Opinion
No. 107669
05-23-2019
PURUSHEALTH, L.L.C., Plaintiff-Appellant, v. DAY KETTERER, L.L.P., et al., Defendants-Appellees.
The Ondrejech Law Firm, L.L.C., and Mark S. Ondrejech, Rocky River, for appellant. Nicola, Gudbranson & Cooper, L.L.C., Richard G. Witkowski, and R. Christopher Yingling, Cleveland, for appellees.
The Ondrejech Law Firm, L.L.C., and Mark S. Ondrejech, Rocky River, for appellant.
Nicola, Gudbranson & Cooper, L.L.C., Richard G. Witkowski, and R. Christopher Yingling, Cleveland, for appellees.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, P.J.:
{¶ 1} Plaintiff-appellant, Purushealth, L.L.C. ("Purushealth"), appeals the trial court's order granting the motion to dismiss filed by defendants-appellees, Day Ketterer, L.L.P. ("Day Ketterer"), John Murphy, Robert Roland, and Alex McCallion, Jr. Purushealth raises three assignments of error for our review:
1. The trial court erred in granting the defendant[s]-appellees' rule 12(B)(6) motion to dismiss as to count 1 of the first amended complaint as untimely under R.C. 2305.11 because the legal malpractice
claim was voluntarily dismissed and timely re-filed in accordance with the savings statute, which is R.C. 2305.19.
2. The trial court erred by granting the DK Defendants' motion to dismiss as to plaintiff's breach of fiduciary duty claims in counts 2 and 3 because they were timely filed under the 4-year statute of limitations for breach of fiduciary duty claims.
3. The trial court erred by dismissing counts 2 and 3 of the amended complaint as untimely as against the Defendant Day Ketterer Law Firm because agency law permits Day Ketterer to be held liable directly on a breach of fiduciary claim regardless of whether the responsible lawyers have been joined.
{¶ 2} Finding no merit to its assignments of error, we affirm.
I. Procedural History and Factual Background
{¶ 3} On April 21, 2016, Purushealth, represented by Chocken & Welling L.L.P. and John D. Gugliotta (collectively "CWG"), filed a complaint for legal malpractice against Day Ketterer and John Does 1 through 100 in Cuyahoga C.P. No. CV-16-862237. The claims arose out of Day Ketterer's representation of Purushealth in previous litigation concerning the negotiation of a promissory note and security agreement between Purushealth and one of its creditors, Belmont Confections ("the Belmont Case"). According to the complaint, Day Ketterer attorneys failed to negotiate in Purushealth's interests and concealed a conflict of interest in that case. Specifically, Purushealth alleged that Day Ketterer had competing interests because it also represented another client in that litigation, who allegedly owned a separate company that sought to obtain Purushealth's secured assets.
In Case No. CV-16-862237, Purushealth identified itself in the complaint as "PurUS Health." For purposes of this appeal, we will only refer to it as "Purushealth."
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{¶ 4} Attached to Purushealth's complaint against Day Ketterer and John Does were two letters from Day Ketterer attorney Murphy regarding the Belmont Case's settlement; emails between Murphy and John Huff, Purushealth's chief executive officer at the time; and emails from Day Ketterer attorneys Alex McCallion and Robert Roland regarding the Belmont Case. Murphy, McCallion, and Roland, however, were not named as defendants in Purushealth's complaint.
{¶ 5} Day Ketterer answered the complaint in June 2016.
{¶ 6} In May 2017, Day Ketterer moved for a judgment on the pleadings, arguing that Purushealth's claim for legal malpractice against it failed as a matter of law because Purushealth failed to name the Day Ketterer attorneys who were allegedly negligent despite knowing the attorneys' names and because "a law firm does not engage in the practice of law and cannot commit legal malpractice." Purushealth opposed the motion and filed for leave to file a first amended complaint in May 2017.
{¶ 7} In June 2017, Purushealth voluntarily dismissed its complaint. Purushealth terminated CWG's representation in September 2017.
