COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68554 EARNEST WARD, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT TROLL LYNCH : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 7, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 261794 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: MICHAEL TERRENCE CONWAY, ESQ. ALAN M. PETROV, ESQ. Michael Terrence Conway TIMOTHY T. BRICK, ESQ. and Associates Co. Gallagher, Sharp, Fulton 8848 Canyon Road & Norman Fairview Park, Ohio 44126 Bulkley Building, 7th Floor 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - JAMES M. PORTER, J., Plaintiffs-appellants Earnest and Sharon Ward appeal from an order of the trial court granting summary judgment in favor of defendant-appellee Robert Troll Lynch on plaintiffs' legal malpractice claims which the court found were barred by the statute of limitations. Plaintiffs claim that issues of fact precluded summary judgment and the trial court erred in not granting them a default judgment. We find no error and affirm. Defendant, an attorney at law, represented plaintiffs in domestic relations proceedings in 1990 and 1991 involving custody of plaintiffs' grandchildren. The underlying domestic relations action involved a custody dispute between plaintiffs' daughter and her ex-husband in Lori Murphy (Sisson) v. Harry Murphy, Case No. 187927 in the Cuyahoga County Court of Common Pleas, Domestic Relations Division. In November 1988, the court granted the Murphys' divorce and awarded custody of their three children (plaintiffs' grandchildren) to Lori Murphy. In the summer of 1989, Lori Murphy's new boyfriend, Alan Sisson, allegedly abused one of the granddaughters. The father, Harry Murphy, filed a motion to modify custody. An affidavit signed by Mr. Ward was filed in support of the motion indicating he saw bruises on his granddaughter. A hearing on the custody motion was held on August 12, 1989, and a Guardian Ad Litem was appointed to protect the interests of the grandchildren. The court awarded temporary custody of the - 3 - children to Mr. Murphy and scheduled another hearing for September 12, 1989. The Wards were named as parties to the litigation at the September 12, 1989 hearing. On September 20, 1989, plaintiffs retained Attorney Arlene Cohen to represent them in the litigation. They retained defendant to act as co-counsel on or about January 26, 1990. Mr. Lynch was retained as co-counsel because of his expertise in the field of grandparental rights. Ms. Cohen withdrew as co-counsel for plaintiffs in early July 1990, and Mr. Lynch acted as their only counsel after that time. At a July 17, 1990 hearing, the Murphys were able to reach a settlement agreement concerning the custody of the children. After the settlement, the only outstanding issue involved the Guardian Ad Litem's fees. A hearing to determine the amount of the Guardian Ad Litem's fees and responsibility for payment was scheduled for July 18, 1990. At the July 18, 1990 hearing, the court held that the Guardian Ad Litem was entitled to recover fees totaling approximately $5,315.00. The court ordered plaintiffs, the grandparents, to pay approximately $3,101.00 of the fee award. Mr. and Mrs. Murphy were ordered to pay approximately $1,107.00 each. The July 18, 1990 hearing was conducted without a court reporter and no record was made of the hearing. Mr. Ward claims that the hearing went forward without a court reporter even after he expressly told defendant Lynch that he believed a court reporter was necessary. - 4 - Plaintiffs believed that the court order requiring them to pay the majority of the Guardian Ad Litem's fees was unfair, and they decided to pursue an appeal. The appeal was filed and handled by Mr. Lynch. Plaintiffs acknowledge that Mr. Lynch told them that they had only a "50-50 chance of winning" the appeal, but they contend that Lynch failed to inform them that they would be responsible for paying accrued interest on the fee award if they lost the appeal. On October 10, 1991, this Court issued its Per Curiam Journal Entry and Opinion in Case No. 60892 affirming the award. The Court noted that "no transcript of any of the hearings has been provided. The record is therefore insufficient to demonstrate that the trial court abused its discretion, as a presumption of validity therefore attends the trial court's action." Id. at 4. The Wards believed they lost the appeal for lack of a transcript and Mr. Lynch's failure to appear for oral arguments in the Court of Appeals. On or about October 31, 1991, Mr. Lynch wrote a letter to plaintiffs informing them that he was withdrawing as their counsel. Mr. Ward specifically testified on his deposition that the attorney-client relationship with Lynch terminated on or about October 31, 1991. (Earnest Ward Depo. at 56-57). Plaintiffs had received a copy of the Court of Appeals decision before Mr. Lynch withdrew as their counsel and they knew at that time that they were responsible for paying the Guardian Ad - 5 - Litem's fees under the court's decision. (Earnest Ward Depo. at 59-60). Plaintiffs filed their complaint herein on November 26, 1993, more than two years after the attorney-client relationship terminated. On December 28, 