There is my problem and then there is that of Eileen Zell as represented by Jonathan Zell Esq. here
http://lawyerist.com/lawyerist/wp-content/uploads/2014/04/Caption-to-Zell-Diorama.pdf
From link we find out ...some things about Frost Brown Todd in which Patricia Dillon Laub is a partner.
Copy and paste from the PDF in the above link produces the mess below which I can work with to some extent but better to note what I edit with LARGER TYPE and refer to the link's pdf in its original form.
"Eileen Zell
v.
Frost Brown Todd LLC,
Patricia D. Laub, Esq.,
Douglas Bozell, Esq.,
Shannah J. Morris, Esq., Jeffrey G. Rupert, Esq.,
Katherine M. Klingelhafer, Esq., and Joseph J. Dehner, Esq.
Case No. 2:13-cv-0458, U.S. District Court,
Southern District of Ohio, Eastern Division"
Can
Play
ing
“Hot Potato”
with ion Case
Defeat all Malpractice Claims?
submitted by Jonathan Zell, Esq.
According to the Complaint (Doc. #2) filed in
Eileen Z
ell v. Frost Brown Todd, et al
.,
beginning in February 2009 Frost Brown Todd and its attorneys advised Eileen Zell (hereinafter, the “client”) that the client’s $90,000 promissory note was governed by Missouri’s 10 year statute of limitations, which would expire on 12/31/2011. Therefore,
before filing suit against the makers of the note (hereinafter, the “debtors”), the client gave the debtors more time in which to pay off their note.
However, before the client could sue the debtors, the debtors sued the client on 10/12/2010. Moreover, even though neither party resided or was domiciled in Ohio, the debtors filed their action
in state court in Ohio. The debtors chose Ohio because, unlike
Missouri, Ohio’s statute of limitations was only six years, which would have expired on 12/31/2007.
Realizing the debtors’ strategy, the client sent several emails to Frost Brown Todd stating that she (the client) was afraid that an Ohio court would apply Ohio’s six year
limitations period. For that reason, the client added that she thought Frost
Brown Todd should make a “special appearance” in the Ohio action, challenge the Ohio court’s jurisdiction and venue, and then get the case transferred to a Missouri court. However, Frost Brown Todd continued to insist that, not only was the note governed by
Missouri’s 10 year statute of limitations, but that even an Ohio court should apply Missouri’s limitations period. Therefore, Frost Brown Todd advised the client that there was no need for the client to get the case transferred to an out of state court (where, by the way, Frost Brown Todd could not represent her). Based on Frost Brown Todd’s advice, the client then consented to the Ohio court’s jurisdiction, and Frost Brown Todd
subsequently filed an Answer and Counterclaim for repayment of the note on the client’s behalf.
On 10/12/2011, the trial court ruled that collection on the note was barred by Ohio’s six year statute of limitations. Frost Brown Todd then told the client that the trial court’s decision was wrong and advised the client to appeal,which the client subsequently did.
However, 10 months later, on 8/7/2012, the appellate court affirmed the trial court. In its decision, the appellate court explained that the statute of limitations is considered to be aprocedural law. Thus, while the Ohio court would look to Missouri for the
substantive law applicable to the case, the law of the forum (Ohio) would govern the procedural law. As the court held: “
[B]y choosing Ohio as the forum for pursuing her
action, appellant was subject to Ohio’s
statute of limitations
even if her claim would
be timely in Missouri
” (emphasis added).
In other words, had Frost Brown Todd
gotten the case transferred to Missouri as the client had initially asked the law firm to do, the client would have been able to collect on the note. But, since the client followed Frost Brown Todd’s advice and let the law firm represent her in the Ohio action, the client cannot collect on the note.
On 8/13/2012 (one week after the appellate court’s decision),
Frost Brown Todd withdrew from the case. Up to that time, Frost Brown Todd had charged the client
$73,857.80 (on only a $90,000 claim).
Nine months later, on 5/10/2013, the client sued Frost Brown Todd for both legal malpractice and breach of fiduciary duty. The latter claim was based on the argument that the Ohio based law firm had ignored the risk to the client that an Ohio court might apply Ohio’s (short) statute of limitations because Frost Brown Todd allegedly wanted the fees that the case would generate for itself.
Although the statute of limitations for
legal malpractice in Ohio is only one year, the client’s action should have been timely under the “continuous representation doctrine.” This doctrine provides that the limitations period is tolled for however long the allegedly malpracticing attorney continues to represent the client in the same matter.
Represented by Brian D. Goldwasser of White, Getgey & Meyer Co., LPA, Frost Brown Todd filed a Motion for Summary Judgment (Doc. #41), claiming that Ohio’s one year statute of limitations on legal malpractice had expired before the malpractice action was brought. Although conceding that the action was brought nine months after Frost
Brown Todd had ceased representing the client in the underlying action, Mr. Goldwasse made a novel argument that, if accepted by the courts, will enable Ohio law firms
to easily defeat
claims filed against them for
legal
malpractice
arisingout of trial litigation.
Mr. Goldwasser began by noting that Frost Brown Todd had reassigned the client’s case three times to a total of six different attorneys within the law firm: first to
Patricia D.Laub an Douglas Bozell
; then, to Shannah J. Morris; next, to Jeffrey G. Rupert andKatherine M. Klingelhafer; and finally, to Joseph J. Dehner
.
Mr. Goldwasser then argued that, “when a client employs several attorneys successively
in a law firm” (p. 12), the statute of limitations should be computed separately “for each particular attorney”
alleged to have committed malpractice (p. 11). In other words, he
contended that a law firm can start the statute of limitations running on Attorney A’s
malpractice by reassigning the case to Attorney B, can start the statute of limitations
running on Attorney B’s malpractice by reassigning the case to Attorney C, and so on and so on until the case is finally assigned to an attorney at the firm who (heaven forbid) does not commit any malpractice. Then, by prolonging the case for one year from the date that the case was reassigned to that final attorney (which can be accomplished by
filing an appeal), both the malpracticing attorneys and the firm will escape all liability. And this is so even though that fi nal attorney is
still representing
the client on t
he
same matter
and all of the previous attorneys
remain employed at the
same firm
.
On p. 2 of Frost Brow
n Todd’s reply brief (Doc. #49),
Mr. Goldwasser summarized the
argument thusly:
Patricia Laub provided no legal services to Plaintiff, relative
to the promissory note which is at issue in this case, any later than October22, 2010. Doug Bozell last provided representation on February 4, 2009. Shannah Morris[]..attorney client relationship ceased no later
than May 6, 2011. The last time that Ms. Klingelhafer provided any
purported legal services was January 4, 2012. And the last possible
date that Jeffrey Rupert represented Plaintiff was March 28, 2012.
This action was not filed until May 10, 2013. Not one of these
Defendants had claims brought timely against them.... Any claims,
therefore against Defendants Patricia Laub, Douglas Bozelle, Katherine
Klingelhafer, Shannah Morris and Jeffrey Rupert are ALL time barred.
Although Mr. Dehner represented the client in this case up through 8/13/2012, Mr. Goldwasser claimed that Mr. Dehner’s involvement in the case occurred after the firm’s alleged malpractice (which the client disputes).
Thus, if Mr. Goldwasser’s argument is accepted by the courts, then
Zell v. Frost Brown Todd is destined to become a landmark legal case, providing a roadmap for Ohio’s attorneys on how to defeat claims
for legal malpractice committed during trial litigation
.
However, as an unintended side effect, the brand of Frost Brown Todd might then forever be tied to legal malpractice, and this case might also provide the necessary impetus to get Ohio’s legislature to extend what is now the shortest statute of limitations on legal malpractice in the nation.
----------------------------
-
* Submitted by Jonathan R. Zell, Attorney at
Law, 5953 Rock Hill Road, Columbus, OH
43213, tel. (614) 8642292, email: jonathanrzell@gmail.com
and Jonathan_Zell@yahoo.com.
+++++++++++++++++++++++++++++++++++++++++++++++++++
sorry about how the pdf from link comes out here...again please read the pdf from the included link.
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