[Cite as Dervin & Assocs., Inc. v. Amer Cunningham Co., LPA, 2025-Ohio-4761.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DERVIN & ASSOCIATES, INC., Case No. 2025CA00004
fka CHRISTOPHER COX
INSURANCE & INVESTMENTS, INC. Opinion and Judgment Entry
Plaintiff-Appellee Appeal from the Stark County Court of
Common Pleas, Case No. 2023CV01548
-vsJudgment: Reversed in part; Affirmed in part;
AMER CUNNINGHAM CO., LPA, Final Judgment Entered
ET AL.,
Date of Judgment Entry: October 15, 2025
Defendants-Appellants
BEFORE: Craig R. Baldwin, William B. Hoffman, David M. Gormley, Appellate Judges
APPEARANCES: Laura L. Mills, Esq., Pierce C. Walker, Esq., Mills, Mills, Fiely & Lucas, LLC, for Plaintiff-Appellee; Hamilton DeSaussure, Jr., Esq., David W. Hilkert, Esq., Stark & Knoll Co., LPA, for Defendants-Appellants
OPINION
Hoffman, J.
{¶1} Defendants-appellants Amer Cunningham Co., LPA and Jack Morrison, Jr.
appeal the judgment entered following jury trial in the Stark County Common Pleas Court
awarding Plaintiff-appellee Dervin & Associates, Inc. fka Christopher Cox Insurance &
Investments, Inc. (hereinafter “the Agency”) damages of $178,500.00 on its claim for legal
malpractice, and also appeal the judgment dismissing Appellants’ counterclaim for breach
of contract pursuant to Civ. R. 12(B)(6).
STATEMENT OF THE FACTS AND CASE
{¶2} Albert Dervin and Christopher Cox were each 50% shareholders and
officers of the Agency when it was known as Christopher Cox Insurance & Investments,
Inc. Dervin initiated a lawsuit on May 6, 2019, for judicial dissolution of the Agency,
naming both Cox and the Agency as defendants. Cox hired Appellants to represent
himself personally and to represent the Agency. Dervin asserted Appellants had a conflict
of interest representing both Cox and the Agency because of Dervin’s 50% ownership of
the Agency; however, the dual representation continued.
{¶3} On October 23, 2019, Dervin filed a lawsuit alleging conversion and
misappropriation of funds against Cox, in part concerning the alleged use of corporate
funds to pay Cox’s legal fees in conjunction with the judicial dissolution action. The case
was consolidated with the dissolution suit.
{¶4} On October 24, 2019, the Agency, which was represented by Appellants,
filed a lawsuit against Dervin’s daughter and her separate agency, alleging
misappropriation of trade secrets, conspiracy, and tortious interference with business
relations.
{¶5} In January of 2023, Dervin, Cox and the Agency reached a settlement in
the consolidated dissolution and conversion case. As a part of the settlement, the
agency’s action against Dervin’s daughter was dismissed with prejudice. The dissolution
and conversion case was dismissed with prejudice on January 17, 2023.
{¶6} The Agency and Albert Dervin personally filed the instant legal malpractice
action against Appellants on August 28, 2023. Appellants filed a counterclaim for breach
of contract, alleging by filing the malpractice action, the Agency breached the terms of the
settlement agreement which released them from future liability. The trial court dismissed
the counterclaim pursuant to Civ. R. 12(B)(6).
{¶7} Appellants filed a motion for summary judgment, arguing in part the legal
malpractice action was barred by Ohio’s statute of repose for legal malpractice and by
the voluntary payment doctrine. The trial court overruled the motion.
{¶8} The case proceeded to jury trial in the Stark County Common Pleas Court.
The jury found in favor of the Agency on its claim for legal malpractice, and awarded
damages in the amount of $178,500.00. The jury found in favor of Albert Dervin on his
individual claim for legal malpractice, but awarded $0 in damages.1 The trial court entered
judgment in accordance with the jury’s verdict.
{¶9} It is from the December 12, 2024 judgment of the trial court Appellants
prosecute their appeal, assigning as error:
1 Amy Dervin and her agency were plaintiffs in the trial court, alleging abuse of process against Appellants.
The jury found in favor of Appellants. Amy Dervin and her agency are not parties to this appeal.
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN
IT FAILED TO GRANT APPELLANTS’ MOTION FOR SUMMARY
JUDGMENT BECAUSE THE AGENCY’S MALPRACTICE CLAIM WAS
BARRED BY THE STATUTE OF REPOSE.
