[Cite as Perkins v. Falke & Dunphy, L.L.C., 2012-Ohio-5799.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

KATHLEEN PERKINS, ET AL. : 

Appellants : C.A. CASE NO. 25162 

vs. : T.C. CASE NO. 2011CV 03232 

 

 

FALKE & DUNPHY, LLC, ET AL. : 

 (Civil appeal from 

Appellees : Common Pleas Court) 

 . . . . . . . . . 

O P I N I O N

 Rendered on the 7th day of December , 2012. 

 . . . . . . . . . 

 

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

Cincinnati, Ohio 45241 

Attorney for Appellants 

LINDSAY JOHNSON, Atty. Reg. No. 0077753, 1 South Main Street, Suite 1800, Dayton, 

Ohio 45402 

Attorney for Appellees 

 . . . . . . . . . 

HENDON, J. (by assignment): 

{¶ 1} Plaintiffs-appellants Kathleen and Michael Perkins have appealed from 

the trial court’s grant of summary judgment on their legal-malpractice action to 
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defendants-appellees Falke & Dunphy LLC and Lee Falke, (collectively referred to as 

“Falke”). 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 complaint on May 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. 
[Cite as Perkins v. Falke & Dunphy, L.L.C., 2012-Ohio-5799.]

{¶ 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. 

{¶ 5} 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

{¶ 6} 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 Ohio St.3d 587, 589, 

639 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 event 

whereby the client discovers or should 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. Rion, 
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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). 

{¶ 8} In 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 plaintiff’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. 

{¶ 9} The Perkinses voluntarily 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 that the 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 April 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. 
[Cite as Perkins v. Falke & Dunphy, L.L.C., 2012-Ohio-5799.]

{¶ 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 Dist. Bd. of Ed., 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.” Hutchinson 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). 

{¶ 11} Here, the trial court correctly determined that the doctrine of equitable 

estoppel 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, but the 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 

equitably tolled on the grounds of fraudulent concealment. We have held that fraudulent 

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 
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v. ITT 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-1119, ¶ 

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 ¶ 34. 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. 

{¶ 13} Neither equitable estoppel nor fraudulent 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. Patrick Dinkelacker, 

First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme 

Court of Ohio). 

Copies mailed to: 

F. Harrison Green, Esq. 
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Lindsay Johnson, Esq. 

Hon. Sumner E. Walters, 

Visiting Judge