Pincus v. Dubyak
| Decision Date | 02 September 2021 |
| Docket Number | 110135 |
| Parties | ARLENE PINCUS, Plaintiff-Appellant, v. ROBERT DUBYAK, ET AL., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Kaufman, Drozdowski & Grendell, L.L.C., and Evan T Byron, for appellant.
Reminger Co., L.P.A., Andrew J. Dorman, Holly Marie Wilson and Aaren R. Host, for appellees.
JOURNAL ENTRY AND OPINION
{¶ 1} Plaintiff-appellant, Arlene Pincus, appeals the trial court's order granting judgment on the pleadings in favor of defendants-appellees, Robert Dubyak and Dubyak Nelson LLC (collectively, "Dubyak"). She also appeals the trial court's order denying her motions for leave to amend her complaint. She raises two assignments of error for our review:
{¶ 2} Finding merit to both assignments of error, we reverse the trial court's judgments and remand for further proceedings consistent with this opinion.
{¶ 3} On January 16, 2018, Arlene filed a pro se complaint against Dubyak for legal malpractice. She filed the claim both in her individual capacity and as the legal representative for her husband, David Pincus, pursuant to being his power of attorney. On January 26, 2018, she voluntarily dismissed the claim without prejudice, pursuant to Civ.R. 41(A)(1)(a), through counsel who filed a notice of appearance the same day.
{¶ 4} On January 25, 2019, Arlene, through counsel, refiled the complaint, both individually and as legal representative for David. The complaint states that in May 2014, Arlene hired Dubyak for two matters: a probate matter regarding the estate of David's mother, and a civil litigation matter involving the bakery David owned with his brother, Steven Pincus. Arlene alleged that Dubyak committed legal malpractice in the bakery matter.
{¶ 5} In February 2019, Dubyak filed an answer and counterclaim. Dubyak asserted 15 affirmative defenses, including that the statute of limitations barred Arlene's claim and that Arlene lacked standing. Dubyak's counterclaim sought $33, 162.51 for unpaid legal fees and asserted claims for breach of contract, quantum meruit, and unjust enrichment. Arlene filed an answer to the counterclaim.
{¶ 6} In March 2019, Dubyak filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C). Dubyak argued that Arlene had no legal authority to file, pro se, a claim on David's behalf, and the January 2018 complaint that she filed pro se therefore did not trigger Ohio's savings statute, R.C. 2305.19(A). He contended that the January 2019 legal malpractice claim that Arlene now brings as David's legal representative is therefore untimely. Dubyak also maintained that Arlene was not a party to the bakery matter in her individual capacity except as to a counterclaim against her that was dismissed in October 2017. Dubyak therefore argued that the one-year statute of limitations barred Arlene's malpractice claim asserted in her individual capacity.
{¶ 7} In April 2019, Arlene filed a combined motion for leave to file an amended complaint and response to Dubyak's motion for judgment on the pleadings. She argued that as David's power of attorney, she had the right to hire Dubyak to pursue the bakery case, and that she, not David, was always Dubyak's client, even after the counterclaim against her was dismissed in October 2017. She argued in the alternative that she had standing to bring the legal malpractice claim as a third party because she was in privity with David and because Dubyak acted with malice. With the motion, Arlene filed a first amended complaint. Dubyak filed a reply in support of his motion for judgment on the pleadings.
{¶ 8} Arlene then filed a motion for leave to file a reply brief, which the trial court granted. She filed a combined reply brief and motion for leave to file a second amended complaint. She argued that while she "likely did not" have standing to file the pro se complaint for legal malpractice on behalf of David, she had standing to bring the claim in her individual capacity. The second amended complaint asserted two alternative counts for legal malpractice, one specified as "Arlene as the Client" and the other as "David as the Client." Dubyak filed an opposition to Arlene's motion for leave to file a second amended complaint.
{¶ 9} In May 2019, the trial court granted Dubyak's motion for judgment on the pleadings. In its journal entry, the trial court explained that Arlene's January 2018 complaint was a "nullity" because she filed it "as a pro se litigant who lacked standing," and the statute of limitations for the legal malpractice claim had expired. The trial court also denied Arlene's motions for leave to file the first and second amended complaints because they "cannot cure the nullity created when [Arlene] filed as a pro se litigant[.]"
{¶ 10} In June 2019, Arlene filed a motion for relief from judgment pursuant to Civ.R. 60(B). She argued that the malpractice claim brought in her individual capacity should not have been dismissed because she had standing to pursue it and because she timely filed it. Dubyak filed an opposition, and the trial court denied Arlene's motion without opinion.
{¶ 11} In July 2019, Arlene filed a motion for reconsideration or in the alternative for Civ.R. 54(B) certification. Arlene requested that the trial court vacate its May judgments for "the reasons set forth in" her prior briefing or certify the entries under Civ.R. 54(B) so that she can appeal them without waiting for the resolution of Dubyak's counterclaim. Dubyak filed an opposition, and the trial court denied Arlene's motion without opinion.
{¶ 12} In September 2020, Dubyak filed a motion for summary judgment on the counterclaim for unpaid legal fees and attached the fee agreements as exhibits. Arlene filed an opposition, and Dubyak filed a reply.
{¶ 13} In October 2020, Arlene filed a renewed motion for reconsideration of the judgments granting Dubyak's motion for judgment on the pleadings and denying her motions for leave to amend the complaint based on "new evidence." Arlene argued that the fee agreements attached to Dubyak's summary judgment motion showed that the trial court's rulings were in error. She argued that one of the fee agreements was addressed to "Mrs. Pincus only” (emphasis sic) and the other was addressed to both Arlene and David. Dubyak filed an opposition.
{¶14} In November 2020, the trial court granted Dubyak's motion for summary judgment and denied Arlene's renewed motion for reconsideration. Arlene filed a timely notice of appeal, challenging the trial court's order granting Dubyak's motion for judgment on the pleadings as to the malpractice claim in her individual capacity and the trial court's order denying her motions for leave to amend her complaint.
{¶ 15} In her first assignment of error, Arlene argues that the trial court erred in granting Dubyak's motion for judgment on the pleadings. In her second assignment of error, she argues that the trial court erred in denying her motions for leave to file the first and second amended complaints. We will address the assignments of error together for ease of discussion.
{¶ 16} Arlene concedes that her pro se complaint in January 2018 was a "legal nullity" as it relates to her claim on behalf of David because she was not authorized to file a lawsuit on his behalf. But she maintains that she also brought the malpractice claim in her individual capacity, which she could do pro se. She contends that her January 2018 complaint therefore triggered Ohio's savings statute, R.C. 2305.19(A). She argues that she had standing to bring the malpractice claim in her individual capacity because (1) she had an attorney-client relationship with Dubyak that did not terminate until January 17, 2017, or (2) she had third-party standing because she was in privity with David, or (3) she had third-party standing because Dubyak acted with malice.
{¶ 17} We apply a de novo standard of review to a trial court's decision on a motion for judgment on the pleadings filed under Civ.R. 12(C). Vinicky v. Pristas, 163 Ohio App.3d 508, 2005-Ohio-5196, 839 N.E.2d 88, ¶ 3 (8th Dist). Granting a judgment on the pleadings is appropriate where plaintiffs have failed in their complaint to allege a set of facts that, if true, would establish the defendant's liability. Walters v. First Natl. Bank of Newark, 69 Ohio St.2d 677, 433 N.E.2d 608 (1982). And, like a motion to dismiss, the factual allegations of the complaint are taken as true, but unsupported conclusions are insufficient to withstand the motion. See Moya v. DeClemente, 8th Dist. Cuyahoga No. 96733, 2011-Ohio-5843, ¶ 10. "Civ.R. 12(C) requires a determination that no material factual issues exist and that the movant is entitled to judgment as a matter of law." State ex rel Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Thus, a trial court appropriately grants a motion for judgment on the pleadings when it "(1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." Id.
{¶ 18} ...
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