COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72326 ESTATE OF EMMANUEL JENNINGS, : DECEASED : : JOURNAL ENTRY : Plaintiff-Appellee : AND : v. : OPINION : THELMA MILLER, F/K/A THELMA : FINLEY, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-311496 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendants-Appellants: DONALD A. MAUSAR NEAL M. COX ROBERT B. WELTMAN 1441 West 25th Street SCOTT S. WELTMAN Cleveland, Ohio 44113 Weltman, Weinberg & Reis Co., L.P.A. ESTHER C. LESTER Lakeside Place, Suite 200 3645 Warrensville Ctr. Rd. 323 Lakeside Avenue, West Shaker Heights, Ohio 44122 Cleveland, Ohio 44113-1099 -2- O'DONNELL, P.J.: Thelma Miller and her daughter, Monique, appeal from a decision of the common pleas court, granting summary judgment in favor of the Estate of Emmanuel Jennings, on its claim that Thelma Miller fraudulently transferred real estate she owned at 3797 Bainbridge Road, in Cleveland Heights, Ohio, to her daughter, in an attempt to avoid collection efforts against it on behalf of the estate. Because appellants have failed to demonstrate that the court erred, we affirm the judgment. The record reveals that in 1991, Emmanuel Jennings sustained a gunshot wound to his lower right leg which confined him to a wheelchair. As a result, he nominated his sister, Thelma Miller, as his attorney in fact, who managed his financial affairs for him until he died on January 23, 1995. On April 12, 1995, Leonard Jennings, Emmanuel's son, and Administrator of the Estate of Emmanuel Jennings, filed a complaint in the probate court, alleging that his aunt had concealed or withheld assets from the estate, by making expenditures for which she could not account. During the pendency of that litigation, on August 17, 1995, Thelma Miller transferred ownership of her Cleveland Heights home to her daughter. Subsequently, on February 19, 1996, the probate court entered a $55,879.00 judgment against her, adding a 10% penalty for a total judgment of $61,466.90. The record also reveals that the estate then filed the matter giving rise to this appeal in the general division of common pleas court, alleging that Thelma Miller had fraudulently transferred her -3- property to her daughter, in an attempt to avoid collection efforts resulting from the judgment owed to the estate. The trial court granted summary judgment to the estate, and ordered the real estate transfer voided. Thelma Miller and her daughter now appeal raising two assignments of error for our consideration. The first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT-DEFENDANTS IN CONSIDERING THE DEPOSITION TESTIMONY PROFFERED BY APPELLEE- PLAINTIFF. Appellants contend the trial court erred when it considered their depositions in connection with its ruling on appellee's summary judgment motion, because those depositions had not been signed by the deponents, certified by the court reporter or properly filed with the court. Appellee urges the court did not err when it considered the depositions, because appellants failed to challenge the accuracy of the statements contained in the depositions, and because depositions constitute proper evidentiary testimony in accordance with Civ.R. 56(C). The issue then presented for our review is whether the trial court erred when it considered appellants' unsigned depositions in connection with its ruling on the motion for summary judgment. Civ.R. 56(C) sets forth what a court may consider when ruling upon a summary judgment motion: * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written -4- admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law * * *. (Emphasis added). In Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, we considered the matter where the appellees attached evidence to a summary judgment motion, which had not been signed by the court reporter or authenticated, and stated in relevant part at 83: Failure to move to strike or otherwise object to documentary evidence submitted by a party in support of, or in opposition to, a motion for summary judgment waives any error in considering that evidence under Civ.R. 56(C) * * *. (Emphasis added). Further, Civ.R. 32(D)(4) states in pertinent part: Errors and irregularities in the manner in which the * * * deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer * * * are waived unless a motion to suppress the deposition * * * is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. (Emphasis added). Here, appellants did not file any motions to strike or suppress, or otherwise object to the use of the depositions offered in support of appellee's summary judgment motion, and they do not now challenge the authenticity of those documents. Therefore, in accordance with Stegawski, supra, and Civ.R. 32(D)(4), appellants -5- waived any error predicated upon the court's consideration of that evidence, and we conclude this assignment of error is overruled. The second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT-PLAINTIFF IN CONSIDERING CONFLICTING TESTIMONY OF A WITNESS AND IN FINDING THE TESTIMONY CREDIBLE. Contending that the court failed to determine Monique Miller's competency to testify before considering her deposition testimony, appellants urge the court erred in granting summary judgment because genuine issues of material fact exist regarding not only her competency, but also the conflict between Monique's and Thelma's testimony as to when Monique first learned of the property transfer. Appellee urges the court did not err in considering Monique's testimony, because Civ.R. 56 does not require the trial court, when ruling on a summary judgment motion, to conduct a hearing to determine the competency of a witness who testified at a deposition. The issue here then concerns whether the court erred in failing to sua sponte conduct a hearing regarding Monique Miller's competency to testify in her deposition. The crux of the matter concerns the controversy between Monique's deposition testimony that she first learned of the property transfer two days prior to her deposition, as contrasted with Thelma's deposition testimony that Monique's mental disability annuity payments had been used for twenty years to pay the mortgage, and she transferred the property to her to provide a permanent residence for Monique. -6- The record here reflects that at the time of Monique's deposition, appellants did not challenge her capacity to be sworn, or seek judicial intervention prior to administration of the oath to her to tell the truth. In addition, both R.C. 2317.01 and Evid.R. 601 presume the competency of witnesses to testify, except those of unsound mind. R.C. 1.02(C) defines unsound mind to include all forms of mental retardation or derangement. In this case, although some evidence exists of a mental disability, the record does not support a conclusion that Monique Miller was of unsound mind. Thus, the trial court properly presumed her to be competent to testify, and did not err in failing to conduct a sua sponte hearing on her competency prior to ruling on the motion for summary judgment. Finally, we also recognize that in a case involving a fraudulent conveyance, the actions of the transferor, here Thelma Miller, rather than the actions of the transferee, Monique Miller, become relevant. Based upon our review of the record, we find no genuine issues of material fact exist in connection with the summary judgment entered by the court in this case. Accordingly, this assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellee(s) recover of appellant(s) 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. DIANE KARPINSKI, J, JAMES D. SWEENEY, J. PRESIDING JUDGE TERRENCE O'DONNELL 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 .