[Cite as Heuker v. Roberts, Kelly & Bucio, L.L.P., 2013-Ohio-3987.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SHELBY COUNTY 

 

LINDA HEUKER, 

 PLAINTIFF-APPELLANT, CASE NO. 17-13-09 

 v. 

ROBERTS, KELLY & BUCIO, LLP, 

ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Shelby County Common Pleas Court 

Trial Court No. 12CV000179 

Judgment Affirmed 

Date of Decision: September 16, 2013 

 

APPEARANCES: 

 

Benjamin D. Eberly for Appellant 

Paul B. Roderer, Jr. for Appellees, Roberta S. Roberts, Scott A. Kelly, 

 Roberts, Kelly & Bucio, LLP and ESB Properties 

David C. Greer for Appellee, Christopher R. Bucio 
Case No. 17-13-09 

-2- 

PRESTON, P.J. 

{¶1} Plaintiff-appellant, Linda Heuker, appeals the Shelby County Court of 

Common Pleas’ judgment granting summary judgment in favor of defendantsappellees, Roberts, Kelly, & Bucio, LLP, Christopher R. Bucio, Roberta S. 

Roberts, Scott A. Kelly, and ESB Properties (collectively “defendants”), on her 

claims stemming from Attorney Bucio’s legal representation of her during a 

felony criminal proceeding. Since Heuker’s malpractice claims are time-barred, 

we affirm. 

{¶2} On August 18, 2010, Heuker was arrested and charged with 

cultivation of marijuana in violation of R.C. 2925.04, a second-degree felony, and 

endangering children in violation of R.C. 2919.22(B)(6), a third-degree felony, 

following the execution of a search warrant at her home. (Doc. No. 31, Pg. 61); 

(Heuker Depo. at 24-25, 78). Heuker’s children sought an attorney to represent 

her, but since Heuker did not have any money, they located an attorney who would 

use land she owned as collateral for the payment of her attorney fees. (Heuker 

Depo. at 31). 

{¶3} On August 30, 2010, Heuker executed a “Formal Fee Agreement 

FLAT FEE” with Attorney Bucio of the Roberts, Kelley & Bucio law firm. (Doc. 

No. 31, Pg. 6). On the front page of the fee agreement Bucio handwrote the 

following notation: 
Case No. 17-13-09 

-3- 

Client agrees to deed land in Minster, 22.1 acres, to ESB Properties 

in exchange for full payment of legal services and bail bond 

payment. The deed of land to ESB Properties for legal services and 

third party expenses is considered paid when received. 

(Id.); (Bucio Depo. at 17-19). That same day Heuker executed a document, which 

provided the following: 

I Linda Heuker on Aug. 30, 2010 terminate the power of Attorney of 

Thomas Wing regarding the land Deeded to me for 22.2 acres. I 

hereby request my Deed to the aforementioned property be deeded 

to ESB Properties for payment of legal services. 

(Doc. No. 31, Pg. 12). Heuker also executed that same day a General Warranty 

Deed transferring ownership of the property to the law firm. (Doc. No. 1, Ex. 1); 

(Doc. Nos. 31, 39, D’s Ex. B); (P’s Ex. C). 

{¶4} On September 1, 2010, with the assistance of Attorney Bucio, Heuker 

entered a plea of guilty to one count of child endangering, and the State agreed to 

dismiss the cultivation of marijuana charge and file no additional charges 

stemming from the search warrant in exchange for Heuker’s guilty plea and her 

agreement to testify against her boyfriend and codefendant. (Doc. No. 31, Pg. 45-

46); (Doc. No. 21, D’s Ex. D). 
Case No. 17-13-09 

-4- 

{¶5} On September 29, 2010, the law firm transferred the property to ESB 

Properties. (Doc. No. 1, Ex. 3). 

{¶6} On November 1, 2010, ESB Properties transferred the property to Ted 

Riethman—who had leased the land from Heuker for several years prior to her 

criminal case—for $135,000.00. (Id., Exs. 4-5); (P’s Ex. C); (Heuker Depo. at 20-

21, 98-99). 

