Estate of Zwingler v. Estate of Kissinger

[Cite as Estate of Zwingler v. Estate of Kissinger, 2026-Ohio-4099.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
THE ESTATE OF RYAN ZWINGLER, MICHELE ZWINGLER,
INDIVIDUALLY AND AS THE ADMINSTRATOR FOR THE ESTATE OF
RYAN ZWINGLER, ET AL.,
Plaintiffs-Appellants,
v.
ESTATE OF WILLIAM JOSEPH KISSINGER, JR.,
Defendant-Appellee.
OPI NI ON AND J UDG M ENT ENT RY
Case No. 26 MA 0017
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2024 CV 00571
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed in part. Reversed in part and Remanded.
Atty. Michael J. O'Shea, for Plaintiffs-Appellants
Atty. Robert S. Yallech, and Atty. Brian D. Sullivan, Reminger Co., L.P.A., for Defendant-
Appellee
Dated: October 16, 2026

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WAITE, P.J.
{¶1} Appellants Estate of Ryan Zwingler and Michele Zwingler, individually and as
administrator of the Estate of Ryan Zwingler, appeal a February 10, 2026 judgment entry
of the Mahoning County Court of Common Pleas granting a partial motion for judgment
on the pleadings and a partial grant of summary judgment in favor of Appellee Estate of
William Joseph Kissinger. In this complex attorney malpractice action involving two other
lawsuits, Appellants essentially argue that the trial court erroneously found that
malpractice against Appellee could not succeed as to one lawsuit because the opposing
party in that action, the Ohio Department of Transportation (“ODOT”), was protected by
sovereign immunity and because the complaint was not timely filed. As to a second
lawsuit, Appellants argue that the trial court improperly determined the paving company,
Central Allied Enterprise, Inc., (“CAE”) did not negligently complete a state road paving
job because the work was accepted by ODOT. For the reasons that follow, Appellants’
argument as to the ODOT lawsuit is without merit and the judgment of the trial court is
affirmed as to that case. However, the argument in regards to CAE’s lawsuit has merit,
and the judgment is reversed and remanded as to that case.
Factual and Procedural History
{¶2} This matter has a somewhat complicated factual and procedural history due
to the involvement of multiple case numbers having different parties. The outcome of
these cases led to the present malpractice action against Appellee, but because it was
based on allegations arising from the other two lawsuits, this matter involves what can
best be described as a case within a case. The issue on appeal involves a legal
malpractice action arising from these suits, which had two trial

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court case numbers and involved different parties but arose from the same factual
occurrence, the death of Ryan Zwingler. Pursuant to the case-within-a-case doctrine, in
order to successfully assert a legal malpractice action, here, a plaintiff must establish
grounds for the underlying case or cases which resulted in the malpractice. Thus, the
merits of the underlying actions are critical. For ease of understanding, the general facts
will be discussed first, and the two different underlying trial court cases will be addressed
separately.
General Facts
{¶3} While this appeal concerns legal malpractice, the underlying event which
gave rise to this claim involved a fatal motor vehicle accident. On May 27, 2013, two men,
Ryan Zwingler and Jarod Cameron, were working for Bell Plants, Inc. While in the scope
of their employment duties, they operated a 2008 Freightliner Conventional 6x2 truck-
trailer on state route 534 (“SR 534”). On the day in question, Cameron was driving with
Zwingler as the passenger. Evidence shows that at the time of the incident, Cameron was
operating the vehicle at a speed of around fifty miles per hour in a fifty-five miles per hour
zone. John T. Massalsky, Jr., who was driving a vehicle following this truck, told
investigators that Cameron drove in what he described as “normal operation.”
{¶4} According to investigations which took place after the fact, the lane of travel
and the shoulder area of SR 534 are extremely narrow. The lane of travel was measured
at 9.29’ wide. In comparison, the truck driven by Cameron was 8’6” wide, leaving him just
over six inches on both sides of the truck to stay within the lane. In other words, the truck
essentially filled up the entire width of the driving lane, leaving little room for the vehicles
in the oncoming traffic lane. The shoulder area of the roadway on which Cameron was

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traveling measured 18” wide. The tires on the truck measured 11.6”. There was a 6” drop
in the berm to the shoulder area, which had a downslope.
{¶5} At some point on the night at issue, in the opposing traffic lane a large truck
approached the vehicle operated by Cameron. Just before the vehicles were to pass one
another, the truck operated by Cameron suddenly shifted to the right, within the shoulder
area, before overcorrecting to the left and colliding into the incoming truck, causing a large
fire. An investigation after the fact showed that Cameron feared the vehicles would not
both fit in their narrow lanes without hitting one another and attempted to operate the truck
he was driving on the shoulder. However, due to the drop off and the narrow shoulder
area, apparently Cameron attempted to re-enter the lane of traffic when he realized the
shoulder was too narrow for his tire.
{¶6} Massalsky, following behind Cameron’s vehicle, observed the accident, pulled
off the road and apparently approached the two truckers. He saw that Cameron and
Zwingler were trapped inside their burning vehicle and called 911. Neither Cameron nor
Zwingler survived the accident. The driver of the other truck was able to escape and
survived. The instant action does not directly involve Cameron’s estate, the driver of the
other truck, or Massalsky.
{¶7} The road had been paved by Central Allied Enterprises, Inc. (“CAE”)
approximately nine years before the incident. A contract between CAE and Ohio
Department of Transportation (“ODOT”) specified the shoulder drop off could not be more
than one inch. Testimony from CAE employees stated that at the time of completion, there
was no drop off. ODOT accepted the project as compliant with the terms of the contract.
However, it is clear from two reports, one completed by Trooper Jester of the

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Ohio State Patrol and one completed by Patrick Altvater, an expert witness, that the
shoulder had a drop off of 6” from the roadway at the time of the accident.
Attorney William Kissenger
{¶8} Shortly after the accident, Zwingler’s parents retained Attorney William
Kissinger to open a probate case and potentially seek redress by means of litigation
for wrongful death and survivorship claims. Attorney Kissinger opened a probate case
and intended to address those matters. He hired Attorney Scott Melton to pursue wrongful
death and survivorship claims. Attorney Melton is licensed to practice law in
Pennsylvania but is not licensed in Ohio, hence he needed to obtain pro hac vice
admission. The Mahoning County Court of Common Pleas, Probate Division, approved
the retainer agreement between the Zwingler Estate and Attorney Melton on October 16,
2014.
{¶9} On May 27, 2015, Attorney Kissinger and Attorney Melton filed two lawsuits:
Estate of Ryan Zwingler v. Central-Allied Enterprises, Inc., case number 2015-cv-1410,
and Estate of Ryan Zwingler v. Ohio Department of Transportation, case number 2015-
00525JD.
{¶10} In essence, the action against CAE pertained to their workmanship in paving
SR 534. It was alleged that the lanes and shoulder were too narrow and that the berm
and shoulder had a significant drop off creating a dangerous situation. The action against
the ODOT involved claims related to its alleged failure to inspect and identify these issues
and the failure to warn motorists of the roadway’s defects.

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Case No. 26 MA 0017
Attorney Scott Melton
{¶11} In October of 2017, Attorney Melton discovered that he had failed to take a
necessary step in the pro hac vice admission process. The step involved his failure to
file the trial court’s judgment entry granting him permission to proceed pro hac vice. He
communicated this fact to the Ohio Supreme Court, Attorney Kissinger, and the Zwingler
family. Attorney Melton told Attorney Kissinger that he did not believe that the issue would
have a significant impact, but if it did, he had two million dollars in liability insurance
coverage. Sometime around this discovery, Attorney Melton and Attorney Kissinger
voluntarily dismissed both cases based on their need for additional time to prepare the
cases.
{¶12} Despite Attorney Melton’s proper communication and handling of his
mistake, Attorney Kissinger moved to terminate the contract between Attorney Melton
and the Zwingler family. Attorney Kissinger also met with the Zwingler family and
convinced them to proceed solely through his representation of both the probate matters
and wrongful death claims despite his lack of experience handling wrongful death cases.
{¶13} Attorney Kissinger never attempted to obtain the case file from Attorney
Melton, and instead demanded that Attorney Melton turn the claim over to his insurance
carrier.
Legal Proceedings
{¶14} On October 9, 2018, Attorney Kissinger refiled the wrongful death action
against CAE, but did not timely refile the action against ODOT. Although the full picture
is less than clear, as not all case files connected with this matter are within the record, it
appears that Attorney Kissinger was the sole lawyer in these matters.

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{¶15} On January 11, 2019, Attorney Kissinger filed a complaint on behalf of the
Zwingler family against Attorney Melton and his malpractice carrier. The action was
originally filed in the probate court but was removed to federal court before Attorney
Kissinger voluntarily dismissed the case.
{¶16} On August 12, 2019, the Mahoning County Bar Association grievance
committee notified the Zwingler family that Attorney Melton had not violated the Ohio Code
of Professional Conduct. Similarly, the Ohio Disciplinary Council also found no grievable
offense.
{¶17} On September 18, 2019, in the other case, CAE filed a motion for summary
judgment arguing that the lawsuit against it was untimely filed, alleging the first lawsuit
was void ab initio due to Attorney Melton’s failure to complete the pro hac vice process.
The court denied the motion, finding that the complaint was not void.
{¶18} Attorney Melton agreed to pay up to $30,000 through his malpractice carrier
for independent counsel to represent the Zwinglers. On October 23, 2020, a trial court
found that Attorney Melton’s minor mistake in his pro hac vice admission did not render
the complaint he filed on behalf of Appellant Estate void. The court noted that the Ohio
Office of Disciplinary Counsel deemed the mistake with the pro hac vice admission
process to be “inadvertent” and not grounds for discipline.
{¶19} In a July 16, 2021 judgment entry in the CAE case, the court found that “the
failure by the Estate’s then only counsel of record Attorney Kissinger to timely refile the
complaint against ODOT in the Ohio Court of Claims is a major legal and procedural
impediment for the Estate in the pending civil action. Accordingly, Attorney Kissinger is
faced with at least the possibility of the Estate having a viable legal professional

