Petition for Writ of Certiorari — Scott v. Estate of Barnett

October Term, 1990

JONATHAN C. SCOTT,

Petitioner,

vs.

ESTATE OF JENNIE MANDEL BARNETT, RHODA HERSCHLER

GREENBERG AND MICHAEL HERSCHLER,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF AP-

PEALS FOR FRANKLIN COUNTY, OHIO, TENTH APPELLATE

DISTRICT

RONALD PODOLSKY*

15 Park Row

New York, NY 10038

(212) 460-8218

Counsel of Record

Det Raley Appellate Printers > Tel.: 1-800-564-4918

(212) GOR. 7666 — (718) 447-4958 — (416) 222-2470 — (914) 68) Ra

Fax Number: (718) 273-8031

QUESTIONS PRESENTED

I. Whether or not the Full Faith and Credit

Clause provisions of Article IV. Section | of the

United States Constitution prohibits à sister state

from vacating a judgment rendered by a court of

competent jurisdiction in another state absent a

showing that the judgment is void for want of

jurisdiction or for some other substantial reason?

2. Whether or not the Ful! Faith and Credit

Clause provisions of Article IV. Section | of the

United States Constitution and the due process

provisions of the I4th Amendment to the United

States Constitution prohibit a sister state from

granting the judgment debtors, residents of that

State, a stay of enforcement of the foreign state

judgment without requiring any security therefore

and upon an ex-parte application predicated upon

conclusory allegations that the debtors did not

engage in any of the acts specified in the long-arm

statute?

J. Whether or not the requirements of Full

Faith and Credit and of due process of law prohibit

the appellate Courts of the state where enforcement

is sought from granting the judgment debtors a

second hearing in which to adduce evidence in

ii

support of the motion to vacate and require the

appellate Court to decide the legal issues presented

rather than remanding for another evidentiary

hearing where the proceedings to vacate the

judgment have been pending for some four and one-

half years?

PARTIES

a The appellant in the Court of Appeals for

Franklin County, Ohio was Jonathan C. Scott. The

appellees were the Estate of Jennie Mandel

Barnett. Rhoda Herschler Greenberg and Michael

Herschler.

All of the parties sought review in the

Supreme Court of Ohio of the determinations made

by the Court of Appeals of Ohio.

PETITION FOR A WRIT OF CERTIORARI-

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES ii

TABLE OF AUTHORITIES TT

OPINIONS BELOW 2

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. 3

STATEMENT OF THE CASE 7

REASONS FOR GRANTING THE WRIT 12

CONCLUSION 29

APPENDIX-A,1-A.19

CASES

Abbate_v, Abbate, 62 A. b. 2d 368, 441

N.¥.S.2d 506 (2d Dept. 1981) 20

Burger King v. Rudzewicz, 471 U.S. 462

(1985) 17

„ 42 N.Y.2d

1033, 399 N. v. s. 2d 202, 369 N.E.2d 758

22

Doroski_v. Mintler, 49 A.D.2d 990, 374

N.Y.S.2d 721 (3rd Dept. 1975) 33

Gerzof vy, Gerzof, 57 A.D.2d 821, 395

N.Y.S.2d 26 (Ist Dept. 1977) 0 22

Kassuto v. Talon, 77 Misc. 2d 132, 353

N.Y.S.2d 291 (Sup. ct., Kings Cty. 1974)

* * * * * . 20

Matter of Huie, 20 N.Y.2d 568, 285

N. T. 8. 2d 610, 232 N.E.2d 642 (New York

Court of Appeals, 1967) ° 0 22

» 92 Cal.

App. 3d 496, 155 Cal.Rpt. 58 (Court of

Appeals, Third District 1979) - 26

Raul_v. Morrison, 282 A.D. 1042, 126

N. v. S. 2d 896 (Ist Dept. 1933) 24

(1959, 75 Nev. 328, 341 P.2d 100, 73

A. L. R. 2d 879 (Supreme Court of Nevada

1959) * * * * * * * 26

Roche v. McDonald, 275 U.S. 449 (1928)

17

ce

Ing., 50 Misc. 2d 611, 270 N.Y.S.2d 787

(Sup. ct., Nassau Cty. 1966) 20

Underwood vy, Underwood, 92 Misc. 2d 359,

399 N. v. 8. 2d 967 (Sup Ct., Westchester

Cty. 1977) J a a 20

iy

TABLE OF AUTHORITIES

CASES

1949) : . . . : 24

STATUTES

28 U.S.C. § 1254 (2) . : . . 2

28 U.S.C. 1738 : . . : . 4

New York Civil Practice Law and Rules

302 7, 19

Ohio Revised Code Section 2117. 06 4,

24, 25, 26

Ohio Revised Code Section 2117.11 6.

1l, 24, 25, 27

Ohio Revised Code Section 2329.02.2 9%, 17

Ohio Revised Code Section 2329.02.11 5

Ohio Revised Code 2329.022 . e 9, 17

United States Code, 28 U.S.C. 1738 9

CONSTITUTION

U.S. Constitution, 14 Amendment Passin

U.S. Constitution, Article IV, Section 1.

Passin

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1990

JONATHAN C. SCOTT,

Petitioner

vs.

ESTATE OF JENNIE MANDEL BARNETT,

RHODA HERSCHLER GREENBERG AND

MICHAEL HERSCHLER,

Respondents

JONATHAN C. SCOTT (thereafter SCOTT)

respectfully petitions this Court to issue a Writ of

Certiorari to review two decisions of the Court of

Appeals of Ohio, Tenth Appellate District,

rendered May 10. 1990 and on August 28, 1990,

which refused to enforce a foreign state money

judgment rendered by the Supreme Court of the

2

State of New York, County of Suffolk on July 7.

1986 in his favor against former residents of the

State of New York.

OPINIONS BELOW

The entry of the Supreme Court of Ohio.

dismissing the appeal taken by all parties from the

decisions of the Court of Appeals was made by the

Chief Justice on November 28, 1990 (A. IL

The decisions of the Court of Appeals of Ohio

were entered May 10. 1990 and August 28, 1990

(A.2-17).

The judgment of the Court of Common Pleas

vacating judgment was entered on October 21, 1988

(A. 18).

The report of the Referee of the Court of

Common Pleas was made on August 4. le.

JURISDICTIONAL STATEMENT

This petition seeks review of two decisions

entered by the Court of Appeals of Ohio, Tenth

Appellate District.

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254 (2).

This petition is timely filed within ninety days

of the date of the entry of Supreme Court of Ohio,

dismissing the appea! upon its opinion that there

3

was no substantial Constitutional question

presented.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

1. The Fourteenth Amendment to the United

States Constitution provides, in pertinent part:

“No person shall be deprived of life. liberty or

property without due process of law”.

