, Title 42,ts beenJgl7expressly held byurt of Ohio that exhaustion;trative remedies is not re-)btaining relief pursuant to'itle 42, U.S.Code in state

v. Toledo Bd. of Edn.St.3d 152, 532 N.E.2d 1300,Felder v. Casey (1988), 487.Ct. 2302, 101 L.Ed.2d 123,ever, rely upon the "par-1t as set forth in the Frostrather than upon statutory'e note that a contract mayis for an exhaustion of ad-iedies requirement. Nem.a-

Ohio St.3d at 112, 564181. The 1982 consent de-the United States DistrictSouthern District of Ohio,n, provided:

class action for declaratoryrelief brought under 42:

.983 and 28 U.S.C. Sectionsfiled on January 16, 1979.;

der of November 17, 1979Fied this action under RuleI Rules of Civil Procedure^fied a plaintiff class of adture inmates of the Chinal Institute (CCI).

mate complaints regardh the terms of paragr8er item, term, or condiu1is consent decree shall

JOHNSON v. WILKINSON Ohio 713Clte aa 617 N.E.2d 707 (Ohio App. 4 Dist. 1992)

made in writing to the Institutional Inspec-tor pursuant to Ohio Administrative CodeRule 5120-9-31.

"106. No civil complaint, citation forcontempt, or any other pleading regardingcompliance with the terms of paragraph104 or any other item, term, or conditionmentioned in this consent decree will beconsidered by this Court unless accompa-nied by evidence that the procedures spec-ified in Rule.5120-g-31 have been ex-

hausted. Such evidence shall include trueandaccuratecopes of the grievances, filedpur`suant to Rule 5120-9-31, and the repliestJtereto, or an affidavit affirmatively stat-idgPthat the procedures called for by Rule5^ 9 31 have been exhausted.

Thia consent decree describes and€s" the Chillicothe Correctional Tnsti-

It'exists on December 3, 1982. Noopdition of this consentor^t eetm;

e'i3 intended to affect the construe-Eriil"management of any new buildingstutions"eonstructed outside the ex-ehced compound described in para-

(Emphasis added.)

ryto the view espoused by appel-apparently ,a,dopted by the courtte plain lauguage of the consent

its the exhaustion requiiement toons to be considered by "thise.; the federal district court. The

decree does not purport to imposetiireriient118on all civil actions,

Qsg,,,filed in the United. Statesrt.for the Southern District ofcn Division- Furthermore, as

9tes3; in the. subsequent case of, Wilsqn . (Mar. 26, 1992),C 2r79 62, the same court

4hg,.Frost.consent decree in^^t the„Frost consentdecreetended to freeze conditions at

sition they were in when thegned"-and:that therdecrl?eQL.,p>~oad enough to cover any

i4af2ronsent decrees may consti•toiprove the affirmative defense

See generall 'Annotation^I, , y,. ,o^^$[ate,Courts as to Whetherent isEntitledto Res Judicata

;^Estoppel Effect (1979), 91

and all changes made at the institution." _Therefore, the trial court erred in dismiss-ing the Section 1983 claims of the amendedcomplaint, whether it be under Civ.R.12(B)(1) or (B)(6).

[14-171 It appears that appellant'samended complaint also asserts state lawclaims against all appellees. Appellant'sstate law claims against Wilkinson, Morrisand Dunn, as state employees, are barredby R.C. 2743:02(F) because the Court ofClaims possesses exclusjve, original juris-diction to determine initially whether theywere entitled to personal immunity underR.C. 9:86. White v. Morris (1990), 69 OhioApp.3d 90, 95, 590 N.E.2d 57, 60-61; Wil-son v. Patton (1990), 66 Ohio App.3d 46,588 N.E.2d 410. However, appellant's Sec-tion 1983 claims are not subject to "statelaw defensesr White, supra;• Besser v.Dexter.(1990), 68 Ohio App.3d 510; 512, 589

N.E.2d 77; 78-79; see, also, 'Conley v.

Shearer (1992), 64 Ohio St.3d 284, 292-293,595 N:E:2d 862, 869-870: Moreover, sinceappellant's state law claims against appel-lee Wright were against a county employeeinstead of a state employee, R.CI2743.02(F)does not divest the trial court of jurisdic-tion over those claims eithei•. See R-C.2743.02(F) and 109.36, defining "officer orempioyee" for purposes of the Court ofClaims jurisdictional provisions. Accord•ingly, the trial court erred in dismissingappellant's Section 1983 claims, against allof the appellees and further erred in dis=missing his state law claims against appel-lee Wright. The trial court propeily dis-missed appellant's state law claims againstappellees Wilkinson, Morris and Dunn, al-beit for an incorrect reason. See 7oyce v.

