DeFranco v. Judy, Nos. 2012-G-3114, 2013-G-3135: Ohio Appellate Court Affirms Summary Judgment in Legal Malpractice Action


In Massachusetts, professional negligence claims against an attorney must be filed within three years (M.G.L. c. 260 § 4). Fraud claims also have a three year statute of limitations (M.G.L. c. 260 § 2A). However, these periods do not begin to run until a client’s discovery of the actionable conduct. An Ohio appellate court has considered these issues under Ohio law and affirmed a lower court’s entry of summary judgment in favor of two attorneys in a legal malpractice case.

In DeFranco v. Judy, a woman was involved in a dispute with an Ohio county over whether a septic system on her property violated local health and zoning bylaws. In 1997, the woman hired an attorney to represent her in this matter, but he was unable to resolve the bylaw issues.
By 2004, the dispute was still ongoing, and the woman retained another attorney to represent her. The second attorney negotiated a favorable settlement, which included a future test of the septic system to determine if it was in violation. However, the woman refused to sign the agreement. The second attorney then successfully withdrew his representation. Several months later, the attorney confirmed that a test had not been performed.

In 2011, the county wrote a letter to the woman affirming that a test was never conducted. Consequently, the woman filed an action against both attorneys, alleging that they had committed malpractice and fraud by failing to ensure that the system was tested. The attorneys moved for summary judgment on the basis that the applicable statutes of limitations had expired. The trial court granted the motion and the woman appealed.

In Ohio, a legal malpractice suit must be filed within one year of a client’s discovery of an attorney’s negligent conduct. Claims for fraud must be brought within four years of the date when the fraud was discovered, or reasonably should have been discovered.

The appellate court found that the woman knew that the test had not been conducted at the time of the attempted settlement because it was specifically contemplated in the agreement. Because the woman waited over seven years to file a lawsuit, both causes of action were time barred. Therefore, summary judgment was appropriate.

Decision: DeFranco v. Judy


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