Smith & Condeni, LLP v. Cavitch Familo & Durkin Co., LPA - Attorney-Client Relationship

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Smith & Condeni, L.L.P. v. Cavitch Familo & Durkin Co., L.P.A.

Ohio Court of Appeals

• Citations: 2026 Ohio 1047
• Docket Number: 115362

• Judges: Ryan

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.8K)

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Syllabus

Civ.R. 12(C) motion for judgment on the pleadings; disassociated partner; no attorney-client relationship formed. Judgment affirmed. The trial court properly granted the defendants' Civ.R. 12(C) motion for judgment on the pleadings. The disassociated partner was without authority to retain legal representation for the partnership from which he disassociated.

Combined Opinion

[Cite as Smith & Condeni, L.L.P. v. Cavitch Familo & Durkin Co., L.P.A., 2026-Ohio-1047.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

SMITH AND CONDENI, LLP, :

Plaintiff-Appellant, :
No. 115362
v. :

CAVITCH FAMILO & DURKIN :
CO. LPA, ET AL.,
:
Defendants-Appellees.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 26, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-105081

Appearances:

Condeni Law LLC, and Joseph A. Condeni, for appellant.

Gallagher Sharp LLP, Maia E. Jerin, and Monica A.
Sansalone, for appellees.

MICHAEL JOHN RYAN, P.J.:

Plaintiff-appellant Smith and Condeni, LLP (“S&C”) appeals from the

trial court’s judgment granting the motion for judgment on the pleadings of

defendants-appellees Cavitch Familo & Durkin Co., LPA, a law firm (“Cavitch”),
attorneys Max Dehn (“Dehn”), Madilyn Maruna (“Maruna”), Harold Maxfield

(“Maxfield”), Michael Cohan (“Cohan”), and James Aussem (“Aussem”) (collectively

“the Cavitch defendants”).

After a review of the facts and pertinent law, we affirm.

Factual and Procedural History

S&C initiated this case against the Cavitch defendants for legal

malpractice stemming from the underlying litigation in Smith & Condeni, LLP, et

al. v. Condeni, et al., Cuyahoga C.P. No. CV-17-889339 (“the underlying action”).

The record demonstrates that N. Lindsey Smith (“Smith”) and Joseph

Condeni (“Condeni”) are lawyers, and in 2007, formed the law partnership of S&C.

The partnership consisted solely of Smith and Condeni. Their arrangement was

governed by a written partnership agreement. Relevant articles and sections of the

agreement provided as follows:

Article 9 Matters Requiring Consent of Partners Section
9.3. Items Requiring Consent of a Majority of the Partners. The
following actions may not be taken without the Consent of a Majority
of the Partners: . . . vi. Initiation of an action on behalf of the
Partnership against any Partner or Dissociated Partner.

Article 16 Rights of Dissociated Partners
Section 16.6. Rights and Duties of Dissociated Partner Under the
Partnership Agreement. A Dissociated Partner shall cease to have
rights and duties under this Partnership Agreement as of the
Dissociation Date.

(Bold and italics deleted.)
Smith and Condeni each owned a 50 percent share of S&C. In 2014, a

dispute arose between the partners regarding Smith’s desire to withdraw from the

partnership and move his part of the practice to another law firm. Indeed, in 2015,

Smith left S&C and went to Cavitch. After Smith’s departure from S&C, Condeni

established a new law firm.

The circumstances surrounding Smith’s departure from S&C, as well as

Condeni’s establishment of a new firm, were contentious between Smith and

Condeni. In 2017, Smith and S&C filed the underlying action against Condeni and

his new law firm contending that Condeni secretly retained S&C funds to establish

Condeni’s new law firm after Smith left S&C. Smith, therefore, sought to expel

Condeni from S&C. Attorneys Dehn and Maruna represented Smith in the

underlying action; they also purportedly represented S&C.1

Condeni answered and counterclaimed, alleging that Smith withdrew

from S&C as of March 2, 2015, became a dissociated partner, and lost all rights and

duties as an S&C partner at that time. Condeni maintained that Smith withdrew

from S&C pursuant to the parties’ partnership agreement, and under Ohio law, no

later than March 2015 when Smith joined Cavitch. It was Condeni’s position that

Smith therefore lacked standing to bring claims on behalf of S&C and that the

Cavitch attorneys could not represent S&C. To that end, Condeni asserted the

following affirmative defenses in his answer:

1
The remaining Cavitch defendants — Maxfield, Cohan, and Aussem — denied that
they had any representation in this matter. S&C alleged that their liability was vicarious
because of their supposed leadership positions as Cavitch’s board of directors.
[(2)] Defendants assert that plaintiff S&C lacks standing to bring this
action under Section 9.3 of the Partnership Agreement as initiation of
an action on behalf of S&C against a partner requires the consent of
more than one half of the partners (determined per capita) at the time
that lawsuit was filed, which condition precedent was not fulfilled.

[(3)] Pursuant to Section 16.6 of the Partnership Agreement,
Defendants assert that Plaintiff Smith lacks standing to bring this
action as Smith, being a Disassociated Partner has no rights under the
Partnership Agreement as of his Disassociation Date, which was March
2, 2015.

In August 2022, the trial court in the underlying action found that

Smith disassociated from S&C as late as December 29, 2014, before his and S&C’s

claims for relief against Condeni and Condeni’s new firm were alleged to have arisen.

This court affirmed the trial court’s judgment in May 2023. Smith & Condeni v.

Condeni, 2023-Ohio-1480 (8th Dist.). In October 2023, the Supreme Court of Ohio

declined to accept Smith’s discretionary appeal. Smith & Condeni, LLP v. Condeni,

2023-Ohio-3670. In October 2023, S&C purportedly terminated Cavitch and, in

November 2023, attorneys Dehn and Maruna withdrew their purported

representation of S&C.

In October 2024, S&C, by and through Condeni, filed the subject legal-

malpractice action against the Cavitch defendants. According to the complaint, “In

2017, Cavitch . . . made a conscious decision to engage in the conflicted

representation of [S&C and Smith] against [Condeni]” in the underlying action.

Complaint, ¶ 15. S&C’s complaint further alleged that “Cavitch and its attorneys

represented [S&C] until [S&C] terminated Cavitch’s representation on October 26,

1. Under the continuing representation doctrine, [S&C’s] statute of limitations against Cavitch and its attorneys did not lapse before the filing of this Complaint.”

Id. at ¶ 19.

The Cavitch defendants answered S&C’s complaint and filed a motion

for judgment on the pleadings. The Cavitch defendants’ motion for judgment on the

pleadings was based on the following two grounds: (1) under the authority of New

Destiny Treatment Ctr., Inc. v. Wheeler, 2011-Ohio-2266, no attorney-client

relationship between S&C and any of the Cavitch defendants existed, and (2) the

complaint was filed after the one-year statute of limitations for a legal-malpractice

action had expired. S&C opposed the motion for judgment on the pleadings.

On July 1, 2025, the trial court issued a judgment granting the Cavitch

defendants’ motion for judgment on the pleadings. On July 14, 2025, the trial court

issued a nunc pro tunc judgment entry granting the Cavitch defendants’ motion for

judgment on the pleadings “with prejudice” and stating that its judgment was

“final.” S&C now appeals, raising the following sole assignment of error for our

review: “The trial court erred by granting the Cavitch defendants’ motion for

judgment of the pleadings.”

Law and Analysis

“A Civ.R. 12(C) motion for judgment on the pleadings presents

questions of law, the determination of which is restricted solely to the allegations in

the pleadings and any writings attached to the pleadings.” Crenshaw v. Jones,

2022-Ohio-3913, ¶ 6 (8th Dist.), citing Peterson v. Teodosio, 34 Ohio St.2d 161

(1973). A motion for judgment on the pleadings can be granted when the court, after
construing the pleadings most favorably to the nonmoving party, finds beyond

doubt that the nonmoving party could prove no set of facts in support of a claim for

relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570

(1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist. 1992).

Appellate review of motions for judgment on the pleadings is de novo. Perrysburg

Twp. v. Rossford, 2004-Ohio-4362, ¶ 5.

Additionally, “a motion for judgment on the pleadings is an

appropriate vehicle to use to seek a dismissal of a cause of action based on a running

of the statute of limitations that is apparent from the face of the complaint.”

Oskowski v. Mercy Med. Ctr., 1996 Ohio App. LEXIS 1042, *2 (2d Dist. Mar. 22,

1996); Hughes v. George F. & Mary A. Robinson Mem. Portage Cty. Hosp., 16 Ohio

App.3d 80, 82 (11th Dist. 1984). Accordingly, if “the pleadings unequivocally

demonstrate that the action was commenced after the limitations period expired,

Civ.R. 12(C) relief is appropriate.” Bd. of Edn. of Greenview Local School Dist. v.

Staffco Constr., Inc., 2016-Ohio-7321, ¶ 12 (2d Dist.).

As mentioned, the Cavitch defendants based their motion for

judgment on the pleadings on two theories: (1) that no attorney-client relationship

between S&C and any of the Cavitch defendants existed, and (2) the complaint was

filed after the one-year statute of limitations for a legal-malpractice action had

expired. The two theories are intertwined.

As to the statute of limitations, R.C. 2305.117(A) provides that a legal-

malpractice claim “shall be brought within one year of the time the cause of action
accrued.” A cause of action for legal-malpractice accrues, and the statute of

limitation begins to run, when (1) there is a cognizable event whereby the client

discovers or should have discovered that his or her injury was related to the

attorney’s action or omission, putting the client on notice of a need to pursue any

possible remedies against the attorney or (2) the attorney-client relationship for that

particular transaction or undertaking terminates, whichever occurs later. Zimmie

v. Calfee, 43 Ohio St.3d 54, 58 (1989); Krzywicki v. Gay, 2017-Ohio-5584, ¶ 14

(8th Dist.).

Thus, in order for S&C to have had a legal-malpractice claim against

the Cavitch defendants to even implicate the one-year statute of limitations, it

obviously had to have had an attorney-client relationship with the defendants. The

Cavitch defendants contend that, under the authority of New Destiny, 2011-Ohio-

2266, they did not have an attorney-client relationship with S&C.

In New Destiny, the plaintiff was a nonprofit corporation that

operated a rehabilitation center for individuals with substance-abuse problems; its

board members were relatives of the founder and president. The president came

under investigation for abuse of the organization’s tax-exempt status and the use of

funds for personal and otherwise inappropriate purposes. When the president

became aware he was being investigated, he invited two other individuals to join the

board, ostensibly to make it appear that the organization had a neutral board as

opposed to one made up of family members.
The two newly added board members discovered that the organization

was $30 to $40 million in arrears on certain bills, despite generating $3 to $4

million a month in charitable contributions. The board retained the law firm of

Vorys, Sater, Seymour & Pease, L.L.P. as legal counsel in response to the

investigations into the president’s alleged misuse of the organization’s tax-exempt

status and the president’s alleged misuse of charitable funds.

Meanwhile, a majority of the board became concerned that the

president’s leadership threatened the organization’s ministry and, therefore, the

board placed him on a six-month leave of absence. Another board member

(the president’s nephew) resigned his position on the board, was appointed as

executive director, and was assigned to take over the president’s duties. The board

then replaced the newly named executive director with an interim CEO and a

management team.

The president, who, as mentioned, had been on leave, eventually

began reasserting control over the nonprofit. The board had concerns and extended

the president’s leave of absence indefinitely. The two newly added board members

believed the extended leave relieved the president of all executive authority. One of

the two newly added board members scheduled a board meeting for December 4,

2000, to discuss the investigation into the president’s conduct, to remove the

president and his brother-in-law from the board, and to force the president to retire.

The president hired attorney E. Marie Wheeler (“attorney Wheeler”)

and the law firm of Roderick Linton for the purpose of representing his desire to
retain control of the board. The president scheduled a board meeting for earlier in

the day of December 4, 2000, the same day a board meeting was scheduled by the

newly added board member who sought to oust the president. Attorney Wheeler

prepared a special meeting agenda that included removing the newly added board

member who scheduled the meeting to fire the president. Retaining Roderick

Linton to represent the nonprofit was also an agenda item.

At both December 4, 2000 board meetings, the moving factions were

unable to reach a quorum and therefore neither succeeded in removing the other

from the board.

Two days later, on December 6, 2000, the president changed the locks

on the organization’s building, fired the board-appointed management team, and

informed the employees that he had control of the nonprofit. When the board

member leading the charge to oust the president learned of the president’s actions

and arrived at the nonprofit’s building, the president purported to remove him from

the board and attorney Wheeler ordered the board member to leave the premises.

Thereafter, the president scheduled a teleconference meeting of the

board for December 11, 2000. The two new board members were given notice of the

meeting and planned at the meeting to seek removal of the president and the

president’s brother-in law from the board; however, neither of the new board

members were permitted to participate at the meeting.

At the meeting, the president and the board members in attendance

claimed that the president’s brother-in law had not resigned from the board but
rather had returned from a leave of absence. The president further found that a

quorum existed and thus purported to remove the two newly added board members

from the board and elect a new slate of trustees more favorable to the president.

Additionally, the president informed the board that he had retained attorney

Wheeler on behalf of the organization.

That same day, the attorney general, and the two new board members

filed an action in the name of the nonprofit against the president and others to

recover funds misappropriated from the organization. Attorney Wheeler filed a

notice to voluntarily dismiss the action on behalf of the nonprofit. The attorney

general and the two new board members moved to strike the notice and asserted

that attorney Wheeler and another Roderick Linton attorney represented only the

president and the other defendants, but were not the attorneys for the nonprofit.

In late December 2000, the attorney general and the two newly added

board members filed a separate action on behalf of the nonprofit in the Ninth

District Court of Appeals seeking a writ of quo warranto to restore the two board

members as members of the organization’s board of trustees. They alleged that the

president had usurped control over the organization and operated it without

corporate authority to do so.

In February 2001, attorney Wheeler ended her association with the

Roderick Linton firm, and in April 2001, the common pleas court appointed a

receiver for the nonprofit. The receiver formally terminated attorney Wheeler as

counsel for the organization. Attorney Wheeler continued to represent the president
in the proceeding, until she withdrew in August 2001. The trial litigation continued

with new defense counsel and resulted in an over $2 million jury verdict against the

president.

In October 2001, the Ninth District Court of Appeals entered

summary judgment in the quo warranto case in favor of the attorney general, finding

that the president’s brother-in-law had not taken a leave of absence from the board

of trustees but had resigned from that position. The court therefore determined that

the December 11, 2000 meeting, during which the president had attempted to oust

the two newly added board members from the board, was invalid for lack of a

quorum, and moreover, any and all actions taken at the meeting were invalid and

void. State ex rel. Montgomery v. Hawthorne, 2001-Ohio-1404 (9th Dist.).

Subsequently, the nonprofit filed a legal malpractice action against

attorney Wheeler and the Roderick Linton firm. The organization contended that

attorney Wheeler and the firm breached their obligations as attorneys and had

negligently represented that a quorum had been present at the December 11, 2001

meeting, which allowed the two newly added board members to be removed from

the board and left the president in control of the nonprofit.

Attorney Wheeler and the firm moved for summary judgment. The

trial court granted their motion, finding that there was never an attorney-client

relationship between the attorneys and the nonprofit. The trial court reasoned that

“‘the opposite is true: the current parties had an adversarial relationship * * *. The
factions had separate interests, separate Boards, and separate attorneys.’” New

Destiny, 2011-Ohio-2266, at ¶ 18, quoting the trial court.

On appeal, the Ninth District reversed, finding that there was a

genuine issue of material fact as to whether an attorney-client relationship had

existed. Specifically, the court found that because the president hired attorney

Wheeler in his capacity as president of the organization, there was a genuine issue

of material fact regarding the existence of an attorney-client relationship. New

Destiny Treatment Ctrs., Inc. v. Wheeler, 2009-Ohio-6956 (9th Dist.).

The Supreme Court of Ohio accepted the matter on discretionary

appeal for consideration of the following question: “whether an attorney retained

by a dissident member of a nonprofit corporation’s board of trustees in an effort to

gain control of the corporation may subsequently be sued for malpractice by the

corporation.” New Destiny, 2011-Ohio-2266, at ¶ 23.

The Court stated that the important considerations in determining

whether an attorney-client relationship was created are the manifest intentions of

the attorney and prospective client. Id. at ¶ 26.

A relationship of attorney and client arises when a person manifests an
intention to obtain legal services from an attorney and the attorney
either consents or fails to negate consent when the person has
reasonably assumed that the relationship has been established. 1
Hazard & Hodes, The Law of Lawyering (2005) 2-8, Section 2.5; 1
Restatement of the Law 3rd, The Law Governing Lawyers (2000) 126-
128, Section 14. Thus, the existence of an attorney-client relationship
does not depend on an express contract but may be implied based on
the conduct of the parties and the reasonable expectations of the
putative client.
Id.

The Supreme Court found that the nonprofit had not met its burden

to establish the existence of an attorney-client relationship between the organization

and Wheeler or Roderick Linton. The court further held that “no evidence of such a

relationship exists.” Id. at ¶ 31. The court reasoned as follows:

[T]he putative client is a corporate entity, and an attorney employed or
retained by a corporation represents the organization acting through
its constituents; the attorney does not owe allegiance to a stockholder,
director, officer, or other person connected with the corporation.
Prof.Cond.R. 1.13(a); former EC 5-19. Thus, because a corporate
attorney represents the organization acting through its agents, id., in
order to form an attorney-client relationship with a corporation, the
party hiring counsel on behalf of the corporation must necessarily have
authority to do so and must reasonably believe that an attorney-client
relationship has been established.

Id. at ¶ 27.

The Court specifically found that although the president, in his official

capacity, had purportedly retained attorney Wheeler and the Roderick Linton firm

in December 2000, he had been placed on a leave of absence by the board at that

time. Thus, the president lacked authority in his capacity as president to retain

counsel on behalf of the organization in December 2000.

The parallels of New Destiny and this case demonstrate that New

Destiny controls. In New Destiny, the dissident individual was the president; here,

the dissident individual was Smith. In both cases, the attorneys representing the

dissident member filed motions on behalf of the dissident and the partnership at the

direction of the dissident, while the opposing faction argued the attorneys lacked

authority to represent the partnership.
In the underlying action here, Condeni argued in his counterclaim

that Smith withdrew from S&C as of March 2, 2015, became a dissociated partner,

and lost all rights and duties as an S&C partner at that time. He asserted affirmative

defenses contending the same. Condeni maintained that position on appeal in the

underlying action. Simply, it was always Condeni’s contention that Smith lacked the

authority to represent S&C.

Indeed, in the appeal for the underlying case this court agreed with

Condeni. Specifically, this court stated that “if Smith effectively disassociated from

S&C prior to the filing of the underlying action, he lacked authority to act on behalf

of S&C . . . .” Smith & Condeni, 2023-Ohio-1480, at ¶ 22. This court went on to find

that “[a]ccording to the express terms of the S&C Partnership Agreement, [Smith]

ceased to be a partner and no longer had authority to act on behalf of S&C on

December 29, 2014, at the latest.” Id. at ¶ 36. Thus, the panel concluded that “after

December 29, 2014, Smith ceased being a partner at S&C, and therefore . . . he no

longer could seek Condeni’s expulsion or hire legal counsel to pursue a claim on

behalf of S&C to those ends.” Id. at ¶ 37.2

As New Destiny instructs, “in order to form an attorney-client

relationship with a corporation, the party hiring counsel on behalf of the corporation

must necessarily have authority to do so . . . .” New Destiny, 2011-Ohio-2266, at ¶

27. For the reasons discussed, Smith did not have authority to form an attorney-

2
We note that the doctrine of judicial estoppel prevents a party from taking a
position inconsistent with one successfully and unequivocally asserted by the same party
in a prior proceeding. Greer-Burger v. Temesi, 2007-Ohio-6442, ¶ 25.
client relationship on behalf of S&C with Dehn and Maruna. There was no privity

between S&C and Smith. The trial court properly granted judgment on the

pleadings as to S&C’s malpractice claim against Dehn and Maruna. Because we hold

that Dehn and Maruna did not represent S&C, it necessarily follows that the

remaining Cavitch defendants did not as well.

Finally, we consider whether S&C pled factual allegations to support a

third-party legal malpractice claim.

Under Ohio law, “an attorney may not be held liable by third parties

as a result of having performed services on behalf of a client, in good faith, unless

the third party is in privity with the client for whom the legal services were

performed, or unless the attorney acts with malice.” Simon v. Zipperstein, 32 Ohio

St.3d 74, 76 (1987), citing Scholler v. Scholler, 10 Ohio St.3d 98 (1984), paragraph

one of the syllabus. “Attorneys have a qualified immunity from liability to third

parties for acts or omissions concerning the representation of a client.” LeRoy v.

Allen, Yurasek & Merklin, 2007-Ohio-3608, ¶ 15. As the Supreme Court of Ohio

explained, “The rationale for this posture is clear: the obligation of an attorney is to

direct his [or her] attention to the needs of the client, not to the needs of a third party

not in privity with the client.” Simon at id.

In this context, malice has been defined as “the state of mind under

which a person intentionally does a wrongful act without a reasonable lawful excuse

and with the intent to inflict injury under circumstances that the law will imply an

evil intent.” Criss v. Springfield Twp., 56 Ohio St.3d 82, 84-85 (1990), citing Black’s
Law Dictionary 956 (6th Ed. 1990). In other word, malice means “an improper

purpose, or any purpose other than the legitimate interest of bringing an offender to

justice.” Criss at 85, citing Black’s Law Dictionary at id., and Keeton, Dobbs, Keeton

& Owen, Prosser and Keeton on the Law of Torts, § 119, at 883 (5th Ed. 1984).

In its complaint, S&C alleged that the Cavitch defendants acted

maliciously by putting Smith’s interests over S&C’s interests. That allegation did not

rise to the level of malice because the Cavitch defendants represented Smith, a

dissident member of S&C, who did not have authority to retain legal representation

on behalf of S&C. Thus, the Cavitch defendants’ duties and obligation were to Smith,

and fulfilling them was neither malpractice nor malicious. Further, S&C did not

allege privity with Smith in its complaint.

On this record, after construing S&C’s complaint most favorably to

S&C, we find beyond doubt that S&C could not prove any set of facts in support for

its claim for relief. Thus, the trial court did not err in granting the Cavitch

defendants’ motion for judgment on the pleadings and S&C’s sole assignment of

error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

---

MICHAEL JOHN RYAN, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
TIMOTHY W. CLARY, J., CONCUR