Gen. Motors Corp. (1990), 49 Ohio St.3d 93,96, 551 N-E.2d 172, 174-175, for the propo-sition that this court reviews the proprietyof judgments and not the trial court's un-derlying rationale. Appellant's first andsecond assignments of error are sustainedin part and overruled in part.$

A.L.R.3d 1170; 63 Ohio Jurisprudence 3d(1985), Judgments, Section 273. However, resjudicata- may -generally not be raised in aCiv.R. 12(B)-motion. Freeman, sttpra:

3. By so holding, we do not find it necessary toreach appellant's argument that his amepded

714 Ohio 617 NORTH EASTERN REPORTER, 2d SERIES

^S sAppellant's third assignment of errorasserts that the trial court erred in dismiss-ing his amended complaint sua sponte asto appellee Wright. Appellant contehdsthat since a)ipellee Wright never joined inthe other appellees' motion to dismiss orfiled a motion to dismiss on his own behalf,the trial court erred in sua sponte orderingdismissal as to appellee Wright. Cf., e.g.,Marshall v. Aaron (1984), 15 Ohio St.3d 48,15 OBR 145, 472 N.E.2d 335, syllabus.However, appellant (and apparently appel-lee Wright, who does not assert this in hisappellate brief), ignores the language ofthe rule, which allows the Civ.R. 12(BX1)and (B)(6) motions to dismiss to be; raisedeither by motion or by °responsive plead-ing." See Civ.R. 12(B). In appelleeWright's June 8, 1992 answer to theamended complaint, he explicitly raisedboth Civ:R. 12(B)(1) and (B)(6) groundsfordismissal. The answer bore a certificate ofservice, indicating that a copy was sent toappellant. Therefore,the trial court's dis-missal was not sua sponte as to appelleeWright. Appellant's third assignment oferror is overruled.

Accordingly, in that we have sustained inpart appellant's first and second assign-ments of error, the judgment of the trialcourt dismissing appellant's amendedcom-plaint is affirmed with respect to any statelaw claims against appellees Wilkinson,Morris and Dunn and reversed and remand-ed for further proceedings as to the'Section1983 claims against all appellees and thestate Iaw claims against appellee Wright.

Judgment affirmed in part, reversed inpart and cause remanded.

STEPHENSON, P.J., and PETER B.ABELE, J., concur.

complaint wfficiently-alleged exhaustion ofadministrative remedies by stating that he hadfiled a grievance on November 4, 1991 buthad never received any response to the griev-ance.

84 Ohio App.3d 520

12eMAHAN et al., Appellants,

V.

BETHESDA HOSPITAL, INC.et al., Appellees.*

No. C-910595.

Court of Appeals of Ohio,Hamilton County.

Decided Dec. 23, 1992.

Patient brought medical malpracticeaction against physician who performedback surgery and hospital at which surgerywas performed. The Court of CommonPleas, Hamilton County, entered judgmentin favor of surgeon and hospital, and pa-tient appealed. The Court of Appeals heldthat: (1) doctrine of res ipsa loquitur didnot apply; (2) chiropractor was not quali-fied to testify with regard to diagnosis ofstaph infection; (3) patient was not entitledto amend pleadings to raise issue of in-formed consent; and (4) physician's phonelog was admissible business record.

Affirmed.

1. Hospitals Q-8

Physicians and Surgeons e-18.60

Doctrine of res ipsa loquitur did notapply to patient's medical negligence actionagainst hospital and physician, arisingwhen patient contracted staph infection fol-lowing back surgery, absent expert testi-mony that staph infection would not have'occurred in ordinary course of events if'

^reasonable care had been observed by defendants.

2. Physicians and Surgeons C-18.60

Doctrine of "res ipsa loquitur" is evl'''t-,dentiary rule which, when applied to med

' Reporter's Note: A motion to certify therecort(

to the Supreme Court of Ohio was overruied ld;

(1993), 66 Ohio St.3d 1501, 613 N.E.2d

.9 's

.it (based upon auit is not a via-D)-the lawsuitapon the assign-

if the assigneess based upon thessignments andution of the ac-Iaintiff or as co-signees, depend-cision regardingees (based uponarsuit is a viable

f the assigneess based upon thessignments andwn claim (basede lawsuit is not

:RD); or

without address-otion to join asn a finding thatviable asset ofthe issue of the

tts to be arguedn this Court byaintiff's MotionAlternative Mo-of Parties (Doe.

ustees appointedification by thethat they entersuit, in order to

opportunity tois lawsuit as ang the value oft in this lawsuitare found valid)ilidity of the al-3 in thisl5wsuitOur Way,.Inc.,Inc. (ultimatelyed assignmentse Court, not theance of the as-may constitute aargument as to

WILLIAMS v. DAYTON POLICE DEPT.Clteaa680 F.Supp. 1075 (S.D.Ohlo 1987)

the original act of assignment moot).e

[4] Turning to Plaintiff's Motion forSanctions Regarding Defendants' Motion toDismiss (Doe. # 289), the Court finds, inlight of the fact that Defendants' argu-ments are, at least in part,7 well taken, thatsanctions under Rule 11 are inappropriate.Quite simply,, the Court eannot find thatDefendants' arguments were made withoutreasonable investigation into.the state ofthe law in this area. Plaintiffs Motion forSanctions under Rule 26(g) is also over-ruled in Hght of the Court's decision to stayprooeedings in this action, but may be re-newed by the tivstee(s) upon entry intothis action.

In sum; Defendants' Motions to Dismiss(Doe. ## 282 and 285) and Plaintiff e Mo-tion for Sanctions Regarding Defendants'Motion to Dismiss (Doc. # 289) are over-ruled. The captioned ' cause is orderedstayed until either an entry in this actionby any trustees appointed by the Court ofAppeals of Montgomery County, Ohio,andthe inaking of certain determinations bythose trustees;`see, supra, at 1074, or adecision by that Court that trustees will notbe appointed. A ruling on Plaintiffs Mo-tion for Joinder and in the Alternative Mo-tion for Substitution of Parties (Doe. # 293)is`deferred pending thecompletion of thisstay. . . . . .

6. Should the Court, of Appeals of MontgomeryCounty, Ohio, detemdne thatOluo law does noti-tquire the appointment of trustees, the Court isinclined to allow Plaintiffs to substitute repre-sentatives ofthe"unincorporated association"which did business as MCRD during the rele^vaut time period as party Plaintiffs in ttiis suit.Hoivever; the Court will permitthe^Parties tobrief this issue should such trustees not be ap•pointed..

7. The Court notes that Defendants' Motions toDismiss did not constitute within this lawsuit

1075

Michael WILLIAMS, et al., Plaintiffs,

v.

DAYTON POLICE DEPARTMENT, etal., Defendants.

No. C3-85-957.

United States District Court,S.D. Ohio, W.D.

June 10, 1987.

Plaintiffs brought eivil rights- actionalleging use of illegal surveillance equip-ment, leading to an illegal arrest andwrongful conviction. On defendants' mo-tions to dismiss, the District Court, Rice, J.,held that: (1) from face of complaint, suitwas not subject to dismissal oa. statute oflimitations ground, and (2) city+ police de-partment and police organized crime unit,which were sub-units of city governmentand merely vehicles through which city ful-filled its polieing functions, were not properparty defendants.

Motions granted in part and denied inpart.

1. Limitation of Actions e=180(7)

A defendant may, by way of a Rule

12(bx6) motion to dismiss, raise the affirm-

ative defense that plaintiff's cause of ao-

tion is barred by the statute of l.'ttnitations;

however, a motion to dismiss on the basis

of an affirmative defense can be granted

only where the defense appears valid from

the face of the complaint alone. Fed.Rules

Civ.Proc.Rule 12(bX6), 28 U.S.C.A.

collateral attacks on MCRD's corporate exist-ence, but rather were atteutpts to bring thebinding decision of the Court of AppeaLa ofMontgomery Couuty, Ohio, (as Defendants in-terpreted that decisiori) to the attentionof theCourt; in order that this iawsuit would not beprosecuted by anyone not a real party in inter-est hereto pursuant to Rule 17(b). The corpo-ratestatus of the Plaintiff ha's -already beendirectly attaeked-suc2essfully so-in the statecourt of appeal quo warranto action.

1076 680 FEDERAL SUPPLEMENT

2. Limitation of Actions 4-95(1)Civil rights claim alleging use of illegal

surveillance equipment, leading to an il-legal arrest and wrongful conviction, ac-crued when plaintiff became aware of theuse of illegal surveillanee equipment, andnot when plaintiff was convicted. 42 U.S.C.A. § 1983.

3. Federal Courts 0-427In actions brought under § 1983, state

tolling statutes apply where the most near-ly analagous state statute of limitations isborrowed; to the extent that the tollingprovisions are not inconsistent with the fed-eral policy underlying § 1983. 42 U.S.C.A.§ 1983.

4. Limitation of Actions e-75

If plaintiff was imprisoned at time ofaccrual of his civil rights claim based onuse of iRegal surveillance equipment, stat-ute of limitations would have been tolled,under Ohio law, until such time as plaintiffwas released from custody; however, sav-ings provision would not operate to sus-pend statute of limitations if plaintiff's im-prisonment commenced after cause of ac-tion accrued. 42 U.S.C.A. § 1983; OhioR.C. §§ 2305.11, 2305.16,

6. Civil Rights e-13.11Police department and police organized

crime unit, which were sub-units of citygovernment and merely vehicles throughwhich city fulfilled its policing functions,were not proper party defendants in § 1983action based on"use of illegal surveHlanceequipment, leading to an illegal arrest andwrongful conviction. 42 U.S.C.A. § 1983.

Kenneth R. Pohlman, Asst. Pros. Atty.,A. Mark Segreti, Jr., Dayton, Ohio, fordefendants Sheriff's Dept.,.Daniels, Caseyand Dillon.

Stanley S. Phillips, Roger B. Turrell,Dayton, Ohio, for defendants N,^ent .ry andClemmer.

Scott E. Smith, Jay McKirahan, Colum-bus, Ohio, for plaintiffs.

