2019 Ohio 1326
Ohio Ct. App.2019Background
- In April 2018 Jeffrey Wills Lusk, pro se and as executor of his mother’s estate, sued Crown Pointe Care Center and others asserting wrongful-death and survival (medical negligence) claims.
- Defendants moved to dismiss arguing (1) Lusk’s pro se prosecution constituted the unauthorized practice of law, (2) the survival claim was time-barred, and (3) medical-negligence claims lacked an affidavit of merit.
- The trial court dismissed the wrongful-death claim as an unauthorized practice of law by a non-attorney and dismissed the survival claim as barred by the statute of limitations.
- Lusk appealed pro se. The appellate court initially allowed time to obtain counsel, then permitted briefing but reserved ruling on whether a non-lawyer could prosecute the appeal. The appeal was argued and submitted.
- The court analyzed whether a non-attorney executor may litigate wrongful-death and survival claims on behalf of the statutory next of kin and the estate and concluded he may not. The court dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a non-attorney executor may prosecute a wrongful-death action pro se | Lusk: as executor and (arguably) sole beneficiary he can represent the estate/beneficiaries pro se; fiduciary checks suffice | Defendants: a layperson may not represent others or an estate in court; such representation is the practice of law | Held: No. Wrongful-death suits must be brought by the personal representative for all statutory next of kin; a non-lawyer may not represent others or the estate in court. |
| Whether a non-attorney executor may prosecute a survival action pro se | Lusk: executor can litigate the survival claim on behalf of the estate | Defendants: survival claims are prosecuted by the personal representative on behalf of the estate, which a non-lawyer may not represent in court | Held: No. Survival claims are estate actions and a non-lawyer personal representative cannot litigate them pro se. |
| Whether being sole beneficiary or lack of creditors allows pro se representation | Lusk: Heath suggests if PR is sole beneficiary (and no creditors) PR may litigate pro se | Defendants: Ohio law treats estates as entities and generally bars non- attorneys from litigating for them regardless of beneficiaries/creditors | Held: Heath’s dictum is not controlling; no Ohio case supports allowing a non-lawyer PR to litigate estate or wrongful-death/survival claims pro se. |
| Whether appeal should be permitted despite pro se status | Lusk: urged to be allowed to proceed on appeal | Defendants: prosecution of appeal by non-attorney on behalf of others is unauthorized practice | Held: Appeal dismissed because Lusk, a non-attorney, cannot prosecute appeals on behalf of the estate or other statutory next of kin. |
Key Cases Cited
- Morgan v. Eads, 104 Ohio St.3d 142 (discussing appellate review limited to trial record)
- Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23 (defining practice of law to include preparing papers and representing persons in court)
- Shinaver v. Szymanski, 14 Ohio St.3d 51 (survival actions pass to personal representative for benefit of estate)
- Perry v. Eagle-Picher Industries, Inc., 52 Ohio St.3d 168 (survival statute principles)
- Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134 (wrongful-death actions must be brought by personal representative for statutory next of kin)