COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71131 JOHN PATRICK McDERMOTT : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION ROBERT TROLL LYNCH, ET AL. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 15, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-294597 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN P. McDERMOTT, Pro Se #A163-037 G.C.I. A4 2500 South Avon Belden Road Grafton, Ohio 44044 For Defendant-Appellees: ALAN M. PETROV TIMOTHY T. BRICK Gallagher, Sharp, Fulton & Norman Seventh Floor, Bulkley Bldg. 1501 Euclid Avenue Cleveland, Ohio 44115 - 2 - O'DONNELL, J.: John Patrick McDermott, pro se, appeals from a July 12, 1996 common pleas court order of summary judgment in favor of Robert Troll Lynch, Esq., on McDermott's re-filed legal malpractice claim finding that it was barred by the statute of limitations and that McDermott failed to re-file it within the one year requirement of Ohio's savings statute. On March 2, 1992, McDermott, while incarcerated at the Grafton Correctional Center in connection with a murder conviction, filed a pro se complaint against Lynch alleging fraud in Lynch's pursuit of post-conviction relief on McDermott's behalf. The trial court dismissed the action without prejudice for want of prosecution on July 13, 1992, and our court affirmed that judgment on February 25, 1993. After the Ohio Supreme Court denied McDermott's motion to certify on June 23, 1993, he re- filed the same complaint against Lynch on September 7, 1995 in common pleas court. Thereafter, on May 15, 1996, Lynch filed a motion for summary judgment arguing that McDermott failed to re-file his claim within one year, as required by Ohio's savings statute, R.C. 2305.19, and further, that the claim is barred by the one- year statute of limitations for legal malpractice claims. The trial court granted summary judgment on July 12, 1996 and - 3 - McDermott now appeals and assigns the following error for our review: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, TO THE PREJUDICE OF APPELLANT, WHEN THE COURT GRANTED THE APPELLEES' MOTION FOR SUMMARY JUDGMENT. McDermott submits that since his cause of action against Lynch is for fraud, not legal malpractice, the trial court erred in granting summary judgment because the statute of limitations for fraud is four years and he re-filed his claim on September 7, 1995, a date within four years of the termination of the attorney-client relationship. Lynch contends however that the trial court correctly granted summary judgment because a litigant should not be permitted to circumvent the statute of limitations for legal malpractice by characterizing a malpractice claim as one for fraud; further, Lynch argues that McDermott failed to re-file this claim within one year of the dismissal of his original complaint and thereby failed to comply with Ohio's savings statute. The issue then, presented for review, concerns whether the trial court properly granted Lynch's motion for summary judgment in this case based upon McDermott's alleged failure to comply with the applicable statute of limitations and Ohio's savings statute. This court reviews the trial court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio - 4 - App.3d 704, 711. Civil Rule 56 governs summary judgment and states, in pertinent part: (C)***Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.*** We must first determine whether McDermott's cause of action is based upon fraud or legal malpractice in order to ascertain the applicable statute of limitations period. In Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, the headnote states: 1. For purposes of applying the applicable statute of limitations, the cause of action is determined not from the language or the form of the complaint or other pleading or procedure, but from the gist (essential ground or object) of the complaint. Thus, "an action against one's attorney for damages resulting from the manner in which the attorney represented the client constitutes an action for malpractice within the meaning of R.C. 2305.11, regardless of whether predicated upon contract or tort or whether for indemnification or for direct damages." Muir v. Hadler Real Estate Management Co. (1982), 4 Ohio App.3d 89-90. In short, "malpractice by any other name still constitutes malpractice." Id. at 90. Citing Patterson v. Sackett (Aug. 24, 1994), Lorain App. No. 94CA005829, unreported, as precedent for the ability to pursue a - 5 - fraud action against counsel, in a case where Patterson, while an inmate at the Grafton Correctional Center caused a $2,000 retainer fee to be delivered to attorney Peter Sackett after Sackett allegedly assured him of his eligibility for Shock probation following Patterson's term of actual incarceration, McDermott urges us to apply Patterson, supra, to this appeal. Since Patterson was never eligible for Shock probation, the facts in that case are distinguishable from this one. Here, although McDermott alleged fraud in his complaint, the claim actually constitutes an action for legal malpractice because it is an action for damages resulting from the manner in which Lynch represented him in connection with post-conviction relief from his murder conviction. Thus, R.C. 2305.11 is the applicable statute of limitations. R.C. 2305.11 states, in pertinent part: (A) ***An action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued***. In Omni-Food & Fashion, Inc. v. Smith (1988), 38 Ohio St.3d 385, the court stated in its syllabus that: 1. Under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the one-year statute of limitations commences to run either when the client discovers or, in the exercise of reasonable diligence should have discovered, the resulting damage or injury, or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. - 6 - In this case, both parties agree that the attorney-client relationship terminated in February of 1992 and that McDermott filed his initial complaint on March 2, 1992, as required by R.C. 2305.11(A). However, the trial court dismissed that complaint without prejudice for want of prosecution on June 13, 1992, and McDermott re-filed it on September 7, 1995, more than one year from the termination of the attorney-client relationship. Consequently, McDermott's claim is barred by R.C. 2305.11(A), unless preserved by Ohio's saving statute, R.C. 2305.19. R.C. 2305.19 states, in pertinent part: In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff***may commence a new action within one year after such date. Here, since McDermott originally commenced the action within the period of the statute of limitations, and since the trial court dismissed the action without prejudice for want of prosecution, which constitutes a failure "otherwise than upon the merits," R.C. 2305.19 saves the action for one year from such failure. R.C. 2305.19 does not specify when a "failure" occurs for the purposes of the statute. However, "in the majority of jurisdictions, the general rule is that the date of the affirmance on appeal, rather than the date of the trial court's decision, constitutes the date of failure from which the one- - 7 - year extension period begins." Labarbera v. Batsch (1966), 5 Ohio App.2d 151, 159, reversed on other grounds, (1987), 10 Ohio St.2d 106. The record here reflects that the trial court dismissed McDermott's complaint on July 13, 1992, our court affirmed that dismissal on February 25, 1993, the Ohio Supreme Court denied McDermott's motion to certify on June 23, 1993, and that McDermott re-filed his complaint on September 7, 1995, a date more than one year after final adjudication of the matter on appeal. Thus, in accordance with the cited authority, McDermott did not timely re-file his claim against Lynch. Consequently, we conclude that the trial court properly granted Lynch summary judgment in this case because McDermott's legal malpractice claim filed on September 7, 1995 is barred by the applicable one-year statute of limitations and Ohio's saving statute preserved it until June 23, 1994. Since McDermott waited until September 7, 1995, to re-file his claim, no genuine issue exists as to any material fact and therefore, Lynch, as the moving party, is entitled to judgment as a matter of law. Accordingly, McDermott's assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .