United States District Court, S.D. Ohio, Eastern Division
DEAVERS MAGISTRATE JUDGE
OPINION AND ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
matter is before the Court on two motions: Plaintiff's
Motion for a New Trial, New Findings, and Other Relief (ECF
No. 211), and Plaintiff's Motion to Amend the Record (ECF
No. 223). For the reasons set forth below, the Motion for a
New Trial, New Findings, and Other Relief is
DENIED and the Motion to Amend the Record is
case arises out of a $90, 000 promissory note between
Plaintiff Eileen Zell and her nephew, Michael Mindlin, made
in December 2000. (Compl., ECF No. 2 at ¶ 13). While
planning her strategy to collect on the note, Plaintiff
engaged a law firm, Frost Brown Todd, LLC (“FBT”)
to advise her. (Id. at ¶ 14). Before she could
bring suit, however, Mindlin filed his own affirmative action
for declaratory relief in Franklin County, Ohio. Based on
advice from FBT attorneys, Plaintiff consented to the
jurisdiction of the Ohio courts and participated in
Mindlin's case. From the pre-lawsuit planning stage
through the conclusion of her nephew's case and
subsequent appeals, Plaintiff was represented personally by a
succession of FBT attorneys. At first, Plaintiff was
represented by Patricia Laub, a partner at FBT, assisted by
Shannah Morris and Douglas Bozelle, and overseen by Joseph
Dehner. Ms. Laub's personal representation of Plaintiff
ended on October 22, 2010, when Ms. Morris assumed primary
responsibility. On May 6, 2011, Plaintiff requested that FBT
replace Ms. Morris, and Mr. Rupert took over four days later.
(Id. at ¶¶ 39-40). Mr. Rupert personally
represented Plaintiff from May 10, 2011 through March 28,
2012, at which time he moved to Seattle. (Id. at
Klingelhafer also worked on Plaintiff's case, drafting at
least two research memoranda on July 13 and August 8, 2011,
addressing the choice of law issue related to Plaintiff's
note. (Id. at ¶¶ 123, 125-26, 135-38, 140,
146). After Mr. Rupert's departure, Mr. Dehner took over
personal representation of Plaintiff, including representing
Plaintiff on appeal, and provided his opinion on her seeking
review by the Ohio Supreme Court. (Id. at
¶¶ 59, 151). Mr. Dehner's last interaction with
Plaintiff as her attorney was August 13, 2012, after which he
informed her that FBT was withdrawing from her case.
(Id. at ¶¶ 59-61).
ultimately lost her case against her nephew. Judge Richard
Sheward of the Franklin County Court of Common Pleas, found
that, because she attempted to recover on her note more than
six years after its execution, Plaintiff's claim was not
timely under Ohio law, and the court thus entered judgment
against her. Mindlin v. Zell, No. 10CVH-14965
(Franklin Cty. C.P. Oct. 12, 2011). On appeal, the Court of
Appeals for the Tenth Appellate district agreed, and further
rejected Plaintiff's alternative arguments on the basis
that they were not raised at the trial level, and thus could
not be considered on appeal. Mindlin v. Zell, No.
11AP-983 (Ohio App. Aug. 7, 2012). The Tenth District twice
denied Plaintiff's requests that it reconsider its
decision. Mindlin v. Zell, No. 11AP-983 (Ohio App.
Oct. 25, 2012); Mindlin v. Zell, No. 11AP-983 (Ohio
App. Dec. 31, 2012). Plaintiff opted not to seek review by
the Ohio Supreme Court.
Complaint, Plaintiff alleged at least two distinct acts of
malpractice by FBT and several of the attorneys at the firm
related to their representation of her on the promissory note
matter. First, she argued that Defendants erroneously advised
her that her note would be subject to Missouri's ten-year
statute of limitations, rather than Ohio's six-year
period, even if her case were adjudicated in Ohio.
(Id. at ¶¶ 81-82, 84). Based on these
representations, Plaintiff alleged that she rejected an offer
to settle the case against her nephew for $63, 000.
(Id. at ¶¶ 101-02, 104, 106-07). She
further agreed to submit to the jurisdiction of the Ohio
court and to participate in the declaratory action filed by
her nephew, with adverse results. (Id. at
¶¶ 74-76, 104, 123). As the appellate court
explained, “by choosing Ohio as the forum for pursuing
her action, [Plaintiff] was subject to Ohio's statute of
limitations even if her claim would be timely in
Missouri.” Mindlin v. Zell, No. 11AP-983,
¶ 15 (Ohio App. Aug. 7, 2012). Next, Plaintiff alleged
that Defendants erred when they failed to argue before the
trial court any alternative or tolling arguments under Ohio
law. (ECF No. 2 at ¶¶ 72, 78); see Mindlin v.
Zell, No. 11AP-983, ¶¶ 17-18 (“Appellant
did not, however, raise any of these [alternative] arguments
[as to why the promissory note was timely under Ohio law] in
the trial court.
ruling on Defendant's motion for Summary Judgment, this
Court dismissed Mrs. Zell's claims against Ms. Laub, Mr.
Bozelle, and Ms. Morris, but permitted her claims against Ms.
Klingelhafer, Mr. Rupert, Mr. Dehner, and FBT to proceed.
(ECF No. 121).
trial on the remaining claims commenced on April 10, 2017.
(ECF No. 185). The proceedings lasted four days. At the
conclusion of Plaintiff's case, Defendants moved for
judgment on partial findings pursuant to Rule 52(c) of the
Federal Rules of Civil Procedure. (Trial Trans., Vol. 5, ECF
No. 222 at 1019). Rule 52(c) provides:
If a party has been fully heard on an issue during a nonjury
trial and the court finds against the party on that issue,
the court may enter judgment against the party on a claim or
defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue. The
court may, however, decline to render any judgment until the
close of the evidence. A judgment on partial findings must be
supported by findings of fact and conclusions of law as
required by Rule 52(a).
consideration, this Court orally presented its judgment on
partial findings as well as its findings of fact and
conclusions of law on April 14, 2017. (ECF No. 222,
1064-1076). It rejected all three claims: the legal
malpractice claim (Id. at 1072), the breach of
fiduciary duty claim (Id. at 1074), and the breach
of contract claim (Id. at 1075).
the malpractice claim, the Court first noted that “[t]o
establish a cause of action for legal malpractice, a
plaintiff must show the existence of an attorney-client
relationship giving rise to a duty, a breach of that duty,
and damages proximately caused by the breach.”
(Id. at 1065 (citing Ratonel v. Roetzel &
Andress, L.P.A., 2016-Ohio-8013, ¶ 6, 147 Ohio
St.3d 485, 486, 67 N.E.3d 775, 777 (Ohio 2016)). The firm
itself could not be directly liable for legal malpractice,
but may be vicariously liable when one or more of its
principals or associates are liable for legal malpractice.
(Id. at 1066 (citing Nat'l. Union Fire Ins.
Co. of Pittsburgh v. Wuerth, 2009-Ohio-3601, ¶ 26,
122 Ohio St.3d 594, 600, 913 N.E.2d 939, 945 (Ohio 2009)).
The Court found that each of the Defendants had an
attorney-client relationship with Ms. Zell that gave rise to
a duty, but determined that Mrs. Zell had not shown that Mr.
Dehner, Ms. Klingelhafer, or Mr. Rupert breached their
respective duties. (Id. at 1068-1070). The Court
observed that FBT attorneys had, in fact, advised Mrs. Zell
that the statute of limitations in Missouri was perhaps more
generous than that of Ohio, and that she should consider
seeking counsel in Missouri to advise her on the applicable
law. (Id. at 1071-72). Under those circumstances, no
legal malpractice claim could lie.
establish a breach of fiduciary duty, the Court noted that
“a plaintiff must show the existence of a duty arising
from a fiduciary relationship . . ., a failure to observe the
duty . . . and . . . a resulting injury.” (Id.
at 1072 (citing Franklin Park Lincoln-Mercury, Inc. v.
Ford Motor Co., 530 F. App'x 542, 545 (6th Cir.
2013)). Mrs. Zell argued that FBT had a fiduciary duty to
advise her-after the case was filed in Ohio but before Mrs.
Zell was served-to file in Missouri or to evade service of
process on the Ohio suit by retreating to Florida.
(Id. at 1073). But, as with the malpractice claim,
the breach of fiduciary duty claim failed because Mrs. Zell
was advised of the statute of limitations issue in Ohio and
“was told that if she wanted to pursue collection, then
they needed to take immediate actions to determine whether
the Missouri laws were more favorable from a limitation
vantage point.” (Id.). Mrs. Zell's
fiduciary duty claim therefore failed.
as for the breach of contract claim, the Court noted that
because none of the FBT attorney defendants were liable for
legal malpractice, there can be no finding of breach of
contract by FBT. (Id. at 1075).
case was dismissed with prejudice on April 21, 2017. (ECF No.
now moves for a “new trial, ” “new
findings, ” “relief from the findings of fact and
conclusions of law” presented at the conclusion of the
bench trial, and “relief from th[e] Court's
Judgment___” (ECF No. 211). Plaintiff also seeks to
amend the trial record to correct ...