. Neil F. Freund, Dayton, Ohio, for defend-ants Dayton Police Dept., Dayton Police

Organized Crime Unit, Dalrymple, Reyn-olds and Rice.

DECISION AND ENTRY OVERRULINGTHE MOTION TO DISMISS OF THECOUNTY DEFENDANTS IN ITS EN-TIRETY (DOC. # 11) AND SUSTAIN-ING IN PART AND OVERRULINGIN PART THE MOTION OF THECITY OF DAYTON DEFENDANTSTO DISMISS (DOC. # 10); DECISIONAND ENTRY DECLARING THECITY OF DAYTON DEFENDANTS'MOTION TO STAY DISCOVERY TOBE MOOT (DOC. # 19); PLAINTIFFSTO FILE AMENDED COMPLAINTWITHIN- FOURTEEN (14) DAYS;OBSERVATIONS OF COURT; CON-FERENCE CALL SCHEDULED

RICE, District Judge.

Before the Court are two Motions toDismiss. Counsel for the City of Dayton,Dayton Police Department, Dayton PoliceOrganized Crime Unit, Officers Reynolds,Dahymple, Gentry, Rice and Clemmer hasfiled a Motion to Dismiss the Complaintbased upon three grounds, to wit: that thePlaintiffs have failed to establish in personam jurisdiction, that the Plaintiffs'claim is barred by the applicable statute oflimitations, and that the Plaintiffs havefailed to state a claim upon which reiief canbe granted, said motion filed pursuant toFed.R.Civ.P. 12(bX2), (5), and (6). (Doe.# 10). Counsel for the Montgomery Couu-ty Sheriffs Department, and Deputy Sher-iffs Dillon, Daniels, and Casey, has/havealso moved that the captioned cause bedismissed for failure to state a claim uponwhich relief can be granted, said motionfiled pursuant to Fed.R.Civ.P. 12(bX6).(Doc. # 11).

Because both Motions to Dismiss` dealessentially with the same overriding issue,that the Plaintiffs' cause is barred by theapplicable statute of limitations, the Courtwill address both Motions to Dismiss in thissingle entry. For the following reasons,the Court finds that the captioned cause isnot barred by the statute of limitations.Therefore, the Motion to Dismiss of theCounty SherifPs Department and Deputq

Irymple, Reyn-

OVERRULINGIMISS OF THETS IN ITS EN-tldD SUSTAIN-OVERRULINGION OF THEDEFENDANTS10); DECISION:.ARING THE)EFENDANTS'ISCOVERY TO

PLAINTIFFSCOMPLAINT

T (14) DAYS;COURT; CON-[EDULED

wo Motions toCity of Dayton,

Dayton Policeficers Reynolds,td Clemmer h8s

the Complaintto wit: that theatablish in per-the Plaintiffs'

icable statate ofPlaintiffe havewhich relief canled pursuant toand (6). (Doc.ntgomery Coun-ad Deputy Sher,asey, bas/haveioned cause beite a claim nponed, eaid motion,.Civ.P. 12(bX6).

to Dismiss' dealovertiding issue,is barred by theitions;the Courtu Disiuiss in tliisllOwing -rea&ons,tptioned canse ise of limitations.Diamiss of the

ent and Deputy

WILLIAMS v. DAYTON POLICE DEPT. 1077Citen680 FSupp. 1e73 (S.n.Ohlo 1987)

Sheriffs (Doe. # 11) must be overruled inits entirety, and the Motion of the City ofDayton Defendants must be overruled onthis ground, but, as will be discussed be-low, sustained, insofar as the Dayton PoliceDepartment and the Dayton OrganizedCrime Unit are concerned, upon anotherground.

Plaintiffs have brought this action pursu-ant to 42 U.S.C. §§ 1983, 1985 and 1988,alleging that illegal surveillance equipmentwas used by the Defendants which led toan illegal search and seizure; the illegalarrest of the Plaintiff Michael Williams,and, ultimately, in the wrongful convictionand imprisonment of Williams on thecharge of Aggravated Trafficking inDrugs. The Plaintiffs further allege thatduring Williams' criminal trial,' the De-fendants, through counsel and/or sworntestimony, denied using said illegal surveil-lance. On November 25, 1985; Williams'conviction was vacated by the HonorableRobert M. Brown of the Common PleasCourt of Montgomery County. In vacatingthe conviction, Judge Brown wrote that hewas

led unalterably to the conclusion thatallegal electronic devices were employedby certain law enforcement personnel in-volved_in the events leading up to thearrest of these two defendants. Thatconduct tainted the entire proceedings.The intelligence garnered in that methodof procedure was inextricably inter-twined in the course of events leading tothe arrest and conviction of [Williams].

