Summary
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."
Summary of this case from Skidmore Hall v. RottmanOpinion
Nos. 70-402 and 70-543
Decided July 14, 1971.
Limitation of actions — Time begins to run, when — Malpractice — Attorney and client — Cause of action accrues, when — Termination of attorney-client relationship.
A cause of action for malpractice against an attorney accrues, at the latest, when the attorney-client relationship finally terminates.
APPEAL from the Court of Appeals for Lucas County.
APPEAL from the Court of Appeals for Franklin County.
In case No. 70-402, plaintiff-appellant, The Keaton Company, filed an action against defendant-appellee, Paul H. Kolby, an attorney at law, to recover for damages allegedly caused by defendant's failure to protect plaintiff's rights in the renewing of a certain lease.
Defendant was employed by plaintiff in January 1966, and the lease was executed in May 1966. The option to renew was not exercised in February 1968, as required by the terms of the lease, and the lease expired in August 1968.
In August 1969, plaintiff filed its petition, claiming therein that defendant failed to notify it that notice of renewal of the lease was required in February 1968. Defendant filed a demurrer, under R.C. 2309.08, on the ground that the petition showed on its face that the action was not brought within the time limited for its commencement.
The petition did not specify a date of termination of the attorney-client relationship between plaintiff and defendant, but defendant's position was that the negligent act occurred in February 1968, when the option to renew could have been exercised, and that the action was barred by the statute of limitations, R.C. 2305.11.
The trial court sustained defendant's demurrer, and dismissed the action.
The Court of Appeals affirmed.
In case No. 70-543, plaintiff-appellee, Leland A. Walters, after being appointed administrator of the estate of one Yochum, employed defendant-appellant, Richard L. Brennan, an attorney at law, to represent him in his capacity as administrator.
Defendant performed legal services for plaintiff from January 1965 through January 1967. The final account was filed in December 1966, but exceptions were filed thereto by the Yochum heirs, as well as motions to remove and surcharge the administrator on grounds he had failed to make application for federal income and estate tax refunds and that attorney fees paid were excessive and premature.
In November 1967, the Probate Court vacated its January 1967 order which had approved the final account. Defendant advised plaintiff to appeal the order. The Court of Appeals affirmed that order, and a motion to certify the record was overruled on April 2, 1969.
On April 17, 1969, plaintiff filed an action charging defendant with malpractice. Defendant filed motions to strike certain allegations from the petition. Some of those allegations related to matters involving the statute of limitations (R.C. 2305.11), one stating that the "employment continued until March 3, 1969, when plaintiff withdrew as administrator * * * and discharged the defendant as his attorney * * *."
The trial court, applying the rule that the cause of action accrued when the acts constituting the malpractice occurred, granted defendant's motion to strike such allegations, and plaintiff's petition was dismissed.
The Court of Appeals reversed the judgment of the trial court.
The causes are before this court pursuant to the allowance of motions to certify the records.
Mr. Harry A. Everett and Mr. Robert G. Morris, for appellant in case No. 70-402.
Messrs. Eastman, Stitchter, Smith Bergman and Mr. Morton Bobowick, for appellee in case No. 70-402.
Mr. Robert H. Hoffman and Mrs. Katheleen K. Haase, for appellee in case No. 70-543.
Messrs. Wright, Harlor, Morris, Arnold Glander and Mr. Earl F. Morris, for appellant in case No. 70-543.
The appeals in these two cases present the same legal question and, therefore, are being considered together. That question is: When does the statute of limitations begin to run in an action against an attorney for malpractice?
The statute of limitations for malpractice actions, R. C. 2305.11, reads in pertinent part:
"An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued * * *."
In cases involving physicians, the rule, as expressed in Wyler v. Tripi (1971), 25 Ohio St.2d 164, is as follows:
"Under R.C. 2305.11, a cause of action for medical malpractice accrues, at the latest, when the physician-patient relationship finally terminates. ( Gillette v. Tucker, 67 Ohio St. 106; Bowers v. Santee, 99 Ohio St. 361; and DeLong v. Campbell, 157 Ohio St. 22, followed.)"
It must now be decided whether that rule is to apply to attorney-client relationships.
We are directed in the briefs to Galloway v. Hood (1941), 69 Ohio App. 278, and McWilliams v. Hackett (1923), 19 Ohio App. 416. Galloway held that the statute of limitations in attorney client cases begins to run at the time the nonfeasance occurs, while in McWilliams, it was held that a cause of action against an attorney by a client for malpractice accrues at the time the contract of employment is terminated.
We are also directed in the briefs to the annotation in 18 A.L.R. 3d, wherein it is stated, at page 986: "* * * the rule that finds support among most of the cases is that the statute of limitations begins to run, against an action for damages arising out of the negligent act or omission of an attorney, from the time of the occurrence of the neglect or omission complained of."
In Wyler, after discussing the various rules in respect to the accrual of causes of actions for malpractice, this court adhered to the rule that in such cases the cause of action accrues "at the latest, when the physician-patient relationship finally terminates." As therein noted, at page 167: "The justification given for the termination rule is that it strengthens the physician-patient relationship. The patient may rely upon the doctor's ability until the relationship is terminated and the physician has the opportunity to give full treatment, including the immediate correction of any errors of judgment on his part. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship."
We are of the opinion that such justification applies with equal force to the attorney-client relationship.
It must be pointed out that, although Wyler dealt with a physician-patient relationship and the instant cases deal with attorney-client relationships, they all involve actions in malpractice, specifically as limited by R.C. 2305.11.
In discussing the application of R.C. 2305.11 in Richardson v. Doe (1964), 176 Ohio St. 370, 372, Judge Matthias said:
"At the time this statute was enacted, the common meaning and legal definition of the term. `malpractice,' was limited to the professional misconduct of members of the medical profession and attorneys."
When R.C. 2305.11 was enacted by the General Assembly, no distinction was therein drawn between, attorneys and physicians. It can be fairly inferred, therefore, that it was intended that all malpractice cases should be considered alike, and that the one-year statute of limitations therein established should be applied in the same manner in all such cases.
In our opinion, there is no logical basis for treating doctors and attorneys differently in applying the provisions of R.C. 2305.11.
We therefore adopt the rule set forth in Wyler for attorneys, and hold that a cause of action for malpractice against an attorney accrues, at the latest, when the attorney-client relationship finally terminates.
In case No. 70-402, the judgment is reversed.
In case No. 70-543, the judgment is affirmed.
Judgments accordingly.
HERBERT, LYNCH and LEACH, JJ., concur.
SCHNEIDER, DUNCAN and CORRIGAN, JJ., concur in the judgments.
LYNCH, J., of the Seventh Appellate District, sitting for STERN, J.
I concur in the judgments in these cases without deviating from my position as expressed in the dissenting opinion in Wyler v. Tripi (1971), 25 Ohio St.2d 164, 173, inasmuch as the discovery rule for malpractice in the attorney-client relationship is not urged by counsel, and is not present in the record in either case.
SCHNEIDER and DUNCAN, JJ., concur in the foregoing concurring opinion.