2. Article IV. Section | of the United States

Constitution provides, in pertinent part:

“Full Faith and Credit shall be given in

each state to the public acts. Records and

judicial Proceedings of every other State

3. Ohio Revised Code Section 2329.02.11

provides:

“Foreign judgment” defined.

As used in sections 2329.02! [2329.02.1} to

2329.027 [2329.02.71 of the Revised Code.

‘foreign judgment” means any judgment,

decree, or order of a court of the United

States. or of any court of another state, that

is entitled to full faith and credit in this state.

4. Ohio Revised Code Section 2329.02.2,

provides:

A copy of any foreign judgment authenticated

in accordance with section 1738 of Title 28 of

the United States Code, 62 Stat. 947 (1948),

may be filed with the clerk of any court of

common pleas. The clerk shall treat the

foreign judgment in the same manner as a

judgment of a court of common pleas. A

foreign judgment filed pursuant to this section

has the same effect and is subject to the same

procedures, defenses, and proceedings for

reopening, vacating, or staying as a judgment

of a court of common pleas and may be

enforced or satisfied in same manner as a

judgment of a court of common pleas.

§. Ohio Revised Code Section 2117. 06,

entitled "Presentation and allowance of

creditor's claims; statements and notices

required,” provides:

(A) All creditors having claims against

an estate, including claims arising out

5

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) To the executor or administrator

in writing.

. . .

(B) All claims shall be presented

within three months after the date

of the appointment of the executor

or administrator, except that claims

„*

(C) In the absence of any prior demand

for an allowance, the executor or

administrator shall allow or reject

all claims *** within thirty days

after their presentation; *** Upon

the allowance of a claim, the executor

or administrator, on written demand

of the creditor, shall furnish the

creditor with a written statement

or memorandum of the fact and date

6

of such allowance.

(E) Any person whose claim has been

presented and not thereafter rejected.

is a creditor **. Claims that are

contingent need not be presented

except as provided in section 2117.37

to 2117.42 of the Revised Code, but

whether presented pursuant to those

sections or this section, contingent

claims may be presented in any of the

manners described in division (A) of

this section.

6. Ohio Revised Code Section 2117.11.

entitled “Rejection of Claim” provides:

An executor or administrator shall

reject a creditor's claim against the

estate he represents by giving the

claimant written notice of the

disallowance thereof. ***

A claim is rejected if the

7

executor or administrator, on

demand in writing by the claimant

for an allowance thereof within

five days, which demand may be made

for the presentation or at any time

thereafter, fails to give to

claimant, within such period,

a written statement of the allowance

of such claim. Such rejection shall

become effective at the expiration

of such period.

7. New York Civil Practice Law and Rules

302 is set forth in the appendix at A. 14)

STATEMENT OF THE CASE

On November 5. 1982, defendant Rhoda

Greenberg was appointed Executrix of the Estate

of Jennie Mandel Barnett by the Probate Court of

Franklin County, Ohio. On January 24, 1983,

plaintiff Jonathan C. Scott, through his attorney,

demanded a return by the estate of two diamond

rings of which he was the beneficial owner. The

executrix did nothing in response to the filing of

that letter.

In 1984, Jonathan Scott, a resident of the

State of New York, filed suit in the Supreme

Court of New York, Suffolk County, against the

Estate of Jennie Mande! Barnett and the other

defendants on the basis that the decedent, while a

resident of New York, was entrusted with those

rings by plaintiffs father, a New York resident.

The decedent agreed to hold those rings for the

benefit of plaintiff until he turned 21, at which

time they were to be delivered to him in the State

of New York. That trust was breached by the

decedent by her delivery of the rings to the other

two defendants herein, who were married to each

other at the time. All three defendants had been

residents of the State of New York. The record

further showed that even after moving outside of

the state of New York, Rhoda Herschler and the

decedent Jennie Mandel Barnett received revenue

from real estate holdings and other investments in

the State of New York.

Not only did all defendants herein not

defend that New York complaint served upon

them, but the estate beneficiaries specifically

directed the fiduciary not to expend funds to

defend that action.

9

The Franklin County, Ohio Probate Court

acceded to those wishes by denying authority to so

expend funds.

As a result of the failure to defend the New

York lawsuit, a default judgment was rendered in

favor of the petitioner. At an inquest in which the

defendants declined to participate, the Supreme

Court of the State of New York, County of Suffolk

found that it had jurisdiction over the subject

matter and over the parties. In addition, the Court

found, on the basis of the testimony offered at the

inquest, that the decedent breached the trust and

converted property of which Jonathan C. Scott was

the beneficial owner. Neither the Estate or the

individual defendants ever moved to vacate the

judgment in the New York State Courts, nor did

they appeal the judgment, despite notice to them

of its entry.

A money judgment, in the amount of

$24,289.58 was entered by the Supreme Court of

the State of New York, County of Suffolk ow July

7, 1986. That judgment was then duly

authenticated pursuant to 28 U.S.C. 1738 and on

August 29, 1986, was filed in the Franklin County

Court of Common Pleas as a foreign judgment

pursuant to Ohio Revised Code 2329.022.

10

Thereafter, defendants at various times filed

motions to vacate that judgment, to stay

enforcement thereof, and for evidentiary hearings.

Jonathan C. Scott resisted all of those motions

and sought enforcement of the judgment.

On June 24, 1987, a hearing was held before

a referee of the Court of Common Pleas at which

the testimony of defendants. Rhoda Greenberg

and Michael Herschler, was admitted over the

objections of plaintiffs counsel. The objected to

testimony involved an attempt by the defendants

to re-litigate the merits of the foreign state

judgment in the Ohio Courts. Thereafter, on

August 4. 1988, or thirteen and one-half months

following the hearing, the referee recommended

that the foreign judgment be vacated on the basis

that he found that: (1) contrary to the findings of

fact by the New York Court, none of the

defendants had minimum contacts with the State

of New York to invoke its long arm jurisdiction

statute: (2) contrary to the findings of fact by the

New York court, no trust of such rings existed:

and (3) that plaintiffs claim against the estate

was barred since the New York lawsuit was

commenced more than two months after what the

referee found to be the automatic rejection of the

claim pursuant to Ohio R. C. 2117.11.

Jonathan C. Scott timely filed objections to

the Report of the Referee, which objections were

overruled by the Court of Common Pleas decision

filed September 22, 1988. A judgment entry

journalizing that decision was filed October 21,

1988.

On May 10, 1990, the Court of Appeals for

Franklin County, Ohio found error in the

Referee’s re-consideration of the merits of the

claim (A. 16). However, the Court of Appeals

nevertheless remanded the case to the trial Court

to determine the issues of law presented. Motions

for re-consideration filed by the parties were

granted in that upon re-consideration the Court

abided by its decision to remand the cause for a

second evidentiary hearing and it affirmed the

Referee’s opinion that the claim against the

Estate was time barred. The decision on the

motions for re-consideration were rendered

August 28, 1990 (A. 2).