1993, defendant moved for an extension of time to answer, which was granted by the court on January 12, 1994. On February 3, 1994, plaintiffs filed a motion for default judgment. On February 8, 1994, defendant filed a motion for leave to file his answer to the complaint instanter. On February 14, 1994, defendant filed a brief in opposition to plaintiffs' motion for default judgment. On February 18, 1994, over plaintiffs' opposition, the trial court granted defendant's motion for leave to file answer instanter and denied plaintiffs' default motion. On October 6, 1994, defendant filed his motion for summary judgment on grounds that plaintiffs' claims were barred by the one year statute of limitations for legal malpractice. R.C. 2305.11(A). After briefing and over plaintiffs' opposition, on January 6, 1995, the trial court granted defendant's motion for summary judgment without opinion or explanation. Plaintiffs filed their notice of appeal and the matter is before the court for decision. We will address the assignments of error in the order asserted. - 6 - I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DISMISSING APPELLANT'S CASE BELOW AS A QUESTION OF FACT EXISTS PRECLUDING SUMMARY DISPOSITION OF MATTERS RELATING TO THE APPLICABLE STATUTE OF LIMITATIONS. Although plaintiffs' complaint alleges a breach of contract, there is no question that the gist of their claim is for legal malpractice subject to the one year statute of limitations in R.C. 2305.11(A). Plaintiffs allege that Lynch's failure to "appear for a scheduled oral argument" and failure to "preserve the record" of the July 18, 1990 hearing for appeal resulted in the "failure of Defendant to render effective assistance of counsel for his clients." (Complt. 6). As a result of his representation, plaintiffs claim that they were injured and "suffer[ed] the loss of over $3,000 in guardian ad litem fees" as well as other incidental damages including fees paid to Lynch. (Complt. 6). Since the essence of plaintiffs' claims are allegations of legal malpractice, the one year limitation period set forth in O.R.C. 2305.11(A) must be applied to the facts of this case. Defendant's own testimony established that by October 31, 1991, the attorney-client relationship was terminated and that they knew of the unfavorable Court of Appeals decision. Plaintiffs' action was not brought until November 26, 1993, more than two years after their cause of action accrued. In determining the applicable statute of limitations in legal malpractice cases, courts have consistently looked to the substance of the claim, not the language of legal theory set forth in the - 7 - allegations of the complaint. In Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 131, the plaintiff filed suit against her former attorneys based on their representation of her in criminal proceedings. The limitation period for a legal malpractice claim had expired and plaintiff therefore alleged that the defendant- attorneys' representation constituted a "breach of contract." The Hibbett court rejected plaintiff's attempt to circumvent the malpractice limitation period, holding: In Ohio the applicable statute of limitations is determined not from the form of pleading or procedure, but from the gist of the complaint. * * * Despite Hibbett's attempt to label her action a suit for negligence or a suit for breach of contract, the real ground of her claim is malpractice. The applicable statute of limitations is R.C. 2305.11, imposing a one- year deadline, ***. See, also, Swankowski v. Diethehn (1953), 98 Ohio App. 271, 274. Similarly, in Muir v. Hadler Real Estate Mgmt. Co. (1982), 4 Ohio App.3d 89, 90, plaintiff attempted to circumvent the malpractice statute of limitations by alleging a breach of contract. The Muir court started at page 90 as follows: Malpractice by any other name still constitutes malpractice. As stated in Richardson v. Doe (1964), 176 Ohio St. 370, at page 372 [27 O.O.2d 354], malpractice consists of "the professional misconduct of members of the medical profession and attorneys." Such professional misconduct may consist either of negligence or the breach of contract of employment. It makes no difference whether the professional misconduct is founded in tort or contract, it still constitutes malpractice. - 8 - See, also, Steinmetz v. Francis J. Lowry, D.D.S. & Assoc., Inc. (1984), 17 Ohio App.3d 116, 118; Klema v. St. Elizabeth's Hospital (1960), 170 Ohio St. 519. In the present case, there is no question that the "gist" of plaintiffs' claim is for legal malpractice. They allege that the appeal from the order requiring them to pay in excess of $3,000 for the Guardian Ad Litem fees was lost due to Mr. Lynch's failure to adequately preserve the record of the July 18, 1990 hearing, file the transcript, and his failure to properly pursue the appeal. These allegations assert professional misconduct which must be measured by the standards of the legal profession. The one year statute of limitations must be applied to plaintiffs' claim, however they style their complaint or fashion their theories. Nwabara v. Schoby (Nov. 13, 1986), Cuyahoga App. No. 51211, unreported, at 6-7 ("Because the gist of appellant's allegations is legal