Seniah Corp. v. Buckingham, Doolittle & Burroughs, LLP

• Decision Date: 05 March 2018
• Docket Number: No. 2017CA00109,2017CA00109
• Citation: 109 N.E.3d 69,2018 Ohio 855
• Parties: SENIAH CORPORATION, Plaintiff–Appellant v. BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP, et al., Defendants–Appellees
• Court: Ohio Court of Appeals

109 N.E.3d 69

2018 Ohio 855

SENIAH CORPORATION, Plaintiff–Appellant

v.BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP, et al., Defendants–Appellees

No. 2017CA00109

Court of Appeals of Ohio, Fifth District, Stark County.

DATE OF JUDGMENT ENTRY: March 5, 2018

BRADLEY J. BARMEN, 1375 E. 9th St., 16th Floor, Cleveland, OH 44114, for Plaintiff–Appellant

LEE PLAKAS, DAVID L. DINGWELL, MARIA C. KLUTINOTY EDWARDS, 220 Market Ave. S., 8th Floor, Canton, OH 44702, for Defendants–Appellees

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, Jr., J.

OPINION

Delaney, P.J.

{¶ 1} Plaintiff–Appellant Seniah Corporation appeals the June 8, 2017 judgment entry of the Stark County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Attorney–Client Relationship

{¶ 2} Defendant–Appellee Patrick J. Keating is an attorney with Defendant–Appellee Buckingham, Doolittle & Burroughs. Plaintiff–Appellant Seniah Corporation retained Keating and Buckingham to represent it in two legal matters. In February 2010, Keating represented Seniah in a foreclosure action. Keating also represented Seniah in its Chapter 11 Petition in the U.S. Bankruptcy Court for the Northern District of Ohio, Eastern Division, Case No. 10–60620.

Cognizable Events and Termination of Relationship

{¶ 3} Seniah claimed Keating commit malpractice on two occasions during his representation of Seniah. On November 23, 2010, the Bankruptcy Court denied a motion to amend a Relief from Stay Order where Seniah requested an opportunity to file a plan of reorganization that would allow Seniah to protect the property subject to the foreclosure action. On August 15, 2011, the property subject to foreclosure was sold at Sheriff's Sale for allegedly a fraction of its lowest appraised value.

{¶ 4} The foreclosure action concluded on September 16, 2011. The bankruptcy case closed on November 22, 2011. The attorney-client relationship between Keating and Seniah ended no later than November 22, 2011.

Initiation of Legal Malpractice Claim

{¶ 5} On July 24, 2012, Seniah contacted Keating by letter to advise him of Seniah's potential claim for legal malpractice. The letter asked Keating to arrange for Seniah's representative to take possession of the file and to schedule a time for a meeting to discuss the matter. Keating gave the letter to Susan Rodgers, general counsel for Buckingham.

{¶ 6} On August 6, 2012, Rodgers sent Seniah a letter identifying herself as general counsel for Buckingham and indicating she was in receipt of Seniah's July 24, 2012 letter. Rodgers stated that "we are investigating the matter and will be contacting [Seniah] shortly to discuss the firm's position." Rodgers did not state in the letter that she did not represent Keating.

{¶ 7} Rodgers, Keating, and Seniah met on September 21, 2012 to discuss Seniah's claim of legal malpractice. Rodgers did not state at the meeting that she represented only Buckingham's interests. The parties did not reach a settlement at the meeting.

{¶ 8} Seniah was concerned about the expiration of the statute of limitations on November 22, 2012. Rodgers drafted a Tolling Agreement to extend the statute of limitations. Keating was not involved in the drafting of the Tolling Agreement. The Tolling Agreement states as follows:

This Tolling Agreement ("Tolling Agreement") is entered into effective October 3, 2012 between and among Buckingham, Doolittle & Burroughs, LLP ("BDB"), an Ohio limited liability partnership, and William K. Haines, Jr. ("Haines") and Seniah Corp. ("Corporation") * * *.

The Seniah Parties claim that certain legal services were not properly rendered by BDB in relation to the handling of the Seniah Corp. Bankruptcy Case * * * resulting in a potential malpractice claim ("Potential Claim"); and

BDB denies any basis for any Potential Claim and further denies that it performed services for Haines as a client in relation to the Potential Claim; and

BDB and the Seniah Parties desire to pursue a potential resolution of the Potential Claim, without prejudicing the Seniah Parties' right to bring claims against BDB due to the passage of time.

* * *

1. The parties are entering into this Agreement for the purpose of preserving the status quo as of October 3, 2012 with respect to any applicable statute(s) of limitations and other time-related defenses relating to or arising from any applicable law on which the Potential Claim is/or may be based.

2. The parties agree that as of October 3, 2012, the running of any statute(s) of limitations with respect to any and all possible causes of action and claims which the Seniah Parties may have against BDB with respect to the Potential Claim is tolled and suspended until this Agreement is terminated as set forth in Section 7.

