COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72559 VINCENT VELIKY, et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION ANNA VELIKY, et al : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 2, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 309,526 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: JAMES D. SHELBY Attorney at Law 55 Public Square, #1260 Cleveland, Ohio 44113-1992 For defendants-appellees TEDDY SLIWINSKI Anna Veliky, et al : Attorney at Law 5810 Fleet Avenue Cleveland, Ohio 44105 For defendant-appellee ERICA L. EVERSMAN Anna Mills : Attorney at Law 113 St. Clair Building Cleveland, Ohio 44114 KENNETH A. ROCCO, J.: -2- Appellants appeal the trial court's grant of appellee Anna Mills' motion for summary judgment. As appellee is entitled to judgment as a matter of law and there is no genuine issue as to any material fact, we affirm the grant of summary judgment to appellee. On July 12, 1995, Michael Veliky ( Mr. Veliky ) died in Cuyahoga County, Ohio. He was survived by his wife, Anna Velika1, who resided in the Slovak Republic, and three adult children, Vincent Veliky ( Vincent ), Anna Veliky, and Maria Anderkova. Anna Veliky lived with her father in Cleveland while Vincent Veliky and Maria Anderkova resided in the Slovak Republic. Anna S. Mills, who resided in Pennsylvania, is the niece of Michael Veliky. At the time of his death, Michael Veliky had funds on deposit in Dollar Bank, First Nationwide Bank, Ohio Savings Bank and Century Federal Savings. Most of these bank accounts were joint and survivorship accounts. He also owned U.S. Savings Bonds and shares of stock in the Haverfield Corporation. Those U.S. Savings Bonds that were issued monthly from March 1958 through March 1959, and one issued November 1959, carried the name of Michael Veliky OR Mrs. Anna Veliky. Mr. Veliky later eliminated his wife's name2 from the bonds and added that of his niece. The U.S. Savings Bonds that were issued monthly from July 1966 through July 1967, December 1967 through June 1968, and almost 1 Velika, used by Mr. Veliky's wife Anna, is the feminine form of Veliky in Slovak. Daughter Anna uses Veliky in this country for simplicity's sake. 2Although Mr. Veliky used the form Mrs. Anna Veliky, rather than Anna Velika, his daughter Anna Veliky was unmarried. -3- every month from October 1968 through December 1979 carried the name of Michael Veliky and the notation POD Mrs. Ann Mills. Mr. Veliky generally purchased ten to twelve bonds each year from July 1966 through December 1979, occasionally missing one or two of the winter months, and all of these more recent bonds were in his name, payable on death to Mrs. Ann Mills, his niece. The account at First Nationwide Bank was opened on October 26, 1990, in the names of Michael Veliky, his daughter Anna Veliky and his niece Anna Mills. The account signature card stated that the ownership type was a joint tenancy. The Additional Terms and Conditions of the Account Agreement stated that, under a joint tenancy, the account was owned in joint tenancy with right of survivorship. Another account at First Nationwide Bank was opened on November 6, 1992 in the names of Michael Veliky OR Anna Veliky OR Anna Mills. The account signature card stated that the ownership type was joint tenants. A third account at First Nationwide Bank was opened on November 10, 1994, in the names of Michael Veliky OR Anna Veliky OR Anna Mills. The account signature card stated that the ownership type was joint tenants. Plaintiffs-appellants' complaint below admits that the other bank accounts at issue, as well, were held by Michael Veliky, with his daughter Anna Veliky and his niece Anna S. Mills jointly with right of survivorship. The ownership status of the accounts was not disputed. -4- When Michael Veliky first arrived in the United States in 1948, alone, he initially resided in Pennsylvania with his sister. It was there that he first established a relationship with his sister's daughter, Anna Mills. Mr. Veliky and his niece maintained a very close relationship over the years. She frequently made the three-hour drive from Pittsburgh to visit him in Cleveland. As his daughter Anna does not drive, Anna Mills drove to Cleveland when Mr. Veliky became ill and needed transportation to his doctor. Anna Veliky admitted in her deposition that her father loved Anna Mills like a daughter. Mr. Veliky moved to Cleveland in late 1948 and became an American citizen in 1953. He returned to his native country just twice to visit his wife and children, in 1968 and in 1972. One daughter, Anna Veliky, came to this country in 1969 to live with her father. His wife, son Vincent, and daughter Maria did not visit Mr. Veliky during his 47 years in residence in this country and did not see him again after his 1972 visit to them. They did not attend his funeral in July 1995. Following Mr. Veliky's death, the funds in the joint and survivorship accounts at issue were distributed to the survivors, his daughter Anna Veliky and his niece Anna Mills, according to the terms of the joint and survivorship provisions. Anna Veliky then told the rest of the family, that is, appellant/son Vincent Veliky, the surviving spouse Anna Velika, and appellant/daughter Maria Anderkova, that Mr. Velicky had wanted her (Anna Veliky) and Anna Mills to distribute the joint and survivorship property equally -5- among his wife, son, and daughters and that Anna Veliky and Anna Mills had orally agreed with Mr. Veliky that, upon his death, they would do so. (Anna Veliky stated in her deposition that she believed Anna Mills was entitled to nothing from these accounts.) Vincent then came to the United States in the fall of 1995. The surviving spouse Anna Velika and Maria Anderkova came to this country in June of 1996. These three parties filed a complaint in the Cuyahoga Court of Common Pleas on May 31, 1996, naming daughter Anna Veliky, appellee/niece Anna S. Mills, and the above-mentioned banks as defendants. The complaint alleged that Michael Veliky did not intend that his daughter Anna Veliky and his niece Anna S. Mills take a beneficial interest in the disputed funds. The complaint further alleged that Michael Veliky intended that Anna Veliky and Anna S. Mills should hold the funds as trustees for the benefit of the plaintiffs and defendant Anna Veliky. On that basis, the complaint alleged a breach of the trust agreement and interference with an expectation of inheritance. Defendant Anna Veliky's answer of September 27, 1996, stated that her father Michael Veliky intended that she and his niece should hold the funds as trustees and filed a cross-claim against Anna Mills. Her cross-complaint alleged breach of trust, conver- sion, breach of fiduciary duty, and infliction of emotional distress arising from Mrs. Mills' failure to properly and ade- quately mark Michael Veliky's gravesite in Pennsylvania. Anna Veliky is not a party to this appeal. -6- Defendant Dollar Bank filed a motion to dismiss on July 2, 1996, which was granted without opposition on August 30, 1996. Defendant Ohio Savings Bank filed its answer on July 30, 1996, seeking that the complaint against it be dismissed. Defendants First Nationwide Bank and Century Federal Savings were dismissed without prejudice, for want of prosecution, on December 10, 1996. Defendant-appellee Anna Mills filed a motion for summary judgment on February 10, 1997. On April 2, 1997, the trial court granted appellee's motion for summary judgment on all claims against her. Appellants subsequently dismissed their claims against their sister Anna Veliky on April 24, 1997. On May 20, 1997, Appellants filed their Notice of Appeal, appealing the trial court's order of summary judgment. The appeal was dismissed for lack of a final appealable order on June 19, 1997, because the claims against Ohio Savings Bank were unresolved. Plaintiffs-appellants then filed a notice of voluntary dismissal against Ohio Savings Bank, which was journalized by the trial court on July 8, 1997, rendering summary judgment final. This court granted appellants' motion for reinstatement on July 10, 1997. STANDARD OF REVIEW Appellants' assignment of error is that: THE TRIAL COURT ERRED IN GRANTED SUMMARY JUDGMENT FOR DEFENDANT-APPELLEE ANNA S. MILLS BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND THE MOVING PARTY WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. -7- This court reviews a grant of summary judgment de novo. North Coast Cable L.P. v. Hanneman (1994), 98 Ohio App.3d 434, 440. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Summary judgment shall not be ren- dered unless 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. Id. Although any doubts must be resolved in favor of the nonmoving party, the nonmoving party must produce sufficient evidence for any issue upon which he bears the burden of production at trial. North Coast Cable, supra at 441. RESULTING TRUSTS Appellants' complaint below was based on the allegation that an equitable resulting trust existed between Mr. Velicky, as grantor, and his daughter Anna and his niece, as trustees. A resulting trust is defined as one which the court of equity declares to exist where the legal estate in property is transferred or acquired by one under facts and circumstances which indicate that the beneficial interest is not intended to be enjoyed by the holder of the legal title. Glick v. Dolin (1992), 80 Ohio App.3d 592, 597 (quoting First National Bank of Cincinnati v. Tenney (1956), 165 Ohio St. 513, 515-516). A resulting trust, then, arises under circumstances that raise an inference that the transferor, or person who caused the transfer, did not intend the -8- transferee to take a beneficial interest in the property. Union S. & L. Assn. v. McDonough (1995), 101 Ohio App.3d 273, 276. An essential element of a resulting trust is the intention of the parties. Gabel v. Richley (1995), 101 Ohio App.3d 356, 363. The most commonly encountered type of resulting trust is a purchase-money resulting trust, where title to property is transferred to one person but the entire purchase price is paid by another. Glick, supra at 597. The parties in that situation do not expressly create a trust, but a trust will be implied because that was the intention of the parties. John Deere Indus. Equipment Co. v. Gentile (1983), 9 Ohio App.3d 251, 255. In a testamentary situation, however, the doctrine of resulting trust is based upon the presumed intention of the testator, and such a trust is never permitted to arise when it is manifestly against his intention. 91 O.Jur.3d Trusts S206. JOINT AND SURVIVORSHIP ACCOUNTS Where a joint and survivorship account exists, the account holder's intent has been manifestly expressed, and therefore no resulting trust can arise. Wright v. Bloom (1994), 69 Ohio St.3d 596 (syllabus). The supreme court in Wright held that: *** [t]he opening of a joint and survivorship account in the absence of fraud, duress, undue influence or lack of capacity on the part of the decedent is conclusive evidence of his or her intention to transfer to the surviving party or parties a survivorship interest in the balance remaining in the account at his or her death. -9- Id. (Emphasis added.) The court stated that previous case law in Ohio concerning the role of extrinsic evidence in disputes regarding joint and survivorship accounts had created a morass of unpredictability. Id. at 598. The court pointed out that resolution of this issue on a case-by-case basis involv[ed] protracted litigation, time and great expense. Id. The Wright court expressed its dissatisfaction with this approach by noting that our efforts to determine survivorship rights by a post-mortem evaluation of extrinsic evidence of depositor intent are flawed to the point of offering no predictability. Id. at 604. The Wright court has rendered the law in this state on survivorship rights of joint and survivorship accounts clear and indisputable: The opening of an account in joint and survivorship form shall, in the absence of fraud, duress, undue influence or lack of mental capacity on the part of the depositor, be conclusive evidence of the depositor's intention to transfer to the survivor the balance remaining in the account at the depos- itor's death. Id. at 607. It was precisely to bar the consideration of extrinsic evidence of the depositor's intent that motivated the court to set forth this conclusive rule. Id. at 604. We move now to the case before us. To defeat a motion for summary judgment, the nonmoving party must produce sufficient evidence for any issue upon which he bears the burden of production at trial. North Coast Cable, supra at 441. Appellants admit that the accounts in question were held by Michael Veliky with his daughter Anna Veliky and his niece Anna S. Mills, jointly with -10- right of survivorship. There is no genuine issue as to this material fact: The joint and survivorship status of the accounts was not disputed by the parties. According to Wright, this joint and survivorship status provides conclusive evidence of the depositor's intention to transfer to the survivor[s] the balance remaining in the account at the depositor's death unless appel- lants can show the existence of fraud, duress, undue influence or lack of mental capacity. Wright, supra at 607. Appellants' burden at trial, then, would have been to prove fraud, duress, undue influence or lack of mental capacity on the part of the depositor, id., in order to overcome the otherwise conclusive evidence provided by the undisputed existence of the joint and survivorship accounts. Appellants did not provide any evidence of fraud, duress, undue influence or lack of capacity to the court below. In the absence of such factors, the existence of the account provides conclusive evidence of the depositor's intention to transfer to the survivor the balance remaining in the account at the depositor's death. Id. Therefore, as a matter of law, summary judgment was properly awarded to appellee. We therefore affirm the grant of summary judgment to appellee by the Cuyahoga Court of Common Pleas, as appellee is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. -11- It is ordered that appellee recover of appellants her 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 Cuyahoga County Court of Common Pleas 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, P.J. and LEO M. SPELLACY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .