1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

JOSEPH P. GORSHA, et al.,

 Plaintiffs, 

 v. 

 

BERNARD E. CLARK, et al.,

 Defendants.

Case No. 2:18-cv-508 

 

Judge Graham 

Magistrate Judge Jolson 

OPINION AND ORDER 

 This matter is before the Court on Defendants Jonathan C. Clark and Clark & Clark and 

Associates, LLC’s (“Defendants Clark & Clark”) Motion for Judgment on the Pleadings. (ECF 

No. 32). Defendants Clark & Clark move this Court pursuant to Fed. R. Civ. P. 12(c) for an Order 

granting Judgment on the Pleadings and dismissing Count Six of Plaintiffs’ Complaint asserting 

legal negligence against them. (Compl. ¶¶ 60–66, ECF No. 1 at 11–12). For the reasons that 

follow, Defendants Clark & Clark’s motion is DENIED. 

I. Background 

Plaintiffs Joseph D. Gorsha, Nancy Gorsha, Damon J. Faldowski, Dianne M. Faldowski, 

Damon J. Faldowski, II, and Mark R. Faldowski (collectively “Plaintiffs”) jointly owned real 

property in Belmont County, Ohio consisting of 37.525 acres located on Sandy Ridge Road, 

Barnesville, Ohio, bearing parcel number 45.00151.000 (the “Property”). (Id. at ¶ 1, 2). In May 

2013, Plaintiffs and Defendants Bernard and Alice Clark (the “Buyers”) entered into a contract for 

the sale, of the surface rights only, of the Property (the “Real Estate Purchase Contract”). (Id. at ¶ 

2, 2). The Real Estate Purchase Contract specifically stated, “Seller is [r]eserving mineral 

[r]ights.” (Id. at ¶ 2, 2; Ex. 1, ECF No. 1-2 at ¶ 8). Prior to the sale of the surface rights to the 

Property to the Buyers, Plaintiffs entered into an Oil & Gas Lease with Rice Drilling D, LLC 
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(“Rice Drilling”) (Id., Ex. 2, ECF No. 1-3) for the Property. (Id. at ¶ 3, 3). At the time Plaintiffs 

sold the surface rights to the Buyers, Rice Drilling had not commenced production or any payment 

of royalties. (Id. at ¶ 4, 3). 

Plaintiffs’ real estate agent, Brian Bauer, retained Mid Ohio Title Agency, LLC doing 

business as Lanco Title Agency (“Lanco”), on Plaintiffs’ behalf. (Pls.’ Mem. Opp. Defs.’ Clark & 

Clark Mot. J. Pleadings 2, ECF No. 42 at 226). Lanco served as the escrow agent for the sale of 

the Property. (Compl. ¶ 14, ECF No. 1 at 5). Lanco is owned by attorney Jonathan C. Clark. (Id.). 

Mr. Clark prepared the warranty deed (the “Deed”) for the Plaintiffs’ signatures. (Id., Ex. 

4, ECF No. 1-5 at 34). The Deed did not provide for the reservation of mineral rights as agreed to 

by the parties to the Real Estate Purchase Contract. (Id. at ¶ 30, 7). The Plaintiffs signed the Deed 

on September 4, 2013. (Id., Ex. 4, ECF No. 1-5). Lanco recorded the Deed with the Belmont 

County Recorder on October 4, 2013. (Answer ¶ 6, ECF No. 16 at 73). 

Plaintiffs did not discover Mr. Clark’s error until February 4, 2018 when they inquired with 

Mr. Bauer about the upcoming expiration of the Oil & Gas Lease. (Compl. ¶ 32; ECF No. 1 at 7). 

After checking the Ohio Department of Natural Resources’ records, Mr. Bauer informed the 

Plaintiffs that the Property’s 37.525 acres were in drilling units and had been drilled by Rice 

Drilling’s subsequent purchaser, Gulfport Energy Corp. (“Gulfport Energy”), during the third 

quarter of 2016. (Id.). The Plaintiffs further discovered that Gulfport Energy paid the 

corresponding mineral production royalties to the Buyers. (Id. at ¶ 31, 7). 

On May 22, 2018, Plaintiffs commenced this action against the Buyers, Lanco, and Clark 

& Clark alleging seven causes of action. (Id.). In their sixth cause of action for legal negligence,1

 

1

 Though Plaintiffs’ complaint asserts a legal negligence claim, the Court will construe this claim as a legal malpractice 

claim since the Plaintiffs claim they suffered damages through Defendants Clark & Clark’s negligent action while 

providing legal services. 
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Plaintiffs allege that Mr. Clark provided legal services to them and was directly paid for those 

services out of the escrow funds created by Lanco for the sale of the Property. (Id. at ¶ 61, 12). 

Plaintiffs further allege that Mr. Clark owed them a duty of care commensurate with that provided 

by other Ohio attorneys, he breached that duty by failing to reserve the mineral rights in the 

Property to the Plaintiffs when he prepared the Deed, and that failure harmed the Plaintiffs when 

the mineral production royalties were paid to the Buyers instead. (Id. at ¶¶ 62–65, 12). 

II. Standard of Review 

“After the pleadings are closed—but early enough not to delay trial—a party may move 

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard applied to motions for 

judgment on the pleadings is the same standard applicable to motions to dismiss under Rule 

12(b)(6). See Hindel v. Husted, 875 F.3d 344, 346 (6th Cir. 2017). “For purposes of a motion for 

judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing 

party must be taken as true, and the motion may be granted only if the moving party is nevertheless 

clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 

2007) (internal citation and quotation marks omitted). But legal conclusions or unwarranted 

factual inferences are not accepted as true. Id. at 581–82 (citing Mixon v. Ohio, 193 F.3d 389, 400 

(6th Cir. 1999)). When considering a motion for judgment on the pleadings, a court reviews not 

only the complaint, but “matters of public record, orders, items appearing in the record of the case, 

and exhibits attached to the complaint.” Barany–Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 

2008). 

To withstand a motion for judgment on the pleadings, “a complaint must contain direct or 

inferential allegations respecting all the material elements under some viable legal theory.” 

Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The 
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factual allegations in the complaint need to be sufficient to give notice to the defendant as to what 

claims are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the legal claim 

plausible, i.e., more than merely possible.” Fritz v. Charter Township of Comstock, 592 F.3d 718, 

722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

III. Discussion 

Defendants Clark & Clark seek judgment in their favor on Plaintiffs’ claim of legal 

negligence and advance two primary arguments as to why they believe they are entitled to 

judgment on the pleadings regarding this claim. First, Defendants Clark & Clark insist no attorneyclient relationship existed between the parties. (ECF No. 32 at 158). They next aver that even if 

such a relationship had existed, Plaintiffs’ malpractice claimed is barred by the one-year statute of 

limitations under Ohio Rev. Code § 2305.11(A). (Id.). 

A. Attorney-Client Relationship 

To establish a legal malpractice claim in Ohio,2

 a plaintiff must show that: (1) the attorney 

owed a duty or obligation to the plaintiff, (2) there was a breach of that duty or obligation and that 

the attorney failed to conform to the standard required by law, and (3) there is a causal connection 

between the conduct complained of and the resulting damage or loss. Vahila v. Hall, 77 Ohio St. 

3d 421, 421–22, 674 N.E.2d 1164, 1167 (1997). Defendants Clark & Clark argue that absent an 

attorney-client relationship no corresponding duty or obligation can exist. (ECF No. 32 at 162). 

Defendants Clark & Clark contend that, “[A]n attorney-client relationship exists when an attorney 

advises others as to their legal rights, a method to be pursued, the forum to be selected, and the 

 

2

 This is a diversity action, and the Plaintiffs’ legal negligence claim is brought under Ohio law for alleged malpractice 

by an Ohio firm and an Ohio attorney. 
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practice to be followed for the enforcement of their rights.” (Id.) (quoting Toliver v. Duwel, 2012-

Ohio-846, ¶ 55 (Ct. App.)). They emphasize to the Court that the ultimate concern is “whether the 

putative client reasonably believed that the relationship existed and that the attorney would 

therefore advance the interests of the putative client.” Id. (quoting Davis v. Montenery, 173 Ohio 

App. 3d 740, 746, 880 N.E.2d 488, 492 (2007)). 

 Plaintiffs point out that Defendants Clark & Clark have the same address as Lanco, and 

that Mr. Clark serves as an agent to both the title agency and his firm. (ECF No. 42 at 229). They 

further stress that Lanco advertises that it is owned by attorney Jonathan C. Clark. (Id.). Plaintiffs 

claim that this public representation led them to believe that by engaging the services of Lanco, 

they were also engaging the legal services of Defendants Clark & Clark. (Id.). 

Plaintiffs further claim they expected the Deed to be prepared by an attorney and not Lanco, 

as preparation of a deed falls within the practice of law in Ohio. (ECF No. 42 at 234). To support 

this contention, Plaintiffs highlight the Supreme Court of Ohio’s decision in Disciplinary Counsel 

v. Jones where the court declared, “‘The practice of law embraces the preparation of legal 

documents on another’s behalf, including deeds which convey real property.’ The preparation of 

deeds for another constitutes the practice of law.” 138 Ohio St. 3d 330, 331–32, 6 N.E.3d 1159, 

1160–61 (2014) (quoting Disciplinary Counsel v. Doan, 77 Ohio St. 3d 236, 237, 673 N.E.2d 1272 

(1997). Plaintiffs further aver that to avoid engaging in the unauthorized practice of law, Lanco 

had to retain an attorney on their behalf to prepare the Deed. (ECF No. 42 at 234–35). Plaintiffs 

point to the portion of the Deed bearing Defendant Clark & Clark’s names next to “This instrument 

prepared by:” as confirmation of this belief. (Id. at 229; ECF No. 1-5 at 34). Plaintiffs emphasize 

that despite the Settlement Statement (HUD-1) notation of their document preparation payment to 

“Lanco Title Agency” (Answer, Ex. A, ¶ 1113, ECF No. 16 at 85), Lanco could not keep such a 
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fee for a document it could not legally prepare and was instead obligated to give that payment to 

Defendants Clark & Clark as the actual preparers of the Deed. (ECF No. 42 at 235). Plaintiffs 

insist that as the owner and agent of the title agency, Mr. Clark served multiple roles during the 

real estate transaction, and that they contracted with Defendants Clark & Clark for the preparation 

of the Deed and not with Lanco. (Id. at 234). 

Defendants Clark & Clark maintain that Mr. Clark only served as an agent of the title 

agency and did not serve as the Plaintiffs’ attorney. (ECF No. 45 at 254). While Defendants Clark 

& Clark acknowledge Mr. Clark’s dual role as both the owner and agent of the title agency, they 

contend that Defendants Clark & Clark did not charge the Plaintiffs for the preparation of the Deed 

(ECF No. 32 at 160), and that Mr. Clark’s wearing of “multiple hats” is immaterial to the Plaintiffs’ 

malpractice claim. (ECF No. 45 at 254). 

Ohio case law is helpful in distinguishing between the roles of escrow agent and attorney 

during a transaction. “Ordinarily, the positions of escrow agent and attorney . . . are separate, 

distinct, and mutually exclusive.” Folino v. Brown, No. 15619, 1996 Ohio App. LEXIS 3132, at 

*6 (Ct. App. July 12, 1996) (citing Saad v. Rodriguez, 30 Ohio App. 3d 156, 506 N.E.2d 1230 

(1986). The primary function of an escrow agent is to “hold documents and funds until the 

conditions of the purchase agreement are met whereupon the escrow agent releases the documents 

and funds.” Saad, 506 N.E.2d at 1233 (citing Pippin v. Kern-Ward Bldg. Co., 8 Ohio App. 3d 196, 

456 N.E. 2d 1235 (1982); Squire v. Branciforti,131 Ohio St. 344, 2 N.E.2d 878 (1936); Gove v. 

Jablonski, No. 48411, 1985 Ohio App. LEXIS 5743 (Ct. App. Feb. 7, 1985)). The escrow agent 

thus serves as a fiduciary agent for both parties to an agreement. Id. The attorney, on the other 

hand, represents only one party to the agreement and serves as a fiduciary agent to his or her client 
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based on the attorney-client relationship. Id. at 1233–34. The roles of escrow agent and attorney 

are therefore “distinct and mutually exclusive.” Id. at 1233. 

Despite the “distinct and mutually exclusive” roles of the escrow agent and attorney to a 

transaction, the Saad court acknowledged the possibility that an attorney and his or her firm may 

act in a dual capacity as attorneys for one of the parties and as escrow agent for both parties. Id. 

Here, Defendants Clark & Clark argue that Lanco was retained for the benefit of both the Plaintiffs 

and the Buyers. (ECF No. 45 at 254). Moreover, Defendants Clark & Clark claim they prepared 

the Deed on behalf of Lanco, and that Lanco is not in privity with the Plaintiffs. (Id.). They further 

insist that they never acted as the Plaintiffs’ attorney, as they never advised the Plaintiffs as to their 

legal rights, and the Plaintiffs have failed to indicate that Defendants Clark & Clark ever engaged 

in any communication with them. (ECF No. 32 at 163). 

Plaintiffs assert that an attorney-client relationship can be implied from the conduct of the 

attorney and the expectations of the client. (ECF No. 42 at 236) (citing Davis v. Montenery, 173 

Ohio App. 3d 740, 746, 880 N.E.2d 488, 492 (2007). Like the plaintiff in Davis, the Plaintiffs in 

the case at issue contend that although they may not have contacted Defendants Clark & Clark 

directly to represent them, they expected Mr. Clark to prepare the Deed, and Mr. Clark’s conduct 

in preparing the Deed conformed to their client expectations. (ECF No. 42 at 236). 

The Plaintiffs also rely on a Florida decision to analogize to the present case. In JBJ Inv. 

of S. Fla., Inc. v. S. Title Grp., Inc., the Florida court determined that, “The consultation 

requirement [is] met when an agent of the client consults with an attorney on the client’s behalf.” 

251 So. 3d 173, 178 (Fla. Dist. Ct. App. 2018). In the Florida case, the plaintiff wanted an attorney 

to prepare loan documents. Id. at 179. His title agent contacted an attorney on his behalf and hired 

that attorney to prepare a note and mortgage for a fee. Id. Under these facts, the Florida court 
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found that since the attorney was hired by the plaintiff’s title agent, rendered legal services, and 

billed for those services, a reasonable jury could find that an attorney-client relationship existed 

between the plaintiff and the attorney by virtue of the title agent consulting with the attorney in 

her capacity as the plaintiff’s agent and referring to that attorney the work of preparing the loan 

documents. Id. Here, the Plaintiffs argue that the consultation requirement was met when Lanco 

acted as their agent by arranging for Defendants Clark & Clark to provide legal services by 

preparing the Deed, Defendants Clark & Clark prepared the Deed, and the Plaintiffs paid a 

document preparation fee that ultimately went to Clark & Clark. (ECF No. 42 at 237). 

Though the extent of the relationship between Defendants Clark & Clark and the Plaintiffs 

remains unclear, the Court finds that the Plaintiffs have pleaded sufficient facts to support a 

plausible legal malpractice claim against Defendants Clark & Clark. Plaintiffs’ complaint contains 

both direct and inferential allegations respecting the material elements of a legal malpractice claim 

under Ohio law. (Compl. ¶¶ 60–66, ECF No. 1 at 11–12). Plaintiffs allege Defendants Clark & 

Clark owed them a duty of care, subsequently breached that duty when Mr. Clark failed to reserve 

Plaintiffs’ mineral rights in the Deed, and that a causal connection exists between the conduct 

complained of and the resulting damage or loss. (Id.). Plaintiffs’ allegations allow the Court to 

draw the reasonable inference that Defendants Clark & Clark may be liable for the misconduct 

alleged. Therefore, Defendants Clark & Clark are not clearly entitled to judgment as a matter of 

law on Plaintiffs’ legal malpractice claim. 

B. Statute of Limitations 

Defendants Clark & Clark further urge the Court to consider that even if an attorney-client 

relationship existed, Plaintiffs have run afoul of the statute of limitations for a legal malpractice 

claim, and their claim must be dismissed. (ECF No. 32 at 164, 166). Under Ohio Rev. Code § 
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2305.11(A), the statute of limitations for a legal malpractice claim is one year. Defendants Clark 

& Clark argue that the Plaintiffs’ cause of action accrued on September 4, 2013 when the Deed 

was executed and expired a year later on September 4, 2014. (ECF No. 32 at 164). Thus, they 

argue, Plaintiffs’ legal malpractice claim is time-barred. (Id.). 

In Ohio, a cause of 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.” 

Werts v. Penn, 164 Ohio App. 3d 505, 508, 842 N.E.2d 1102, 1105 (2005). “A ‘cognizable event’ 

is an event that places a reasonable person on notice that a ‘questionable legal practice may have 

occurred,’” which may necessitate legal action against the attorney. Id. at 510, 1106. 

 Plaintiffs claim that when they signed the Deed on September 4, 2013, they had no reason 

to believe that a questionable legal practice may have occurred. (ECF No. 42 at 240). Plaintiffs 

further assert that they could not have reasonably discovered their injury until they were notified 

by their realtor that the Deed did not reserve their mineral rights as specified in the Real Estate 

Purchase Contract. (Id.). Plaintiffs highlight the Supreme Court of Ohio’s decision in Zimmie v. 

Calfee, Halter & Griswold to support their contention, where the court found that the cognizable 

event in that case did not occur on the date the deficient document was signed, but instead occurred 

on the date the document was declared invalid. (Id. at 240–41 citing Zimmie, 43 Ohio St. 3d 54, 

58, 538 N.E.2d 398, 402 (1989)). Only then, the Plaintiffs explain, did the Supreme Court of Ohio 

determine that the plaintiff was put on notice to pursue possible remedies against the drafters of 

the agreement. (Id. at 241). 
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Plaintiffs argue that these circumstances are also present in this case. (Id.). Plaintiffs allege 

that they were not put on notice of a need to pursue possible remedies against Defendants Clark & 

Clark until they learned that the Deed failed to reserve their mineral rights. (Id.). They therefore 

maintain that their legal malpractice action did not accrue until February 4, 2018, and that by filing 

this action on May 22, 2018, they adhered to the one-year statute of limitations set forth in Ohio 

Rev. Code § 2305.11(A). (Id. at 226). 

While the date on which the Plaintiffs should have discovered Mr. Clark’s error remains at 

issue, the Court finds that the Plaintiffs have pleaded sufficient facts supporting their contention 

that under the discovery rule, their legal malpractice claim is not time-barred. As such, their claim 

will not be dismissed on Defendants Clark & Clark’s Motion for Judgment on the Pleadings. 

IV. Conclusion

A motion for judgment on the pleadings may be granted only if the moving party is clearly 

entitled to judgment as a matter of law. Here, Defendants Clark & Clark are not clearly entitled 

to judgment on Plaintiffs’ legal malpractice claim. Plaintiffs have pleaded sufficient factual matter 

to not only render their claim possible, but to also support their contention that their claim was 

timely filed. Accordingly, Defendants Clark & Clark’s Motion for Judgment on the Pleadings as 

to Count Six of Plaintiffs’ Complaint (ECF No. 32) is DENIED. 

IT IS SO ORDERED. 

 /s/ James L. Graham 

 JAMES L. GRAHAM 

 United States District Judge 

DATE: March 7, 2019