Loveman v. Hamilton, 80-1289

• Decision Date: 20 May 1981
• Docket Number: No. 80-1289,80-1289
• Citation: 420 N.E.2d 1007,66 Ohio St.2d 183
• Parties: , 20 O.O.3d 194 LOVEMAN, Appellee, v. HAMILTON, Exr., Appellant.
• Court: Ohio Supreme Court

Page 183

66 Ohio St.2d 183

420 N.E.2d 1007, 20 O.O.3d 194

LOVEMAN, Appellee, v. HAMILTON, Exr., Appellant.

No. 80-1289.

Supreme Court of Ohio.

May 20, 1981.

Syllabus by the Court

An action for legal malpractice survives the death of the charged attorney for the reasons that legal malpractice (1) is a cause of action that survives at common law and (2) constitutes an injury to the client's property interests. (R.C. 2305.21 construed and applied.)

In January 1979, Katherine Loveman, appellee herein, filed a complaint against James L. Hamilton, appellant, the executor of the estate of Sheldon P. Weitzman. The complaint alleged that Weitzman, an attorney, had failed to process appellee's claim, which she had entrusted to him, against Continental, Inc., prior to the expiration of the applicable statute of limitations. Appellee instituted this action against the Weitzman estate approximately four months after Weitzman's death.

The Court of Common Pleas of Cuyahoga County granted appellant's motion for summary judgment on the grounds that appellee's cause of action was extinguished by the death of Weitzman.

Upon appeal, the Court of Appeals, in unanimously reversing the common pleas court, ruled that legal malpractice, pursuant to R.C. 2305.21, ^* survived the death of the charged attorney for the reason that legal malpractice survived at common law.

The cause is now before this court pursuant to an allowance of a motion to certify the record.

Alan M. Wolk, Cleveland, for appellee.

Gallagher, Sharp, Fulton, Norman & Mollison and Neil E. Roberts, Cleveland, for appellant.

CELEBREZZE, Chief Justice.

Appellee's claim for legal malpractice against the Weitzman estate survives, pursuant to R.C. 2305.21, if legal malpractice (1) is a cause of action that survives at common law or (2) constitutes an injury to appellee's property interests. For the reasons that follow, we find that an accrued cause of action in legal malpractice meets both of the foregoing tests.

Initially, it should be noted that, at common law, actions ex contractu survived the death of a defendant and actions ex delicto did not. Village of Cardington v. Adm'r. of Fredericks (1889), 46 Ohio St. 442, 448, 21 N.E. 766. Although a client's claim against an attorney has aspects of both a contract action and a tort action, the general rule is that the gist of the action, regardless of its form, is the attorney's breach of his contractual obligation to represent his client in a professional, effective and careful manner. McStowe v. Bornstein (Mass.1979), --- Mass. ---, 388 N.E.2d 674; Hendrickson v. Sears (1974), 365 Mass. 83, 310 N.E.2d 131. See, generally, Annotation, 18 A.L.R.3d 978; Annotation, 65 A.L.R.2d 1211; 6 Ohio Jurisprudence 3d 674, Attorneys at Law, Section 143. As such, the aforementioned attorney-client contractual dimension to a professional malpractice claim permits appellee's claim to survive the death of Weitzman, pursuant to R.C. 2305.21.

In light of the foregoing analysis of the contract-tort historical dichotomy, which is required by the explicit language of R.C. 2305.21, we must point out that a mere label should not be dispositive of the survivability of a cause of action in professional malpractice. To rule that survival of a cause of action is contingent on the procedural distinction between contract and tort would be to elevate form over substance. Accordingly, looking to the substance of the case sub judice, we also rule that appellee's action survives because the focal point of the case is recovery of property damages.

The critical consideration in the case at bar is the nature of the damages for which recovery is sought. As this court ruled in Cardington v. Fredericks, supra, at 448, 21 N.E. 766:

"As a general rule, at common law, actions ex contractu survived, while actions ex delicto did not. To this there were exceptions. One was that, in actions ex delicto, so far as the act complained of resulted in damage to property, the action survived. Another was, that though the...