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Kostyo v. Kaminski

Court of Appeals of Ohio, Ninth District

July 22, 2013

WILLIAM KOSTYO, admin. Appellee
v.
FLORENCE KAMINSKI Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CV173793

APPEARANCES: JAMES A. DEERY and DANIEL J. GIBBONS, Attorneys at Law, for Appellant.

FRANK S. CARLSON, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

JENNIFER HENSAL, Judge.

{¶1} William Kostyo, executor of the estate of Hattie Kostyo, appeals a judgment of the Lorain County Common Pleas Court that denied his motion for summary judgment and granted summary judgment to Florence Kaminski. For the following reasons, this Court affirms in part and reverses in part.

I.

{¶2} For many years, Ms. Kostyo maintained a savings account at Northern Savings and Loan, which later became First Place Bank. Her sister, Ms. Kaminski, was also on the account, but never deposited any money into it. According to Ms. Kostyo, after her husband died, Ms. Kaminski helped her with her banking and finances.

{¶3} In May 2009, Ms. Kostyo closed the savings account and transferred the balance to a different account at First Place Bank. The new account was owned by Ms. Kaminski and the brother of the two women, Robert Kaminski. Ms. Kostyo testified that, at the time of the transfer, she thought that she was also a holder of the account. She testified that she transferred the money to the other account for "safekeeping" and because it offered a better interest rate. Mr. Kaminski died a month later, leaving Ms. Kaminski as the sole account holder of the second account.

{¶4} According to Mr. Kostyo, in 2011 his mother asked Ms. Kaminski to return the money she had transferred to the second account, but Ms. Kaminski refused. Ms. Kostyo subsequently sued her for breach of contract, unjust enrichment, conversion, and fraud. In February 2012, Ms. Kostyo passed away and her son, who is executor of her estate, was substituted as a party. Before her death, the parties took Ms. Kostyo's deposition in order "to perpetuate [her] testimony * * * for purposes of * * * [t]rial."

{¶5} Following discovery, the parties filed cross-motions for summary judgment. Mr. Kostyo argued that there is no dispute that all of the money that his mother transferred to Ms. Kaminski's account belonged to his mother and should be returned. Ms. Kaminski, on the other hand, argued that, because the transfer was between family members, there is a presumption that the funds were intended as gift. The trial court granted summary judgment to Ms. Kaminski, concluding that "the deposition testimony of the now deceased Hattie Kostyo was insufficient to establish a prima facie case for any of the alleged theories of liability." Mr. Kostyo has appealed, assigning two errors.

II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION ...

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