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Gruber v. Kopf Builders9/20/2001
four elements: (1) that the defendant made a factual misrepresentation, (2) that it is misleading, (3) that it induces actual reliance which is reasonable and in good faith, and (4) that it cause detriment to the relying party. Romine at 654.
First and foremost, appellant cannot show that the defendant made a factual misrepresentation at all. Because appellant does not even meet the first element of equitable estoppel, this argument fails. Hence, appellant's reliance upon the case of Hutchinson v. Wenzke (1999), 131 Ohio App.3d. 613, 723 N.E.2d 176, is misplaced. In Hutchinson, unlike the situation here, the defendants expressly agreed, in writing, that the plaintiff could refile a third complaint. In this case, there is no express written consent by any of the defendants indicating that appellant could file Gruber II outside the one-year limitation period specified in R.C. 2305.19. Absent the express approval that existed in Hutchinson, appellant cannot meet the rest of the elements of equitable estoppel. This argument, therefore, is without merit.
Because the trial court lacked jurisdiction to proceed in this case, appellant's remaining assignments of error are moot and will not be addressed. Accordingly, we hold that the appellees' joint motion to dismiss is granted. The within appeal is dismissed for appellant's untimely filing of this case which was outside the strict one-year time period set forth in R.C. 2305.19.
Judgment accordingly.
It is ordered that appellees recover of appellant their costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHAEL J. CORRIGAN, J., and PATRICIA ANN BLACKMON, J., CONCUR.
DIANE KARPINSKI ADMINISTRATIVE JUDGE
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