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Peng v. Fink

Court of Appeals of Ohio, Sixth District

July 12, 2013

James A. Peng, et al. Appellants
David Fink, et al. Appellees

Trial Court No. CI0201008241

Eric H. Zagrans, for appellants.

Robert H. Eddy and Colleen A. Mountcastle, for appellees Theodore M. Rowen and Spengler Nathanson P.L.L.



{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which dismissed appellants' legal malpractice complaint against appellees due to the failure to timely commence the action in accordance with the savings statute deadline. For the reasons set forth below, this court affirms the decision of the trial court.

{¶ 2} On December 17, 2007, James Peng, Anna Peng, Photo USA Corporation, North American Investment Corporation, and Photo USA Electronic Graphic, Inc. ("appellants"), filed a legal malpractice suit against appellees. The alleged legal malpractice was in connection to past legal representation provided by attorneys Theodore Rowen, David Fink, and their respective law firms, Spengler Nathanson and Fink & Johnson ("appellees").

{¶ 3} Due to the continued pendency of the federal litigation against appellants by one of their Toledo area competitors alleging unfair business practices, from which the legal malpractice claims by appellants against appellees arose, it was determined that the legal malpractice suit would be more appropriately pursued at a later time. On December 11, 2009, the legal malpractice suit was dismissed without prejudice in accordance with Civ.R. 41(A)(2). The dismissal enabled appellants to refile their case pursuant to Ohio's "savings statute, " R.C. 2305.19(A). Pursuant to the savings statute and Civ.R. 3(A), appellants had one year from the date of refiling to timely "commence" the action against appellees. Accordingly, they needed to complete valid service on the parties within one year of the date of refiling. On December 10, 2010, almost exactly one year later, appellants timely refiled the legal malpractice action. Thus, service needed to be complete in the refiled action on or before December 10, 2011. It was completed on December 14, 2011.

{¶ 4} On February 8, 2012, appellees filed a motion to dismiss appellants' case for failure to "commence" the action within the requisite statutory period in accordance with R.C. 2305.19(A) and Civ.R. 3(A). On August 31, 2012, the trial court granted appellees' motion to dismiss. On September 28, 2012, appellants filed this appeal.

{¶ 5} On appeal, appellants set forth this sole assignment of error:

The trial court committed reversible error as a matter of law by dismissing the refiled action with prejudice and by deviating from the Ohio Supreme Court's clear pronouncement that the one-year time period under Civil Rule 3(A) for obtaining service on defendants in order to commence a civil action is satisfied by submitting service instructions to the clerk of the court within one year of filing the complaint.

{¶ 6} The following undisputed facts are relevant to the issues raised on appeal. Appellants, who are husband and wife, jointly own California and Chinese based companies that produce customized coffee mugs that are used in advertising. These mugs are known as "sublimation mugs." In 2005, a Toledo area business competitor of appellants filed suit against appellants in federal court alleging that appellants engaged in various unlawful business practices.

{¶ 7} Throughout the course of litigation between these coffee mug competitors, appellants were unsatisfied with their legal counsel. The record reflects that they changed legal counsel three times. Accordingly, the appellees in the subject legal malpractice action consist of the prior lawyers and law firms who formerly represented appellants. In 2007, appellants first filed a legal malpractice suit against appellees regarding legal services provided in the federal business litigation.

{¶ 8} On December 11, 2009, given the ongoing pendency of the related federal case, appellants' legal malpractice action was dismissed without prejudice pursuant to Civ.R. 41(A)(2). On December 10, 2010, appellants refiled their action in accordance with Ohio's saving statute, R.C. 2305.19(A). However, in order to successfully refile pursuant to the savings statute, appellants were also required to complete service upon appellees by December 10, 2011. The record clearly reflects that service of process was not obtained until December 14, 2011, four days after the deadline passed. Thus, the trial court dismissed appellants' complaint with prejudice. This appeal ensued.

{¶ 9} In the sole assignment of error, appellants assert that the trial court erred in granting the disputed motion to dismiss. After careful examination of the record, we do not concur. In support, appellants rely on the Ohio Supreme Court's decisions in Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549, 575 N.E.2d 801 (1991) and Sisk & Assoc, Inc. v. ...

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