COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73276 KOHRMAN, JACKSON & KRANTZ, : P.L.L. : JOURNAL ENTRY PLAINTIFF-APPELLEE : v. : AND ROBERT S. FRAIBERG : DEFENDANT-APPELLANT : OPINION v. : S. LEE KOHRMAN, ESQ. : THIRD-PARTY DEFENDANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-297282. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Sarah Gabinet, Esq. Susan L. Joplin, Esq. Kohrman, Jackson & Krantz One Cleveland Center, 20th Floor 1375 East Ninth Street Cleveland, OH 44114 For Defendant-Appellant: Larry W. Zukerman, Esq. S. Michael Lear, Esq. Zukerman & Daiker Co., L.P.A. 2000 East Ninth Street, Suite 700 Cleveland, OH 44115 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant Robert S. Fraiberg ( appellant ) appeals the decision of the Cuyahoga County Court of Common Pleas which it granted the summary judgment motion of Kohrman, Jackson & Krantz and S. Lee Kohrman ( appellees ), denied appellant's motion for summary judgment on his claim for legal malpractice and entered judgment for appellee Kohrman, Jackson & Krantz for its fees for legal services rendered with both pre-judgment and post-judgment interest. The record reveals the following facts which give rise to this appeal. Appellant retained S. Lee Kohrman and the law firm of Kohrman, Jackson & Krantz to represent him on various matters in the Ohio divorce proceedings instituted by his wife, including a challenge to the jurisdiction of the Ohio court by way of a motion to quash service upon him. On March 9, 1994, the motion to quash service on appellant was denied by the Domestic Relations Court. The law firm proceeded to prepare a motion for reconsideration of the court's denial of the motion to quash. However, appellant discharged appellees as his counsel on March 24, 1994. On March 25, 1994, appellees turned over appellant's file, including a copy of the transcript of the March 9th hearing to appellant's new counsel. On October 24, 1995, seventeen months after the termination of the attorney-client relationship, Kohrman, Jackson & Krantz filed a three-count complaint against appellant alleging his breach of contract and unjust enrichment resulting from his failure to pay legal fees incurred during their representation of appellant. On -3- January 25, 1996, appellant answered the complaint, and asserted claims of negligence and legal malpractice in his counterclaim against the law firm and in the third-party complaint against attorney S. Lee Kohrman. On May 8, 1997, appellees filed a joint motion for summary judgment both on its claims for fees brought in its complaint and on the claims brought against them by appellant sounding in negligence and legal malpractice. On June 4, 1997, appellant opposed appellees' motion. On June 25, 1997, appellant filed his motion seeking summary judgment on his negligence and legal malpractice claims. On September 4, 1997, the court granted appellees' motion, denied appellant's motion and entered judgment in favor of appellee, Kohrman, Jackson & Krantz, on its claim for fees. Appellant timely appeals this judgment against him and advances three assignments of error for our review. I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEE[']S MOTION FOR SUMMARY JUDGMENT IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEES' (SIC) MOTION FOR SUMMARY JUDGMENT IN THAT A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO APPELLANT'S DEFENSE OF RECOUPMENT IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED -4- STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. In his first assigned error, appellant contends that the trial court erred in granting appellee's motion for summary judgment alleging appellee did not establish the essential elements of the counts contained in the complaint. Specifically, appellant contends that summary judgment was improperly granted on: 1) the contract claim because he alleges appellees breached the contract; 2) the unjust enrichment claim because he alleges there has been no gain by appellant; and 3) the claim for account because he alleges appellees failed to provide their service with the concomitant obligations of care, skill and faithfulness. Moreover, appellant contends that the trial court erred in granting summary judgment in favor of appellees on his claim of legal malpractice against them. We find the trial court properly granted appellees' motion for summary judgment in its entirety. This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. An appellate court applies the same test as a trial court, which test is set forth in Civ.R. 56(C) which 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 reasonable minds can come to but one conclusion, 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. -5- 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; Dresher v. Burt (1996), 75 Ohio St.3d 280. 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. Dresher, supra; Celotex, supra at 322. With these standards in mind, we review the matter before us. First, we find that appellees are entitled to summary judgment on appellant's counterclaim for legal malpractice as these claims were untimely filed. R.C. 2305.11 governs the time for filing an action for malpractice and provides in pertinent part that: an action for malpractice *** shall be commenced within one year after the cause of action accrued[.] An action for legal malpractice accrues and the statute of limitations begins to run under R.C. 2305.11 when there is a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney. Zimmie v. Calfee, Halter and Griswold (1989), 43 Ohio St.3d 54, 59. A -6- cognizable event is one sufficient to alert a reasonable person that his attorney has committed an improper act in the course of legal representation. Spencer v. McGill (1993), 87 Ohio App.3d 267; Hinkle v. Malone (1996), 110 Ohio App.3d 703. This court has stated that [a] cognizable event can occur when the client learns of an adverse decision during litigation. See, generally, McDade v. Spencer(1991) 75 Ohio App.3d 639, 600 N.E.2d 371 (cognizable event when plaintiff was cited for contempt for failing to comply with a settlement agreement); Cutcher v. Chapman (1991), 72 Ohio App.3d 265, 594 N.E.2d 640 (cognizable event when trial grant summary judgment on statute of limitations grounds); Lowe v. Cassidy (Nov. 3, 1994), Franklin App. No. 94APE06-784, unreported (cognizable event when jury returned adverse jury verdict). Wozniak v. Tonidandel (May 29, 1997), Cuyahoga App. Nos. 70110, 70633, unreported, at 6. Our supreme court has found in a medical malpractice action that it is the knowledge, actual or inferable, of facts, not legal theories, which initiates the running of the one-year statute. Hershberger v. Akron (1987), 34 Ohio St.3d 1. We find that reasoning to be persuasive here. In the matter before us, appellant complains that the act of malpractice was counsel S. Lee Kohrman's failure to attend a scheduled hearing which led to the court's denial of the motion to quash service. It is undisputed that appellee was apprised of attorney Korhman's failure to attend the hearing on March 9, 1994. Moreover, the evidence before us reveals that appellant knew of the failure of the motion to quash service by phone conversation with -7- Sarah Gabinet, attorney with appellee's firm. Appellant knew that a motion to reconsider the trial court's denial of his motion to quash was prepared. Appellant terminated his relationship with appellee on March 24, 1994. Therefore, it can be said that in March 1994, appellant was aware of facts sufficient to alert him both to the alleged improper act here; counsel S. Lee Kohrman's failure to attend the hearing; and to the subsequent failure of the motion to quash which he contends gives rise to his claim of legal malpractice against appellees. The statute of limitations began to run when appellant either discovered or should have discovered the alleged malpractice or when the attorney client terminated. Omni- Food and Fashion v. Smith (1988), 38 Ohio St.3d 385. Pursuant to statute, appellant has one year from March 1994 in which to file his claim for legal malpractice. Consequently, appellant's claims for legal malpractice having been filed January 25, 1996 are barred by the statute of limitations. Even so, we find appellant's claim for legal malpractice is without merit and appellees are entitled to summary judgment on appellant's claims against them. To establish a case for legal malpractice one must prove three elements: 1) the attorney owed a duty; 2) there was a breach of that duty and the attorney failed to conform to the standard of care required by law; and 3) there is a causal connection between the conduct complained of and the resulting damage. Vahila v. Hall (1997), 77 Ohio St.3d 421, 427. It is undisputed that the law firm owed a duty to appellant. Appellant contends that appellees breached their duty to him as put -8- forth in the confirmation of engagement letter of January 6, 1994 when attorney S. Lee Kohrman failed to personally attend the hearing on March 9, 1994. The letter stated as follows: Please allow this letter to serve as confirmation that only you are instructed to represent me in my current legal proceedings. Without my specific consent no other attorney from your office should be involved in handling this matter. You have advised me that you will be in New Zealand from January 31 through February 24,1994. While I desperately need funds wrongfully frozen by my Wife, I request no hearing be scheduled while you are away. The record reveals that the hearing involved in this matter was originally set on March 22, 1994, not during the time period Kohrman was to be in New Zealand. Attorney Kohrman was to attend and represent appellant on that date. The court of domestic relations, apparently without notice to the Kohrman law firm, advanced the date of the hearing to March 9, 1994, a day on which attorney Kohrman was to be in Colorado. Appellant was aware that a motion for continuance was prepared and filed in the matter. Opposition to the motion for continuance was filed. No ruling on the motion for continuance was made by the court in advance of the hearing date. On March 9th, the morning of the hearing, Sarah Gabinet, a partner with experience in domestic relations and the attorney who had researched and drafted the motion to quash, sought appellant's specific consent, as contemplated by the letter agreement, to handle the matter at hearing pursuant to the directive of the confirmation letter. Appellant, however, refused to give his consent to being represented by Ms. Gabinet. -9- Appellant asserts that Kohrman failed to exercise the knowledge, skill and ability ordinarily possessed and exercised by members of the legal community practicing in Cuyahoga County and the State of Ohio because Kohrman chose to go to Colorado as opposed to representing appellant and should be held accountable for his actions. To support his position