[Cite as Harper v. Anthony, 2014-Ohio-214.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100082

DAVID W. HARPER

PLAINTIFF-APPELLANT 

vs. 

DAVID S. ANTHONY

 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-798073 

BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: January 23, 2014 
-iATTORNEYS FOR APPELLANT 

Andrew J. Simon 

James L. Simon 

Freedom Square II, Suite 165 

6000 Freedom Square Drive 

Independence, Ohio 44131 

ATTORNEYS FOR APPELLEE 

Lori E. Brown 

Colleen A. Mountcastle 

Catherine F. Peters 

Gallagher Sharp 

Bulkley Building, 6th Floor 

1501 Euclid Avenue 

Cleveland, Ohio 44115 
MARY EILEEN KILBANE, J.: 

{¶1} This appeal presents us with the question of whether, under Civ.R. 13(A), a 

claim for legal malpractice is a compulsory counterclaim to a claim for unpaid legal fees. 

The trial court answered in the affirmative, determining that plaintiff-appellant David 

Harper (“Harper”) was barred from refiling his legal malpractice claim. We agree, and 

so we affirm the trial court’s final judgment in favor of defendant-appellee David 

Anthony (“Anthony”). 

{¶2} Anthony had provided legal representation to Harper in Harper’s divorce 

case. On February 17, 2011, Harper filed a complaint against Anthony claiming legal 

malpractice (“Harper I”). Anthony filed an answer along with a counterclaim asserting 

that Harper was liable for unpaid legal fees. 

{¶3} Harper did not file an answer to Anthony’s counterclaim, and on December 

16, 2011, Anthony moved for default judgment. On December 22, 2011, Harper filed a 

notice, pursuant to Civ.R. 41(A)(1)(a), voluntarily dismissing his legal malpractice claim. 

 At this point, the only outstanding claim was Anthony’s counterclaim against Harper. 

On January 20, 2012, the trial court entered default judgment against Harper in the 

amount of $11,000. 

{¶4} On December 21, 2012, Harper refiled his legal malpractice claim against 

Anthony (“Harper II”). Anthony filed a motion for summary judgment, arguing that 

Harper’s legal malpractice claim was a compulsory counterclaim to Anthony’s claim for 
unpaid legal fees, and that Harper’s failure to prosecute his malpractice claim in the 

original action rendered that claim res judicata. The trial court agreed with Anthony and 

granted the motion for summary judgment. Harper now appeals from the trial court’s 

final judgment, asserting two assignments of error for our review. 

I. The trial court erred in determining that the legal malpractice claim was 

barred by res judicata, because Harper had voluntarily dismissed the claim 

under Civ.R. 41(A)(1)(a), and so the claim was never decided on the merits. 

II. The trial court erred in determining that a claim for legal malpractice is 

compulsory to a claim for unpaid legal fees, because a claim for legal 

malpractice does not arise from the creation of a contract; rather, the claim 

arises from conduct throughout the underlying representation. 

We consider the assignments of error out of order for ease of discussion. For the 

reasons that follow, both assignments of error are overruled. 

{¶5} We apply the de novo standard when reviewing an order granting summary 

judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

 We will affirm the trial court’s order granting summary judgment if (1) there is no 

genuine issue as to any material fact; (2) the moving party is entitled to judgment as a 

matter of law; and (3) reasonable minds can come to but one conclusion, and that 

conclusion is adverse to the party against whom the motion for summary judgment is 

made, who is entitled to have the evidence construed most strongly in his favor. Civ.R. 

56(C); Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 

6. 

{¶6} In the instant case, the trial court granted summary judgment in Harper II, 

concluding that the legal malpractice claim was a compulsory counterclaim to the claim 
for unpaid legal fees, and that Harper was, therefore, required to litigate this claim in 

Harper I. In his second assignment of error, Harper argues that the trial court erred 

because his legal malpractice claim was not compulsory to Anthony’s claim for unpaid 

legal fees. 

{¶7} Civ.R. 13(A) governs compulsory counterclaims. Under this rule, all 

existing claims between opposing parties that arise out of the same transaction or 

occurrence must be litigated in a single lawsuit, regardless of which party initiates the 

action. Rettig Ents. v. Koehler, 68 Ohio St.3d 274, 626 N.E.2d 99 (1994), paragraph one 

of the syllabus. In addition to promoting judicial economy, the rule is designed to assist 

courts with the “orderly delineation of res judicata.” Lewis v. Harding, 182 Ohio 

App.3d 588, 2009-Ohio-3071, 913 N.E.2d 1048, ¶ 12 (8th Dist.). A party who fails to 

assert a compulsory counterclaim at the proper time is barred from litigating that claim in 

a subsequent lawsuit. Id. 

{¶8} Ohio courts use the “logical relation” test to determine whether a claim is a 

compulsory counterclaim. Rettig Ents. at paragraph two of the syllabus. Under this 

test, a compulsory counterclaim exists if that claim “is logically related to the opposing 

party’s claim” such that “separate trials on each of their respective claims would involve a 

substantial duplication of effort and time by the parties and the courts * * *.” Id. 

Accordingly, “multiple claims are compulsory counterclaims where they ‘involve many of 

the same factual issues, or the same factual and legal issues, or where they are offshoots 

of the same basic controversy between the parties.’” Id. at 279, quoting Great Lakes 
Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961). 

{¶9} Harper argues that a claim for legal malpractice is not logically related to a 

claim for unpaid legal fees, but the Ohio Supreme Court has already decided that such 

claims are compulsory counterclaims under Civ.R. 13(A). Soler v. Evans, St. Clair & 

Kelsey, 94 Ohio St.3d 432, 763 N.E.2d 1169 (2002). In Soler, the plaintiff filed a 

complaint with a jury demand, asserting a claim for legal malpractice. The defendant 

filed a counterclaim for unpaid legal fees. When filing her answer to the defendant’s 

counterclaim, the plaintiff never requested a jury trial on that claim. Subsequently, the 

plaintiff voluntarily dismissed her complaint, leaving only the counterclaim for unpaid 

legal fees outstanding. 

{¶10} The issue before the Ohio Supreme Court was whether the plaintiff was 

entitled to a jury trial on the remaining counterclaim. The court concluded that the 

plaintiff’s general jury demand served as notice to the defendant that she intended to 

exercise her constitutional right to a jury trial. In making this determination, the court 

stated that the general demand included the defendant’s “counterclaim, which was 

compulsory, since it arose out of the same operative facts as the underlying claims in the 

complaint.” Id. at 438, citing Civ.R. 13(A). 

{¶11} In the case at bar, the trial court relied on Soler in concluding that Harper’s 

legal malpractice claim was compulsory to Anthony’s claim for unpaid legal fees. On 

appeal, Harper argues that the aforementioned language in Soler is merely dicta, that it 

need not be followed, and that “Soler has nothing to do with the application of Civ.R. 
13(A).” Appellant’s brief at 15. Harper’s position is untenable. First, in concluding 

that the defendant’s claim for legal fees was compulsory to the plaintiff’s claim for legal 

malpractice, the Soler decision explicitly applied Civ.R. 13(A). Soler at 438. Second, 

the court’s compulsory counterclaim determination was intrinsic to its holding: “[W]e 

hold that a general jury demand within a complaint applies to issues raised in a 

compulsory counterclaim even if the complaint is later voluntarily dismissed.” 

(Emphasis added.) Id. at 439. Thus, in order to apply its holding to the facts of the case, 

the Soler Court necessarily needed to determine whether the claims were compulsory 

under Civ.R. 13(A). Accordingly, we cannot agree with Harper that the language in 

question is dicta. To the contrary; Soler is dispositive. 

{¶12} Harper argues that it is inequitable to require a party to bring a legal 

malpractice claim at the same time that another party files a claim for unpaid legal fees, 

because a legal malpractice claimant may not know that his claim has arisen until after the 

trial court resolves the claim for unpaid legal fees. But Harper’s fear is unfounded, 

because a claim is compulsory under Civ.R. 13(A) only if that claim existed at the time 

that the pleading is served. Geauga Truck & Implement Co. v. Juskiewicz, 9 Ohio St.3d 

12, 14, 457 N.E.2d 827 (1984). In Ohio, courts apply the “discovery rule” to determine 

when a claim for legal malpractice accrues. Zimmie v. Calfee, 43 Ohio St.3d 54, 538 

N.E.2d 398 (1989). The claim accrues 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. 

Zimmie v. Calfee, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989), syllabus (discussing when 

the statute of limitations begins to run on a legal malpractice claim). Applying this 

definition to Civ.R. 13(A), a legal malpractice claim “exists” once the injury is 

“discovered.” It follows that a party who is served with a claim for unpaid legal fees is 

not required to bring his claim for legal malpractice if the injury is not yet discovered. 

Because a legal malpractice claim does not exist until discovered, application of Civ.R. 

13(A) does not place legal malpractice claimants at a disadvantage. 

{¶13} In this case, the record establishes that Harper’s injury was discovered no 

later than February 17, 2011, because this is the date on which Harper filed his legal 

malpractice claim against Anthony. Accordingly, Harper’s legal malpractice claim 

existed, for purposes of Civ.R. 13(A), before Anthony filed his subsequent counterclaim 

for unpaid legal fees. Although Harper knew that Anthony’s claim for unpaid legal 

fees was pending, Harper, nonetheless, dismissed his legal malpractice claim and failed to 

prosecute the claim during the pendency of Harper I. Under Civ.R. 13(A), Harper was 

barred from refiling the same legal malpractice claim in Harper II. Accordingly, we 

overrule the second assignment of error. 

{¶14} In his first assignment of error, Harper argues that, regardless of Civ.R. 

13(A), he was entitled to refile his claim in Harper II, because he had used Civ.R. 

41(A)(1)(a) in voluntarily dismissing the claim in Harper I. We disagree. 

{¶15} A voluntary dismissal pursuant to Civ.R. 41(A)(1)(a) does not operate as 
an adjudication on the merits and is without prejudice, so long as the plaintiff has not 

previously dismissed an action based on the same claim and so long as the notice of 

dismissal does not provide otherwise. See Hensley v. Henry, 61 Ohio St.2d 277, 279, 

400 N.E.2d 1352 (1980). 

{¶16} But a Civ.R. 41(A)(1)(a) dismissal does not give a plaintiff an absolute 

right to refile a claim at a later date. A plaintiff may still be barred from refiling a 

voluntarily dismissed claim by operation of other procedural rules or statutes. We have 

already determined in an earlier case that a party who voluntarily withdraws a compulsory 

counterclaim is barred from refiling the claim in a subsequent lawsuit. L.M. Lignos 

Ents. v. Beacon Ins. Co. of Am., 8th Dist. Cuyahoga No. 70816, 1997 Ohio App. LEXIS 

496, *3-4 (Feb. 13, 1997) (explaining the res judicata effect of failing to timely prosecute 

a compulsory counterclaim, and concluding that “[t]his bar operates even though a party 

has voluntarily withdrawn a compulsory counterclaim.”). A plaintiff cannot use 

voluntary dismissal as a shield from the mandatory provisions set forth in Civ.R. 13(A). 

{¶17} The Ninth District reached the same conclusion in a case factually and 

procedurally identical to the case at bar. Lenihan v. Shumaker, 9th Dist. Summit No. 

12814, 1987 Ohio App. LEXIS 6693 (May 6, 1987). In that case the court reasoned 

that: 

To hold otherwise would permit a defendant, who does not wish to have his 

compulsory counterclaim litigated in the same action as a claim against him, 

to defeat the mandatory provisions of Civ.R. 13(A) and preserve his 

counterclaim by simply filing his claim in the first action then voluntarily 

dismissing the claim without prejudice. 
Id. at *3-4, quoting Dungan v. Bryant, 9th Dist. Lorain No. 3393, 1983 Ohio App. LEXIS 

14965 (Mar. 2, 1983). Because Harper’s legal malpractice claim was compulsory to 

Anthony’s claim for unpaid legal fees, Harper was required to prosecute his claim during 

the pendency of Harper I. Although Harper was free to voluntarily dismiss the legal 

malpractice claim under Civ.R. 41(A)(1)(a), he could not refile the claim in a subsequent 

action. Accordingly, the trial court correctly granted summary judgment to Anthony in 

Harper II, and we overrule the first assignment of error. 

{¶18} The trial court’s judgment is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

__________________________________________ 

MARY EILEEN KILBANE, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., CONCURS; 

KATHLEEN ANN KEOUGH, J., CONCURS IN 

JUDGMENT ONLY