On December 31, 1985, the Plaintiffsfiled their Complaint in this Court, involdng

261, 105 S.Ct. 1938, 85 L.Ed:2d 254 (1985),retroactively to cases already filed but notdecided prior to Wilson and established theone year limitations period found in OhioRevised Code § 2305.11 as theapplicablestatute of limitations for § 1983 actionsbrought in Ohio. The parties disagree,however, as to when the Plaintiffs' causeof action accrued under § 2305,11, so as tobegin the running of the one year limita-tions period.

The Defendants argue that the Plain-tiffs' cause of action accrned on November4, 1981, the date on which Williams wasconvicted. Since the Plaintiffs' Complaintwas not filed in this Court until December31, 1985, the Defendants argue that morethan one year elapsed from the time thecause of action accrued and the filing ofthe Complaint and that, therefore, this ac-tion is barred by the applicable statute oflimitations.

[1] In considering a Rule 12(bX6) mo-tion to dismiss for failure to state a claimupon which relief can be granted, the courtmust construe the facts as. alleged by theplaintiff as true, and only dismiss the Com-plaint if it appears beyond doubi that theplaintiff can prove no set of facts whichwould entitle him to relief. Conley v. Gib-son, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2L.Ed.2d 80 (1957). The uniformly acceptedrule is that a defendant may, by way of aRule 12(b)(6) motion, raise the affirtnativedefense that the plaintiff's causemf actionis barred by the statute of limitations.Rauch v Day and Night Mfg. Corp., 576

this Court's jurisdietion pursuant to 28 U.B. ^ F.2d 697, 702 (6th Cir.1978). However, aC. § 1843.. motion to dismiss on the basis of an affirm-DISCUSSION ative defense can be granted only.where

The parties are in agreement that theSixth Circuit'a decision in Mulligan v. Haz-ard„777 F.2d 840 (6th Cir.1985), is control-lingin this case. In Mulligan, the SixthCircuit applied Wilson v. Garcia,2 471 U.S.

1. The Plaintiffs' Complaint refers to the trial ofMichael Williams as occurring in May, 1985.This, the Court believes, is a typographical er-ror, the correct date being at sometime durin8theyeaF 1981.

the defense appears valid from the face ofthe Complaint alone. Rauch, supr+a; seealso Basile v. Merrill Lynch, Fierce, Fen-ner & Smith, 551 F.Supp. 580, 591 (S.D.Ohio 1982).

2. In Wilsore v. Carcia, the Supieme Court heldthat, as a matter of law, § 1983 actiona shouldbe eharacterized as personal injur;yaetions forthe purpose of determining the app0cable stat-ute of limitations.

1078 680 FEDERAL SUPPLEMENT

The Plaintiffs' Complaint alleges the fol-lowing relevant facts which have signifi-cance to the statute of limitations issue:

(a) that on or about March 8, 1981, Plain-tiff Michael Williams was unlawfully ar-rested and imprisoned pursuant to anillegal search and seizure conducted bythe Defendants;(b) that the Defendants employed illegalelectronic surveillance equipment in or-der to obtainthe Plaintiffs arrest andconviction;(c) that on or about May, 1985 [sic]',during the Plaintiffs criminal trial, sev-eral of the Defendants through counseland/or sworn testimony denied usingelectronic surveillance equipment and(d) that on November 11, 1985, it wasdetermined by Judge Robert M. Brown

viction as November 8, 1981. See Doc.# 14, p. 3. Thus, it is the Order of thisCourt that the Plaintiffs file an AmendedComplaint, within 14 days from the date ofreceipt of this Decision, setting forth theevents giving rise to the Plaintiffs' claim aswell as the correct dates. In addition, thePlaintiffs' Amended Complaint must, with-in the body of the Complaint,, clearly namethe City of Dayton and the County ofMontgomery as Defendants.4

Assuming that the Plaintiffs file theirAmended Complaint, and assuming thatthe Defendants renew their Motions to Dis-miss based upon statute of limitationsgrounds, the following represents thisCourt's observations regarding the statuteof limitations issue.

of the Common Pleas Court of Montgom- 4^ [2] In Sevier v. Turner, 742 F.2d 262ery County that the Plaintiff e arrestwas. without lawful authottity and thatthe Indictment was dismissed with preju-dice. A written decision vacating theconviction was filed November 25, 1985.

From the face of the Complaint alone, itis clear that the Defendants' Motions toDismiss on the ground that the statute oflimitations has expired must be overruled.As mentioned previously, the Defendantsargue that the cause of action accrned onthe date of the Plaintiff's convictiott. Ac-cepting the facts as pleaded by the Plain-tiff as true, however, the Plaintiff s crimi-nal trial occurred in May, 1985. If thePlaintiffs' cause of aation accrued at thetime of conviction, and Willianis' convictionoccurred after his May, 1985, trial, theComplaint was timely when filed December81, 1985. Thus;;from the face of the Com-plaint alone, the Defendants' Motion. toDismiss on the basis of the statute of limi-tations must be overruled.

