Shaut v. Roberts, 110528

CourtUnited States Court of Appeals (Ohio)
Citation2022 Ohio 817
Decision Date17 March 2022
Docket Number110528
PartiesMICHAEL H. SHAUT, Plaintiff-Appellant, v. KEVIN ROBERTS, ET AL., Defendants-Appellees.


MICHAEL H. SHAUT, Plaintiff-Appellant,

KEVIN ROBERTS, ET AL., Defendants-Appellees.

No. 110528

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 17, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-20-936408

Michael Shaut Law Office, LPA, Michael Shaut, and Isaac Tom Monah, for appellant.

The Roberts Law Firm and Kevin T. Roberts, for appellees.



{¶ 1} Michael Shaut appeals the trial court's decision dismissing his legal malpractice action against Kevin Roberts and The Roberts Law Firm ("Roberts") as being time barred under R.C. 2305.11(A). For the following reasons, we reverse and remand for further proceedings.


{¶ 2} Shaut filed a legal malpractice action on August 25, 2020. The action arose from Roberts's representation of Shaut in multiple employment and securities law actions and arbitration proceedings, including Hart v. Downing Invest. Partners (Am. Arbitration Assn. Case No. 01-16-0005-1632), which took place in New York, New York, during 2017. According to Shaut, Roberts failed to meet the standards of a legal professional during the course of and subsequent to the arbitration proceeding, which resulted in a $2.5 million judgment entered against Shaut. In 2018, Roberts agreed to file an appeal from the arbitration award in the United States District Court for the Northern District of Ohio, but that appeal was dismissed on July 24, 2018. Shortly thereafter (no specific date was included in the first amended complaint), Shaut hired new counsel in New York through Roberts, who continued to be involved in the matter and appeared on Shaut's behalf in a "related case" in Boston, Massachusetts.

{¶ 3} After the arbitration award, the plaintiffs reduced the award to a final judgment through a New York state court, and in July 2019, a foreign judgment case was filed in the Cuyahoga County Court of Common Pleas to register the New York judgment. Shaut represented himself in that local action. Through the end of August 2019, Shaut alleged that neither party terminated the attorney-client relationship. On August 30, 2019, Shaut sent correspondence seeking to discuss the arbitration proceeding and its progeny and the potential malpractice claim in compliance with their engagement agreement that required mediation or alternative dispute resolution over disputes.


{¶ 4} Shaut attached three documents to the first amended complaint setting forth the above allegations: (1) the engagement agreement between him and Roberts upon which the attorney-client relationship was based; (2) an unauthenticated, partial printout of a docket from the United States District Court for the Southern District of New York, Case No. 1:16-cv-04040, listing Roberts as Shaut's counsel of record and Shaut's status in the case being "terminated" on March 19, 2020; and (3) correspondence, dated August 30, 2019, from Shaut to Roberts presenting a demand to settle the malpractice claim.

{¶ 5} In response to the first amended complaint, Roberts filed a 40-page motion to dismiss under Civ.R. 12(B)(6), attaching 18 exhibits of court filings from the various cases referenced in the first amended complaint. The attachments spanned 168 pages, but none of the attached exhibits were authenticated. Shaut filed a brief in opposition in which he claimed, citing Civ.R. 8, that the complaint was well pleaded and therefore should survive Roberts's motion to dismiss.

{¶ 6} Roberts's motion to dismiss was based on the incorrect standard of review, an issue that carried over into this appeal. Roberts's motion is predicated on the heightened pleading standard established for federal courts in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), instead of the notice pleading standard under Civ.R. 8. Under the heightened, federal standard, a plaintiff must demonstrate the plausibility of the allegations, well beyond the notice pleading standard under Ohio law of setting forth cognizable


claims. We need not consider Roberts's attempt to impose the heightened standard in this case This court has altogether rejected the invitation to adopt the federal approach in Tuleta v Med Mut of Ohio, 2014-Ohio-396, 6 NE3d 106, ¶ 31 (8th Dist) And as Roberts indicated in the supplemental authority briefing, the Ohio Supreme Court has not adopted the federal standard for Ohio either Maternal Grandmother, ADMR v Hamilton Cty Dept of Job & Family Servs, Slip Opinion No 2021-Ohio-4096, ¶ 28 (DeWine, J, concurring).

