Hibbett v. City of Cincinnati

• Decision Date: 28 April 1982
• Citation: 446 N.E.2d 832,4 Ohio App.3d 128,4 OBR 220
• Parties: , 4 O.B.R. 220 HIBBETT, Appellant, v. CITY OF CINCINNATI et al.; Schwartz et al., Appellees.
• Court: Ohio Court of Appeals

Page 128

4 Ohio App.3d 128

446 N.E.2d 832, 4 O.B.R. 220

HIBBETT, Appellant, v. CITY OF CINCINNATI et al.; Schwartz et al., Appellees.

Court of Appeals of Ohio, First District, Hamilton County.

April 28, 1982.

Syllabus by the Court

1. For purposes of applying the applicable

statute of limitations, the cause of action is determined not from the language or the form of the complaint or other pleading or procedure, but from the gist (essential ground or object) of the complaint.

2. For a cause of action in legal malpractice, the applicable statute of limitations is R.C. 2305.11, and the cause of action accrues when the attorney-client relationship terminates.

3. When there is no demonstration of any misrepresentation, a cause of action for fraud does not arise.

4. Under the saving provision of R.C. 2305.16, imprisonment of a party tolls the time only when the party is imprisoned at the time the cause of action accrues, and imprisonment does not toll the time when it occurs after the cause of action has accrued.

Jim Rimedio and Rodger N. Walk, Cincinnati, for appellant.

Taft, Stettinius & Hollister, Robert G. Stachler and Thomas R. Schuck, Cincinnati, for appellees Allen Schwartz and Robert K. Sachs.

BLACK, Judge.

Plaintiff-appellant, Sylvia Jean Hibbett (Hibbett), brought suit for negligence, breach of contract and fraud against Allen Schwartz and Robert K. Sachs (Schwartz and Sachs), the two attorneys who originally defended her against criminal charges of possession of drugs and carrying a concealed weapon. She also named as defendants the city of Cincinnati and Larry Handorf, the arresting officer, for violation of her civil rights under federal statutes. ¹ Schwartz and Sachs were dismissed as defendants, with prejudice, when the trial court granted their motion for summary judgment. The court having determined that under Civ.R. 54(B) there was no just reason for delay, Hibbett appealed asserting in her single assignment of error that the granting of summary judgment for Schwartz and Sachs was prejudicial error.

The issue presented is whether considering Hibbett's complaint and the documentation submitted under Civ.R. 56(C), the trial court properly determined that Hibbett's suit was barred by R.C. 2305.11, the statute of limitations requiring claims for malpractice to be filed "within one year after the cause thereof accrued." We hold that the trial court did not err, because (1) the gist (essential ground or object) of Hibbett's cause of action was malpractice, (2) her complaint was filed four years and thirty days after the latest date upon which the cause of action could have accrued, and (3) no "savings" statute tolled the statutory period so that the lapse of time would be computed to be less than one year.

R.C. 2305.11 applies to legal malpractice as well as to medical malpractice. See Richardson v. Doe (1964), 176 Ohio St. 370, 372, 199 N.E.2d 878 . A cause of action for malpractice against an attorney accrues, at the latest, when the attorney-client relationship terminates. Keaton Co. v. Kolby (1971), 27 Ohio St.2d 234, 271 N.E.2d 772 . In the instant case, the attorney-client relationship terminated, at the latest, on January 21, 1977, when the court of common pleas journalized an entry permitting Schwartz and Sachs to withdraw as attorneys for Hibbett and substituting Harry H. McIlwain as counsel. The complaint was filed four years and thirty days later, on February 20, 1981.

Hibbett submits that she escapes the obvious consequences of the foregoing circumstances for any one or more of several reasons. Her principal argument is that the allegations of her complaint set forth the claims that are subject to other statutes of limitations. She stated a claim for negligence, which invokes the four-year bar under R.C. 2305.09(D), there being no physical injury to her person or property. She also stated a claim for breach of oral contract, which invokes the six-year bar under R.C. 2305.07. A claim for fraud invokes the four-year bar of R.C. 2305.09(C), with a time computation beginning only after the fraud is discovered. We are not persuaded. We believe that the gist of Hibbett's suit is malpractice, irrespective of the allegations of the complaint intending to classify her claims in some other way.

We must examine the factual basis of her claims against the attorneys in order to determine what is the gist of the lawsuit. As will develop from the following summary, the central circumstances are those involved in the negotiation of a plea bargain with the prosecution.

Hibbett was indicted for illegal possession of heroin (forty bags), a probationable felony of the third degree, and for carrying a concealed weapon, a non-probationable felony of the third degree. The drugs had been found in her purse when it was seized without a warrant from the front seat of her car, after the car had been towed to the police station. Prior to that, a handgun had been observed by the police concealed inside the car when Hibbett entered the car to remove identification documents from her purse to show to the officer. As soon as he saw the concealed weapon, he arrested her.

Although it was recognized by Schwartz and Sachs that the search and seizure of the purse might well be considered unconstitutional under the then state of the law, ² they recommended, and Hibbett accepted, a bargain whereby in exchange for a plea of guilty to a drug charge, the prosecution would reduce the drug charge to a fourth degree felony and dismiss the weapons charge. Hibbett would thus plead guilty to a fourth degree felony and be eligible for probation. The judge entered into a personal colloquy with Hibbett under Crim.R. 11(C), accepted the guilty plea, and referred her to the probation department for presentence investigation. At the sentencing hearing on July 29, 1976, after an extended discussion with counsel about the information in the presentence report (undisclosed) and her current circumstances, the court gave Hibbett a recess in order to consult with her attorneys about withdrawing the guilty plea. After she chose to allow the plea to remain, the court imposed a sentence of six months to five years.

An appeal was filed (case No. C-77068) and was later brought to a successful conclusion when her new counsel (of record on January 21, 1977, as noted) obtained a reversal of the conviction because the judge failed to comply strictly with the requirements of Crim.R. 11(C) under the then state of the law.

On remand, Hibbett's motion to suppress the heroin was heard and overruled. After a bench trial, she was found guilty of a third degree drug felony and sentenced to eighteen months to ten years. (The weapons charge had been dismissed.) That judgment, however, was reversed on appeal by this court on February 20, 1980, case No. C-780728, on the grounds that the search and seizure were too remote in time and place from the arrest to be valid under the principles then laid down by the United States Supreme Court. After the second remand of the case, the drug charge was dismissed on February 27, 1980. In brief, Hibbett claims that her attorneys wronged her by not pursuing the motion to suppress at the earliest instance.

We hold that the gist of Hibbett's claims against her attorneys is to recover damages caused by their alleged malpractice (professional misconduct). In Ohio the applicable statute of limitations is determined not from the form of pleading or procedure, but from the gist of the complaint. Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 97 N.E.2d 549 (a claim for personal injuries caused by a common carrier must be brought within two years, even though the form of the action was in contract); Cox v. Cartwright (1953), 96 Ohio App. 245, 121 N.E.2d 673 (an action against a dentist for damages caused by improper fitting of false teeth is one for malpractice and is governed by the statute of limitations applicable to malpractice, not the statute of limitations applicable...