Wilson v. Lawrence , 2015 Ohio 4677 ( 2015 )

[Cite as Wilson v. Lawrence, 2015-Ohio-4677.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102585
JAMES A. WILSON
PLAINTIFF-APPELLANT
vs.
WILLIAM LAWRENCE, EXECUTOR, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-817159
BEFORE: Keough, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 12, 2015
ATTORNEY FOR APPELLANT
Joseph J. Triscaro
Demarco & Triscaro, Ltd.
30505 Bainbridge Road, Suite 110
Solon, Ohio 44139
ATTORNEYS FOR APPELLEES
Matthew T. Wholey
James A. Goldsmith
Ulmer & Berne, L.L.P.
Skylight Office Tower
1660 W. 2nd Street, Suite 1100
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Plaintiff-appellant, James A. Wilson (“Wilson”), appeals the trial court’s decision
granting summary judgment in favor of defendant-appellee, William Lawrence, Executor for the
Estate of Joseph T. Gorman. Wilson also appeals the trial court’s decision denying his motion
for summary judgment against the estate. For the reasons that follow, we reverse and remand.
{¶2} In September 2011, Wilson and Gorman entered into a contract where Gorman
agreed to purchase a 15 percent interest in Marine 1, L.L.C. for $300,000. The contract
provided for payment in two phases: an initial payment of $100,000 at or near the time of the
closing and quarterly payments of $50,000 for two years thereafter. Thus, the full purchase price
was due on September 2, 2012. The first $100,000 was paid in full. Gorman did not make
quarterly payments as specified in the contract, but sent monthly installments instead, with the
last payment made on December 27, 2012. A total of $113,000 was paid by Gorman under the
contract prior to his death on January 20, 2013. A balance of $187,000 plus interest remained
unpaid.
{¶3} In November 2013, Wilson filed a breach of contract action against Lawrence, as
executor of Gorman’s estate, and Moxahela Enterprises, L.L.C. for monies due from Gorman on
the unpaid contract. 1 Lawrence moved to dismiss the action pursuant to Civ.R. 12(B)(6),
contending that the complaint was time-barred under R.C. 2117.06(B) and (C). The trial court
denied the motion, concluding that statute of limitation challenges usually involve factual
determinations; thus, outside the reach of Civ.R. 12(B)(6) review.
1
All claims against Moxahela Enterprises, L.L.C. were voluntarily dismissed pursuant to
Civ.R. 41(A)(1)(a) in November 2014.
{¶4} Following discovery, Lawrence moved for summary judgment again arguing that
Wilson’s complaint was time-barred under R.C. 2117.06. Wilson opposed the motion,
advocating that his claim was presented to the executor of the estate within the six-month time
frame as required by R.C. 2117.06. Wilson also filed a cross motion for summary judgment on
his breach of contract claim.
{¶5} In January 2015, the trial court granted Lawrence’s motion for summary judgment.
In its written decision, the court stated,
[Plaintiff] brings his action against the executor of an estate. The undisputed
evidence is that [plaintiff] did not satisfy the requirements of R.C. 2117.06 for
presenting claims against an estate within the applicable time period.
Specifically, plaintiff’s 7/11/13 letter giving notice of his claim against the
decedent and his estate which letter was addressed and delivered to two
individuals who were not in fact personal representatives of the decedent’s estate
was not legally sufficient as a matter of law under R.C. 2117.06. The letter does
not factually or legally amount to notice of a claim to the executor in writing.
Upon the undisputed material evidence, although that evidence is construed most
strongly in favor of [plaintiff], a reasonable trier of fact could come to but one
conclusion. Judgment is entered in favor of [defendant] Lawrence and against
[plaintiff] as a matter of law upon all claims of [plaintiff’s] complaint.
{¶6} Within this same ruling, the trial court denied Wilson’s cross motion for summary
judgment “since the undisputed evidence in the record shows [plaintiff] is not entitled to
judgment in his favor.”
{¶7} It is from these rulings that Wilson appeals, raising two assignments of error. In his
first assignment of error, Wilson challenges the trial court’s decision granting summary judgment
in favor of Lawrence. In his second assignment of error, Wilson challenges the trial court’s
decision denying his motion for summary judgment.
{¶8} An appellate court reviews a decision granting summary judgment on a de novo
basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary
judgment is properly granted when (1) there is no genuine issue as to any material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to
but one conclusion, and that conclusion is adverse to the party against whom the motion for
summary judgment is made. Civ.R. 56(C); State ex rel. Duganitz v. Ohio Adult Parole Auth., 77
Ohio St.3d 190, 191, 672 N.E.2d 654 (1996). Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
Civ.R. 56(C), the nonmoving party must set forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d
447, 449, 663 N.E.2d 639 (1996).
{¶9} Lawrence moved for summary judgment contending that Wilson did not comply
with R.C. 2117.06; thus, his claim against the estate is forever barred.
{¶10} R.C. 2117.06 provides, in relevant part,
A) All creditors having claims against an estate, including claims arising out of
contract, out of tort, on cognovit notes, or on judgments, whether due or not due,
secured or unsecured, liquidated or unliquidated, shall present their claims in one
of the following manners:
(1) After the appointment of an executor or administrator and prior to the filing
of a final account or a certificate of termination, in one of the following manners:
(a) To the executor or administrator in a writing * * *.
{¶11} In this case, Gorman passed away on January 20, 2013. According to R.C.
2117.06, Wilson had six months to present his claim against Gorman’s estate or by July 20,
2013. Lawrence was appointed as executor of Gorman’s estate on July 1, 2013, which was prior
to Wilson sending any formal writing making a claim against the estate. Therefore, Wilson
needed to comply with R.C. 2117.06(A)(1) in presenting his claim.
{¶12} On July 11, 2013, Wilson sent a letter addressed to both Randall S. Myeroff,
Trustee, and Pat Clark. Myeroff was an accountant with Cohen and Company that handled
Gorman’s account during the time Gorman and Wilson entered into the contract at issue. He
was also the Successor Trustee for Gorman’s Revocable Trust. Clark was Gorman’s executive
assistant who Wilson communicated with about payment under the contract. While the letter
was addressed to both Myeroff and Clark, the salutation of the letter was directed to “[t]o the
heirs, administrators or executors of the Estate of; and the trustees or beneficiaries of the trust of;
or any other creditors or interested persons in the proceeds of the Trust and/or Estate of Joseph T.
Gorman, deceased * * *.”
{¶13} Myeroff and Clark each testified at deposition that they received the letter.
Myeroff testified that he received the letter on July 12, 2013, and forwarded the letter to
Lawrence and the attorney for the estate, James A. Goldsmith “at or about the same time [he]
received it * * * probably within a week.” (Deposition Randall Myeroff, p. 10-11.) Clark
testified that she forwarded the letter on to Attorney Goldsmith “on the day [she] received it.”
(Deposition Patricia Clark, p. 34.)
{¶14} In a letter dated September 24, 2013, to Wilson’s attorney, Attorney Goldsmith
rejected the claim Wilson made against the Gorman’s Estate because “it was not presented to the
Executor of the Estate in accordance with the Ohio Revised Code.” The letter acknowledges
that the attorney was aware that Wilson sent correspondence to Myeroff and Clark. “It has
recently come to my attention that on behalf of your client, James Wilson, you mailed
correspondence to the successor Trustee of the decedent’s trust and the decedent’s executive
assistant regarding a claim Mr. Wilson allegedly has against the decedent’s estate.” The letter
concludes that “[t]he mailing of this claim to the trustee of the decedent’s trust and to his
executive assistant are insufficient to effectuate the filing of an appropriate claim.”
{¶15} The issue before this court is whether Wilson “presented” his claim against
Gorman’s estate prior to the six-month deadline pursuant to R.C. 2117.06. Lawrence contends
that Wilson did not “present” the letter to the executor as required under R.C. 2117.06 because
Wilson did not send or address the letter directly to the executor. Rather, Lawrence
characterizes Wilson’s letter as a “shot in the dark” because the statutory deadline for
presentment was rapidly approaching. Wilson contends the letter he sent was sufficient because
it ultimately was presented the executor, or at the very least, the attorney for the estate prior to
the six-month deadline.
{¶16} The presentation requirement of R.C. 2117.06 is mandatory. Fortelka v. Meifert,
176 Ohio St. 476, 480, 200 N.E.2d 318 (1964), citing Beach v. Mizner, 131 Ohio St. 481, 485, 3
N.E.2d 417 (1936); In Prudential Ins. Co. of Am. v. Joyce Bldg. Realty Co., 143 Ohio St. 564, 56
N.E.2d 168 (1944). Under R.C. 2117.06, only a written presentment provided to the
administrator during the statutory time period can constitute the presentment of a claim within
the meaning of the statute. Id. Therefore, the presentment of a claim in writing to the
administrator of an estate is a condition precedent to a creditor bringing suit on that claim.
Morgan v. City Natl. Bank & Trust Co., 4 Ohio App.2d 417, 418, 212 N.E.2d 822 (10th
Dist.1964).
{¶17} However, in Fortelka, the Supreme Court considered whether the filing of an
action without an allegation of prior presentment constitutes a valid presentment of the creditor’s
claim to the administrator and meets the requirements of R.C. 2117.06. Id. at the syllabus. The
court recognized that the usual manner of presentment contemplated by the statute does not
preclude any other efficient means of notifying the fiduciary of the existence of a claim against
the estate. Id. at 480.
“Since the law does not require a claimant or litigant to do a vain thing, the
mandatory provisions of the statute requiring presentation in writing to the
personal representative of claims against the estate he represents, are said to be
quite uniformly softened and not enjoined when the application of such provisions
would run contrary to reason and common sense.”
Id., quoting 22 Ohio Jurisprudence (2d), 653, Section 293.
{¶18} Clearly, the presentment of the claim in Fortelka was not prior to filing suit, but the
Ohio Supreme Court recognized that the manner of presentment is not to be strictly considered
when considering the facts of the case.
{¶19} Recognizing this “softened” consideration, this court has determined that a claim is
“presented” under R.C. 2117.06 when it is received by the executor of administrator or the
attorney for the estate Cannell v. Bulicek, 8th Dist. Cuyahoga No. 41362, 1980 Ohio App.
LEXIS 12203, *2-3 (May 22, 1980), citing In re Estate of McCracken, 9 Ohio Misc. 195, 224
N.E.2d 181 (P.C. 1967).
{¶20} The Second District reached the same conclusion in Peoples Natl. Bank v. Treon,
16 Ohio App.3d 410, 476 N.E.2d 372 (2d Dist.1984). The court held that a claim presented to
the executor’s attorney satisfies the statutory presentment requirements under R.C. 2117.06. Id.at syllabus; see also In re Estate of Clark, 11 Ohio Misc. 103, 229 N.E.2d 122 (C.P.
1967)(holding that receipt of written notice of claim by the attorney for the executor constitutes
statutory presentment).
{¶21} Additionally, the Sixth Circuit considered whether the decedent’s accountant could
satisfy the presentment requirement under R.C. 2117.06 in Hart v. Johnston, 389 F.2d 239 (6th
Cir.1968). In Hart, the court found that a question of fact existed regarding whether a claim was
presented pursuant to R.C. 2117.06 when the accountant for decedent corresponded with the
claimant and the accountant discussed claimant’s debt with administrator.2
{¶22} Accordingly, Lawrence’s strict interpretation of R.C. 2117.06 that the claim be
directly presented to the administrator is rejected. As previously cited, courts, including this
court, have upheld claims when the administrator was not the direct recipient of the claim. A
claim may be deemed presented when other individuals connected with the estate receive the
claim. Accordingly, the fact that Wilson’s claim was forwarded to the estate attorney and the
executor by a third party, who were connected with the decedent, is of no consequence; Wilson’s
“shot in the dark” possibly hit the target.
{¶23} Applying the softened standard to the presentment requirements to the facts of this
case, and viewing those facts in the light most favorable to the nonmoving party, Wilson, we find
that a genuine issue of material fact exists that would defeat Lawrence’s motion for summary
judgment.
2
But see Jackson v. Stevens, 4th Dist. Scioto No. CA 1231, 1980 Ohio App.
LEXIS 12905 (Jan. 24, 1980) (notice of claim sent to a third party, with copies of the
claim letters sent and received by the executor prior to the statutory deadline was
insufficient presentment under the statute). However, we find that Jackson is only
persuasive authority and has not been relied on or cited as authority by any other
reviewing court, including the Fourth District.
{¶24} The record before us does not conclusively show when Wilson’s letter and claim
were received by Lawrence or the attorney. Rather a question of fact remains — whether
Lawrence or Attorney Goldsmith received Wilson’s claim prior to the July 20, 2013 deadline.
Both Myeroff and Clark testified that upon receipt of the letter, they immediately forwarded the
letter to Attorney Goldsmith. Myeroff further testified that he sent it to Lawrence as well. If
either Lawrence or the attorney received the claim prior to the deadline, then, the claim was
presented to the executor pursuant to R.C. 2117.06. See Cannell, 8th Dist. Cuyahoga No.
41362, 1980 Ohio App. LEXIS 12203 (question of fact existed as to when the executor actually
received the claim because the evidence showed that the claimant mailed the claim prior to the
expiration of the statutory time but the executor did not locate the mailed claim, which was found
under a stack of books, until after the time expired).
{¶25} Accordingly, a genuine issue of material facts exists that would defeat Lawrence’s
motion for summary judgment. Wilson’s first assignment of error is sustained. In so holding,
we further find that the trial court did not err in denying Wilson’s motion for summary judgment,
albeit we find for a different reason — a genuine issue of material fact exists whether the claim
was timely presented. Wilson’s second assignment of error is overruled.
{¶26} Judgment reversed and remanded for further proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
MARY J. BOYLE, J., DISSENTS (SEE SEPARATE OPINION)
MARY J. BOYLE, J., DISSENTING:
{¶27} I respectfully dissent and would affirm the trial court’s decision in its entirety.
{¶28} I disagree with the majority’s application of the presentation requirement under
R.C. 2117.06(A)(1)(a). The plain language of the relevant provision makes clear that “[a]ll
creditors having claims against an estate * * * shall present their claims * * *, [a]fter the
appointment of an executor or administrator and prior to the filing of a final account or a
certificate of termination, [t]o the executor or administrator in writing.” Therefore, in order for
creditors to present their claims, they must ascertain the identity of the executor or administrator
of the estate. Children’s Med. Ctr. v. Ward, 87 Ohio App.3d 504, 507, 622 N.E.2d 692 (2d
Dist.1993). Furthermore, “where one has a claim against an estate, it is incumbent upon him, if
no administrator has been appointed, to procure the appointment of an administrator against
whom he can proceed.” Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E.2d 587 (1963),
paragraph two of the syllabus.
{¶29} Recognizing the agency relationship between an attorney and his or her clients,
Ohio courts have held that the presentation requirement may also be satisfied when creditors
present their claims to an executor’s attorney. See Peoples Natl. Bank v. Treon, 16 Ohio
App.3d 410, 476 N.E.2d 372 (2d Dist.1984).
{¶30} In this case, Wilson admits that he did not know the identity of the executor.
Further, Wilson never notified the executor or the executor’s attorney. Instead, Wilson
delivered a letter to two individuals who were neither the executors nor personal representatives
of the decedent’s estate, and these individuals forwarded Wilson’s letter on to the executor.
Under these facts, I find that Wilson failed to present his claim to the executor.
{¶31} I find the Fourth District decision in Jackson v. Stevens, 4th Dist. Scioto No. CA
1231, 1980 Ohio App. LEXIS 12905 (Jan. 24, 1980), to be right on point and persuasive. In
Jackson, the court held that there was no presented claim where a plaintiff sent a written notice
of his claim to a third party who then forwarded it to the executor within the six-month deadline.
In finding that the plaintiff failed to properly present his claim, the court emphasized that the
statute requires presentment “to the executor or administrator,” and therefore, presentment to a
person other than the fiduciary fails to satisfy the statute.
{¶32} The majority’s broad application of the statute defeats the intent of the law, “which
is to assure expeditious and efficient administration of an estate by requiring prompt presentation
of claims to the administrator.” Reid v. Premier Health Care Servs., 2d Dist. Montgomery No.
17437, 1999 Ohio App. LEXIS 999, * 14 (Mar. 19, 1999). By allowing a creditor to present a
claim to anyone other than the fiduciary, the expeditious and efficient administration of an estate
will be defeated by scenarios such as the instant case. Here, the majority’s holding essentially
shifts the standard from presentment to one of knowledge. This shift contravenes
well-established precedent. See, e.g., In re Estate of Greer, 197 Ohio App.3d 542,
2011-Ohio-6721, ¶ 13 (1st Dist.) (executrix’s actual knowledge of claims within the six-month
period did not render claims timely presented); In re Estate of Curry, 10th Dist. Franklin No.
09AP-469, 2009-Ohio-6571, ¶ 12-15 (rejecting plaintiff’s contention that because the eventual
administrator had actual knowledge of the claim before the time for its presentation had expired,
appellant’s claim should be deemed valid); Reid (recognizing that an administrator, who had
knowledge of creditor’s claim, properly denied the claim when the creditor presented the claim
prior to the administrator’s actual appointment; knowledge of the claim during the statutory
period but prior to official appointment fails to satisfy “presentment” requirement); Ziegler v.
Curtis, 13 Ohio App. 484, 487 (1st Dist.1921) (recognizing that an executor’s knowledge of a
claim alone does not bar closing the estate without accounting for the claim when the claim was
not “presented” for allowance or rejection).
{¶33} Accordingly, I would affirm the trial court’s decision and overrule Wilson’s two
assignments of error because he failed to timely present his claim to the executor.