Cushing v. Sheffield LakeCushing v. Sheffield Lake
BELFANCE, Presiding Judge.
{¶1} Appellant, Rhonda Cushing, appeals the order of the Lorain County Court of Common Pleas that dismissed her complaint for wrongful death. This Court reverses.
I.
{¶2} After her husband died in a car accident, Rhonda Cushing sued the City of Shеffield Lake for wrongful death in connection with the fire department‘s response at the scene. The complaint named Ms. Cushing individually and as her husband‘s personal representative, as required by
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR RECONSIDERATION AND DISMISSING THE CLAIMS OF [MS. CUSHING], AS THERE IS PRECEDENT FOR THE AMENDMENT OF A COMPLAINT FOR WRONGFUL DEATH AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS.
{¶3} Ms. Cushing‘s sole assignment оf error is that the trial court erred by dismissing her complaint instead of permitting amendment under
{¶4} Wrongful death is a statutory claim created by
The requirement of the wrongful death statute that the prosecution of the action be in the name of the personal representative is no part of the cause of actiоn itself, but relates merely to the right of action or remedy. That requirement was obviously intended for the benefit and protection of the surviving spouse, children and next of kin of a decedent, the real parties in interest. The personal representative is only a nominal party. Nor does the statute require that the personal representative shall bring the action, but merely provides that the action, if brought, shall be brоught in the name of the personal representative. The only
concern defendants have is that the action be brought in the name of the party authorized so that they may not again be ha[i]led into court to answer for the same wrong.
(Internal citations omitted.) Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 647-648 (1939).
{¶5} Consequently, the Ohio Supreme Court has recognized that when a beneficiary files a complaint in the name of the personal representative although, in fact, she has not bеen appointed as such, that mistake can be corrected by an amended pleading that relates back to the original date of filing. Id. at 648. In another case, the Court concluded that when a complaint was brought in the name of an ancillary administrator who was later replaced, the subsequent appointee could be substituted. Kyes v. Pennsylvania R. Co., 158 Ohio St. 362, 364-366 (1952). In so holding, the Court emphasized that the personal representative nеed not bring the action as long as the action is brought in the name of the personal representative at the time the complaint is filed. Id. at 365. (“[U]nder the provisions of the statute it is not even necessary that the representative bring the action. The requirement is merely that the action be brought in his name.“) Similarly, the Supreme Court has concluded that an attorney who filed a wrongful death case on behalf of his beneficiary-client in the name of the personal representative, but without the personal representative‘s authority to do so, did not commit a violation of the Ohio Rules of Professional Conduct. Rust at ¶ 46.
{¶6} The status of the personal representative as a nominal party in whose name the action must be brought is significant in our analysis of this case. Sheffield Lake moved to dismiss Ms. Cushing‘s complaint under the theory that Ms. Cushing could not file the cоmplaint pro se in her capacity as personal representative. Sheffield Lake reasoned that the complaint was a nullity with respect to her capacity as personal reprеsentative and that the entire complaint had
{¶7} First, Sheffield Lake cited Talarek v. M.E.Z., Inc., 9th Dist. Lorain No. 98CA007088, 1998 WL 713226 (Sept. 10, 1998) (journal entry) for the proposition that an initial pleading filed on behalf of a corporation by a non-attorney is a nullity that fails to invoke the trial court‘s jurisdiction. Talarek, however, is not an opinion of this Court, and its value as precedent is limited. See Rep.Op.R. 3.1, 3.4.
{¶8} Second, and mоre substantively, application of that rule in the context presented by this case disregards the unique requirements of
{¶9} Becausе Ms. Cushing did not represent a third party pro se but merely brought a complaint in the name of the nominal party required by statute, the trial court erred by analyzing this case as one involving the unauthorized practice оf law and in concluding that the complaint she filed was a nullity. The complaint was brought in the name of the personal representative, as
{¶10} Ms. Cushing‘s assignment of error is sustained.
III.
{¶11} Ms. Cushing‘s assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed.
Judgment reversed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J. CONCURS.
CARR, J. CONCURRING.
{¶12} I concur with the majority that the trial court‘s judgment dismissing the wrongful dеath action must be reversed. I would conclude, however, that dismissal was not appropriate in this case only because, when Ms. Cushing filed the complaint pro se, she was the sole statutory beneficiary.
{¶13}
{¶14} In this case, no party disputes that Ms. Cushing was the administrator of her late husband‘s estate at the time she filed the complaint. Moreover, there is no dispute that the action was brought in the name of the personal representative of the decedent. Of critical importance is the undisputed fact that Ms. Cushing is the sole statutory beneficiary in this case. She named no other next of kin to the decedent in her comрlaint. Furthermore, the City failed to allege, let alone demonstrate, in the record below the existence of any other statutory beneficiaries. Had there been any evidence that Mr. Cushing was survived by additional next of kin, I would conclude that Ms. Cushing, as a non-attorney, was not authorized to represent their interests. Williams v. Griffith, 10th Dist. Franklin No. 09AP-28, 2009-Ohio-4045, ¶ 15 (concluding that a non-attorney administrator of an estate had no authority to represent his son in a wrongful dеath action and that, moreover, he could not even represent merely his own interests in the case “because the action has to be maintained by the personal representative on behalf of the statutory next of kin in one action.“); see also In re D.L., 189 Ohio App.3d 154, 2010-Ohio-1888, ¶ 14 (6th Dist.) (holding that “[a] person‘s inherent right to proceed pro se in any court pertains only to that person and does not extend to the person‘s spouse, [or] child * * *.“). Under the facts of this case, I would conclude that Ms. Cushing was not engaged in the unauthorized practice of law, as she was representing her own interests in the wrongful death action, and there were no other beneficiaries whose interests had to be represented. Accordingly, I would reverse the trial court‘s judgment dismissing the complaint.
MARK G. PETROFF and CHRISTOPHER WINTERS, Attorneys at Law, for Appellant.
JAMES M. POPSON, Attorney at Law, for Appellee.