practice" R.C. 2305.11 applied and the existence of alleged fraudulent conduct did "not independently extend the statute of limitations for malpractice.") Plaintiffs nonetheless argue that their claim against Lynch is not time barred because the doctrine of "election of remedies" allows them to ignore the one year malpractice limitation and pursue a claim solely for breach of contract. This argument is misplaced. The phrase "election of remedies" has been defined as the choosing between two or more different and coexisting modes of - 9 - procedure and relief allowed by law on the same set of facts." Davis v. Rockwell International Corp. (N.D. Ohio, 1984), 596 F.Supp 780. An election of remedies assumes the existence of several remedies from which one choice may be made. The doctrine only applies where there are two or more remedies, all of which exist at the time of election. Norwood v. McDonald (1943), 142 Ohio St. 299. The doctrine is considered harsh and sparingly applied. Singer v. Scholz Homes (1973), 36 Ohio App.2d 125, 128. The doctrine has been substantially modified by Civ. R. 8(A) which requires that a pleading contain a short and plain statement of the claim for relief. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512. The doctrine of election of remedies has no application to this case. The facts of this case involved the alleged legal malpractice of plaintiffs' attorney. The facts as presented did not support plaintiffs' allegations of breach of contract and fraud separate from the claim of malpractice. Plaintiffs' claims are premised upon defendant's alleged acts or omissions committed in his representation of plaintiffs. Therefore, the course of action is solely for legal malpractice regardless of how it is labeled. Muir, supra. Since plaintiffs' claims did not present the existence of several remedies, election of remedies does not apply. Norwood, supra. Plaintiffs cannot elect to pursue a course of action that is not supported by the facts presented. Since plaintiffs had but one - 10 - remedy, there was no basis for an election. Plaintiffs' claim was solely for legal malpractice, and as such, was governed by the one year statute of limitations set forth in R.C. 2305.11(A). The issue is the statute of limitations, not what remedy to elect. Plaintiffs' claims are barred. Plaintiffs' Assignment of Error I is overruled. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN OVER-RULING [SIC] APPELLANT'S MOTION FOR JUDGMENT BY DEFAULT. Plaintiffs claim that the trial court erred in not granting their motion for default judgment. The record discloses that Lynch's answer to the complaint was due, following an extension of the answer date, on January 29, 1994. On February 3, 1994, plaintiffs filed for default judgment. On February 8, 1994, defendant filed an answer along with a motion for leave to file it instanter with an affidavit of "excusable neglect" on the part of defense counsel. On February 18, 1994, the trial court granted the motion for leave to file the answer instanter and overruled plaintiffs' motion for default judgment. We find no abuse of discretion in the trial court's action in denying plaintiffs' motion for default judgment. Ohio Civ. R. 6(B) states in pertinent part: When by these rules *** an act is required *** to be done at or within a specified time, the court for cause shown may at any time in its discretion *** (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ***. - 11 - It is well-recognized that a court may permit the filing of an untimely answer where there is sufficient evidence of excusable neglect on the record. State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs. (1995), 72 Ohio St.3d 464, 465; Evans v. Chapman (1985), 28 Ohio St.3d 132; Miller v. Lint (1980), 62 Ohio St.2d 209, 214. When a party answers out of rule but before a default is entered, if the answer is good in form and substance, a default should not be entered. Miami Sys. Corp. v. Dry Cleaning Computer Sys., Inc. (1993), 90 Ohio App.3d 181, 186; Mendise v. Plain Dealer Publishing Co. (1990), 69 Ohio App.3d 721, 724; Suki v. Blume (1983), 9 Ohio App.3d 289. Accordingly, where a defendant, after failing to file a timely answer, files a Civ. R. 7(B)(1) motion setting forth grounds of excusable neglect pursuant to Civ. R. 6(B), the court may permit the defendant to file a timely answer, thereby permitting the case to proceed on its merits. Evans, supra at 135; Miller, supra at 214. In the present case, defendant complied with the procedural requirements set forth in the civil rules. The denial of plaintiffs' motion for default judgment must be upheld on appeal absent a showing that the trial court abused its discretion. Abuse of discretion is when the court acts unreasonably, arbitrarily, or unconscionably. Rock v. Cabral (1993), 67 Ohio St.3d 108, 112; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Plaintiffs have failed to offer any evidence that the trial court abused its discretion, nor do we find any on this record. - 12 - This assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellants his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J., and NAHRA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .