Greenberg v. Heyman-Silbiger
2017 Ohio 515
| Ohio Ct. App. | 2017Background
- Plaintiffs Josh and Amy Greenberg (then co-guardians of Lawrence D. Schaffer) sued the executor/trustee of the estate of decedent Brian Heyman for repayment of funds allegedly loaned by Schaffer. Rybac, Inc. (an Ohio corporation owned by Schaffer) was also named but does not appeal.
- Heyman died before plaintiffs sued; the Greenbergs presented a rejected probate claim against Heyman’s estate prior to Schaffer’s death. Schaffer died two months after Heyman; the Greenbergs filed the complaint the day after Schaffer died, styled as “Co-Guardians of the Person and Estate of Lawrence D. Schaffer.”
- The Heyman estate disallowed the claim; the two-month statutory window to commence an action on a rejected probate claim (R.C. 2117.12) elapsed two days after the complaint was filed.
- Defendant (Heyman’s executor) moved to dismiss for lack of jurisdiction (Civ.R. 12(B)(1)) and for summary judgment, arguing the guardians lacked legal authority to sue once Schaffer was deceased and that any claim by Schaffer’s estate was time-barred.
- The Greenbergs moved to substitute Schaffer’s estate as plaintiff under Civ.R. 25(A)(1). The trial court denied substitution, found the guardians’ complaint a legal nullity and that any later suit by the estate was barred by the two-month probate claim statute; it granted dismissal/summary judgment.
- The Tenth District affirmed, holding the guardians lacked standing to commence suit after the ward’s death and the substitution attempts were either untimely or waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 25(A)(1) permits substitution of Schaffer’s estate for the guardians who filed suit after his death | Greenbergs: substitution should be allowed to correct a misnaming/technical defect so the estate can be substituted | Silbiger: Civ.R. 25(A) applies only when a party dies after suit is commenced; Schaffer was never a party so rule does not apply | Denied: Civ.R. 25(A) inapplicable because Schaffer was deceased at filing and thus never a party; motion properly denied |
| Whether the trial court should have used Civ.R. 17/15/21 to substitute the estate and give relation back | Greenbergs (on appeal): Civ.R. 17/15/21 allow substitution/relation back to cure misnomer and preserve timely filing | Silbiger: Greenbergs failed to raise Civ.R. 17 below; substitution would prejudice estate; standing/capacity problems remain | Rejected as waived: Court refused new Civ.R. 17/15/21 theory because plaintiff did not raise it in trial court; argument forfeited on appeal |
| Whether the complaint filed by guardians after ward’s death is a legal nullity or can be cured | Greenbergs: defect is one of capacity/pleading that can be cured by substitution; complaint commenced the action | Silbiger: Complaint was a nullity and never invoked court’s jurisdiction for Schaffer’s claims | Held nullity/defective: Guardians’ capacity ended at death; they lacked standing to commence the suit; complaint did not properly invoke jurisdiction for Schaffer’s claims |
| Whether Schaffer’s claims (survivor/statutory) survived or are time-barred after substitution | Greenbergs: allowing substitution would relate back and avoid R.C. 2117.12 bar | Silbiger: The two-month probate claim period expired and any later suit by estate is time-barred; substitution cannot revive time-barred claim | Held time-barred in practical effect: Because guardians lacked standing at filing and substitution was not available/saved, the estate’s attempt to press rejected probate claims was barred by statute |
Key Cases Cited
- Baker v. McKnight, 4 Ohio St.3d 125 (Ohio 1983) (overruled Barnhart and held otherwise timely complaint naming a deceased defendant may relate back and be amended to substitute administrator)
- Barnhart v. Schultz, 53 Ohio St.2d 59 (Ohio 1978) (held complaint naming a dead defendant was a nullity; later overruled by Baker)
- Levering v. Riverside Methodist Hosp., 2 Ohio App.3d 157 (10th Dist. 1981) (held Civ.R. 25 inapplicable where plaintiff was deceased at time complaint was filed; complaint a nullity)
- Whitley v. River's Bend Health Care, 183 Ohio App.3d 145 (4th Dist. 2009) (court of appeals held guardian-filed suit after ward’s death was a nullity; later proceedings in Supreme Court left questions unresolved)
- Whitley v. River's Bend Health Care, 126 Ohio St.3d 1217 (Ohio 2010) (dismissed appeal as improvidently granted; Chief Justice Brown dissent argued nullity theory was incorrect and supported substitution under Civ.R. 17)
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (Ohio 2012) (standing is jurisdictional and must exist at commencement of suit; lack of standing cannot be cured by substitution)
- State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176 (Ohio 1973) (party lacks standing unless it has a real interest in subject matter)