{¶7} On November 15, 2010, Heuker was sentenced to three years of 

community control. (Heuker Depo. at 34, 45). 

{¶8} In the weeks following her sentencing and during 2011, Heuker 

repeatedly contacted the law firm seeking a refund of any monies from the sale of 

the property above and beyond her attorney fees. (Heuker Depo. at 80, 91). 

{¶9} In August or September 2011, Heuker told a representative from the 

Ohio Attorney General’s office that she had not received a refund from the law 

firm following the sale of the property. (Id. at 80-83). 

{¶10} On October 11, 2011, Heuker filed a grievance against Bucio with 

Disciplinary Counsel for the Supreme Court of Ohio. (Doc. No. 31, D’s Ex. C). 

This grievance was dismissed on March 6, 2012. (Id., D’s Ex. H). 

{¶11} On June 5, 2012, Heuker filed a complaint in the Shelby County 

Court of Common Pleas raising twelve counts, including: Count One of legal 

malpractice for excessive fees charged and collected; Count Two of legal 
Case No. 17-13-09 

-5- 

malpractice for the failure to return unearned fees; Count Three of legal 

malpractice for violating Rule 1.8 of the Ohio Rules of Professional Conduct 

concerning a conflict of interest with regard to Attorney Bucio’s transfer of 

property rights to the law firm; Count Four of unjust enrichment for accepting 

legal fees far exceeding the value of the services rendered; Count Five of 

conversion for retaining client funds following the sale of the property; Count Six 

of fraud for concealing the true value of the property and the attorney fees from 

Heuker; Count Seven of theft for retaining the funds from the sale of the property; 

Count Eight of breach of contract concerning the legal fee; Count Nine of breach 

of fiduciary duty for failing to return funds from the sale of the land in excess of 

the legal fees per the fee agreement; Count Ten of constructive trust imposed upon 

the value of the property sold; Count Eleven of civil conspiracy to hide the value 

of the property from Heuker; and Count Twelve of punitive damages for engaging 

in a pattern of behavior demonstrating malice, aggravated or egregious fraud, 

oppression, or insult. (Doc. No. 1). 

{¶12} On July 31, 2012, defendants answered, in pertinent part, that 

Heuker’s multiple claims were all forms of legal malpractice, which were filed 

beyond R.C. 2305.11(A)’s one-year limitations period. (Doc. Nos. 11, 13). 

{¶13} On January 2, 2013, Bucio filed a motion for summary judgment 

arguing that Heuker’s complaint is barred by R.C. 2305.11(A)’s one-year statute 
Case No. 17-13-09 

-6- 

of limitations. (Doc. No. 25). On January 3, 2013, the law firm, ESB Properties, 

and Attorneys Kelly and Roberts filed a motion for summary judgment arguing 

that the law firm, as a matter of law, could not commit malpractice, Attorneys 

Kelly and Roberts did not have an attorney-client relationship with Heuker, and, 

regardless, Heuker’s claims were time-barred by R.C. 2305.11(A). (Doc. No. 39). 

{¶14} On January 22, 2013, Heuker filed a response and memorandum in 

opposition to the motion for summary judgment filed by the law firm, ESB 

Properties, and Attorneys Kelly and Roberts. (Doc. No. 42). Heuker also filed a 

response and memorandum in opposition to the motion for summary judgment 

filed by Bucio. (Doc. No. 43). On February 6, 2013, the defendants filed reply 

memoranda. (Doc. Nos. 48, 50). 

{¶15} On February 12, 2013, Heuker filed a motion for summary judgment 

for breach of the fee agreement. (Doc. No. 52). On February 21, 2013, Bucio 

filed a memorandum in opposition. (Doc. No. 55). 

{¶16} On February 27, 2013, the trial court granted Bucio’s motion for 

summary judgment, concluding that Heuker’s multiple claims fall under the 

general category of malpractice claims, and the claims were time-barred by R.C. 

2305.11(A)’s one-year limitations period. (Doc. No. 56). The trial court also 

granted summary judgment in favor of the remaining defendants based upon its 

judgment in favor of Bucio and dismissed all of Heuker’s claims. (Doc. No. 57). 
Case No. 17-13-09 

-7- 

{¶17} On March 18, 2013, Heuker filed a notice of appeal. (Doc. No. 64). 

She raises two assignments of error. We elect to address Heuker’s assignments of 

error together. 

Assignment of Error No. I 

The trial court erred as a matter of law, in calculating the one 

year statute of limitations applicable to claims of legal 

malpractice. 

Assignment of Error No. II 

The trial court erred in applying one year statute of limitations 

to claims which fall outside of legal malpractice. 

{¶18} In her first assignment of error, Heuker argues that the trial court 

erred in calculating R.C. 2305.11(A)’s limitations period to her malpractice 

claims, because Bucio failed to take any affirmative action clearly terminating his 

representation, thereby triggering the statute of limitations. Heuker further argues 

that Bucio represented her beyond her November sentencing on other non-criminal 

matters, thereby extending the time to file her malpractice claims. 

{¶19} In her second assignment of error, Heuker argues that her complaint 

is not limited to malpractice but alleges fraud, which is not governed by R.C. 

2305.11(A)’s one-year statute of limitations. Heuker argues that, contrary to his 

representations and the language of the fee agreement, Bucio retained more than 

the $30,000 fee he was entitled to for pretrial legal services. She further argues 

that, at the time she entered into the fee agreement, Bucio represented that her land 
Case No. 17-13-09 

-8- 

was worth $12,400 and, just a few days later, the law firm executed transfer 

documents indicating that the land was worth $80,000. 

{¶20} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there 

is no genuine issue of material fact, the moving party is entitled to judgment as a 

matter of law, and reasonable minds can reach but one conclusion when viewing 

the evidence in favor of the non-moving party, and the conclusion is adverse to the 

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. 

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994). 

{¶21} The determination of when a legal malpractice cause of action 

accrues for limitations purposes is a question of law reviewed de novo. Cicchini v. 

Streza, 160 Ohio App.3d 189, 2005-Ohio-1492, ¶ 17 (5th Dist.), citing Whitaker v. 

Kear, 123 Ohio App.3d 413, 420 (4th Dist.1997). 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. 
Case No. 17-13-09 

-9- 

Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 58 (1989), citing OmniFood & Fashion, Inc. v. Smith, 38 Ohio St.3d 385 (1988). A “cognizable event” is 

“an event which suffices to alert a reasonable person that his attorney has 

committed an improper act in the course of legal representation.” Whitaker at 420 

(citations omitted); Hickle v. Malone, 110 Ohio App.3d 703, 707 (3d Dist.1996). 

{¶22} Which limitations period applies is determined by the actual nature 

or subject matter of the cause rather than the form in which the complaint is styled 

or pled. Wilkerson v. O’Shea, 12th Dist. Butler No. CA2009-03-068, 2009-Ohio6550, ¶ 12. “A party cannot transform one cause of action into another through 

clever pleading or an alternate theory of law in order to avail itself of a more 

satisfactory statute of limitations.” Id., citing Love v. Port Clinton, 37 Ohio St.3d 

98, 100 (1988), Callaway v. Nu-Cor Automotive Corp., 166 Ohio App.3d 56, 

2006-Ohio-1343, ¶ 14 (10th Dist.), and Radio Parts Co. v. Invacare Corp., 178 

Ohio App.3d 198, 2008-Ohio-4777, ¶ 17 (9th Dist.). 

{¶23} “[M]alpractice consists of ‘the professional misconduct of members 

of the medical profession and attorneys.’ Such professional misconduct may 

consist either of negligence or of breach of the contract of employment[.]” Muir v. 

Hadler Real Estate Mgmt. Co., 4 Ohio App.3d 89, 90 (10th Dist.1982), quoting 

Richardson v. Doe, 176 Ohio St. 370, 372 (1964). Legal malpractice includes 

billing errors or overcharging a client for legal services. Wilkerson at ¶ 13 
Case No. 17-13-09 

-10- 

(citations omitted); Triplett v. Benton, 10th Dist. Franklin No. 03AP-342, 2003-

Ohio-5583, ¶ 7 (failure to refund client fees is malpractice governed by R.C. 

2305.11(A)’s one-year statute of limitations). 

{¶24} The subject matter of this case concerns a dispute over the attorney 

fees Bucio charged Heuker for representing her during a criminal matter. Bucio 

testified that the fee agreement provided for a $10,000 flat fee for motion-stage 

legal services, to be paid in advance, a $30,000 flat fee for pretrial legal services, 

and a $40,000 flat fee for trial services. (Bucio Depo. at 33); (Doc. No. 31, pg. 6-

11). According to Bucio, Heuker indicated that she could not afford these fees, so 

he agreed to accept 22.2 acres of farmland owned by Heuker in exchange for his 

representation throughout the criminal proceedings, the cost of Heuker’s bail 

bond, and the costs of selling the farmland. (Bucio Depo. at 31-33); (Doc. No. 31, 

Pg. 7). Bucio testified that he explained to Heuker that she would not get any 

refund from the sale of the farmland even if the case ended short of trial. (Bucio 

Depo. at 86). Heuker, on the other hand, testified that the agreement meant she 

“was putting [her] land up for like a lien. * * * it would pay for [her] legal fees, 

and whatever was left [she] would get back.” (Heuker Depo. at 42). According to 

Heuker, Bucio told her he would place a lien on the property knowing that she 

would have to sell it to pay for his fee, and she would have any remaining funds 
Case No. 17-13-09 

-11- 

from the sale. (Id. at 55-56, 58-59). Heuker also testified that Bucio agreed to use 

a portion of the proceeds from the sale of the farmland to post her bail. (Id. at 65). 

{¶25} Heuker argues that, in addition to her malpractice claim, her 

complaint raised fraud not governed by R.C. 2305.11(A)’s one-year statute of 

limitations. We disagree. During her deposition, Heuker admitted that the only 

reason she filed the complaint was due to Bucio’s failure to refund her money 

from the sale of her land after paying for his legal fees. (Id. at 96-97). In her 

words, “I know I owe them money for representing me. I have no problem paying 

what I owe but I don’t think I owed them $130,000.00.” (Id. at 48). This case is 

undoubtedly a fee dispute—a type of malpractice—governed by R.C. 

2305.11(A)’s one-year statute of limitations. Heuker cannot transform her 

malpractice claim into a fraud claim to avoid the applicable statute of limitations. 

Wilkerson at ¶ 12, citing Love, 37 Ohio St.3d at 100, Callaway, 2006-Ohio-1343, 

at ¶ 14, and Radio Parts Co., 2008-Ohio-4777, at ¶ 17. 

{¶26} With respect to Heuker’s claims that Bucio fraudulently induced her 

to enter into the fee agreement knowing the value of the land was more than he 

represented, the record indicates that, during the negotiations for legal fees, the 

parties were not certain of the exact value of the farmland. Bucio testified that 

Heuker indicated that the property was not exactly in her name or had a power of 

attorney through her ex-husband and had liens on it. (Bucio Depo. at 30). At that 
Case No. 17-13-09 

-12- 

time, Bucio had a tax or auditor’s document stating that the value of the farmland 

was $12,800, but Heuker laughed at that value and said the land was worth “a lot 

more than that.” (Id. at 58, 79). Bucio testified that Heuker opined that the 

farmland was worth around $4,000 per acre, or around $90,000 total. (Id. at 79). 

Bucio testified that he was not sure how much the farmland was worth, but he was 

confident it was worth more than $12,800, otherwise he would not have made the 

agreement. (Id. at 80-81). He testified that the price of full representation 

reflected in the fee agreement, $65,000, was taken from Heuker’s estimate that the 

land was worth $4,000 per acre. (Id. at 82). Bucio admitted that, based upon all 

their discussions, he estimated that the value of the land would be anywhere from 

$65,000 to $80,000. (Id. at 83). Bucio testified that his firm took a risk accepting 

land instead of cash for legal services since there were multiple questions 

concerning the value of the land, the outstanding liens for which Heuker was 

unable to give a value, and the power of attorney issue. (Id. at 65, 67-69). Bucio 

admitted that, in the end, the land sold for more than he expected. (Id. at 79-80). 

