Kunz v. Reisenfeld

[Cite as Kunz v. Reisenfeld, 2012-Ohio-5460.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
LINDEN L. KUNZ, : APPEAL NO. C-120179
TRIAL NO. A-1010655
and :
O P I N I O N.
MT. CARMEL COMMUNICATIONS, :
LLC,
:
Plaintiffs-Appellants,
:
vs.
:
BERYL L. REISENFELD, Executrix of
the Estate of Sylvan P. Reisenfeld, :
and :
REISENFELD & ASSOCIATES, LPA, :
LLC,
:
Defendants-Appellees.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 28, 2012
F. Harrison Green Co., LPA, and F. Harrison Green, for Plaintiffs-Appellants,
Montgomery, Rennie & Jonson, George D. Jonson, and Todd G. Hoffpauir, for
Defendants-Appellees.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Presiding Judge.
{¶1} Plaintiffs-appellants Linden L. Kunz and Mt. Carmel Communications,
LLC, appeal the summary judgment entered by the Hamilton County Court of Common
Pleas in favor of defendants-appellees Beryl L. Reisenfeld, executrix of the estate of
Sylvan P. Reisenfeld, and Reisenfeld & Associates, LPA, LLC, in a legal-malpractice
action. 1
The Sale of Kunz’s Farm to Harvey
{¶2} Kunz owned a farm with a cellular-telephone tower. In 1996, he
entered into a lease with AT&T for use of the tower. Subsequently, Cincinnati Bell
Wireless (“CBW”) succeeded AT&T as lessee of the tower. And at some point during
the term of the lease, Kunz formed Mt. Carmel Communications to serve as the
nominal lessor.
{¶3} In 2004, Kunz began negotiating with Willard Harvey to sell the farm.
Kunz gave Harvey two prices for the farm: one price for the farm alone and a greater
price for the farm with the rights to the income from the tower. The parties agreed
on the lesser price, and Kunz hired attorney Maury Tepper to prepare a sales
contract. But because Tepper retired during the pendency of the sale, Kunz retained
Reisenfeld to review the contract.
{¶4} The contract specified that Harvey would “not receive any of the
income from the [tower] lease but that the land will be burdened with the obligations
imposed by the said lease.” The agreement further stated that Harvey would “not
receive any income from any future lease[s] with co-locating companies of the cell
tower.” Reisenfeld made some minor changes to the contract, but he indicated that
1
During the pendency of the appeal, Sylvan P. Reisenfeld died. On October 31, 2012, this court
granted the appellants’ motion to substitute Beryl L. Reisenfeld, executrix of the estate of Sylvan
P. Reisenfeld, for Sylvan P. Reisenfeld. See App.R. 29(A). In this opinion, “Reisenfeld” will refer
to Sylvan P. Reisenfeld.
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OHIO FIRST DISTRICT COURT OF APPEALS
the substance of the agreement would accomplish Kunz’s intent, namely to sell the
farm but to retain leasing rights to the tower. Kunz and Harvey executed the sales
contract on October 10, 2004.
{¶5} The CBW lease was to expire in 2006, and CBW would not renew the
lease unless Harvey were to have an interest in the tower. At issue was CBW’s need
for access to the tower and its related equipment. To allay the concerns of CBW,
Harvey became a party to the lease. Kunz and Harvey then reached an oral
agreement whereby Harvey would receive a portion of the rent but would forward
$400 to Kunz on a monthly basis. Harvey began making the monthly payments in
late 2005 or early 2006.
{¶6} Kunz signed an agreement to renew the lease with CBW in April 2006.
In the meantime, Reisenfeld had prepared a written contract to memorialize the oral
agreement requiring Harvey to forward the rent payments. Harvey never signed that
agreement.
{¶7} A dispute arose between Kunz and CBW when another company,
Nextel, declined to be a co-lessee with CBW. In June 2006, Kunz asked Reisenfeld to
pursue legal action against CBW, but Reisenfeld refused in a letter dated July 10,
2006.
Harvey Stops Making Payments
{¶8} On May 16, 2007, Harvey informed Kunz on the telephone that he
would no longer be forwarding the payments because Reisenfeld had “screwed up”
the paperwork intended to protect Kunz’s rights to the tower income. Kunz then
consulted with attorney Jim Meckstroth, who was an expert in registered land. Kunz
retained Meckstroth to prepare an “affidavit for adverse claim” to be filed on the
farm’s registered land certificate.
{¶9} On June 7, 2007, Kunz informed Reisenfeld that Harvey had ceased
making payments due to Reisenfeld’s alleged negligence, and he asked Reisenfeld to
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OHIO FIRST DISTRICT COURT OF APPEALS
review the affidavit for adverse claim. On June 14, 2007, Reisenfeld responded that
“the allegation by Harvey that I screwed up and did not file the proper papers is
absolutely untrue.” Reisenfeld informed Kunz that he would not represent him in his
efforts to pursue Harvey for payment. He advised Kunz to contact the Cincinnati Bar
Association for an expert in real-estate law.
{¶10} Kunz did consult with several real-estate experts. On September 4,
2007, he wrote to Reisenfeld and informed him that those experts had found his
work to have been deficient.
{¶11} On June 13, 2008, Kunz filed the malpractice action against
Reisenfeld, claiming that he had negligently failed to protect his interests in the cell
tower. Kunz voluntarily dismissed the action without prejudice under Civ.R. 41(A)
on May 13, 2010, and refiled it on November 22, 2010.
{¶12} Reisenfeld filed a motion for summary judgment, contending that the
lawsuit was barred by the applicable statute of limitations. The trial court granted
Reisenfeld’s motion for summary judgment.
Statute of Limitations
{¶13} In a single assignment of error, Kunz argues that the trial court erred
in granting summary judgment in favor of Reisenfeld. Specifically, he contends that
the court erred in holding that he had filed the complaint after the expiration of the
limitations period.
{¶14} Under Civ.R. 56(C), a motion for summary judgment may be granted
only when no genuine issue of material fact remains to be litigated, the moving party
is entitled to judgment as a matter of law, and it appears from the evidence that
reasonable minds can come to but one conclusion, and with the evidence construed
most strongly in favor of the nonmoving party, that conclusion is adverse to that
party. See State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189(1994). This court reviews the granting of summary judgment de novo. Jorg v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d
781, ¶ 6 (1st Dist.)
{¶15} A legal-malpractice action must be brought within one year of the
accrual of the action. R.C. 2305.11(A). An action for legal malpractice accrues either
(1) when there is a cognizable event by which the plaintiff discovers or should
discover the injury underlying the claim and is put on notice of the need to pursue
potential remedies against the attorney; or (2) when the attorney-client relationship
for the transaction in question ends, whichever occurs later. Roberts v. Maichl, 1st
Dist. No. C-040002, 2004-Ohio-4665, ¶ 20.
{¶16} In the case at bar, the evidence indicated that the attorney-client
relationship terminated at the latest in July 2006, when Reisenfeld declined to
represent Kunz in his dispute with CBW. Because the action would have been time-
barred using the date of termination, we must determine if a cognizable event had
occurred after the attorney-client relationship had ended.
{¶17} A plaintiff need not be aware of the full extent of his damages for a
cognizable event to have occurred. Zimmie v. Calfee, Halter & Griswold, 43 Ohio
St.3d 54, 58, 538 N.E.2d 398 (1989). It is enough that some noteworthy event has
occurred that would alert a reasonable person of an impropriety. Id.{¶18} In this case, the cognizable event was Harvey’s withholding of the rent
payments and his explanation to Kunz that he had stopped paying because
Reisenfeld had “screwed up” the transaction. Harvey’s actions prompted Kunz to
consult with Meckstroth, and Kunz accepted Meckstroth’s opinion that further action
was necessary to preserve (or resuscitate) his interest in the tower income. Thus, the
cognizable event occurred on May 16, 2007. Assuming that to be the date of accrual,
the suit was filed after the expiration of the limitations period.
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OHIO FIRST DISTRICT COURT OF APPEALS
Equitable Estoppel
{¶19} But Kunz invokes the doctrine of equitable estoppel in arguing that the
statute of limitations should have been tolled. Specifically, he contends that
Reisenfeld had misled him when he denied any negligence in his handling of the sale.
Kunz further contends that he had relied on Reisenfeld’s denial in failing to file suit
within the limitations period.
{¶20} A prima facie case of equitable estoppel requires the plaintiff to
demonstrate that (1) the defendant made a factual misrepresentation; (2) the
misrepresentation was misleading; (3) that it induced actual reliance that was
reasonable and in good faith; and (4) that it caused detriment to the relying party.
Daniels v. Bertke Elec. Co., 1st Dist. No. C-970419, 1998 Ohio App. LEXIS 969, *4-5
(March 13, 1998), citing First Fed. S. & L. Assn. v. Perry’s Landing, Inc., 11 Ohio
App.3d 135, 145, 463 N.E.2d 636 (6th Dist.1983). To prove equitable estoppel, the
plaintiff must demonstrate actual or constructive fraud. State ex rel. Ryan v. State
Teachers Retirement Sys., 71 Ohio St.3d 362, 368, 643 N.E.2d 1122 (1994).
{¶21} We find no merit in Kunz’s argument. First, Kunz has failed to
demonstrate that Reisenfeld made any factual misrepresentation. In denying that he
had done anything improper, Reisenfeld merely stated his opinion that he had done
all that was necessary to protect Kunz’s rights. He did not conceal any material facts
or misrepresent any actions that he had taken on Kunz’s behalf. And contrary to
Kunz’s suggestion that Reisenfeld’s objective was to forestall any legal action,
Reisenfeld explicitly told Kunz that he should contact the Cincinnati Bar Association
and seek the advice of a real-estate expert. There was simply no evidence that
Reisenfeld engaged in actual or constructive fraud.
{¶22} Moreover, as Reisenfeld aptly notes, there was no evidence that Kunz
relied on Reisenfeld’s statements to his detriment. The uncontroverted evidence was
that, even after Reisenfeld’s denial of any wrongdoing, Kunz had continued to
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OHIO FIRST DISTRICT COURT OF APPEALS
consult with real-estate attorneys about Reisenfeld’s alleged deficiencies and that he
had accepted their opinions with respect to Reisenfeld’s performance. Accordingly,
even if Reisenfeld’s assertions could be interpreted as misleading, there was no
showing of reliance. Thus, Kunz failed to make a prima facie showing of equitable
estoppel, and we overrule the assignment of error.
Conclusion
{¶23} Consequently, we affirm the judgment of the trial court.
Judgment affirmed.
SUNDERMANN and FISCHER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this decision.
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