IN THE SUPREME COURT OF OHIO

KATHLEEN PERKINS, et. al., Court of Appeals Case No.CA 25162

Appellants, ^ - 0

V. On Appeal from the MontgomeryCounty Court of Appeals,

FALKE & DUNPHY, LLC, et. al., Second Appellate District

Appellees.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS

F. Harrison Green (0039234)

F. Harrison Green Co., LPA

Executive Park, Suite 230

4015 Executive Park Drive

Cincinnati, OH 45241

Tel. (513) 769-0840Fax (513) 563-2953fh^yreen@fuse.netCOUNSEL FOR APPELLANTS

Neil F. Freund (0012183)Lindsay Johnson (0077753)Freund, Freeze & ArnoldOne Dayton Centre1 South Main St., Suite 1800

Dayton, OH 45402

Tel. (937) 222-2424

Fax (937) 222-5369

^I^' ohnson@ffalaw. comCOUNSEL FOR APPELLEES

AN 18 20134.3^ t 0 U^ COURT

^^pgNtlE OOURT OF OWI®

TABLE OF CONTENTS

P_age

EXPLANATION OF WHY THIS CASE IS OF PUBLIC AND GENERAL

INTEREST AND CONTAINS CONSTITUTIONAL VIOLATIONS ... ..................................1

STATEMENT OF THE PROCEEDINGS ...................................................................................3

STATEMENT OF FACTS .............................................................................................................5

FIRST PROPOSITION OF LAW .................................................................................................7

THE LOWER COURTS FAILED TO RECOGNIZE THAT THE

UNDERLYING CONDUCT OF DEFENDANTS-APPELLEES WAS

FRAUD AND/OR MISREPRESENTATION IN THEIR REPRESENTATIONOF THE CLIENTS WHEN SAID LAWYERS MADE REPRESENTATIONS

CONTRARY TO THEIR ADVICE TO THE CLIENTS ................................................7

SECOND PROPOSITION OF LAW ...........................................................................................8

LAWYERS WHO VIOLATE THE LAWYER-CLIENT RELATIONSHIP OFTRUST AND CONFIDENCE SHOULD NOT BE SHIELDED BY STATUTEOF LIMITATIONS FOR MALPRACTICE AND LIMITATIONS OF ANYSAVINGS CLAUSE ...........................................................................................................8

CONCLUSION ..... ...............................................................................................................12

CERTIFICATE OF SERVICE .....................................................................................................13

APPENDIX A12px. Page

Judgment Entry (Montgomery County Common Pleas Court), dated March 28, 2012 .....1

Opinion (Montgomery County Court of Appeals, Second Appellate District),dated December 7, 2012 ...............................................................................................................7

EXPLANATION OF WHY THIS CASE IS OF PUBLIC AND GENERAL INTERESTAND CONTAINS CONSTITUTIONAL VIOLATIONS

This instant case presents matters of public and general interest and concerns of

Constitutional violations. It is a case that deals with the flow of lawsuits that arise from

circumstances regarding the conduct of attorneys and other professionals to whom they

may have a future duty and/or may have interfered with the rights of an individual.

The rulings in the Montgomery County Court of Common Pleas and the Second

District Court of Appeals apply an inequitable application of causes of action as they

apply to a special class of defendants and attorneys causing violations of due process.

This matter is one that contains errors made by the courts below in its interpretation of

the application of R.C. 2305.19(A) and their interpretation of Rules 12(B) of the Ohio

Rules of Civil Procedure.

The issue presented herein strikes at the very heart of the standing of legal

profession in the eyes of the public:

TRUST

"The overriding consideration in the attorney-client relationship is trust and

confidence between the client and his or her attorney.°'1

All persons represented by legal counsel should be afforded trust in the

representation by their lawyer that they believe that said representation will be honest

and above board. It is dictated by the Honorable Court that lawyers are held to a high

1 Fox & Associates Co., L.P.A. v. Purdon, 541 N.E.2d 448, 44 Ohio St.3d 69, 71 (Ohio 1989)

1

bar under the Rules of Professional Conduct, specifically in this instance, Rule 8.4,

which states as follows:z

"MISCONDUCT

It is professional misconduct for a lawyer to do any of the

following:

(c) engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation;

(d) engage in conduct that is prejudicial to the administration of

justice."

A review of the underlying litigation clearly sets forth Kathleen E. Perkins and

Michael F. Perkins relied upon their lawyers, Lee C. Falke and Falke and Dunphy LLC

to represent them in a dispute over the estate and trust of Kathleen Perkins' mother

Ruth:Day. The lawyers had a duty to avoid engaging in conduct involving dishonesty,

L«.. ,^7 .7,,,...a- .^,. mioror^roaonf-aftinn an^'1 nnt tn anoa0'Q in r'nn[^1]('^" j'l1nf' w7s t71'_ll^dlclal toI.Lauu, uGl-C1L, v]. u^^c.^ b»b.- --. • - -__ r _ _j _ _

the administration of justice on their behalf. Said lawyers were charged with the duty

to recover certain amounts due Kathleen E. Perkins and Michael Perkins from the Ruth

M. Day Revocable Living Trust as to monetary value, which had not been distributed

and recover certain unaccounted for funds that was subject to property of said trust

and an accounting.

2 Rules of Professional Conduct, Rule 8.4

2

Lee C. Falke and Falke & Dunphy LLC sought relief in the Montgomery County

Court of Common Pleas through the defense of Ohio Revised Code §2305.11 and

2305.19(A) as to the statute of limitations for bringing a legal malpractice claim and

upon its refilling under the alleged "Savings Clause". The trial court and the Second

District Court of Appeals for Montgomery County treated the Complaint as one in legal

malpractice even though fraud and misrepresentation were plead.

As stated above, this matter has classified lawyers as a special class who enjoy

privileges that are not available to the general public which creates a disparity in the

law that is not equitable. Further, the unequal application of this classification is in

direct conflict with the Ohio Constitution, a violation of the due process and violation of

Section 2, Article I of the Ohio Constitution, which guarantees a person the right to

"due: course of law"3 and Section 16, Article I of the Ohio Constitution, which provides

"(a)ll courts shall be open, and every person for an injury done him in his land, goods,

person, or reputation, shall have remedy by due course of law, and shall have justice

administered without denial or delay."4

STATEMENT OF THE PROCEEDINGS

Plaintiffs-Appellants, Kathleen E. Perkins and Michael Perkins engaged

defendants Falke & Dunphy, LLC and Lee C. Falke ("Falke") to represent them in a

Ohio Constitution, Section 2, Article I4 Ohio Constitution, Section 16, Article I

3

dispute over the estate and trust of plaintiff Kathleen Perkins' mother Ruth Day. The

dispute was resolved pursuant to mediation and a resulting settlement entered into

between the parties. The Probate Court conducted a settlement hearing on December

20, 2005 and dismissed the plaintiffs' action.

Thereafter, plaintiffs filed action based on fraud and misrepresentation against

defendants on March 15, 2007, being Montgomery County Case No. 2007 CV 02233.

This action was dismissed by the plaintiffs, pursuant to Civ.R. 41(A)(1) without

prejudice, on April 12, 2010. Subsequently, on May 3, 2011, plaintiffs filed the

underlying action against defendants being Case No. 2011 CV 3232. Following this,

defendants filed motion to dismiss on May 17, 2011 and the plaintiffs filed a response

on June 14, 2011. In turn defendants filed a reply on June 30, 2011. The court, by

judgment entry filed March 9, 2012 converted the motion into a summary judgment

motion because the arounds for relief set forth by the defendants exceeded the-------- - ^

permissible scope of a Civ.R. 12(B) motion to dismiss. Thereafter on March 28, 2012,

the court entered a judgment in defendants' favor.5

On November 27, 2012, a Notice of Appointment was issued by Magistrate

Ronald E. Mount of the Court of Appeals, Second District, Montgomery County that

included a Certificate of Assignment by the Ohio Supreme Court to Honorable Sylvia

Sieve Hendon of the First District Court of Appeals on June 25, 2012, a Certificate of

5 Appendix, pgs. 1-6

4

Assignment by the Ohio Supreme Court to Honorable Penelope Ruth Cunningham of

the First District Court of Appeals on October 31, 2012, and a Certificate of Assignment

by the Ohio Supreme Court to Honorable Patrick Timothy Dinkelacker of the First

District Court of Appeals on October 31, 2012 to preside in the Second District Court of

Appeals to hear Case No. CA 25162, Kathleen Perkins et al. v. Falke & Dunphy, LLC et

al. and to conclude any proceedings in which they participated. On December 7, 2012,

said appointed panel for the Second District Court of Appeals issued an Opinion and

Final Entry in the Court of Appeals for Montgomery County, affirming the trial court.6

STATEMENT OF FACTS

On or about September 4, 2002, Plaintiffs/Appellants Kathleen E. Perkins and

Michael Perkins engaged Defendants Falke & Dunphy LLC and Lee C. Falke, attorney

at law, as counsel to recover certain amounts due from the Ruth M. Day Revocable

Living Trust as to monetary value, which had not been distributed and to recover

certain unaccounted for funds that was subject to property of said trust and an

accounting. During the course of this representation, defendants failed to properly

prosecute the claims and fraudulently failed to disclose claims that were available to

prosecute on behalf of the Appellants, wherein defendants failed under a complaint

filed in the Montgomery County Court of Common Pleas, Case No. 2004MSC00126 to

receive an accounting from John Paul Rieser and Michael Disher, the initial co-trustees

6 Appendix, pgs. 7-13

5

of the Ruth M. Day Revocable Living Trust. Defendants failed to demand and receive

an independent accounting, abdicating their responsibilities to Appellants with

reckless disregard to their right, which was allowed under the Ruth M. Day Revocable

Living Trust on behalf of the beneficiaries that they represented. Defendants failed to

prosecute and settle claims of the clients for an equal division of the property.

Defendants also advised Appellants to settle the above cause without benefit of an

accounting or prosecution of their claims that were available under the trust

agreement; in fact, Defendant-Appellee Falke advised Plaintiffs-Appellants that the

only way to get an accounting would be to settle the case.

Further, Defendants failed to prosecute the recovery of monies and property of

known value for the benefit of Plaintiffs Kathleen E. Perkins, as it was known that

there was a significant disparity as to appraised value of real property and business

assets. Also, the Defendants failed to use the discovery procedures available under the

Ohio Rules of Civil Procedure to uncover conduct and location of assets and their

distribution in the prosecution of the claims on behalf of Plaintiffs Kathleen E. Perkins

and Michael Perkins.

Plaintiffs did not discover all misrepresentations until being advised on April

14, 2011, through a request for an expert opinion, which had been withheld from

Plaintiffs, wherein on September 9, 2008, Defendants continued to conceal that they

had failed to advise their clients that the settlement agreement would foreclose all

6

claims they may have in the litigation and what claims the Perkins were giving up.

Therefore the doctrine of equitable estoppel applies through the continuing tort, which

was not discovered until revealed by Gregory A. Keyser, Attorney at Law, on or about

April 14, 2011.

FIRST PROPOSITION OF LAW

THE LOWER COURTS FAILED TO RECOGNIZE THAT THE UNDERLYINGCONDUCT OF DEFENDANT-APPELLEES WAS FRAUD AND/OR

MISREPRESENTATION IN THEIR REPRESENTATION OF THE CLIENTS WHENSAID LAWYERS MADE REPRESENTATIONS CONTRARY TO THEIR ADVICE

TO THE CLIENTS

In the decision and opinion given by the lower courts, there was a factual finding

that. Defendant-Appellees had made no factual misrepresentations to Plaintiffs-

Appellants. The lower courts failed to recognize that on December 24, 2004 in a letter

via facsimile to Defendant-Appellees that counsel for the adversary parties stated that

"I agree with Lee insofar as he stated in his telephone message tha"t he aia not beiieve

there was a need for any 'accounting and balancing' prior to distribution to Kathleen

Perkins, * **".' Said statement is clearly contrary to purpose of the representation by

Defendant-Appellees of their clients' interest. This agreement between counsel

persisted throughout the remaining time of the representation.

' Perkins, et. al. vs. Falke & Dunphy, LLC, et. al., Exhibit 1 to Plaintiffs' Supplement al Memorandum ContraMotion for Summary Judgment, March 23, 2012, Montgomery County Court of Common Pleas, Case No.2011-CV-03232

7

As further evidence of the concealment of this agreement and the

misrepresentation, Defendant-Appellees had the "Settlement Agreement" include the

desired accounting.8

Plaintiff-Appellants, subsequent to the "Settlement Agreement", made demands

of Defendant-Appellees that they seek the accounting that had been promised.9 At no

time did Defendant-Appellees advise Plaintiff-Appellants that there rights to enforce an

accounting had been eliminated through the "Settlement Agreement".

SECOND PROPOSITION OF LAW

LAWYERS WHO VIOLATE THE LAWYER-CLIENT RELATIONSHIP OF TRUSTAND CONFIDENCE SHOULD NOT BE SHIELDED BY STATUTE OF

LIMITATIONS FOR MALPRACTICE AND LIMITATIONS OF ANY SAVINGSCLAUSE

This Court has previously stated in In re Termination of Pratt (1974), 40 Ohio St.2d

107, 115, 69 0.0.2d 512, 321 N.E.2d 603:

" All are positions of great importance and responsibility, but they do not

impose the duties required of a fiduciary such as a trustee, a lawyer, an

accountant, or a guardian. A 'fiduciary relationship' is one in which special

confidence and trust is reposed in the integrity and fidelity of another and there

is a resulting position of superiority or influence, acquired by virtue of this

special trust. See 5 Bogert on Trusts and Trustees, 119-132. The law has been

zealous in guarding against abuse of such a relationship, but the fact of the

relationship must be proved."lo 11

$ Rieser v. Rieser, Exhibit B to Plaintiffs' Motio n for an Order Enforcing Settlement, etc., August 7, 2008,Montgomery County Common Pleas Court, Case No. 2004 CV 033729 Perkins, et. al. v. Falke & Dunphy LLC, et. al., Exhibit 5 to Exhibit E of Plaintiffs' Re sponse to Defendants'Motion for Summary Judgment, Affidavit of Michael Perkins, December 2, 2008lo In re Termination of Pratt (1974), 50 Ohio St.2d 107, 115, 69 0.O.2d 512, 321 N.E.2d 60311 Stone v. Davis, 66 Ohio St.2d 74, 78, 419 N.E.2d 1094 (1981)

8

This Court has also recognized the importance of following the lawful

instructions of clients, which in this instance involved the required accounting of the

trust of Ruth M. Day, which Plaintiff-Appellants had specifically sought enforcement by

Defendant-Appellees. It was noted in Mclnnis v. Hyatt Legal Clinics, 461 N.E.2d 1295, 10

Ohio St.3d 112 (Ohio 1984) that "[w]hen the defendant attorney elected to cause

publication notice of the pendency of the instant divorce, without notice to his client, he

disobeyed the lawful instruction of his client, breached the terms of his employment

agreement, and is culpable to the extent of losses following from his breach and acts."1z

This Court further observed in this case at page 113, that "EC 7-8 of the Code of

Professional Responsibility provides: "A lawyer should exert his best efforts to insure

that decisions of his client are made only after the client has been informed of relevant

considerations. * * * [T]he lawyer should always remember that the decision whether to

foreao legallv available objectives or methods is ultimately for the client and not for

himself. "13

A cause of action for the tort of fraud must be brought within four years from the

time the cause accrued, the cause does not accrue until the fraud and the wrongdoer are

actually discovered.141s The traditional rule is that "[a] person injured by fraud is

12 Mclnnis v. Hyatt Legal Clinics, 461 N.E.2d 1295, 10 Ohio St.3d 112 (Ohio 1984)13 Mcdnnis v. Hyatt Legal Clinics, 461 N.E.2d 1295, 10 Ohio St.3d 112 (Ohio 1984)

14 R.C. 2305.0915 Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph three

of the syllabus

9

entitled to such damages as will fairly compensate him for the wrong suffered; that is,

the damages sustained by reason of the fraud or deceit, and which have naturally and

proximately resulted therefrom."161' 1$

The doctrine of equitable estoppel bars Defendants-Appellees from raising a

statute of limitations defense. Equitable estoppel precludes a party from asserting

certain facts whereby his conduct the party has induced another to change his position

in good faith reliance upon that conduct.19 In the present case, Plaintiffs-Appellants

agreed to a mediated settlement that included an accounting of the estate and trust of

Ruth M. Day, without knowing that they would be foreclosing all claims they might be

having in litigation based on the faith and trust they had in the Defendants-Appellees.

Therefore, the Defendants-Appellees cannot raise the defense of equitable estoppels.

The purpose of equitable estoppel is to prevent actual or constructive fraud and

to promote the ends of iustice.20 To establish a prima facie case for equitable estoppel, a

plaintiff must show that (1) the defendant made a factual representation, (2) that is

misleading, (3) that induces actual reliance that is reasonable and in good faith, and (4)

that causes detriment to the relying party.21

16 Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164,166,4 OBR 264, 267, 446 N.E.2d 1122,1126

17 Molnar v. Beriswell (1930), 122 Ohio St. 348, 8 Ohio Law Abs. 306, 171 N.E. 593, paragraph one of the

syllabus

18 Bartges v. O'Neil (1861), 13 Ohio St. 72, 77-78; Bartholomew v. Bentley (1846), 15 Ohio 659

19 Hutchinson v. Wenzke ( 1999), 131 Ohio App.3d 613, 616, 723 N.E.2d 176

20 Ohio State Bd. ofPharmacy v. Frantz (1990), 51 Ohio St.3d 143, 145, 555 N.E.2d 630

21 Doe v. Blue Cross/Blue Shield ofOhio (1992), 79 Ohio App.3d 369, 379, 607 N.E.2d 492

10

"It is hornbook law that limitations periods are 'customarily subject to "equitable

tolling," ' * * * unless tolling would be 'inconsistent with the text of the relevant

statute[.]"22 Accord United States v. Beggerly (1998), 524 U.S. 38, 48, 118 S.Ct. 1862, citing

United States v. Brockamp (1997), 519 U.S. 347, 117 S.Ct. 849 (stating that "[e]quitable

tolling is not permissible where it is inconsistent with the text of the relevant statute")23

See, also, Irwin v. Dept. of Veterans Affairs (1990), 498 U.S. 89, 95, 111 S.Ct. 453, rehearing

denied (1991), 498 U.S. 1075, 111 S.Ct. 805, quoting Hallstrom v. Tillamook Cty. (1989), 493

U.S. 20, 27, 110 S.Ct. 304, rehearing denied (1990), 493 U.S. 1037, 110 S.Ct. 761 (stating

that "[t]ime requirements in lawsuits between private litigants are customarily subject

to 'equitable tolling' ");24 There is nothing in the R.C. § 2305.11(A) wherein the Ohio

legislature provides that it would be inconsistent with the statute for the application of

equitable tolling.

"Under the doctrine of equitable estoppel, relief is precluded when oneparty induces another to believe that certain facts are true and the other partychanges his position in reasonable reliance on those facts to his detriment. Bank

One Trust Co., N.A. v. LaCour (1999), 131 Ohio App.3d 48, 55, 721 N.E.2d 491.

Therefore, equitable estoppel requires that the proponent prove four elements:(1) that the adverse party made a factual misrepresentation; (2) that themisrepresentation was misleading; (3) that the misrepresentation induced actualreliance, which was reasonable and in good faith; and (4) that the proponent

22 Young v. United States (2002), 535 U.S. 43, 49-50, 122 S.Ct. 1036. (Citations omitted.)23 United States v. Beggerly ( 1998), 524 U.S. 38, 48, 118 S.Ct. 1862, citing United States v. Brockamp (1997), 519

U.S. 347, 117 S.Ct. 84924 Irwin v. Dept. of Veterans Affairs (1990), 498 U.S. 89, 95, 111 S.Ct. 453, rehearing denied ( 1991), 498 U.S. 1075,

111 S.Ct. 805, quoting Hallstrom v. Tillamook Cty. (1989), 493 U.S. 20, 27, 110 S.Ct. 304, rehearing denied ( 1990),

493 U.S. 1037, 110 S.Ct. 761

11

suffered detriment due to the reliance. Doe v. Blue Cross/Blue Shield of Ohio (1992)

79 Ohio App.3d 369, 379, 607 N.E.2d 492."25

When considering individual rights of the Plaintiffs-Appellants herein, there has

been an unequal application of their claims when it relates to attorneys and are all

furthermore characterized under the classification of malpractice. In seeking

fundamental fairness in the application of due process in this matter, it would seem that

the trial court and the Second District Court of Appeals have sought to protect a

classification of potential defendants in an unequal application of their causes of action.

CONCLUSION

The Court for the above reasons should accept jurisdiction.

Respectfully submitted,

F. HARRISON GRF ., L.P.A.

T'ifarris Green, Counsel of Recc

COUNSEL FOR APPELLANTS,KATHLEEN E. PERKINS andMICHAEL PERKINS

25 Doe v. Archdiocese of Cincinnati, 2008-Ohio-67, 116 Ohio St.3d 538, 880 N.E.2d 892 (Ohio 2008)

12

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Memorandum in Support of Jurisdiction was

sent by regular U.S. Mail this P-6- day of January, 2013, to counsel for Appellees:

Neil F. Freund, Esq.Lindsay Johnson, Esq.FREUND, FREEZE & ARNOLD

One Dayton Centre1 South Main Street, Suite 1800Dayton, OH 45402

13

APPENDIX

ELECTfiOM1iICAkL.Y FiLEC#COURT OF COMMON PLEASWednesday, March 28, 2012 3:01 15 PMCASE NllMBER. 2011 CV 03232 Docket ID. 17035732GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE MONTGOMERY COIUNTY, OHIO COMMON PLEAS

KATHLEEN PERKINS, ET AL., CASE 2011 CV 03232

Plaintiffs,JUDGE SUMNER E WALTERSBy Assignment

-v-

FALKE & DUNPHY, LLC, ET AL.,

Defendants.

JUDGMENT ENTRY

This cause comes to be considered upon the defendants' motion to dismiss, filedMay 17, 2011, the plaintiffs' response filed June 14, 2011, and the defendants, reply filedJune 30, 2011. The court, by judgment entry filed March 9, 2012 converted the motioninto a summary judgment motion because the grounds for relief set forth by thedefendants exceeded the permissible scope of a Civ.R. 12(B) motion to dismiss.

In that judgment, the court allowed each party to submit additional evidence and^v___argument pursuant to ^w.rr^c. J"o . l I1GIG[t1CG1, W1G tJ1Q111G1113 3UU11I1LL^U a auypiv,,..a,cu,

memorandum, and attached a letter to the memorandum as an exhibit. And, thedefendants submitted affidavits of defendant, Lee C. Falke and the defendants' counselLindsay M. Johnson. The Johnson affidavit contains additional argument supporting themotion to dismiss and includes an affidavit of plaintiffs' expert, Gregory A. Keyser.

Motion to StrikeThe defendants filed a subsequent motion to strike the exhibit attached to

plaintiffs' memorandum on the basis that it fails to comply with the evidentiary standardsof Civ.R. 56(C).

Civ.R. 56(C) provides that a summary judgment motion or response shall besupported by "pleadings, depositions, answers to interrogatories, written admissions,affidavits, transcripts of evidence, and written stipulations of fact," and that "[n]oevidence or stipulation may be considered except as stated by this rule." Because theletter attached to the plaintiffs' supplemental memorandum is not a pleading, deposition,answer to interrogatories, written admission, affidavit, transcript of evidence or written

APPENDIXPage 1 of 13

stipulation of fact, the court may not consider Exhibit 1 attached to the plaintffs'

supplemental response.

Therefore, the motion to strike is found well taken and it is hereby sustained. Thecourt will strike Exhibit 1 attached to the Supplemental Memorandum Contra and notconsider that document for any purpose.

Summary JudgmentThe defendants claim that a cause of action filed outside the one year savings

statute, R.C. 2305.09, after the action had been once dismissed otherwise than on themerits is barred by the statutes of limitations.

In response, the plaintiffs claim that the defendants have engaged in a continuingcourse of conduct of concealing the fact that during the prior representation of theplaintiffs by the defendants, that in the settlement of the underlying litigation, theplaintiffs had given up certain rights to pursue claims and remedies in the underlyingcase. Plaintiffs also claim that the by application of this doctrine of equitable estoppel,that an additional doctrine of "equitable tolling of the statute of limitations" should beapplied to prohibit the defendants from using the statute of limitations to dismiss the

action.

FactsThe following facts appear to be uncontroverted:

1. The plaintiffs' "Perkins" engaged the defendants, "Falke" to represent them in adispute over the estate and trust of Kathleen Perkins' mother Ruth Day.(Complaint)

2. This representation commenced on or about September 2002. (Complaint, Falke

affidavit)3. Pursuant to mediation, that dispute was resolved by a settlement entered into

between_._ r

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4. On December 20, 2005, the Probate Court dismissed Perkins action afterconducting a settlement hearing where Perkins acknowledged the settlement onthe record. (Falke affidavit)

5. Perkins filed a malpractice action against Falke, relating to this underlyinglitigation, on March 15, 2007, being Montgomery County Case No. 2007 CV02233. (Johnson affidavit)

6. This malpractice action was dismissed by Perkins, pursuant to Civ.R. 41(A)(1),without prejudice, on April 12, 2010. (Johnson affidavit)

7. Subsequently, Perkins filed the within malpractice action against Falke on May 3,2011. (Docket, Case No. 2011 CV 3232 - the present case.)

Equitable EstoppelPerkins' response to the motion to dismiss claims that Falke should be estopped to

assert the doctrine of res judicata on the basis of equitable estoppel.

APPENDIXPage 2 of 13

Equitable estoppel has been defined as "[t]he doctrine by which a person may beprecluded by his act or conduct, or silence when it is his duty to speak, from asserting aright which he would otherwise have had." Black's Law Dictionary (6 Ed.1990) 538.The doctrine's purpose is to promote justice by preventing both actual and constructive

fraud. See Ohio State Bd ofPharmacy v. Frantz (1990), 51 Ohio St.3d 143, 145.

However, "[a]ctual fraud or an intent to deceive is not an essential element of an estoppel

to plead the statute of limitations." Bryant v. Doe (1988), 50 Ohio App.3d 19, 20,

quoting Moherman v. Nickels (1942), 140 Ohio St. 450, 464.

In Ohio, courts have applied a four-factor test to determine if the essentialelements of equitable estoppel have been satisfied:

"To show a prima facie case for application of equitable estoppel, a plaintiff mustshow that (1) the defendant made a factual misrepresentation, (2) that is misleading, (3)that induces actual reliance that is reasonable and in good faith, and (4) that causesdetriment to the relying party." Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340,

345. Accord Doe v. Blue Cross/Blue Shield of Ohio (1992), 79 Ohio App.3d 369, 379;

First Fed. S. & L. Assn. v. Perry's Landing, Inc. (1983), 11 Ohio App.3d 135, 145.

The first prong of the test clearly requires that misrepresentation be factual. Here,Perkins sole allegations as to the facts that might support an equitable estoppel argumentare that "during the course of the settlement negotiations [in the underlying case] that[Falke had concealed from Perkins] that [Perkins] had given up certain rights to pursueclaims and remedies in the underlying case, without their knowledge or informedconsent." Perkins now claim that they did not become aware of this until after theconclusion of their expert's evaluation of the facts. Unfortunately, Perkins have failed tofurnish the court, at this juncture, with any evidence setting forth anything that wouldconstitute a factual misrepresentation by Falke that would toll the running of the statuteof limitations.

In other words, in order to apply the doctrine of equitable estoppel, it would benecessary for the court to find that Falke, in fact, made actual misrepresentations toPerkins, and that he concealed the true facts from them. Instead, it appears that when thePerkins entered into a settlement agreement, in the underlying litigation, that it isnecessary that they would have to have understood that they gave up all rights andremedies in that underlying litigation. Therefore, all of the facts giving rise to themalpractice action would have to have been known, or by reasonable diligence beendiscovered by Perkins on or about the date that the trial court in the underlying litigationconducted the settlement hearing, December 20, 2005. Their claim that they were notaware of the facts until their expert told them is evidence that the facts were known orknowable by Perkins; it is the legal import of the facts that was unknown to them.

Ohio courts have held that estoppel cannot arise where the party claiming estoppelis chargeable with knowledge of the relevant facts, see Brown v. Woodmen Acc. & LifeCo. (1992), 84 Ohio App.3d 52, 57; and that the reliance upon the opposing party'sstatement of the relevant facts must have been both actual and reasonable, cf. Schrader v.

APPENDIXPage 3 of 13

Gillette ( 1988), 48 Ohio App.3d 181, 183. A party asserting estoppel is required to usereasonable diligence to obtain knowledge of the relevant facts. See Pedler v. Aetna Life

Ins. Co. ( 1986), 23 Ohio St.3d 7, 11, citing 42 Ohio Jurisprudence 3d (1983) 109-110,Estoppel and Waiver, Section 66.

Perkins have failed to establish an issue of fact that would cause the court toemploy equitable estoppel and the doctrine of equitable tolling of the statute oflimitations. Therefore, they have no application to the facts that are before the courtherein.

R.C. 2305.19 - Ohio Savings StatuteR.C. 2305.19 provides that "[i]n an action commenced, or attempted to be

commenced, if in due time a judgment for the plaintiff is reversed, or the plaintiff failsotherwise than upon the merits, and the time limited for the commencement of suchaction at the date of reversal or failure has expired, the plaintiff *** may commence anew action within one year after such date."

Falke states in his affidavit that the representation of the Perkins terminated in thefall of 2006, and Perkins has provided no evidence to the contrary. In any event, thestatute of limitations would have commenced to run, if not in 2006, on March 15, 2007,the date of the filing of the prior malpractice action, at the latest. Perkins have set forthno facts that would extend this date, pursuant to the discovery rule, other than the baldallegations of concealment which they have failed to raise a factual issue on..

Here, it is conceded that the prior action filed by Perkins, 2007 CV 2233 was filedwithin the appropriate statute of limitations for a malpractice action, and that this action,being dismissed pursuant to Civ.R. 41(A)(1), on April 12, 2010 "fail[ed] otherwise thanupon the merits." The statute's reference to "the time limited for commencement of suchaction" refers to the statute of limitations for an action. And, the statutory language

' ^' its app lication_ n:° a,,.+;,".' * * *+l,o

11IIIYLIIIg IL.1 a11CiaL1U LU G11U5G 61GUaGiv11J WIIG1G 111 u[tG Gtulv L11v Yluuiclil lulao

otherwise than upon the merits" restricts the application of the statute to those situationswhere the original action was filed within the statute of limitations. See, Cuyahoga App.No. 55232, unreported; Bush v. Cole (1913), 1 Ohio App. 269, 271.

As a result, the saving statute does not allow Perkins to refile a dismissed case morethan one year beyond the expiration of the statute of limitations. The Franklin CountyCourt of Appeals held that to allow such a use of the statute "would frustrate the purposeof the civil rules, which are intended to prevent indefinite filings." Hancock v. KrogerCo., 103 Ohio App.3d at 269. Accordingly, R.C. 2305.19 does not permit appellant torefile this action, since the initial action was dismissed after the expiration of the statuteof limitations and such dismissal occurred more than one year prior to the current filing.

ConclusionFor the above reasons, the court finds the motion to dismiss - converted to a

motion for summary judgment to be well taken. It is therefore sustained. The withinaction is dismissed at plaintiffs' costs and with prejudice.

APPENDIXPage 4 of 13

Included within Falke's motion was a request for attorney fees and expensesincurred in drafting and filing this motion. Because there is no evidence before the courtas to this issue, the court is precluded from granting this relief herein. If Falke wishes toproceed on this portion of the motion, they shall request, in writing, from the court,within fourteen days, a hearing date for an evidentiary hearing on the matter of attorneyfees. In the event that no such request is forthcoming, the court will overrule that portionof the motion.

