Curtis L. Wrenn, Plaintiff-appellant, v. David M. Bidwell, Jinx Statler Beachler, Defendants-appellees, 945 F.2d 406 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 945 F.2d 406 (6th Cir. 1991) Sept. 24, 1991

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges, and McRAE, Senior District Judge.* 

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Curtis Wrenn appeals the district court's judgment dismissing his complaint for legal malpractice. The case is in federal court pursuant to the authority granted in 28 U.S.C. § 1332 for diversity jurisdiction.

Wrenn claimed that the defendants, two attorneys who represented him in another case, were liable for legal malpractice. He requested damages. The district court dismissed the complaint with prejudice as it was brought outside of the applicable statute of limitations. See Ohio Rev.Code § 2305.11(A); Zimmie v. Calfee, Halter and Griswold, 43 Ohio St.3d 54, 57, 538 N.E.2d 398, 401 (1989). Wrenn then brought this timely appeal.

In the defendants' appellate brief, costs and attorney fees are sought. Wrenn failed to address the matter in his reply brief. An award of damages and single or double costs may be awarded if the court determines that an appeal is frivolous, unreasonable or without foundation. 28 U.S.C. § 1912; Fed. R. App. P. 38; Coghlan v. Starkey, 852 F.2d 806, 810-17 (5th Cir. 1988) (per curiam); Wrenn v. Gould, 808 F.2d 493, 505 (6th Cir. 1987).

Upon consideration, we conclude that the district court properly dismissed the complaint with prejudice for the reasons stated in its opinion and order entered March 29, 1991, and that the appeal is frivolous. Accordingly, the district court's judgment is hereby affirmed and the defendants are awarded single costs and attorney fees. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Robert M. McRae, Jr., Senior U.S. District Judge for the Western District of Tennessee, sitting by designation