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Statute of Limitations on Legal Malpractice Claim Runs from Last Action

On May 26, 2023, the Ohio Court of Appeals for the Sixth Appellate District decided Kaltenbach v. Wasserman. Keith Kaltenbach was sued for allegedly breaching his duty under a power of attorney, engaged in undue influence and unlawfully converting portions of her real property and money. After he was sued, Keith met with attorney Wasserman to discuss defending the case. Keith retained Wasserman and executed a fee agreement.

Keith was extremely concerned with the cost of the litigation and wanted to keep defense costs low. To accomplish that, Keith agreed to mediation as a way to pause the litigation. Keith also agreed to personally perform tasks such as organizing and furnishing documents to his attorney. The case was settled at mediation for $5,000 plus Keith’s agreement to relinquish certain items of personal property.

Later, Keith filed a malpractice action against Wasserman. Apparently he was unhappy because his aunt, a codefendant, only paid $2,500 to settle claims against her while Keith paid $5,000. Keith filed the malpractice action on December 10, 2020. Wasserman and his law firm filed a motion for summary judgment, arguing the action was time-barred. The limitations period in Ohio is one year for legal malpractice actions. Although Keith continued corking on the case on his own, and used documents prepared by Wasserman’s firm to close a probate estate involved in the litigation, Wasserman’s last action was on November 25, 2019, when he prepared the last statement and his staff emailed it to Keith for signature. Wasserman argued that Keith’s pro-se action after November 19, 2019 was additional evidence that the attorney-client relationship had ended, citing Kalski v. Bartimole, 157 N.E.3d 436. There was also evidence that Keith’s wife requested a final bill on December 9, 2019, showing that Keith thought the relationship terminated no later than December 9, 2019.

On appeal, the Court found that Keith’s claim centered on his dissatisfaction with the terms of the mediated settlement. The mediation occurred on August 15, 2019, so he should have known from that date about his potential claim. The underlying litigation was dismissed on November 15, 2019, and the last invoice, received on December 9, 2019, showed that Wasserman’s last action on the file took place on November 25, 2019. Although the question of whether and when an attorney-client relationship terminates is ordinarily a jury issue, the evidence was clear that, at the latest, the relationship terminated on December 9, 2019 when the final invoice for legal services was requested and provided to Keith’s wife. The court found the evidence was clear and unambiguous. Summary judgment in favor of Wasserman was affirmed.


Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 538 N.E.2d 398 (1989)

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