Summary
In Skidmore Hall v. Rottman (1983), 5 Ohio St.3d 210, 5 OBR 453, 450 N.E.2d 684, Omni-Food Fashion, Inc. v. Smith (1988), 38 Ohio St.3d 385, 528 N.E.2d 941, and Zimmie v. Calfee, Halter Griswold (1989), 43 Ohio St.3d 54, 538 N.E.2d 398, the discovery rule was extended to legal malpractice actions.
Summary of this case from Shover v. Cordis Corp.Opinion
No. 82-1515
Decided June 29, 1983.
Attorneys at law — Statute of limitations — Legal malpractice — Cause arises, when — "Discovery rule" applicable — R.C. 2305.11(A).
O.Jur 2d Limitation of Actions §§ 55, 83.
Under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the statute of limitations commences to run when the client discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. ( Keaton Co. v. Kolby, 27 Ohio St.2d 234 [56 O.O.2d 139], and all other inconsistent cases, overruled.)
APPEAL from the Court of Appeals for Medina County.
Appellee, Skidmore Hall, filed the complaint in this case against appellants, Benjamin R. Rott, an and Benjamin G. Rottman, alleging that appellants owed appellee fees for legal services. Appellants filed a counterclaim on November 12, 1981, alleging, inter alia, malpractice.
Appellee moved for summary judgment on the counterclaim. Appellee's motion included an affidavit by Ronald H. Hall who is a partner with appellee. Hall's affidavit averred that: (1) beginning in 1975, he had represented appellants in the trial and appeal of their claims against Empire Construction Co.; and (2) he transmitted appellants' file to other counsel "* * * on August 31, 1979, at which time our attorney-client relationship ended. Since September 18, 1979, I have not had any contact with the Rottmans other than the account which serves as the basis of this law suit."
Appellants' response to appellee's motion included an affidavit by appellant, Benjamin R. Rottman. Rottman's affidavit averred, in part:
"4. Affiant states that despite his insistence to the contrary, Plaintiff failed to pursue the action on the performance bond with Buckeye Union Insurance Company in the initial litigation.
"5. Affiant states that question of the action on the performance bond was subsequently prosecuted in the Medina County Common Pleas Court * * *.
"6. Affiant states that the decision rendered on November 20, 1980 in the second litigation established that the issue of the performance bond was res judicata, as it was not presented in the initial litigation.
"7. Affiant states that the fact of Attorney Hall's malpractice was not known by Affiant until the November 20, 1980 decision of Judge Whitfield in the second litigation."
The court of common pleas entered judgment for appellee on appellants' counterclaim. The court of appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Serazin Deery and Mr. Scott F. Serazin, for appellee.
Vasko, Howard Morris Co., L.P.A., and Mr. Daryl L. Hollnagel,
Messrs. Weston, Hurd, Fallon, Paisley Howley, Mr. Ronald A. Rispo and Ms. Connie M. Wymer, urging affirmance for amicus curiae, Assn. of Civil Trial Attys.
R.C. 2305.11(A) provides, in part:
"(A) An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *." In Keaton Co. v. Kolby (1971), 27 Ohio St.2d 234 [56 O.O.2d 139], this court applied the same language to an action in legal malpractice and held: "A cause of action for malpractice against an attorney accrues, at the latest, when the attorney-client relationship finally terminates."
Appellee, therefore, essentially argues that the Keaton Co. holding requires that we affirm the judgment of the court of appeals. We expressly overrule Keaton Co., however, and reverse the appellate court.
In Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, we held: "Under R.C. 2305.11(A), a cause of action for medical malpractice accrues and the statute of limitations commences to run when the patient discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. ( Gillette v. Tucker, 67 Ohio St. 106; Bowers v. Santee, 99 Ohio St. 361; Amstutz v. King, 103 Ohio St. 674; DeLong v. Campbell, 157 Ohio St. 22 [47 O.O. 27]; Lundberg v. Bay View Hospital, 175 Ohio St. 133 [23 O.O.2d 416]; Wyler v. Tripi, 25 Ohio St.2d 164 [54 O.O.2d 283], and all other inconsistent cases, overruled.)" See, also, O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, applying the "discovery rule" to actions for which R.C. 2305.10 is the statute of limitations. In Oliver, we examined and articulated the policy considerations for adopting the "discovery rule" in medical malpractice actions and need not repeat them here. The same statutory provision, R.C. 2305.11(A), controls legal as well as medical malpractice actions, and the policy considerations underlying the "discovery rule" are no less compelling in legal malpractice actions.
Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.