[Cite as Shaut v. Roberts,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MICHAEL H. SHAUT,

Plaintiff-Appellant, : No. 110528 v. :

KEVIN ROBERTS, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 17, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-936408

Appearances:

Michael Shaut Law Office, LPA, Michael Shaut, and Isaac Tom Monah, for appellant.

The Roberts Law Firm and Kevin T. Roberts, for appellees.

SEAN C. GALLAGHER, A.J.:

Michael Shaut appeals the trial court’s decision dismissing his legal

malpractice action against Kevin Roberts and The Roberts Law Firm (“Roberts”) as

being time barred under R.C. 2305.11(A). For the following reasons, we reverse and

remand for further proceedings. Shaut filed a legal malpractice action on August 25, 2020. The action

arose from Roberts’s representation of Shaut in multiple employment and securities

law actions and arbitration proceedings, including Hart v. Downing Invest.

Partners (Am. Arbitration Assn. Case No. 01-16-0005-1632), which took place in

New York, New York, during 2017. According to Shaut, Roberts failed to meet the

standards of a legal professional during the course of and subsequent to the

arbitration proceeding, which resulted in a $2.5 million judgment entered against

Shaut. In 2018, Roberts agreed to file an appeal from the arbitration award in the

United States District Court for the Northern District of Ohio, but that appeal was

dismissed on July 24, 2018. Shortly thereafter (no specific date was included in the

first amended complaint), Shaut hired new counsel in New York through Roberts,

who continued to be involved in the matter and appeared on Shaut’s behalf in a

“related case” in Boston, Massachusetts.

After the arbitration award, the plaintiffs reduced the award to a final

judgment through a New York state court, and in July 2019, a foreign judgment case

was filed in the Cuyahoga County Court of Common Pleas to register the New York

judgment. Shaut represented himself in that local action. Through the end of

August 2019, Shaut alleged that neither party terminated the attorney-client

relationship. On August 30, 2019, Shaut sent correspondence seeking to discuss the

arbitration proceeding and its progeny and the potential malpractice claim in

compliance with their engagement agreement that required mediation or alternative

dispute resolution over disputes. Shaut attached three documents to the first amended complaint

setting forth the above allegations: (1) the engagement agreement between him and

Roberts upon which the attorney-client relationship was based; (2) an

unauthenticated, partial printout of a docket from the United States District Court

for the Southern District of New York, Case No. 1:16-cv-04040, listing Roberts as

Shaut’s counsel of record and Shaut’s status in the case being “terminated” on

March 19, 2020; and (3) correspondence, dated August 30, 2019, from Shaut to

Roberts presenting a demand to settle the malpractice claim.

In response to the first amended complaint, Roberts filed a 40-page

motion to dismiss under Civ.R. 12(B)(6), attaching 18 exhibits of court filings from

the various cases referenced in the first amended complaint. The attachments

spanned 168 pages, but none of the attached exhibits were authenticated. Shaut

filed a brief in opposition in which he claimed, citing Civ.R. 8, that the complaint

was well pleaded and therefore should survive Roberts’s motion to dismiss.

Roberts’s motion to dismiss was based on the incorrect standard of

review, an issue that carried over into this appeal. Roberts’s motion is predicated

on the heightened pleading standard established for federal courts in Bell Atlantic

Corp. v. Twombly,

,

,

(2007), and

Ashcroft v. Iqbal,

,

,

(2009), instead of

the notice pleading standard under Civ.R. 8. Under the heightened, federal

standard, a plaintiff must demonstrate the plausibility of the allegations, well

beyond the notice pleading standard under Ohio law of setting forth cognizable claims. We need not consider Roberts’s attempt to impose the heightened standard

in this case. This court has altogether rejected the invitation to adopt the federal

approach in Tuleta v. Med. Mut. of Ohio,

,

, ¶ 31 (8th

Dist.). And as Roberts indicated in the supplemental authority briefing, the Ohio

Supreme Court has not adopted the federal standard for Ohio either. Maternal

Grandmother, ADMR v. Hamilton Cty. Dept. of Job & Family Servs., Slip Opinion

No.

(DeWine, J., concurring).

The trial court nonetheless disagreed with Shaut and concluded based

on its review of the first amended complaint and the three attached exhibits that

“there is no set of facts from which this Court can conclude that the cognizable event

in this matter occurred on or after August 25, 2019 [(a year preceding the filing of

the malpractice action)] or that the attorney-client relationship for the particular

transaction or undertaking at issue in this matter existed on or after August 25,

2019.” In other words, the trial court concluded that the failure to include

allegations within the complaint demonstrating that the statute of limitations was

inapplicable meant that the action was time barred. Shaut timely appealed that

decision.

R.C. 2305.11(A) provides that an action for legal malpractice against

an attorney or a law firm shall be commenced within one year after the cause of

action accrued.

“Under R.C. 2305.11(A), an 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.”

(Emphasis added.) Smith v. Conley,

,

,

, quoting Zimmie v. Calfee, Halter & Griswold,

,

(1989), syllabus, and citing Omni-Food & Fashion, Inc. v. Smith,

,

(1988). The statute-of-limitations analysis in a legal

malpractice case requires two factual inquiries: “(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 later of those dates “is

the date that starts the running of the statute of limitations.” Smith at ¶ 4.

A “‘motion to dismiss for failure to state a claim upon which relief can

be granted is procedural and tests the sufficiency of the complaint.’” State ex rel.

Belle Tire Distribs. v. Indus. Comm. of Ohio,

,

,

, quoting State ex rel. Hanson,

,

(1992). A court may grant a Civ.R. 12(B)(6) motion to dismiss “only

when the complaint, when construed in the light most favorable to the plaintiff and

presuming all the factual allegations in the complaint are true, demonstrates that

the plaintiff can prove no set of facts entitling him to relief.”

citing Mitchell v.

Lawson Milk Co.,

,

(1988). Appellate courts

review an order granting a Civ.R. 12(B)(6) motion to dismiss de novo. Perrysburg

Twp. v. Rossford,

,

,

, ¶ 5. Thus, the sole inquiry is whether on the face of the complaint, it can be determined that

the legal malpractice cause of action accrued over a year before the filing of the

complaint.

Under Ohio law, the statute of limitations is an affirmative defense.

Civ.R. 8(C). “[T]he difficulty of successfully asserting an affirmative defense in a

Civ.R. 12(B)(6) motion to dismiss” had been “long recognized” based on the fact that

“‘affirmative defenses typically rely on matters outside the complaint, they normally

cannot be raised successfully in a Civ.R. 12(B)(6) motion.’” Schmitz v. NCAA,

,

,

, quoting Main v. Lima, 3d

Dist. Allen No. 1-14-42,

, ¶ 14, and citing Savoy v. Univ. of Akron,

10th Dist. Franklin No. 11AP-183,

, ¶ 6-7 (Kennedy, J., concurring

in part) (noting that “the better procedure is to address affirmative defenses by way

of a motion for summary judgment that will allow introduction of additional facts

beyond the complaint”). “A motion to dismiss based upon a statute of limitations[,

however,] may be granted when the complaint shows conclusively on its face that

the action is time-barred.” (Emphasis added.) Doe v. Archdiocese of Cincinnati,

,

,

, citing Velotta v. Leo

Petronzio Landscaping, Inc.,

,

(1982), paragraph

three of the syllabus; see also Maitland v. Ford Motor Co.,

,

,

, ¶ 11. A plaintiff is not required to plead with

specificity to avoid application of the statute of limitations. Warren v. Estate of Durham, 9th Dist. Summit No. 25624,

, citing Irvin v. Am. Gen.

Fin., Inc., 5th Dist. Muskingum No. CT2004-0046,

.

In this case, although Shaut filed the complaint on August 25, 2020,

at the least, none of the allegations from the first amended complaint demonstrates

when the parties terminated the attorney-client relationship for the particular

transaction to demonstrate the latest accrual date for the statute of limitations. In

reaching its dismissal decision, the trial court flipped the standard of review by

concluding that the first amended complaint failed to demonstrate that the

cognizable event occurred or the attorney-client relationship existed after

August 25, 2019, for the purposes of the one-year statute of limitation for legal

malpractice under R.C. 2305.11(A). That conclusion is based on the incorrect

standard.