{¶ 7} The trial court nonetheless disagreed with Shaut and concluded based on its review of the first amended complaint and the three attached exhibits that "there is no set of facts from which this Court can conclude that the cognizable event in this matter occurred on or after August 25, 2019 [(a year preceding the filing of the malpractice action)] or that the attorney-client relationship for the particular transaction or undertaking at issue in this matter existed on or after August 25, 2019." In other words, the trial court concluded that the failure to include allegations within the complaint demonstrating that the statute of limitations was inapplicable meant that the action was time barred. Shaut timely appealed that decision.

{¶ 8} R.C. 2305.11(A) provides that an action for legal malpractice against an attorney or a law firm shall be commenced within one year after the cause of action accrued.

"Under R.C. 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered that his


injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later."

(Emphasis added.) Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, ¶ 4, quoting Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus, and citing Omni-Food & Fashion, Inc. v. Smith, 38 Ohio St.3d 385, 528 N.E.2d 941 (1988). The statute-of-limitations analysis in a legal malpractice case requires two factual inquiries: "(1) When should the client have known that he or she may have an injury caused by his or her attorney? and (2) When did the attorney-client relationship terminate?" The later of those dates "is the date that starts the running of the statute of limitations." Smith at ¶ 4.

{¶ 9} A "'motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.'" State ex rel Belle Tire Distribs. v. Indus. Comm. of Ohio, 154 Ohio St.3d 488, 2018-Ohio-2122, 116 N.E.3d 102, ¶ 17, quoting State ex rel. Hanson, 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A court may grant a Civ.R. 12(B)(6) motion to dismiss "only when the complaint, when construed in the light most favorable to the plaintiff and presuming all the factual allegations in the complaint are true, demonstrates that the plaintiff can prove no set of facts entitling him to relief." Id., citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Appellate courts review an order granting a Civ.R. 12(B)(6) motion to dismiss de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. Thus,


the sole inquiry is whether on the face of the complaint, it can be determined that the legal malpractice cause of action accrued over a year before the filing of the complaint.

{¶ 10} Under Ohio law, the statute of limitations is an affirmative defense. Civ.R. 8(C). "[T]he difficulty of successfully asserting an affirmative defense in a Civ.R. 12(B)(6) motion to dismiss" had been "long recognized" based on the fact that "'affirmative defenses typically rely on matters outside the complaint, they normally cannot be raised successfully in a Civ.R. 12(B)(6) motion.'" Schmitz v. NCAA, 155 Ohio St.3d 389, 2018-Ohio-4391, 122 N.E.3d 80, ¶ 41, quoting Main v. Lima, 3d Dist. Allen No. 1-14-42, 2015-Ohio-2572, ¶ 14, and citing Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP-183, 2012-Ohio-1962, ¶ 6-7 (Kennedy, J., concurring in part) (noting that "the better procedure is to address affirmative defenses by way of a motion for summary judgment that will allow introduction of additional facts beyond the complaint"). "A motion to dismiss based upon a statute of limitations[, however, ] may be granted when the complaint shows conclusively on its face that the action is time-barred." (Emphasis added.) Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 433 N.E.2d 147 (1982), paragraph three of the syllabus; see also Maitland v. Ford Motor Co., 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11. A plaintiff is not required to plead with specificity to avoid application of the statute of limitations. Warren v. Estate of Durham,


9th Dist. Summit No. 25624, 2011-Ohio-6416, ¶ 6, citing Irvin v. Am. Gen. Fin., Inc., 5th Dist. Muskingum No. CT2004-0046, 2005-Ohio-3523, ¶ 29, fn. 11.

{¶ 11} In this case, although Shaut filed the complaint on August 25, 2020, at the least, none of the allegations from the first amended complaint demonstrates when the parties terminated the attorney-client relationship for the particular transaction to demonstrate the latest accrual date for the statute of limitations. In reaching its dismissal decision, the trial court flipped the standard of review by concluding that the first amended complaint failed to demonstrate...

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