By Aaren Host, Guest Contributor, Reminger Legal Professional Liability Practice Group
Ohio has a one-year statute of limitations within which claims for legal malpractice must be brought. However, creative attorneys in the plaintiff’s bar are constantly developing unique ways to resurrect otherwise time-barred claims.
One such novel theory has been to garb a standard legal malpractice claim as one for “fraud” in order to overcome the one-year statute of limitations. But Ohio has developed a body of authority standing for the proposition that in the absence of some “personal gain” on the part of the attorney representing his or her client, a claim for fraud cannot stand in relation to the actions of the attorney undertaken during the course of legal representation.
On December 19, 2018, the Ninth District Court of Appeals evaluated one such creative attempt to garb a malpractice claim as “fraud” in an effort to overcome the one-year statute of limitations, ultimately concluding that a fraud claim arising out of legal malpractice allegations cannot stand alone from the claim for malpractice.
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In Schutte v. Dicello, 9th Dist. Summit No. 28807, 2018-Ohio-5118, plaintiffs were represented by a law firm in a land dispute with the city of Green, Ohio. Plaintiffs, by way of background, began using an unimproved, city-owned drive located on Berna Road in Green, Ohio to gain access to another road. After this use led to conflicts with plaintiffs’ neighbors, the city of Green vacated the public land where the road was located, burdening the land with an easement that ran onto plaintiffs’ property.
In an attempt to settle the dispute, plaintiffs’ retained counsel allegedly represented to opposing counsel of a neighboring landowner that plaintiffs had agreed to buy the landowner’s home for $200,000. Plaintiffs, upon hearing of this agreement, denied that they had agreed to such an offer. Upon informing their counsel that they opposed this agreement, plaintiffs’ counsel notified them that he was terminating their attorney-client relationship and would no longer represent plaintiffs in the dispute.
Following this termination, communicated by plaintiffs’ counsel on August 3, 2015, plaintiffs attempted to file a legal malpractice and fraud action against their former counsel on September 7, 2016, more than one year after they were notified of the end of the attorney-client relationship. Plaintiffs’ former counsel moved for summary judgment, which was granted by the trial court, asserting that plaintiffs’ complaint in its entirety was filed outside the one-year statute of limitations applicable to legal malpractice claims, as the statute of limitations began to run on the date of the attorney’s notice that he was ending his representation of plaintiffs.
Additionally, former counsel asserted that despite plaintiffs labeling their additional claim as a claim for fraud, it was in essence a legal malpractice claim that arose from the same set of facts asserted to support their claim for legal malpractice, meaning the same one-year statute of limitations applied.
In response, the Ninth District Court of Appeals found the plaintiff’s opposition wholly lacking. Instead of addressing their former counsel’s statute of limitations argument, the plaintiffs superficially argued that “even if the legal malpractice claims were to fail, the common law fraud claim could stand alone.”
The Ninth District, upholding the trial court’s reasoning, required something more to sustain a fraud claim in conjunction with a legal malpractice claim. It reaffirmed that “[i]n order to rebut that presumption and sufficiently allege a cause of action for fraud against attorneys in a situation where the gist of the complaint involves legal malpractice … plaintiffs must have specifically alleged that defendants committed the actions for their own personal gain.” To hold otherwise would “undermine” Ohio statutory law codifying legal malpractice claims and would be contrary to the higher pleading standard required to state a fraud claim.
More universally, the court reaffirmed its continued recognition that “[c]laims arising out of an attorney’s representation, regardless of their phrasing or framing, constitute legal malpractice claims that are subject to the one-year statute of limitations[.]”
In light of this well-established reasoning, once again solidified by the Ninth District, it is apparent that Ohio courts continue to be resistant to plaintiffs asserting multiple claims arising out of an attorney-client relationship, especially when the same facts serving as the basis of the legal malpractice claim are also used to support additional, intertwined claims. It is clear that the recent holding of Shutte continues to be a viable defense to claims tacked on to a legal malpractice complaint in Ohio.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
About the Author
Aaren Host is based in Reminger Co., LPA’s Cleveland office, where her practice focuses on appellate practice, insurance coverage defense, professional liability and general liability.