In order to dismiss a complaint based on the statute of limitations, it

must conclusively appear on the face of the complaint that the action is time barred.

Doe at ¶ 11. In other words, the trial court must conclude that the allegations within

the first amended complaint demonstrate that the accrual date for the statute of

limitations was prior to August 25, 2019. The trial court in this case concluded

otherwise, that the first amended complaint did not establish that the statute of

limitations accrued after August 25, 2019. Although that distinction seems nuanced,

the trial court’s conclusion upends the standard of review, placing the burden on the

plaintiff to plead facts supporting an argument against the statute of limitations.

The absence of allegations demonstrating the inapplicability of the statute of limitations defense is not a cognizable reason to dismiss the action.

,

. In asserting an affirmative defense, the defendant bears the

burden of proving the existence of facts to support the claim.

Shaut has maintained the same objection to the court’s decision from

the beginning — that the complaint satisfies the Civ.R. 8 notice pleading standard.

We agree with Shaut. Because the trial court shifted the burden to Shaut to disprove

the statute-of-limitations defense within the four corners of the first amended

complaint, the trial court erred.

Despite this conclusion, it must be recognized that a “reviewing court

will not reverse a correct judgment merely because a trial court relied on an

erroneous reason as the basis for its determination.” O’Neal v. State, 2020-Ohio-

506,

, ¶ 20 (10th Dist.), citing Hassey v. Columbus,

,

(10th Dist.), and Joyce v. Gen. Motors Corp.,

,

(1990). “‘[A]n appellate court must affirm the judgment if it

is legally correct on other grounds, that is, it achieves the right result for the wrong

reason, because such an error is not prejudicial.’” Id. at ¶ 20, quoting Reynolds v.

Budzik,

,

(6th Dist. 1999). Roberts, in this

appeal, claims that the unauthenticated documentary evidence attached to its

motion to dismiss conclusively demonstrates that the action is time barred because

the parties terminated their relationship for the arbitration-related matter and those

documents could have been considered by the trial court through the taking of

judicial notice of the unauthenticated court filings attached to the motion to dismiss. Roberts asks this court to review the documentary evidence attached

to the motion to dismiss in order to determine the accrual date of the statute of

limitations irrespective of the fact that the trial court refused to consider the

extraneous evidence. In the motion to dismiss, Roberts presented copies of

documents alleged to establish the scope of their representation following the 2017

arbitration in order to determine when the attorney-client relationship for the

arbitration transaction ceased.

Even if the trial court had considered the voluminous documentary

evidence attached to the motion to dismiss, the black-letter law is well settled: “A

motion to dismiss based upon a statute of limitations may be granted when the

complaint shows conclusively on its face that the action is time-barred.” Doe,

,

,

, citing Velotta,

,

, at paragraph three of the syllabus. Based on the

allegations in the complaint, it cannot be determined that the action is time-barred

and we cannot review the documentary evidence Roberts attached to determine

when the parties terminated the attorney-client relationship for the particular

transaction underlying the legal malpractice claims.

As already discussed, nothing from the face of the complaint

demonstrates when the attorney-client relationship for the particular legal

transaction terminated. For that, extraneous evidence is a necessary consideration

because Shaut alleges that Roberts “retained” Shaut’s local counsel in New York for

the purposes of appealing the arbitration award and that Roberts appeared on behalf of Shaut in a related case and otherwise maintained the attorney-client relationship

through August 30, 2019. “The determination of when an attorney-client

relationship terminated is typically a factual question resolved by the trier of fact.”

Kalski v. Bartimole,

,

(8th Dist.), citing Kinasz

v. Dickson,

,

(8th Dist.), and Mobberly v.

Hendricks,

,

(9th Dist. 1994). Thus, the

termination of the attorney-client relationship is dependent on a factual record,

beyond the purview of Civ.R. 12(B)(6).

The only remaining question, therefore, is whether a court may take

judicial notice of unauthenticated court filings attached to a motion to dismiss.

Under Evid.R. 201(B), a “judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.” As the Supreme

Court of Ohio has recognized, courts “may take judicial notice of appropriate

matters in considering a motion to dismiss for failure to state a claim” without

having to consider the matter as a motion for summary judgment. (Emphasis

added.) State ex rel. Neff v. Corrigan,

,

(1996).

The operative phrase is “appropriate matters.” Not all facts are capable of being

judicially noticed.

Although courts may take judicial notice of facts under Evid.R.

201(B), parties cannot request consideration of the documentary evidence, such as documents filed with another court, without those documents being properly

authenticated.1 Uren v. Scoville, 1st Dist. Hamilton No. C-170438,

. Judicial notice of the adjudicative facts contained in earlier cases is not

permissible nor can it be used to authenticate documents. Natl. Distillers & Chem.

Corp. v. Limbach,

,

(1994); see also Uren

(taking judicial notice that a plea agreement was docketed is permissible, but courts

cannot take judicial notice of the actual plea agreement or the contents therein);

State ex rel. Jones v. Hogan, Slip Opinion No.

(a list of the

state’s exhibits in another proceeding, written reports of police interviews of him

and three other individuals, a document that appears to be a log of a call to the police

concerning the incident for which he was convicted, and a document that appears to

be part of an evidentiary stipulation from another case are not documents that may

be judicially noticed); Cook v. NL Industries, Inc., 8th Dist. Cuyahoga Nos. 98911

and 99522,

, citing NorthPoint Properties, Inc. v. Petticord,

,

,

(8th Dist.) (courts

cannot take judicial notice of matters in unrelated cases even where it presided over

those other cases for the purposes of Civ.R. 12(B)(6)).

1 Although the Ohio Supreme Court has taken judicial notice of a court filing for the purposes of affirming an appellate court’s decision under Civ.R. 12(B)(6) to dismiss a writ of prohibition, it has done so based on the court’s “plenary authority in extraordinary actions [that] permits us to consider the instant appeal as if it had been filed in this court originally” and in cases in which the parties agree to the underlying fact to be judicially noticed. State ex rel. Everhart v. McIntosh,

,

,

, quoting State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn.,

,

(1997). McIntosh does not supersede or overrule Limbach. In this case, Roberts claims in part, for example, that a foreign

judgment action filed in Cuyahoga County seeking to recognize the final New York

judgment entered upon the arbitration proceedings demonstrates that the parties

terminated the attorney-client relationship for the arbitration transaction because

Shaut represented himself. The docket from that case, even if the docket itself could

be judicially noticed for the truth of the matter asserted without obtaining a certified

copy from the local clerk of courts, does not establish that the foreign judgment

action is based on the final judgment entered from the arbitration proceedings.

In order to determine that the foreign judgment action pertained to

the arbitration underlying the allegations in the first amended complaint, the

certified copy of the foreign judgment filed must be considered. The docket itself

does not establish that the action was based on the arbitration proceeding relating

to the allegations in the complaint. In order for that certified foreign judgment to

be admissible with relevant information, the party presenting the evidence must

authenticate the document. Evid.R. 902; Evid.R. 803(8); see also Soliel Tans, L.L.C.

v. Timber Bentley Coe, L.L.C., 8th Dist. Cuyahoga No. 108125,

(defendant presented certified copies of the court documents, which are

therefore admissible). Courts may not take judicial notice of documents filed upon

another court’s docket in circumvention of the rules of authentication.

In Soliel, for example, the defendant filed a motion to dismiss, but

recognized that the trial court would be required to review the content of earlier

proceedings between the parties to establish a defense to the complaint.

The defendant attached a copy of a complaint, an affidavit, various journal entries, and

an answer all filed in other court actions. Id. at ¶ 13. The defendant successfully

sought to have the motion to dismiss treated as one for summary judgment with the

trial court providing the requisite notice to the plaintiff based on the extraneous

documentary evidence. Id. at ¶ 16. In the ensuing appeal, the panel affirmed the

trial court’s decision to consider the motion to dismiss under Civ.R. 56 based on the

defendant’s request for consideration of other court cases. Id. at ¶ 24; see also

Ghaster v. Rocky River, 8th Dist. Cuyahoga No. 99779,

(in

resolving the Civ.R. 12(B)(6) motion, the trial court improperly considered other

proceedings to determine when the statute of limitations accrued); Harris v. Pro-

Lawn Landscaping, Inc., 8th Dist. Cuyahoga No. 97302,

(trial

court erred in considering other proceedings to determine the applicability of the

Savings Statute upon a Civ.R. 12 motion to dismiss); Evans v. Ohio Dept. of Rehab.

& Corr., 10th Dist. Franklin No. 19AP-270,

(court did not err

by refusing to take judicial notice of the contents of documents filed in other

proceedings). We cannot create two standards by affirming the dismissal in this

case based on review of documents filed in other actions through Civ.R. 12(B)(6) and

maintain adherence to Soliel, which affirmed the same course of action under a

motion to dismiss that was considered under Civ.R. 56. It is one or the other. Soliel

affirmed a trial court’s decision to consider documents filed in other court cases

concluding that such documents could not be considered under Civ.R. 12(B)(6). The

same conclusion applies here. Based on a de novo review of the trial court proceedings, we conclude

the trial court erred in dismissing the action. In addition, we cannot consider

documents and evidence outside the pleadings that were attached to the defendants’

motion to dismiss in order to find an alternative basis to affirm the trial court’s

decision.

Judgment reversed and case remanded for further proceedings.

It is ordered that appellant recover from appellees 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.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

MARY J. BOYLE, P.J., CONCURS; MICHELLE J. SHEEHAN, J., DISSENTS (WITH SEPARATE OPINION)

MICHELLE J. SHEEHAN, J., DISSENTING:

Respectfully, I offer another perspective in this Civ.R. 12(B)(6)

matter. While I generally agree with the law set forth by the majority opinion that

the trial court is limited to the four corners of the complaint when considering a

Civ.R. 12(B)(6) motion to dismiss, case law authority permits the trial court to take judicial notice of appropriate matters in considering a motion to dismiss. To grant

Roberts’s motion to dismiss on the statute-of-limitations grounds, the trial court

need only take judicial notice of the date of filing of a closely related case on its own

docket. Based on my review of the record, I believe Shaut’s legal malpractice

complaint was properly dismissed as barred by the statute of limitations.

The background of the underlying case in this legal malpractice suit

was summarized in Shaut v. Natl. Cas. Co.,

,

(8th

Dist.) Employees of companies Shaut was affiliated with alleged that Shaut and

other individuals operated an employment Ponzi scheme and the employees had

been fraudulently induced into entering employment agreements and investing in

the companies. The matter went to arbitration in New York. Shaut, himself an

attorney, retained Roberts to represent him in the arbitration. Shaut claimed

Roberts committed malpractice in failing to follow his legal advice in the arbitration

case and also failing to properly file an appeal from the arbitration award in a federal

court in Ohio.

The Allegations in the Complaint

At the conclusion of the arbitration case, Hart v. Downing Invest.

Partners, American Arbitration Association Case No. 01-16-0005-1632, the AAA

issued an award in favor of the plaintiffs, who then filed a case in a New York state

court to confirm the arbitration award. Shaut retained New York counsel to

represent him in the case. Meanwhile, Roberts filed a motion to vacate the

arbitration award in the United States District Court for the Northern District of Ohio. Shaut’s allegations in the amended complaint (“complaint”) reflects that this

was the last filing regarding the arbitration matter by Roberts as Shaut’s counsel.

The district court dismissed the case, and as Shaut alleged, the dismissal led to the

loss of his appeal in the New York court and the Hart plaintiffs obtained a final

judgment from that court on the arbitration award. Thereafter, the Hart plaintiffs

filed Cuyahoga C.P. No. CV-19-910808 in the Cuyahoga County Court of Common

Pleas to enforce the New York judgment. As alleged in the complaint, Shaut

represented himself in the common pleas court case, which the court subsequently

decided in favor of the plaintiffs and issued a judgment of $ 2.5 million. The

common pleas court’s docket shows that No. CV-19-910808 was filed on July 31,

2019.

While the complaint cited other cases (relating to the fraudulent

employment scheme) where Roberts also represented Shaut, Shaut’s complaint only

alleged Roberts committed legal malpractice in his representation of Shaut in the

AAA arbitration; specifically, he alleged Roberts failed to file counterclaims against

a codefendant and failed to file the codefendant’s deposition testimony. He also

alleged Roberts failed to properly file the subsequent appeal from the arbitration

award in the district court in Ohio.

Accrual of a Legal Malpractice Claim

Pursuant to Zimmie v. Calfee, Halter & Griswold,

,

(1989), Shaut’s legal malpractice action accrued and the one-year

statute of limitations began to run when there was a “cognizable event” whereby Shaut discovered or should have discovered his alleged injury was related to

Roberts’s conduct, or when the attorney-client relationship for the “particular

transaction or undertaking” — the arbitration and the related appeal — terminated,

whichever occurred later.

“Cognizable Event”

According to the allegations of the complaint, the “cognizable event”

sufficient to put Shaut on notice of the alleged malpractice and triggering the one-

year statute of limitations was the AAA’s issuance of the arbitration award and the

dismissal of Shaut’s appeal from the arbitration award in the Ohio district court.

Dottore v. Vorys, Sater, Seymour & Pease, L.L.P., 8th Dist. Cuyahoga No. 98861,

(a “cognizable event” is an event that is sufficient to alert a

reasonable person that his attorney may have committed an improper act and that

further investigation is needed). The later of these two events — the federal court’s

dismissal of the appeal — occurred on July 24, 2018, as Shaut alleged in the

complaint. Based on the allegations of the complaint, therefore, the legal

malpractice action accrued at that time and the one-year statute of limitations had

run by the time Shaut filed the instant case on August 25, 2020.

Termination of the Attorney-Client Relationship for the “Particular Transaction or Undertaking”

Regarding the “particular transaction or undertaking” giving rise to

the Shaut’s legal malpractice claim, paragraph 14 of the complaint states:

“Defendants’ representation of Plaintiff during the Hart Arbitration proceeding failed to meet the standards of care in the legal profession in five significant aspects.”

In addition, the first paragraph of the “demand letter,” which Shaut attached to his

complaint, states that “[t]he demand at issue is based on your past representation

of me, Michael Shaut, as lead counsel during an employment and securities law

based arbitration complaint.”

Consequently, for purposes of the statute of limitations, we only look

to the date of the termination of the attorney-client relationship in the arbitration

matter and the related appeal — the “particular transaction or undertaking” in this

legal malpractice case. Smith v. Conley,

,

,

(reaffirming the particular-transaction set forth in Zimmie,

,

).

In this regard, paragraph 28 of the complaint states that “the Hart

Arbitration Petitioners [] filed to enroll their New York Judgment as Plaintiff’s

Judgment Creditors in the Cuyahoga County Court of Common Pleas Case

No. CV-19-919080. Plaintiff represented himself pro se. * * *.” Based on this

allegation, the attorney-client relationship for the “particular transaction or

undertaking” terminated when the Hart plaintiffs registered the final judgment

regarding the arbitration award from New York in the common pleas court because

Roberts no longer represented Shaut in the subject arbitration matter.

While Shaut alleged in the complaint that Roberts never terminated

the attorney client relationship, a formal letter of termination is not required to

extinguish the attorney-client relationship. Kalski v. Bartimole,

,

(8th Dist.), citing Brown v. Johnstone,

, 166-

167,

(9th Dist. 1982). Rather, “‘the attorney-client relationship is

consensual in nature and the action of either party can affect its continuance.’” Id.

at ¶ 37, quoting

. Furthermore, “Ohio law generally recognizes that

the retention of new counsel to handle issues previously managed by a former

attorney indicates the former attorney-client relationship has been terminated.” Id.

at ¶ 38, citing Accelerated Sys. Integration, Inc. v. Ritzler, Coughlin & Swansinger,

Ltd., 8th Dist. Cuyahoga No. 97481,

.

The attorney-client relationship terminated in the arbitration matter

— the “particular transaction or undertaking” — when the Hart plaintiffs, having

obtained the final judgment regarding their arbitration award, filed the common

pleas court case as judgment creditors to collect the arbitration award on July 31,

2019. According to Shaut’s allegation, he “represented himself pro se in the matter

as he had exhausted all of his financial resources.” While the court has held that it

is “not necessary to specify facts to defend from a statute of limitations defense,”

Warren v. Estate of Durham, 9th Dist. Summit No. 25624,

,

quoting Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No. CT2004-0046, 2005-

Ohio-3523, ¶ 29, fn. 11, and while Shaut was not required to demonstrate in the

complaint that his claim was not time barred, Shaut’s own allegations in the

complaint establish that Roberts’s service as counsel in the arbitration matter had

been terminated no later than the day the Hart plaintiffs filed the common pleas

case, regardless of Shaut’s vague allusion to a April 2019 meeting where some “confidential matters” concerning Shaut were discussed and Roberts “represented

that he was Plaintiff’s lawyer and sat through the entire meeting.“

Judicial Notice

While the complaint did not specify the date the Hart plaintiffs filed

the common pleas court case, based on the case law authority, I believe the fact that

CV-919080 was filed on July 31, 2019, can be judicially noticed, for the following

reasons.

In State ex rel. Everhart v. McIntosh,

, 2007-Ohio-

4798,

, a writ case, the Supreme Court of Ohio addressed the

question of whether it was error for the Tenth District court to take judicial notice of

its prior dismissal entry and granted a Civ.R. 12(B)(6) motion to deny the writ. The

Supreme Court of Ohio acknowledged that it has been held that the courts may not

take judicial notice of their own proceedings in other cases. It explained, however,

that the rationale for these holdings is that the prior proceedings are not part of the

record on appeal and, therefore, the appellate court cannot review whether the trial

court correctly interpreted such prior proceedings. Id. at ¶ 7. The court in Everhart

held that it was proper for the prior dismissal entry to be judicially noticed because

that entry was made part of the record and parties agreed that the Tenth District did

dismiss the prior appeal. Everhart at ¶ 9-10. In other words, the extraneous matter

— the dismissal of the prior appeal — can be considered in a Civ.R. 12(B) motion

when the dismissal entry was part of the record and no “interpretation” of the prior

proceeding was required to ascertain the matter. It appears that Everhart can be relied upon as authority for affirming

the trial court’s decision here. The only “extraneous matter” to be judicially noticed

in this case for the trial court to grant Roberts’s Civ.R. 12(B)(6) motion to dismiss

on the ground of statute of limitations is the fact that the common pleas court’s case

No. CV-919080 was filed July 31, 2019. The docket sheet of that case number from

the trial court is part of the record before us, and no “interpretation” of the prior

proceeding is required — the only matter to be ascertained is the date of the filing.

Evid.R. 201(B) states that “[a] judicially noticed fact must be one not

subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned.” Here, the filing date of a case in the court’s own docket is certainly

capable of accurate and ready determination. Indus. Risk Insurers v. Lorenz Equip.

Co.,

,

(1994) (“It is axiomatic that a trial court

may take judicial notice of its own docket.”); Summit Cty. Children Servs. v. Stucki,

9th Dist. Summit No. 29911,

(a court may take notice of the docket

in a closely related case to determine whether the current complaint states a claim

for relief). See also Uren v. Scoville, 1st Dist. Hamilton No. C-170438,

(noting that taking judicial notice that a plea agreement is

docketed in a criminal case is permissible under Evid.R. 201(B) but taking judicial

notice of that document is not permitted). In reaching its decision, the court in Everhart affirmed the principle

that the court can take judicial notice of “appropriate matters” in determining

Civ.R. 12(B)(6) motion without converting it to a motion for summary judgment.

,

,

, citing State ex rel.

Scott v. Cleveland,

,

,

, ¶ 26,

citing State ex rel. Neff v. Corrigan,

,

. I believe

the holding is applicable under the unique circumstances of this case. While it is

improper to consider extraneous materials without converting a motion to dismiss

to a motion for summary judgment in many instances, it does not appear necessary

in this case to convert the motion to dismiss to a summary judgment proceeding just

so that the trial court could take note of the date of a case’s filing in its own docket.

While the termination of an attorney-client relationship is typically a

factual question resolved by the trier of fact, Kinasz v. Dickson,

,

(8th Dist.), based on the allegations in the instant complaint, there

appears to be no set of facts permitting a conclusion that the attorney-client

relationship for the arbitration matter existed as of August 25, 2019, a year before

the legal malpractice complaint was filed. Upon a de novo review, I would conclude

that the trial court did not err in granting Roberts’s motion to dismiss because it was

barred by the one-year statute of limitations for a legal malpractice claim. For these

reasons, I respectfully dissent.