Opposition Brief — Ohio Savings Bank v. Estate of Popp
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In The
Supreme Court of the United States
October Term, 1994
———
OHIO SAVINGS BANK,
Petitioner,
THE ESTATE OF JOAN POPP,
Respondent.
On Petition For Writ Of Certiorari
To The Ohio Supreme Court
-* ee
RESPONDENT'S BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
* puienlabasetennsniiasiaoammmamaanes
Hoc A. Carin, Esq.
Counsel of Record
14600 Detroit Avenue
Suite 1150
Lakewood, Ohio 44107
(216 221-2323
\ttorney for Respondent
tate of Joan Popp
QUESTIONS PRESENTED FOR REVIEW
Is the trial court’s Judgment against the petitioner for
damages in a specified dollar amount and a 10% mone-
tary penalty thereon pursuant to § 2109.52 of the Ohio
Revised Code the equivalent of a felony conviction under
Ohio law so as to entitle it (Ohio Savings Bank) under the
U.S. constitution to:
1. A mandatory jury trial required by the Sixth
Amendment therein; and/or
2. Avoidance of any determination of liability
under R.C. 2109.52 pursuant to the Four-
teenth Amendment herein unless the
respondent can prove that it (petitioner)
acted with knowledge and/or a culpable
mental state?
il
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
TABLE OF AUTH sos 6ctkne nnd eeueniasanews iii
EPROM EPL. BINIIG 6 650.54 ccs ecg ee bau eae eee 1
CPTPGING DELI .o.ccsnssansicadeaneeeran 1
JURISDICTIONAL STATEMENT.................... 2
CONSTITUTIONAL AND STATUTORY PROVI-
rr ye re 2
STATEMENT OF THE CAGE «0 osc cccsccsdcsdnscaes 6
REASONS POR RESGCTION «oo. cceccevcessscusess 8
Since Sections 2109.50 and 2109.52 of the Ohio
Revised Code as applied against OSB in this case
are statutes which govern a civil proceeding with
a financial or pecuniary penalty rather than a
quasi criminal or criminal proceeding, OSB has
no United States constitutional issue for this hon-
orable Court’s review. .............ceeeeeeeeee 8
CAL BAPE sv «sce xvas nk eanekun ae ewuEeeee een 20
oo
iii
TABLE OF AUTHORITIES
Page
CASES:
Bloom v. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477
ae SS BO ae ee eee 17
Hicks v. Feiock, 485 U.S.- 624, 108 S.Ct. 1423 (1988) ..14, 17
in Re Black, 145 Ohio St. 405 (1945) ....... 0. cn ceee. 10
Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444
STOO ee a ee ee 14
In Re: Howard, 79 Ohio App. 203 (Franklin County
Court of Appeals, 1947) ..............22-eeeeeeeee. 9
Kennedy v. Mendoza-Martinez, 372 U.S. 144, S.Ct.
se hic cee dane e sos chan 16
Linguist v. Hayes, Administrator, 22 Ohio Opp. 141
(Lucas County Court of Appeals, 1926)............ 9
Liparota v. United States, 471 U.S., 419, 105 S.Ct.
ee repre eer rr eT eee e 14
Missouri Pacific Ry. v. Tucker, 230 U.S. 340, 33 S.Ct.
eS, TT errr 16
Morissette v. United States, 342 U.S. 246, 72 S.Ct.
BE a occ ie kee rece nent enencsscenenes: 14
Penfield Co. v. SEC, 330 U.S. 585 (1947)...........-5- 14
Southwestern Tel. Co. v. Danahar, 238 U.S. 482, 35
8 ee ee eee ree 15
State v. Beasley, 14 Ohio St.3d 175 (1984)............ 12
State v. Hill, 72 Ohio App.3d 233, 594 N.E.2d 164
(Cuyahoga County Court of Appeals, 1991)....... 12
U.S. v. Garcia, 751 F.2d 1033 (9th Cir. 1985) ......... 14
U.S. v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989) .... 14
iv
TABLE OF AUTHORITIES —- Continued
Page
United States v. International Minerals & Chem.
Corp., 402 U.S.. 556, 91 S.Ct. 3697 (9971). .......... 14
United States v. United States Gypsum, 438 U.S. 422,
ee Te, ne oo ico Pela eee ann cee 15
Wozniak v. Wozniak, 90 Ohio App.3d 400 (Court of
Appeals of Ohio, Summit County, 1991)............ 9
STATUTES AND RULES:
Ohio Revised Code Section 1343.03(A) .............. 11
Ohio Revised Code Section 2109.50 ............. passim
Ohio Revised Code Section 2109.52 ............. passim
Ohio Revised Code Section 2929.11(B)(5)............ 12
Ohio Revised Code Section 2929.11(C)(2)............ 12
Ohio Revised Code Section 2929.14(B)............... 12
OTHER:
Sixth Amendment, U.S. Constitution ................. 2
Fourteenth Amendment, U.S. Constitution............ 2
Ohio Rules of Civil Procedure, Rule 56(C) ....... 19, 20
Rules of the United States Supreme Court, Rule
| PSPS Ree oP Er ae ree here nanse 2
No. 94-1232
In The
Supreme Court of the United States
October Term, 1994
.
OHIO SAVINGS BANK,
Petitioner,
vs.
THE ESTATE OF JOAN POPP,
Respondent.
¢
On Petition For Writ Of Certiorari
To The Ohio Supreme Court
*
RESPONDENT'S BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
4
INTRODUCTION
Hugh A. Carlin, Attorney for the Estate of Joan Popp,
hereinafter referred to as “respondent” respectfully sub-
mits this Memorandum in Opposition to the Petition for
Writ of Certiorari previously filed by petitioner herein,
Ohio Savings Bank, hereinafter referred as “OSB”.
+
OPINIONS BELOW
The opinions in question are set forth on pp. 1 and 2,
and Appendixes (“App.”) 1, 2, and 21 of OSB’s previously
filed petition with this honorable Court.
*
1
JURISDICTIONAL STATEMENT
OSB’s previously filed petition with this Court fails
to set forth any substantial United States constitutional
issue so as to provide it (this Court) with any reason to
exercise its discretion to review the aforementioned Ohio
Courts’ Judgments within the meaning of Rule 10(1),
Rules of the Supreme Court.
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE
U.S. Constitution, Sixth Amendment provides:
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously ascer-
tained by law, and to be informed of the nature
and cause of the accusation; to be confronted
with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for
his defense.”
App. 1.
The Fourteenth Amendment to the U.S. Constitution
provides in part that:
“Section 1. All persons born or naturalized
in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and
of the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States: nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws...
App. 2.
_ Section 2109.50 of the Ohio Revised Code provides:
“Upon complaint made to the probate court
of the county having jurisdiction of the adminis-
tration of a trust estate or of the county wherein
a person resides against whom the complaint is
made, by a person interested in such trust estate
or by the creditor of a person interested in such
trust estate against any person suspected of hav-
ing concealed, embezzled, or conveyed away or
of being or having been in the possession of any
moneys, chattels, or choses in action of such
estate, said court shall by citation, attachment or
warrant, or, if circumstances require it, by war-
rant or attachment in the first instance, compel
the person or persons so suspected to forthwith
appear before it to be examined, on oath, touch-
ing the matter of the complaint. Where neces-
sary such citation, attachment or warrant may
be issued into any county in the state and shall
be served and returned by the officer to whom it
is delivered. The officer to whom such process is
delivered shall be liable for negligence in its
service or return in like manner as sheriffs are
liable for negligence in not serving or returning
a capias issued upon an indictment. Before issu-
ing an extra-county citation, attachment or war-
rant, the probate judgment may require the
complainant to post security with the probate
court in such amount and in such form as the
probate judge shall find acceptable in order to
cover the costs of the proceeding under this
section, including in such costs a reasonable
allowance for the travelling expenses of the per-
son or persons against whom an extra-county
citation, attachment or warrant is to be issued.
Such security may be in the form of a bond, the
amount, terms, conditions and sureties of which
shall be subject to the approval of the probate
judge.
The probate court may initiate proceedings
on its own motion.
The probate court shall forthwith proceed to
hear and determine the matter.
The examinations, including questions and
answers, shall be reduced to writing, signed by
the party examined, and filed in the probate
court.
If required by either party, the probate court
shall swear such witnesses as may be offered by
either party touching the matter of such com-
plaint and cause the examination of every such
witness, including questions and answers, to be
reduced to writing, signed by the witness, and
filed in the probate court.
All costs of such proceedings, including the
reasonable travelling expenses of a person
against whom an extra-county citation, attach-
ment or warrant is issued, shall be assessed
against and paid by the party making the com-
plaint, except as provided by Section 2109.52 of
the Revised Code.”
App. 3.
Section 2109.52 of the Ohio Revised Code provides:
“When passing on a complaint made under
Section 2109.50 of the Revised Code, the probate
court shall determine, by the verdict of a jury if
either party requires it or without if not
required, whether the person accused is guilty
of having concealed, embezzled, conveyed
away, or been in the possession of moneys, chat-
tels, or choses in action of the trust estate. If such
person is found guilty, the probate court shall assess
the amount of damages to be recovered or the court
may order the return of the specific thing concealed
or embezzled or may order restoration in kind. The
probate court may issue a citation into any
county in this state, which citation shall be
served and returned as provided in Section
2109.50, requiring any person to appear before it
who claims any interest in the assets alleged to
have been concealed, embezzled, conveyed, or
held in possession and at such hearing may hear
and determine questions of title relating to such
assets. In all cases, except when the person found
guilty is the fiduciary, the probate court shall forth-
with render judgment in favor of the fiduciary or if
there is no fiduciary in this state, the probate court
shall render judgment in favor of the state, against
the person found guilty, for the amount of the
moneys or the value of the chattels or choses in
action concealed, embezzled, conveyed away, or held
in possession, together with ten percent penalty and
all costs of such proceeding or complaint; except
that such judgment shall be reduced to the
extent of the value of any thing specifically
restored or returned in kind as provided in this
Section.
ren haeeniannennemanmeneriame
If the person found guilty is the fiduciary,
the probate court shall forthwith render judg-
ment in favor of the state against him for such
amount or value, together with penalty and
costs as provided in this Section.” (Emphasis
supplied)
App. 4.
STATEMENT OF THE CASE
The pertinent facts of the case are as follows:
Joan Popp died on January 30, 1991. On January 30,
1991, there existed a savings account solely in the name
of Joan Popp at Ohio Savings Bank with a $55,505.13
balance on that date (App. 6, p. 9).
On February 13, 1992, said savings account was
reduced to a zero balance by OSB’s payment to William
A. Hamann, Administrator of $55,833.86 (App. 5 and 6,
p- 11), based on the documents he presented to them.
Those documents included a forged Cuyahoga County
Probate Court Letters of Administration in his name, and
a forged Ohio Estate Tax Release (App. 6, pp. 10 and 12,
respectively).
As of February 13, 1991, there was no lawfully
appointed Administrator of the Estate of Joan Popp,
Deceased.
The aforementioned forged Letters of Administration
used by Hamann to withdraw the entire balance of Joan
Popp’s savings account from OSB was irregular on its
face because in the printed portion it referred to: “I,
Francis J. Talty, Judge of the Probate Court within and for
said County,” however, the forged signature is that of
John J. Donnelly, Probate Judge (App. 6, p. 10).
On or about July 23, 1991, the Administrator of the
Estate of Joan Popp filed a Complaint for the Conceal-
ment, Embezzlement or Conveying Away Assets pur-
suant to the authority of R.C. 2109.50 in the Cuyahoga
County Probate Court against various defendants includ-
ing Hamann and OSB. The Administrator's Complaint
alleged that OSB concealed, embezzled or conveyed away
or is or was in possession of moneys, chattels or choses of
action of the Popp estate.
In March, 1992, OSB filed a Complaint in Cuyahoga
County Common Pleas Court, Case No. 228027, entitled
OSB v. Transohio Savings Bank, William A. Hamann, Jr,
Marvin P. Schatz, and Virginia Popp Durma.
On May 28, 1993, OSB took the deposition of Ham-
ann in the aforementioned related civil action removed to
U.S. District Court, Case No. 1:92CV 2025. The pertinent
portions of such deposition were:
(a) The seal on the forged Letters of
Administration was altered to limit the notary
seal to include the words “State of Ohio,
Cuvahoga County” (App. 7, p. 22).
With respect to the forged Ohio Estate
t was used for a Cuyahoga County
{ not have the stamp used for tax
unty but only had a signature
pp. 22-24, App. 6, p. 12).
for substituted defendant, Reso-
obtained by discovery from
OSB in the U.S. District Court case, its internal operations
manual regarding the procedure to be followed in closing
various accounts including those of deceased depositors
(See Appendix 8, p. 30 entitled, “II] Converting, Transfer-
ring and Closing Procedures for Decedent Account, Sec(a)(5)”.)
On November 3, 1992, the Cuyahoga County Probate
Court rendered its judgment in favor of appellee on its
R.C. 2109.50 Complaint against OSB in the principal
amount of $55,833.86 and the 10% penalty thereon
required by R.C. 2109.52.
On or about December 30, 1992, the Cuyahoga
County Probate Court awarded the undersigned attorney
fees totalling $33,000 (computed at the rate of $125 per
hour) of which amount $12,750 was attributable solely to
the commencement and prosecution of the aforemen-
tioned R.C. 2109.50 et. seq. proceeding against OSB
- through that date.
The Eighth District Court of Appeals, Case No.
64718, App. 2; OSB’s Petition for Writ of Certiorari, on
September 21, 1994, the Supreme Court of Ohio, Case No.
94-1253 rendered its Judgment Entry wherein it declined
jurisdiction to hear OSB’s appeal from the Eighth District
Court of Appeals Judgment dated April 18, 1993.
*
REASONS FOR REJECTION
Since Sections 2109.50 and 2109.52 of the Ohio
Revised Code as applied against OSB in this case are
statutes which govern a civil proceeding with a financial
Or pecuniary penalty rather than a quasi criminal or
criminal proceeding, OSB has no United States constitu-
tional issue for this honorable Court’s review.
R.C. 2109.50 and .52 have been held to constitute a
civil proceeding, namely for conversion with a financial
penalty, Wozniak v. Wozniak, 90 Ohio App.3d 400 (Court of
Appeals of Ohio, Summit County, 1993); In Re Howard, 79
Ohio App. 203 (Franklin County Court of Appeals, 1947);
Linquist v. Hayes, Administrator, 22 Ohio App. 141 (Lucas
County Court of Appeals, 1926). Page 407 of Wozniak,
supra, described the nature of the inquiry under R.C.
2109.50 as follows:
“The inquiry under R.C. 2109.50 focuses on
the ownership of the asset and whether posses-
sion of the asset is being impermissibly con-
cealed or withheld from the estate. Thus, a
plaintiff has stated an actionable cause under
R.C. 2109.50 if he alleges that the asset is the
exclusive property of the estate and that the
defendant has unauthorized possession of the
asset or in some way has impermissibly dis-
posed of it. See Fecteau, 171 Ohio St. at 125, 12
O.0.2d at 141, 167 N.E.2d at 893.”
Pages 411 and 412 of Wozniak, supra, described the
nature of an action under R.C. 2109.50 as civil, namely for
conversion with the complainant’s accompanying rights
to recover pre and/or post judgment interest as follows:
“In a civil action, the recovery of prejudg-
ment interest is afforded litigants under both the
common law and the statutory provision of R.C.
1343.03(C). Moore v. Univ. of Cincinnati Hosp.
(1990), 67 Ohio App.3d 152, 154, 586 N.E.2d 213,
214. Generally, though, Ohio common law does
not allow prejudgment interest in civil actions
10
based on tortious conduct. /Id.; Cleveland Ry. Co.
v. Williams (1926), 115 Ohio St., 584, 155 N.E.
133, syllabus. Some exceptions to this general
rule exist, in particular, actions for conversion of
personal property. Lyle v. Durham (1984), 16
Ohio App.3d 1, 3, 16 OBR 1, 3, 473 N.E.2d 1216,
1218; Booth v. Cincinnati Finance Co. (1923), 19
Ohio. App. 130, 135, aff’d (1924), 111 Ohio St.
361, 145 N.E. 543; Morris v. Pearl Street Auction
Co. (1939), 61 Ohio App. 452, 15 O.O. 283, 22
N.E.2d 740.”
The sole legislative purpose of an Ohio Revised Code
2109.50 proceeding is to provide a speedy and effective
way of discovering moneys, chattels or choses in action
belonging to a trust estate and of securing their return for
administration, In Re Black 145 Ohio St. 405 (1945), and
Wozniak, supra. Compare this statutory purpose to that of
a solely criminal proceeding which is to determine
whether the defendant has violated a rule of conduct
required by society and to punish him or it accordingly.
In support of its previously filed Writ of Certiorari,
OSB primarily relies on the premise that the 10% penalty
under R.C. 2109.52 made its adjudication of liability
thereunder a felony conviction by the trial court. OSB’s
reliance on this premise is misplaced for any or all of the
following reasons:
1. This 10% financial penalty is not punitive in
nature but is compensatory at least to the extent that it at
least partially reimburses the complainant for his
expenses for the commencement and completion of pro-
ceedings under R.C. 2109.50, et. seq. The language of R.C.
2109.50 and .52 clearly demonstrates that they are self-
11
contained statutory provisions which are silent as to com-
pensation of a prevailing complainant for any expenses of
this litigation other than court costs. As applied to this
case, the Popp estate legal expenses through trial were at
2.5 times the $5,583.86 (10% statutory penalty) assessed
against OSB. It is estimated that through the completion
of this brief’s preparation (based on the Probate Court
allowed hourly rate of $125), the Popp estate legal
expenses will be at least four times the $5,583.86 statutory
penalty assessed against OSB by the trial court.
2. Sections 2109.50 and .52 of the Ohio Revised
Code make no provision for the award of any interest to a
successful complainant. Therefore, the 10% penalty under
the latter statutory provision is the equivalent to the 10%
interest rate applicable to a plaintiff judgment in a civil
proceeding required by § 1343.03(A) of the Ohio Revised
Code.
OSB’s contention that R.C. 2109.52 could result in a
10% statutory penalty totalling an astronomical fixed
amount in dollars such as one million dollars should be
rejected and ignored by this Court in this case because:
(1) it has absolutely nothing to do with the actual statu-
tory financial penalty required to be assessed against
petitioner under this statutory provision; and (2) this
financial penalty is the functional equivalent to the 10%
interest rate required for a plaintiff judgment in an Ohio
Civil proceeding.
OSB argues that the 10% statutory penalty assessed
against it by the trial court is the equivalent of either a
second degree felony conviction or at least the fine there-
for. This contention ignores and fails to take into account
12
Ohio law as to the mandatory penalties applicable to a
second degree felony conviction. Section 2929.11(B)(5) of
the Ohio Revised Code provides as follows:
“Except as provided in Division D of this
Section or Sections 2329.71 and 2329.72 and
Chapter 2925 of the Revised Code, terms of
imprisonment for a felony shall be imposed as fol-
lows:
(5) for a felony of the second degree, the mini-
mum term shall be two, three, four or five years, and
the maximum term shall be fifteen years.”
(Emphasis provided)
Section 2929.11(C)(2) of the Ohio Revised Code pro-
vides that the maximum fine for a second degree felony
shall not exceed $7,500.
Section 2929.14(B) of the Ohio Revised Code limits
the sentencing court’s authority in a criminal proceeding
to impose a fine in a citation to imprisonment for a felony
conviction as follows:
“(B) The court shall not impose a fine in addi-
tion to imprisonment for a felony unless a fine is
specifically adapted to deterrence of the offense or
correction of the offender, or the offense was com-
mitted with the purpose of establishing, main-
taining, or facilitating an activity of a criminal
syndicate, as defined in § 2923.04 of the Revised
Code, or the offense was committed for hire or
purpose of gain.” (Emphasis supplied)
At least two Ohio cases have held that a fine without
imprisonment of the defendant (whether conditionally
suspended and/or probationable) renders that conviction
void, State v. Beasley, 14 Ohio St.3d 175 (1984), and State v.
13
Hill, 72 Ohio App.3d 233, 594 N.E.2d 164 (Cuyahoga
County Court of Appeals, 1991).
R.C. 2109.52, however, makes no provision for the
imprisonment of any defendant or respondent adjudged
to be guilty thereunder or under R.C. 2109.50. Therefore,
in the absence of any proof by OSB that the Ohio legisla-
ture intended to enact a statute which would be void on
its face for requiring a criminal conviction without any
mandatory, conditional or unconditional imprisonment of
the defendant, the 10% penalty referred to above should
not make R.C. 2109.52 a wholly criminal statute.
In addition, this aforementioned mandatory-fixed
10% penalty does not meet any of the following criteria
set forth in R.C. 2929.14(B) for imposing a fine in addition
to imprisonment for a felony conviction: (1) that the fine
be specifically adapted to the deterrence of any offense
described in R.C. 2109.50 and .52; (2) that it (the fine) be
specifically adapted to the correction of the offender,
namely OSB in this case. That is, economic/business deci-
sions and criteria, not the $5,583.38 mandatory financial
penalty from this case will govern OSB’s future conduct
regarding the closing of a customer’s bank account after
his or her death.
None of the cases cited in OSB’s Petition for Writ of
Certiorari, namely pp. 8-29 inclusive, are appropriate for
this Court’s determination of whether R.C. 2109.52 as
applied to it by the trial court in this case deprived it of
its Fourteenth Amendment right to due process and/or
equal protection under the law or its Sixth Amendment
right to trial by jury.
14
Some of OSB’s aforementioned cited cases fall into
the following categories distinguishable from the 10%
mandatory penalty involved in R.C. 2109.52:
1. The commission of a crime against and properly
involving imprisonment, fine or both for conviction, Mor-
isette v. United States, 342 U.S. 246, 72 S.Ct. 240 (1952);
Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084
(1985); U.S. v. Halper, 490 U.S. 435, 109 S. CT. 1892 (1989);
U.S. v. Garcia, 751 F.2d 1033 (9th Cir. 1985).
2. The commission of a crime against a person
involving imprisonment, fine or both, Duncan v. Louisi-
ana, 391 U.S. 145, 88 S.Ct. 1444 (1968).
3. Violation of a prior court order involving some
form of imprisonment without a fine Hicks v. Fetock, 485
U.S. 624, 108 S. CT. 1423 (1988); Penfield Co. v. SEC, 330
U.S. 585 (1947).
In OSB’s cited case of Bloom v. State of Illinois, 391
U.S. 194, 88 S.Ct. 1477 (1968), the defendant was accused
of criminal contempt for presenting for probate a false/
fraudulent will prepared after decedent died and was
sentenced to jail under a statute with no stated minimum
or maximum confinement period and with no fine. There
is no comparison between that case and the case at bar
which involved an adjudication of guilty for monetary
damages and 10% penalty thereon but no imprisonment.
In OSB’s cited case of United States v. International
Minerals & Chem. Corp., 402 U.S. 558, 91 S.Ct. 1697 (1971),
the defendant was charged with violation of a statute
which prohibited the shipment of corrosive liquids in
interstate commerce without so labeling them. There is no
15
comparison between that case which involves an act dan-
gerous to public safety and the case at bar, which
involved a transfer of a decedent’s bank account balance
to a person not legally entitled to receive it.
In OSB’s cited case of United States v. United States
Gypsum, 438, U.S. 422, 98 S.Ct. 2864 (1978), the defendant
was charged with conspiring with competitors to keep
prices down in restraint of trade. In that case, it was not
always apparent whether the act in question was econom-
ically justifiable or in restraint of trade until after it
occurred. Contrast that situation with this case where
OSB transferred a decedent’s bank account to a person
not legally entitled or authorized to receive it based on
documents irregular on their face and contrary to their
own internal rules, regulations and procedures required
to close a deceased depositor’s account at that financial
institution.
In OSB’s cited case of Southwestern Tel. Co. v. Danahar,
238 U.S. 482, 35 S.Ct. 886 (1915), a statutory penalty was
involved at $100 per day for 63 days due to the defendant
telephone company’s failure to provide telephone service
to a previously delinquent bill paying customer unless
and until she provided a deposit. In that case, this Court
found that the regulations which the defendant was
enforcing were reasonable due to the prohibitive expense
it would otherwise incur to collect its delinquent tele-
phone bills and that the statutory penalty of $6,300 as
compared to the approximately $10 telephone bill
involved was disproportionate to the actual financial loss
it caused the customer by enforcement of those regula-
tions. Contrast that situation to the case at bar where
16
OSB’s violation of R.C. 2109.52 caused respondent finan-
cial loss at least two to four times the amount of the 10%
statutory penalty in question and the nominal time spent
and expense incurred if upon seeing documents irregular
on their face, it called the Probate Court to confirm
whether Hamann was the Popp Estate Administrator.
OSB’s cited case of Missouri Pacific Ry. v. Tucker, 230
U.S. 340, 33 S.Ct. 961 (1913), this Court fixed mandatory
financial penalty in question was $500 as compared to the
actual defendant’s shipment overcharge of $3.02. That
situation is totally unlike the assessment of the 10% pen-
alty against OSB in the case at bar which is less than one-
fourth of the respondent’s costs in prosecution or pro-
ceedings under R.C. 2109.50 and .52 including all Appel-
late Court, Ohio Supreme Court, and U.S. Supreme Court
proceedings to date.
OSB’s cited case of Kennedy v. Mendoza-Martinez, 372
U.S. 144, 83 S.Ct. 554 (1963), defendants were charged
with fleeing the U.S. to avoid military service, the penalty
for which was loss of U.S. citizenship. Contrast the poten-
tial loss of liberty in terms of loss of freedom to return to
the U.S. (and in the case of one of the defendants
involved, his potential of becoming a stateless person), if
the defendants were found guilty in that case to the 10%
penalty involved in this case which is a small fraction of
the respondent’s total financial losses including litigation
expense caused by the petitioner.
Page 13 of OSB’s Petition for Writ of Certiorari con-
tends that both the amount of the 10% penalty in question
and its mandatory penalty renders it solely criminal in
17
nature. This contention, however, ignores the basic char-
acteristics set forth in Hicks v. Feiock, supra, which differ-
entiate between civil and criminal contempt proceedings.
In that case, this Court set forth the characteristics of a
civil contempt proceeding as including the following: (1)
Punishment must be remedial and inure for the com-
plainant’s benefit; and (2) when the punishment involves
a fine, it is paid to the complainant or can be avoided by
performing the act required by the prior court order.
In Hicks v. Feiock, supra, this Court set forth the char-
acteristics of a criminal contempt proceeding as including
the following: (1) Punishment is rendered to show the
court’s authority with respect to the underlying proceed-
ing wherein the contemptuous conduct occurred; and (2)
where the punishment involves a fine, it is required to be
paid to the court.
R.C. 2109.50 and .52 do not involve either civil or
criminal contempt proceeding because none of the pro-
hibited conduct described therein involves any violation
of a prior court order. The 10% monetary penalty in R.C.
2109.52, however, involves both of the characteristics of
civil contempt described above, namely remedial punish-
ment which is for the benefit of the complainant, namely
payment of the monetary assessment involved directly
the Popp estate as the complainant rather than the trial
court.
This 10% penalty, however, does not involve any of
the characteristics of a criminal contempt proceeding
enumerated above since it is not punishment for the trial
court to show its authority after one or more of its prior
orders were violated by the defendant and since it is not
18
paid to the court when the complainant is the fiduciary of
a victimized trust, estate or guardianship.
OSB will not benefit from the possible remand of the
respondent’s complaint to the Cuyahoga County Probate
Court for further proceedings based on any alleged Four-
teenth Amendment right to avoidance of Judgment under
2109.52 without proof that it acted with knowledge and/
or a culpable mental state because:
1. It permitted the transfer of Joan Popp’s funds on
deposit after her death to a person not authorized to
receive them in reliance on certain documents which
were irregular on their face; namely: (a) that forged Let-
ters of Administration which had typed in the name of
one Probate Judge but with the purported signature of a
second Probate Judge, App. 6, p. 10; and (b) the forged
Letters of Administration also had a partial seal which
was not from or by the Probate Court, see the portion of
Hamann’s deposition set forth at App. 7, p. 21.
2. It permitted the transfer of Joan Popp’s funds on
deposit after her death to a person not authorized to
receive them in a manner contrary to its own written
internal manual/procedure for doing so, (App. 8, p. 30).
This regulation/written procedure required that when a
deceased customer’s account was to be closed, the check
must be made payable to “The Estate of (decedent's
name)” or to “(name of fiduciary), (title) of the Estate of
(decedent’s name)” (i.e., William A. Hamann, Adminis-
trator of the Estate of Joan Popp, Deceased). In this case,
however, the check to reduce the Popp account to a zero
balance issued by OSB after her death was made payable
19
to “William A. Hamann, Administrator”, (App. 5, App. 6,
p. 11).
3. It also permitted the transfer of Joan Popp’s
funds to a person not authorized to receive them in
reliance on an Ohio Estate Tax Release which was not
authorized in the generally accepted/customary manner,
namely with a stamp from the Cuyahoga County Auditor
(as the local agent for the Ohio Department of Taxation,
Estate Tax) rather than the signature line actually used,
(App. 6, p. 12, and App. 7, pp. 22-24).
OSB will not benefit from the possible remand of
respondent’s complaint to the trial court for further pro-
ceedings because of an alleged violation of its Sixth
Amendment and/or Ohio Statutory right to a jury trial
because: (1) it previously waived its right to a jury trial
by conceding that respondent’s complaint against it was a
civil proceeding when it filed in December, 1992, a
Motion to Dismiss this Complaint and/or for Summary
Judgment. OSB cannot have it both ways, namely to
initially treat the complaint as a civi! proceeding by filing
a Motion for Summary judgment but thereafter contend
that the proceeding was criminal or quasi-criminal, only
after losing that Motion; and (2) as a civil proceeding,
respondent was properly granted Motion for Summary
Judgment by the trial court on its complaint when it
satisfied the requirements to do so set forth in O.R.C.P.,
Rule 56(C). Such requirements were that there be no
genuine issues as to the material facts and that the
movent be entitled to judgment as a matter of law.
+
20
CONCLUSION
For the foregoing reasons, respondent concludes as
follows:
1. That the trial court’s rendering judgment against
OSB pursuant to R.C. 2109.52 for $55,833.81 and 10%
penalty thereon did not deny it due process of law, within
the meaning of the Fourteenth Amendment to the U.S.
Constitution merely because there was no proof before
such judgment that it acted knowingly and/or with crim-
inal intent.
2. That the rendering of this judgment was not prej-
udicial to OSB since even with a remand to the trial court,
the existence of knowledge by OSB that it transferred the
proceeds of the Popp account a person not authorized to
receive them could be proven at that time.
3. That the trial court’s rendering judgment against
OSB on Summary Judgment did not deny its constitu-
tional and/or statutory right to a jury trial since all of the
summary judgment requirements set forth in O.R.C.P.,
Rule 56(C) were satisfied.
Respectfully submitted,
HucH A. Carun (0010723)
Counsel of Record
14600 Detroit Avenue #1150
Lakewood, Ohio 44107
(216) 221-2323
Attorney for Respondent
la
APPENDIX 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS AT ISSUE
U.S. Constitution, Sixth Amendment provides:
“In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district
wherein the crime shall have been committed,
which district shall have been previously ascer-
tained by law, and to be informed of the nature
and cause of the accusation; to be confronted
with the witnesses against him; to have com-
pulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for
his defense.”
2a
APPENDIX 2
The Fourteenth Amendment to the U.S. Constitution
provides in part that:
“Section 1. All persons born or naturalized
in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and
of the State wherein they reside. No State shall
make or enforce any law which skall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the
laws...”
—
3a
APPENDIX 3
Section 2109.50 of the Ohio Revised Code
provides:
“Upon complaint made to the probate court
of the county having jurisdiction of the adminis-
tration of a trust estate or of the county wherein
a person resides against whom the complaint is
made, by a person interested in such trust estate
or by the creditor of a person interested in such
trust estate against any person suspected of hav-
ing concealed, embezzled, or conveyed away or
of being or having been in the possession of any
moneys, chattels, or choses in action of such
estate, said court shall by citation, attachment or
warrant, or, if circumstances require it, by war-
rant or attachment in the first instance, compel
the person or persons so suspected to forthwith
appear before it to be examined, on oath, touch-
ing the matter of the complaint. Where neces-
sary such citation, attachment or warrant may
be issued into any county in the state and shall
be served and returned by the officer to whom it
is delivered. The officer to whom such process is
delivered- shall be liable for negligence in its
service or return in like manner as sheriffs are
liable for negligence in not serving or returning
a capias issued upon an indictment. Before issu-
ing an extra-county citation, attachment or war-
rant, the probate judgment may require the
complainant to post security with the probate
court in such amount and in such form as the
probate judge shall find acceptable in order to
cover the costs of the proceeding under this
section, including in such costs a reasonable
allowance for the travelling expenses of the per-
son or persons against whom an extra-county
4a
citation, attachment or warrant is to be issued.
Such security may be in the form of a bond, the
amount, terms, conditions and sureties of which
shall be subject to the approval of the probate
judge.
The probate court may initiate proceedings
on its own motion.
The probate court shall forthwith proceed to
hear and determine the matter.
The examinations, including questions and
answers, shall be reduced to writing, signed by
the party examined, and filed in the probate
court.
If required by either party, the probate court
shall swear such witnesses as may be offered by
either party touching the matter of such com-
plaint and cause the examination of every such
witness, including questions and answers, to be
reduced to writing, signed by the witness, and
filed in the probate court.
All costs of such proceedings, including the
reasonable travelling expenses of a person
against whom an extra-county citation, attach-
ment or warrant is issued, shall be assessed
against and paid by the party making the com-
plaint, except as provided by Section 2109.52 of
the Revised Code.”
5a
APPENDIX 4
Section 2109.52 of the Ohio Revised Code provides:
“When passing on a complaint made under
Section 2109.50 of the Revised Code, the probate
court shall determine, by the verdict of a jury if
either party requires it or without if not
required, whether the person accused is guilty
of having concealed, embezzled, conveyed
away, or been in the possession of moneys, chat-
tels, or choses in action of the trust estate. If such
person is found guilty, the probate court shall assess
the amount of damages to be recovered or the court
may order the return of the specific thing concealed
or embezzled or may order restoration in kind. The
probate court may issue a citation into any
county in this state, which citation shall be
served and returned as provided in Section
2109.50, requiring any person to appear before it
who claims any interest in the assets alleged to
have been concealed, embezzled, conveyed, or
held in possession and at such hearing may hear
and determine questions of title relating to such
assets. In all cases, except when the person found
guilty is the fiduciary, the probate court shall forth-
with render judgment in favor of the fiduciary or if
there is no fiduciary in this state, the probate court
shall render judgment in favor of the state, against
the person found guilty, for the amount of the
moneys or the value of the chattels or choses in
action concealed, embezzled, conveyed away, or held
in possession, together with ten percent penalty and
all costs of such proceeding or complaint; except
that such judgment shall be reduced to the
extent of the value of any thing specifically
6a
restored or returned in kind as provided in this
Section.
If the person found guilty is the fiduciary,
the probate court shall forthwith render judg-
ment in favor of the state against him for such
amount or value, together with penalty and
costs as provided in this Section.” (Emphasis
supplied)
7a
APPENDIX 5
¢
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APPENDIX 6
OHIO SAVINGS BANK
May 10, 1991
Alan G. Gelbman, Esq.
2000 Standard Building
1370 Ontario Avenue
Cleveland, OH 44113
Re: Estate of Joan E. Popp
vs. William A. Hamann, Jr., et al.
Dear Mr. Gelbman:
Pursuant to the subpoena issued to Ohio Savings
Bank enclosed please find a copy of the savings history
for the year 1991 along with a copy of the withdrawal
ticket closing the account, appointment papers, tax
release, and the front and back of the check issued. The
original documents are with Mr. Ramsey of the FBI.
Should you require any further information please
feel free to contact us.
Very truly yours,
/s/ Ruth Michaels
Ruth Michaels
Legal Dept.
9a
p90 021391 O2139' O CLOSED 328.73 .00 51,304.24 021391 060189 O-NONE
yee CLOSEOUT INT 00
gone 40 HIST-O 021391 TLR OS-000021 BAL $$.505.13 TC B 1,503.12
1g-9008 400 HIST-O 021391 TLR OS-D0002! BAL $5,505.13 IC B 658.28
4g 076 400 HIST-O 021391 TLR OS-00002! BAL $5,505.13 TC B 666.48
¢ -0006 470 HIST-O 021391 TLR OS-O00021 Bai 55,50S.13 ITC B 674.79
gone 400 HIST-O 021391 TLR OS-000021! BAL 55,505.13 TC B 698.22
1g -000€ 400 HIST=1 021381 TLR OS-000021 Bal $5,833.86 TC 940 328.73
g-0926400 HIST-O 021391 TLR OS-00002! BAL .00 TC 910 55,833.86
10a
IN THE PROBATE COURT
Division of the Court of Common Pleas
1023 No. 1024992
STATE OF OHIO )
) SS.
Cuyahoga County _ )
I, FRANCIS J. TALTY, Judge of the Probate Court and
for said County, in the State aforesaid, do hereby certify
and make known, that on 12th day of February one
thousand nine hundred and ninety-one of Administration
Of Estate of Joan Popp aka Joan E. Popp deceased, were
granted William A. Hamann, Jr., Administrator
The same are now in full force and effect.
IN TESTIMONY WHEREOF, I have set my hand and
affixed the seal of said Probate Court, at Cleveland, Ohio,
in said County, this 12th day of February, 19891.
/s/ John J. Donnelly
Probate Judge
By: /s/ M.M. Meyer
Deputy Clerk
lla
7
OHIO SAVINGS BANK
1601 EAST NINTH STREET CLEVELAND. OHIO arya
4
_ TWO SIGNATURES AE GY
= 3 al > » eee * 5 _~_, _ " <——.. = of.
.
€
83340
OFFICINE K aii 34 :
WHEN €R $5,000 00 4
ee
-~»>
a 44% ys’ 5. +
\ DATE ee aoe an-00
- --« ad , '
. q°
z
3
' ‘
LOSE _ACC
Re ACC
yver.a-
he ewmof 55,83
— DERAL HOME LOAN BANK © NaSHVLLE MARES ~ 3%
> See —
°° > Eee; ~ * eee
"83340 70
SO6B4000910!.
BeelsBGe' hod |
THE OHIO SAVINGS BA “ ogg 5 .,
ORAWER “e SS y ] te ;
a 7 or’ :
|
‘s
BY ; fad
—_—. = 9 <i ‘
AUTHORIZED SIGNATURE ™ as SrYASSS
--
=> eee Se eet eS eee cee > ee eee = * eee =
10010 357"" O310S “O00SS583386."
12a
OHIO DEPARTMENT OF TAXATION
ESTATE TAX
P.O. BOX 530, COLUMBUS, OHIO 43216
Date 2-12-91
To: OHIO SAVINGS
(NAME OF COMPANY WHOSE STOCKS OR
BONDS ARE TO BE TRANSFERRED OR INSTITU-
TION WHERE DEPOSIT OR OTHER PROPERTY IS
LOCATED)
The Tax Commissioner of Ohio consents to the
immediate transfer of the following property now in
your possession,
Control or custody:
To: William A. Hamann, Jr., Administrator
Description:
Acct. #816K00-06400 -— $51,304.24 (6-1-89) plus
interest
belonging to or standing in the name of joint name of
JOAN E. POPP, deceased, late of Cuyahoga County, State
of Ohio Date of Death January 30, 1991
JEAN A. FERRYMAN
TAX COMMISSIONER AGENT
BY:/s/ J.A. Ferryman
Tax Commissioner
l3a
SAVINGS ACCOUNT WITHDRAWAL
RECEIVED FROM
OHIO SAVINGS BANK
ACCOUNT NUMBER
816-00-06400
AMOUNT WITHDRAWN
55833.86
86
DOLLARS CENTS
SIGNED William A. Hamann Jr., Admr.
SIGNED DL #PM 680029
New
Address: Administrator
Check
Payable To: William A. Hamann,
Check No. 833407 /Cash
Transferred
To Account Number:
VALIDATION STAMP
[stamp] Remarks: DEATH CERTIFICATE APPOINT-
MENT PAPERS TAX RELEASE
SAV: 011 (REV 6/86)
l4a
PASSBOOK SAVINGS ACCOUNT
THIS CERTIFIES THAT Account No. 816 K 00 No. 06400
JOAN POPP
HAS CPENED A REGULAR SAVINGS DEPOSIT
ACCOUNT WITH
OHIO SAVINGS BANK
CLEVELAND, OHIO
herein called the Bank. This passbook is issued and, by
the acceptance hereof, is held subject to all the provisions
of the laws of the State of Ohio, the Rules and Regula-
tions of the Federal Savings and Loan Insurance Corpora-
tion, and the Articles of Incorporation, Constitution and
By-Laws of the Bank, and to the rules contained in the
Bank’s Guide to Savings Accounts provided to the
Accountholder at the time of opening this account, all as
the same now exist or may hereafter be amended and is
transferable only on the records of the Bank by the holder
hereof in person, or by duly authorized attorney. Upon
surrender of this passbook accompanied by a properly
executed order to make said transfer. The Bank may treat
the holder of record as the owner for all purposes with-
out being affected by any notice to the contrary until this
account is transferred on the books of the Bank.
Interest on deposits shall be paid as determined by the
Board of Directors of the Bank and shall be subject to
change without notice.
Deposits may be made through the mail by check, money
order or registered letter. Always state account number.
Do not send cash by mail.
15a
All deposits are made subject to the Bank’s policies on
collection of checks or other items. For your protection and
ours, when a check is accepted, a hold is placed on your
account for the amount of checks presented for payment, in
accordance with the Bank’s Funds Availability Policy.
Inquiries may be made at the branch in regard to informa-
tion concerning the length of hold for a particular check
transaction.
This book must be presented when money is deposited or
withdrawn.
The owner of this account should notify the Bank of any
change of address, name, or Taxpayer Identification Number.
Rev. 11/88
[seal]
ORGANIZED 1889
PASSBOOK SAVINGS ACCOUNT
THIS CERTIFIES THAT Account No. 816 K 00 No. 06400
JOAN POPP
HAS OPENED A REGULAR SAVINGS DEPOSIT
ACCOUNT WITH
OHIO SAVINGS BANK
CLEVELAND, OHIO
herein called the Bank. This passbook is issued and, by the
acceptance hereof, is held subject to all the provisions of the
laws of the State of Ohio, the Rules and Regulations of the
Federal Savings and Loan Insurance Corporation, and the
Articles of Incorporation, Constitution and Ry-Laws of the
Bank, and to the rules contained in the Bank’s Guide to
Savings Accounts provided to the Accountholder at the time
l6a
of opening this account, all as the same now exist or may
hereafter be amended and is transferable only on the records
of the Bank by the holder hereof in person, or by duly
authorized attorney. Upon surrender of this passbook accom-
panied by a properly executed order to make said transfer.
The Bank may treat the holder of record as the owner for all
purposes without being affected by any notice to the con-
trary until this account is transferred on the books of the
Bank.
Interest on deposits shall be paid as determined by the Board
of Directors of the Bank and shall be subject to change
without notice.
Deposits may be made through the mail by check, money
order or registered letter. Always state account number. Do
not send cash by mail.
All deposits are made subject to the Bank’s policies on
collection of checks or other items. For your protection and
ours, when a check is accepted, a hold is placed on your
account for the amount of checks presented for payment, in
accordance with the Bank’s Funds Availability Policy.
Inquiries may be made at the branch in regard to informa-
tion concerning the length of hold for a particular check
transaction.
This book must be presented when money is deposited or
withdrawn.
The owner of this account should notify the Bank of any
change of address, name, or Taxpayer Identification Number.
Rev. 11/88
[seal]
ORGANIZED 1889
17a
PASSBOOK SAVINGS ACCOUNT
THIS CERTIFIES THAT Account No._8!16 x_00_ wo.__06400
WITHORAWAL OEPOosiT DATE BALANCE
1604 10525.53 |JUN 1-09 ¢ 10525 .353
- 100A 40776.91i | JUN gate cM «=: 53.:1504.24
1503.12) DEC31-89 Hs 5@807.36
658.28, MAR31-90_— | i ‘53465 .64
666.48) JUN30-90 54132.12
674.79) SEP30-90 aa 54806.91
698.22) DEC31-90 INT 55505.13
! 328.73) FEB13-91 INT 55833.86
! 52A55833.86 FEB13-91 « .0Q|
EO
wu OY
ONS Ah
al
THIS BOOK MUST BE PRESENTED WHEN MONEY |S DEPOSITED OR WITHORAWN
—— + ee eee i mm re |
| ORGANIZED 1889
: - al lial
eo re a . . vs Rs
18a
APPENDIX 7
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OF [sic] OHIO
EASTERN DIVISION
Ohio Savings Bank,
Plaintiff,
Case No
1:92CV2025
VS.
TransOhio Savings Bank,
and
Estate of Virginia Pop [sic] Durma,
and
William A. Hamann, Jr.,
and
Marvin Schatz,
Defendants.
DEPOSITION OF WILLIAM A. HAMANN, JR., a
Defendant herein, called by the Plaintiff as upon cross-
examination under the statute, taken before me, A. Ann
Manning, Notary Public in and for the State of Ohio, by
agreement of counsel, at the Marion Correctional Institu-
tion, in the Office of O. H. Wood, III, Assistant Deputy
Warden, Marion-Williamsport Road, Marion, Ohio, 43302
on Friday, May 28, 1993, beginning at 10:55 a.m. and
concluding at 3:39 p.m.
19a
APPEARANCES
FOR THE PLAINTIFF: Roy E. Lachman
Assistant General Counsel
200 Ohio Savings Plaza
1801 East Ninth Street
Cleveland, Ohio 44114
FOR THE DEFENDANT W. Eric Baisden
R.T.C., RECEIVER FOR Attorney at Law
TRANSOHIO SAVINGS Brouse & McDowell
BANK: 500 First National Tower
Akron, Ohio 44308-1471
FOR THE DEFENDANT Hugh A. Carlin
ESTATE Attorney at Law
OF VIRGINIA POPP Lakewood Center North
DURMA: 14600 Detroit Avenue
Suite 1030
Lakewood, Ohio 44107
FOR THE DEFENDANT George Stuhldreher
MARVIN SCHATZ: Attorney at Law
Gallagher, Sharp, Fulton
Sixth Floor, Bulkley
Building
Cleveland, Ohio 44115
[p. 3] STIPULATIONS
It is stipulated by and between counsel for the
respective parties that the deposition of WILLIAM A.
HAMANN, JR., a Defendant, called by the Plaintiff as
upon cross-examination, pursuant to the Rules of Civil
Procedure, may be taken at this time by A. Ann Manning,
Notary Public in and for the State of Ohio, by agreement
of counsel and without Notice of other legal formality;
that said deposition may be reduced to writing in sten-
otypy by the Notary Public, whose notes may thereafter
20a
be transcribed out of the presence of the witness; that
proof of the official character and qualifications of the
Notary Public is waived; and that the examination, read-
ing and signature of the said WILLIAM A. HAMANN, JR.
to the transcript of his deposition is expressly waived by
the witness; said deposition to have the same force and
effect as though signed by the said WILLIAM A. HAM-
ANN, JR.
* * *
[p. 124] A That is, that is correct.
Q When you handle estates for other people and
met other fiduciaries, did you ever meet other people that
acted similar to the way Mrs. Durma acted?
A Yeah.
Q In being cautious or guarded in her handlings
with the attorney?
A Yes. Because most people are not — don’t deal
with this on a, on a routine basis and they don’t know
what they are up against and there’s unfortunately an
inbred distrust of lawyers and, uh, so, yeah. More people
than not are somewhat cautious and guarded.
Q So you didn’t think that her actions were any-
thing out of the unusual? I mean you had seen this
before, right?
A Yes, I had.
Q Mr. Hamann, handing to you what’s been marked
Plaintiff’s Exhibit T, that’s the forged letter of appoint-
ment of the Joan Pop [sic] Estate.
2la
A Yes.
Q Okay. And directing your attention to February
13th, 1991, the date that you went to Ohio Savings Bank
with the Joan Pop [sic] assets book.
A Yes.
Q Do you recall if Ohio Savings Bank personnel that
[p. 125] day, upon you presenting this document to them,
Plaintiff’s Exhibit T, calling the Probate Court to verify if
that was a valid estate number, if that estate had, in fact,
been opened and if you were the duly qualified acting
administrator of the Pop [sic] Estate?
A Ido not believe that such a call was made.
Q Mr. Hamann, do you recall Ohio Savings Bank
personnel on that date ever questioning you about the
fact that the Probate Court seal was not clearly evidenced
on the Plaintiff’s Exhibit T?
A Somebody questioned me about a seal. Whether
it was Ohio Savings, — in fact, um, if that’s the document I
remember going with a pencil, I believe, over a certificate
at one of the banks. That may be. I don’t remember
specifically but, if there was a question, I remember tak-
ing a pencil and saying, “Look. This is raised,” and
shading it somehow. Other than that, I, I don’t recall.
Q Was that when you were at Ohio Savings Bank?
A It may have been.
Q And you told us under prior questions of Mr.
Lachman that, and I know we don’t have a Plaintiff's
Exhibit T copy that’s showing about the seal, but you
22a
recall when you prepared this forged document that it
was in the general area of where the “John” is in the
signature of John Donnelly and by the three lines of the
“County” and [p. 126] “by”, the word “by”, b-y, near the
bottom?
A (Nods head affirmatively)
Q And you recall quite clearly the words “Probate
Court” did not appear on the seal that you used?
A They absolutely did not appear on the seal that I
used.
[Q As you told us, you used a notarial public seal
with the “notarial public” to show up, you used tape over
that. On the seal what did show up was the State of Ohio
and part of the seal of the Great State of Ohio?
A Correct.
Q On that date, February 13th, 1991, did Ohio Sav-
ings Bank personnel with regard to the Pop [sic] Estate
question you about Plaintiff’s Exhibit V, the tax release?
You recall Plaintiff’s Exhibit V is the tax release?
A Yes, I do recall the Exhibit and I do not recall any
question about the tax release.
Q They never asked you any questions that would
lead you to believe that they thought there was some-
thing unusual about this?
A No.
Q Do you recall what the original of Plaintiff's
Exhibit V looked like concerning the tax commissioner’s
stamp?
23a
A Well, it looked exactly like your copy there with
[p. 127] the exception that, um, I believe the signature
was in blue. Um, and there was no stamp. That was a
typed signature block.
© And normally when a tax release is properly
issued by the tax commissioner, there’s like a pre-printed
ink stamp that appears near the bottom of the signature?
A That’s right.
Q You recall seeing that on hundreds of tax
releases, don’t you?
A On every one that I did.
© However on Plaintiff’s Exhibit V, that inked tax
commissioner’s pre-printed stamp did not appear; is that
correct?
A That’s correct.
Q And Ohio Savings Bank personnel never ques-
tioned you that that ink stamp was missing from this tax
release, Plaintiff’s Exhibit V; isn’t that correct?
A That's right. Now, let me clarify just one state-
ment that may have been a partial misstatement. Every
tax release that was issued by Cuyahoga County had the
stamp on it. Tax releases that came directly from Col-
umbus, which some did, and tax releases which came
from other counties sometimes had just a signature or the
typed name under or a signature with a typed name over.
Not all counties used the stamp and the State of Ohio tax,
uh, [p. 128] Department of Taxation down in Columbus
which, on occasion, would issue a tax release on certain
type of asset would not yield a stamp but all Cuyahoga
24a
County releases that were issued from the Cuyahoga
County department used the stamp.
Q And Joan Pop [sic] died a resident of Cuyahoga
County, Ohio; is that correct?
A Correct.
Q And, in fact, even on Plaintiff’s Exhibit V it even
states:
“Belonging to or standing in the name or joint
name of Joan E. Pop [sic], Deceased, late of
Cuyahoga County, State of Ohio, date of death
January 30th, 1991.”
Referring to the Plaintiff's Exhibit V. Therefore, the tax
commissioner’s printed stamp would have appeared on
this tax release since she died in Cuyahoga County, Ohio;
is that correct?
MR. LACHMAN: Objection.
A In my experience on every Cuyahoga County tax
release that I ever got in, in 20 years had the stamp.
Q And the Ohio Savings Bank person on that day,
February 13th, never questioned you that the stamp was
not on this tax release, Plaintiff’s Exhibit V?
A No.]
[p. 129] QO Referring you back to Plaintiff’s Exhibit
T, the forged certified letter of appointment, with the
same date reference and the reference to the Pop [sic]
Estate, did Ohio Savings Bank personnel ever question
you that the certified letter of appointment starts off, “I,
Francies [sic] J. Talty, Judge of the Probate Court,” how-
ever —
25a
A (Nods head affirmatively)
Q - the certified letter is signed “John J. Donnelly,
Probate Judge, by” — I can’t recall the signature.
A I can’t either.
Q Do you remember whose name you put on there
as the clerk?
A Idon’t - I’m not sure there is even a clerk by that
name.
Q Looks like an M. M. Meyer, deputy clerk.
A Sounds reasonable.
Q Did Ohio Savings Bank personnel on February
13th, 1991, regarding the Pop [sic] Estate in Plaintiff’s
Exhibit T, ever question you that the printed name of
Francis J. Talty in the first line is not the person who
signed or had deputy clerk authorization signature of
signing Talty’s name but, in fact, John J. Donnelly’s name
is signed at the end?
A No.
26a
APPENDIX 8
COPY
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
OHIO SAVINGS BANK ) CASE NO: 1:92 CV 2025
Plaintiff, JUDGE BATTISTI
MAGISTRATE STREEPY
Ve
)
)
)
TRANSOHIO SAVINGS?
BANK, et al.,
)
Defendants.
DEFENDANT, RESOLUTION TRUST CORPORA-
TION’S BRIEF IN RESPONSE TO OHIO SAVINGS
BANK’S MOTION FOR SUMMARY JUDGMENT AND
REPLY TO OHIO SAVINGS BANK’S BRIEF IN OPPO-
SITION TO RESOLUTION TRUST CORPORATION'S
MOTION FOR SUMMARY JUDGMENT
Mary K. Whitmer
Supreme Court Reg. #0018213
Robert M. Stefancin
Supreme Court Reg. #0047184
W. Eric Baisden
Supreme Court Reg. #0055763
BROUSE & McDOWELL
500 First National Tower
Akron, OH 44308-1471
(216) 535-5711
Attorneys for Defendant,
Resolution Trust Corporation,
in its capacity as Receiver for
Transohio Savings Bank
I].
27a
INTRODUCTION
Whenever the Association is informed of a deceased
account holder, it is their responsibility to flag the
signature card on each and every account in that
customer’s name.
In addition to placing flags on the signature cards, the
terminal hold message number “04”, “DEATH
NOTICE”, must be entered in the terminal. Refer to
the Olivetti Manual for terminal entry procedure.
The following sections are to aid in the often compli-
cated handling of decedent accounts.
LEGAL DOCUMENTS REQUIRED
There are a number of legal documents required in the
handling of decedent accounts. The following sections
on “Procedures for Handling Each Type of Account by
Ownership” must be referred to for specifics as to
which documents are required. The purpose of this
section is to merely provide samples of documents
which may be required, and give some background
knowledge as to their use.
A. Tax Release
If the Association has been advised of the death
of a savings account owner, extreme care should
be exercised with regard to the account from the
moment of death notification to the actual dis-
bursement of funds. The Ohio revised code
5731.39 provides in pertinent part:
“No... financial institution . . . having in posses-
sion, control or custody, a deposit standing in the
name of a decedent, or in trust for a decedent, or
in the name of a decedent and another person or
persons, shall deliver or transfer an amount in
excess of three-fourths (3/4’s) of the total value of
28a
such deposits, including accrued interest and div-
idends, as of the date of the decedent’s death,
without the written consent of the Ohio Tax Com-
mission. The written consent of the Tax Commis-
sion need not be obtained prior to the delivery or
transfer of amounts having the value three-
fourths (3/4’s) or less of said total value.”
In other words, you must not permit a with-
drawal of more than three-fourths (3/4’s) of the
balance of the savings account held in the name
of a deceased account holder without first receiv-
ing a tax release properly signed by an agent of
the Ohio Tax Commissioner.
In the event that three-fourths (3/4’s) of the
funds are withdrawn from an account without a
tax release, the signature card should be flagged
with the information that there is a hold on the
remaining one-fourth (1/4) of the balance of the
account pending receipt of the tax release. There
are two exceptions to the requirement of a tax
release. A tax release is not required if:
1. The account owner was not a permanent resi-
dent of the State of Ohio at the time of death.
2. If the account balance at the time of death is
less than $500.00.
Following is a sample of a tax release.
Order Relieving the State from Administration
In accordance with the statutes as set forth by the
State of Ohio, the assets of a decedent's Estate
may be released without administration provided
the assets totally do not exceed $15,000.00.
The next of kin, or heirs, of the decedent must file
with Probate Court for an Application for Release
29a
of Assets Without Administration. This release
will set forth the name of the decedent, the date
of the original application, and the date the mat-
ter came to be heard by the probate judge; it will
name the person or persons to whom particular
assets are to be paid. It will also list the debts
against the estate, as well as the amount of money
to be released. The funds in the account shall be
paid to the person or persons named in the order
for release of assets upon presentation of this
document, together with proper identification of
the person named as the recipient of the assets, a
properly executed withdrawal ticket, a Tax
Release, and the savings passbook. It is not neces-
sary to obtain a copy of the Letters of Appoint-
ment, since none would be issued in the case.
The funds in the account must be paid in check
form only, payable to the person or persons
named in the order. Obtain a copy of the order
(the court issues an order for each asset men-
tioned) for the permanent records of the Associa-
tion. Note on the withdrawal ticket the fact that
the withdrawal was made pursuant to such an
order.
The following is a sample of an Order Relieving
the Estate from Administration:
III. CONVERTING, TRANSFERRING, AND CLOSING
PROCEDURES FOR DECEDENT ACCOUNTS
REFER TO SECTION ON “PROCEDURES FOR
HANDLING EACH TYPE OF ACCOUNT OWNER-
SHIP” FOR PROPER USE OF THESE PROCEDURES.
A. Closing or Transferring a Decedent Account
When the Executor, Administrator, survivor, or
properly authorized person presents the proper
30a
documents, a decedent account may be closed
by the following procedures.
1. Note on the signature card that the owner is
deceased and the date.
2. Have the Executor, Administrator, Survivor or
Properly authorized person complete a with-
drawal ticket.
3. Attach required documents to the withdrawal
ticket.
4. Proceed to close the account.
[5.In the case of an Estate Account, the check
must be made payable to “The Estate of
(deceased account owner)” or to “John Smith,
Executor of the Estate of (deceased account
owner)”.]
If the surviving owner is closing the account,
he may have the funds in any form he wishes.
In the case of a Successor Trustee, Guardian,
Custodian or Fiduciary, the check must be
made payable to the Successor.
REFER TO SPECIFIC TYPE OF OWNERSHIP
FOR DETAILS.
6. An account may be transferred to a new
account, in any form of ownership, after com-
pleting the above. If a check is required for
close-out, simply have the customer endorse
the check and open the new account.
* * *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.