COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69213 LEONARD J. ERICKSON : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION TIMOTHY MISNY, et al : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 9, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 262,498 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: JOHN F. NORTON Attorney at Law Maywood Center 8389 Mayfield Road Chesterland, Ohio 44026 For defendant-appellees: JOHN W. OURS KATHRYN M. MURRAY Attorneys at Law 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 TIMOTHY E. McMONAGLE, J.: Leonard J. Erickson appeals from the decision of the trial court granting the motions of defendants Timothy Misny, Misny & Associates Co., L.P.A. and Ronald Margolis for summary judgment on Erickson's complaint and the amended complaint against them. For the reasons stated below, we affirm the decision of the trial court. The facts giving rise to this appeal are as follows. Plain- tiff Leonard Erickson retained the law firm of Misny & Associates on November 30, 1988 to represent him in a civil action to recover damages for bodily injuries which he received when he was struck by an automobile on November 4, 1988. The Misny firm filed his lawsuit in common pleas court on December 2, 1988. The original lawsuit was dismissed pursuant to Civ.R. 41(A) on March 8, 1991. The case was refiled on June 5, 1992. Plaintiff-appellant Erickson filed the instant action on December 8, 1993 against the appellee/attorneys Timothy Misny and Ronald A. Margolis and the law firm of Misny & Associates on a claim of legal malpractice. Appellees denied the claim of malpractice and filed a motion for summary judgment on March 28, 1995, asserting the affirmative defense that the claim was barred by the applicable one-year statute of limitations as provided in R.C. 2305.11(A). On March - 3 - 30, 1995, plaintiff Erickson filed a motion for leave to file an amended complaint to add an "alternative theory for recovery on the claim set forth in the original complaint." The motion was granted on March 31, 1995. Erickson filed the amended complaint, which added a second count premised upon the theory of misrepre- sentation. Misrepresentation has a statute of limitations of four years pursuant to R.C. 2305.09. The defendants filed a motion for summary judgment on plaintiff's amended complaint on April 28, 1995, incorporating their original motion for summary judgment. In their motion for summary judgment on the amended complaint, the defendants argued that count one of the amended complaint was barred by the statute of limitations for legal malpractice pursu- ant to R.C. 2305.11(A) and that count two set forth, in substance, a legal malpractice claim and was, therefore, also barred by the one-year statute. On June 2, 1995, the trial court ruled that the plaintiff had terminated the attorney-client relationship on October 13, 1992 and granted the defendent/attorneys' motion for summary judgment. Plaintiff-appellant Erickson timely filed this appeal. Appellant presents four assignments of error for our review. The gravamen of the Assignments of Error Nos. I, II, and III complained of by the appellant is whether the trial court was able to determine the date on which the statute of limitations on appellant Erickson's legal malpractice claim against his attorneys in this matter was - 4 - triggered. Therefore, we shall consider these assignments of error together. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED, IN DECIDING IN A SUM- MARY JUDGMENT PROCEEDING, A FACTUAL DISPUTE CONCERNING THE DATE ON WHICH THE STATUTE OF LIMITATIONS BEGAN TO RUN ON PLAINTIFF- APPELLANT'S CLAIM OF LEGAL MALPRACTICE. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN RULING THAT THE STA- TUTE OF LIMITATIONS APPLICABLE TO PLAINTIFF- APPELLANT'S CLAIM OF LEGAL MALPRACTICE, BEGAN TO RUN PRIOR TO THE DATE DEFENDANT-APPELLEES WITHDREW AS ATTORNEY OF RECORD FROM PLAIN- TIFF'S PENDING ACTION. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED IN DECIDING AS A MATTER OF LAW, THAT THE STATUTE OF LIMITATIONS BEGAN TO RUN ON PLAINTIFF-APPELLANT'S LEGAL MAL- PRACTICE CLAIM, ON THE DATE PLAINTIFF- APPELLANT FILED A GRIEVANCE AGAINST DEFENDANT- APPELLEE'S WITH THE CUYAHOGA BAR ASSOCIATION. This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination."). The appellate court applies the same test as the trial court, which is set forth in Civ.R. 56(C). Civ.R. 56 specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that - 5 - reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Dresher v. Burt (1996), ___ Ohio St.3d ___. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. In accordance with Civ.R. 56(E), "a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322- 323. In the case sub judice, the evidence submitted by the appel- lees supporting their motion for summary judgment shows that: 1) the appellant, Erickson, retained a new attorney to represent him; 2) the new attorney filed a notice of appearance in his case on October 5, 1992; 3) the appellant filed a sworn complaint with the Cuyahoga County Bar Association on October 13, 1992, in which he - 6 - stated he had already terminated the services of the appellee/cou- nsel; 4) appellee/counsel confirmed by letter on December 2, 1992 the appellant's previous termination of the attorney-client rela- tionship; and 5) appellant Erickson filed the legal malpractice action on December 8, 1993. The appellees having satisfied their initial burden of affir- matively showing that the attorney-client relationship terminated more than one year prior to the appellant's filing of the claim for legal malpractice forces the appellant to set forth specific facts showing that there is a genuine issue for trial. See Civ.R. 56. "The nonmoving party must present `specific facts' showing that there is a genuine issue for trial in order to defeat a motion for summary judgment." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 256. It is incumbent upon the non-moving party, here appellant Erickson, to present the court with material facts putting the date of termination at issue in order to defeat the moving parties' motion. With this standard in mind, we now consider whether summary judgment was properly granted on the legal malpractice claim set forth by the plaintiff-appellant in the matter before us. The record consisting of the affidavits, depositions, plead- ings and evidence as a whole reflects the following pertinent facts. Appellant retained the appellee/attorneys to represent him in his personal injury matter on November 30, 1988. On March 8, 1991, - 7 - Attorney Margolis of the firm filed a notice of voluntary dismissal of Erickson's personal injury suit pursuant to Civ.R. 41(A). Attorney Margolis negotiated a settlement with one of the named defendants and intended to complete additional work on the case and refile the matter within the one-year statutory time limit. However, in January of 1992, while Erickson was in jail on a separate matter, he fired Margolis and the Misny firm from representing him in this civil matter. This termination took place in a telephone call from the jail and was confirmed by Erickson by letter. Appellant Erickson told Margolis that he had another attorney. Attorney Margolis did no further work on plaintiff's file. The evidence in the record supports the contention of the appellees that appellant Erickson first terminated his relation- ship with his attorneys, Margolis and Misny, in late January, 1992, during a telephone exchange. At deposition, the appellant admitted that the phone call took place and that he followed up with a letter telling his attorneys that "they were fired" and that "he had another attorney." When questioned about this firing of his attorneys, the appellant testified that "[he] wrote them a letter." Further, in response to the question, "If Ron and Tim (the appellee attorneys) say that they received a telephone call from you while you were in jail and that you told them that you were angry, that you were firing them from their case and that you had another lawyer would you dispute that?", Erickson responded, "*** I guess I - 8 - couldn't." During deposition, when appellant was asked, "You did tell them that you had another lawyer, but you were lying right? That's it. They didn't know you were lying, did they?", Erickson responded, "I guess not," and, "That was in a letter." Appellant Erickson testified that when he was in jail, he wrote to Attorney Misny, instructing him to turn the files over to the other attorney, "Joe." The appellant admitted that he was "pretty sure you (the appellees Misny and Margolis) told me to get another lawyer." Despite all this, appellant argues that he thought that the attorneys were "never fired and thought they were still doing stuff while I was there (in jail)." The appellant failed to support his assertion with any facts. His statement of his "belief" is inconsistent with his actions which are shown in the evidentiary materials before us. After his release from jail on June 2, 1992, appellant Erickson and his sister met with Attorneys Misny and Margolis. Appellant testified that he and his sister wanted to get the files from Misny so that the "other lawyer" could handle the case. At this meeting, the appellant rehired the attorneys in order to attempt to refile his lawsuit. This June meeting was tape- recorded, and the conversation reflects the fact that the appel- lant had previously fired the attorneys and now was rehiring them to attempt to refile his lawsuit past the statutory time limits. The appellant executed a sworn affidavit, attached to the refiled - 9 - complaint, in which he acknowledged that he had terminated his relationship with the appellees but had rehired them to represent him once again. Attorney Margolis refiled appellant's personal injury case on June 5, 1992. Between June and October, appellant Erickson was meeting with other lawyers because he was seeking to replace Margolis. The record reflects that appellant Erickson sought new legal counsel after the June meeting because he believed Misny had "done him wrong." At deposition, appellant Erickson identified these pro- spective attorneys as "one in the Statler Building and one in the Terminal Tower." At the beginning of October, appellant Erickson retained new counsel, Attorney Terri Stupica. On October 5, 1992, Attorney Stupica filed a notice of