DocketNumber: No. 15526.
Citation Numbers: 672 N.E.2d 1037, 109 Ohio App. 3d 609
Judges: FAIN, Judge.
Filed Date: 3/1/1996
Status: Precedential
Modified Date: 1/13/2023
Plaintiff-appellant, Joe W. Caldwell, appeals from the dismissal of his cause of action. Caldwell contends that the trial court erred in concluding that his cause of action was barred because he failed to bring it within the time prescribed by R.C.
On October 8, 1993, Richard H. Hammond, an attorney representing the executor of the estate of Barbara Caldwell, sent Kirkland a letter. The entire text of that letter is as follows:
"We received a letter from you by fax on October 7, 1993, a copy of which is enclosed. We currently have no Mary Caldwell estate pending in this office to the best of the knowledge of the undersigned.
"There is, however, an estate pending on behalf of one Barbara J. Caldwell, and rumor has it that she was once married to a man by the name of Joe Caldwell.
"Perhaps you would want to check with your client to determine the proper identity of the deceased, but in any event, on the Caldwell estate we are handling, and on behalf of the administratrix thereof, we would have to reject any claim made against the Estate of Mrs. Mary Caldwell."
On October 25, 1993, Kirkland sent the presentment of a claim by certified mail, return receipt requested, to Janice Brown, the executor of the estate of Barbara Caldwell. In this letter, Kirkland correctly identified the decedent as Barbara Caldwell.
On January 25, 1994, Richard Hammond sent Kirkland a letter, in Hammond's capacity as attorney for Janice Brown, executor of the estate of Barbara Caldwell, in which he referred to his earlier correspondence rejecting the claim that had been presented on behalf of Joe Caldwell. There appears to have been no further reference to either claim presented by Kirkland before the filing of the complaint in this case on February 3, 1994. *Page 611
The trial court dismissed the complaint, holding that Hammond's October 8 letter constituted a rejection of Joe Caldwell's claim, so that the complaint in this case was not timely filed in accordance with R.C.
"The trial court erred by dismissing plaintiff's claim."
R.C.
"(A) All creditors having claims against an estate * * * shall present their claims in one of the following manners:
"(1) To the executor or administrator in a writing;
"(2) To the executor or administrator in a writing, and to the probate court by filing a copy of the writing with it;
"(3) In a writing that is sent by ordinary mail addressed to the decedent and that is actually received by the executor or administrator within the appropriate time specified in division (B) of this section. * * *"
Joe Caldwell contends that his counsel's letter of October 7, 1993 cannot be deemed to constitute the presentment of a claim in accordance with R.C.
However, Kirkland's letter of October 7, 1993 contained some ambiguity concerning the identity of the decedent. The only reference in that letter was to the estate of Mary Caldwell. Perhaps Hammond could have treated that letter as a claim against the estate of Barbara Caldwell, which he was handling. However, he did not do so. His letter notes that there is no Mary Caldwell estate pending in his office, that there is an estate pending on behalf of "one Barbara J. Caldwell, and rumor has it that she was once married to a man by the name of Joe Caldwell." Hammond, in his letter of October 8, 1993, then suggests that Kirkland check with his client to determine the proper identity of the deceased, but finally notes that, on behalf of his client, "we would have to reject any claim made against the Estate of Mrs. Mary Caldwell."
In our view, Hammond's letter may be interpreted as having accomplished one or both of two things. It may be construed as having rejected Joe Caldwell's *Page 612 claim as to form, because of the misnomer of the decedent. It may also be deemed to have rejected, in an excess of caution, the claim against the estate of Mary Caldwell, electing to treat the claim literally as a claim against the estate of Mary Caldwell. What Hammond's letter of October 8 does not purport to do is to treat the claim presented in Kirkland's letter of October 7 as a claim against the estate of Barbara Caldwell, and reject that claim on its merits.
R.C.
The purpose of R.C.
Because we do not find, in this record, a plain and unequivocal rejection of the claim made against the estate of Barbara Caldwell, it necessarily follows that the trial court erred in dismissing the complaint as not having been timely filed within two months of such a rejection.
Joe Caldwell's sole assignment of error is sustained.
Judgment reversed and cause remanded.
WOLFF and GRADY, JJ., concur. *Page 613