Powers v. Dankof, 2011 Ohio 6180

Powers sued Dankof and others for legal malpractice, breach of fiduciary duty, misrepresentation, and supervision failures arising from a brief May–July 2009 attorney-client relationship and a separate trademark infringement suit with a temporary restraining order on May 14, 2009.
In the trademark suit, the plaintiffs alleged Powers used the name and likeness of a restaurant called Dominic's in violation of a non-compete; the TRO forbade operation under that name.
Powers filed for Chapter 7 bankruptcy on May 27, 2010 and listed “potential legal malpractice claims” with a value of 0.00.
The bankruptcy trustee did not abandon the claims; the estate thus owned the claims unless abandonment occurred; the trial court granted summary judgment for appellees on July 28, 2011.
Powers appeals, asserting standing as real party in interest and seeking Civ.R. 17(A) relief to substitute the trustee; the court upheld dismissal due to lack of abandonment and lack of timely cure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to sue as real party in interest	Powers argues trustee abandoned to him and relinquished control	Estate/trustee owns claims; Powers not real party	Trustee did not abandon; Powers lacks standing; trial court correct
Civ.R. 17(A) substitution/ratification timing	Powers should be allowed to substitute or ratify the real party in interest	No timely cure; trial court did not abuse discretion	No abuse; five-month cure period excessive and substitution denied

Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (summary judgment standards; burden on moving party; de novo review)
Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary judgment criteria)
In re Cottrell, 876 F.2d 540 (6th Cir. 1989) (bankruptcy-estate property; standing of trustee)
Parker v. Wendy's Internatl., Inc., 365 F.3d 1268 (11th Cir. 2004) (abandonment of bankruptcy claims; standing)