COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72002 SOCIETY NATIONAL BANK : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : BEVERLY J. JOHNSON, ETC. : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Cleveland Municipal Court Case No. 95-CVF-2639 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: DONALD A. MAUSAR, ESQ. ALBERT POTTINGER, ESQ. SCOTT S. WELTMAN, ESQ. 16106 Delrey Avenue WELTMAN, WEINBERG & ASSOC. Cleveland, Ohio 44128-1366 Lakeside Place 323 Lakeside Avenue, West Cleveland, Ohio 44113 -2- DYKE, J.: Plaintiff Society National Bank appeals from the judgment of the Cleveland Municipal Court which barred its claim against the estate of Robert Payne, Sr. for recovery upon an installment loan. For the reasons set forth below, we affirm. The record reflects that on December 3, 1990, Robert Payne, Sr., obtained a loan from Society National Bank (hereafter referred to as Society ) in the amount of $4,000. According to the terms of the installment loan agreement, Payne agreed to repay the loan in forty-eight monthly installments of $117.48. Payne died on April 23, 1993. Society was not informed of Paynes' death, and ten payments were made on the note by his son Alvin through November 1993. In December 1993, Society sent a payment demand to the decedent at his address, 11811 Phillips Avenue, Cleveland. The record further reflects that on September 16, 1994, defendant Beverly J. Johnson filed an application in the probate court to serve as Administratrix of Payne's estate. Johnson was subsequently appointed to serve as Administratrix of the Estate, which was designated Case No. 1106874 on Docket No. 1105 of the probate court. On October 20, 1994, Society filed a claim against the estate in the probate court for $2,017.63 plus interest. The Administratrix rejected the claim as untimely and on February 9, 1995, Society filed a complaint against her in the Cleveland Municipal Court for recovery of the balance due upon the loan, plus interest. The Administratrix moved for summary judgment pursuant to R.C. 2117.06 which bars claims which are not presented -3- within one year after the decedent's death. In opposition, Society challenged the constitutionality of R.C. of 2117.06. In addition, Society presented evidence that Johnson moved into the decedent's home after his death, and that it sent various correspondence to the decedent's home following his death. Society also demonstrated that it obtained a verbal commitment from decedent's son Alvin that he would repay the loan. On January 9, 1997, the trial court entered judgment for defendant. Society now appeals and assigns three errors for our review. Society's first and third assignments of error are interrelated and state: THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT/APPELLEE'S MOTION FOR SUMMARY JUDGMENT, WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED AND DEFENDANT/APPELLEE WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. THE TRIAL COURT ERRED IN NOT FINDING THAT PLAINTIFF/APPELLANT HAD VALIDLY PRESENTED ITS CLAIM AGAINST THE ESTATE OF ROBERT PAYNE, SR., PURSUANT TO OHIO REVISED CODE SECTION 2117.06. Within these assignments of error, Society asserts that its claim could not be deemed time barred since Johnson did not seek to administer the estate until one year after the death of the decedent. This claim lacks merit as the estate was administered within the parameters of Ohio law. See Fifth Third Bank v. Gottlieb (August 29, 1997), Wood App. No. WD-96-054, unreported. Society additionally complains that summary judgment was erroneously granted since it presented evidence that Johnson had notice of the claim within the statutory time limit as it sent a -4- statement and another letter to the decedent's home and Johnson resided there within this time. In opposition, Johnson asserts that the requirements of R.C. 2117.06 are mandatory and were not met herein. With regard to procedure, we note that summary judgment is proper if: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. See, also, State ex rel. Zimmerman v. Thompkins (1996), 75 Ohio St.3d 447,448. If the moving party meets this burden, the non-moving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. Id.; Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108. With regard to the substantive law at issue, we note that R.C. 2117.06 governs the presentation of creditor's claims. The present version of R.C. 2117.06 became effective for decedents who die on or after May 31, 1990, see 2 Merrick-Rippner Probate Law (1996) 84.1, p. 265, and provides in relevant part as follows: (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, shall present their claims in one of the following manners: (1) To the executor or administrator in a writing; -5- (2) To the executor or administrator in a writing and to the probate court by filing a copy of the writing with it; (3) In a writing that is sent by ordinary mail addressed to the decedent and that is actually received by the executor or administrator within the appropriate time specified in division (B) of this section. For purposes of this division, if an executor or administrator is not a natural person, the writing shall be considered as being actually received by the executor or administrator only if the person charged with the primary respon- sibility of administering the estate of the decedent actually receives the writing within the appropriate time specified in division (B) of this section. (B) All claims shall be presented within one year after the death of the decedent, whether or not the estate is released from administration or an executor or adminis- trator is appointed during that one-year period. Every claim presented shall set forth the claimant's address. Also with regard to the substantive law, it is clear that the time within which claims are to be presented is mandatory. In re Estate of Fisher (1983), 12 Ohio App.3d 150, 152. The form of presentment is not strictly described. The claim need not be in any particular form; it is sufficient if it states the character and amount of the claim, enables the representative to provide for its payment, and serves to bar all other claims by reason of its particularity of designation. Gladman v. Carnes (1964), 9 Ohio App.2d 135, 138. Billing statements have been deemed sufficient. Children's Medical Center v. Ward, (1993), 87 Ohio App.3d 504, 510. As to whether presentation is sufficient in any particular instance, courts of this state have determined that the fact that the representative has knowledge of the claim is not sufficient to -6- excuse failure to present. See Ziegler v. Curtis (1921), 13 Ohio App. 484, 486-487, wherein the court explained: The issues made by the pleadings in the municipal court were whether or not Curtis presented his claim to Mrs. Ziegler as executrix; whether it was presented before she had paid out the fund in her hands as such executrix; and whether on presentation she promised to pay the claim. The court should have stated to the jury the issues submitted for their consideration and the rule of law by which they should determine them. This the court did not do. It stated: You must find from the evidence that the John Ziegler Express Company was John Ziegler, deceased, and that this claim was presented to the executrix during the time allowed for the administration of estates, and that the defendant knew of this claim at the time, but did not allow such claim in administering and closing up the entire estate. Plaintiff in error complains of the part of the charge that 'the defendant knew of this claim,' etc. The court of common pleas in considering this question stated that knowledge of the existence of the claim was sufficient to make her responsible if she disposed of the assets of the estate without paying it. Both the instruction of the municipal court to the jury on this question and the statement of the court of common pleas as to knowledge of the claim were erroneous and prejudicial. Knowledge of the existence of a claim is not sufficient to bind an executor for its payment. Even when claims are presented, executors and administrators are entitled to a reasonable time for the examination of each claim against the estate before endorsing its allowance or rejection. (Keenan v. Saxton's Admrs., 13 Ohio, 41.) An executor may have knowledge of a claim, but if it is not presented for allowance or rejection, the estate may be closed without making the executor liable. If, however, on presentation, the executor promises to pay, he will be liable for a failure so to do if presented at a time when there were funds in his hands sufficient to discharge the obligation. The liability arises from the allowance of the claim and the promise to pay. (Emphasis added). Similarly, in Varisco v. Varisco (1993), 91 Ohio App.3d 542, 546, the court determined that where the decedent's son learned of -7- a debt shortly after the decedent died, and was named co- administrator, the creditor failed as a matter of law to meet the requirements of the statute. Accord Lewis v. Steinreich (December 22, 1993), Summit App. No. 16203, unreported ( executor or administrator's knowledge of a disputed claim does not waive the plaintiff's obligation to present that claim within the statutory time period ). Nonetheless, it has been determined that a claim which is sent by ordinary mail addressed to the decedent within one year of the date of death, which is actually received by the representative meets the requirements of the statute. Children's Medical Center v. Ward, supra, at 510. That court further held that notice to the representative in her personal capacity may, under the prevailing circumstances constitute notice to her in her representative capacity. Id. Accord Sealy v. Davidson (October 12, 1994), Montgomery App. No. 14346, unreported. In this instance, Society relies upon the fact that Johnson moved into the Phillips Avenue home in September 1993, (Depo. At 4- 5, 8) and that it sent documents concerning the loan, in the name of the decedent to this location. In opposition, Johnson swore that she did not actually receive any of the documents and indeed, she had not been designated representative of the estate at this time. She also stated that the decedent's son Alvin had been collecting the mail. Moreover, the record clearly reveals that representatives of Society dealt with Alvin and obtained his verbal commitment to repay the loan. From the foregoing, there is no -8- evidence to indicate that Johnson actually received documentation from Society under circumstances constituting notice to her in her representative capacity pursuant to the provisions of R.C. 2117.06(A)(3). The first and third assignments of error are without merit. Society's second assignment of error states: THE TRIAL COURT ERRED WHEN IT DID NOT FIND THAT OHIO REVISED CODE SECTION 2117.06 WAS UNCONSTITUTIONAL AS *** APPLIED TO SOCIETY NATIONAL BANK, A CREDITOR, BY DENYING A PROTECTED PROPERTY INTEREST WITHOUT DUE PROCESS OF LAW. Society next complains that R.C. 2117.06 is unconstitutional as applied since payments were made on the decedent's behalf following his death, yet the representative of the estate delayed initiating probate proceedings for over one year after his death, thereby extinguishing the claim pursuant to the statute. In this connection, Society maintains that because the probate court is involved in the rejection of the claim, it has been deprived of a protected property interest through state action, and it urges us to find such deprivation unconstitutional pursuant to Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478. We find TulsaProfessional Collection Services, Inc. v. Pope, supra,inapplicable herein as the Supreme Court specifically stated that it had no occasion to consider the proper characterization of nonclaim statutes that run from the date of death, and which -9- generally provide for longer time periods, ranging from one to five years. Id.,at 488 (Emphasis added). The Court contrasted self- executing statutes of limitations to those limitations periods which begin to run only after probate proceedings have been commenced in state court. The Court then noted that the self- executing statutes do not implicate the Due Process Clause of the Constitution. As was set forth previously, R.C. 2117.06(B) establishes a limitations period which runs from the date of death. It is not triggered by any action of the probate court or any other state action. We therefore conclude that it is a self-executing statute of limitations which does not implicate any due process protections. Accord Fifth Third Bank v. Gottlieb, supra. Moreover, we are unconvinced that existing statutory provisions by which creditors may protect their rights are defective. The United States Supreme Court has established that, when the possible deprivation of life, liberty or property rights are at stake, due process requires notice and opportunity for a hearing appropriate to the nature of the case. Mullane v. Central Hanover Trust Co. (1950), 339 U.S. 306, 313; Ohio Valley Radiology Assoc. Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 188, 124-125. With regard to Society's complaint that the probate statutes do not require the executor or administrator to take any steps to provide notice to the decedent's creditors, it is nonetheless clear from the record that Society did in fact have notice of the decedent's death by June 1993, or two months after it occurred. -10- Thus, Society's challenge to the notice provisions cannot be sustained herein because it had actual knowledge of the facts which form the basis of the notice. See Palazzi v. Estate of Gardner (1987), 32 Ohio St.3d 166, 171. Society is therefore not within the class against whom operation of R.C. 2117.06 is alleged to have been unconstitutionally applied. Id. Further, as for the opportunity of a creditor to be heard, it is clear that R.C. 2113.06 authorizes a creditor of an estate to file an application to be appointed administrator of an estate in order to preserve its claim. See In re Estate of Marie Mary Tuthill (June 13, 1990), Hardin App. No. 6-89-5, unreported. In addition, R.C. 2117.07 authorizes a claimant to present his or her claim after expiration of the time limit set forth in R.C. 2117.06 if he or she did not have actual notice of the decedent's death or of the appointment of the executor or administrator in sufficient time to present his claim ***. Thus, the statutes provide ample opportunity for creditors to be heard. In accordance with the foregoing we conclude that Society's second assignment of error is without merit. Affirmed. -11- This cause is affirmed. It is, therefore, considered that said appellee recover of said appellant its costs herein. 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. SWEENEY, C.J., AND KARPINSKI, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .