Caskey v. Caskey
Opinion
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
WALTER CASKEY C.A. No. 12CA0052 Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE
KIM CASKEY, EXECUTRIX COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO
Appellee CASE No. 12-CV-0038
DECISION AND JOURNAL ENTRY Dated: September 16, 2013
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.
I.
{¶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.
II.
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 motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for summary judgment, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E).
{¶6} Under Section 2305.09(C), an action “[f]or relief on the ground of fraud” “shall be brought within four years after the cause thereof accrued[.]” Section 2305.09(E) provides that, if an action is for fraud, “the cause[ ] * * * shall not accrue * * * until the fraud is discovered.” Mr. Caskey argues that even though Ms. Caskey committed the alleged fraud in 2006, because he did not learn about her gift to their daughter until 2011, his action is timely under Section 2305.09.
{¶7} Interpreting Section 2305.09, the Ohio Supreme Court has explained that “[a]
cause of action for fraud * * * accrues either when the fraud is discovered, or [when] in the exercise of reasonable diligence, the fraud should have been discovered.” Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, ¶ 29. “When determining whether the exercise of reasonable diligence should have discovered a case of fraud, the relevant inquiry is whether the facts known ‘would lead a fair and prudent man, using ordinary care and thoughtfulness, to make further inquiry * * *.’” Id., quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 181 (1984). “Reasonable diligence * * * entails some effort by the [party] to dispel his confusion,
doubt, or suspicion.” Woodrow v. Heintschel, 194 Ohio App.3d 391, 2011-Ohio-1840, ¶ 41 (6th Dist.).
{¶8} On July 26, 2007, Mr. Caskey wrote a letter to his ex-wife notifying her that he was
going to sign a civil suit on [their daughter] to get $12,500 that she owes to me. I don’t have all the money to do this, but I’ll borrow it somewhere. [Daughter]
owes to me the same amount that I owe you. You screwed me on the house, furniture, garage tools, 4 or 5 thousand dollars on the car, bank account, IRA, the $28,000 at Wayne Savings, [and] $15,000 on the motor home.
When asked about the letter at his deposition, Mr. Caskey testified that, at the time he wrote the letter, he “knew or had some * * * belief at that time that [Ms. Caskey had] misled [him] in some way” at the time of their divorce. Upon being asked follow-up questions about what he knew at the time that he wrote the letter, Mr. Caskey clarified that his “opinion that * * * [Ms. Caskey] had misled [him] in the divorce case, included an opinion that [he] believed she misled [him] about the * * * funds that are in dispute in this lawsuit * * *.”
{¶9} Viewing the evidence in a light most favorable to Mr. Caskey, we agree with the trial court that Mr. Caskey’s letter and deposition testimony demonstrates that, when he wrote the July 26, 2007, letter, he had enough suspicion about what had happened to the $28,000 that he and his ex-wife had posted as collateral for their daughter’s loan that “a fair and prudent man, using ordinary care and thoughtfulness, [would have made] further inquiry.” Cundall at ¶ 29, quoting Hambleton at 181. The court correctly determined that, if Mr. Caskey had exercised reasonable diligence, he should have known by July 26, 2007, that his ex-wife had not disposed of the money as they had agreed. Accordingly, his January 27, 2012, claim for fraud was not timely under Section 2305.09(C). Ms. Caskey’s assignment of error is overruled.
III.
{¶10} The trial court correctly granted summary judgment to Ms. Caskey’s estate. The judgment of the Wayne County common pleas court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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