appearance in the refiled personal injury case. Appellant Erickson testified in deposition that he had discussed with Ms. Stupica that she would become his attorney instead of the appellees, "Ron or Tim." On October 13, 1992, only days after Erickson retained new counsel and his new attorney had entered her appearance in the case, Erickson filed a grievance against the Misny firm with the Cuyahoga County Bar Association. The grievance included a sworn statement that appellant Erickson had already terminated the services of appellee counsel. On December 2, 1992, Attorney Margolis confirmed Erickson's telephone termination of their attorney-client relationship by - 10 - letter. The letter stated, "In accordance with your telephone conversations with us, we acknowledge that we are hereby dis- charged at your request as counsel in the above captioned matter and await to be contacted by your new lawyer. We have filed our withdraw [sic] with the court." On December 9, 1992, Margolis filed a formal notice of with- drawal from the case. Appellant Erickson filed this malpractice action against the appellee/counsel on December 8, 1993. The appellees contend that the legal malpractice action is barred by the applicable statute of limitations of R.C. 2305.11(A). We agree. R.C. 2305.11(A) enumerates "Time limitations for bringing certain actions." The statute determines that an action for malpractice shall be commenced within one year after the cause of action accrued. "Under R.C. 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 attor- ney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. ***" Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, at the sylla- bus. A cause of action for malpractice against an attorney - 11 - accrues, at the latest, when the attorney-client relationship finally terminates. Keaton Co. v. Kolby (1971), 27 Ohio St.2d 234, at the syllabus; Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 129. Conduct which dissolves the essential mutual confidence between attorney and client signals the termination of the attor- ney-client relationship. Brown v. Johnstone (1982), 5 Ohio App.3d 165, 166. The attorney-client relationship is consensual in nature, and the actions of either party can affect its continu- ance. Id. at 167. For a trial court to grant summary judgment on this basis, such an act must be clear and unambiguous so that reasonable minds can come to but one conclusion from it. Mastran v. Marks (Mar. 28, 1990) Summit App. No. 14270, unreported, at 6. "Initiating grievance proceedings before the local bar association evidences a client's loss of confidence in his attorney such as to indicate a termination of the professional relationship." Brown, supra, at 167. Assignment of Error No. I places the question before us whether, upon the record, there is adequate evidence of such a clear and unambiguous act of either party that we can determine when the attorney-client relationship in this matter terminated. It is the position of the appellees that the statute of limitations began to run on the malpractice action, at the latest, on the date that the appellant filed his grievance with the Cuya- hoga County Bar Association, October 13, 1992, in which the - 12 - appellant clearly and unambiguously stated that he had already terminated the attorney-client relationship with them. Appellant proffers a number of arguments attempting to defeat this claim. A careful review of each of the appellant's arguments shows that his arguments are unsupported in law or fact and have no merit. Appellant argues in Assignment of Error No. II that the appellees were the attorneys of record until December 9, 1992, the date that Attorney Margolis filed his notice of withdrawal with the court. Appellant does not support this contention with any law or fact, and such argument has no merit. Appellant next contends that he thought that the appellees remained as his lawyers until they gave back the files. This contention has no merit in law. Appellant contends the doctrine of equitable estoppel should be applied in this case because he changed his position in reli- ance that his imprisonment could toll the time for the refiling of the case. Appellant's argument has no merit as the statutory time limitation on this malpractice action relates to the termination of the attorney-client relationship after appellant Erickson rehired the appellee/counsel to refile his case on June 2, 1992. The doctrine of equitable estoppel has no application in the matter sub judice. Appellant contends, in Assignment of Error No. III, that his filing of the October 13, 1992 Cuyahoga County Bar Association - 13 - grievance does not trigger the statute of limitations. Further, it is the position of the appellant that the December 2, 1992 letter does not establish that the attorney-client relationship ended before December 9, 1992. Appellant argues that he did not timely receive the letter and it was, therefore, an uncommunicated statement. Appellant argues that an uncommunicated statement, such as the bar grievance or the December 2, 1992 letter, cannot support the severance of a attorney-client relationship. Appellant offers no law to support this contention nor