WILSON, APPELLEE, v. LAWRENCE, EXR., APPELLANT.
Nos. 2015-2081 and 2016-0180
Supreme Court of Ohio
April 19, 2017
2017-Ohio-1410
Submitted January 11, 2017
{¶ 1} In this consolidated appeal, we address whether a claimant seeking to file a claim against an estate meets the requirement of
RELEVANT BACKGROUND
{¶ 2} Joseph T. Gorman entered a contract with appellee, James A. Wilson, to purchase a 15 percent interest in Marine 1, L.L.C., for $300,000. Gorman died on
{¶ 3} On July 1, 2013, the Cuyahoga County Probate Court opened Gorman‘s estate. That same day, the probate court appointed appellant, William Lawrence, as the executor of Gorman‘s estate, pursuant to Gorman‘s will. The probate court‘s docket showed that the estate‘s counsel was James A. Goldsmith.
{¶ 4} On July 11, 2013, Wilson‘s attorney sent one letter addressed to both Gorman‘s personal secretary, Patricia Clark, and Gorman‘s accountant and the trustee of his trust, Randall Myeroff. Although that letter was addressed to Clark and Myeroff, not to Lawrence or Goldsmith, the letter purported to present Wilson‘s claim for approximately $200,000 to the executor of Gorman‘s estate. Wilson intended the letter as the presentment of his claim to the estate, but he did not send the letter to Lawrence or to Goldsmith. According to the record, however, Clark forwarded the letter to Goldsmith on the day she received it and Myeroff forwarded the letter to Goldsmith and Lawrence soon after he received it.
{¶ 5} On September 24, 2013, Goldsmith informed Wilson‘s attorney that he was aware that the attorney had sent a letter to Clark and Myeroff on Wilson‘s behalf. But Goldsmith asserted that the “mailing of [Wilson‘s] claim to the trustee of the decedent‘s trust and to his executive assistant are insufficient to effectuate the filing of an appropriate claim” and informed Lawrence that the “claim will not be considered as it was not presented to the Executor of the Estate in accordance with the Ohio Revised Code.”1
{¶ 6} On November 14, 2013, Wilson brought suit against Lawrence, as executor of Gorman‘s estate, in the Cuyahoga County Common Pleas Court, alleging that Gorman breached the contract. After discovery, the estate and Wilson moved for summary judgment. The trial court judge expressly found that the letter was sent to “two individuals who were not in fact personal representatives of the decedent‘s estate” and thus that the letter was not legally sufficient, under
{¶ 7} On Wilson‘s appeal, the Eighth District framed the issue before it as whether Wilson timely presented his claim against the estate in accordance with
{¶ 8} Lawrence successfully moved the Eighth District to certify a conflict between its judgment in his cause and the Fourth District Court of Appeals’ decision in Jackson v. Stevens, 4th Dist. Scioto No. CA 1231, 1980 WL 350961 (Jan. 24, 1980). We recognized that conflict and asserted jurisdiction over Lawrence‘s discretionary appeal from the Eighth District‘s judgment. 145 Ohio St.3d 1420, 2016-Ohio-1173, 47 N.E.3d 165; 145 Ohio St.3d 1421, 2016-Ohio-1173, 47 N.E.3d 166.
ANALYSIS
{¶ 9} We begin with the language of the controlling statute,
(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 or unliquidated, shall present their claims in one of the following manners:
(1) After the appointment of an executor or administrator and prior to the filing of a final account or a certificate of termination, in one of the following manners:
(a) To the executor or administrator in a writing * * *.
(Emphasis added.)
{¶ 10} Our initial inquiry in considering the statute is to determine whether it is ambiguous.
{¶ 11} “It is a cardinal rule of statutory construction that where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation.” Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979), citing Provident Bank v. Wood, 36 Ohio St.2d 101, 304 N.E.2d 378 (1973). “If [the statute] is ambiguous, we must then interpret the statute to determine the General Assembly‘s intent. If it is not ambiguous, then we need not interpret it; we must simply apply it.” State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 13, citing Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus (“An unambiguous statute is to be applied, not interpreted“). “When the statutory language is plain and unambiguous, and
{¶ 12} The statute is not ambiguous. The General Assembly‘s mandate in
{¶ 13} “‘Shall’ means must.” Application of Braden, 105 Ohio App. 285, 286, 148 N.E.2d 83 (1st Dist.1957). See also Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107, 271 N.E.2d 834 (1971), citing Cleveland Ry. Co. v. Brescia, 100 Ohio St. 267, 126 N.E. 51 (1919) (“The word ‘shall’ is usually interpreted to make the provision in which it is contained mandatory, * * * especially if frequently repeated“). And “[t]he word ‘must’ is mandatory. It creates an obligation. It means obliged, required, and imposes a physical or moral necessity.” Willis v. Seeley, 68 N.E.2d 484, 485 (C.P.1946). Thus, we repeatedly have recognized that use of the term “shall” in a statute connotes a mandatory obligation unless other language evidences a clear and unequivocal intent to the contrary. State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28. Here, there is absolutely no indication in the statutory scheme that the General Assembly meant “shall” to mean anything other than “must.”
{¶ 14}
{¶ 15} In reaching this conclusion, we recognize that the requirements of
{¶ 16} The Ninth District Court of Appeals has explained,
[A] presentation of a claim to a so-called agent of the administrator falls outside of the requirements of the statute, because the functions of the office cannot be delegated to agents.
If the presentation of a claim to an agent of the administrator were permitted, then the legal proceeding would be begun upon such presentation and before knowledge of such fact was had by the officer of the court. The right to file a claim involves a question of time, and the purpose of the legislation to effect a speedy administration of estates would be defeated if the court‘s officer were compelled to delay the administration until he had received the report of his agent or his various agents. Furthermore, the fiduciary, personally, is accountable for the fixing of the time when a claim has been presented, and this responsibility cannot be delegated to an agent who does not owe the fidelity required of an officer of the court.
{¶ 17} “The statute places the burden upon the claimant to present his claim with the probate officer.” (Emphasis sic.) Id. at 446. If a creditor fails through indifference, carelessness, delay, or lack of diligence to identify the administrator or executor, or to procure the appointment of one so that a claim can be presented, the law should not come to the creditor‘s aid. Accord Reid v. Premier Health Care Servs., Inc., 2d Dist. Montgomery No. 17437, 1999 WL 148191, *5 (Mar. 19, 1999), citing Wrinkle v. Trabert, 174 Ohio St. 233, 236, 188 N.E.2d 587 (1963).
{¶ 19} Wilson‘s claim focuses on language from our decision in Fortelka, in which we considered a narrow issue: whether the commencement of a personal injury action against an administrator of a tortfeasor‘s estate, accompanied by proper and timely service of the summons and complaint upon the administrator, constituted a valid presentment of the claim to the estate administrator and satisfied the requirements of
{¶ 20} In so holding, we quoted language that suggested that presentment requirements “are said to be quite uniformly softened” if the application of the presentment requirements “would run contrary to reason and common sense.” Id., quoting 22 Ohio Jurisprudence 2d, Section 293, 653 (1956). We concluded that the facts and circumstances in Fortelka justified a determination that the plaintiff had complied with
{¶ 21} Significantly for purposes here, counsel for the claimant in Fortelka identified and served the executor of the estate—not an individual lacking any authority over the estate—with the complaint. See id. at 476. Here, Wilson‘s counsel neither identified the executor nor presented the executor with the claim described in his letter to Clark and Myeroff.
{¶ 22} For these reasons, we hold that a claim against an estate must be timely presented in writing to the executor or administrator of the estate in order to meet the mandatory requirements of
CONCLUSION
{¶ 23} A claimant against an estate does not meet the requirement under
Judgment reversed and cause remanded.
O’DONNELL, KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
O’NEILL, J., dissents, with an opinion.
WILSON, APPELLEE, v. LAWRENCE, EXR., APPELLANT.
O’NEILL, J., dissenting.
{¶ 24} Respectfully, I dissent.
{¶ 26} Wilson mailed a demand letter to Gorman‘s secretary, Pat Clark, on July 11, 2013. The salutation line directed the letter to the “heirs, administrators or executors of the Estate of * * * Joseph T. Gorman, deceased.” Clark received the letter and immediately forwarded it to James A. Goldsmith, the executor‘s attorney. Nothing in the record indicates the date on which Clark received the letter or whether it was received by the executor before or after the July 20, 2013 deadline for presentment.
{¶ 27} Wilson also sent the letter to the trustee of Gorman‘s trust, Randall S. Myeroff. Myeroff received the letter on July 12, 2013, and he stated that he forwarded it to Goldsmith and Lawrence at or about that time. Again, nothing in the record indicates when Goldsmith or Lawrence received the letter or whether it was received by the executor before or after the July 20, 2013 deadline for presentment. For the purpose of ruling on Lawrence‘s motion for summary judgment, however, it is preposterous to conclude that the U.S. Postal Service somehow did not deliver the letter until more than eight days had passed. Reasonable minds simply cannot be expected to accept that scenario.
{¶ 28}
{¶ 29} The majority applies
{¶ 30} The statute does not set forth a specific delivery mechanism but merely requires delivery; it uses the word “present.” As a verb, the word “present” means “to hand or pass over usu. in a ceremonious way: deliver formally for acceptance.” Webster‘s Third International Dictionary 1793 (1986). The statute
{¶ 31} I am further troubled by the rule adopted today because our case law does not support it. We have called the presentment requirement of
{¶ 32} The real question here—one the majority simply ignores—is whether it is reasonable to infer that the executor received the written claim within six months of Gorman‘s death. There is nothing in this record to demonstrate that he did not receive notice. And there is ample evidence to support the inference that he did. Following the logic of the majority, if a creditor comes to the office of an executor at lunch time and leaves a notice in the inbox on the desk of the executor‘s secretary, we would infer that the creditor has not complied with the statute. Must creditors now track down the executor on the seventh hole of the local country club and physically hand the claim to the executor to establish that the claim was “presented“? Is the majority now saying that as a matter of law, the mailing of a letter through the U.S. Postal Service, eight days before the deadline, is a fatally flawed method of delivery? Lawyers across the state are going to be very interested in that interpretation of the law, particularly in a motion for summary judgment.
{¶ 34}
{¶ 35} Respectfully, I dissent.
Triscaro & Associates, Ltd., and Joseph J. Triscaro, for appellee.
Ulmer and Berne, L.L.P., James A. Goldsmith, and Matthew T. Wholey, for appellant.