COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68088 BOB LOTARSKI, EXECUTOR OF THE : ESTATES OF ALOYSIUS LOTARSKI : AND MARYANN LOTARSKI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : LEO M. SZCZEPANSKI, EXECUTOR OF : THE ESTATE OF FRANK J. BUSHO : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 263037 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: PATRICK DICHERO, ESQ. FRED A. STEVENS, ESQ. 5251 Turney Road 75 Public Square, Suite 405 Garfield Hts., Ohio 44125 Cleveland, Ohio 44113 -2- -3- PATRICIA ANN BLACKMON, J.: Plaintiff-appellant, Bob Lotarski, Executor of the Estates of Aloysius and Mary Ann A. Lotarski, appeals from a summary judgment granted in favor Leo M. Szczepanski, Executor of the Estate of Frank J. Busho. He assigns the following error for our review: THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT LEO M. SZCZEPANSKI'S, EXECUTOR OF THE ESTATE OF FRANK J. BUSHO, MOTION FOR SUMMARY JUDGMENT WHERE THERE WERE VALID CLAIMS MADE BY PLAINTIFFS AGAINST THE ESTATE OF FRANK J. BUSHO AND THERE WERE GENUINE ISSUES OF MATERIAL FACT WHICH SHOULD HAVE BEEN SUBMITTED TO A TRIER OF FACT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On January 3, 1979, Anastasia Busho died. Her husband, Frank J. Busho, borrowed money from his in-laws, Aloysius and Maryann Lotarski, to pay for his wife's funeral services. On January 26, 1979, he executed a cognovit note to "Aloysius Lotarski or Maryann A. Lotarski" in the amount of $5,000 with an interest rate of six percent per annum. Aloysius Lotarski died on February 22, 1985 leaving his entire estate in trust to Bob Lotarski for the care of Maryann Lotarski. Maryann Lotarski died on April 2, 1989. Bob Lotarski served as executor of the Estates of Aloysius and Mary Lotarski. On June 22, 1992, Frank Busho died, and in accordance with his last will and testament, Leo Szczepanski was appointed Executor of his estate. -4- Counsel for Bob Lotarski sent a written claim to Szczepanski on behalf of the Estate of Mary Lotarski for the $5,000 loan. Szczepanski sent a letter certified letter rejecting the claim, which was received by Bob Lotarski's lawyer on December 1, 1992. Thereafter, Bob Lotarski's lawyer filed the claim against Busho's estate. On June 22, 1993, Bob Lotarski moved to reopen the Estates of Aloysius and Mary Lotarski, and the motions were granted. On that same day, Bob Lotarski's lawyer made claims against the Estate of Busho on behalf of the Estates of Maryann and Aloysius Lotarski. Szczepanski denies ever having received those claims. Bob Lotarski subsequently sent a demand for allowance of the claims. Szczepanski's lawyer responded by sending a letter to Lotarski's lawyer informing him that the administration of the Estate of Frank Busho was already concluded. On December 17, 1993, Bob Lotarksi filed this action for money damages against Szczepanski in his capacity as Executor of the Busho's estate. Szczepanski moved for summary judgment, and the motion was granted. In its judgment and opinion, the trial court reasoned as follows: "***The plaintiff alleges that he made his claim against Busho's estate on June 22, 1993, exactly one year after the death of Frank Busho. However, previously, on or about November 9, 1992, the plaintiff had notified the defendant of his intention to file a claim on the cognovit note against Busho's estate. In response to plaintiff's notification, the defendant rejected the claim pursuant to R.C. 2117.11 on December 1, 1992. As such, the plaintiff's only course of action was to file -5- an action within two months after the rejection of the claim pursuant to R.C. 2117.12.***" Accordingly, the trial court held the action was barred because Lotarski failed to file his action within two months from the time he made his original claim, and granted summary judgment in favor of Szczepanski. This appeal followed. In his sole assignment of error, Bob Lotarski argues the trial court erred in granting summary judgment in favor of Szczepanski because he made two valid claims on June 22, 1993 against Busho's estate under the provisions of R.C. 2117.06. The standard of review for an appeal from summary judgment is plenary. This court applies the same test as the trial court, which is set forth in Civ.R. 56, and we evaluate the record according to Civ.R. 56. Civ.R. 56 specifically provides 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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Moreover, it is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmovant. Murphy v. -6- Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. Under Civ.R. 56(E) "a nonmovant may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. The first issue in this case is whether the June 22, 1993 claim made on behalf of the Estate of Maryann Lotarski was barred by a previous claim under R.C. 2117.12. R.C. 2117.11 provides: "An executor or administrator shall reject a creditor's claim against the estate he represents by giving the claimant written notice of the disallowance thereof. Such notice shall be given to the claimant personally or by registered mail with return receipt requested, addressed to the claimant at the address given on the claim.***" R.C. 2117.12 provides: "When a claim against an estate has been rejected in whole or in part but not referred to referees, or when a claim has been allowed in whole or in part and thereafter rejected, the claimant must commence an action on the claim, or that part thereof rejected, within two months after such rejection if the debt or that part thereof rejected is due, or within two months after the same becomes due, or be forever barred from maintaining an action thereon.***" "The statutory purpose of requiring all suits on rejected claims to be brought within two months of the rejection is to facilitate the administration of estates and to permit them to be settled and disposed of without delay." E.g. Stull v. Jentes -7- (1985), 24 Ohio App.3d 127, 128. Once a creditor's claim is barred by operation of R.C. 2117.12, that creditor is forever barred from maintaining an action against the estate. Carlin v. Mambuca (1994), 96 Ohio App.3d 500, 506, citing In re Rettig (1964), 8 Ohio Misc. 38. Thus, a creditor, after having been notified of a rejected claim by a fiduciary of an estate, cannot ignore that rejection and proceed with forwarding another claim to the fiduciary to be followed by filing suit on the same claim which was previously rejected. Ameritrust Company v. Smith (Dec. 9, 1981), Stark App. No. CA-5689, unreported. The case now before this court is similar to Ameritrust Company v. Smith. Bob Lotarski made a claim on behalf of the estate of Maryann Lotarski and received a rejection on December 1, 1992, but no civil action was filed therefrom. Bob Lotarski subsequently made the same claim a second time on June 22, 1992. After the first claim was rejected, and Bob Lotarski failed to file an action within two months, the estate of Maryann Lotarski was forever barred from maintaining an action against the Busho's estate. Thus, the second claim was barred by operation of R.C. 2117.12. The second issue is whether the rejected and barred claim made on behalf of the Estate of Maryann Lotarski precluded the June 22, 1992 claim from the Estate of Aloysius Lotarski. Szczepanski argues Maryann Lotarski had the only valid claim because she was the "survivor joint payee" on the cognovit note and as such the cognovit note was not a part of the estate of Aloysius -8- Lotarski. The mere fact that Aloysius and Maryann Lotarski were husband and wife did not create a survivorship tenancy under Ohio law. Reif v. Reif (1993), 86 Ohio App.3d 804, 809. "***[Unless the promissory note contained express language of survivorship, the proceeds could not be held as survivorship property." Id. In this case, the note did not contain any express language of survivorship. Therefore, Maryann Lotarski did not take the interest of her husband in the cognovit note as survivorship property. Szczepanski also argues Bob Lotarski, as the heir to both estates, was the real party in interest and was precluded from bringing these claims separately on behalf of the estates of Aloysius and Maryann Lotarski. Under Civ.R. 17(A), the executor of an estate may bring an action as the real party in interest. However, "[t]he real party in interest principle does not refer to 'capacity to sue.'" See Civ.R. 17, Staff Notes. Thus, the issue of whether Bob Lotarski was the real party in interest for both estates has no bearing on whether the claims of the estate of Aloysius Lotarski are valid. Having found Bob Lotarski was not precluded from bringing a claim on behalf of Aloysius Lotarski, the third and final issue is whether there was sufficient evidence of a claim on behalf of the estate of Aloysius Lotarksi within one year in compliance with R.C. 2117.06(B). All creditors having claims against an estate arising on cognovit notes shall present their claims to the executor or -9- administrator of the estate within one year after the death of the decedent. See R.C. 2117.06(A)(1) and (B). Under Civ.R. 56(E), the proper procedure for introducing evidentiary matters not specifically authorized by Civ.R. 56(C) is to incorporate them by reference in a properly framed affidavit. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220. "Documents submitted in opposition to a motion for summary judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary value and may not be considered by the court in deciding whether a genuine issue of material fact remains for trial." Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 228. In this case, Bob Lotarski provides presentation of claim letters addressed to Szczepanski and his attorney which were filed with the probate court on June 22, 1993. He also provides delivery slips from Stat Courier, Inc. dated June 22, 1993, but fails to attach an affidavit to the brief in opposition of summary judgment to verify their authenticity and whether the actual letters were delivered on June 22, 1993. Thus, the evidence of presentation of a claim on June 22, 1993 was not properly authenticated within the meaning of Civ.R. 56(E). Furthermore, Szczepanski avers he never received any presentation of a claim on June 22, 1993. Thus, the claim presented on behalf of the estate of Aloysius Lotarski was barred because it was not presented within one year after the death of Frank Busho. -10- Judgment affirmed. It is ordered that Appellee recover of Appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. Exceptions. SPELLACY, P.J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .