Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Trial Court Case No. 17-CV-1394
CORY PHILLIPS, and JOSEPH F. PETROS, III, Attorney for
C. SHAENGOLD, Attorney for Defendant-Appellee.
1} Kingston of Miamisburg appeals from a judgment of
the Montgomery County Court of Common Pleas, which granted
summary judgment to Kevin and Ann Maute ("the
Mautes") on Kingston's claims of fraudulent
transfer, promissory fraud, civil conspiracy, promissory
estoppel, and unjust enrichment. For the following reasons,
the trial court's judgment will be affirmed.
Facts and Procedural History
2} Construing the evidence in the light most
favorable to Kingston, the record establishes the following
3} Kingston of Miamisburg operates a licensed
skilled-nursing facility in Miamisburg, Ohio. On August 6,
2015, Kevin Maute's mother, Macushla Maute, entered into
an agreement with Kingston to reside and receive services
there. Macushla  passed away on October 26, 2015. At the
time of her death, she owed a principal balance of $11,
206.77 to Kingston.
4} According to Janet Reitz, central billing
specialist for Kingston, on November 16, 2015, Kingston
"sent a notice of its claim" to Ann Maute,
Kevin's wife and Macushla's
daughter-in-law. On January 22, 2016, Ann "represented
to [Kingston] via telephone that she and/or the family of
Macushla Maute would be opening an estate for Macushla Maute
in March or April, 2016, and that [Kingston] would be
notified once an estate was opened." On February 15,
2016, Ann told Kingston by telephone that she had received
Kingston's "notice of its claim" and that she
and/or the family "intended to pay" the claim from
Macushla's estate. Neither Kevin, Ann, nor Kingston
opened an estate in the probate court within six months of
5} On July 13, 2016, Kevin, the sole child of
Macushla, filed an "application to relieve estate from
administration" with the Montgomery County Probate
Court. The application indicated that the estate had total
assets of $24, 948.47. The assets were later transferred to
Kevin. Reitz states that Kingston was not notified that an
estate had been opened, and its claim was not paid from
6} Counsel for the Mautes stated in his affidavit in
support of summary judgment that the docket records of the
Montgomery County Probate Court do not reflect any other
estate proceedings for Macushla. Kingston alleged that it had
relied on Ann's representations in failing to take such
7} On March 20, 2017, Kingston filed an action in
the General Division of the Montgomery County Court of Common
Pleas against the Mautes, alleging that the assets of
Macushla's estate were fraudulently transferred to them.
The Mautes denied the allegations and moved for summary
judgment. Kingston subsequently filed an amended complaint,
which raised claims of (1) fraudulent transfer against Kevin
and Ann, (2) promissory fraud against Ann, (3) civil
conspiracy to commit promissory fraud against Kevin, (4)
promissory estoppel against Ann, and (5) unjust enrichment
against Kevin and Ann. Kingston sought damages of $11,
206.77. The Mautes again denied the allegations and renewed
their motion for summary judgment.
8} In their renewed summary judgment motion, the
Mautes argued that Kingston was trying to circumvent the
six-month statute of limitations for presenting claims
against an estate, set forth in R.C. 2117.06. They noted
that, even if Kingston's allegations were true, Kingston
had two months from Ann's last representation to take
appropriate action to protect its claim. They further argued
that no assets were transferred during Macushla's
lifetime to trigger the applicability of R.C. Chapter 1336,
the Ohio Uniform Fraudulent Transfer Act, and that
Kingston's attempt to have the Mautes answer for the debt
of Macushla violated the Statute of Frauds.
9} Kingston opposed the summary judgment motion. It
argued that the Statute of Frauds did not apply, because Ann
promised to pay the debt from the estate's assets, not
her own, and that the transfer of assets under R.C. Chapter
1336 includes transfers during the probate process. Finally,
Kingston argued that the Mautes presented no evidence to
create a genuine issue of material fact that they did not
administer Macushla's estate with the intent to hinder,
delay, or defraud Kingston.
10} On August 10, 2017, a magistrate ruled in favor
the Mautes, focusing on Kingston's obligations under R.C.
2117.06. The magistrate concluded:
In the case at bar, construing the evidence in a light most
favorable to Plaintiff, Plaintiff gave notice of its claim to
a person who was not the administrator. It is undisputed that
an estate was not opened within the six-month statutory time.
It [is] also undisputed that Plaintiff at no time initiated
an estate and for the appointment of an administrator. All of
Plaintiff's contact was with Defendant Ann Maute who was
not responsible for the bill nor has she been appointed as
administrator in the estate. It was Plaintiff's
obligation to protect its own interests. Plaintiff had no
contact with Defendants after February 2015 [sic]. With the
six-month statute ticking away, Plaintiff still failed to
initiate the filing of an estate.
As a result, Plaintiffs claims must fail pursuant to O.R.C.
Defendant Ann Maulte [sic] owed no duty to Plaintiff.
Plaintiff relies on Defendant Ann Maute's statement that
an estate would be opened and the claim paid to attempt and
establish there was an attempt to hinder or delay payment of
the claim. Even if, arguably, this were true, Plaintiffs
remedy, and in fact its obligation, was to file to open the
estate itself. Having found Plaintiffs own inaction to be the
cause of its damage, there remains no genuine issue of
material fact on Plaintiffs claims, and Defendants are
entitled to Judgment as a matter of law.
11} Kingston objected to the magistrate's
ruling. On January 9, 2018, the trial court overruled
Kingston's objections, affirmed the magistrate's
findings of facts and ...