that Kohrman's behavior fell below the applicable standard, appellant submitted the expert report of Herbert R. Whiting. Judge Whiting, in his expert report, states in pertinent part: *** the undisputable standards for any attorney practicing in Cuyahoga County require that he or she appear at a duly scheduled hearing in person or, if necessary, in the person of another qualified attorney who is reasonably well prepared, is duly authorized in the premises and undertakes to represent the client to the best of his or her ability. The mere filing of a motion for continuance does not excuse an attorney from his or her duty to comply with this standard. (Emphasis added.) The question before us, then, is whether attorney Kohrman's failure to attend the hearing due to his being out of the state, even where he sent another partner from his firm to represent his client, falls below the standard as put forth by the expert. The record before us reveals that, of necessity because counsel was outside the jurisdiction on the hearing date due to the court's rescheduling of the hearing, the law firm of Kohrman, Jackson & Krantz sent another partner of the firm to represent appellant. Further, the record reflects that this substitute attorney was qualified in domestic relations law and had done the research and -10- drafting of the motion at issue. Appellant withheld his consent to allow this attorney to represent him before the court. The motion to quash was overruled for movant's failure to proceed on the motion pursuant to Loc.R. 4. When we apply the standards as set forth in the affidavit of appellant's own expert, we find that it cannot be said that the failure of the specific attorney to attend the hearing on the motion to quash was a failure to conform to the standard of care required by law, thereby breaching the duty to appellant where the facts in the record before us demonstrate that appellant, himself, prevented representation by another qualified attorney at the hearing by his own directive. Accordingly, appellant's counterclaim against appellee for legal malpractice and negligence must fail on the merits. Moreover, where there is no evidence to support a claim of legal malpractice, appellant is entitled to no damages from appellee as a result of a breach of duty. Consequently, appellee is precluded from interposing the defense of recoupment to offset his damages on his malpractice claims as appellant has failed to demonstrate that he incurred expenses as a result of appellees' failure to comply with its obligations under the agreement. Metropolitan Life Ins. Co. v. Triskett Illinois, Inc. (1994), 97 Ohio App.3d 228, 237. Accordingly, appellant's third assignment of error, wherein he claims that the trial court erred in granting summary judgment in appellees' favor on a claim where the defense of recoupment exists, has no merit and is overruled. -11- Further, we find that the trial court properly granted summary judgment to appellee on its contract claim for fees for legal services rendered by appellee to appellant. It is undisputed that a contract was entered into by appellant and appellee-law firm. In order to succeed on a contract claim, it must be shown that the party seeking recovery complied with the obligation of the contract. Riley v. Montgomery (1984), 11 Ohio St.3d 75; Thomas v. Matthews (1916), 94 Ohio St. 32. The record reflects and we have further found that appellee performed its obligations pursuant to the contract without falling below the standard of care required and is, therefore, entitled to payment of its invoice for legal fees as presented. As stated above, the failure of attorney Kohrman to attend the hearing on March 9, 1994, when another attorney from the firm was in attendance but prevented from acting on appellant's behalf by appellant's refusal to permit her to do so, does not amount to a legal malpractice nor breach of the employment contract. Appellee performed in accordance with its contract with appellant and is entitled to payment. Moreover, pursuant to R.C. 1343.03(A), appellee is entitled to pre-judgment and post-judgment interest on the principal amount due of ten percent from the date of the last invoice, the time the money should have been paid. Yaroma v. Griffiths (1995), 104 Ohio App.3d 545. Accordingly, we find that the trial court properly granted appellee's motion for summary judgment on its complaint against appellant for attorney's fees. Appellant's first and third assignments of error are without merit. -12- In his second assignment of error, appellant contends that the trial court erred when it denied his motion for summary judgment on his claims for negligence and legal malpractice brought against appellees. As discussed above, we find that the record reflects that appellant's claim for legal malpractice was not timely brought pursuant to the statute; and, moreover, we find the legal malpractice claim to fail on its merits for appellant's failure to demonstrate counsel's breach of the standard of care required of an attorney practicing in this jurisdiction. Accordingly, we find that the trial court properly denied appellant's motion for summary -13- judgment on his claims. Appellant's second assignment is without merit. Judgment affirmed. -14- It is ordered that appellees recover of appellant its 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. TIMOTHY E. McMONAGLE JUDGE NAHRA, P.J. and O'DONNELL, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .