[Cite as Accelerated Sys. Integration Inc. v. Ritzler, Coughlin & Swansiger, Ltd.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97481

ACCELERATED SYSTEMS INTEGRATION, INC., ET AL. PLAINTIFFS-APPELLANTS

vs.

RITZLER, COUGHLIN & SWANSINGER, LTD., ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-722726

BEFORE: Boyle, P.J., S. Gallagher, J., and Kilbane, J.

RELEASED AND JOURNALIZED: August 23, 2012 ATTORNEY FOR APPELLANTS

Dale F. Pelsozy P.O. Box 391411 Solon, Ohio 44139

ATTORNEYS FOR APPELLEES

Alan M. Petrov Holly Olarczuk-Smith Theresa A. Richthammer Gallagher Sharp 6th Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 MARY J. BOYLE, P.J.:

{¶1} Plaintiffs-appellants, Accelerated Systems Integration, Inc. (“ASI”),

Michael T. Joseph, and Michael T. Joseph as trustee of the Michael T. Joseph ESBT

(“the trust”) (collectively “the appellants”), appeal the trial court’s decision granting

summary judgment in favor of defendants-appellees, Ritzler, Coughlin & Swansinger,

Ltd. and Joseph Ritzler (collectively “Ritzler”) on the underlying legal malpractice

action. Finding merit to the appeal, we reverse and remand.

Procedural History and Facts

{¶2} The underlying facts relevant to the disposition of the assignments of error

span back over 12 years. For the sake of clarity and brevity, we set forth the following

background information and will discuss the facts in more detail as necessary in our

discussion of the assignments of error.

{¶3} Michael Joseph was formerly partners with Michael and Dianne Kennedy

(“the Kennedys”). Together, they operated and jointly owned MRK Technologies

(“MRK”), a business that provided technical support and consulting in the area of

computers and software. In the fall of 1999, Joseph and the Kennedys decided to part

ways. Joseph agreed to sell his interest in MRK while acquiring certain assets from

MRK and forming his own business — ASI, and the Kennedys agreed to buy Joseph’s

shares, choosing to own and run MRK without Joseph. {¶4} On October 12, 1999, the parties — ASI, Joseph, the trust, the Kennedys,

and MRK — executed a lengthy and detailed written agreement governing the terms of

the separation (“the Separation Agreement”). The execution of the Separation

Agreement (and specifically paragraph 5 — “the bonus provision”) is the genesis of

long, protracted litigation among these parties.

{¶5} Paragraph 5 of the Separation Agreement, titled “Bonus Rights,

Accounting Procedures and Adjustments and Related Financial Matters,” specifically

recognizes that the partners have shared bonus distributions from MRK on an equal

50-50 basis after a return on equity calculation and that the partners agree that they “shall

continue to share and receive bonus distributions on that basis through and including

December 31, 1999.” The section further recognizes that certain “procedures,

adjustments, and agreements” shall be observed “in order to properly account for and

calculate the bonus entitlements of MJ and MK/DK through December 31, 1999.”

These procedures are identified as follows:

(i) Promptly following the Second Closing, the Company’s independent accountants, Hausser & Taylor, shall perform an audit and examination of the Company’s financial statements for the year ended December 31, 1999, and as promptly subsequent to December 31, 1999, as feasible, and in any event within a period of sixty (60) days, deliver to the parties hereto its audit report and calculation of bonus entitlements of MJ and MK/DK, respectively. In calculating bonus entitlements, the accountants shall allocate for bonus purposes only any excess above $1,823,342 of equity of the Company. Should equity of the Company be determined to equal less than $1,823,342, MJ and MK/DK shall be obligated to return to the Company fifty percent (50%) of the deficiency. The Company agrees to cause Hausser & Taylor to consult with MJ regarding the appropriate levels of reserves prior to the completion of this report. {¶6} Paragraph 5(a)(ii) further contains a mechanism to resolve any dispute in the event that

either MJ or MK/DK did not agree with Hausser & Taylor’s (“H&T”) audit report and corresponding

bonus calculation:

Upon receipt of this audit report and calculation each of MJ and MK/DK, at his (or their) own expense, may engage certified public accountants to review and examine the financial records of the Company, the work papers of Hausser & Taylor and other matters necessary to analyze and evaluate such report and calculation. If within a period of thirty (30) days following delivery of the Hausser & Taylor report and calculation, either MJ and/or MK/DK gives notice (as provided herein) of objection to such report and/or calculation and their accompanying financial statements as not fairly presenting in all material respects the results of operations and financial condition of the Company as at and for the twelve (12) months ended December 31, 1999 in accordance with generally accepted accounting principles consistently applied, any such objection or objections shall be resolved by consultation of Hausser & Taylor with the accounting representatives designated by MJ and/or MK/DK respectively. The parties and their respective accountants agree to negotiate in good faith any remaining differences and, if unable to resolve such differences to their mutual satisfaction, shall engage an independent accounting firm to review and resolve any such differences. MK and MK/DK shall share the costs of such final accounting equally. * * *

{¶7} As stated in the Separation Agreement, the parties agreed that the accounting firm of

H&T would conduct the 1999 year-end audit for purposes of determining Joseph’s and the Kennedys’

bonus.

{¶8} H&T finished the final year-end audit and bonus calculation in February

2000. According to Joseph, he expected to be paid out approximately $5 million to $6

million as part of his bonus calculation under the Settlement Agreement. But rather

than being paid out the millions that he was anticipating, Joseph was notified that the

advances made in the previous fall exceeded MRK’s final profit for 1999, thereby

resulting in Joseph and the Kennedys each having been overpaid by $1.2 million. {¶9} Joseph believed that the Kennedys and MRK failed to adhere to the

accounting and oversight procedures contained in the Settlement Agreement and that

their alleged disregard for these procedures precluded an accurate accounting of his

bonus. He additionally believed that H&T neglected its duties by not uncovering and

rectifying MRK’s alleged accounting misconduct as contemplated in the Settlement

Agreement. According to Joseph, H&T, MRK, and the Kennedys conspired to deprive

him of his bonus.

{¶10} Following H&T’s final determination of the bonus calculation, the

relationship between Joseph and the Kennedys completely broke down, resulting in

several legal disputes in various forums. The appellants, however, did not retain Ritzler

to represent them in any matter related to the bonus calculation until September 2001.

{¶11} Relevant to this appeal, the allegations of malpractice stem from Ritzler’s

representation of the appellants in an action that originated as a defamation suit filed by

H&T against ASI but ultimately became the case that resolved the bonus calculation

dispute — the case that the appellants attribute to as the demise of their bonus rights due

to Ritzler’s alleged negligent representation. See Hausser & Taylor, LLP v.

Accelerated Sys. Integrations, Inc., Cuyahoga C.P. No. CV-02-468216 (hereinafter

“MRK litigation”).

MRK Litigation

{¶12} In May 2002, less than a month after H&T’s filing of its defamation action,

MRK joined the action as a plaintiff. MRK and H&T filed an amended complaint, adding an additional count of breach of contract against ASI. MRK later added Joseph

and his trust as defendants to the action (collectively “ASI defendants”).

{¶13} With respect to the breach of contract claim, MRK alleged that ASI

unjustifiably abandoned the mandatory alternative dispute resolution procedures set forth

in the Separation Agreement regarding the bonus dispute, thereby constituting a breach

of the agreement. MRK further sought specific performance of the alternative dispute

resolution provisions set forth in paragraph 5(a)(ii) of the Separation Agreement. The

ASI defendants added the Kennedys as third-party defendants to the action and asserted

several counterclaims and third-party claims against them related to the bonus

calculation. As for H&T, ASI and Joseph asserted several counterclaims against it,

namely, tortious interference with contract, fraud, civil conspiracy, negligent audit,

negligence, malicious prosecution, abuse of process, and an accounting, all stemming

from H&T’s 1999 year-end audit for MRK and determination of the partners’ bonus

rights. The ASI defendants, however, later voluntarily dismissed without prejudice all

their counterclaims against MRK, the Kennedys, and H&T before the trial court entered

judgment on the bonus calculation. H&T and MRK likewise subsequently dismissed

their defamation claims.

{¶14} The trial court ultimately appointed an independent accountant to resolve

the bonus calculation, who determinated that Joseph and the Kennedys each owed

$882,923 plus interest to MRK. In April 2004, the trial court confirmed the award and

awarded judgment in favor of MRK on its breach of contract claim. The ASI defendants subsequently appealed the decision to this court. We affirmed the trial

court’s confirmation of the award of $882,923 against the ASI defendants but found

error in the date that the trial court used in calculating the prejudgment interest. See

Hausser & Taylor, LLP v. Accelerated Sys. Integration, Inc., 8th Dist. No. 84748,

. The Ohio Supreme Court subsequently declined to accept jurisdiction

over the ASI defendants’ appeal. See Hausser & Taylor, LLP v. Accelerated Sys.

Integration, Inc.,

,

,

.

The Underlying Malpractice Suit

{¶15} ASI and the trust filed the original malpractice action against Ritzler on

April 25, 2007.1 Significant to our later discussion regarding statute of limitations,

Joseph was added to the action as a plaintiff on February 8, 2008 when the parties filed

an amended complaint. That action was ultimately voluntarily dismissed without

prejudice shortly after Ritzler moved for summary judgment.

{¶16} On March 30, 2010, all three plaintiffs — Joseph, ASI, and the trust —

refiled the dismissed malpractice claims in this case, alleging two counts. The only

count that is relevant to this appeal, alleges the following:

The Defendants, Ritzler and RCS, were engaged to represent these Plaintiffs in litigation to prosecute the above-mentioned claims against H&T, the Kennedys and MRK, to recover, amongst other things, the multi-million dollar bonus which should have been paid as a result of

The failure to name Joseph individually as a plaintiff was apparently the subject of 1

another legal malpractice action filed by Joseph. The lawsuit, Accelerated Sys. Integration, Inc. v. Charles V. Longo Co. LPA, Case No. CV-10-735444, was filed on August 30, 2010, but then voluntarily dismissed without prejudice on October 12, 2010. MRK’s 1999 performance. Ritzler evaluated and represented (to Joseph and H&T, amongst others) the bonus claim to be valued at $6 million or more.

In their representation of the Plaintiffs, the Defendants failed to exercise that degree of care and skill required by attorneys under the same or similar circumstances. They negligently advised these Plaintiffs of their legal rights and status; they failed to protect the statute of limitations for certain of the available claims, causing them to eventually become time-barred; and they negligently litigated those claims which were pursued to completion.

As a direct and proximate result of the combined and concurrent negligence of Defendants, and each of them, Plaintiffs suffered damages, including excessive and unnecessary costs and legal fees, a disastrously unsuccessful result in the litigation, the complete loss of viable and valuable legal claims, and other damages, in amounts will be proved at trial.

{¶17} With respect to the lost claims against H&T, the record reveals that there was a separate

action later filed against H&T for the claims that had previously been voluntarily dismissed in the

MRK litigation. But the appellants hired Charles Longo to pursue that action — not Ritzler — and

those claims were ultimately found to be untimely. See Accelerated Sys. Integration, Inc. v. Hausser

& Taylor, LLP, 8th Dist. No. 88207,

(affirming the trial court’s finding that the

four-year statute of limitations applied and had already accrued on the claims). Ritzler, however,

allegedly failed to properly advise the appellants on the time for refiling and erroneously believed that

the claims against H&T could be pursued beyond a four-year statute of limitations period.

{¶18} In the underlying case, Ritzler again moved for summary judgment

asserting several grounds as to why the appellants’ malpractice claim failed as a matter

of law, including (1) that ASI and the trust had no standing to recover any damages with

respect to the bonus calculation under the Settlement Agreement, and (2) that Joseph — the only party with standing — failed to commence his malpractice claim within the

statute of limitations. Alternatively, Ritzler argued that, even if Joseph’s claims were

not time-barred, the doctrine of collateral estoppel barred any purported claims he had

against H&T, and therefore any negligence in failing to timely refile claims against H&T

caused no damage to Joseph.

{¶19} The trial court found all three of these arguments persuasive and granted

Ritzler’s motion for summary judgment. The appellants now appeal, raising a single

assignment of error:

“The court erred in granting summary judgment as all issues were factual disputes

for the jury.”

{¶20} Within their single assignment of error, the appellants raise several

sub-arguments challenging the trial court’s judgment. We will address each argument.

Standard of Review

{¶21} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. This rule was reaffirmed by State ex rel. Zimmerman v. Tompkins,

,

(1996):

Civ.R. 56(C) 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming,

,

(1994), citing Temple v. Wean United, Inc.,

,

(1977). {¶22} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments by the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

,

(1987).

Standing and Privity

{¶23} ASI and the trust argue that the trial court erred in finding that they do not

have standing to assert a legal malpractice claim related to the bonus dispute. We

agree.

{¶24} To establish a cause of action for legal malpractice, one must show (1) an

attorney-client relationship, (2) professional duty arising from that relationship, (3)

breach of that duty, (4) proximate cause, and (5) damages. Shoemaker v.

Gindlesberger,

,

,

, ¶ 18.

{¶25} ASI and the trust argue that they were Ritzler’s clients and therefore had

standing to sue him for malpractice. They further contend that they stood in privity

with Joseph for purposes of the bonus provision contained in the contract, thereby

conferring them standing to assert Joseph’s rights.

{¶26} It is well settled that a party not in privity may not bring an action on a

contract as, “* * * the absence of ‘privity’ between the parties makes it difficult to

impose any duty to the plaintiff upon the contract itself.” Prosser and Keeton, Torts,

Section 93, 667 (5th Ed. 1984). Privity is defined as “‘[t]he connection of relation

between two parties, each having a legally recognized interest in the same subject matter.’” Sayyah v. Cutrell,

,

(12th

Dist. 2001).

{¶27} Ritzler counters that the trial court properly granted summary judgment

because any claim for malpractice related to the bonus dispute belongs solely to Joseph,

not the other two plaintiffs — ASI and the trust. The rationale for their argument is

simple: under the bonus provision, ASI and the trust have no legal entitlement to any

bonus — only Joseph; therefore, because ASI and the trust have no entitlement to any

bonus, they could not have suffered any damages by Ritzler’s alleged negligence in

pursuing Joseph’s bonus rights. Relying on this proximate cause and damages

argument, Ritzler contends that ASI and the trust do not have any standing to pursue a

claim that belongs solely to Joseph.

{¶28} Ritzler further counters that privity does not apply in the instant case where

ASI and the trust were actual clients of his — not mere third parties. He further argues

that Joseph is the only “real party in interest” to recover under the bonus provision, and

therefore only Joseph could claim to have sustained any damages as a result of alleged

legal malpractice that allegedly caused the loss of profits.

{¶29} Whether a party has standing depends upon whether he has a “personal

stake in the outcome of the controversy.” Middletown v. Ferguson,

,

(1986) (citation omitted). “The requirement that a party have

standing ensures that the dispute sought to be adjudicated will be presented in an

adversary context and in a form historically viewed as capable of judicial resolution.” (Internal quotation and citation omitted.) Zuckerman v. Gray, 11th Dist. No.

2008-T-0022,

.

{¶30} Additionally, Civ.R. 17 requires every civil action to be prosecuted in the

name of the real party in interest. State ex rel. Jones v. Suster,

,

(1998). The real party in interest is the party who will directly be

helped or harmed by the outcome of the action. “The person must have more than an

interest in the case. He or she must have some interest in the subject matter of the

litigation or is the person who can discharge the claim on which the suit is brought.”

Travelers Indem. Co. v. R. L. Smith Co., 11th Dist. No. 2000-L-014,

, *8 (Apr. 13, 2001).

{¶31} Suffice it to say, the factual circumstances of this legal malpractice action

are very unusual. Neither party cites any authority directly on point in support of their

respective position. And while we find Ritzler’s argument compelling on its face, we

cannot overlook a critical fact of the outcome of MRK litigation: ASI, the trust, and

Joseph were all three found “jointly and severally” liable on the judgment — the amount

that was due to MRK under the bonus provision. See Hausser & Taylor, LLP v.

Accelerated Sys. Integration, Inc., 8th Dist. No. 84748,

.

{¶32} The MRK litigation centered on the enforcement of paragraph 5 — the

bonus provision — the same provision that Ritzler now contends limits any malpractice

claim as belonging solely to Joseph. But given that the final judgment in the MRK

bonus litigation implicitly recognized ASI and the trust as having standing to enforce the bonus provision, and likewise be subject to liability under the provision, we find that

they have a “legally recognized interest” under the bonus provision. Thus, while we do

not agree that the three appellants are “one in the same,” we find that ASI and the trust

stand in privity with Joseph for the sake of the bonus provision. Ritzler should not now

be able to claim otherwise for the sake of avoiding a malpractice action.

{¶33} Likewise, ASI and the trust have a personal stake in the outcome of the

case in the pursuit of their own malpractice claim. Indeed, it only stands to reason that

if ASI and the trust have already been treated as sharing the same rights and obligations

as Joseph with respect to enforcement of the bonus provision, they have a right to pursue

a malpractice claim against their own attorney for any profit that allegedly could have

been recovered. We therefore find that the trial court erred in finding that Joseph is the

only proper party with standing to assert a malpractice claim as it relates to the bonus

calculation.

Collateral Estoppel

{¶34} We now turn to the issue of collateral estoppel. The trial court found that

the purported claims against H&T would have been barred by the doctrine of collateral

estoppel because the issue of the bonus rights had already been conclusively determined

in the MRK litigation. Finding that H&T could invoke the defense of collateral

estoppel as to any claims asserted by the appellants, the trial court determined that the

appellants could not establish any damages proximately caused by Ritzler’s alleged

failure to timely advise on the refiling of claims against H&T. {¶35} The appellants argue that the trial court erroneously concluded that

collateral estoppel would have barred claims against H&T. We agree.

{¶36} Under the doctrine of collateral estoppel, a party “is precluded from

relitigating in a second action an issue that has been actually and necessarily litigated and

determined in a prior action that was based on a different cause of action.” Miller v.

Coldwell Banker Hunter Realty, 8th Dist. Nos. 93529 and 93662,

, ¶ 20.

To to be successful in a claim of collateral estoppel, a party must prove the following

four elements: (1) the party against whom estoppel is sought was a party or in privity

with a party to the prior action; (2) there was a final judgment on the merits in the

previous case after a full and fair opportunity to litigate the issue; (3) the issue must have

been admitted or actually tried and decided and must be necessary to the final judgment;

and (4) the issue must have been identical to the issue involved in the prior suit.

(Internal citations omitted.) Id. at ¶ 23-27.

{¶37} Ritzler’s collateral estoppel argument fails to recognize that the appellants’

claims against H&T are distinct and separate from the claims resolved in the MRK

litigation. Indeed, it is undisputed that H&T had no obligation to pay any bonus under

the Separation Agreement. H&T’s role was simply to conduct the year-end audit.

According to the appellants, H&T negligently performed this role. Additionally, the

appellants asserted other claims against H&T that were not decided in the MRK

litigation, such as civil conspiracy to defraud — a claim that the appellants’ legal expert

opined was “viable” based upon “the many instances of deviations from accepted standards of care by an accountant in the shoes of H&T with respect to the bonus

calculation.”

{¶38} To the extent that the MRK litigation has already conclusively determined

the appellants’ rights under the bonus provision — specifically determining that Joseph

owed money to MRK under the bonus provision — we do not find this as a bar on the

legal malpractice claim related to lost claims against H&T. The gravamen of the

appellants’ malpractice action is that Ritzler negligently handled the MRK litigation,

resulting in a “disastrous result.” We do not agree that our affirmance of the trial

court’s determination of the bonus calculation is dispositive on the malpractice claim.

Indeed, at the heart of the appellants’ malpractice claim is that Ritzler failed to properly

invoke the ADR mechanism in the Separation Agreement as opposed to subjecting the

appellants to the common pleas court for resolving this dispute — a forum where they

were allegedly prevented from presenting all of the alleged miscalculations for the

appointed accountant’s determination. This issue has not been decided. While we

make no finding as to the merits of the appellants’ claim, we do find that they have

satisfied their burden to overcome summary judgment.

{¶39} Likewise, while we agree that a party cannot collaterally attack a valid,

final judgment, we do not agree that the appellants’ prosecution of their claims against

H&T undermines the final judgment in the MRK litigation. See Ohio Pyro, Inc. v.

Ohio Dept. of Commerce,

,

,

. The claims against H&T have never been decided. Further, the appellants’ claim that Ritzler negligently represented them in the MRK litigation has never been

decided. We therefore do not find that the bonus calculation itself decided in the MRK

litigation is a bar to any claim against H&T.

Statute of Limitations

{¶40} The appellants also argue that the trial court erred in finding that Joseph’s

malpractice claim was time-barred. We agree in part.

{¶41} The statute of limitations for the filing of a legal malpractice claim is one

year. R.C. 2305.11(A). An action for legal malpractice accrues on the later of two

dates: (1) “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”; or (2) “when

the attorney-client relationship for that particular transaction or undertaking

terminates.” Zimmie v. Calfee, Halter & Griswold,

,

(1989), citing Omni-Food & Fashion, Inc. v. Smith (emphasis added),

,

(1988).

{¶42} Joseph does not dispute that the cognizable event for his malpractice claim

occurred more than one year before his February 8, 2008 filing of the malpractice

complaint against Ritzler. Rather, Joseph contends that the complaint was filed within

one year from when the attorney-client relationship ended. On appeal, Joseph argues

that the trial court erred in deciding this issue because it could not be decided as a matter

of law. He argues that a genuine issue of material fact exists as to whether the attorney-client relationship was still ongoing in February and March 2007 or even

September of 20072 — all within the one year time period of when his lawsuit was filed

on February 8, 2008.

Termination of Attorney-Client Relationship

{¶43} Generally, the determination of whether an attorney-client relationship has

ended is a factual question to be resolved by the trier of fact. Mobberly v. Hendricks,

,

(9th Dist. 1994). As recognized by the

Ohio Supreme Court, “the question of when an attorney-client relationship for a

particular undertaking or transaction has terminated is necessarily one of fact.”

Omni-Food & Fashion,

. But one party or the other may undertake

affirmative actions that are so inconsistent with a continued relationship that the question

of when an attorney-client relationship has ended may be taken away from the trier of

fact, and decided as a matter of law. Steindler v. Meyers, Lamanna & Roman, 8th Dist.

No. 86852,

. Also, “where reasonable minds can come but to one

conclusion from the evidence to determine when the attorney-client relationship ends,

the termination may be decided as a matter of law.” McGlothin v. Schad,

,

,

(12th Dist.), citing Trombley v.

Calamunci, Joelson, Manore, Farah & Silvers, LLP, 6th Dist. No. L-04-1138,

.

Joseph argued in his brief in opposition that the attorney-client relationship was ongoing 2

until the Ohio Supreme Court declined jurisdiction over an appeal in September 2007. Particular Undertaking or Transaction

{¶44} Before analyzing the issue of when the statute of limitations began to

accrue based on a termination of the attorney-client relationship, we first must consider if

Ritzler’s representation embodied one or two separate undertakings or transactions. In

specifying that a legal malpractice claim accrues when the attorney-client relationship for

that particular transaction or undertaking terminates, the Ohio Supreme Court rejected an

argument that “continued ‘general’ representation should toll the statute of limitations.”

Omni-Food & Fashion,

. The “particular transaction” language

was added to the termination rule to ensure that the purpose of the statute of limitations

is served. Otherwise, without such a limitation, “a client with knowledge of an

attorney’s malpractice may unduly perpetuate the attorney’s potential liability and

exposure to suit.”

{¶45} In his motion for summary judgment, Ritzler argued that his representation

of Joseph supporting the first count of the legal malpractice claim related to two separate

undertakings or transactions: (1) his representation of Joseph regarding claims related to

MRK and the Kennedys; and (2) his representation of Joseph regarding claims related to

H&T. Contending that the representations were distinct and separate undertakings,

Ritzler argued that accrual time for the statute of limitations for each one must be

separately examined.

{¶46} Conversely, Joseph countered that the two representations could not be

parsed out as Ritzler argues because they both stemmed from Ritzler’s representation of Joseph relating to the bonus calculation. Relying on Ritzler’s own deposition

testimony, Joseph pointed out that Ritzler even admitted that the claims of each were

“offshoots” of the other and that Ritzler billed for both cases using the same case

designation, namely, “H&T Contingency.”

{¶47} Although we agree that Ritzler’s representation of Joseph with respect to

bonus-related claims against MRK/Kennedys and claims against H&T originated as a

“particular undertaking,” we find that it did not continue that way. Once Ritzler

voluntarily dismissed any claims against H&T in the MRK bonus litigation, his alleged

continued representation of the appellants with respect to their claims against H&T

became separate from his continued representation of the appellants in resolving the

bonus dispute against MRK. We find Joseph’s hiring of Charles Longo to refile the

claims against H&T as further support that any role that Ritzler had with the H&T matter

was a separate undertaking from his representing the appellants in the MRK litigation.

Thus, Ritzler’s actions in relation to the MRK litigation cannot be grounds to toll the

statute of limitations with respect to his alleged representation on the H&T matter. See

FDIC v. Alexander,

(6th Cir. 1996). Each representation must

be separately examined. See Antioch Litigation Trust v. McDermott Will & Emery

L.L.P.,

(S.D. Ohio 2010), citing

(the key date

in determining the date of termination of a “particular transaction” is when the legal

representation on the matter in question ceases, rather than all representation). {¶48} Keeping in mind that the evidence must be construed in favor of Joseph,

the nonmoving party, we now turn to each particular transaction to determine whether it

can be decided as a matter of law that the attorney-client relationship terminated prior to

February 8, 2007 — one year from when Joseph filed his complaint.

A. Representation Regarding H&T Claims

{¶49} Ritzler contends that the attorney-client relationship terminated as a matter

of law when the claims against H&T were voluntarily dismissed. In the alternative, he

argues that the relationship concluded as a matter of law when Joseph retained Charles

Longo — and only Longo — to pursue claims against H&T. Conversely, Joseph argues

that the relationship did not terminate until August 29, 2007 when the Ohio Supreme

Court declined jurisdiction over the appeal in the H&T litigation.3 Alternatively, he

argues that at the very least, a genuine issue of material fact exists as to when the

attorney-client relationship ended.

{¶50} While we agree that Ohio law generally recognizes that the retention of

new counsel to pursue matters previously handled by a former attorney signifies that the

attorney-client relationship with the former attorney has terminated, the facts of this case

do not fall squarely within that precedent. See generally Zimmie,

,

, paragraph six of the syllabus (affirmative acts sufficient to terminate the

attorney-client relationship include the client retaining other counsel); Taylor v. Oglesby,

The Ohio Supreme Court declined jurisdiction and dismissed the appeal finding no 3

conflict. See Accelerated Sys. Integration, Inc. v. Hausser & Taylor, LLP,

,

,

, and

,

,

. 6th Dist. No.

(retention of new counsel to file an appeal

terminated the attorney-client relationship). In this case, Joseph pointed to several

actions or correspondence to or from Ritzler that were consistent with Ritzler still

advising him with respect to the H&T matter, even after Charles Longo was retained to

refile the action against H&T. The latest of these communications occurred on

November 30, 2006, in a letter from Charles Longo to Ritzler that stated the following:

Since my last correspondence to you, I have become aware you are continuing to represent Accelerated Systems and Michael Joseph. Over the last couple of months, Mr. Joseph advised me you would provide case law which supports your position that statute of limitations on the accounting malpractice claim is not time barred. Please forward those cases to me as soon as possible, if they exist.

{¶51} In his July 24, 2008 deposition, Ritzler responded to questions regarding

the November 2006 letter from Longo and admitted that as of November 2006, he was

still representing Joseph and ASI with respect to H&T issues. The record further

contains a December 18, 2006 research memo conducted by a Ritzler associate regarding

the statute of limitations for a claim of accounting malpractice that Ritzler believed he

requested as a result of Longo’s November 30, 2006 letter. Construing this evidence in

a light most favorable to Joseph, we find that a genuine issue of material fact exists as to

whether the attorney-client relationship was still ongoing in December 2006.

{¶52} But after December 18, 2006, there is absolutely no evidence that Ritzler

was providing any counsel to Joseph with respect to the H&T matter. It is clear that

Ritzler was neither advising Joseph in any capacity or doing any work in connection with

the matter. See Woodrow v. Heintschel,

,

,

(6th Dist.) (recognizing that attorney’s cessation of all work and notice of

withdrawal, despite not received by clients, constituted unambiguous acts terminating the

attorney-client relationship). Joseph even acknowledged in his October 2008

deposition that Ritzler’s involvement in pursuing any claim against H&T ceased.

Specifically, Joseph testified as follows:

Q. Well, when you discussed with Mr. Ritzler the role that he was going to play in the refiled case against Hausser & Taylor, what did you discuss that role would be or might be?

A. Co-Counsel, supporting counsel, independent advisor.

Q. And was there any role that he agreed to accept in the refiled case?

A. Ultimately, he became nonresponsive. At the initial meeting he assured us that the statutes were not broken and that we had preserved all our rights and then was going to even produce some case law for us, and then we kept asking him for the case law and by his lack of continued responses, it became apparent that he did not want to participate going forward in representing me.

{¶53} Thus, while we disagree with Ritzler’s contention that the attorney-client

relationship terminated as a matter of law in April 2003, or even on September 27, 2005

when the claims were refiled, we do find that the relationship ended no later than

December 18, 2006. See, e.g., Triplett v. Benton, 10th Dist. No. 03AP-342,

(client’s pro se filings and cessation of all work by attorney evidenced

termination of attorney-client relationship); Trickett v. Krugliak, Wilkins, Griffiths &

Dougherty Co., L.P.A., 12th Dist. No. 2000-P-0105,

(attorney-client

relationship terminated when the underlying action has concluded, the attorney exhausted all remedies in the case, and declined to provide additional legal services on

related issues).

{¶54} Given that Ritzler was never the counsel of record on the refiling of the

claims against H&T, the idea that he was serving as co-counsel up until August 2007 —

the date that the Supreme Court declined to hear the appeal — is simply not supported

by the record. Nor is it a logical conclusion. See Koerber v. Levey & Gruhin, 9th

Dist. No. 21730,

(nonsensical to think that attorney-client relationship

lasted until the Supreme Court denied certiori of the appeal when attorney’s

representation on the underlying action concluded two years earlier and client retained

new counsel on appeal). Accordingly, we find that reasonable minds could only

conclude that the attorney-client relationship concluded no later than December 2006, if

not earlier. Therefore, Joseph’s malpractice claim related to H&T matters is

time-barred.

B. Representation of Matters Related to MRK/the Kennedys

{¶55} In his motion for summary judgment, Ritzler argued that the attorney-client

relationship with respect to the refiling of any counterclaims against the Kennedys or

MRK terminated when those counterclaims were dismissed in April 2003. He further

argued that the termination of the attorney-client relationship with respect to Joseph’s

defense in the MRK litigation terminated as a matter of law on January 8, 2007, when

Joseph retained new counsel, Dale Pelozy, to complete the MRK matter. The record

reveals that Pelozy filed an appearance as counsel through a January 8, 2007 request to enter judgment. There are no further filings made by Ritzler on Joseph’s behalf after

Pelozy’s appearance.

{¶56} We find, however, that genuine issues of material fact exist that preclude

the granting of summary judgment with respect to Ritzler’s representation of Joseph in

the MRK litigation. First, contrary to Ritzler’s implied assertion, his representation of

Joseph regarding the pursuit of affirmative claims against the Kennedys and MRK and

his defense of Joseph in the MRK litigation constitute the same transaction or

undertaking. Indeed, Ritzler was hired to represent Joseph with respect to his rights

under the bonus provision as it related to these parties. See Thomas v. Kramer,

,

,

(8th Dist.) (recognizing that

particular transaction encompasses all dealings related to the proceeding in which the

alleged malpractice occurred that are not of a general nature). To the extent that the

counterclaims were dismissed and the MRK litigation proceeded against these same

parties, we find it unreasonable to assume that Joseph would know that Ritzler was no

longer representing him with respect to any future claims against these parties.

Moreover, unlike the analysis with respect to the H&T claims, Joseph never retained new

counsel to pursue these counterclaims.

{¶57} Second, the record reveals that Ritzler sent Joseph a billing statement for

work that he performed in March and April 2007, albeit for minimal time and expense,

in connection with the MRK litigation. Specifically, the invoice indicates that Ritzler

was billing for “receipt and review of journal entry” regarding the scheduling of a pretrial, a status conference, and his corresponding letters sent to Joseph advising of the

matters. And while Joseph contends that this billing raises an issue of fact with respect

to Ritzler’s representation regarding H&T matters, our review of the MRK litigation

docket reveals that the work identified in the billing relates solely to the MRK litigation.

But based on the fact that Ritzler was billing Joseph for work performed in connection

with the MRK litigation in February and March 2007, we find that a genuine issue of

material facts exists as to when the attorney-client relationship terminated.

{¶58} Accordingly, the trial court erred in granting summary judgment in favor of

Ritzler with respect to whether Joseph’s malpractice claim regarding the MRK litigation

was time-barred. The trial court, however, properly granted summary judgment with

respect to Joseph’s malpractice claim regarding the lost H&T claims because the

attorney-client relationship regarding that undertaking terminated more than one year

from when Joseph filed his legal malpractice suit.

Conclusion

{¶59} Applying a de novo standard of review, we find that the trial court erred

in holding that ASI and the trust lacked standing to assert a legal malpractice claim

against Ritzler related to the bonus calculation. Having already been found liable under

the bonus provision, we find that ASI and the trust have a legally recognized interest in

the bonus provision of the Separation Agreement. We likewise find that the trial court

erred in holding that the doctrine of collateral estoppel barred Joseph’s legal malpractice

claim as it pertained to Ritzler’s representation regarding claims against H&T. {¶60} We further find that summary judgment was not proper with respect to

Joseph’s malpractice claim related to Ritzler’s representation in the MRK litigation

because a genuine issue of material fact exists as to the termination date of the

attorney-client relationship. We do find, however, that the trial court properly

determinated that Ritzler’s representation with respect to any claims against H&T

terminated more than one-year prior to Joseph filing his malpractice claim.

{¶61} Judgment reversed and case remanded for further proceedings consistent

with this opinion.

It is ordered that appellants recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR