Short v. Wert
2025 Ohio 1103
| Ohio Ct. App. | 2025Background
- Laura and Ryan Short sued Kenneth Wert in negligence, alleging that Wert caused a 2019 car accident injuring Laura Short, and sought damages for loss of consortium.
- The initial lawsuit had been voluntarily dismissed after Wert died and no substitution of party was made. The Shorts refiled the suit in 2022, again naming Wert as defendant, who was deceased.
- Wert's counsel filed a suggestion of death in November 2022. The Shorts did not move to substitute Wert’s estate as the party defendant within the 90 days required under Ohio Civ.R. 25.
- Multiple motions and briefs were filed regarding dismissal based on Civ.R. 25, untimely service, and statute of limitations.
- The trial court dismissed the Shorts’ claims: first on the basis of statute of limitations and failure of service, and finally due to failure to substitute a proper party. The Shorts appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was dismissal required for failure to substitute proper party under Civ.R. 25? | Shorts claimed lack of notice of Wert’s death until motion to dismiss. | Wert argued suggestion of death was properly filed and served, and substitution wasn’t made in time. | Dismissal was required under Civ.R. 25 because no substitution was made. |
| Did the Shorts have due process/right to amend? | Sought to amend to add an Estate administrator and argued due process required amendment. | Opposed amendment; argued timeliness and procedural bars. | Amendment denied; failure to move for substitution under Civ.R. 25 was fatal. |
| Was trial court correct to rule on merits/statute of limitations? | Argued claims should be decided on the merits. | Asserted untimeliness and lack of proper defendant barred claims. | Trial court erred in reaching merits, but dismissal proper for lack of party. |
| Was relief from judgment warranted under Civ.R. 60(B)? | Cited counsel’s illness and technical issues for relief. | Opposed; argued no meritorious claim or excusable neglect shown. | Relief from judgment was properly denied. |
Key Cases Cited
- Baker v. McKnight, 4 Ohio St. 3d 125 (Action may only be brought against a legally existing party; cannot sue a deceased person)
- Perry v. Eagle-Picher Industries, Inc., 52 Ohio St. 3d 168 (Dismissal under Civ.R. 25 is for lack of jurisdiction, not merits; must dismiss when no substitution is made)
- Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St. 2d 257 (Notice of appeal defects may be liberally construed absent prejudice)
- Transamerica Ins. Co. v. Nolan, 72 Ohio St. 3d 320 (Appellate courts have discretion to consider defective appeals absent prejudice or bad faith)