II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN
IT FAILED TO GRANT APPELLANTS’ MOTION FOR DIRECTED
VERDICT BECAUSE THE AGENCY’S MALPRACTICE CLAIM WAS
BARRED BY THE STATUTE OF REPOSE.
III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT DENIED MORRISON’S MOTION FOR DIRECTED VERDICT
BECAUSE THE COMPLAINT WAS BARRED BY A SETTLEMENT
AGREEMENT AND RELEASE THE AGENCY SIGNED.
IV. THE AGENCY’S MALPRACTICE CLAIM IS BARRED BY THE
VOLUNTARY PAYMENT DOCTRINE AND THUS, THE VERDICT IN THE
AGENCY’S FAVOR, MUST BE REVERSED.
V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
ALLOWING AN EXPERT TO OPINE THAT AN ATTORNEY BREACHED A
DUTY OF CARE IN UNDERTAKING A DUAL REPRESENTATION WHEN
TWO COURTS HAD SPECIFICALLY AND PREVIOUSLY ALLOWED IT.
VI. THE TRIAL COURT IMPROPERLY GRANTED APPELLEE’S
12(B)(6) MOTION DISMISSING THE COUNTERCLAIMS OF MORRISON
AND AMER CUNNINGHAM FOR BREACH OF THE SETTLEMENT
AGREEMENT.
I.
{¶10} In their first assignment of error, Appellants argue the trial court erred in
overruling their motion for summary judgment, in which they argued the instant legal
malpractice action was barred by the statute of repose. We agree.
{¶11} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.
56(C), which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, 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. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that 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, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor.
{¶12} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record demonstrating the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion the non-moving party has
no evidence to prove its case. The moving party must specifically point to some evidence
which demonstrates the moving party cannot support its claim. If the moving party
satisfies this requirement, the burden shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 1997-Ohio-259, citing Dresher v. Burt, 1996-Ohio-107.
{¶13} R.C. 2305.117(A) is a statute of limitations, providing a legal malpractice
claim shall be brought within one year of the time the cause of action accrued. R.C.
2305.117(B)(1) is a statute of repose, providing no legal malpractice claim shall be
commenced more than four years after “the occurrence of the act or omission constituting
the alleged basis of the legal malpractice.”
{¶14} Statutes of repose and statutes of limitation have distinct applications.
Antoon v. Cleveland Clinic Found., 2016-Ohio-7432, ¶ 11. “Both share a common goal of
limiting the time for which a putative wrongdoer must be prepared to defend a claim.” Id.
A statute of limitations establishes “a time limit for suing in a civil case, based on the date
when the claim accrued (as when the injury occurred or was discovered).” Id., quoting
Black's Law Dictionary (10th Ed. 2014). A statute of repose bars “any suit that is brought
after a specified time since the defendant acted * * * even if this period ends before the
plaintiff has suffered a resulting injury.” Id.
{¶15} In the instant case, Appellants argue the date of the act or omission
constituting the alleged basis of the legal malpractice action was June 6, 2019, the date
on which Appellants entered an appearance on behalf of both the Agency and Cox in the
dissolution action. Because the instant legal malpractice action was filed on August 29,
2023, Appellants argue the action is barred by the four-year statute of repose for legal
malpractice.
{¶16} In overruling Appellants’ motion for summary judgment, the trial court held:
Furthermore, because the conduct giving rise to the claims herein
was not a single act or omission but was a continuing course of conduct
ongoing for a period of years, Defendants have failed to demonstrate the
absence of a genuine issue of material fact as to the precise date or dates
of the occurrences of the acts that form the basis of Plaintiffs’ claims.
{¶17} Judgment Entry, November 25, 2024, pp. 6-7.
{¶18} The Agency argues the instant action is timely, citing Zimmie v. Calfee,
Halter & Griswold, 43 Ohio St.3d 54 (1989). However, the legal analysis in Zimmie
begins, “The sole question in this appeal is whether appellant's legal malpractice action
against his attorneys, the appellees, was barred by Ohio's one-year statute of limitations.”
