[Cite as Cain Ridge Beef Farm, L.L.C. v. Stubbins, Watson, Bryan & Witucky, LPA, 2024-Ohio-359.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MONROE COUNTY

CAIN RIDGE BEEF FARM, LLC et al.,

Plaintiffs-Appellants,

v.

STUBBINS, WATSON, BRYAN & WITUCKY, LPA,

Defendant-Appellee.

OPINION AND JUDGMENT ENTRY

Case No. 23 MO 0006

Motion to Certify a Conflict

BEFORE:

Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.

JUDGMENT:

Overruled.

Atty. Ethan Vessels, Fields, Dehmlow & Vessels, LLC, for Plaintiffs-Appellants and

Atty. Jonathan H. Krol and Atty. Steven A. Chang, Reminger Co., LPA, for DefendantAppellee.

Dated: February 1, 2024
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Case No. 23 MO 0006

PER CURIAM.

{¶1} Appellants, Cain Ridge Beef Farm, LLC et. al, move to certify a conflict. 

They contend our decision in Cain Ridge Beef Farm, LLC v. Stubbins, Watson, Bryan &

Witucky, LPA, 7th Dist. Monroe No. 23 MO 0006, 2023-Ohio-4727, conflicts with an issue 

of law set forth in the Eighth District Court of Appeals’ decisions in Vassil v. Gross &

Gross, L.L.C., 8th Dist. Cuyahoga No. 94919, 2011-Ohio-1920, and Bogart v. Gutmann, 

2nd Dist. Miami No. 2017-CA-27, 2018-Ohio-2331, 115 N.E.3d 711. Appellants’ motion 

is overruled. 

{¶2} For certification of a conflict to the Ohio Supreme Court to be proper, there 

must be conflicting decisions between appellate districts on a rule of law. Whitelock v.

Gilbane Bldg. Co., 66 Ohio St.3d 594, 598-99, 613 N.E.2d 1032 (1993). “Factual 

distinctions are not a basis for certification.” Kinderdine v. Mahoning Cty. Bd. of Dev.

Disabilities, 7th Dist. Mahoning No. 14 MA 0174, 2016-Ohio-7017, ¶ 4. Further, the

conflict of law must be dispositive of the case. State ex rel. Davet v. Sutula, 131 Ohio 

St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, ¶ 2. 

{¶3} Appellants claim the Eighth District decisions set forth a rule of law differing 

from this court’s in Cain Ridge Beef, supra, where we held: 

Although Appellants had not yet lost on the merits in a court of law and there 

was presumably the ability to recover the withheld royalty payments, this is 

not the test. The focus of the discovery rule is not when an adverse legal 

decision is rendered. 

* * * Under Ohio law, a party need not have an adverse judicial decision 

rendered against them to start a malpractice clock. 

Id. at ¶ 44-45. However, this court also emphasized that “[w]hen a cause of action for 

legal malpractice accrues is not statutorily defined and it is a fact-intensive determination.” 

Id. at ¶ 30. 

[T]he focus is not on when the negligent act or questionable legal conduct 

occurred, but on when a reasonable person should have realized an injury 

may result from his attorney's conduct. The critical question is when should 
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Case No. 23 MO 0006

Appellants have known they may have an injury caused by their attorney? 

Zimmie, syllabus. 

Id. at ¶ 34. Although we held an adverse legal decision is not required, we did not 

conclude it was irrelevant as Appellants suggest. Id. 

{¶4} Furthermore, in Vassil, the court applied the same cognizable event test

employed by this court, stating:

In Zimmie II, the Supreme Court held that a cognizable event is that 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.

* * *

Although the validity of the antenuptial agreement had been at issue for 

several years * * *, the [legal malpractice] claim for relief did not accrue until 

the court struck down the antenuptial agreement.

This ruling comports with earlier decisions which have held that it is not the 

possibility or remote chance that there has been malpractice that causes 

the claim for relief to accrue, but rather an actual adverse ruling that may 

constitute the cognizable event. * * * [T]he possibility or remote chance that 

malpractice has occurred does not constitute a cognizable event.

* * *

* * * this rule is not applied where the record demonstrates that the plaintiff 

discovered or should have discovered that his injury was related to his 

attorney's act or omission and the client is put on notice of the need to 

pursue possible remedies against the attorney. 

Vassil, supra, at ¶ 17, ¶ 23-25. While we may not agree with the application of the 

cognizable event test by the Vassil Court, it nevertheless applied the same standard. 

{¶5} In Bogart v. Gutmann, supra, the Eighth District concluded the malpractice 

claim failed for two reasons. It concluded the cause of action was not ripe since the 

plaintiff filed suit too soon. The court opined that because the underlying defendant was 

insolvent, it may not appear and defend a complaint if one were filed by Bogart, resulting 

in a default judgment. Additionally, if Bogart were to file a second lawsuit to advance the 
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Case No. 23 MO 0006

unraised cause of action, the court of appeals opined the underlying defendant could fail 

to raise res judicata as a defense. Id. at ¶ 16-18. In light of these facts, Bogart concluded 

the malpractice claim was not ripe. Id. Whether malpractice had occurred was too 

remote. 

{¶6} In addition, the court of appeals found there was no evidence showing 

Bogart had been damaged by his attorney’s alleged malpractice, i.e., the decision not to 

file a certain claim, because the underlying defendant was insolvent. Id. at ¶ 1. Bogart 

could not establish an essential element of his malpractice claim. Accordingly, the court 

found this was an independent reason to affirm summary judgment. Id. at ¶ 19-20. 

{¶7} The Eighth District decisions in Bogart and Vassil are factually 

distinguishable. Both cases apply the same rule of law to the particular facts before them. 

Because there is no conflict on an issue of law, we overrule Appellant’s motion.

JUDGE CAROL ANN ROBB

JUDGE CHERYL L. WAITE

JUDGE MARK A. HANNI

NOTICE TO COUNSEL

This document constitutes a final judgment entry.