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malpractice claim against him.” The court deemed that potential claim gave rise to a
conflict of interest, and removed him from the case. According to the Appellant Estate,
despite being dismissed from the case by the court, Attorney Kissinger continued his
representation of the Appellant Estate for some time.
Proceedings Against Attorney Kissinger (Instant Issue)
{¶20} On July 7, 2022, Appellants filed a complaint against Attorney Kissinger,
asserting claims of legal malpractice and breach of fiduciary duty. On March 6, 2024,
Appellants voluntarily dismissed the complaint. Shortly thereafter, it appears that
Attorney Kissinger died.
{¶21} On March 21, 2024, the complaint was refiled against Appellee. It contained
the same claims as the earlier complaint. On April 29, 2025, Appellee filed a motion for
summary judgment. While the motion will be addressed more thoroughly within the
arguments, it sought summary judgment on the basis of the case-within-a-case doctrine.
The doctrine applies to some legal malpractice claims where the merits of the underlying
litigation are directly at issue in determining the malpractice action. In essence, the
doctrine provides that the plaintiff may only succeed in a legal malpractice action where
the merits of the underlying case can be demonstrated.
{¶22} Appellee filed a motion for partial judgment on the pleadings based on its
contention that the legal malpractice claim, as it pertains to the ODOT case, was barred
by the statute of repose. In the alternative, Appellee argued that Appellants could never
succeed in the case against ODOT, as ODOT is protected from suit by sovereign
immunity.

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Case No. 26 MA 0017
{¶23} On August 15, 2025, the trial court filed two judgment entries. The first
addressed the action against ODOT and granted Appellee’s motion for judgment on the
pleadings. The court determined that Appellants failed to bring the action against ODOT
within four years and violated the statute of repose. Even if the complaint had been timely
filed, the court determined that ODOT enjoyed sovereign immunity which would prevent
Appellants from recovery. The court’s second entry addressed the complaint against CAE
and granted summary judgment in favor of Appellee. The court relied on the testimony
from two CAE employees that the berm was flush with the pavement in accordance with
the contractual requirements on the date that the project was completed. The court
explained that construction was completed on August 2, 2004, nine years before the
accident, and ODOT’s approval of the work occurred on August 17, 2004. The court
observed that the only evidence of faulty work arises from two expert reports completed
nine and thirteen years after the work had been completed. The court determined that the
testimony of the workers essentially outweighed the reports. This appeal challenges both
judgment entries.
{¶24} After the filing of the notice of appeal in this matter, some procedural issues
arose. The parties in this matter sought and received extensions of time in which to file
their respective briefs, and Appellants slightly exceeded even the time as extended. As
a result, this case has been pending for a somewhat longer time than usual.
{¶25} In addition, on July 29, 2026, counsel for Appellee filed a “Notice of
Substitution of Counsel.” The motion was not properly signed, however, and it was later
learned that counsel intended to completely withdraw from the case and entirely new

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Case No. 26 MA 0017
counsel was to represent. We requested that an amended notice be filed with the
appropriate signature, which was received on August 7, 2026.
Judgment on the Pleadings
{¶26} Appellants’ first and second assignments of error involve judgment on the
pleadings, which is governed by Civ.R. 12. An appellate court reviews a trial court's ruling
on a Civ.R. 12(C) motion de novo. Pelletier v. Mercy Health Youngstown, L.L.C., 2024-
Ohio-2131, ¶ 10 (7th Dist.), citing Ahmed v. Sargus, 2005-Ohio-2382, ¶ 7 (7th Dist.). On
review, the Court must construe all material allegations of the complaint as true and make
all reasonable inferences in favor of the nonmoving party. Where a motion pursuant to
Civ.R. 12(C) is filed, dismissal is appropriate only where “it appears beyond doubt that
the plaintiff can prove no set of facts entitling him or her to relief.” Maternal Grandmother
v. Hamilton Cty. Dept. of Job and Family Servs., 2021-Ohio-4096, ¶ 13, quoting Reister
v. Gardner, 2020-Ohio-5484, ¶ 17.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-
APPELLEE ESTATE OF KISSINGER'S MOTION FOR JUDGMENT ON
THE PLEADINGS BASED ON R.C. 2305.117(B)'S FOUR YEAR REPOSE
PERIOD BECAUSE THAT STATUTE HAD NOT BEEN ENACTED WHEN
KISSINGER'S LEGAL MALPRACTICE OCCURRED AND BECAUSE IT
APPLIES PROSPECTIVELY, IT DOES NOT APPLY TO THE ZWINGLERS'
LEGAL MALPRACTICE CLAIMS IN THIS CASE. [ERROR AT DOCKET
NO. 64 (08/15/2025 JUDGMENT ENTRY)].

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{¶27} Appellants assert that the occurrence which gave rise to the malpractice
claim happened on October 16, 2018, when any claims against ODOT were essentially
lost due to Attorney Kissinger’s failure to file the lawsuit against ODOT within the proper
time. Appellants state that the legislature did not enact the statute of repose until June
21, 2021, the effective date of the statute. Because the statute of repose is not to be
applied retroactively, Appellants contend that the statute did not apply in 2018 when the
malpractice claim arose, and cannot be used to bar its otherwise valid claims against
ODOT.
{¶28} The decision of the trial court was essentially two-pronged: the ODOT
complaint was barred by the statute of repose and, in the alternative, ODOT enjoyed
sovereign immunity. Either way, if the trial court is correct, Appellants cannot rely on their
assertion that they had a valid suit against ODOT but for the malpractice of Attorney
Kissinger. To overcome this hurdle, Appellants begin by arguing that the statute of repose
was not effective until June 16, 2021 and does not apply retroactively. Appellants’ claim
against ODOT which gave rise to the malpractice occurred on October 16, 2018 (the date
the alleged malpractice occurred), hence the statute of repose was not yet in effect.
{¶29} Even so, Appellants argue that the statute of repose is inapplicable for a
second reason. Appellants explain that Attorney Kissinger’s negligence had not resulted
in actual damage until April 28, 2022, which is the date that Attorney Kissinger was
responsible for losing the CAE case through his malpractice. Appellants reason that
where a recovery against the state is involved (as in the case against ODOT), any
recovery is reduced by any collateral recovery (which should have been gained from the
CAE lawsuit). In other words, if Appellants were successful in both its lawsuits against

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ODOT and CAE, recovery against ODOT would be reduced by any amount they
recovered from CAE.
{¶30} Appellee responds that the legal malpractice statute is analogous to the
medical malpractice statute. The latter bars both accrued and non-vested malpractice
claims that have not been timely filed. Appellee contends that it is thus possible for a claim
of negligence to expire before the negligence claim is even discovered. Appellee also
argues that R.C. 2305.19, the savings statute, does not apply to the statute of repose.
Hence, the fact that the action was timely filed in 2022 and refiled in 2024 is
inconsequential.
{¶31} The statute of limitations for an action based on legal malpractice is found
within R.C. 2305.117, which provides in relevant part:
(A) Except as otherwise provided in this section, an action upon a
legal malpractice claim against an attorney or a law firm or legal
professional association shall be commenced within one year after the
cause of action accrued.
(B) Except as to persons within the age of minority or of unsound
mind as provided by section 2305.16 of the Revised Code, and except as
provided in divisions (C) and (D) of this section, both of the following apply:
(1) No action upon a legal malpractice claim against an attorney or
a law firm or legal professional association shall be commenced more than
four years after the occurrence of the act or omission constituting the
alleged basis of the legal malpractice claim.

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(2) If an action upon a legal malpractice claim against an attorney
or a law firm or legal professional association is not commenced within
four years after the occurrence of the act or omission constituting the
alleged basis of the claim, then, any action upon that claim is barred.
(C)(1) If a person making a legal malpractice claim against an
attorney or a law firm or legal professional association, in the exercise of
reasonable care and diligence, could not have discovered the injury
resulting from the act or omission constituting the alleged basis of the claim
within three years after the occurrence of the act or omission, but, in the
exercise of reasonable care and diligence, discovers the injury resulting
from that act or omission before the expiration of the four-year period
specified in division (B)(1) of this section, the person may commence an
action upon the claim not later than one year after the person discovers
the injury resulting from that act or omission.
{¶32} The Ohio State Supreme Court explained the difference between the statute
of limitations and the statute of repose in Wilson v. Durrani, 2020-Ohio-6827. Essentially,
both the statute of limitations and the statute of repose accomplish the same goal: to limit
the time in which to bring a legal claim. However, these statutes operate differently and
each targets a different actor.
{¶33} As to the statute of limitations, it “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). The statute

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of limitations “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 (1986), fn. 17 (Douglas, J.,
concurring). “Statutes of limitations emphasize plaintiffs’ duty to diligently prosecute
known claims.” Id. at ¶ 10.
{¶34} In comparison, the 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. at ¶ 9, quoting Black's at 1707. The statute of repose
“bars the claim-the right of action-itself.” Id., citing Treese v. Delaware, 95 Ohio App.3d
536, 545 (10th Dist. 1994). In contrast to the statute of limitations, the statute of repose
“emphasize[s] defendants’ entitlement to be free from liability after a legislatively
determined time.” Id. at ¶ 10.
{¶35} “ ‘When the discovery rule’ - like the one the Ohio Supreme Court has applied
to legal malpractice claims - ‘governs the running of a statute of limitations, the ‘discovery
rule gives leeway to a plaintiff who has not yet learned of a violation, while the rule of
repose protects the defendant from an interminable threat of liability.’ ” Owens v. Purcel,
2024-Ohio-1514, ¶ 14 (6th Dist.), citing Wilson at ¶ 10; California Pub. Employees’
Retirement Sys. v. ANZ Securities, Inc., 582 U.S. 497, 506 (2017). “So, while the
discovery rule may delay the accrual of a claim for purposes of the statute of limitations,
the statute of repose operates to mitigate the effects of the discovery rule by preventing
indefinite potential liability.” Id.
{¶36} The first step in our analysis is to determine the date of the event that gave
rise to the malpractice claim. Contrary to Appellants’ claims, the date the malpractice
arose is unquestionably the date that Attorney Kissinger failed to timely file a negligence

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action against ODOT. While Appellants raise the effect of losing the CAE case on the
ODOT case, the actual negligence relevant to the ODOT case is the failure to timely file
the lawsuit. That inaction had no real effect on the CAE case. Any allegations of
malpractice in the loss of recovery against CAE are limited to the facts and law in that
case and are far removed from any relevance in the case against ODOT.
{¶37} Appellants filed a notice of supplemental authority prior to oral argument,
Gottschalk v. Kelley, 2026-Ohio-3159, ¶ 20 (3d Dist.). Gottschalk answers the question
whether retroactive application of the statute of repose is constitutional. However,
Appellants misapply the case. Appellants are correct in that the Third District found the
statute of repose was enacted in 2021 and application of that statute to earlier events
could result in unconstitutionally retroactive application. However, understanding the facts
of Gottschalk is critical to its application. In January of 2018, the Appellant's attorney
shared confidential information with another party during a contentious child custody
action. Id. at ¶ 2. The Appellant’s fiancé at that time worked at the same law firm as her
attorney. In 2021, the Appellant and her fiancé had already married and he left the law
firm. In so doing, he took her physical case file with him. The Appellant did not review the
case file until 2024. At that time, she learned that her attorney had shared sensitive
private information about her with her (now) husband’s ex-wife. In 2025, she filed a legal
malpractice lawsuit against the attorney. The trial court found that the statute of repose,
enacted in 2021, barred her lawsuit.
{¶38} The Third District explained that under Ohio law, a malpractice action
generally accrues when the wrongful act occurs. Id. at ¶ 17. However, the Court noted

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an exception where the malpractice is not apparent at the time it occurs. In that instance,
the discovery rule applies. The Court stated:
As noted previously, the Supreme Court of Ohio held that the
application of a statute of repose is not unconstitutionally retroactive if the
claimant had a reasonable time in which to file his or her claim. See Adams,
4 Ohio St.3d at 40; Oaktree, 2014-Ohio-1937, at ¶ 1, 12. In turn, the
Supreme Court of Ohio relied upon the discovery rule to provide the
reference point for determining whether a claim was filed within a
reasonable time. Adams at 40.
Gottschalk at ¶ 22 (3d Dist.). The Adams Court, cited within Gottschalk, declared
a “reasonable time” is one year. Id. at 40. In other words, the discovery rule provides an
injured party a reasonable time, one year after learning of the wrongful act, to file a
malpractice claim regardless of whether the applicable statute of limitations had run.
{¶39} The Gottschalk Court ultimately found that at the time the court barred the
action, further discovery was necessary to determine whether the Appellant learned of
the malpractice act when her file was taken in 2021, when a second proceeding related
to that information occurred in 2022, or when she reviewed the file in 2024. Id. at ¶ 20.
Hence, the case had been prematurely dismissed.
{¶40} In applying Gottschalk, it is clear that Appellants in this matter learned
of the malpractice, at the latest, by July 16, 2021. On that date, the trial court filed
a judgment entry in the CAE case stating that:
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[T]he failure by the Estate’s then only counsel of record Attorney
Kissinger to timely refile the complaint against ODOT in the Ohio Court of
Claims is a major legal and procedural impediment for the Estate in the
pending civil action. Accordingly, Attorney Kissinger is faced with at least
the possibility of the Estate having a viable legal professional malpractice
claim against him.
(7/16/21 J.E.) Hence, Appellants were placed on notice of the malpractice by at least July
16, 2021, if not before. The discovery rule would operate to give Appellants a reasonable
time, one year, in which to file their action after receiving notice of malpractice. The
following appears to reflect the relevant timeline:
May 27, 2013: Accident occurred.
May 2015: Two lawsuits filed, one against ODOT and one against CAE.
October 16, 2017: Lawsuits voluntarily dismissed without prejudice.
October 9, 2018: Action refiled against CAE.
October 16, 2018: Deadline to refile against ODOT (failure to file triggers
apparent malpractice).
July 16, 2021: Appellants learned of the malpractice.
July 7, 2022: Malpractice lawsuit filed.
October 16, 2022: Deadline pursuant to the statute of repose.
March 6, 2024: Lawsuit dismissed.
March 21, 2024: Second malpractice lawsuit filed.
{¶41} Because Appellants had more than one year after discovery to file their
action regardless of the statute of repose, based on Gottschalk, the statute of repose is