Id. at 56. Zimmie analyzes the application of the statute of limitations, not the statute of
repose at issue in this case. At oral argument, the Agency argued Zimmie “marries” the
statute of repose and the statute of limitations. The Agency further argued this “marriage”
of the statutes of repose and limitations was recognized by the court in Owens v. Purcel, 2024-Ohio-1514 (6th Dist.), which Appellants cite in their brief. We reject the Agency’s
argument. It is impossible for Zimmie to “marry” the statute of repose and the statute of
limitations for legal malpractice because Zimmie was decided in 1989, and the statute of
repose for legal malpractice was first enacted in 2021. Further, we find Owens v. Purcel
does not recognize Zimmie “married” the two statutes, but rather cites Zimmie while
clarifying the distinction between the statutes of repose and limitations:
Under R.C. 2305.11(A), an action for legal malpractice against an
attorney must be commenced within one year after the cause of action
accrued. The Ohio Supreme Court has applied a discovery rule to legalmalpractice claims, however. Zimmie v. Calfee, Halter & Griswold, 43 Ohio
St.3d 54, 57, 538 N.E.2d 398 (1989). Under that discovery rule, “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.” Id.
at syllabus.
In addition, effective June 2, 2021, the legislature enacted a statute
of repose, R.C. 2305.117(B), applicable to legal-malpractice claims.
Statutes of limitations and statutes of repose both limit the time for bringing
a claim, but they operate differently and target different actors. Wilson v.
Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 9-10. “A
statute of limitations establishes ‘a time limit for suing in a civil case, based
on the date when the claim accrued (as when the injury occurred or was
discovered).’” Id. at ¶ 9, quoting Black's Law Dictionary 1707 (11th Ed.
2019). It “operates on the remedy, not on the existence of the cause of
action itself.” Id., citing Mominee v. Scherbarth, 28 Ohio St.3d 270, 290, 503
N.E.2d 717 (1986), fn. 17 (Douglas, J., concurring). “Statutes of limitations
emphasize plaintiffs’ duty to diligently prosecute known claims.” Id. at ¶ 10.
“A statute of repose, on the other hand, bars ‘any suit that is brought
after a specified time since the defendant acted ... even if this period ends
before the plaintiff has suffered a resulting injury.’” Id. at ¶ 9, quoting Black's
at 1707. It “bars the claim—the right of action—itself.” Id., citing Treese v.
Delaware, 95 Ohio App.3d 536, 545, 642 N.E.2d 1147 (10th Dist. 1994). In
contrast to statutes of limitations, “[s]tatutes of repose ... emphasize
defendants’ entitlement to be free from liability after a legislatively
determined time.” Id. at ¶ 10.
{¶19} Id. at ¶¶ 10-12.
{¶20} In support of their argument the trial court erred in finding a continuing
course of conduct by Appellants extended the date on which the statute of repose began
to run, Appellants cite Tarahfields v. Wilson, 2025-Ohio-1337 (10th Dist.). In that case,
the trial court found a legal malpractice action was barred by the statute of repose
because the actions or omissions upon which the appellants based their malpractice claims occurred in 2017, and the complaint was not filed until 2022, more than four years
later. In affirming the trial court’s dismissal of the action, the court of appeals noted the
appellants alleged conduct by the attorney extending beyond 2017; however, the
allegations of post-2017 conduct did not change the fact the harm in the case arose from
the actions or omissions which occurred in 2017. Id. at ¶ 61. The court concluded there
was nothing in the actions or inactions of the attorney from 2018 forward which caused
the appellants new or additional harm. Id.
{¶21} Appellants have also cited to a case from Illinois which we find instructive
on the issue of whether a continuing course of conduct alters the date on which the statute
of repose begins to run. In Lamet v. Levin, 2015 Il. App (1st) 143105, the plaintiff argued
the attorney engaged in ongoing malpractice regarding counterclaims and defenses
raised in the underlying action. The plaintiff argued the final act of negligence occurred
in 2011. The court found the act or omission which started the clock on the statute of
repose occurred in 1994. The court held the statute of repose began to run on the date
the defendant “invaded the plaintiff’s interest and inflicted injury, and this is so despite the
continuing nature of the injury.” Id. at ¶ 20. The period of repose is not tolled by the
attorney’s ongoing duty to correct past mistakes. Id.
{¶22} In its complaint, the Agency alleged Appellants committed malpractice by
representing both the Agency and Cox in the underlying dissolution and conversion action
despite a conflict of interest between the Agency and Cox. The complaint also alleged
Appellants committed malpractice by refusing to remedy the situation after the conflict of
interest was brought to Appellants’ attention, continuing to represent both parties until the
conclusion of the lawsuit in 2023.