Scholler v. Scholler

Citation462 N.E.2d 158,10 Ohio St.3d 98,10 OBR 426
Decision Date18 April 1984
Docket NumberNo. 83-978,83-978
Parties, 10 O.B.R. 426 SCHOLLER et al., Appellees and Cross-Appellants, v. SCHOLLER, Appellant and Cross-Appellee; Willoughby, Cross-Appellee.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. An attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously.

2. An attorney who represents a spouse in the negotiation of a separation agreement relative to a marriage dissolution action does not simultaneously, automatically represent the interests of a minor child of the marriage.

3. A point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined by a court of competent jurisdiction, may not be drawn in question in a subsequent action between the same parties or their privities. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. (Trautwein v. Sorgenfrei, 58 Ohio St.2d 493, 391 N.E.2d 326 , followed.)

Alyce Scholler, appellee and cross-appellant herein, and Michael P. Scholler, appellant and cross-appellee herein, were married in 1972. One child was born of the marriage, Philip Scholler.

In 1978 the couple filed a petition for dissolution of marriage in the Court of Common Pleas of Lucas County, Domestic Relations Division. Alyce Scholler was represented by Thomas M. Willoughby, cross-appellee herein, during the negotiation of the separation agreement. The separation agreement, inter alia, called for Michael Scholler to pay Alyce Scholler thirty-five dollars per week in child support. The separation agreement was incorporated into the decree of dissolution of marriage and the parties were released from their marital obligations.

Alyce Scholler subsequently filed a motion for modification of child support in the domestic relations court, which she voluntarily dismissed. Thereafter Alyce Scholler, represented by new counsel, filed a motion for relief from judgment under Civ.R. 60(B) in the same court. In general, Alyce Scholler alleged that Michael Scholler had fraudulently withheld certain information concerning his income and business assets from her during the negotiation of the separation agreement which justified setting aside the decree of dissolution of marriage and making a proper reallocation of property and child support.

The domestic relations court held a hearing and filed complete findings of fact and conclusions of law and ruled that Alyce Scholler was not entitled to relief. Alyce Scholler appealed the denial of her Civ.R. 60(B) motion to the court of appeals which affirmed the decision of the domestic relations court. This court, on May 13, 1981, overruled a motion to certify the record (case No. 81-394).

Alyce Scholler then sought another modification of child support in the domestic relations court. This time the court increased the child support to fifty-five dollars per week. Alyce Scholler appealed the amount of the increase to the court of appeals which affirmed the amount of the modification. This court, on June 23, 1982, overruled a motion to certify the record (case No. 82-661).

On September 11, 1981, Alyce Scholler filed a complaint in the Court of Common Pleas of Lucas County individually and on behalf of her minor son Philip Scholler. Named as defendants were Michael Scholler and Thomas Willoughby, Alyce Scholler's former attorney. Individually, Alyce Scholler alleged that Michael Scholler " * * * made material misrepresentations in regard to his financial affairs, committed fraud upon plaintiff, Alyce Scholler, was deceitful and concealed assets entitling plaintiff, Alyce Scholler, to compensatory damages, equitable relief and punitive damages." Alyce Scholler alleged that Willoughby " * * * negligently failed to make a complete investigation of the financial circumstances of the parties, * * * [and] negligently failed to require a full disclosure of defendant, Michael Scholler, during the course of negotiation of the aforesaid separation agreement * * *."

The claims stated by Alyce Scholler on behalf of Philip Scholler are as follows. The complaint alleged that, "[b]ecause of the misrepresentations, fraud, deceit and concealment of assets and earnings by defendant, Michael P. Scholler, Philip Scholler, has been and continues to be denied and deprived of the standard of living to which he is entitled." In addition, Alyce Scholler claimed that Philip was entitled to recover for Willoughby's alleged malpractice.

Willoughby's answer contained the following defense:

"Plaintiff's claims against this defendant were not brought within the time provided for the commencement of such actions and are therefore barred."

Willoughby subsequently moved the trial court for summary judgment and argued only that Alyce Scholler's claims against him were barred by operation of the doctrine of collateral estoppel and that he owed no duty to Philip Scholler that would give rise to liability in legal malpractice.

Michael Scholler also moved the trial court for summary judgment on the basis that the doctrine of collateral estoppel barred both Alyce Scholler's action and that brought on Philip's behalf against Michael Scholler.

The trial court granted Willoughby's motion for summary judgment and ruled that the doctrine of collateral estoppel was not available to Willoughby, but that no genuine issue of material fact existed as to Willoughby's negligence. In granting summary judgment in favor of Willoughby, the trial court observed that Alyce Scholler's "malpractice claims appear to be barred by the one year statute of limitations."

The trial court also granted Michael Scholler's motion for summary judgment. In so doing, the trial court ruled that the doctrine of res judicata entitled Michael Scholler to judgment as a matter of law.

Alyce Scholler, individually and on behalf of Philip Scholler, appealed the decision of the trial court granting summary judgment in favor of Michael Scholler and Willoughby. The court of appeals ruled that summary judgment was proper in favor of Willoughby against Alyce Scholler because, even though a genuine issue of fact was raised as to Willoughby's negligence, Alyce Scholler's claim was barred by the statute of limitations. The court of appeals upheld summary judgment in favor of Willoughby against Alyce Scholler on behalf of Philip Scholler on the ground that Willoughby owed no duty to Philip and that Philip was not in privity with Alyce Scholler in the course of negotiating the separation agreement.

With respect to the summary judgment granted in favor of Michael Scholler, the court of appeals determined that application of the doctrine of collateral estoppel entitled Michael Scholler to judgment as a matter of law because the factual issues contained in Alyce Scholler's complaint had previously been litigated in Alyce Scholler's Civ.R. 60(B) proceeding. However, the court of appeals reasoned that, since Philip Scholler was not in privity with his mother, Alyce, in the Civ.R. 60(B) proceeding, collateral estoppel did not bar Alyce Scholler's claim on behalf of Philip against Michael Scholler. The court of appeals held further that a genuine issue of fact existed as to whether Michael Scholler had abandoned his parental relationship thereby eliminating the bar of parental immunity in the action brought by Alyce Scholler on behalf of Philip against Michael Scholler.

Michael Scholler has appealed the decision of the court of appeals which reversed summary judgment in his favor in the action brought by Alyce Scholler on behalf of Philip. Alyce Scholler has cross-appealed seeking review of the decision of the court of appeals upholding summary judgment in favor of Willoughby and Michael Scholler. Alyce Scholler, as mother and natural guardian of Philip Scholler, has cross-appealed the decision of the court of appeals which upheld the summary judgment granted in favor of Willoughby in the malpractice claim brought by Alyce Scholler on Philip's behalf.

The cause is now before the court upon the allowance of a motion and cross-motion to certify the record.

Shinaberry, James & Weiher, Richard A. Shinaberry, Donal Hummer, Jr., Alan R. Kirshner, Toledo, for appellees and cross-appellants Alyce Scholler, individually and on behalf of Philip Scholler.

Cooper, Straub, Walinski & Cramer, Henry M. Schaffer, John L. Straub, Toledo, for appellant and cross-appellee Michael Scholler.

Eastman & Smith, Robert J. Gilmer, Jamille G. Jamra, Toledo, for cross-appellee Thomas M. Willoughby.

FRANK D. CELEBREZZE, Chief Justice.

I

The initial question to be decided is whether summary judgment was properly granted in favor of Willoughby on the basis of the statute of limitations. In Skidmore & Hall v. Rottman (1983), 5 Ohio St.3d 210, 450 N.E.2d 684, this court held:

"Under R.C. 2305.11(A), a cause of action for legal malpractice accrues and the statute of limitations commences to run when the client discovers, or, in the exercise of reasonable care and diligence should have discovered, the resulting injury. * * * "

Neither the trial court nor the court of appeals had the benefit of our decision in Skidmore & Hall, supra. As such, no record was made in the proceedings below from which it could be determined when Alyce Scholler's cause of action in legal malpractice against Willoughby accrued.

Moreover, even though Willoughby raised the statute of limitations defense generally in his answer, his motion for summary judgment failed to set forth the statute of limitations as a basis for summary judgment. As a consequence, the court of appeals was not in a position to even speculate as to the point of accrual of Alyce Scholler's cause of action in malpractice against...

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