* * *

7. * * * This Agreement will terminate the earlier of January 31, 2013 * * *.

8. This Agreement constitutes the entire agreement of the parties with respect to the tolling of any statute(s) of limitations, the equitable doctrine of laches, and the waiver of claims and defenses related to the passage of time with respect to the Potential Claim. No modifications or amendments to this Agreement are effective unless they are set forth in writing and signed by all of the parties. * * * This Agreement is binding upon and inures to the benefit of each party, as well as their heirs, successors, assigns, shareholders, members, officers, directors, agents, or insurers, as these terms are applicable. * * *.

9. Each party represents and warrants that the individuals whose signatures appear below is duly authorized to execute this Agreement on behalf of their respective party.

{¶ 9} The Tolling Agreement was signed by Seniah's counsel on behalf of William K. Haines, Jr. and Seniah Corp. Rodgers signed the Tolling Agreement as general counsel on behalf of Buckingham. Keating did not sign the Tolling Agreement.

{¶ 10} Seniah and Rodgers met again on October 15, 2012. Keating was not present at the meeting. Seniah and Rodgers did not reach a settlement.

{¶ 11} Seniah and Rodgers participated in a private mediation on January 11, 2013. Keating was not present at the mediation. The matter was not settled at mediation.

Malpractice Complaint

{¶ 12} On February 19, 2013, Seniah filed a complaint in the Stark County Court of Common Pleas naming Buckingham, Keating, and Joshua Berger, an attorney with Buckingham, as Defendants. The complaint alleged Keating and Berger committed legal malpractice relating to their representation of Seniah during a foreclosure action and a Chapter 11 Bankruptcy proceeding. The complaint sought to hold Keating and Berger liable in their individual capacities.

{¶ 13} Buckingham filed an answer to the complaint.

{¶ 14} Keating and Berger filed a Motion to Dismiss on April 26, 2013. The motion to dismiss argued that pursuant to Civ.R. 12(B)(6), Seniah could prove no set of facts entitling it to relief because the applicable statute of limitations for a legal malpractice expired prior to the filing of the complaint. Keating and Berger noted Seniah filed its complaint for legal malpractice on February 19, 2013. They argued the complaint stated two cognizable events whereby Seniah could have discovered the legal malpractice. Those events, however, were beyond the one-year statute of limitations. Keating and Berger also argued Seniah could not rely upon the termination of the attorney-client relationship to determine the statute of limitations because the complaint failed to state any facts as to the attorney-client relationship termination.

{¶ 15} On May 13, 2013, Seniah filed a "Brief in Opposition to Defendants' Motion to Dismiss, or in the Alternative, Motion for Leave to Amend Complaint, Instanter." In support of its opposition to the motion to dismiss, Seniah argued the complaint was timely filed based on a Tolling Agreement entered into between Seniah and Buckingham, Doolittle & Burroughs, LLP on October 3, 2012. Seniah attached the Tolling Agreement to the May 13, 2013 motion as Exhibit A. Seniah also attached correspondence between the parties as exhibits to further support its opposition to the motion to dismiss.

{¶ 16} On June 4, 2013, the trial court issued its judgment entry granting the motion to dismiss. In its judgment entry, the trial court agreed with the argument of Keating and Berger that the complaint was filed outside of the one-year statute of limitations. The trial court referred to the factual allegations in the complaint to find Seniah could prove no set of facts warranting recovery. The trial court further found the Tolling Agreement did not serve to extend the statute of limitations for filing the legal malpractice complaint. The trial court found the Tolling Agreement was not signed by Keating or Berger and therefore was not binding upon those parties per the language of the Tolling Agreement.

{¶ 17} After the ruling, Buckingham, Doolittle & Burroughs, LLP filed a motion for judgment on the pleadings. Seniah filed a motion for relief from judgment.

{¶ 18} Seniah dismissed Berger as a party-defendant.

{¶ 19} On December 19, 2013, the trial court denied Seniah's motion for relief from judgment. The trial court also granted the motion for judgment on the pleadings filed by Buckingham, Doolittle & Burroughs, LLP via judgment entry on January 13, 2014.

{¶ 20} Seniah appealed the June 4, 2013 judgment entry of the Stark County Court of Common Pleas to this Court in Seniah Corp. v. Buckingham, Doolittle & Burroughs, LLP , 5th Dist. Stark No. 2014CA00013, 2014-Ohio-4370, 2014 WL 4907444 (" Seniah I "). In its appeal, Seniah argued the trial court erred in granting the Civ.R. 12(B)(6) motion to dismiss. We agreed the trial court erred when it granted the motion to dismiss because the trial court considered evidence and materials outside the four corners of the complaint to reach its decision to grant the motion to dismiss. Id. at ¶ 18–19. We held that in order to consider matters outside the complaint, the trial court should have converted the Civ.R. 12(B)(6...