This is a final appealable order, and there is not just cause for delay for purposesof Ohio Civ. R. 54. Therefore, the time for prosecution and appeal to the Second DistrictCourt of AAppeals must be computed from the date upon which this decision and entry isfiled.

IT IS SO ORDERED.

The Court further ORDERS the Clerk of this Court to serve a copy of thisdecision and Judgment Entry upon all parties within three (3) days of the entering of theJudgment on the Journal, in a manner as prescribed in Civ.R. 5(B) and note service in theappearance docket.

Dated: March 27, 2012Sumner Walters, JudgeSitting by assignment of theOhio Supreme Court

APPENDIXPage 5 of 13

^r-

^.^.

Case Title:

Case Number:

Type:

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

KATHLEEN E PERKINS vs FALKE & DUNPHY LLC

2011 CV 03232

Final Judgment Entry

So Ordered

, ... ^. ^r , ..

Sumner E. Walters

Electronically signed by swalters on 2012-03-28 page 6 of 6

APPENDIXPage 6 of 13

.......... ... .._ ._. _.._.. _..i i _ . . ._...._.._..._ ._...._ _. _.

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

KATHLEEN PERKINS, ET AL.

Appellants

vs.

C.A. CASE NO. 25162

T,C. CASE NO. 2011CV 03232

FALKE & DUNPHY, LLC, ET AL.(Civil appeal from

Appellees . Common Pleas Court)

OPINION

Rendered on the 7th day of . December , 2012.

F. HARRISON GREEN, Atty. Reg. No. 0039234, 4015 Executive Park Drive, Suite 230,

Cincinnati ,O

hio n dF'i7d1+

Attorney for Appellants

LiNDSAYJOHNSON,Atty. Reg. No. 0477753,1 South Main Street, Suite 1800, Dayton,

Ohio 45402Attomey for Appellees

HENDON, J. (by assignment):

(111 Plaintiffs--appellants Kathleen and Michael Perkins have appealed from the

trial court's grant of summary judgment on their iegal-malpractice action to defendants-

appellees Falke & Dunphy LLC and Lee Falke, (collectively referred to as "Falke").

THE COURT OF APPEALS OF OHIO APPENDIXSECOND APPELLATE DISTRICT Page 7 of 13

Because the Perkinses filed their action outside of the applicable statute of limitations,

and because the facts of this case do not support an equitable tolling of the statute of

limitations, we affirm the trial court's judgment.

Factual Background

{¶ 2} in September of 2002, the Perkinses engaged Falke to represent their

interests in a dispute over the distribution of the estate and trust of Kathleen Perkins'

mother. Falke negotiated a settlement for the Perkinses, which was entered into in

November of 2004. The settlement was finalized in court in December of 2005.

{¶ 3} On March 15, 2007, the Perkinses filed a legal-malpractice action against

Falke. The Perkinses asserted that Falke had negligently failed to prosecute claims on

their behalf and had failed to obtain an accounting from the trust of Kathleen Perkins'

mother. On April 12, 2010, the Perkinses voluntarily dismissed the malpractice

complaint pursuant to Civ.R. 41(A)(1). The Perkinses later refiled the malpractice

r.mmniaint on Mav 3 . 2011. Falke filed a motion to dismiss on the grounds that the__...^_^..-_ --- ^ •

Perkinses had not timely refiled the complaint under R.C. 2305.19, Ohio's savings

statute. In response to Falke's motion to dismiss, the Perkinses argued that Falke had

purposely concealed that, in entering into a settlement agreement concerning the estate

and trust, the Perkinses had given up certain rights to pursue additional claims and

remedies in that case. According to the Perkinses, they first discovered Falke's

concealment on April 14, 2011, when the report of their expert witness was completed.

The Perkinses argued that the doctrine of equitable estoppel should toll the statute of

limitations applicable to their malpractice claim.

TI-IE COURT OF APPEALS OF OHIO APPENDIXSECOND APPE LLATE DISTRICT Page 8 of 13

{¶ 4} The trial court converted Falke's motion to dismiss into a motion for

summary judgment. After determining that the doctrine of equitable estoppel was

inapplicable in this situation and that the statute of limitations on the malpractice claim

had already run, the court granted Falke summary judgment.

{15} The Perkinses have appealed. They argue in their sole assignment of

error that the trial court's grant of summary judgment to Falke was in error.

Standard of Review

(16) This court reviews a trial court's ruling on a motion for summary judgment

de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

A motion for summary judgment is appropriately granted when there exists no genuine

issue of material fact, the movant is entitled to judgment as a matter of law, and the

evidence, when viewed in favor of the nonmoving party, permits only one reasonable

conclusion that is adverse to the nonmoving party. State ex rel. Howard v. Ferreri, 70

nr,^n.qt.qt1 ER7_ 589_ E39 N_E.2d 1189 (1994).^......_.._--- .---.-- . .

Equitable Estoppel and the Statute of Limitations

{¶ 7} The statute of limitations applicable to a legal-malpractice claim is one

year. R.C. 2305.11(A). The limitations period begins to run "when there is a cognizable

eventwherebythe client discovers orshould have discovered that his injury was related

to his attorney's act or non-act and the client is put on notice of a need to pursue his

possible remedies against the attorney or when the attorney-client relationship for that

particular transaction or undertaking terminates, whichever occurs later." Powell v.

TI-iE COURT OF APPEALS OF OI•110 APPENDIXSECOND APPELLATE DISTRICT Page 9 of 13

Rion, 2012-Ohio-2665, 972 N.E.2d 159, ¶ 8(2d Dist.), quoting Zimmie v. Calfee, Halter

& Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989).

(18) ln an affidavit, Falke stated that his representation of the Perkinses did not

extend beyond the fall of 2006. And the Perkinses filed their first complaint for

malpractice on March 15, 2007. At the latest, the statute of limitations for the

malpractice action began to run on the latter date. So the Perkinses' refiling of their

complaint on May 3, 2011, occurred outside of the limitations period. But R.C. 2305.19,

Ohio's savings statute, provides in relevant part that "[i]n any action that is commenced

* * * if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence

a new action within one year after the date of the reversal of the judgment or the

p[aintiff s failure otherwise than upon the merits." R.C. 2305.19(A). Under this statute,

the Perkinses' claim would still be timely if filed within one year of their voluntary

dismissal of the first complaint.

190 The Perkinses voluntarilv dismissed their first malpractice complaint on^.---- - - _ _

April 12, 2010. And they refiled the claim on May 3, 2011, outside of the one year

period provided for in R.C. 2305.19(A). To place their claim within the statute of

limitations,.the Perkins argue thatthe limitations period should be equitably tolled on two

grounds: the doctrine of equitable estoppel and fraudulent concealment. According to

the Perkinses, the full extent of Falke's malpractice was not discovered until Apri! 14,

2011, when they received a report from a hired expert stating that Falke had concealed

during the course of the settlement negotiations that, if they settled, they would give up

certain rights to pursue claims and remedies in the underlying case.

THE COURT OF APPEALS OF ONIO APPENDIXSECOND APPELLATE DISTRICT Page 10 of 13

{¶ 10} We first consider the Perkinses' argument that the limitations period

should be equitably tolled based. on the doctrine of equitable estoppel. Equitable

estoppel "prevents relief when one party induces another to believe certain facts exist

and the other party changes his position in reasonable reliance on those facts to his

detriment." Chavis v. Sycamore Cty. School Disf. Bd. ofEd., 71 Ohio St.3d 26, 34, 641

N.E.2d 188 (1994). To establish a prima facie case of equitable estoppel, a plaintiff

must prove the following elements: "(1) that the defendant made a factual

misrepresentation; (2) that it is misleading; (3) [that it induced] actual reliance which is

reasonable and in good faith; and (4) [which causes] detriment to the relying party."

Nutchinson v. Wenzke, 131 Ohio App.3d 613, 616, 723 N.E.2d 176 (2d Dist.1999),

citing Doe v. Blue Cross/Blue Shield of Ohio, 79 Ohio App. 3d 369, 379, 607 N.E.2d 492

.(10th Dist.1992).

(111) Here, the trial court correctly determined that the doctrine of equitable

estonael was inapplicable to toll the statute of limitations because Falke had made no

factual misrepresentation to the Perkinses. The Perkinses allege that Falke concealed

the fact that they had given up the ability to pursue other claims and remedies in the

underlying action by entering into a settlement, butthe record contains no evidence that

Falke made a factual misrepresentation of that nature in an effort to induce them to

change their position. Further, we additionally question the reasonableness of the

Perkinses' reliance on that belief.

{¶ 12} The Perkinses additionally argue that the limitations period should be

equitablytolled on the grounds of fraudulent concealment. We have held that fraudulent

THE COURT OF APPEALS OF 01-1I0 APPENDIXSECOND APPELLATE DISTRICT Page 11 of 13

concealment may serve as a ground for equitable tolling, but that such a remedy is only

available "in compelling cases which justify a departure from established procedure."

Frees v.1TT Technical School, 2d Dist. Montgomery No. 23777, 2010-Ohio-5281,¶ 34-

35, quoting Sharp v. Ohio Civil Rights Comm., 7th Dist. Mahoning No. 04 MA 116, 2005-

Ohio-'f'119, T 10-11. To invoke equitable tolling of the statute of limitations on this

ground, a plaintiff must show that the defendant engaged in a course of conduct to

conceal evidence of the defendant's wrongdoing, and that the plaintiff, despite the

exercise of due diligence, failed to discover the facts supporting the claim. Id. at 134.

Here, there is no evidence that Falke engaged in a course of conduct to conceal from

the Perkinses the fact that all other legal remedies would be foreclosed to them

following the settlement. The Perkinses elected to settle their underlying claim rather

than continue to pursue litigation. There is no evidence that Falke continually concealed

or affirmatively misled them concerning the effect of the settlement.

{I 13} Neither equitable estoppel norfraudulent concealment support equitable

tolling of the limitations period in this case. The Perkinses refiled their complaint for

legal malpractice outside of the limitations period, and the trial court properly granted

summary judgment to Falke. The Perkinses' assignment of error is overruled, and the

judgment of the trial court is accordingly affirmed.

CUNNINGHAM and DINKELACKER, JJ., concur.

(Hon. Sylvia Sieve Hendon, Hon. Penelope R. Cunningham, and Hon. PatrickDinkelacker, First District Court of Appeals, sitting by assignment of the Chief Justiceof the Supreme Court of Ohio).

THE COURT OF APPEALS OF OHIO APPENDIXSECOND APPELLATE DISTRICT Page 12 of 13

Copies mailed to:

F. Harrison Green, Esq.Lindsay Johnson, Esq.Hon. Sumner E. Walters,Visiting Judge

THE COURT OF APPEALS OF OHIO APPENDIXsecOrrD APPELLATE DISTRICT Page 13 of 13