Burchett v. Larkin
192 Ohio App. 3d 418
Ohio Ct. App.2011Background
- Cheryl L. Burchett died in 2006; Amy Papesh was appointed administrator of the estate.
- Steven J. Burchett (son) filed Burchett I, a wrongful-death action, on August 27, 2007, as administrator of the estate.
- Steven L. Burchett (husband) and Jean Burchett filed Burchett II against Larkin, Unity One, and Scioto County in 2008.
- Larkin moved to dismiss Burchett II, arguing the action duplicative of Burchett I and that plaintiffs were not proper parties.
- The trial court dismissed Burchett II on February 9, 2009 for failure to institute the action in the administrator’s name; attorney fees were sought by appellees.
- On remand, probate court appointed Steven L. Burchett as administrator; on appeal, the panel upheld the trial court’s award of attorney fees for frivolous conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the attorney-fee award for frivolous conduct proper? | Banks argues plaintiffs were proper parties and action not frivolous. | Larkin asserts failure to name personal representative shows frivolous conduct and improper filing. | Yes; the court found frivolous conduct and affirmed the fee award. |
| Whether the trial court properly awarded attorney fees under R.C. 2323.51 | Fees were improper or not supported by law/record. | Fees authorized where conduct is frivolous under statute. | affirmed; the award was within the trial court’s discretion and supported by the record. |
| Whether the trial court could consider Civ.R. 60(B) relief on remand | Remand permitted reconsideration of Civ.R. 60(B) motion. | No proper notice of appeal; remand scope limited; cannot consider Civ.R. 60(B). | Overruled; the prior remand did not permit Civ.R. 60(B) relief consideration on appeal. |
Key Cases Cited
- Moss v. Hirzel Canning Co., 100 Ohio App. 509 (1955) (only personal representative may sue under wrongful-death statute; improper party requires substitution)
- Sabol v. Pekoc, 148 Ohio St. 545 (1947) (wrongful-death action must be in administrator’s name; improper party requires dismissal or substitution)
- In re Estate of Ross, 65 Ohio App.3d 395 (1989) (estate-party requirement; misnamed plaintiff can lead to dismissal or substitution)
- Toledo Bar Assn. v. Rust, 124 Ohio St.3d 305 (2010-Ohio-170) (board disciplinary action for filing on administrator’s behalf; distinguishes permissible earlier authorities)