(6th Cir.1984), the Court of Appeals for theSixth Circuit addressed the accrual of thestatute of limitations in a § 1983 action andheld that

[a]lthough state law provides the statuteof limitations to be applied in a § 1988damages action, federal law governs thequestion of when that limitations periodbegins to run. The statute of limita-tions eomnzenees to run when theplaintiff knows or has reason to lcnomof the injnry which is the basis of hisaction. A plaintiff has reason to knowof his injury when he should have discov-ered it through the exereise of reason-able tb7igence.

Id at 272-73 (citations omitted) (emphasisadded). See also Keating v. Careg, 706F.2d 377 (2d Cir.1988) (Under federal law,the statute of limitations does not beginrunning until the plaintiff discovers, or bythe exercise of reasonable diligence shouldhave discovered, the cause of actionr

It is apparent, however, that the alleged Clirte P. Brusett, 661 F.2d 108 (9th bh'.trial date as pleaded in the Complaint is in 1981) (§ 1983 action brought against atateerror. The Plaintiffs' Memorandum Contra officials for allegedly conspiring to ooneictthe Defendants' Motions to Dismiss Implic- a plaintiff on groundless charges acorueditly recognizes the Plaintiffs date of con- on the date of conviction, as that date rep-

3; See fodtnote 1, sapra are named as parties Defendant or whether unlyh

4. The present Complaint, both in its caption andw3thin the body of the Complaint, is unclear asto whether the governmental entities themselves

etthe departments and employees of same arenamed Defendants.

See Doa-der of thisn Amendedthe date of

g forth theffs' claim asddition, themust, with-learly nameCounty of

.'s file theiruming thattions to Dis-

limitationsesents thisthe statute

42 F.2d 262leals for thecrual of theS action and

the statutein a § 1988governa thetions period

of limita-when the

ron to knowbasis of his3on to knowhave discov-e of reason-

d) (emphasisCarey, 706

federal law,s not beginovers, or byence ehouldof actiou);

08 (9th Cir.^gainat stateig to convict•ges aocxuedsat date rep-

r whether onlyff same e?e the

WILLIAMS v. DAYTON POLICE DEPT. 1079C/teus68e F.Supp. 1075 (S.D.Ohio 1987)

resented the latest date by which the plain-tiff knew or had reason to know of theinjury which was the basis of his cause ofaction; the instant case is distinguishablefrom Cline in that the Plaintiffs hereinallege that the use of illegal electronic sur-veillance was deliberately concealed fromthem and its existence was undetectableeven through, the exercise of due diligence,whereas the plaintiff inCline should havebeen aware at the time of his trial that thecharges brought against him were ground-less); Rubin v. O'Koren, 621 F.2d 114 (5thCir.1980) (Plaintiff's cause of action for aviolation of her civil rights stemming fromher discharge from employment accruedupon her last day of employment, as thatdate-represented the date that she knew orshould have known of her injury). Thus,the Plaintiffs' claim accrued in this case onthe date that they discovered or shouldhave discovered the alleged violation oftheir civil rights.

The Plaintiffs contend that the statute oflimitations began to run; at the earliest, inearly January, 1985, when they discoveredthrough newspaper accounts that illegalsurveillance may have been used to convictMichael Williams, and that their suspicionswere not confirmed until November 25,1985, when the conviction was vacated.Thus, the Plaintiffs argue, the statute ofliin3tations began to run, at the very earli-est, in January, 1985 and therefore theirclaiin, having been filed on December 31,1985, isnot barred by said statute. It isthe very nature of the Plaintiffs' claim thatthey were unaware of the use of the illegalsurveillance, and that it was deliberatelyeoncealed fromthem. Indeed, if Williamshad been aware of the illegal surveillanceat th'etime of trial, and had it been broughtto ligbt at that tnne, it is doubtful that hecould have been convicted.

A. related argument which may tie ad-vanted by the Plaintiffs in support of theirposition is that their cause is not barred byt)le statute of ]imitations because of thedoctrine of fraudulent concealment. Astatute of limitations period may be tolledby,fraudulent concealment on the part ofthe Defendanta. If the Plaintiffs ean dem-onstrate the elements of fraudulent con-

cealment on the part of the Defendants,the statute of limitations time period wouldnot begin to run until the fraudulent con-cealment ended. "In order to prove fraud-ulent concealment, plaintiff must show thathe failed to discover facts that serve as thebasis of his eause of action despite duediligence on his part to discover the facts,and that the concealment was fraudulent)yeommitted by the party or parties soughtto be held responsible by 'the plaintiff."Shapiro v. Cook United, Inc., 762 F.2d 49,51 (6th Cir.1985): However, "an injuredparty has a positive duty to use diligence indiscovering his cause o'P action within thelimitations period. Any fact that shouldexcite suspicion is the same as actualknowledge of his entire claim. Indeed, 'themeans of knowledge are the same thing asknowledge itself.' " Dayco Corp. v. Good-year Tire & Rubber Co., 523 F.2d 889, 894(6th Cir.1975) (quoting Wood v. Carpenter,101 U.S. (11 Otto) 135, 143, 25 L.Ed. 807(1879)).