has this court found such support. On the contrary, case law has shown that it is not necessary for a formal communication of the termination for such termination to occur. Brown, supra, at 166-167. Appellant argues that the appellees should be equitably estopped from claiming the statute of limitations defense to the action due to the appellees' attempt to obscure the appellant's discovery of a precise termination date. Appellant has presented the court with no facts showing specific conduct by any of the defendants-appellees which reasonably caused him to file this suit after the statute of limitations expired. A careful review of the evidence before us supports the conclusion that the appellant's own acts terminated the attorney- client relationship on October 13, 1992. The appellant's filing of the bar complaint on October 13, 1992, which included his sworn statement that he had already terminated the relationship with his attorneys, coupled with his retention of new counsel who entered an - 14 - appearance in his case the previous week, are such clear and unambiguous acts of conduct evidencing the appellant's loss of confidence in his attorneys as to be sufficient to signal the termination of the attorney-client relationship. We find no error on the part of the court below when it determined that the statute of limitations began to run before the date the defendants-appellees formally withdrew as attorneys of record in the appellant's personal injury action. Nor do we find error on the part of the court below when it determined that the statute of limitations began to run on the appellant's legal malpractice claim on the date he filed the grievance against the appellee/attorneys with the Cuyahoga County Bar Association. Appellant has placed no facts in dispute which would bar summary judgment in this case. Even when the evidence is construed in a light most favorable to appellant Erickson there is no genuine issue as to the termination date of the attorney-client relation- ship between him and the appellees. We, therefore, conclude that the appellant having failed to bring his malpractice action within one year after the attorney- client relationship terminated, as he is required by the statute, his action is barred by the statute of limitations, R.C. 2305.11(A). Appellees were entitled to judgment as a matter of law, and summary judgment was proper as to Count One of the appel- lant's complaint which sounded in legal malpractice. - 15 - ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED IN APPLYING A ONE YEAR STATUTE OF LIMITATIONS TO PLAINTIFF- APPELLANT'S CLAIM OF FRAUD WHEN THE STATUTE OF LIMITATIONS FOR FRAUD IS FOUR YEARS. Appellant argues that count two of the amended complaint, which states a claim for misrepresentation, is governed by the four-year statute of limitations of R.C. 2305.09. Appellant refers to count two as the "alternative theory of recovery." Ohio courts have held that the substance of an allegation prevails over form. Love v. Port Clinton (1988), 37 Ohio St.3d 98. The statute of limitations is determined by the gist of the lawsuit. Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, 131. "Malpractice by any other name still constitutes malpractice." Muir v. Hadler Real Estate Mgmt. (1982), 4 Ohio App.3d 89, 90. With these standards in mind, we must examine the factual basis of Erickson's claims against his attorneys in order to determine the gist of count two of his amended complaint. Appellant contends that count two of the amended complaint sounds in misrepresentation. We are not persuaded by his claims. In both counts one and two, the appellant alleges that the appel- lee/attorneys failed to inform the him that his lawsuit was volun- tarily dismissed without prejudice. Appellant alleges that he would not have entered into a settlement with one of the defen- dants had the appellee/counsel not misrepresented the status of the case to him. Appellant contends that the result of both the claimed negligence and the claimed misrepresentation is that - 16 - appellant Erickson's personal injury action was not timely re- filed. "It makes no difference whether the professional misconduct is founded in tort or contract, it still constitutes malpractice. See Gillett v. Tucker (1902), 67 Ohio St. 106. Accordingly, the one- year malpractice statute of limitations set forth in R.C. 2305.11 is applicable." Muir, supra, at 90. The substance of each claim of the appellant is the same in counts one and two of the amended complaint. We hold that the "gist" of the claim in count two of the amended complaint sounds in legal malpractice and should be governed by the statutory time limits enumerated in R.C. 2305.11(A). We find Assignment of Error No. IV not well taken. Consistent with our determination of Assignments of Error Nos. I, II and III, summary judgment is proper as to count two of the appellant's amended complaint. Accordingly, we affirm the decision of the trial court. - 17 - It is ordered that appellees recover of appellant their 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 Cuyahoga County 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 JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .