COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73086 THOMAS J. WOZNIAK, : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : : OPINION RONALD TONIDANDEL, ET AL., : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 1, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-318671 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: THOMAS J. WOZNIAK 2902 Archwood Avenue Cleveland, Ohio 44109 For Defendants-Appellees: MARK O'NEILL 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: This is the second time this matter has been appealed to our court. On December 3, 1993, Thomas J. Wozniak filed a malpractice complaint in the Cuyahoga County Common Pleas Court against his counsel, Ronald Tonidandel, in connection with alleged malpractice in the conduct of a trial in the Summit County Probate Court in November 1992. On December 19, 1995, the common pleas court granted summary judgment in favor of Tonidandel finding that Wozniak failed to commence the malpractice action in accordance with the applicable statute of limitations. Wozniak appealed that decision to our court and also filed a second case in common pleas court against Tonidandel alleging fraud and conspiracy to defraud. Thereafter, upon consideration of that appeal, our court affirmed the trial court's decision to grant summary judgment. See Wozniak v. Tonidandel (May 29, 1997), Cuyahoga App. Nos. 70110 & 70633, unreported. On Wozniak's further appeal of that matter, the Ohio Supreme Court declined jurisdiction and dismissed the appeal finding no substantial constitutional question involved. In Wozniak's second case, Tonidandel filed a motion for summary judgment in the common pleas court arguing that the doctrine of res judicata and the one year statute of limitations barred Wozniak from relitigating the action against him. The common pleas court again granted summary judgment in favor of Tonidandel, and Wozniak now appeals from that judgment and presents the following assignments of error for our consideration: -3- I. THE TRIAL COURT ERRED IN GRANTING APPELLEE/DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN FINDING PLAINTIFF'S ACTION BARRED BY THE DOCTRINE OF RES JUDICATA. II. THE TRIAL COURT ERRED IN THAT IT HELD THAT THE PLAINTIFF'S CAUSE OF ACTION WAS BARRED BY THE DOCTRINE OF RES JUDICATA BEFORE IT ACCRUED THEREFORE ITS HOLDING IS IN VIOLATION OF THE UNITED STATES AND OHIO CONSTITUTIONS- ARTICLE ONE SECTION SIXTEEN. Wozniak argues that the court erred in granting summary judgment because his claims are governed by the four year statute of limitations for fraud and that application of res judicata to his case results in a violation of his right to a jury trial. Tonidandel contends the doctrine of res judicata bars this action because these claims arise out of his legal representation, they have previously been presented to the court as a malpractice claim, and they have already been adjudicated. The issue then concerns the propriety of the trial court's decision to grant Tonidandel's motion for summary judgment on the basis of res judicata. In this regard, we recognize that Civ. R. 56 provides in part: * * * Summary judgment shall be rendered forthwith if the pleadings, 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. On this appeal, we are confronted with Wozniak's claim that although his malpractice action against Tonidandel has been barred by the statute of limitations, that same conduct of Tonidandel now -4- constitutes fraud and is governed by a four year statute of limitations. In Hibbett v. Cincinnati (1982), 4 Ohio App.3d 128, the court stated in paragraph one of its syllabus: 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. The relevant facts of Wozniak's underlying claim against Tonidandel show that Wozniak had been sued by his brother in the Summit County Probate Court, who alleged that Thomas Wozniak had misappropriated assets from their mother's estate. Tonidandel represented Wozniak on that claim, and after trial, a jury determined that both had been guilty of embezzlement. Subsequently, Wozniak sued Tonidandel for malpractice in connection with that representation. In Nwabara v. Schoby (Nov. 13, 1986), Cuyahoga App. No.51211, unreported, our court considered a similar claim where fraud had been alleged against trial counsel. We concluded in that case: Because the gist of appellant's allegations is legal practice, the applicable limitation is found in R.C. 2305.11. Where, as here, the fraud alleged is so integral to appellant's malpractice claim, the existence of Schoby's alleged fraudulent conduct does not independently extend the statute of limitations for malpractice. Similarly here, the gist of Wozniak's claim is in the nature of legal malpractice because the alleged fraud arises out of the representation and is an integral part of it. Clearly, the same facts and circumstances which led to the original action for legal -5- malpractice have been presented in this second complaint as an action for fraud. In its syllabus in Grava v. Parkman Township (1995), 73 Ohio St.3d 379, the court set out the doctrine of res judicata and stated: A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action. The doctrine of res judicata applies not only to what was determined but also to every question which might properly have been litigated. Stromberg v. Bd. Of Edn. (1980), 64 Ohio St.2d 98, at 100. Thus, the doctrine of res judicata operates as a complete bar to Wozniak's allegations of fraud arising out of Tonidandel's representation. The court, therefore, did not err in granting summary judgment to Tonidandel. Wozniak's assignments of error are without merit and the order of the trial court is affirmed. Judgment affirmed. -6- It is ordered that appellee recover of appellant 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. JOHN T. PATTON, J., and KENNETH A. ROCCO, J., CONCUR TERRENCE O'DONNELL PRESIDING JUDGE 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 of decision by the .