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Kelly M. Vocaire v. Stafford & Stafford Co.

September 29, 2011

KELLY M. VOCAIRE PLAINTIFF-APPELLANT
v.
STAFFORD & STAFFORD CO., LPA, ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-582893

The opinion of the court was delivered by: Colleen Conway Cooney, J.:

Cite as Vocaire v. Stafford & Stafford Co. L.P.A.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Cooney, J., Jones, P.J., and E. Gallagher, J.

{¶1} Plaintiff-appellant, Kelly Vocaire ("Vocaire"), appeals the trial court's denial of her motion to amend the complaint and the dismissal of her complaint against defendants-appellees, Stafford & Stafford Co. L.P.A., Vincent A. Stafford, and Kenneth J. Lewis (collectively referred to as "Stafford"). We find no merit to the appeal and affirm.

{¶2} In this legal malpractice case, Vocaire alleges that Stafford negligently failed to notify her of a critical hearing date upon withdrawing as her counsel in proceedings pertaining to the custody and support of her child. The facts, as set forth in the complaint, are as follows:

{¶3} Vocaire entered into an attorney-client relationship with Stafford in December 1997. She retained Stafford to, among other things, correct a child support order entered by the Stark County domestic relations court on February 11, 1998. On February 18, 1998, Stafford filed a motion to vacate the February 11, 1998 child support order, claiming it was entered in error.

{¶4} Sometime in 2000, Stafford filed a motion for leave to withdraw as Vocaire's counsel. On November 6, 2000, the court scheduled a final hearing for January 10, 2001 and advised counsel that it would hear all pending motions, including Vocaire's motion to vacate the February 11, 1998 child support order. The court also ordered Stafford to notify Vocaire of the final hearing date before it would approve the motion to withdraw. The domestic relations court granted Stafford's motion to withdraw as counsel on November 22, 2000. Vocaire alleges that because Stafford never advised her of the final hearing date, she did not appear for the hearing and the court substantially increased her child support obligation.

{¶5} The complaint further alleges that in October 2001, "Vocaire began receiving notices from the Stark County Child Support Enforcement Agency showing her monthly child support obligation to be $598.00 per month and further showing substantial arrearages." When Vocaire brought the notices to Stafford's attention, she claimed Stafford falsely advised her that they would "'take care' of correcting the child support records and seek to amend the arrearages." However, Stafford never filed a motion to decrease the child support obligation and Vocaire continued to be in arrears.

{¶6} Vocaire alleges that she learned "[s]ometime after October 2004" that the domestic relations court held the final hearing on January 10, 2001 without notice to her. According to the complaint, the parties' attorney-client relationship "finally" terminated on September 15, 2004, when Stafford again withdrew from its representation of Vocaire.

{¶7} Vocaire filed the complaint in this case on January 27, 2006. Stafford filed a timely motion to dismiss, arguing that: (1) Vocaire lacked standing to bring her claims because she was not the real party in interest; and (2) Vocaire's claims were barred by the statute of limitations. Stafford attached unverified copies of a docket from the U.S. Bankruptcy Court, Western District of Pennsylvania, to the motion to dismiss to demonstrate that Vocaire had previously filed a Chapter 7 bankruptcy petition. In its motion to dismiss, Stafford argued the trustee in bankruptcy, who was the real party in interest, was not a party to the case and Vocaire lacked standing to file suit on her own.*fn1 In response, Vocaire filed a motion for leave to amend the complaint, a brief in opposition to the motion to dismiss, and a notice of bankruptcy proceedings and motion to stay, which stayed the case indefinitely.

{ΒΆ8} The trial court reactivated the case in April 2010, after Vocaire and the bankruptcy trustee obtained an order from the bankruptcy court terminating the stay and granting permission to pursue the claim. However, in December 2010, the trial court denied Vocaire's motion to join the ...


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