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David L. Humphrey v. Robert Garbo

October 3, 2011

DAVID L. HUMPHREY PLAINTIFF-APPELLANT
v.
ROBERT GARBO, ET AL. DEFENDANTS-APPELLEES



CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CV00429

The opinion of the court was delivered by: Farmer, J.

JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J.

OPINION

JUDGMENT: Affirmed

{¶1} In 2008, appellant, David Humphrey, was a candidate for judge of the Court of Common Pleas of Perry County, Ohio. His opponent was incumbent, appellee, Luann Cooperrider. Appellant's campaign against appellee Cooperrider focused on a real estate transfer from appellee Cooperrider to appellee Hocking Athens Perry Community Action Agency (hereinafter "HAPCAA"). Appellant questioned the assertion that the conveyance was a gift.

{¶2} On October 15, 2008, a letter written by appellees, HAPCAA's Executive Director, Robert Garbo, and HAPCAA's Board President, Jim Hart, was delivered to The Perry County Tribune, the Perry County Republican Party, and appellee Cooperrider. The letter attempted to explain the nature of the conveyance. Appellant was not named in the letter. Appellant contends the Republican Party Central Committee reviewed the letter and withdrew their endorsement of him on same date. The letter was printed in the Tribune on October 22, 2008.

{¶3} On October 19, 2009, appellant filed a complaint against appellees Garbo, Hart, and HAPCAA, claiming defamation and civil conspiracy. On September 9, 2010, appellant filed an amended complaint adding appellees Cooperrider, Christine DeLamatre, and Cherie Gall.

{¶4} Appellees filed motions for summary judgment. By entry filed January 4, 2011, the trial court granted summary judgment to all defendants, finding the amended complaint, filed one year and four days after the publication of the letter, violated the statute of limitations, and there was no evidence of defamation.

{¶5} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

{¶6} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS APPLICATION OF THE ONE YEAR STATUTE OF LIMITATIONS TO DEFENDANTS' LIBELOUS PUBLICATION ON OCTOBER 22, 2008 AND SUCH FINDING MUST BE REVERSED."

II

{¶7} "THERE IS NO GIFT LANGUAGE IN THE LEASE TO PURCHASE AND THEREFORE THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FOUND GIFT LANGUAGE THAT DOES NOT EXIST, AND SUCH FINDING MUST BE REVERSED AND THIS TRANSACTION HELD TO BE A PURCHASE."

III

{¶8} "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT DETERMINED COOPERRIDER HAD NO CHOICE BUT TO SURRENDER THE PROPERTY YET STILL HELD THAT THIS WAS A GIFT."

IV

{¶9} "THE TRIAL COURT'S FINDING THAT SUMMARY JUDGMENT SHOULD BE GRANTED ON THE MERITS IS BASED ON THE JUDGE'S PREJUDICIAL ERROR FINDING THAT THERE WAS GIFT LANGUAGE IN THE LEASE AND THEREFORE SUMMARY JUDGMENT ON THE MERITS SHOULD BE DENIED."

I, II, III, IV

{¶10} Appellant claims the trial court erred in granting summary judgment to appellees. Specifically, appellant claims the trial court erred in finding his complaint was barred by the statue of limitations, R.C. 2305.11, and in finding "gift language" in the real estate document between appellees Cooperrider and HAPCAA. We disagree.

{¶11} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

{¶12} "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274."

{ΒΆ13} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy ...


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