Varisco v. Varisco

• Decision Date: 10 November 1993
• Docket Number: No. 2217-M,2217-M
• Citation: 632 N.E.2d 1341,91 Ohio App.3d 542
• Parties: VARISCO, Appellant, v. VARISCO, Appellee.
• Court: Ohio Court of Appeals

Page 542

91 Ohio App.3d 542

632 N.E.2d 1341

VARISCO, Appellant, v. VARISCO, Appellee.

No. 2217-M.

Court of Appeals of Ohio, Ninth District, Medina County.

Decided Nov. 10, 1993.

William L. Thorne, Burbank, for appellee.

John C. Oberholtzer, Medina, for appellant.

REECE, Judge.

Plaintiff-appellant, Andrew A. Varisco, appeals from the trial court's order granting summary judgment in favor of defendant-appellee, Mary E. Varisco. We affirm.

Andrew is the brother of Alfred Varisco, Mary's deceased husband. Andrew claims that between March 1980 and March 1981 he lent Alfred $9,260. On April 14, 1983, Alfred died intestate with this claimed debt unpaid. Alfred's sons, Donald and David Varisco, were named co-administrators of Alfred's estate by the Medina County Probate Court on May 23, 1983. On February 2, 1984, Donald and David as co-administrators entered into an agreement with Mary in which they would transfer all of Alfred's real estate to Mary in consideration for Mary assuming all debts of Alfred's estate. The estate debts listed in this agreement did not include the claimed debt to Andrew.

In 1986, Andrew filed an action seeking to collect the claimed debt from Mary, Donald and David. During this action, Andrew took Mary's deposition in November 1986 and Donald's in January 1987. From these depositions it appears that shortly after Alfred died in 1983, Donald found a small notebook of Alfred's containing the notation "owed Andrew ninety-two sixty." According to Donald's deposition, he and Andrew discussed this notation and Andrew's claimed debt at Alfred's funeral. Mary asserted in her deposition that Andrew gave the money to Alfred as a gift and not as a loan. For reasons not contained in the record, Andrew voluntarily dismissed this first action on April 11, 1990, pursuant to Civ.R. 41(A).

On April 4, 1991, Andrew brought this present action against Mary seeking to collect on the claimed debt. On July 8, 1992, Andrew moved for summary judgment. Mary filed a reply to Andrew's summary judgment motion and additionally moved the court to strike from Andrew's motion the depositions taken during the first action. Mary also moved for summary judgment. The record indicates that Andrew did not respond to Mary's motion to strike or her motion for summary judgment.

On February 23, 1993, the trial court granted Mary's motion to strike and her motion for summary judgment. The court found that because Andrew did not present his claim in writing to the co-administrators of Alfred's estate within three months of their appointment as required by R.C. 2117.06, Andrew's claim against the estate was barred as a matter of law. Andrew appeals.

Assignment of Error 1

"The trial court erred in failing to consider the depositions filed with the court."

Andrew argues that under Civ.R. 32(A)(4), the depositions taken in his previous action against Mary, Donald and David could be properly submitted in this present action against Mary because this action involves the same parties and subject matter as his first action to collect the claimed debt. ¹ The record submitted to this court, however, does not indicate that Andrew responded to Mary's motion to strike or argued against the motion in the trial court based on Civ.R. 32(A)(4). Consequently, it appears that Andrew failed to raise the issue of the applicability of Civ.R. 32(A)(4) in the court below.

A fundamental rule of appellate review is that a reviewing court will not consider as error any issue that a party was aware of but failed to bring to the trial court's attention. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210, 24 O.O.3d 316, 317-318, 436 N.E.2d 1001, 1003. Thus, a party has waived the right to contest an issue on appeal if that issue was in existence prior to or at the time of trial and the party did not raise it at the appropriate time in the court below. State v. Awan (1986), 22 Ohio St.3d 120, 123, 22 OBR 199, 202, 489 N.E.2d 277, 279-280; Van Camp v. Riley (1984), 16 Ohio App.3d 457, 463, 16 OBR 539, 544-545, 476 N.E.2d 1078, 1084.

Accordingly, because nothing in the record indicates that Andrew raised the application of Civ.R. 32(A)(4) as an issue in the court below, Andrew has waived any error on appeal. Andrew's first assignment of error is overruled.

Assignment of Error 2

"The trial court erred in granting summary judgment in favor of the defendant-appellee."

In reviewing a trial court's grant of summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121, 1122-1123. Thus, under Civ.R. 56(C), the entry of summary judgment is proper only if, after viewing the evidence most strongly in favor of the nonmoving party, the court determines that no genuine issues of material fact remain for trial, entitling the moving party to judgment as a matter of law because reasonable minds could come to but one conclusion which is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

In granting summary judgment to Mary, the trial court found that as a creditor Andrew did not satisfy the statutory presentment requirements under R.C. 2117.06 because he had failed to present his claim to the co-administrators of Alfred's estate in writing. Andrew argues that his discussion of the debt with Donald combined with the fact that Alfred's notation of the debt was in Donald's possession amounted to notice and knowledge of the debt by Donald as co-administrator of Alfred's estate and that this notice and knowledge of the debt substantially complied with the presentment requirements of R.C. 2117.06. We disagree.

First, evidence concerning Andrew's discussion with Donald and Donald's possession of Alfred's notation was contained in the depositions stricken by the trial court from Andrew's motion for summary judgment. Thus, these facts were not before the trial court. Nevertheless, even assuming arguendo that these facts were before the trial court, Andrew still failed as a matter of law to satisfy the presentment requirements for a creditor under R.C. 2117.06.

At the time of Alfred's death, R.C. 2117.06 provided in pertinent part that "[a]ll creditors having claims against an estate shall present their claims to the executor or administrator in writing * * * within three months after the date of the appointment of the executor or administrator * * *." ² This presentment requirement is mandatory. Fortelka v. Meifert (1964), 176 Ohio St. 476, 480, 27 O.O.2d 439, 442, 200 N.E.2d 318, 321-322. Moreover, under R.C. 2117.06, only a written presentment provided to the administrator during the statutory time period can constitute the presentment of a claim within the meaning of the statute. Id. Therefore, the presentment of a claim in writing to the administrator of an estate is a condition precedent to a creditor bringing suit on that claim. Morgan v. City Natl. Bank & Trust Co. (1964), 4 Ohio App.2d 417, 418, 33 O.O.2d 504, 504-505, 212 N.E.2d 822, 823.

It is clear from the record in this case that Andrew did not present his claim against Alfred's estate in writing to Donald or David within three months of their appointment as co-administrators of Alfred's estate. Andrew, however, relies upon Gerhold v. Papathanasion (1936), 130 Ohio St. 342, 4 O.O. 425, 199 N.E. 353, and Gladman v. Carns (1964), 9 Ohio App.2d 135, 38 O.O.2d 149, 223 N.E.2d 378, to support his argument that he substantially complied with R.C. 2117.06.

In Gerhold, the Supreme Court found that the owner of a promissory note did not...