APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 12-CV-0038
BRYAN K. BARNARD, Attorney at Law, for Appellant.
TODD E. CHEEK, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, Judge.
(¶1} Walter Caskey appeals a judgment of the Wayne County common pleas court that dismissed his complaint against his daughter Kim Caskey, executrix of the estate of his ex-wife, Helen Caskey. For the following reasons, this Court affirms.
(¶2} Walter and Helen Caskey divorced in December 2006. According to Mr. Caskey, before they divorced, his wife asked him if they could help their daughter Kim obtain a $25, 000 loan for medical expenses. He agreed, so Ms. Caskey posted $28, 000 at Wayne Savings Bank as collateral for their daughter's loan. Thereafter, at the time of the divorce, the Caskeys stipulated that they
have $28, 000 posted as collateral at Wayne Savings Bank on an account for a loan that Wayne Savings Bank made to their daughter Kim Caskey. The loan is approximately $25, 000 plus interest. The parties agree [that] they will utilize the $28, 000 and pay off the loan. The parties agree [that] the repayment by Kim Caskey shall be made equally to each party.
(¶3} Helen Caskey died in December 2010. In September 2011, Mr. Caskey sued their daughter because he had never received any payments from her. Then, according to Mr. Caskey, when he took his daughter's deposition in December 2011, he learned that, instead of loaning the $25, 000 to their daughter as they had agreed, Ms. Caskey used the $28, 000 posted as collateral for their daughter's loan to pay the bank the balance on the loan and had instructed their daughter that in doing so, they were gifting this amount to her and she would not be obligated to repay any monies to them. He, therefore, dismissed his action against his daughter and, in January 2012, filed an action against Ms. Caskey's estate, alleging that the decedent, Helen Caskey, had made fraudulent misrepresentations to him about how the $28, 000 asset would be divided and retained or returned to the parties pursuant to the terms of their divorce decree.
(¶4} Following discovery, the Estate moved for summary judgment, arguing that Mr. Caskey could not prove the elements of fraud, that his claim was untimely under Revised Code Section 2117.06 because he did not present it within six months after Ms. Caskey's death, that his claim was barred by the four-year statute of limitations under Section 2305.09(C), and that his claim did not satisfy Civil Rule 60(B). The trial court granted its motion, determining that Mr. Caskey knew or should have known about the alleged fraud as of July 26, 2007. It, therefore, concluded that his claim was barred by the four-year statute of limitations under Section 2305.09(C). Mr. Caskey has timely appealed the trial court's judgment.
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANT/APPELLEE KIM CASKEY, EXECUTRIX SUMMARY JUDGMENT.
(¶5} Mr. Caskey argues that the trial court incorrectly granted summary judgment to the Estate. Under Civil Rule 56(C), summary judgment is appropriate if
(1) [n]o 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 party against whom the ...