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Boyce v. Mark Bamberger Company, LLC

Court of Appeals of Ohio, Second District

September 13, 2013

RAMON A. BOYCE Plaintiff-Appellant
v.
MARK BAMBERGER COMPANY, LLC, et al. Defendants-Appellees

Civil appeal from Common Pleas Court T.C. NO. 11CV570.

RAMON A. BOYCE, #588408, Plaintiff-Appellant.

RUDOLPH A. PECKINPAUGH, JR., Atty. Reg. No. 0015633 and JEFFREY M. STOPAR, Atty. Reg. No. 0066640, Attorneys for Defendants-Appellees

OPINION

DONOVAN, J.

(¶ 1} Plaintiff-appellant Ramon A. Boyce appeals from a decision of the Clark County Court of Common Pleas granting defendant-appellee the Mark Bamberger Company, L.L.C.'s (hereinafter Bamberger) motion to dismiss Boyce's legal malpractice claims. Boyce filed a timely notice of appeal on February 25, 2013.

(¶ 2} Between 2007 and 2009, in three separate cases, Boyce was found guilty in the Clark County Court of Common Pleas of one count of burglary, six counts of receiving stolen property, and one count of tampering with evidence. On May 15, 2009, Bamberger was appointed as counsel to represent Boyce on appeal in Case Nos. 09-CA-30, 09-CA-31, and 09-CA-44. Bamberger was subsequently appointed as appellate counsel to represent Boyce in Case No. 09-CA-70 on August 10, 2009.

(¶ 3} On December 7, 2009, Bamberger filed an appellate brief on behalf of Boyce which listed all four appellate case numbers. This Court consolidated the four cases into a single appeal on April 23, 2010. On May 14, 2010, we issued an opinion affirming Boyce's conviction and sentence. State v. Boyce, 2d Dist. Clark Nos. 09CA30, 09CA31, 09CA44, 09CA70, 2010-Ohio-2127 (hereinafter " Boyce I ").

(¶ 4} On June 9, 2011, Boyce filed a complaint in which he alleged legal malpractice, fraud, unjust enrichment, negligence, and breach of fiduciary duty against Bamberger. Bamberger received service of the complaint on June 14, 2011. On the twenty-eighth day after service of the complaint on July 12, 2011, Bamberger filed a motion requesting an extension of time in which to respond to the complaint. The trial court granted Bamberger's motion July 19, 2011, providing him until August 10, 2011, to respond. On July 27, 2011, eight days after the trial court had already granted Bamberger's request for an extension, Boyce filed a motion for default judgment in which he objected to Bamberger's requested extension. The trial court did not expressly rule on Boyce's motion for default judgment.

(¶ 5} On August 9, 2011, Bamber filed a motion to dismiss Boyce's complaint on the grounds that it was barred by the one-year statute of limitations for filing a legal malpractice claim. Ultimately, the trial court granted Bamberger's motion to dismiss in a decision issued on January 29, 2013, finding as follows: 1) the "gravamen" of Boyce's complaint was Bamberger's alleged legal malpractice; therefore, the one-year statute of limitation applied to all of Boyce's claims; 2) the "cognizable event" related to Boyce's claim was his becoming aware of this Court's adverse opinion in Boyce I; and 3) Boyce terminated his attorney-client relationship with Bamberger on May 17, 2010, when he disclosed "his mistrust and lack of mutual confidence" in Bamberger's appellate representation.

(¶ 6} It is from this decision that Boyce now appeals.

(¶ 7} Because all of his assignments of error are interrelated, they will be discussed together as follows:

(¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE COMPLAINT AGAINST THE DEFENDANTS FOR LEGAL MALPRACTICE, NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY, ALLEGING STATUE [sic] OF LIMITATIONS."

(¶ 9} "THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE COMPLAINT AND NOT ENTERING DEFAULT JUDGMENT AGAINST THE DEFENDANTS FOR NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY, AFTER THE DEFENDANTS FAILED TO DEFEND OR OTHERWISE RESPOND AGAINST THE CLAIMS IN THE COMPLAINT."

(¶ 10} "THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE COMPLAINT AGAINST THE DEFENDANTS FOR LEGAL MALPRACTICE, NEGLIGENCE, BREACH OF CONTRACT AND BREACH OF FIDUCIARY DUTY, ALL AMOUNTED TO A SINGLE CLAIM OF MALPRACTICE, BECAUSE THIS CONCLUSION WAS NOT INDEPENDENT OF THE TRIAL COURT AND WAS NOT ...


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