[Cite as Felix v. Gerth Law Offices, L.L.C., 2018-Ohio-3133.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Dorothy and Austin Felix, : 

 

 Plaintiffs-Appellants, : No. 17AP-533 

 (C.P.C. No. 16CV-6553) 

v. : 

 (ACCELERATED CALENDAR) 

Gerth Law Offices, LLC et al., : 

 

 Defendants-Appellees. : 

 

 

D E C I S I O N 

Rendered on August 7, 2018 

 

On brief: Breen Law, and John E. Breen, for appellants. 

Argued: John E. Breen. 

On brief: Anspach Meeks Ellenberger LLP, John C. Nemeth, 

and David A. Herd, for appellees. Argued: David A. Herd. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, P.J. 

{¶ 1} This is an appeal by plaintiffs-appellants, Dorothy and Austin Felix, from a 

decision and entry of the Franklin County Court of Common Pleas granting summary 

judgment in favor of defendants-appellees Gerth Law Office, LLC, and Phillip W. Gerth 

(individually "attorney Gerth"), on appellants' claim for legal malpractice. 

{¶ 2} The following background facts, which are essentially undisputed, are 

drawn primarily from the trial court's summary judgment decision. On October 31, 2014, 

appellants entered into an attorney-client retainer agreement with appellees whereby 

appellees agreed to provide legal representation regarding a potential bankruptcy filing. 

On January 2, 2015, appellants filed for Chapter 7 bankruptcy, claiming a homestead 

exemption for their Ohio property. On March 7, 2015, a bankruptcy trustee filed an 
No. 17AP-533 2 

exemption objection. On March 31, 2015, appellants filed a response to the objection. 

The trustee subsequently discovered the IRS had recorded tax liens on the Ohio property 

in the wrong county; further, because the lender on that property had released its interest, 

there were no valid liens on the property. Attorney Gerth notified appellants of this 

discovery via a telephone call made prior to filing appellees' motion to withdraw as 

counsel in the bankruptcy case. 

{¶ 3} Appellants failed to pay appellees pursuant to the retainer agreement. On 

May 15, 2015, appellees notified appellants that legal representation would be terminated 

if payment was not received. On June 3, 2015, attorney Gerth sent a letter to appellants 

via e-mail and U.S. mail, notifying them that the attorney-client agreement had "reached 

its termination." Also on that date, appellees filed a motion to withdraw in the bankruptcy 

case. On July 16, 2015, the bankruptcy court entered an order granting the motion for 

withdrawal of appellants' counsel. 

{¶ 4} On July 13, 2016, appellants filed a complaint against appellees for legal 

malpractice. The complaint included allegations that the representation between the 

parties ceased on or about July 16, 2015. 

{¶ 5} On April 7, 2017, appellees filed a motion for summary judgment alleging in 

part that appellants' legal malpractice claim was barred by the applicable statute of 

limitations. On April 24, 2017, appellants filed a memorandum contra the motion for 

summary judgment. On June 19, 2017, appellants filed a motion for leave to file an 

amended complaint. On June 27, 2017, the trial court filed a decision and entry granting 

summary judgment in favor of appellees, finding appellants' claim was barred by the 

statute of limitations. 

{¶ 6} On appeal, appellants set forth the following two assignments of error for 

this court's review: 

[I.] THE LOWER COURT ERRED IN GRANTING 

SUMMARY JUDGMENT WHEN PLAINTIFFS' CLAIMS ARE 

NOT TIME BARRED AS A MATTER OF LAW. 

[II.] THE LOWER COURT ERRED IN GRANTING 

SUMMARY JUDGMENT AND DISMISSING THE ENTIRE 

CASE WHEN A MOTION TO AMEND THE COMPLAINT 

WAS PENDING BEFORE THE COURT AND NOT RULED 

UPON. 
No. 17AP-533 3 

{¶ 7} Under the first assignment of error, appellants contend the trial court erred 

in granting summary judgment in favor of appellees based on its determination that the 

legal malpractice claim was filed more than one year after the termination of the attorneyclient relationship. Specifically, appellants argue the trial court erred in holding that the 

termination date of the attorney-client relationship was June 3, 2015, the date on which 

attorney Gerth sent a letter to appellants, via e-mail and U.S. mail, advising that appellees 

were withdrawing from representation. Appellants maintain that the attorney-client 

relationship did not terminate until the federal bankruptcy court filed an entry July 16, 

2015, permitting counsel to withdraw in the bankruptcy proceeding. 

{¶ 8} This court's review of a trial court's decision on summary judgment is de 

novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 

¶ 24. Pursuant to Civ.R. 56(C) "summary judgment shall be granted when the filings in 

the action, including depositions and affidavits, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to judgment as a matter of law." Id. 

{¶ 9} R.C. 2305.11(A) states in part that "an action for malpractice * * * shall be 

commenced within one year after the cause of action accrued." In Zimmie v. Calfee, 43 

Ohio St.3d 54 (1989), paragraph one of the syllabus, the Supreme Court of Ohio held: 

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 attorneyclient relationship for that particular transaction or 

undertaking terminates, whichever occurs later. 

{¶ 10} Thus, under Ohio law, in order to determine whether the statute of 

limitations bars a legal malpractice claim, a court "must make two factual determinations: 

'(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 latter of 

these two dates is the date that starts the running of the statute of limitations.' " Virginia 

Homes, Ltd. v. Goldman, 10th Dist. No. 13AP-1012, 2014-Ohio-1750, ¶ 19. 

{¶ 11} In the present case, the trial court initially addressed the issue as to when 

the cognizable event occurred whereby appellants knew or should have known of an 
No. 17AP-533 4 

injury caused by appellees. The court held that a telephone call by counsel to appellants, 

occurring sometime prior to June 3, 2015 during which counsel notified appellants there 

were no valid liens on the subject property "was sufficient notice to investigate the facts 

and circumstances relevant to their claim." On appeal, appellants do not challenge the 

trial court's determination as to the cognizable event. 

{¶ 12} Rather, as noted, appellants assert the trial court erred in its determination 

regarding the termination date of the attorney-client relationship. Appellants maintain 

that, pursuant to a local rule of the federal bankruptcy court (Local Bankruptcy Rule 

2091-1), appellees were required to obtain permission from the bankruptcy court prior to 

withdrawing from representation.1 Appellants contend that, because the local bankruptcy 

rule obligated appellees to continue to provide representation until the federal bankruptcy 

court granted the motion to withdraw on July 16, 2015, the attorney-client relationship 

did not terminate until that date.2 We disagree. 

{¶ 13} In general, "the attorney-client relationship is consensual, subject to 

termination by the acts of either party." Axline v. Kevin R. Connors, LLC, 10th Dist. No. 

14AP-924, 2015-Ohio-4679, ¶ 14, citing Boggs v. Baum, 10th Dist. No. 10AP-864, 2011-

Ohio-2489, ¶ 19. In order to "determine whether an attorney-client relationship has 

ended, ' "courts look for a discrete act (or acts) by either party that signals the severing of 

their relationship." ' " Id., citing Cotterman v. Arnebeck, 10th Dist. No. 11AP-687, 2012-

Ohio-4302, ¶ 16, quoting Woodrow v. Heintschel, 194 Ohio App.3d 391, 2011-Ohio-1840, 

¶ 43 (6th Dist.). In this respect, "[s]uch acts include one party sending the other a letter 

stating that the attorney-client relationship is over, as well as the client's retention of 

another attorney for representation in the same matter for which the client had retained 

previous counsel." Id., citing Nichter v. Shamansky, 10th Dist. No. 14AP-811, 2015-Ohio1970, ¶ 19-20; Burzynski v. Bradley & Bradley & Farris Co., L.P.A., 10th Dist. No. 01AP782 (Dec. 31, 2001). 

 

1 Local Bankruptcy Rule 2091-1(a)(2) for the Southern District of Ohio addresses attorney withdrawal in a 

bankruptcy case and states in part that withdrawal without a client's signature shall be permitted "[u]pon 

written motion for substitution or withdrawal served upon the client, a showing of good cause and upon 

such terms as the court shall impose." 

2 Appellants also rely in part on Prof.Cond.R. 1.16(c) which states: "If permission for withdrawal from 

employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a 

proceeding before that tribunal without its permission." (Emphasis sic.) 
No. 17AP-533 5 

{¶ 14} The Supreme Court has made clear that "[f]or purposes of R.C. 2305.11, the 

termination of an attorney-client relationship is not controlled by local rules of court." 

Smith v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, ¶ 9. Rather, "[t]he date of 

termination of an attorney-client relationship for R.C. 2305.11 purposes is a fact-specific 

determination to be made according to the rules set forth by statute and by case law." Id. 

at ¶ 12. Thus, while attorneys "are required to follow local rules and must file the 

appropriate motion with a court to withdraw from representation, * * * the date of 

termination of the attorney-client relationship for purposes of R.C. 2305.11 is determined 

by the actions of the parties." Id. 

{¶ 15} Ohio appellate courts have made similar pronouncements. See, e.g., Duvall 

v. Manning, 11th Dist. No. 2010-L-069, 2011-Ohio-2587, ¶ 32-33 (applying holding in 

Conley and rejecting argument that statute of limitations did not begin to run until date 

on which trial court granted motion to withdraw; in considering the conduct of the 

parties, the attorney-client relationship ended earlier when attorney sent letter signaling 

the termination of the relationship); Wozniak v. Tonidandel, 121 Ohio App.3d 221, 227 

(8th Dist.1997) ("in a statute of limitations context the conduct of an attorney can 

terminate an attorney-client relationship prior to the filing of the notice of withdrawal"); 

Heintschel at ¶ 47 (holding that "the termination test for identifying when the relationship 

is severed focuses on affirmative conduct by the parties – the attorney or the client," and 

"[p]lainly the court is not a party"). (Emphasis sic.) 

{¶ 16} In the present case, we find no error by the trial court in its determination 

that, based on the actions of the parties, the termination date of the attorney-client 

relationship was June 3, 2015, i.e., the date attorney Gerth sent a letter to appellants 

notifying them that attorney Gerth and the law firm were withdrawing from 

representation. In that letter, attorney Gerth stated in part: "I am withdrawing any offer 

to further assist you in this matter. I consider the attorney-client agreement to have 

reached its termination." We further note that, following the notification provided by 

appellees, the parties "acted as if the attorney-client relationship had ended." Triplett v. 

Benton, 10th Dist. No. 03AP-342, 2003-Ohio-5583, ¶ 16. As noted under the facts, on the 

same date the letter was sent to appellants, appellees filed with the bankruptcy court the 

motion to withdraw from representation. Further, in the order of the bankruptcy court 
No. 17AP-533 6 

sustaining the trustee's objection to the homestead objection, the federal court cited the 

fact that, following appellees' motion to withdraw, appellants retained "their second 

bankruptcy counsel, Harry Wright, IV," who "filed an appearance on July 1, 2015." 

{¶ 17} Appellants' contention that the trial court erred in granting summary 

judgment because the attorney-client relationship did not terminate prior to the 

bankruptcy court's entry granting the motion to withdraw is inconsistent with Ohio law 

which, as noted, focuses on the conduct of the parties as opposed to a trial court ruling. 

See Duvall at ¶ 36 (interpretation urged by appellants "that the statute of limitations 

begins to run only when the court grants an attorney's motion to withdraw, directly 

conflicts with the holding of the Supreme Court of Ohio in Conley"). Similarly, appellants' 

reliance on provisions of the Ohio Code of Professional Responsibility to argue for tolling 

of the limitations period is unpersuasive. See Heintschel at ¶ 46 (noting that appellants 

cite "no authority holding that attorney compliance [with the Code of Professional 

Responsibility] is necessary before the statute of limitations can begin to run," and 

observing that the Supreme Court "has elsewhere implied that neither the disciplinary 

rules of the Code nor local court rules control the question of when the attorney-client 

relationship terminates"). 

{¶ 18} Having found the trial court did not err in its determination that appellees' 

letter and e-mail of June 3, 2015 constituted the termination date of the attorney-client 

relationship, we further conclude the trial court did not err in granting summary 

judgment in favor of appellees on grounds the legal malpractice action was barred by the 

one-year statute of limitations. Accordingly, appellants' first assignment of error is not 

well-taken and is overruled. 

{¶ 19} Under the second assignment of error, appellants contend the trial court 

erred in granting summary judgment and dismissing the entire case when a motion to 

amend the complaint was pending before the court and not ruled upon. Appellants rely 

on Ohio case law for the proposition that leave to amend a complaint should be freely 

granted when justice requires. See, e.g., Siegel v. Lifecenter Organ Donor Network, 1st 

Dist. No. C-100777, 2011-Ohio-6031, ¶ 51 ("Civ.R. 15(A) provides that a party may amend 

its pleading by leave of court and that such leave 'shall be freely granted when justice so 

requires.' "). 
No. 17AP-533 7 

{¶ 20} The record indicates appellants filed a motion for leave to file an amended 

complaint on June 19, 2017, asserting that appellees, in their motion and memoranda 

filed with the trial court, "have now admitted to violations of the Ohio Code of 

Professional Responsibility and Local Rules of the United States Bankruptcy Court, giving 

rise to new, additional and serious allegations of legal malpractice by defendants." In 

their accompanying memorandum in support, appellants argued that appellees' 

assertions that they did not provide legal representation after June 3, 2015 constituted 

conduct in violation of the local rules of the federal bankruptcy court and the Ohio Code of 

Professional Responsibility regarding the withdrawal of representation from a case. 

{¶ 21} While appellants contend the trial court failed to rule on the motion for 

leave, we note the "Court Disposition" sheet, attached to the trial court's decision and 

entry granting summary judgment in favor of appellees, references the "motion for leave" 

and indicates, under "[d]isposition," that the motion was "released" to clear the docket. 

Thus, although the motion for leave was not specifically addressed in the body of the trial 

court's summary judgment decision, the court essentially denied the motion based on its 

determination that the statute of limitations had expired. In light of our disposition of the 

first assignment of error, finding the trial court did not err in granting summary judgment 

in favor of appellees on the basis that appellants' claim was barred by the statute of 

limitations, the issue raised under the second assignment of error is rendered moot. 

{¶ 22} Based on the foregoing, appellants' first assignment of error is overruled, 

appellants' second assignment of error is rendered moot, and the judgment of the 

Franklin County Court of Common Pleas granting summary judgment in favor of 

appellees is hereby affirmed. 

Judgment affirmed. 

KLATT and HORTON, JJ., concur. 

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