Heuker testified that she received the farmland as part of her divorce settlement, 

though she did not have an appraisal of the farmland at that time. (Heuker Depo. 

at 42-43). Heuker recalled Bucio indicated that the farmland was worth a low 

value, though she could not recall the exact figure, but she told him that the 

farmland was worth $100,000. (Heuker Depo. at 89). She recalled having a 
Case No. 17-13-09 

-13- 

discussion about her ex-husband having a power of attorney for her, though she 

recalled stating that her husband could sell the land for her to pay for the attorney 

fees. (Id. at 55-56, 73). 

{¶27} Based upon the record, it is clear that the parties were not certain of 

the value of the land when they entered into the fee agreement, and Bucio 

admitted that he estimated the property was worth anywhere from $65,000 to 

$80,000 based upon their discussions. There is no evidence in the record that 

Bucio concealed the value of the land from Heuker. This is not fraudulent 

inducement, and Heuker’s attempt to transform this case into something it is not is 

merely her attempt to evade R.C. 2305.11(A)’s one-year statute of limitations. 

Dzambasow v. Abakumov, the case Heuker cites in support of her fraud claim, 

does not persuade us otherwise since that case, unlike this case, involved an 

attorney who represented that he would be litigating the case and then 

subcontracted the legal work to another attorney. 8th Dist. Cuyahoga No. 86021, 

2005-Ohio-6719. 

{¶28} Heuker’s second assignment of error is, therefore, overruled. 

{¶29} Having determined that Heuker’s complaint states causes of action 

for malpractice governed by R.C. 2305.11(A)’s one-year limitations period, the 

only issue is whether the trial court correctly determined that her claims were 
Case No. 17-13-09 

-14- 

untimely filed. As a preliminary and procedural matter, however, we must dispose 

of several of Heuker’s arguments since she failed to raise them below. 

{¶30} In his motion for summary judgment, Bucio argued, in pertinent part, 

that Heuker’s claims should be classified as malpractice claims that were timebarred by R.C. 2305.11(A)’s one-year statute of limitations. (Doc. No. 25). Bucio 

argued that Heuker filed her complaint more than one year after his representation 

terminated—on November 15, 2010, the date Heuker was sentenced—and more 

than one year from February 2011 after Heuker failed to receive her yearly lease 

payment for the farmland, i.e. the cognizable event triggering the limitations 

period. (Id.). 

{¶31} In response, Heuker argued that her claims were not all malpractice 

claims barred by the statute of limitations, but rather, were also claims of unjust 

enrichment, fraud, rescission, and breach of contract. (Doc. No. 43). Heuker also 

argued that R.C. 2305.11(A)’s one-year limitations period never commenced, 

because Bucio failed to take an affirmative act terminating his representation 

giving rise to a cognizable event triggering the statute of limitations. (Id.). In 

particular, Heuker argued that Bucio never sent her a letter or billing statement 

indicating that his representation terminated following the November 15, 2010 

sentencing hearing. (Id.). 
Case No. 17-13-09 

-15- 

{¶32} On appeal, Heuker argues that R.C. 2305.11(A)’s limitation period 

was tolled in this case due to the “continuous representation” doctrine. In support 

of this theory, Heuker points to a letter she received on March 6, 2012 from Carol 

Costa, Assistant Disciplinary Counsel, dismissing her grievance against Bucio. In 

pertinent part, the letter states that: 

Ultimately, Mr. Bucio was able to negotiate a plea deal with the state 

in which you were sentenced to only probation. A few months later, 

you [Heuker] contacted Mr. Bucio again and asked if he could help 

you [Heuker] in a civil action as you were being sued for 

diminishing the value of the home you rented during the marijuana 

growth operation. Given this issue clearly stemmed from the same 

facts as the criminal matter, Mr. Bucio represented you in this matter 

without charging an additional fee. Nearly a year later, in the 

summer of 2011, you contacted Mr. Bucio again requesting legal 

services for an unrelated, serious criminal matter involving your son 

who was the defendant in a vehicular manslaughter case. You 

believed that the land transfer should have covered this 

representation as well, and Mr. Bucio reminded you that the land 

transfer was for full payment of your criminal and related matters, 

not for all future matters involving anyone else in your family. 
Case No. 17-13-09 

-16- 

(Doc. No. 31, Defendant’s Ex. H) (Emphasis added). During his deposition, 

Bucio generally agreed with Costa’s letter, except that he denied failing to return 

or ignoring Heuker’s phone calls (another portion of the letter not provided 

above). (Bucio Depo. at 15, 81). Based upon the contents of this letter and 

Bucio’s acknowledgement of their veracity, Heuker argues on appeal that Bucio’s 

representation continued into the summer of 2011; and thus, her June 5, 2012 

complaint for malpractice was not time-barred. These arguments, however, were 

not presented to the trial court, and Heuker is not permitted to raise them for the 

first time on appeal. Hood v. Rose, 153 Ohio App.3d 199, 2003-Ohio-3268, ¶ 10 

(4th Dist.). 

{¶33} Having disposed of Heuker’s procedurally-barred continuous 

representation argument with respect to Bucio’s alleged representation evidenced 

in Costa’s letter, we now must address Heuker’s argument that Bucio continued to 

represent her after the sentencing hearing for the sale of her farmland—an 

argument she did raise below. Heuker testified that she thought Bucio continued 

to represent her beyond the date of her sentencing hearing, because she did not 

know if the firm had sold the farmland, and she had not received any refund. 

(Heuker Depo. at 34-35). Bucio, on the other hand, testified that Heuker 

informed him that she saw notice of the sale in the newspaper and congratulated 

him on the sale price. (Bucio Depo. at 70). We must reject Heuker’s argument. 
Case No. 17-13-09 

-17- 

{¶34} Despite her testimony, the record clearly indicates that Heuker hired 

Bucio to represent her during the pending criminal proceedings, which particular 

representation terminated on November 15, 2010 when Heuker was sentenced. 

(Heuker Depo. at 34, 45). The fee agreement Heuker signed states that Bucio will 

represent Heuker “in a matter involving 2 counts of child endangering and one 

count of cultivating charges,” and further states that the representation will 

terminate upon completion of the matter described in the fee agreement. (Doc. 

No. 31, Pg. 6-11). The language of the agreement Heuker signed clearly indicated 

that transferring the property to ESB Properties was “full payment of legal 

services and bail bond payment” and upon receipt of the deed to the property her 

legal fees and third party expenses would be considered paid. (Doc. No. 31, Pg. 

6). Aside from that, Heuker testified that, following her November 2010 

sentencing, she sent a letter and constantly called Bucio seeking a meeting to 

discuss her refund from the sale of the property, but Bucio’s secretary would 

constantly cancel the meetings. (Id. at 80). Additionally, Heuker had constructive 

notice that her farmland was transferred from ESB Properties to Ted C. Riethman 

when the deed was filed on November 1, 2010. (Doc. No. 34, Plaintiff’s Ex. C); 

Thames v. Asia’s Janitorial Serv., Inc., 81 Ohio App.3d 579, 587 (6th Dist.1992) 

(citations omitted); R.C. 5301.25(A). 
Case No. 17-13-09 

-18- 

{¶35} Besides statutory, constructive notice from the filing of the deed, the 

record indicates that Heuker had further constructive—if not actual—notice that 

Reithman purchased the farmland by the end of February 2011 at the latest. 

Reithman was a personal friend who had farmed Heuker’s land for at least the last 

ten years. (Heuker Depo. at 19-20). Heuker and her ex-husband socialized with 

Reithman throughout their marriage—in her words, they all talked, played bean 

bags and barbequed together. (Id. at 20). According to Heuker, in November 

2010 after the sentencing hearing (and after Reithman had already purchased the 

property), she informed Reithman that she provided Bucio his name about 

purchasing the farmland. (Id. at 21-22). Despite the fact that Reithman and 

Heuker were social friends and this conversation occurred with Reithman after the 

sentencing hearing (and, therefore, after Reithman already purchased the 

farmland), Heuker testified that Reithman failed to disclose that he purchased the 

farmland. (Id.). Nevertheless, Reithman normally sent Heuker a yearly lease 

payment for farming the land in February, but she did not receive a lease payment 

in February 2011, either from Reithman or from the law firm. (Id. at 98-99). 

Notably, in her response to Bucio’s motion for summary judgment, Heuker 

admitted that, as of February 2011, she knew that Reithman was the owner of the 

farmland, which is why she did not expect a lease payment. (Doc. No. 43). 
Case No. 17-13-09 

-19- 

{¶36} In light of all of these things, the record demonstrates that Bucio’s 

representation terminated on November 15, 2010—the date of the sentencing 

hearing. Heuker’s arguments that Bucio continued to represent her for the sale of 

the farmland are not supported by the record. Using November 15, 2010 as the 

termination date for the particular representation herein, Heuker’s June 5, 2012 

complaint is well outside of R.C. 2305.11(A)’s one-year limitation period. 

{¶37} Because R.C. 2305.11(A)’s limitation period commences upon the 

later of the termination of the representation or a cognizable event, we must next 

determine when a cognizable event occurred triggering R.C. 2305.11(A)’s 

limitations period in this case. In doing so, it is important to note that a 

“cognizable event” does not require that Heuker had discovered all the relevant 

facts necessary to file her malpractice claim; rather, “the ‘cognizable event’ itself 

puts [Heuker] on notice to investigate the facts and circumstances relevant to her 

claim in order to pursue her remedies.” Flowers v. Walker, 63 Ohio St.3d 546, 

549 (1992), citing Allenius v. Thomas, 42 Ohio St.3d 131, 133-134 (1989). 

{¶38} Construing the facts in the record in a light most favorable to Heuker, 

Heuker had constructive—if not actual—notice by the end of February 2011 that 

the farmland had been sold. Given that the fee agreement states that Bucio’s 

representation ended after sentencing, in the weeks after sentencing Bucio 

allegedly cancelled multiple meetings with Heuker regarding the refund, and 
Case No. 17-13-09 

-20- 

Heuker had constructive—if not actual—notice by the end of February 2011 that 

the farmland had been sold, we conclude that Heuker’s failure to receive the 

February 2011 lease payment was the cognizable event triggering R.C. 

2305.11(A)’s one-year statute of limitations. In other words, Heuker’s failure to 

receive the February 2011 lease payment was “an event which suffice[d] to alert 

[Heuker] that [her] attorney ha[d] committed an improper act in the course of legal 

representation”—to wit: Bucio’s alleged failure to refund any money from the sale 

of the farmland after deducting his legal fees incurred from his representation 

during the criminal proceedings, which terminated on November 15, 2010. 

Whitaker at 420; Hickle, 110 Ohio App.3d at 707. 

{¶39} Heuker’s complaint was filed on June 5, 2012 more than one year 

after this February 20111

 cognizable event and, consequently, outside of R.C. 

2305.11(A)’s limitations period. Therefore, the trial court did not err in granting 

summary judgment in favor of Bucio, and in favor of the law firm on Heuker’s 

derivative claims, since Heuker’s malpractice claims were time-barred. 

{¶40} Heuker’s first assignment of error is, therefore, overruled. 

 

1

 Because the record does not indicate the precise due date of the annual lease payment, we cannot give a 

precise date in February 2011 triggering the statute of limitations. However, Heuker’s June 5, 2012 

complaint is filed several months late, even construing the limitations period in Heuker’s favor and finding 

that the limitations period commenced at the end of February 2011 (i.e. March 1, 2011). 
Case No. 17-13-09 

-21- 

{¶41} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS and SHAW, J.J., concur. 

/jlr