Click v. Estate of Click, 2007 Ohio 3029 (Ohio App. 6/13/2007)
| Decision Date | 13 June 2007 |
| Docket Number | No. 05CA38.,05CA38. |
| Citation | 2007 Ohio 3029 |
| Parties | Ahrea Carleen Click, Plaintiff-Appellant, v. The Unknown Executor or administrator of the Estate of John Edgar Click, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Marty J. Stillpass, Stillpass, Delawder, Smith & Heald, Ironton, Ohio, for Appellant.
Robert C. Anderson, Anderson & Anderson Co., L.P.A., Ironton, Ohio, for Appellees, John William Click and Nancy Lynn Jarrell Click.1
DECISION AND JUDGMENT ENTRY
{¶1} Appellant, Ahrea Carleen Click, appeals the Lawrence County Court of Common Pleas' grant of summary judgment to Appellees, John William Click and Nancy Lynn Jarrell Click,2 on her complaint for conspiracy to commit fraud. Appellant contends that she has presented sufficient circumstantial evidence of a conspiracy to demonstrate the existence of a genuine issue of material fact with regard to Appellees' involvement in a conspiracy with their father, John Edgar Click, to deprive her of marital assets. Because we find that Appellees met their burden of proving that no genuine issue of material fact exists, we hold that they are entitled to judgment as a matter of law. Accordingly, we affirm the judgment of the trial court.
{¶2} Appellant married John Edgar Click on February 12, 1972. When they married, both John Edgar and Appellant had adult children from previous marriages. John William and Nancy are John Edgar's children from his previous marriage.
{¶3} On July 22, 2003, Appellant filed a complaint for divorce against John Edgar in the Lawrence County Court of Common Pleas. She also named Huntington Federal Savings Bank and United Bank, both located in West Virginia, as parties to the divorce. Appellant alleged that John Edgar held accounts and/or a safe deposit box with those banks that might contain marital assets. The next day, Appellant filed an amended complaint adding Appellees as additional parties and alleging that they might be joint account holders or joint signees on a safe deposit box with John Edgar. On that day, the court issued a temporary order prohibiting John Edgar from accessing any safe deposit box held in his name or held jointly with John William, and prohibiting him from making any withdrawals from any accounts in which he had an ownership interest.
{¶4} A review of the record indicates that Appellant's process server personally served "John Click," Huntington Federal Savings Bank, and United Savings Bank with process on July 23, 2003. John Edgar filed his answer and counterclaim on July 24, 2003. John William received service of process by certified mail on July 30, 2003. The post office returned Nancy's certified mail service unclaimed on August 15, 2003. The record reflects that the clerk sent her service of process via regular mail on September 9, 2003. Despite their receipt of service of process, the record does not reflect that Huntington Federal Savings Bank, United Bank, John William or Nancy ever filed answers or otherwise appeared in the divorce proceedings.
{¶5} The magistrate made temporary orders regarding spousal support and the division of certain funds. Pursuant to a court order, the parties opened and inventoried John Edgar Click's safe deposit box, located at City National Bank, Third Avenue, Huntington, West Virginia on December 19, 2003. The trial court scheduled the divorce for trial and continued the matter several times. However, the trial never occurred because John Edgar died on March 8, 2005.
{¶6} After John Edgar Click's death, Appellant filed a second amended complaint informing the court of his death and naming "The Unknown Executor or Administrator of the Estate of John Edgar Click," John William and Nancy, Appellees herein, and City National Bank as defendants. In her second amended complaint, Appellant alleged that John William and Nancy, Appellees herein, conspired with John Edgar to convert marital assets for his own use, fraudulently depriving her of her rightful portion of those marital assets. She alleged that John Edgar used marital assets to purchase joint and survivorship certificates of deposit and United States savings bonds for the benefit of himself and his children. Appellant contends that the bonds and certificates of deposit have a value of approximately one million dollars.
{¶7} In her prayer for relief, Appellant requested that the trial court 1) extinguish Appellees' interest and vest ownership of the disputed securities solely in her name; 2) order City National Bank to prohibit access to the safe deposit box pending further orders from the court; 3) prohibit the executor or administrator of John Edgar's estate from distributing, selling, transferring or otherwise disposing of any alleged estate assets without court approval; and 4) grant any other relief the court deemed appropriate.
{¶8} Simultaneous with the filing of her second amended complaint, Appellant filed a motion requesting a temporary restraining order to prevent Appellees and the unknown executor or administrator of John Edgar Click's estate from accessing or disposing of the disputed assets. The court granted the motion, and issued a temporary order prohibiting Appellees and/or the unknown executor from taking possession of, cashing, transferring, or otherwise disposing of any securities or other assets held in the name of John Edgar Click, or jointly with John Edgar Click. The court further ordered City National Bank to prohibit those individuals from accessing the safe deposit box, or withdrawing any funds from any accounts held in John Edgar's name either individually or jointly with John William and/or Nancy. The court later supplemented its judgment entry to order City National Bank to prohibit both Appellant and the administrator of the estate from accessing any safe deposit box, certificates of deposit, bonds or other securities or withdrawing any funds from accounts held in John Edgar Click's name either individually or jointly with his children. Additionally, the court issued an order of injunction against City National Bank incorporating the prohibitions enumerated in the court's temporary order.
{¶9} On March 11, 2005, counsel for John Edgar Click moved the court to dismiss the case on the ground that John Edgar Click died. Instead of dismissing the action, the trial court transferred it to the civil docket from the domestic docket and assigned it a new case number — 030C583A. City National Bank filed an answer, admitting that it rented a safe deposit box to John Edgar Click, but generally stating that it lacked knowledge or belief to answer the remaining allegation of the complaint. Additionally, City National asserted that: 1) the complaint failed to state a claim upon which relief could be granted; and 2) the court should dismiss the complaint as it related to City National because it lacked both personal and subject matter jurisdiction because the safe deposit box is in West Virginia.
{¶10} Appellees filed their answer on May 2, 2005, Then, on August 26, 2005, they filed a motion for summary judgment, alleging that no genuine issues of material fact existed, and, therefore, they were entitled to judgment as a matter of law. Specifically, they asserted that no factual basis existed for the allegations of fraud contained in Appellant's complaint. They claimed that because Appellant could produce no evidence of any underlying unlawful act to support her conspiracy allegations, they were entitled to judgment as a matter of law.
{¶11} After hearing argument from the parties, the trial court reviewed the pleadings, memorandums, affidavits and deposition transcript, as well as the applicable law. The court found that one spouse may place marital assets in accounts without including the other spouse's name, that it happens all of the time, and that there is not civil cause of action to address such conduct. Because the court concluded that John Edgar Click's conduct was lawful, the court agreed with Appellee's assertion that no underlying unlawful act (i.e. no fraud) existed to support Appellant's conspiracy allegations. Additionally, the court found no evidence that the children knew what was occurring, participated in a conspiracy, or planned the activities. Finding no factual basis to establish Appellant's allegations of fraud or conspiracy, the trial court granted summary judgment to Appellees and dismissed the entire action.
{¶12} Appellant now appeals, setting forth a single assignment of error for our review.
{¶13}
{¶14} A court may properly grant summary judgment when it finds that, based upon the entire record: 1) there is no genuine issue as to any material fact; 2) there moving party is entitled to judgment as a matter of law; and 3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his or her favor. Civ.R. 56; See Bostic v. Conner (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411, 599 N.E.2d 786.
{¶15} The movant bears the initial burden of demonstrating that no genuine issue of material fact exists. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 1996-Ohio-107, 662 N.E.2d 264; citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. The movant bears this burden even for issues for which the nonmoving party may bear the burden of proof at trial. Id. ...
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