[Cite as Ruf v. Belfance,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

TERRI L. RUF C.A. No. 26297

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE KATHRYN A. BELFANCE, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. 2009 09 6525

DECISION AND JOURNAL ENTRY

Dated: January 23, 2013

KEOUGH, Judge.

{¶1} Plaintiff-appellant, Terri L. Ruf, appeals the summary judgment of the Summit

County Court of Common Pleas in favor of defendants-appellees Katherine A. Belfance, Melissa

Carey Dean, Katherine A. Belfance & Associates, L.L.C., and Roderick Linton & Belfance,

L.L.P. (collectively “Belfance”), on Ruf’s legal malpractice claim against appellees. At issue is

whether Ruf’s malpractice claim was time-barred. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶2} On April 21, 2005, Ruf retained Belfance to represent her in divorce proceedings.

The divorce decree was announced and journalized on June 28, 2007. Belfance subsequently

filed an appeal on Ruf’s behalf, but the appellate court declined to address the merits of the

appeal in large part because exhibits from the divorce trial had not been timely filed with the

court of appeals. Ruf pursued a discretionary appeal to the Supreme Court of Ohio, which

declined jurisdiction on July 9, 2008. 2

{¶3} On August 12, 2008, unbeknownst to Belfance, Ruf consulted by phone with

Richard A. Rabb, a domestic relations attorney. Ruf conceded at her deposition that she had lost

confidence in Belfance and called Rabb with the intent to have him take her place. On August

18, 2008, Ruf met with Rabb and discussed her dissatisfactions with Belfance and the divorce

case, and requested that Rabb represent her in the divorce case. That same day, Rabb spoke with

attorney Richard Koblentz about Ruf’s divorce case. Ruf had already engaged Koblentz to

pursue a legal malpractice claim against Belfance, and he had referred her to Rabb.

{¶4} Rabb agreed to become Ruf’s counsel and on August 19, 2008, sent her a

confirming retention letter, which Ruf signed and returned. Although the record does not reflect

the date of payment, pursuant to the retention letter, Ruf paid Rabb a retainer of $8,000. Two

days later, on August 21, 2008, Ruf conferred again with Rabb regarding both the divorce case

and a potential malpractice case against Belfance.

{¶5} Ruf did not notify Belfance that she had retained new counsel nor did Rabb give

notice that he was Ruf’s new counsel. On September 11, 2008, Ruf and Carl Patrick, her

boyfriend and an attorney licensed in Florida, met with Belfance to discuss filing an affidavit of

prejudice against the domestic relations judge with the Chief Justice of the Supreme Court of

Ohio. Ruf did not inform Belfance at the meeting that she had retained new counsel and, to the

contrary, affirmatively misrepresented to Belfance that she had not retained other counsel. When

Belfance advised Ruf during the meeting that she would not sign an affidavit of prejudice, Ruf

became unhappy and questioned Belfance’s motives. Ruf’s attitude caused Belfance to conclude

that Ruf should obtain new counsel and she so advised Ruf in a letter dated September 12, 2008.

The trial court approved Belfance’s withdrawal on September 22, 2008. 3

{¶6} On September 2, 2009, Ruf filed her complaint for legal malpractice against

Belfance. The parties engaged in discovery and retained experts regarding the standard of care.

On November 18, 2011, Belfance filed a motion for summary judgment in which she argued that

no genuine issue of material fact existed with respect to the merits of Ruf’s malpractice claims

and that Ruf had failed to file her complaint within the one-year limitations period set forth in

R.C. 2305.11(A).

{¶7} The trial court subsequently granted Belfance’s motion for summary judgment on

statute of limitations grounds alone. The court held that a cognizable event sufficient to put Ruf

on notice of a questionable legal practice had occurred on or before August 18, 2008, and,

further, that Ruf had effectively terminated the attorney-client relationship on or before August

18, 2008. Accordingly, the court held that Ruf’s legal malpractice action was time-barred

because the applicable one-year statute of limitations expired on August 18, 2009, and Ruf did

not file her action until September 2, 2009.

II. Analysis

{¶8} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there is no

genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law,

and (3) after construing the evidence most favorably for the party against whom the motion is

made, reasonable minds can only reach a conclusion that is adverse to the nonmoving party.

Zivich v. Mentor Soccer Club, Inc.,

,

,

(1998); Temple v. Wean United, Inc.,

,

(1977). We

review the trial court’s judgment de novo, using the same standard that the trial court applies

under Civ.R. 56(C). Grafton v. Ohio Edison Co.,

,

, 671

(1996). Accordingly, we stand in the shoes of the trial court and conduct an

independent review of the record.

{¶9} In her single assignment of error, Ruf contends that the trial court erred in

granting summary judgment to Belfance.

{¶10} Under R.C. 2305.11(A), an action for legal malpractice must be filed within one

year of the time the cause of action accrues.

[A]n 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 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

when the attorney-client relationship for that particular transaction or undertaking

terminates, whichever occurs later.

Zimmie v. Calfee, Halter & Griswold,

,

(1989), syllabus, citing

Omni-Food & Fashion, Inc. v. Smith,

,

(1988). “Zimmie and

Omni-Food require two factual determinations: (1) When should the client have known that he or

she may have an injury caused by his or her attorney? and (2) When did the attorney-client

relationship terminate? The latter of these two dates is the date that starts the running of the

statute of limitations.” Smith v. Conley,

,

,

.

{¶11} Ruf does not dispute that the cognizable event for her malpractice claim occurred

more than one year before the September 2, 2009 filing of her malpractice complaint against

Belfance. Rather, she contends that the attorney-client relationship ended no earlier than her

September 11, 2008 meeting with Belfance and no later than Belfance’s September 12, 2008 5

termination letter and, hence, that she brought her claim within the one-year statute-of-

limitations period. At the very least, she contends there is a genuine issue of material fact as to

when the attorney-client relationship terminated.

{¶12} Generally, the determination of whether an attorney-client relationship has ended is

a factual question to be resolved by the trier of fact. Omni-Food & Fashion,

. But one party to the relationship may take affirmative actions that are so inconsistent with a

continued relationship that the question of when the attorney-client relationship ended may be

decided as a matter of law. Accelerated Sys. Integration, Inc. v. Ritzler, Coughlin & Swansinger,

Ltd., 8th Dist. No. 97481,

, citing Steindler v. Meyers, Lamanna & Roman,

8th Dist. No. 86852,

; Downey v. Corrigan, 9th Dist. No. 21785, 2004-

Ohio-2510, ¶ 14. Where the actions terminating the relationship are clear and unambiguous,

such that reasonable minds can come to but one conclusion from the evidence, the termination

may be decided as a matter of law. Koeber v. Levy & Gruhin, 9th Dist. No. 21730, 2004-Ohio-

3085, ¶ 19; Accelerated Sys. Integration, Inc. at ¶ 43. Here, construing the evidence in favor of

Ruf, as required by Civ.R. 56(C), we find Ruf’s actions so inconsistent with a continued

attorney-client relationship that the issue may be decided as a matter of law.

{¶13} “The termination of the attorney-client relationship depends, not on a subjective

loss of confidence on the part of the client, but on conduct, an affirmative act by either the

attorney or the client that signals the end of the relationship.” Mastran v. Marks, 9th Dist. No.

14270,

(Mar. 28, 1990) (emphasis sic); see also McGlothin v.

Schad,

,

,

(“The termination of the

attorney-client relationship is determined by the actions of the parties.”), citing Smith v. Conley,

,

,

. 6

{¶14} Here, Ruf’s conduct unequivocally signalled the end of the attorney-client

relationship no later than August 18, 2008, when she retained new counsel for her divorce. She

admitted in her deposition that she sought out Rabb because she was dissatisfied with Belfance’s

representation and had lost confidence in her. She consulted with Rabb on August 12, retained

him on August 18, and then memorialized the new retention by signing Rabb’s letter of August

19 and paying a retainer of $8,000. But perhaps most significantly, even before consulting with

Rabb, she had already retained Koblentz to pursue malpractice claims against Belfance. In light

of Ruf’s actions, all of which were patently inconsistent with a continued attorney-client

relationship, reasonable minds could only conclude that the attorney-client relationship

terminated no later than August 18, 2008.

{¶15} Ruf contends, however, that her consultation with and retention of Rabb did not

clearly and unambiguously terminate her attorney-client relationship with Belfance because even

after August 18, Belfance filed several motions on her behalf in the domestic relations court and

sent correspondence to opposing counsel. She further contends that any lack of trust and

confidence sufficient to terminate the attorney-client relationship must be “experienced

mutually” between the attorney and client before the relationship is terminated for purposes of a

statute-of- limitations analysis. Accordingly, she contends that the attorney-client relationship

did not terminate until September 12, when Belfance sent the termination letter that made both

parties aware the relationship was terminated. She also argues that the limitations period should

have been tolled from the date she retained Rabb until Belfance sent her termination letter. Ruf’s

arguments are without merit.

{¶16} First, any argument that the attorney-client relationship extended into September is

based on Ruf’s concealment that new counsel had been engaged (presumably so that Belfance 7

instead of Rabb would file the affidavit of prejudice). But Ruf’s strategic concealment and

misrepresentation cannot extend the attorney-client relationship for statute-of -limitations

purposes where her actions to terminate that relationship were clear and unequivocal. Any

finding to the contrary would reward Ruf for her deception.

{¶17} Furthermore, the case law is clear that because an attorney-client relationship is

consensual in nature, the actions of either party to the relationship can affect its continuance.

“Either party’s affirmative act may terminate the relationship.” McGlothin,

,

,

, citing Smith,

, 2006-Ohio-

2035,

. See also Mastran v. Marks, 9th Dist. No. 14270,

(Mar. 28, 1990) (“[T]he termination of the relationship * * * depends * * * on * * *

an affirmative act by either the attorney or the client that signals the end of the relationship.”)

(Emphasis added). Here, Ruf’s actions unequivocally terminated the attorney-client relationship

no later than August 18, 2008; the fact that Belfance did not know that Ruf had terminated the

relationship and continued to do work for her is not dispositive.

{¶18} Our conclusion is consistent with the Sixth District’s reasoning in Woodrow v.

Heintschel,

,

,

(6th Dist.) In that case, the

clients filed suit for legal malpractice, claiming that their lawyer’s withdrawal without their

knowledge had caused a default judgment against them and other derivative damages. The trial

court ruled that the clients’ action was time-barred and granted granted summary judgment to the

lawyer. On appeal, the clients argued that for the attorney-client relationship to terminate, the

client as well as the lawyer “must know” it has ended. Id. at ¶ 42. The appellate court rejected

this argument, finding that the test for termination is “affirmative conduct by either party” and to

find that one party’s subjective knowledge of termination is determinative would be “unworkable 8

as a practical matter and contrary to Zimmie and the import of Smith v.

Id. at ¶

45. Thus, Ruf’s argument that termination must be “experienced mutually” is without merit.

{¶19} Furthermore, in light of Ruf’s actions, Belfance’s letter was not necessary to

terminate the attorney-client relationship. Because conduct that “dissolves the essential mutual

confidence between attorney and client” signifies the termination of the attorney-client

relationship, an explicit statement terminating the relationship is not necessary. Brown v.

Johnstone,

,

. Hence, as in this case, where a client,

unbeknownst to her attorney, retains new counsel to represent her in the case in which current

counsel is providing representation, and then purposely conceals and mispresents that retention, a

termination letter or other formal communication between attorney and client is not required in

order to find that the relationship has terminated.

{¶20} Last, we find without merit Ruf’s argument that because Belfance continued to

work on post-decree matters even after she retained Rabb, the statute of limitations should have

been tolled until Belfance sent the termination letter. The statute is tolled so long as the attorney

and client continue to have an attorney-client relationship. Fisk v. Rauser & Assoc. Legal Clinic

Co, LLC, 10th Dist. No. 10AP-427,

, ¶ 23, citing Vail v. Townsend,

,

(10th Dist. 1985). Because Ruf terminated the attorney-client

relationship, the statute was not tolled, even though Belfance continued to work for Ruf.

Moreover, tolling in a legal malpractice context is germane where a cognizable event has

occurred and the attorney-client relationship continues so that the attorney has an opportunity to

correct the error and perhaps avoid a legal malpractice claim. See

Tolling is not

relevant here because the attorney-client relationship unequivocally terminated no later than

August 18, 2008, when Ruf retained new counsel. 9

{¶21} On this record, we agree with the trial court that the attorney-client relationship

between Ruf and Belfance terminated as a matter of law no later than August 18, 2008, when

Ruf retained Rabb to represent her in the divorce case. Because the one-year statute of

limitations began to run on that date, the complaint at issue, filed on September 2, 2009, was not

timely. Accordingly, Ruf’s claim is barred by the statute of limitations; the trial court therefore

properly granted summary judgment to Belfance.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

KATHLEEN ANN KEOUGH FOR THE COURT 10

BLACKMON, P. J. CONCURS.

JONES, J. DISSENTING.

{¶22} I dissent. I would find that the trial court erred in granting summary judgment

because genuine issues of material fact remain as to whether the statute of limitations had

expired at the time Ruf filed her legal malpractice action.

{¶23} Ruf’s decision to retain new counsel because she was dissatisfied with Belfance’s

representation did not unequivocally terminate the attorney-client relationship. Reasonable

minds could come to more than one conclusion as to whether it was the retention of other

counsel in August 2008 or the September 2008 termination letter that ended the relationship.

{¶24} In N. Shore Auto Sales v. Weston, 8th Dist. No. 86332,

, this court

found that a notice of substitution of counsel filed with the Ohio Supreme Court and not the

earlier retention of other counsel marked the beginning of the statute of limitations period.

While the facts of N. Shore are admittingly different, the case illustrates that there is no hard and

fast rule that retention of new counsel terminates an attorney-client relationship, nor should this

court create one.

{¶25} In a recent decision by the Seventh District Court of Appeals, the court found that

a letter by a client to her attorney informing him that she intended to terminate him as her

attorney did not mark the termination of the attorney-client relationship. McOwen v. Zena, 7th

Dist. No. 11MA58,

. Instead, it was a subsequent letter sent from the client to

the attorney in which the client unambiguously informed the attorney of her decision to terminate

him that marked the end of the relationship. The court relied on the fact that the attorney

performed work for the client after the client sent the first letter outlining her intent to terminate 11

him. Thus, the later letter marked the beginning of the statute of limitations period. Id. at ¶ 22.

Likewise, in this case, Ruf may have intended to terminate her relationship with Belfance when

she retained new counsel, but in viewing the facts in a light most favorable to Ruf, I would not

find that Ruf’s actions were a clear and unambiguous termination of her relationship with

Belfance.

{¶26} Thus, reasonable minds could disagree as to which event terminated the attorney-

client relationship. Because of this, the trial court’s granting of summary judgment was in error.

(Keough, J., Blackmon, P.J., and Jones, J., Judges of the Eighth District Court of Appeals, sitting by assignment.)

APPEARANCES:

RICHARD S. KOBLENTZ, BRYAN L. PENVOSE and KEVIN R. MARCHAZA, Attorneys at Law, for Appellant.

ALAN M. PETROV, THERESA A. RICHTHAMMER and JAMIE A. PRICE, Attorneys at Law, for Appellee.