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not unconstitutionally retroactive, here. In fact, the statute of repose provided Appellants
with an additional year after the typical discovery rule deadline.
{¶42} Although not mentioned in either party’s brief, a case arising out of the Sixth
District is very similar. Owens, supra. In Owens, the appellant was struck by a vehicle on
December 20, 2014. Id. at 2. Due to her status as a minor, she had until March 17, 2018
to file a lawsuit against the driver. On March 4, 2019, counsel for the appellant filed a
lawsuit against the driver, who had died several years prior. However, the court dismissed
the case on October 8, 2019 for failure to perfect service of process. The appellant sued
her attorney on August 21, 2020. She dismissed the case on December 28, 2021 and
refiled on December 21, 2022 relying on the savings statute. The court dismissed the
action after granting a motion for judgment on the pleadings. The court determined that
the incident giving rise to the malpractice was the failure to file the timely complaint on
March 17, 2018, which gave her until March 17, 2022 to file a complaint. As in the instant
case, the Appellants filed the complaint, voluntarily dismissed the complaint, and then
attempted to refile it in reliance on the savings statute. The refiled complaint was filed
nine months after the statute of repose ended. Id.
{¶43} The Owens Court held that the refiled lawsuit was not filed within the statute
of repose period. The Court began with the act or omission giving rise to the lawsuit, which
was failure to file a complaint within the statute of limitations. This occurred on March 17,
2018. Counsel refiled the complaint on December 21, 2022, more than four years after
the malpractice event. The Owens Court explained that even if it were to accept the date
the appellant learned of the malpractice event, the discovery rule would

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only have given the appellant one year from its discovery to file the complaint. However,
the complaint was filed in excess of that one-year discovery period. Id. at ¶ 27.
{¶44} As addressed by the Owens Court, Appellants had, at most, four years to
file a malpractice lawsuit against Appellee, which would have ended on October 16, 2022.
Appellants filed a timely lawsuit on July 7, 2022. Had Appellants not dismissed that
complaint on March 6, 2024, after expiration of the statute of repose, the lawsuit could
have proceeded to its natural resolution. However, Appellants dismissed the matter after
the expiration of the statute. The attempt to later refile was futile. Additionally, Appellants
filed their lawsuit years after expiration of the discovery period, as in Owens. Hence,
Appellants cannot proceed with a lawsuit against Appellee in relation to their claims
against ODOT. Since their claims against ODOT failed, in accordance with the case-
within-a-case doctrine, Appellants’ first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY GRANTING DEFENDANT-APPELLEE
ESTATE OF KISSINGER'S MOTION FOR JUDGMENT ON THE
PLEADINGS BECAUSE THE FACE OF THE PLEADINGS DO NOT
DEMONSTRATE THAT ODOT HAD SOVEREIGN IMMUNITY IN THE
UNDERLYING CASE, AND MOREOVER, SOVEREIGN IMMUNITY DID
NOT APPLY IN THE UNDERLYING CASE AGAINST THE OHIO
DEPARTMENT OF TRANSPORTATION. [ERROR AT DOCKET NO. 64
(08/15/2025 JUDGMENT ENTRY)].

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Case No. 26 MA 0017
{¶45} Appellants challenge the court’s finding of sovereign immunity on the part of
ODOT. Again, this pertains only to the suit against ODOT. Appellants urge that the court
could only consider the complaint and the answer, as the motion involved judgment on the
pleadings. Despite this, Appellants argue it is clear the court considered extraneous
information not contained within those two pleadings. As to the merits of that decision,
Appellants correctly point out that ODOT itself is not a political subdivision, but is a state
agency. Appellants also correctly point out that the state has waived its immunity and has
consented to lawsuits brought against ODOT in the court of claims.
{¶46} In response, Appellee appears to concede that ODOT is not a
political subdivision and the state does consent to some lawsuits. However, Appellee
contends the waiver is limited and does not pertain to cases that do not involve
public roads. Appellee contends that statutorily, a public road does not include the berm.
Hence, the waiver of immunity does not apply.
{¶47} Because we find that Appellants’ first assignment of error effectively ends
Appellants’ ability to successfully sue ODOT, this assignment of error is moot.
Standard of Review
{¶48} Appellants’ third and fourth assignments of error involve the decision to grant
summary judgment, governed by Civ.R. 56. An appellate court conducts a de novo review
of a trial court's decision to grant summary judgment, using the same standards as the
trial court set forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105
(1996). Before summary judgment can be granted, the trial court must determine that: (1)
no genuine issue as to any material fact remains to be litigated, (2) the moving party is
entitled to judgment as a matter of law, (3) it appears from the evidence that

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reasonable minds can come to but one conclusion, and viewing the evidence most
favorably in favor of the party against whom the motion for summary judgment is made,
the conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317,
327 (1977). Whether a fact is “material” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603 (8th Dist.
1995).
{¶49} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296 (1996). If the
moving party carries its burden, the nonmoving party has a reciprocal burden of setting
forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other
words, when presented with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a reasonable factfinder
could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378,
386 (8th Dist. 1997).
{¶50} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple at 327.

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ASSIGNMENTS OF ERROR NOS. 3 & 4
THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS FAILED TO
DEMONSTRATE THAT THE DEFENDANT-APPELLEE IN THE
UNDERLYING CASE FAILED TO CONSTRUCT STATE ROUTE 534 AS
CONTRACTED AND THEREFORE PLAINTIFFS COULD NOT SUCCEED
ON THEIR LEGAL MALPRACTICE CLAIM AGAINST DEFENDANT-
APPELLEE FOR HIS REPRESENTATION OF PLAINITFF-APPELLANTS
CLAIMS AGAINST CENTRAL ALLIED. [ERROR AT DOCKET NO. 76 (02-
10-2026 ATP. 1-2)].
THE TRIAL COURT ERRED IN CONCLUDING THAT CENTRAL ALLIED
OWED NO DUTY TO THIRD PARTIES (SUCH AS RYAN ZWINGLER) IN
THE UNDERLYING CASE AND THEREFORE THE PLAINTIFF-
APPELLEES COULD NOT PROVE THE CASE-WITHIN-THE-CASE ON
THEIR LEGAL MALPRACTICE CLAIM AGAINST DEFENDANT-
APPELLEE ESTATE OF KISSINGER. [(ERROR AT 02-10-2026 AT P. 1-
2)].
{¶51} Appellants argue that the trial court erred in determining they provided no
evidence that the shoulder berm and drop off failed to comply with the requirements of
CAE’s paving contract. Appellants assert that evidence was provided by testimony from
Trooper Jester and his accompanying report along with the expert witness report from
Patrick Altvater. There is no question that the contract between ODOT and CAE required
the berm to be almost flush with the paved roadway’s surface to avoid a drop off from the

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berm. The evidence from both witnesses combined to demonstrate that, despite this, a
significant drop off existed at the time of the accident which contradicted the self-serving
testimony of CAE employees. Explaining that it is impossible to go back in time and look
at the condition of the road, berm and shoulder at the time of completion of the paving
and noting that there are no photographs or other evidence showing the area at the time
of completion, Appellants explain that as the reports and testimony do show there existed
at the time of the accident a significant drop off, this raises at least a genuine issue of
material fact on the issue. Appellants also note that based on the ODOT inspection
reports a question exists as to whether the western berm (where the accident occurred)
was completed. While ODOT accepted the work at the time, and Appellants acknowledge
the “completed and accepted rule,” they contend an exception exists where the work
product was negligently completed.
{¶52} In response, Appellee argues that two CAE employees testified that the berm
and paved road were essentially flush at the time of completion of the paving work in
accordance with the contract specifications. Appellee argues that the reports relied on by
Appellants were created nine (Trooper Kester) and thirteen (Altvater) years after the
project was completed. Appellee believes these reports are essentially immaterial, as they
do not show the condition of the area at the time of paving completion. Further, Appellee
argues that ODOT issued a certificate of completion certifying CAE’s work on the project
substantially complied with the terms of the contract, and released funds to CAE.
Because there is no evidence of negligence in the completion of the paving project,
Appellee contends that no duty is owed to a third party such as Ryan Zwingler.

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Case No. 26 MA 0017
{¶53} Appellee cites to Beasley v. Monoko, Inc., 2011-Ohio-3995 (10th Dist.).
Appellee uses Beasley to argue that a certificate of release absolves the paving company
from liability. However, Beasley is factually distinguishable from the instant matter, as
ODOT sought to recover damages in that case from the paving company due to defects
discovered years after completion of a project. Id. at ¶ 17. In this matter Appellants, and
not ODOT, seek to recover. ODOT was the actual party to the paving contract in both
cases.
{¶54} Regardless, a basic review of the facts reveals that there are genuine issues
of material fact yet to be addressed. To begin, there are no photographs or other evidence
proving CAE’s compliance with the requirement that the paved road was to be flush with
the berm. While Appellants presented a certificate of completion from ODOT, two issues
remain. One, the CAE employees’ testimony does not negate the impact of the trooper’s
report or that of the expert. All of this evidence addresses the state of the road, berm and
shoulder, albeit at different times. Clearly the expert report opined that for the shoulder
to be in such a state of disrepair the original work must have been inadequate or defective.
This raises at least a credibility issue. The trial court may not address credibility when
looking at conflicting evidence, and may only grant summary judgment when the materials
show that one party is unquestionably entitled to judgment. Here, the conflicting evidence
appears to raise a question as to certain material facts.
{¶55} Two, as addressed by Appellants, there is an exception to the “completed
and accepted rule,” where the work was negligently completed. If Appellants’ expert
reports and testimony were accepted by a jury, it is possible to find that the work was
either not completed or negligently completed. Appellee offered evidence that ODOT

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approved CAE’s work and deemed that it complied with the contract terms. Again,
Appellants presented some evidence to rebut this: the two reports showing the berm had
a very significant drop off and was far from flush at the time of the accident. Appellee
claims that this long-after-the-fact evidence is irrelevant, but as framed by Appellants’
expert at least, that is not true. The possibility remains that CAE negligently performed
the work in a way that would not be detectable by ODOT at the time of inspection. For
example, if the base of the berm was negligently constructed and caused the berm to
deteriorate faster than would normally be expected, ODOT may not have been able to
determine this at the time of inspection. In another example, if defective or low-quality
materials were used, or the workmanship was poor, the berm could have deteriorated
faster than normal, which again, may not have been detected by ODOT at the time of
inspection. While Appellants have not yet proved any of these theories, such definitive
proof is not required to defeat summary judgment. Appellants’ evidence does serve to
rebut Appellee’s evidence and creates a genuine issue of material fact.
{¶56} Contradictory testimony and evidence in this matter does create a genuine
issue of material fact for trial. Two CAE employees provided what is best described as
self-serving testimony. They testified on behalf of the employer who pays their salaries,
and without benefit of extrinsic support, that the work was completed in accordance with
the contract and was not negligently performed. Appellants submitted Trooper Jester’s
testimony and report stating there was a significant drop off between the roadway
and shoulder. Appellants' expert provided testimony and a report containing the same
information. He avers the drop off could not have been caused by normal wear and tear.
Appellee did not provide any rebuttal evidence to show what could have caused the sharp
drop off following completion of paving, whether any cause could be

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contributed to normal wear, or whether some other cause intervened to rebut the expert
reports. A reasonable jury then, based on the conflicting evidence already of record, could
find either that parts of the project were not completed at the time the certificate was
issued or that the project was completed, but negligently. A reasonable jury could also
find that the CAE employees’ testimony was credible and the drop off cannot be attributed
to any act or failure on CAE’s part.
{¶57} This competing evidence is sufficient to create a genuine issue of material
fact. It appears from the court’s decision that the court improperly assumed the role of a
juror and weighed the evidence in rendering its decision. This is improper in a summary
judgment proceeding. Accordingly, Appellants’ third and fourth assignments of error have
merit and are sustained.
Conclusion
{¶58} In this case-within-a-case legal malpractice action, Appellants argue that the
trial court erroneously found their malpractice action against Appellee could not succeed
because in one of the underlying cases in which they alleged malpractice the opposing
party in that action, ODOT, was protected by sovereign immunity and because the
complaint was not timely filed. It is clear on review that the case was not timely filed, so
Appellants are unable to show they had a substantial likelihood of success on the merits
of the case but for Appellee’s malpractice. As to a second case, Appellants argue that the
trial court improperly determined the paving company, CAE, did not negligently pave a
road because the work was accepted by ODOT. For the reasons provided, the matter is
affirmed in part with regard to the ODOT suit, and reversed and remanded to

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Case No. 26 MA 0017
determine Appellants’ likelihood of success on the merit of the CAE suit, but for the
malpractice of Appellee.
Robb, J., concurs.
Hanni, J., concurs.

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For the reasons stated in the Opinion rendered herein, Appellants’ assignments of
error are sustained in part and overruled in part. It is the final judgment and order of this
Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is
affirmed in part and reversed in part. This matter is remanded to the trial court for further
proceedings according to law and consistent with this Court’s Opinion. Costs to be divided
equally between the parties.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.