On November 28, 1990, the Court of

Appeals of Ohio dismissed the appeal and cross-

appeal taken by the parties from the decision of

the Court of Common Pleas (A. 1).

12

REASONS FOR GRANTING THE WRIT

A. THE WRIT SHOULD BE GRANTED

BECAUSE THE REFUSAL OF THE OHIO

STATE COURTS TO ENFORCE A

JURISDICTIONALLY VALID JUDGMENT OF

A SISTER STATE COURT VIOLATES THE

REQUIREMENTS OF THE FULL FAITH

AND CREDIT CLAUSE OF THE UNITED

STATES CONSTITUTION AND THE WRIT

SHOULD BE GRANTED BECAUSE THE OHIO

APPELLATE COURT'S ABDICATION OF ITS

RESPONSIBILITY TO DECIDE DISPOSITIVE

ISSUES OF LAW RATHER THAN

REMANDING THE CAUSE CONSTITUTES A

VIOLATION OF DUE PROCESS.

It is respectfully submitted that this case

presents important issues of law concerning the

credit Constitutionally due a judgment of a sister

State and_the procedures mandated for

determination of these issues under a uniform

enforcement of foreign judgment act such as that

enacted in Ohio and in many other state

jurisdictions.

Petitioner respectfully submits that the

refusal to give any credit to a judgment rendered

by a sister state Court of competent jurisdiction

renders meaningless the requirement of full faith

13

and credit. Such a decision, strongly indicative of

partiality of the local Court to its own residents,

undermines confidence in the judicial system and

serves to create an atmosphere of disrespect for

the determinations made by a sister state Court. It

is essential in a society where residents of various

states engage in transactions of all different types

with each other that a forum be available to

redress any disputes. There is nothing improper

about bringing suit in the forum in which the

-plaintiff resides provided that traditional notions

of fair play and substantial justice are not

offended by haling the defendants into that Court.

While the Court of Appeals of Ohio

referred to the doctrine of full faith and credit, a

careful analysis of the basis of its decision

indicates that in fact the doctrine was completely

ignored. The Court of Appeals found that the

Referee’s conclusions as to vacatur of the

judgment were erroneous. According the judgment

Full Faith and Credit, the appellate Court should

have enforced the judgment. Instead, it decided to

remand the case to the trial Court for another

hearing for the purpose of determining the purely

legal issues of 1) whether the judgment against

the Estate was rendered void by Ohio law

14

concerning claims against Estates: 2) whether the

Referee will reach a different decision applying

the law of the State of New York concerning long-

arm jurisdiction, Further, despite the Court's

acknowledgement that the only evidence at the

hearing concerning jurisdiction over the Estate

indicated substantial contacts by the decedent

Jennie Mandel Barnett in the State of New York

in relation to the cause of action, the Court

decided, without any request therefor, to order a

second evidentiary hearing, essentially giving the

Estate a second chance to litigate the issue of

jurisdiction. Upon re-consideration the Court of

Appeals ruled that the issue of the non-claim

statute had already been determined and it

thereupon upheld that determination.

In the present case, no determination has

been made by the Ohio State Courts that it was

fundamentally unfair to expect the defendants to

defend the lawsuit in New York. The cause of

action arose in the State of New York and had its

genesis in a trust between petitioner's father, Paul

Scott and petitioner's grandmother Jennie Mandel

Barnett. who at the time of its making were both

lifetime residents of the State of New York. The

trust called for delivery in the State of New York

15

of two diamond rings on a future date to Jonathan

C Scott, a New York resident. The defendants

Rhoda Herschler Greenberg and her former

husband Michael Herschler were previously long-

time residents of the State of New York and

following their relocation out of state, they

derived revenue from at least one real estate

investment made in the State of New York.

These jurisdictional facts, which were not

controverted by any competent evidence proferred

by the defendants, supported in personam

jurisdiction over them. Further, the Court which

rendered the judgment, the Supreme Court of the

State of New York, was vested with general

jurisdiction to hear and determine claims of the

type asserted (breach of trust and conversion of

property). Over the objections of Jonathan C.

Scott, the Ohio Courts granted the defendants an

evidentiary hearing on the motion to vacate

judgment, based solely upon the conclusory

assertion that they had not engaged in any of the

acts set forth in New York's long-arm statute as

the basis for jurisdiction. On appeal, the

determination of the Referee to vacate the

judgment was reversed but the Court of Appeals.

rather than reaching the jurisdictional claim,

16

remanded the cause for a second evidentiary

hearing. This action was taken despite the

absence of any claim by the defendants that the

first evidentiary hearing was improperly curtialed.

Petitioner respectfully submits that the

refusal of the Ohio appellate Courts to review the

issues of law presented and its determination to

remand the cause for another hearing for the

henefit of the resident defendants in the absence

of any request for same, some four years after the

foreign judgment was filed, is indicative of the

implementation of procedures designed to

frustrate and indefinitely delay enforcement of a

judgment by a non-resident judgment creditor. It

is respectfully submitted that such a course of

action is inconsistent with and represents an

abdication of the responsibility of the State

appellate Courts to determine issues of law

dispositive of the enforcability of the foreign state

judgment. Further, it ts submitted that such action

is inconsistent with the spirit and the letter of the

Full Faith and Credit Clause as well as a violation

of the rights of Jonathan C. Scott to due process

of law.

The State of Ohio recognizes the

application of the Full Faith and Credit Clause

j ·⁰ w OU:

17

and provides means by which a foreign judgment

may be filed under R.C. 2329.022.

On August 29. 1980. plaintiff followed the

statutory framework under Revised Code 2329.022

by filing an exemplified copy of the New York

judgment, along with notice to the debtor and a

praecipe. Under the Full Faith and Credit Clause,

a judgment is subject to non-enforcement only if

the Court which rendered the judgment lacked

competence to do so, either due to a lack of

jurisdiction over the person or over the subject

matter Roache vy. McDonald. 275 U.S. 449, 451. 452

(1928).

In Burger King v. Ruczeuicz. $71 U.S. 462

(1985), this Court found that traditional notions

of fair play and substantial justice were not

offended in requiring Michigan residents to

defend a diversity lawsuit brought in the U.S.

District Court in Florida on the basis of a breach

of a franchise agreement calling for payments to

he made to the plaintiff in the State of Florida.

This Court found that the defendants were subject

to suit in Florida under that state’s long-arm

statute even though they never were physically

present in that state, it being sufficient that an

economic injury arose from the actions of the

18

defendant purposely directed toward forum

residents,

In the present case, the record indicates

that defendant Rhoda Herschler Greenberg was

fully aware when she sold the two diamond

engagement rings and retained the money for the

benefit of herself and her husband Michael

Herschier that the diamond rings were the

property of a resident of the State of New York.

Therefore, by taking property of a New York

resident, selling it and keeping the proceeds for

themselves, defendants were purposely acting to

cause economic injury to a forum (New York

state) resident. The trust agreement breached by

the decedent was entered into with petitioner's

father while they were both residents of the State

of New York. The decedent was a resident of the

State of New York for some fifty years and she

derived substantial revenue from activities in the

State of New York. It is unrefuted that Jennie

Mandel Barnett entered into a contract, on or

about November 25, 1963, in the State of New

York, where she was then domiciled, with

Jonathan Scott's father, also a New York

domiciliary, calling for performance of the

contract to be tendered in the State of New York.

19

within a future specified time. Jennie Mandel

Barnett performed purposeful acts within the

State of New York in relation to the contract

entered into with Paul Scott in that she took

possession of two diamond rings, safeguarded

them for the benefit of Jonathan Scott and

retained complete control over them, within the

State of New York, up to and including the time

that she moved outside the boundaries of said

state in the year 1971. Jennie Mandel Barnett’s

purposeful acts, as outlined above, performed

within the State of New York over un eight year

period of time, and additional purposeful acts

whereby she availed herself of the benefits and

protection of New York law in the conduct of

business related to diversified real estate

activities and other commercial transactions,

supplies a substantial basis for the New York

Court's exercise of long-arm jurisdiction over the

Estate.

Long-arm jurisdiction under New York

CPLR Section 302 (a) (1) is extended to a non-

domiciliary (or the Estate of a non-domiciliary)

who transacted any business within the State of

New York, where the defendant was a New York

domiciliary at the time that the subject business

20

was transacted. The statute applies to confer

jurisdiction over disputes concerning commercial

contracts entered into in the State of New York

(Sharp Exports, Lid. vy. Mulco Products, Inc.. $0

Misc. 2d 611, 270 N.Y.S.2d 787 (Sup. Ct.. Nassau

Cty. 1966) as well as to contracts of a persona!

nature involving transactions between members of

the same family (Underwood v. Underwood. 92

Misc. 2d 389, 399 N.Y.S.2d 967 (Sup Ct.

Westchester Cty. 1977); Abbate v. Abbute, 82

A.D.2d 368, 441 N.Y.S.2d $06 (2d Dept. 1981);

Kassuto v. Talon. 77 Mise.2d 132, 383 N. VS. 2d

291 (Sup. Ct., Kings Cty. 1974) (Ohio resident

subject to suit in New York under long-arm

statute based upon execution of matrimonial

separation agreement in New York). It is

submitted that the record here fully supports the

New York Court's jurisdiction over the Estate and

that the Estate's denial of its awareness of the

decedent's purposeful activities in the State of

New York should not be deemed sufficient to

undo the judgment of the State of New York,

which is entitled to recognition under the full

faith and credit clause of the United States

Constitution. This is especially true where it is

apparent from the record that Rhoda Herschler

21

Greenberg and Michael Herschler, upon whose

affidavits the Estate relied for its motion to

vacate the judgment, had no basis of knowledge of

Jennie Mandel's transaction of business in the

State of New York in 1963 since they moved

outside of the State of New York in 1959 (where

they lived with the decedent). It is respectfully

submitted that the Estate completely failed to

establish by competent evidence good grounds to

invalidate the foreign judgment.

Despite any basis to vacate the judgment,

the Ohio Courts not only refused to enforce the

New York judgment but also failed to address the

issues of law and granted not one but two

evidentiary hearings on the issue of jurisdiction.

It is respectfully submitted that the

requirements of Full Faith and Credit compel the

sister state Court to enforce the judgment to the

extent that it would be enforced by the rendering

state. Under New York Law, a default judgment

such as that rendered and filed with the Court of

Common Pleas, is considered to be a

determination on the merits as to all issues which

were or could have been raised in the action and

acts as a bar to further litigation between the

parties with regard to the same subject matter.

22

(Cf. Collins L Bertram Ich, Club, 42 N. V. 2d

1033 (1977), 399 N. V. S. 2d 202, 369 N. E. 2d 758. In

addition, a judgment on the merits results in a

merger and bar of all defenses which were or

could have been raised as to the merits of the

action (Cf. Gerzof v, Gerzof, 57 A.D.2d 821. 395

N.Y.S.2d 26 (Ist Dept. 1977). New York Courts

give the same preclusive effect to a default

judgment as a judgment based upon a

determination made after a trial. The grounds

contained in the statute authorizing vacatur of a

judgment, such as lack of jurisdiction to render

the judgment, excusable neglect in default, or

fraud perpetrated by the other party in obtaining

the judgment, are exclusive and in the absence of

such grounds, an unappealed determination

contained in a judgment, settling the rights of the

parties, should not be disturbed (Cf. Matter of

Huis. 20 N. V. 2d 568, 285 N.Y.S.2d 610, 232

N.E.2d 642 (New York Court of Appeals, 1967).

For that reason, petitioner respectfully submits

that the Ohio Courts should not have permitted

the Estate to pursue an unpleaded notice of claim

defense where the failure to raise the issue in the

New York Courts would result in a waiver of same

upon the entry of the judgment. Even if the

23

defense had been properly raised, it should have

been rejected as lacking in merit. The Court of

Appeals of Ohio accepted the Estate's specious

argument that petitioner's attorney's letter

demanding that the Estate return his property

constituted a creditor's claim and a “demand for

an allowance” of his claim. When petitioner's

aunt, one of the people who converted the rings to

her own use, thereafter ignored the letter

demanding the return of the property for obvious

reasons, this “silence” was construed as a rejection

of Jonathan Scott's claim against the Estate since

it was held by the Court. This conclusion was

reached by construing a demand for return of

property not belonging to the Estate as a “demand

for an allowance” against the estate.

The defense of failure to timely commence

the action in New York within the time limited by

the Ohio statute should have been raised in the

New York action as an affirmative defense.

Failure to raise the defense of failure to timely

commence an action results in a waiver of that

defense. Doroski v, Mintler, 49 A.D.2d 990, 374

NJ. v. S. 2d 721 (3rd Dept. 1975). New York Courts

have required that a defendant, if claiming the

benefit and application of the law of a sister state,

24

must raise the application of that law as a defense

to permit the Court to pass upon the defense.

Raul v. Morrison, 282 A.D. 1042, 126 N. v. S. 2d

896 (Ist Dept. 1933).

Here, the Estate deprived the New York

Court of the opportunity to pass upon its

contention that the claim was barred by the

limitation provided under R.C. 2117.12. Instead,

the Estate, with full knowledge of the availability

of such a purported defense and a full and fair

opportunity to defend the action in New York,

voluntarily chose to ignore the New York

proceedings.

Ohio R.C. 2117.06 provides the procedure

for filing claims against an Ohio estate. R.C.

2117.11 provides two methods by which claims

may be rejected. Non-action by the fiduciary is

deemed a rejection of a claim only if the claimant

makes a “demand for an allowance”. (See the

second paragraph of R.C. 2117.11). Here. the

January 24, 1983 letter from plaintiff's attorney to

the Executrix of the Estate did not make a

demand for an allowance or fix any amount upon

the rings being held in trust for appellant. The

word “allowance” does not appear in that letter.

The statutory scheme requires that a claim must

-

a

25

be made but imposes no requirement that a

“demand for an allowance” be made.

Ohio R.C. 2117.06 provides a mandatory

method to present claims. In Ohio R.C. 2117.11,

the General Assembly has provided a mandatory

manner to reject presented claims and a distinct

provision for rejection if the claimant "demands

an allowance”. In the first instance, the fiduciary

controls the two month statute of limitations by

positively rejecting a claim. In the second

instance, the claimant can control the statute of

limitations by "demanding an allowance“.

However, since the claimant: (1) must present his

claim: as well as (2) demand an allowance if he

chooses to do so, then the “demand for allowance”

must be specific if fiduciary non-action

commences the time to file suit. The construction

given by the lower Courts is irrational and will

lead to absurd results since it interprets the

presentment of a claim to be a demand for an

allowance which is rejected by the silence of the

fiduciary.

The two diamond rings, property of

Jonathan C. Scott, was not the Estate's property

and therefore, the requirements of Ohio R.C.

2117.06 and R.C. 2117.11 were not prerequisites

26

to the commencement of suit in New York. In 33

Ohio Jur.3d Decedent's Estate's Section 1435,

Subd. 2. "What Constitutes Debts and Obligations

of Estate, page 335 it is stated that a person who

asserts a right as legal or equitable owner of

assets being administered by an estate is not

required to present his “claim” to the

administrator before bringing an action. See also

Pay Less Drug Stores v. Bechdolt, 92 Cal.App.3d

496, ISS Cal.Rpt. 58 (Court of Appeals, Third

District 1979) (reaching the same result in

construing analogous state statute); Reed v. Sixth

Judicial District Court (1959), 75 Nev, 328, 341

P.2d 100, 73 A.L.R.2d 879 (Supreme Court of

Nevada 1959) (same holding).

The language of petitioner's attorneys letter

clearly indicates that he was making a claim

against the Estate not as a creditor's claim under

R. C. 2117.06, but as notice to the Estate he was

the beneficial owner of the two diamond rings and

demanded their return. The letter further notified

the Estate that legal action would be brought for

the improper retention or disposition of the rings

if they were not returned to plaintiff's attorney on

February 4, 1983, some eleven days afier the

letter was dated. The letter did not contain the

27

word “allowance” nor did it demand an allowance

“within five days“, in accordance with the

requirements of R. C. 2117.11. Petitioner submits

that the lower Court's acceptance of the specious

argument that Rhoda Herschler Greenberg's

failure to timely respond to that letter constituted

an unequivocal rejection of a demand for an

allowance was in error. This letter did not

constitute a demand for allowance of a claim

under R.C. 2117.11. A presumption of rejection of

a claim does not arise unless such a demand is

made and not acted upon within five days. The

claimant is only required to present a claim to the

fiduciary in a timely manner. Accordingly, as no

demand for an allowance was made or required,

no presumption of rejection should be presumed

from the Executor’s failure to respond to the

letter or to return the property.

Plaintiff's action was timely filed in the

Supreme Court of the State of New York. The

statutory rejection of a claim was not implicated

since no demand for an allowance had been made

which would trigger the application of statutory

rejection by the silence of the fiduciary,

In summary, as no irregularity was

demonstrated as the basis for vacating the New

28

Yosk judgment, Full Faith and Credit required

the Ohio Courts to enforce the judgment. It did

not authorize the Ohio Courts to order an

evidentiary hearing upon ex-parte application, to

disregard the conclusiveness to which the

judgment was entitled under New York law, to

inordinately delay the decisions on the issues and

to remand the case for an additional evidentiary

hearing designed to give the state residents

another opportunity to adduce evidence, which it

failed to produce at the first hearing in support of

the motion to vacate. A review of the record in

this case gives the appearance of partiality by a

state Court to its residents and against a foreign

state resident with a jurisdictionally valid

judgment, a situation which the Full Faith and

Credit Clause was designed to prevent.

CONCLUSION

For the reasons set forth above, it ts

respectfully submitted that the Petition for a Writ

of Certiorari should be granted.

Dated: New York, New York

February 16, 1991

Respectfully Submitted,

RONALD PODOLSKY

Attorney for petitioner

1S Park Row,

New York, N.Y. 10038

(212) 4600-8218

\PPENDIN

A.

THE SUPREME COURT OF OHIO

1990 TERM

To wit: November 28.

1990

Jonathan C. Scott.

Appellant / Cross-Appellee. Case No.

90-1233

ENTRY

Estate of Jennie Mandel!

Barnette et al.,

Appellees/Cross-Appellants.

Upon consideration of the motion and cross-motion

for an order directing the Court of Appeals for

Franklin County to certify its record, and the

claimed appeal as of right from said court, it is

ordered by the Court that said motions are

overruled and the appeal is dismissed sua sponte for

the reason that no substantial constitutional

question exists therein.

COSTS:

Motion Fee, $40.00, paid by Douglas E. Hoover.

COSTS:

Motion Fee. $40.00, paid by Steven M. Soltis.

(Court of Appeals No. 88AP1063)

s/ THOMAS J.MOYER

Chief Justice

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Jonathan C. Scott,

Plaintiff-Appellant.

V.

Estate of Jennie Mandel! Barnette. in Care of

Brvan B. Johnson. Administrator de bonis non

WWA. [Rhoda Herschler Greenberg, as Executrix of

the Estate of Jennie Mandell Barnette. Michael!

Herschler. and Rhoda Herschler Greenberg}.

Defendants-Appellees.

No. S8AP-1063

(REGULAR CALENDAR)

DECISION

Rendered on August 28, 1990

MR. DOUGLAS E HOOVER, for appellant.

MR. STEVE M. SOLTIS: IGO & 160, and MR.

RICHARD B. IGO. for appellees.

ON MOTIONS for Reconsideration.

BOWMAN. J

Plaintiff-appellant. Jonathan C. Scott. and

defendants-appellees. the estate of Jennie Mandell

A.3

Barnette. Rhoda Herschler Greenberg, as executrix

of the estate of Barnette, Rhoda Herschler

Greenberg, individually. and Michael Herschler.

have filed motions for reconsideration of our

opinion rendered on May 10, 1990, contending that

this court erred in several respects.

This court in Matthews v. Matthews (1981), 5

Ohio App. 3d 140, has stated that the test generally

applied on a motion for reconsideration is whether

the motion calls to the attention of the court an

obvious error in its decision or raises an issue for

consideration that was either not considered at all

or was not fully considered When it should have

been.

Turning first to the argument presented by both

appellant and appellees. namely, that the referee

had already determined that, the question of

jurisdiction notwithstanding, appellant's claim

against appellees, the estate of Barnette and

Greenberg, executrix of the estate, was Barred by

R. C. 2117.06, 2117.11 and 2117.12, we must concede

that this court failed to fully consider the issue in

our prior opinion. Specifically, our opinion stated

that. upon remand, the trial court must determine

whether appellant's claim was timely initiated

against the estate of Barnette. However, the report

of the common pleas court referee referenced in its

‘findings of fact a letter written by appellant to

appellees, dated January 24, 1983, wherein

appellant made a specific demand upon the estate

of Barnette for return of the disputed rings. The

letter stated further that if the rings were not

returned on or before February 4, 1983, legal action

would be instituted. R. C. 2117.11 states that a claim

is rejected if the executor. on demand in writing by

A.4

the claimant for an allowance thereof within five

days, fails to give to the claimant, within such

period, a written statement of the allowance of such

claim. The referee found that appellee, Greenberg.

as executrix of the estate, failed to respond in any

way to the letter and that appellant did not file the

instant suit in New York, claiming ownership of the

rings, until June 1984. The referee concluded that

the failure of the executrix to respond timely as

demanded was a plain and unequivocal rejection of

that demand, and that appellant's claim against the

estate and executrix was thereby barred as being

without the two-month tilne frame of R.C. 2117.12.

Upon further consideration of the relevant

Statutes, we must agree that, in fact, the referee

made a specific finding that appellant's claims

against the estate were not timely filed and are

barred. However, we observe that, in so finding, the

referee failed to consider whether the time bar set

out in R.C. 2117.12 constitutes a statute of

limitation or non-claim statute, or whether it is a

special statutory limitation. If the former, the

referee must determine whether it was waived as a

defense by appellees by their failure to either

affirmatively plead the statute or defend by motion

when suit was filed in New York. Hoover v. Sumlin

(1984), 12 Ohio St. 3d 1. If, however, R.C. 2117.12

constitutes a special statutory limitation which

qualifies a right given by the statute, then lapse of

the statutory time may extinguish jurisdiction in the

court to hear it. Christensen v. Maxen (1938), 29

Ohio Law Abs. 219. Inasmuch as jurisdiction may be

collaterally attacked. it is possible that appellees

were not obligated to raise the issue of a statutory

time bar in New York. In either instance. the

question is best left to the trial court to determine

A. 5

and. in accordance with our previous opinion, the

third assignment of error is sustained, albeit with

the amplification set out herein.

Regarding the remainder of the arguments set

forth in the two motions for reconsideration. we

find that they raise neither errors nor facts which

were not fully considered by this court in our

previous opinion. Appellees argue that, under New

York law, New York had no jurisdiction over the

parties. We reversed and remanded the decision of

the trial court in part, based on the referee's failure

to determine the question of jurisdiction under

relevant New York law. Hence, the numerous cases

cited by appellees in their motion for

reconsideration would best be considered in the

trial court upon remand. Appellees also argue that,

under New York law, New York specifically lacked

jurisdiction over the decedent. Given our previous

holding in this decision that appellant's claim

against the estate and the executrix are barred by

tune limitations, this issue need not be addressed as

it Is NOW moot.

Appellees’ final argument on the issue of

jurisdiction is that this court erred in determining

that, under the doctrine of res judicata and in light

of the Full Faith and Credit Clause of the United

States Constitution, the New York judgment cannot

be vacated on the merits. It is appellees’ argument

that. since the merits of the case were not litigated

in New York and the merits of the case conferred

jurisdiction, appellees are entitled to dispute the

merits in Ohio. Although it is true that in this case

the question of the merits overlaps to a large extent

the question of jurisdiction, thus necessitating

discussion of one to reach resolution of the other,

A.6

they are distinct legal issues and, in this matter, we

have no occasion to reconsider our former opinion.

Finally, appellees argue that their motion to

vacate was not dependent upon Civ. R. 60(B) and,

consequently, that our conclusions in this regard

were erroneous. However. in our discussion of this

issue, we determined that to the extent the trial

court relied on Civ. R. 60(B), the court was in

error. Appellees, in the instant motion for

reconsideration, have presented no new arguments

and thus have provided no basis for recon-

sideration.

Appellant makes two arguments in his motion

for reconsideration: first. that his claim was not

barred by the non-claim statutes, which issue we

have already discussed; and second, that jurisdiction

over the decedent by New York was confessed by

appellees’ failure to contradict any of the evidence

on that issue presented by appellant. However, as

we stated previously in our opinion, the issue of

personal jurisdiction is one that leaves a judgment

open to collateral attack in Ohio. Appellant has not

demonstrated any error in our previous decision,

and we therefore decline to reconsider this issue.

Based on the foregoing, the motions for

reconsideration filed by both appellant and

appellees are granted. Upon reconsideration, appe!-

ant s first, second and fourth assignments of error

are sustained and the fifth assignment of error is

overruled in accordance with the prior opinion of

this court rendered on May 10, 1990; appellant's

third assignment of error is sustained in accordance

with this decision; the judgment of the Franklin

County Court of Common Pleas is affirmed in part

A.7

and reversed in part, and this cause is remanded to

that court for further proceedings in accordance

with law and this decision.

. : : .

Motions for reconsideration granted: , i F : )

in_ part and remanded.

REILLY, P.J.. and BRYANT, J., concur.

A.8

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Jonathan C. Scott,

Plaintiff-Appellant.

V.

Estate of Jennie Mandell! Barnette, in Care of Bryan

B. Johnson, Administrator de bonis non WWA,

[Rhoda Herschler Greenberg, as Executrix of the

Estate of Jennie Mandell Barnette, Michael

Herschler, and Rhoda Herschler Greenberg),

Defendants-Appellees.

No. 88AP-1063

(REGULAR CALENDAR)

OPINION

Rendered on May 10. 1990

MR. DOUGLAS E. HOOVER, for appellant.

MR. STEVE M. SOLTIS: and MR. RICHARD B.

IGO, for appellees.

APPEAL from the Franklin County Court of

Common Pleas.

BOWMAN. J.

Plaintiff-appellant, Jonathan Scott. appeals

from a judgment of the Franklin County Court of

Common Pleas granting defendants-appellees Civ.

R. 60(B) motions to vacate the foreign default

judgment entered against them in the state of New

York which appellant sought to enforce in Ohio

A.9

pursuant to R.C. 2329.021 Kn.

Five assignments of error are raised for our

review:

I. The October 21, 1988 judgment of the Court of

Common Pleas vacating the foreign judgment

violates the Full Faith and Credit provisions of

Article IV. Section 1 of the United States

Constitution.

II. The lower court erred by making independent

factual determinations on the merits of plaintiff's

judgment that defendants lacked minimal contacts

in New York to invoke that state's long arm jurisdic-

tion statute and that no trust existed in New York,

which findings were in contravention of the finding

of the New York court.

III. The lower court erred by finding that plaintiff's

judgment against the estate is barred by R.C.

2117.11 and .12.

“IV. The lower court erred by granting the motions

of defendants Rhoda Greenberg and Michael

Herschler to vacate the foreign judgment as against

them.

V. The lower court erred by failing to rule upon

plaintiff's motion for reconsideration and the

objected to report of the referee regarding

discovery.”

Appellant and his father, Paul Scott, are

residents of New York. Jennie Mandell Barnette

("Barnette"), now deceased, was appellant's

grandmother and was a resident of New York

until 1971 when she moved to Ohio. Appellant

contends that, in 1963 in New York, Barnette

agreed to safeguard and keep two diamond rings

given to her by her son Paul Scott for the benefit

of appellant until appellant turned twenty-one.

A.10

Barnette died in 1982, and her estate is being

admin’ tered in Probate Court in Franklin

County, Ohio.

On August 29, 1986, appellant filed in the

Franklin County Court of Common Pleas,

pursuant to R. C. 2329.022, an authenticated copy

of a foreign default judgment which had been

rendered in New York on July 7, 1986, against the

estate of Barnette, Rhoda Herschler Greenberg

("Greenberg") as executrix of the estate of

Barnette, Rhoda Herschler Greenberg

individually and Michael Herschler

(“Herschler"). The New York action was

premised on the alleged contract/trust agreement

entered into between Barnette and Paul Scott

which appellant alleges was breached in 1974

when Barnette gave the rings to her daughter,

Greenberg. Greenberg and her husband at that

time. Herschler, subsequently sold the rings and

retained the cash received. Appellant obtained

judgment in New York in the amount of

$24,289.58 plus interest.

On September 26, 1986, the estate of Barnette

moved the court to vacate the foreign judgment on

the ground that New York lacked personal

jurisdiction. Submitted in support of the motion

were affidavits from Greenberg and Herschler.

Greenberg and Herschler likewise filed a motion

1. At some point after commencement of the action in Ohio, Bryan B.

Johnson was appointed administrator de bonis non WWA by the probate

court, but he is a party to this action only insofar as the estate of Barnette may

be obligated to appellant.

A.ll

to vacate the judgment against them as individuals

on May 29, 1987, also arguing that the New York

court lacked jurisdiction over them. A hearing to

decide both motions was held before a referee of

the court on June 24, 1987, at which Greenberg

and Herschler testified.

On August 4, 1988, the referee rendered a

report containing findings of fact and conclusions

of law which stated, in part, as follows:

“FINDINGS OF FACT

I. Plaintiff filed his lawsuit against Defendants in

the State of New York in June, 1984, and soon

thereafter obtained service upon all Defendants in

Ohio. The Defendants chose not to respond to the

Complaint, making the decision to allow a default

judgment to be entered against them in the New

York Court. With respect to the Defendant Estate

of Jennie Mandel Barnette, Probate Judge Richard

D. Metcalf refused to allow the expenditure of funds

to defend against the New York lawsuit. None of

the Defendants named in that action were then

residents of New York. Jennie Mande! Barnette,

now deceased, had moved to Ohio in 1971, and had

died in September, 1982.

"2. The subject matter of the New York action was

two diamond rings, which had been the property of

Jennie Mandel Barnette. In 1974, Jennie Mande!

Barnette had given the two rings to Defendant

Rhoda Herschler Greenberg (both women were then

Ohio residents), who had sold them for money. This

Referee finds as a matter of fact that Jennie Mande!

Barnette gave the two diamond rings to Defendant

Rhoda Herschler Greenberg free and clear, and not

to hold in trust for anyone.

“CONCLUSIONS OF LAW

I. This Referee concludes as a matter of au that

A.l2

the Defendants have timely filed their motions to

vacate the judgment.

2. This Referee concludes as a matter of law that

the Defendants had not had the minimum contacts

with the State of New York necessary for the New

York Court to acquire personal jurisdiction over the

Defendants pursuant to the New York ‘long-arm

jurisdiction statute.

"3. This Referee concludes as a matter of law that

the Defendants acted reasonably in not defending

the action which Plaintiff was prosecuting in New

York, in that the New York Court had not obtained

personal jurisdiction over any of the Defendants.

“4. This Referee concludes as a matter of law that

the Defendants have three colorable defenses to

present on the merits with respect to the allegations

made by Plaintiff in the New York lawsuit. The first

is the New York Court's lack of personal

jurisdiction. The second is Defendants’ contention

that the two diamond rings were owned free and

clear by Jennie Mande! Barnette and then by Rhoda

Herschler Greenberg, thereby defeating Plaintiff's

contention that he was the beneficial owner of the

rings which were only being held in trust for him by

Jennie Mandel Barnette.

“Defendants third defense is that Plaintiff's claim

is barred by the operation of O.R.C. Sections

2117.06, .11, and .12, which provide that a person,

whose claim against a decedent's estate has been

rejected, must file an action on the claim within

two months after such rejection or be forever

barred from maintaining an action thereon. Plain-

tiff failed to comply with this statutory require-

ment, not filing his action in the New York Court

until June, 1984, more than two months following

the February 4, 1983 rejection of his claim by

Defendant Rhoda Herschler Greenberg,

functioning as Executrix of the Estate of Jennie

Mande! Barnette”

As

The referee concluded that the New York

judgment should not be accorded full faith and

credit and recommended that the trial court grant

appellant's motion to vacate the judgment.

Appellant filed objections to the referee's report,

in response to which appellees filed an opposing

memorandum. On October 21, 1988, the trial

court adopted in full the report of the referee and

thereby vacated the judgment, and appellant

thereafter filed the instant timely appeal.

Being related. the first four assignments of

error will be discussed together. Appellant

essentially contends that the trial court erred by

vacating the judgment against appellees.

