Kilko v. Haverfield
| Decision Date | 23 December 2010 |
| Docket Number | No. 94920,94920 |
| Citation | 2010 Ohio 6364 |
| Parties | GEORGE KILKO, JR. PLAINTIFF-APPELLANT, v. WALTER & HAVERFIELD DEFENDANT-APPELLEE. |
| Court | Ohio Court of Appeals |
JOURNAL ENTRY AND OPINION
ATTORNEYS FOR APPELLANT Thomas Schmelzer Stephanie J. Lane Schmelzer & Lane.
ATTORNEYS FOR APPELLEE George S. Coakley Todd M. Jackett Reminger & Reminger Co., L.P.A.
{¶ 1} Appellant, George Kilko, seeks reversal of the trial court's grant of summary judgment in favor of appellee, Walter & Haverfield, L.L.P. ("W&H"), and the denial of his motion for leave to amend his complaint. After a thorough review of the record and the case law, we affirm the decisions of the trial court.
{¶ 2} Kilko owned several pieces of commercial real estate in northeast Ohio that were used for the operation of his various businesses. In March 2004, on the recommendation of his accountant, Kilko sought the services of Gary Zwick at W&H to, among other things, develop an estate plan. Zwick developed a plan, which included the formation of numerous limited liability corporations ("LLC") to receive title to the commercial real estate Kilko owned. The plan called for an LLC to be formed for each business location and the property to be transferred to the individual LLCs. Kilko and Zwick caused the formation of 11 LLCs.
{¶ 3} Zwick turned over the job of transferring the real estate to an attorney at W&H, Eric Hall. Hall drafted deeds and other documents necessary for the transfer of the properties, which were then executed by Kilko. Hall filed the paperwork with the appropriate recorders' offices and sent the recorded deeds to Kilko on April 28, 2005. From this information, it is apparent that Hall failed to transfer the property located at 1860-1870 Ridge Road in Painesville, Ohio ("Ridge Road Property").1 This property was to be transferred to Bowhall, LLC. Hall thought the Ridge Road Property was titled in the name of GP&T, LLC, one of Kilko's LLCs for property in Euclid, Ohio. Kilko noticed that the Ridge Road Property was still titled in his name and informed Hall of that fact. The Ridge Road Property was never transferred to any LLC.
{¶ 4} Meanwhile, a judgment was issued in New York against Kilko in favor of Viking Financial Services ("Viking"). Viking began negotiating with Kilko, initially through Zwick and later through other attorneys hired by Kilko. On April 8, 2005, Viking transferred the judgment to Ohio and filed a judgment lien against Kilko for $226,277.35 in Lake County.
{¶ 5} Kilko asserts that he was not aware of the judgment lien until he attempted to sell the Ridge Road Property on March 12, 2008 because he had negotiated a payment plan with Viking and had been making payments. Upon the sale of the property, Kilko was required to satisfy the Viking judgment out of the sale proceeds.
{¶ 6} Kilko filed a malpractice suit against W&H on March 11, 2009 alleging that, as a result of W&H's malpractice, Kilko was required to satisfy the Viking judgment out of the proceeds of the sale of the Ridge Road Property, which he had intended to use to pay down other debts. As a result, he incurred an additional $2,000 per month in interest payments.
{¶ 7} W&H filed its answer and an amended answer asserting that the statute of limitations had run, barring Kilko's claim. W&H filed for summary judgment arguing the statute of limitations defense and that W&H could not be liable for the alleged malpractice of the law firm generally, butonly through the doctrine of respondeat superior, 2 which Kilko had failed to allege in his complaint.
{¶ 8} In response, Kilko petitioned the trial court to amend his complaint to include the individual attorneys involved. This motion was denied on December 22, 2009, 3 and summary judgment was granted in favor of W&H on March 2, 2010. Kilko then timely filed an appeal citing two assignments of error.4
{¶ 9} Kilko first argues that the trial court abused its discretion when it denied his motions for leave to amend the complaint.
{¶ 10} Civ.R. 15(A) allows for the amendment of a pleading after a responsive pleading has been filed
{¶ 11} "The decision whether to allow a party leave to amend a complaint lies exclusively within the discretion of the trial court and the ruling will not be disturbed on appeal by a reviewing court absent an affirmative showing of an abuse of discretion." Richard v. WJW TV-8, Cuyahoga App. No. 84541, 2005-Ohio-1170, ¶21, citing Natl. Bank of Fulton Cty. v. Haupricht Bros. (1988), 55 Ohio App.3d 249, 251, 564 N.E.2d 101; Mead Corp. v. Lane (1988), 54 Ohio App.3d 59, 67, 560 N.E.2d 1319. To constitute an abuse of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 12} " " (Internal citations omitted.) Trustees of Ohio Carpenters' Pension Fund v. U.S. Bank Natl. Assn., Cuyahoga App. No. 93295, 2010-Ohio-911, ¶25, quoting Brown v. FirstEnergy Corp., 159 Ohio App.3d 696, 2005-Ohio-712, 825 N.E.2d 206, ¶6, quoting Johnson v. Norman Malone & Assoc., Inc. (Dec. 20, 1989), Summit App. No. 14142, at 5.
{¶ 13} In Johnson, the Ninth District found that "'plaintiffs should not be permitted to sit by for [a 22-month] period and bolster up their pleadings in answer to a motion for summary judgment.'" Id., quoting Eisenmann v. Gould-Natl. Bakeries, Inc. (E.D.Pa.1958), 169 F.Supp. 862, 864, citing Cty. of Marin v. United States (N.D.Ca.1957), 150 F.Supp. 619, 623.
{¶ 14} In the present case, Kilko filed his original complaint on March 11, 2009. W&H then filed its motion for summary judgment on August 26, 2009. Almost a month later, on September 24, Kilko filed for leave to amend his complaint. This factor weighs heavily against permitting amendment.
{¶ 15} In denying Kilko's motion for leave to amend, the trial court found that
{¶ 16} As the trial court correctly found, whichever date is selected in the case, the claims Kilko is attempting to assert against the individual attorneys in his proposed amended complaint are barred by the statute oflimitations because those claims do not relate back to the date of the original filing of the complaint.
{¶ 17} Civ.R. 15(C) limits the circumstances where an amended pleading relates back to the filing date of the original.5 The Ohio Supreme Court has determined that this rule Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 632, 635 N.E.2d 323.
{¶ 18} In Kraly, a plaintiff tried to amend its complaint to add a claim against an insurance company for uninsured motorist coverage and to add the insurance company as a party due to the insolvency of the original defendant's insurance carrier. The Court determined "that the effect of theamended complaint herein was not to substitute a proper party for one previously named in the original complaint but to add [the insurance company] while retaining a proper party (i.e., the tortfeasor, Vannewkirk) to the action." Id. at 631-632. The Court found that (Internal citations omitted.) Id. at 632.
{¶ 19} Kilko is attempting to add parties to his complaint, not due to mistaken identity, but to assert claims that should have been asserted in the original complaint. According to the holding in Kraly, this is not a situation that allows these claims to relate back to the original filing date, and therefore, they are beyond the one-year statute of limitations as set forth in R.C. 2305.11(A).6
{¶ 20} The trial court did not abuse its discretion in denying Kilko leave to amend his complaint after W&H had filed for summary judgment and after the statute of limitations for the new claims he wished to assert had run.
{¶ 21} Kilko also argues that the trial court erred in granting summary judgment in favor of W&H. "Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is...
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