Abdalla v. Olexia

• Decision Date: 30 August 1996
• Docket Number: No. 95-J-7,95-J-7
• Citation: 682 N.E.2d 18,113 Ohio App.3d 756
• Parties: ABDALLA, Appellant, v. OLEXIA et al., Appellees.
• Court: Ohio Court of Appeals

Page 756

113 Ohio App.3d 756

682 N.E.2d 18

ABDALLA, Appellant, v. OLEXIA et al., Appellees.

No. 95-J-7.

Court of Appeals of Ohio Seventh District, Jefferson County.

Decided Aug. 30, 1996.

Vincent S. Gurrera, Weirton, WV, for appellant.

William C. Green and William A. Kyler, New Philadelphia, for appellees.

O'NEILL, Presiding Judge.

The appellant, Fred Abdalla, appeals from a final order of the Jefferson County Common Pleas Court dismissing his action against appellees, Albert Olexia, David Hindman, the Jefferson County Commissioners' Office, Stephen Stern and the Jefferson County Prosecutor's Office.

In June 1990, appellant was indicted by a federal grand jury on six counts of extortion and on one count of obstruction of justice. The indictment essentially alleged that, as Jefferson County Sheriff, the appellant had accepted bribes or kickbacks in exchange for disregarding his public duties. The indictment resulted from a federal investigation in which appellee Stern, the Jefferson County Prosecutor, allegedly participated.

Appellant requested that he be provided legal representation by the Jefferson County Prosecutor's Office with regard to the federal indictment. The appellee Stern declined to represent the appellant and allegedly advised him to retain his own legal counsel at his own expense. Appellant did so and was subsequently found to be not guilty of the charges set forth in the indictment. The appellant subsequently filed a request with the Jefferson County Commissioners' Office that he be reimbursed for legal fees expended by him with regard to the indictment. Apparently, this request was never officially acted upon by the county commissioners. Thereafter, on December 7, 1994, the appellant filed a complaint in the trial court against the appellees. This complaint asserted various causes of action against the appellees for failure to perform their official duties, including violation of constitutional rights and intentional or negligent infliction of emotional distress, and actions by the defendants which amounted to malicious purpose, bad faith and wanton and recklessness. All of the appellant's claims revolved around appellees' failure to hire independent counsel to represent the appellant.

In addition, the complaint concerns appellee Stern's alleged conflict of interest in failing to inform appellant that Stern was cooperating with the federal investigation and that the appellant should petition the court of common pleas for authorization to hire independent counsel.

Upon appellees' motion, the trial court dismissed the appellant's action.

The trial judge, in ruling on the motion, very specifically found that "the claim for attorneys fees for reimbursement of privately retained counsel, after the fact, is time barred as to all defendants; and the claims of conflict of interest and failure to advise fail as a matter of law."

As to the time-bar issue, very clearly the complaint of the plaintiff-appellant should have been filed within two years of the time that the prosecutor allegedly gave the plaintiff-appellant the wrong advice in not advising him of the proper way to secure independent counsel at the expense of the county. R.C. 2744.04(A) reads as follows:

"An action against a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a governmental or proprietary function, whether brought as an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, shall be brought within two years after the cause of action arose, or within any applicable shorter period of time for bringing the action provided by the Revised Code. This division applies to actions brought against political subdivisions...