The referee's report, as adopted by the trial

court, stated that appellees had presented

evidence of three possible defenses to appellant's

claim: (1) that New York lacked personal

jurisdiction over appellees; (2) that Barnette had

owned the diamond rings and was not retaining

them pursuant to a contract or trust agreement for

appellant's benefit; and (3) that appellant failed

under the pertinent provisions of the probate code

to timely bring his claim against the estate. To the

extent the trial court vacated the judgment on the

merits, that is, on the ground that no contract or

trust agreement existed, the vacation was clearly

erroneous. The Full Faith and Credit Clause of

Section 1, Article IV, United States Constitution.

requires Ohio to give the same res judicata effect

to the New York judgment that New York would

give it. Durfee vy. Duke (1963), 375 U.S. 106, 109.

As to the first and third reasons given by the

referee and adopted by the trial court as

A.l4

authorizing vacation of the judgment, we note

that jurisdiction in New York was ostensibly

premised on New Vork s long-arm statute, which

permits the exercise of jurisdiction over any non-

domiciliary, or his executor or administrator who

does any of the following:

2. Commits a tortious act within the state, except

as to a cause of action for defamation of character

arising from the act; or

3. [Clommits a tortious act without the state

causing injury to person or property within the

State, except as to a cause of action for defama-

tion of character arising from the act, if he

(i) [Rlegularly does or solicits business, or

engages in any other persistent course of conduct.

or derives substantial revenue from goods used or

consumed or services rendered, in the state. or

i) (Elxpects or should reasonably expect the act to

have consequences in the state and derives

substantial revenue from interstate or international

commerce; or

() Owns, uses or possesses any real property

situated within the state.” New York Civil Practice

Laws and Rules 302.

Determination of whether jurisdiction was

properly assumed over appellees is a matter of

New York law.

Litsinger Sign Co, v. American

Sign Co, (1967), 11 Ohio St. 2d 1. The first

paragraph of the Litsinger syllabus states in part:

"A Judgment of a sister state's court is subject to

collateral attack in Ohio if ggg gy

matter or personal jurisdiction to

CCC

r d. eee”

(Emphasis added.)

AS

See. also. Speyer v. Continental Sports Cars, Inc.

(1986), 34 Ohio App. 3d 272. first paragraph of the

syllabus. The law of the state wherein the judgment

was rendered, here, New York, must be examined in

order to decide what effect that state would have

given the judgment. Miller _v. Bock Laundry

Machine Co, (1980), 64 Ohio St. 2d 265; Fidelity

Union Life Ins, Co. v. Canfield (1982), 7 Ohio App.

3d 229; see, also, Security Pacific Natl. Bank v.

Roulette (1986), 24 Ohio St. 3d 17. To the exten:

the trial court relied on Civ. R. 60(B) to analyze

appellees’ attack on the New York judgment, the

court was in error, as Civ. R. 60(B) is applicable

only to voidable judgments and not those judgments

that are void ab initio. As discussed at length in

Litsinger, supra, only foreign judgments which are

void are subject to collateral attack in Ohio. If the

foreign judgment is merely voidable, relief must be

sought in the foreign state.

Upon review of the referee's report, it appears

that the referee failed to analyze the facts of this

case under the relevant New York law. Although the

referee. in Conclusion of Law No. 2. did refer to

New York's long-arm statute, there is no indication

that this conclusion was based on New York law, as

it must be.

Moreover, the only testimony presented during

the hearing held on appellees’ motion to vacate

concerned the long-arm statute as applied

individually to Herschler and Greenberg. The

referee's report makes no mention of evidence of

Barnette’s contacts with New York, albeit the

affidavit submitted by Paul Scott referred to

numerous contacts Barnette may have had with the

rendering state. New York's long-arm statute

Alo

specifically allows for the exercise of personal

jurisdiction over the executor or administrator of a

non-domiciliary. thus making the inquiry into

Barnette’s contacts with New York essential to

resolution of this issue.

Finally, even if it is found that under New York

law, New York had jurisdiction over these

appellees, then the trial court must determine

whether appellant's claim was timely initiated

against the estate of Barnette, given the time

limitations of R.C. 2117.12. See In re Estate of

Rettig (1964), S Ohio Misc. 38, syllabus.

Accordingly, the first four assignments of error

are sustained to the extent that this cause is

remanded to the trial court for a determination of

first, whether New York properly assumed persona!

jurisdiction over appellees under New York law and.

second, whether Ohio probate law bars appellant's

claim against the estate of Barnette and Greenberg

as executrix of the estate.

In his fifth assignment of error, appellant alleges

error in the trial court's failure to rule upon

appellant's motions which were pending at the time

the court granted appellees motions to vacate.

Specifically at issue are a motion to compel and a

motion for sanctions filed by Barnette’s estate

following appellant's failure to appear for a

scheduled deposition and appellant's motion asking

the court to reconsider its decision to grant

appellees a hearing on the Civ. R. 60(B) motion and

to stay enforcement of the judgment without a bond.

Appellant has submitted no explanation of how

A7

such failure to rule upon the motions will prejudice

him and. consequently, any error in this regard must

de deemed harmless. The fifth assignment of error

is overruled.

Accordingly, appellant's first four assignments of

error are sustained and the fifth assignment of error

is overruled. The judgment of the Franklin County

Court of Common Pleas is hereby affirmed in part

and reversed in part and this cause is remanded to

that court for further proceedings in accordance

with law and this opinion. Judgment affirmed in part

and reversed in part: cause remanded,

REILLY, P.J.. and BRYANT, J. concur.

AN

IN THE COURT OF COMMON PLEAS

FRANKLIN COUNTY, OHIO

Jonathan C. Scott,

Plaintiff,

VS.

Estate of Jennie Mande! Barnett,

et al..

Defendant.

Foreign Judgment

Case No. 86JG-08-202844

Judge Paul W. Martin

JUDGMENT ENTRY

This matter came to be heard on the pleadings,

testimony and other evidence, memorandums of law,

and the report of the Referee filed August 4, 1988.

The Court finds that the Referee’s findings of fact,

conclusions of law, and recommendations to the

Court are supported by reliable, probative and sub-

Stantial evidence and are in accordance with law.

Plaintiff's objections to the Referee’s report are not

well taken and are hereby overruled. The Court

hereby approves and adopts the said findings.

conclusions and recommendations of the Referee.

The motions of Defendant Estate of Jennie

Mandel Barnett and Defendants Rhoda Herschler

Greenberg and Michael Herschler, respectively, to

vacate the foreign default judgment which is the

subject of this action, for good cause shown, are

A

well taken and are hereby sustained, and, therefore,

it is hereby ORDERED that said judgments be. and

hereby ate. vacated. Costs shall be paid by Plaintiff.

s/ Paul W. Martin, Judge

Approved:

s/

Douglas E. Hoover (HO0001)

Attorney for Plaintiff

„Steven M. Soltis (SOLO3)

Richard B. Igo (186003)

Attorneys for Defendants