Summary
holding that, regardless of whether a legal malpractice action sounds in contract or tort, "the gist of the action . . . is the attorney's breach of his contractual obligation to represent his client"
Summary of this case from Belt v. Oppenheimer Blend Harrison TateOpinion
No. 80-1289
Decided May 20, 1981.
Malpractice — Attorneys at law — Death of charged attorney — Survivability of action.
An action for legal malpractice survives the death of the charged attorney for the reasons that legal malpractice (1) is a cause of action that survives at common law and (2) constitutes an injury to the client's property interests. (R.C. 2305.21 construed and applied.)
APPEAL from the Court of Appeals for Cuyahoga County.
In January 1979, Katherine Loveman, appellee herein, filed a complaint against James L. Hamilton, appellant, the executor of the estate of Sheldon P. Weitzman. The complaint alleged that Weitzman, an attorney, had failed to process appellee's claim, which she had entrusted to him, against Continental, Inc., prior to the expiration of the applicable statute of limitations. Appellee instituted this action against the Weitzman estate approximately four months after Weitzman's death.
The Court of Common Pleas of Cuyahoga County granted appellant's motion for summary judgment on the grounds that appellee's cause of action was extinguished by the death of Weitzman.
Upon appeal, the Court of Appeals, in unanimously reversing the common pleas court, ruled that legal malpractice, pursuant to R.C. 2305.21, survived the death of the charged attorney for the reason that legal malpractice survived at common law.
R.C. 2305.21 provides:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto."
The cause is now before this court pursuant to an allowance of a motion to certify the record.
Mr. Alan M. Wolk, for appellee. Messrs. Gallagher, Sharp, Fulton, Norman Mollison and Mr. Neil E. Roberts, for appellant.
Appellee's claim for legal malpractice against the Weitzman estate survives, pursuant to R.C. 2305.21, if legal malpractice (1) is a cause of action that survives at common law or (2) constitutes an injury to appellee's property interests. For the reasons that follow, we find that an accrued cause of action in legal malpractice meets both of the foregoing tests.
Initially, it should be noted that, at common law, actions ex contractu survived the death of a defendant and actions ex delicto did not. Village of Cardington v. Adm'r. of Fredericks (1889), 46 Ohio St. 442, 448. Although a client's claim against an attorney has aspects of both a contract action and a tort action, the general rule is that the gist of the action, regardless of its form, is the attorney's breach of his contractual obligation to represent his client in a professional, effective and careful manner. McStowe v. Bornstein (Mass. 1979), 388 N.E.2d 674; Hendrickson v. Sears (1974), 365 Mass. 83, 310 N.E.2d 131. See, generally, Annotation, 18 A.L.R. 3d 978; Annotation, 65 A.L.R. 2d 1211; 6 Ohio Jurisprudence 3d 674, Attorneys at Law, Section 143. As such, the aforementioned attorney-client contractual dimension to a professional malpractice claim permits appellee's claim to survive the death of Weitzman, pursuant to R.C. 2305.21.
In light of the foregoing analysis of the contract-tort historical dichotomy, which is required by the explicit language of R.C. 2305.21, we must point out that a mere label should not be dispositive of the survivability of a cause of action in professional malpractice. To rule that survival of a cause of action is contingent on the procedural distinction between contract and tort would be to elevate form over substance. Accordingly, looking to the substance of the case sub judice, we also rule that appellee's action survives because the focal point of the case is recovery of property damages.
The critical consideration in the case at bar is the nature of the damages for which recovery is sought. As this court ruled in Cardington v. Fredericks, supra, at 448:
"As a general rule, at common law, actions ex contractu survived, while actions ex delicto did not. To this there were exceptions. One was that, in actions ex delicto, so far as the act complained of resulted in damage to property, the action survived. Another was, that though the action was founded on contract, as a suit for breach of promise of marriage, yet if the damage resulting was to the person, and not to the property, the action did not survive." See, also, Jenkins v. French (1879), 58 N.H. 532.
Personal property is not limited to tangible goods and chattels. Intangible choses in action, such as a contract right and the right to bring a cause of action in a court of law, are also considered personal property. See Porter v. Household Finance Corp. (S.D. Ohio, E.D. 1974), 385 F. Supp. 336; Brown v. Brown (1976), 15 Cal.3d 838, 544 P.2d 561; Maryland Cas. Co. v. Brown (N.D. Ga. 1971), 321 F. Supp. 309; Cincinnati v. Hafer (1892), 49 Ohio St. 60.
Thus, if, as appellee alleges in her complaint, Weitzman mishandled her cause of action against Continental, Inc., then the provable damage to the subject matter entrusted to her attorney constitutes the requisite R.C. 2305.21 property damage.
If, on remand, appellee can demonstrate that she has been wronged and damaged by the conduct of her attorney, then she should be compensated. Accordingly, for all the foregoing reasons, the judgment of the Court of Appeals is affirmed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed and cause remanded.
W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.