Accordingly, if the Plaintiffs intend torely upon the doctrine of fraudulent con-cealment, their Amended Comolaint mustplead with particularity the cirofimstancesgiving rise to fnaudulent' concealment.Fed.A.Civ.P. 9(b).

Three elements must be pleaded in orderto establish fraudulent concealment: (1)wrongful concealment of their actions bythe Defendants; (2) failure of the Plain-tiff to discover the operative facts thatare the basis of his cause of action withinthe limitations period; and (3) PlaintifPsdue diligence until discovery of the facts.

Campbell w. Upjohn Co., 676 F.2d 1122,1126 (6th Cir.1982).

[3) Finally, Ohio Revised 'Code§ 2305.16 may serve to toll the statute oflimitations. Under 2805.16; "if a personentitled'to bringany act[on mentionedinsuch sections fincluding § 2806.11), ..: is,at the time the cause of act,ionacorues, ...imprisoned ... such person may bring itwithin the respective times Gmited by suchsections after such disability is removed."In actions brought under § 1983, state toll-ing statutes apply where themost nearlyanalagous state statute of limitations is

1080 680 FEDERAL

borrowed, to the extent that the tollingprovisions are not inconsistent with the fed-eral policy underlying § 1983. Board ofRegents of the University of the State ofNew York v. Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440(1980).

[4) However, the Plaintiff e imprison-ment tolls the statute of limitations onlywhen the Plaintiff is imprisoned at the timethe cause of action accrues. Under theclear language of the statute, the savingsprovision does not operate to suspend thestatute of limitations where a party's im-prisonment commences after the cause ofaction accrues. Paugh v. Fair, 16 OliioApp.3d 128, 474 N.E.2d 653 (1984); Hibbettv. City of Cincinnati, 4 Ohio App.3d 128,446 N.E.2d 832 (1982). Nor will § 2305.16operate to toll the statute of limitations fortime spent released on bail, since a plaintiffreleased on bail is not denied aecess tocounsel, nor is he hindered from investigat-ing the facts concerning his claim or fromstarting suit on his own behalf. Jones v.Shankland; 800 F.2d 77 (6th Cir.1986).

Thus, if Miehael Williams was imprisonedat the time that the cause of action ac-crued; the statute will have been tolleduntil sueh time as he was released fromcustody. Should the Plaintiffs wish to relyupon § 2305.16 to toll the statute of limita-tions, their Amended Complaint shouldclearly and accurately set forth the datesduring which Williams was imprisoned.

[5). There are two final matters to beaddressed. The Dayton Police Departmentand the Dayton Police Organised CrimeUnit contend that they should be dismissedasparties on the ground that they are notsui juris, The Defendants' argument iswell founded. The Dayton Police Depart-ment and Dayton.Police Organized CrimeUnit are sub-units of the city governmentand are merely vehicles through which thecity fulfills its policing functions. Shelbyu City of Atlanta, 578 F.Supp. 1368 (N.D.Ga.1984); Elam v. blontgomery County,573 F.Supp.797 (S.D.Ohio 1963). As such,they are not proper party defendants, and

S. See footnote 4, supra.

the Plaintiffs' claims against the Police De-partment and Organized Crime Unit arehereby dismissed. Assuming that thePlaintiffs' Amended Complaint properlysets forth the City of Dayton as a Defend-ant, the City of Dayton will remain as adefendant in this action.6

Counsel for the City of Dayton PoliceOfficers also assert that the Plaintiffsfailed to effect proper service of processupon Officers Reynolds, Dahymple, Gen-try, Clemmer and Rice as required by Fed.R.Civ.P. 4. However, the Plaintiffs, bymeans of a photocopy of the certified mailreceipts attached to their MemorandumContra (Exh. A, Doc. # 14), have demon-strated that eaeh of the above named De-fendants was served by certified mail on orbefore March 13, 1986. Accordingly, theDefendants' Motion to Dismiss on theground that this Court lacks personal juris-dicdon over those parties is hereby over-ruled.

The City of Dayton Defendants' Motionto Stay Discovery until after this Court'arulings on the aforesaid motions (Doc.# 19) is deemed to be moot.CONCLUSION

In sum, the Montgomery County Defend-ants' Motion to Dismiss is overruled in itsentirety (Doc. # 11). The City of DaytonDefendants' Motion to Dismiss on theground that the statute of limitations ex-pired prior to the filing of the Complaint isoverruled. The City of Dayton Defend-ants' Motion to Dismiss the City of DaytonPolice Department and the Dayton PoliceOrganized Crime Unit on the basis. ihatthey are not entities aubject to suit Is aus•tained. However, the City of Dayton De-fendants' Motion to Dismiss various pollceofficers on the ground that this Court lpckejurisdietion over those officers is overruled(Doc. # 10). The Plaintiffs are direoted tofile an Amended Complaint within 14 dayeof receipt of this Decision. Nothing ew.,

ithowever, is meastained in this Decision ,to prejudice any position taken by the '

the^:FMontgomery County Defendants inmotion for judgment on the pleadings (Doz!.

►

>>,

tatiom waa tollad, despite fact that plain-tift had aommenced otler aetioes in variouscnurtc $G § Y806.76

4gs6oc by the CuortL WSeee the defmdsnts to aa actioa

file a sotism far summary judpaeet on thebasis that pLiatiif'a eYna is barred by theappllmble statute of Eimitations, and pTsin-tiff, subsequently, fite® a motion to dismisshis complaint without prejudice in compli-ance with Civ.R. 41(A)(1j, it is error for thetrial court to thereafter grant the defend-anfs' motion fnr snmma- iudgmpnt,

P:aintiffs motion .°.ti`o47.i hwa.e. I,vr_.e.n trca4o.i

as a v,[_nta.^y d•.smi-;.tt, Fnrminatinv:-• the

S:en 1^^-C

2. R.C. 2306.16 provides tliai if a per-son is in prison at the time hia cause of

action accrues, he may bring it within the

respective time prescribed for that action

after such disability is removed. The tolf-ing provided there-in is not affected by

plaintiff's filing of other actioan white un-bitidcr t= ssn:e disa ty-

\.

ttcbert Afhm Perdue, Sr., pro se.

:,a;f ?3. Saar:•'ord, C,otumb-us, for adeiloe>.

MeF,t3RMAC, Judge.

. ^}air'siff-?3pfieilaLt,- Rob?rt A?'_^II ^'2rd^3a„

Sr,.. ..............ed action .tr-`n=t r;efend-ant^:-appcl:cc-, T;o:nst Ii. ?r.an3.elrnoc: antl

R itaymond Jr., e^u': of

tiLii:Yt:Oii ciean vf cra::ffiin L'Ueiritj: onMarch 29, 1979, alleging aa:gligi:nCCe or :c:al-

praotice on the part of dafendani,s, hia ivr-

mer attorneys, wt.o represented him in a

crimina€ action in which }'Le was convieted

and sentenced to a long term in the peni-

tentiary. Defendants answere.3, asserting,

aniong other de3'enses, the bar of the stat-

ute of limitations.

IJefend2!!is [ic•ati:_d %%'y _uniniary sst:tg-

ment on the gros.:d cf thi: atatute ofl•cita_

ti:Uns, attr..^h:r.g .•.-, .ffida..•it fr^r: der.::ct-

a41i W Itiri 2^1 --n .i'aier•g tT' ` e^y

and 1tis :z..o i:artce:^t•g^repre.sanis' plavn-ti[t ....>:l li..a..S- A TD'i? ...L-.. L.. .»,.s

plsintiff at the C.huMcothe Coereetional In-atitute, at which time a mutnal deeuion wasamade that he roaild m longe: repra®ent

P^Wbule the smnmawy jndprmt mdion

was pmdbug far detsrmhsatioq. B1bWmovsd t6a aaQt for lawR to dhdrs liseamQimt witbant peeju8tm baooe §e vaerepresentiag hhmeelf and nmbte to emre tocourt, because of his imprieonmentr topresent his facts and evidence. That mo-tion was not acted upon until February 29,1980, when the trial court granted aummaryjodPrnent for defendant.s on the basis thattha ona-va,ar atatute of limitations ore-s<•rilwd b, R.C. 2:305.11 had etanaed prlor tothe f;ling of the complaint and that hia

was therefore barred. P?aintiff's,1.-,..:tio n 1-1-1 d?gmis8 wit.haut prejudice wa4

^UYPCPAled.

P}aintiff has appealcti, alleging that the^riat court erred in granting summary judg+psent to defendanta and in not pBrmitting4,im to diamiss his complaint without preju-diee.

[lj j:zdgment of the trial ooart isreversed- Tin: -..:st neason is that a piain-

tiff may d:isn;iss a can,piaint "`. ' wi.th-out order of [tilei courL ' * * by fiiiag anotice of disniissal at any time 6efore the

commencement of [thej trial unlesa a eoun-terelaim whieh cannot remain pending forindependent adjudication by the caurt hasbeen served by the defendant ••'."

Civ.R. 42(A)(1). Plaintiff's motion to dis-miss without prejudice shautd have beentreatkd ss .. voluntary dismissat and the

casc .sP:otitd "av:, imxnediatety been dis-missed wit,1i•1-1L rzrt3eer au:tion of the c.urt.

j2J 2'he secrond reason is that the statuteof limitations had not run againat plaintiff.Plaintiff's artion acarued at the time of thetcrminati.,n of his attorney-client relatauFship with defendants on October 4, 1977.At that time, ptaintiff was imprison!tI, ash- has been :ince that t.imA. R.C;. 2405.26Yre./.c 3}9:^! if . iu?r-c^P. ^ iT `:Yliy'An at th?

t...a his c.xs-e .:f acicn aax;tue5, tie nmybring it .siths^ Iiti` rxv;;x:x:tivc tiZn2 pt'e-

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