{¶ 8} On May 4, 2018, Purushealth refiled a complaint against Day Ketterer and now included Murphy, Roland, and McCallion as defendants. As to Day Ketterer, Purushealth alleged that Day Ketterer and its attorneys committed legal malpractice, breached their fiduciary duties, and that Day Ketterer was vicariously liable for those actions.
{¶ 9} The complaint also included claims for legal malpractice and breach of fiduciary duty against CWG and its attorneys regarding the handling of Purushealth's original case against Day Ketterer and John Does.
{¶ 10} Day Ketterer and its attorneys moved to dismiss the complaint, arguing that Purushealth's claims against the attorneys were time-barred and the claims against Day Ketterer could not be maintained without an actionable malpractice claim against its attorneys.
{¶ 11} On June 7, 2018, Purushealth filed a first amended complaint, which amended its vicarious-liability claim to a claim of breach of fiduciary duty against Day Ketterer "directly."
{¶ 12} Day Ketterer and its attorneys moved to dismiss the first amended complaint, again arguing that Purushealth's claims were time-barred because they were claims for legal malpractice, not breach of fiduciary claims, and that Day Ketterer could not be held vicariously liable for those claims and could not be sued for legal malpractice directly. Purushealth opposed the motion.
{¶ 13} In August 2018, the trial court granted the motion to dismiss, stating:
Plaintiff's claims for breach of fiduciary duty, as alleged in counts 2 and 3 of its amended complaint, arise out of the manner in which Murphy, Roland, McCallion, and the DK Firm represented Plaintiff. Therefore, the court finds plaintiff's breach of fiduciary duty claims subsume into its claim for malpractice and are subject to the statute of limitations for the filing of a legal malpractice action.
* * *
Plaintiff's original malpractice action was filed within the statute of limitations as to the DK Firm, but it named fictitious defendants John Does 1 through 100 instead of naming the firm's individual attorneys. Therefore, to maintain a malpractice action against Murphy, Roland, or McCallion, the claims against them must be saved by operation of the savings statute; otherwise, the claims are time-barred by the statute of limitations.
After reviewing the relevant language under Civ.R. 3 and 15(C) and (D), the trial court found that Purushealth "did not meet the requirements of Civ.R. 15(C) and (D) [,]" because it failed "to amend its pleading to correct fictitiously named defendants within one year of filing its complaint * * * and to attempt to commence an action against Murphy, Roland, and McCallion by failing to issue personal service against them within one year of filing its complaint." The trial court noted that "[t]he record also indicates Murphy, Roland, and McCallion were not unknown to Plaintiff at the time of filing and, indeed, Plaintiff alleges Murphy and Roland were deposed within one year of the filing." The trial court concluded that Purushealth could not "avail itself of the savings statute set forth in R.C. 2305.19 [,] and its claims for legal malpractice against Murphy, Roland, and McCallion are time-barred[.]"
{¶ 14} Turning to the claims against Day Ketterer, the trial court found that they failed "as a matter of law because [Purushealth] cannot maintain an action for legal malpractice directly against the firm, nor can it hold the law firm vicariously liable for the alleged malpractice of its attorneys where the claims against those individual attorneys are time-barred." As a result, the trial court dismissed plaintiff's claims against Day Ketterer and its attorneys with prejudice.
{¶ 15} It is from this judgment that Purushealth now appeals.
II. Law and Analysis
A. Standard of Review
{¶ 16} We review a trial court's order dismissal for failure to state a claim upon which relief can be granted de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.
{¶ 17} "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). It is well settled that "when a party files a motion to dismiss for failure to state a claim, all factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party." Byrd v. Faber , 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991), citing Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 532 N.E.2d 753 (1988).
{¶ 18} While the factual allegations of the complaint are taken as true, "[u]nsupported conclusions of a complaint are not considered admitted * * * and are not sufficient to withstand a motion to dismiss." State ex rel. Hickman v. Capots , 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). In light of these guidelines, for a court to grant a motion to dismiss for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
{¶ 19} With this standard in mind, we turn to Purushealth's three claims against Day Ketterer and its attorneys.
B. Legal Malpractice Claim
{¶ 20} In its first assignment of error, Purushealth argues that the trial court erred in dismissing its legal malpractice claim against Day Ketterer attorneys Murphy, Roland, and McCallion because that "claim was voluntarily dismissed and timely re-filed in accordance with the savings statute, which is R.C. 2305.19."
{¶ 21} Under Civ.R. 3(A), a party commences an action when a complaint is filed with the court and a defendant is served with that complaint within one year thereafter. The statute of limitations for a claim of legal malpractice is one year "after the cause of action accrued." R.C. 2305.11(A).
Accrual occurs at the later of either (1) the occurrence of "a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney's acts or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney" or (2) "when the attorney-client relationship for that particular transaction or undertaking terminates."
Dottore v. Vorys, Sater, Seymour & Pease, L.L.P. , 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25, 2014 WL 72538, ¶ 56, quoting Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 538 N.E.2d 398 (1989).
{¶ 22} Here, the trial court found that the cause of action accrued on June 18, 2015, which it stated was the date that Purushealth learned of the alleged wrongful transfer caused by Day Ketterer. In its first amended complaint, Purushealth stated that it learned of the transfer on June 18, 2015, via letters from Day Ketterer attorneys. Purushealth does not challenge the trial court's factual finding regarding the accrual date on appeal. Therefore, Purushealth had until June 18, 2016, to file a complaint for legal malpractice against Day Ketterer and its attorneys.
{¶ 23} To reiterate, Purushealth, represented by CWG, filed its original complaint against Day Ketterer and John Does on April 21, 2016. In May 2017, Day Ketterer moved for a judgment on the pleadings, arguing that Purushealth failed to timely assert a claim for legal malpractice against any of its attorneys and, therefore, could not maintain claims against Day Ketterer. Purushealth dismissed that complaint against Day Ketterer in June 2017. In May 2018, Purushealth sued Day Ketterer, Murphy, Roland, and McCallion.
{¶ 24} Purushealth argues that its legal malpractice claim is not time-barred against Murphy, Roland, and McCallion under the relation-back provisions of Civ.R. 15(C) and the savings statute, R.C. 2305.19.
{¶ 25} Civ.R. 15, which concerns amending and supplementing pleadings, allows a plaintiff to file a complaint against unknown defendants and later amend that complaint when the name of the unknown defendant is discovered.
{¶ 26} "When a plaintiff files an amended complaint pursuant to Civ.R. 15(D) and the applicable statutory time limit has expired, the determination of whether service has been properly effected on the formerly fictitious, now identified, defendant requires Civ.R. 15(D) to be read in conjunction with Civ.R. 15(C)." LaNeve v. Atlas Recycling , 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 9. Those subsections of Civ.R. 15 provide in pertinent part:
(C) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
(D) When the plaintiff does not know the name of a defendant , that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant.
(Emphasis added.)
{¶ 27} Before determining whether the relation-back provisions of Civ.R. 15(C) apply, courts must first determine whether a plaintiff can meet the specific requirements set forth in Civ.R. 15(D). LaNeve at ¶ 11. As set forth above, those specific requirements include that (1) the summons contain the words "name unknown[,]" (2) the summons be personally served upon the formerly fictitious, and now identified, defendant, and (3) the complaint aver that the plaintiff could not discover the name of the unknown defendants.
{¶ 28} Further, " Civ.R 15(D) provides that a plaintiff may designate a defendant in a complaint by any name and description when the plaintiff does not know the name of that party. Thus, [the rule] does not permit a plaintiff to designate a defendant by a fictitious name when the plaintiff actually knows the name of that defendant." (Emphasis sic.) Erwin v. Bryan , 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 23. " Civ.R. 15(D) does not authorize a claimant to designate defendants using fictitious names as placeholders in a complaint filed within the statute-of-limitations period and then identify, name, and personally serve those defendants after the limitations period has elapsed." Id. at ¶ 30.
{¶ 29} Here, Purushealth failed to comply with Civ.R 15(D). Purushealth knew the names of the Day Ketterer attorneys that allegedly committed malpractice when it filed its first action. Attached to Purushealth's initial complaint was evidence that clearly identified Roland, McCallion, and Murphy as attorneys who represented Purushealth and took actions on its behalf. Further, in its first amended complaint, Purushealth stated that it deposed Murphy and Roland as part of discovery in the original malpractice case in April 2017, before the statute of limitations expired for its malpractice claim. Because Purushealth knew the Day Ketterer attorneys' names, it could not designate them as "John Doe defendants" in the original complaint. See Erwin at ¶ 33 (because the plaintiff knew the defendant's name, "she did not have the option to designate him as a John Doe defendant in the original complaint[.]").
{¶ 30} Further, assuming for the sake of argument that Purushealth did not know the Day Ketterer attorneys' names, it still failed to allege in its original complaint that it could not discover the identities of the John Does. Its complaint simply stated that Purushealth was "ignorant of the true names and capacities of the Defendants sued herein as DOES 1 through 100[.]" Purushealth also failed to include "name unknown" on the summons to the John Does and personally serve the John Does with summonses within a year of filing the complaint.
{¶ 31} Purushealth argues that even though Murphy, Roland, and McCallion were "not served in the original case, [they] nevertheless had knowledge that they were targets of the lawsuit[.]" However, "it is an established principle that actual knowledge of a lawsuit's filing and lack of prejudice resulting from the use of a legally insufficient method of service do not excuse a plaintiff's failure to comply with the Civil Rules." LaNeve , 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, at ¶ 23.
{¶ 32} Because Purushealth failed to comply with Civ.R. 15(D), neither Civ.R. 15(C)'s relation-back provisions nor the savings statute apply. Erwin, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, at ¶ 35 ; Laneve at ¶ 24.
{¶ 33} Purushealth nonetheless argues that R.C. 2305.19, the savings statute, applies because it "attempted to commence" its legal malpractice claim against the attorneys within the one-year statute of limitations by identifying the attorneys as John Does.
{¶ 34} However, R.C. 2305.19 "does not apply when the parties and relief sought in the new action are different from those in the original action." Children's Hosp. v. Ohio Dept. of Pub. Welfare , 69 Ohio St.2d 523, 433 N.E.2d 187 (1982), paragraph one of the syllabus. Purushealth did not file an action against Roland, Murphy, or McCallion before the one-year statute of limitations term expired; instead, its action was only filed against John Doe defendants that are different parties than the identified attorneys. Therefore, Purushealth did not "attempt to commence" an action against the attorneys because it voluntarily dismissed its original complaint without moving to amend or actually naming the attorneys in that action. Therefore, Purushealth cannot rely on the relation-back provisions or the savings statute to assert its claims against Roland, Murphy, or McCallion. See Kruzer v. Cleveland , 8th Dist. Cuyahoga No. 97168, 2012-Ohio-1197, 2012 WL 986471, ¶ 5 ("Kruzer did not commence this action against the John Doe defendants before voluntarily dismissing it. Kruzer could not rely on the savings statute to assert claims against Gardiner Trane Company because the savings statute only applied ‘when the original suit and the new action are substantially the same.’ "); Griesmer v. Allstate Ins. Co. , 8th Dist. Cuyahoga No. 91194, 2009-Ohio-725, 2009 WL 406558, ¶ 36 ("If the couples had sought leave to amend to name Allstate as a defendant in their first lawsuit, the amendment would have related back to the time of the original filing of the action. * * * But they chose to voluntarily dismiss their complaint after the statute of limitations had expired without ever naming or service Allstate.").
{¶ 35} While
"[t]he spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies[,]" * * * there is no authority to subject a party in whose favor the statute of limitations has run to liability in a second lawsuit after dismissing an earlier lawsuit in which that party was neither originally named as a party defendant nor made so by amendment.
Dietrich v. Widmar , 8th Dist. Cuyahoga No. 85069, 2005-Ohio-2004, 2005 WL 991715, ¶ 11, quoting Hardesty v. Cabotage , 1 Ohio St.3d 114, 438 N.E.2d 431 (1982).
{¶ 36} Accordingly, the trial court correctly found that Purushealth's legal malpractice claim against Roland, Murphy, or McCallion was time-barred, and we overrule Purushealth's first assignment of error.
C. Breach of Fiduciary Claims
{¶ 37} In its second and third assignments of error, Purushealth argues that the trial court erred in dismissing its claims for breach of fiduciary duty against Day Ketterer and its attorneys because (1) it timely filed those claims within the four-year statute of limitations for claims of breach of fiduciary duty, and (2) agency law permits Day Ketterer to be held liable directly on a breach of fiduciary claim regardless of whether the responsible lawyers have been joined.
{¶ 38} Foremost, "in Ohio, a claim against an attorney acting in his professional capacity is a malpractice claim. Ohio does not recognize an independent claim for breach of fiduciary duty against an attorney acting in his capacity as attorney and counselor." Omega Riggers & Erectors, Inc. v. Koverman , 2d Dist. Montgomery, 2016-Ohio-2961, 65 N.E.3d 210, ¶ 32.
{¶ 39} Second, we determine the applicable statute of limitations from the "gist of the complaint" and "not from the label that a party may assign to a set of facts." Dottore , 8th Dist. Cuyahoga No. 98861, 2014-Ohio-25, ¶ 35. "When the gist of the complaint sounds in malpractice, the other duplicative claims, even those labeled as fraud and breach of contract, are subsumed within the legal-malpractice claim." Id. Those claims will be subsumed into a claim for malpractice when they arise "out of the ‘manner in which the attorney represented the client.’ " Id. at ¶ 37, quoting Muir v. Hadler Real Estate Mgt. Co. , 4 Ohio App.3d 89, 446 N.E.2d 820 (10th Dist.1982). "Malpractice consists of ‘the professional misconduct of members of the medical profession and attorneys’ and may consist of either negligence or breach of contract." Boyce v. Mark Bamberger Co., L.L.C. , 2d Dist. Clark No. 2013 CA 18, 2013-Ohio-3935, 2013 WL 5172759, ¶ 12.
{¶ 40} Here, Purushealth's first amended complaint shows that Day Ketterer and its attorneys were acting in their capacities as attorneys for Purushealth when they engaged in the allegedly wrongful conduct. Purushealth's claims for breach of fiduciary duty include the following allegations:
25. Huff, in his capacity as Manager of [Purushealth], caused [Purushealth] to enter into an attorney-client relationship with Defendants Murphy, McCallion, and Roland, who at all times relevant were principals, agents, partners or associates of the law firm of Defendant Day Ketterer.
26. Huff entered [Purushealth] into an attorney-client relationship with Murphy, McCallion, and Roland of Day Ketterer to represent [Purushealth] in a number of legal matters including but not limited to:
a) negotiating and drafting a letter agreement, security agreement and promissory note that encumbered all of [Purushealth's] assets with a security agreement in favor of Belmont, [Purushealth's] largest creditor with whom [Purushealth] had a large outstanding balance * * * for the manufacturing of the Good Greens bars;
b) voluntarily suing Belmont in [the Belmont Case];
c) conveying all of [Purushealth's] assets and goodwill to a company called Good Nutrition LLC[,] causing [Purushealth] to be unable to conduct its regular business activities in the usual way[.]
* * *
28. At the time the DK Defendants represented [Purushealth] in the transaction that gave Belmont a security interest in all of [Purushealth's] assets, [Purushealth] had a very large balance due and owing to Belmont[,] its product manufacturer.
* * *
31. As a result of the Security Agreement that Murphy, McCallion, and/or Roland negotiated, drafted and advised [Purushealth] to enter into, Belmont was permitted to attach all of [Purushealth's] assets and goodwill in the event of default.
* * *
72. At all times relevant herein, an attorney-client relationship existed between [Purushealth] and [ ] Murphy, Roland and McCallion.
{¶ 41} The above claims shows that the "breach of fiduciary" claims arose out of the manner in which Murphy, Roland, and McCallion (and therefore Day Ketterer the law firm) represented Purushealth in the Belmont Case. Therefore, Purushealth's claims for breach of fiduciary duty are subsumed into claims for legal malpractice and, as explained above, are subject to the one-year statute of limitations. See Boyce at ¶ 12 (finding the trial court did not err when it found that plaintiff's claim for breach of fiduciary duty was actually a claim for legal malpractice).
{¶ 42} In support of its argument that the claims are for breach of fiduciary duty, Purushealth cites to Wills v. Kolis , 8th Dist. Cuyahoga No. 93900, 2010-Ohio-4351, 2010 WL 3584065, and Charles Gruenspan Co. v. Thompson , 8th Dist. Cuyahoga No. 80748, 2003-Ohio-3641, 2003 WL 21545134. Those cases, however, are completely distinguishable from the instant case. Wills concerned a claim of breach of fiduciary duty against a trustee, not an attorney representing a client as occurred in this case. See id. at ¶ 12. Charles Gruenspan concerned an attorney's claim of breach of fiduciary duty against his co-counsel, and in that case, we held that co-counsel did not owe a fiduciary duty to the plaintiff-attorney. See id. at ¶ 30. Therefore, those cases are clearly distinguishable and do not support Purushealth's argument that its claims are properly labeled as breach-of-fiduciary claims. {¶ 43} Accordingly, as explained above, the claim for breach of fiduciary duty against Murphy, Roland, and McCallion is a duplicative claim for legal malpractice, which is time-barred and was properly dismissed by the trial court.
{¶ 44} This leaves us left to determine whether the legal malpractice claim against Day Ketterer was properly dismissed. Importantly, the trial court did not dismiss the claims against Day Ketterer on statute-of-limitations grounds. Instead, it dismissed the claims against Day Ketterer because it found that Purushealth could not "maintain an action for legal malpractice directly against the Firm, nor can it hold the law firm vicariously liable for the alleged malpractice of its attorneys where the claims against those individual attorneys are time-barred."
{¶ 45} Purushealth argues that this was error because "[u]nder long-standing agency law, [Purushealth] is permitted to maintain a claim against Day Ketterer as principal without any of [its] attorneys being named." We disagree.
{¶ 46} Concerning a law firm's liability for legal malpractice, the Ohio Supreme Court has stated:
[A] law firm is a business entity through which one or more individual attorneys practice their profession. While clients may refer to a law firm as providing their legal representation or giving legal advice, in reality, it is in every instance the attorneys in the firm who perform those services and with whom clients have an attorney-client relationship. Thus, * * * a law firm does not engage in the practice of law and therefore cannot directly commit legal malpractice.
Natl. Union Fire Ins. Co. v. Wuerth , 122 Ohio St.3d 594, 2009-Ohio-3601, 913 N.E.2d 939, ¶ 18.
{¶ 47} The Ohio Supreme Court has already rejected Purushealth's agency argument, stating, "[A] law firm may be vicariously liable for legal malpractice only when one or more of its principals or associates are liable for legal malpractice." Wuerth at ¶ 26. Here, no Day Ketterer principals or associates are liable for legal malpractice, and therefore, Day Ketterer cannot be held vicariously liable for legal malpractice.
{¶ 48} Accordingly, the trial court properly dismissed the legal malpractice claim against Day Ketterer, and we overrule Purushealth's second and third assignments of error.
{¶ 49} Judgment affirmed.
SEAN C. GALLAGHER, J., and PATRICIA ANN BLACKMON, J., CONCUR