Eichenberger v. Woodlands Assisted Living Residence, L.L.C.Eichenberger v. Woodlands Assisted Living Residence, L.L.C.
Rendered on September 19, 2013
Raymond L. Eichenberger, pro se.
Dworken & Bernstein Co., L.P.A., and Richard N. Selby, II, for appellees/cross-appellants.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Plaintiff-appellant/cross-appellee, Raymond L. Eichenberger, personal representative of Jane E. Eichenberger, deceased, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to dismiss filed by defendants-appellees/cross-appellants, Woodlands Assisted Living Residence, LLC (“Woodlands“), 7123 Industrial Park Blvd., Inc., Carol Ruff, and Laura Baugus (collectively “appellees“). For the following reasons, we reverse that judgment and remand the matter for further proceedings.
{¶ 2} On June 8, 2010, appellant filed a complaint alleging he had been “duly appointed by the Franklin County Probate Court as the Executor of the Estate of the late Jane E. Eichenberger” (“decedent“). (June 8, 2010 Complaint, 2.) According to the complaint, decedent was a resident of Woodlands, and on June 12, 2008, appellees “negligently failed to exercise control over” and “negligеntly failed to provide for” the decedent based upon her falling from a wheelchair being operated and controlled by appellees. (June 8, 2010 Complaint, 2-3.) The complaint also asserted that during 2009, appellees negligently lost or misplaced two sets of decedent‘s prescription eyeglasses and decedent‘s wheelchair.
{¶ 3} In addition to an answer, appellеes filed a motion to dismiss the first claim of the complaint pursuant to
{¶ 4} Prior to receiving a ruling on either the motion to amend or the motion to dismiss, appellees filed a second motion to dismiss on May 16, 2011. The second motion to dismiss was filed, pursuant to
{¶ 5} In response to the second motion to dismiss, appellant filed on June 1, 2011, a second motion to amend the complaint to reflect that he had now become the appointed
{¶ 6} By entry dated June 15, 2011, the trial court granted appellant‘s April 7, 2011 motion to amеnd the complaint, and the amended complaint filed on April 7 was deemed filed instanter.1 Subsequently, on June 24, 2011, appellant, apparently without leave of court, filed an amended complaint that appears to be identical to those amended complaints previously filed.
{¶ 7} On June 29, 2011, appellees filed a third motion to dismiss the complaint pursuant to
{¶ 8} On October 21, 2011, appellees moved for summary judgment and asserted the same arguments that they asserted in their June 29 motion to dismiss. In support, appellees submitted appellant‘s deposition and the docket sheets from the Franklin County Prоbate Court.
{¶ 9} On June 11, 2012, after considering evidence beyond the allegations of the complaint, the trial court granted appellees’ June 29, 2011 motion to dismiss the complaint. In that same decision, the trial court held moot all other pending motions. The trial court concluded the first claim asserted in the complaint was not a medical claim subject to a one-year statute of limitаtions, but, rather, was a negligence claim subject to a
II. ASSIGNMENTS OF ERROR
{¶ 10} This appeal followed, and appellant brings the two following assignments of error for our review:
[I.] The trial court erred as a matter of law and abused his discretion in ruling that the plaintiff was not the real party in intеrest in the litigation, that plaintiff had no standing to file the litigation, and that the amended complaint of the plaintiff did not relate back to the filing of the original complaint for the purposes of the applicable statute of limitations.
[II.] The trial court erred as a matter of law and abused its discretion in ruling that the plaintiff was not the real party in interest to bring the litigation in that the plaintiff had been the trustee of the decedent‘s trust since 2002. The trust was the sole beneficiary of the last will and testament of the decedent later admitted to probate in Franklin County.
III. CROSS-ASSIGNMENTS OF ERROR
{¶ 11} Appellees have filed a conditional cross-appeal requesting that the following assignments of error be reviewed if this court does not uphold the trial court‘s dismissal of the complaint:
I. The trial court erred in determining thаt plaintiff/appellant‘s claim was not a medical claim governed by Ohio Revised Code Section 2305.113 subject to a one (1) year statute of limitations.
II. The trial court erred in not dismissing defendant/cross-appellant Laura Baugus on the grounds that plaintiff/appellant did not obtain service against her within one (1) year of the filing of the complaint.
IV. DISCUSSION
A. Appellant‘s Assignments of Error
{¶ 12} Both of appellant‘s assigned errors challenge the trial court‘s dismissal of the complaint. In his first assignment of error, appellant challenges the trial court‘s dismissal of his complaint for lack of standing. We first address the propriety of that dismissal pursuant to
{¶ 13} The action herein invоlves survival claims that, in accordance with
{¶ 15} In contrast, capacity concerns a determination as to whether an individual may properly sue, either as an entity or on behalf of another. Id. at ¶ 13. Hence, the issue here is whether the action was brought by a properly appointed administrator of the estate and pertains to capacity to sue. As this court has recently explained, while standing is a jurisdictional requirement, capacity to sue is not. Id. at ¶ 12-13; Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 24; Country Club Townhouses-N. Condominium Unit Owners Assn. v. Slates, 9th Dist. No. 17299 (Jan. 24, 1996) (“Capacity to sue or be sued does not equate with the jurisdiction of a court to adjudicate a matter; it is concerned merely with a party‘s right to appear in a court in the first instance.“); see also Benefit Mgt. Consultants, Inc. v. Gencorp, Inc., 9th Dist. No. 17488 (May 22, 1996) (“Capacity to sue is not jurisdictional.“). These issues are properly raised by a
{¶ 16} Because capacity to sue does not challenge the subject-matter jurisdiction of a court, the trial court erred when it dismissed appellant‘s complaint on these grounds pursuant to
{¶ 17} To the extent the trial court‘s decision can be construed as dismissing appellant‘s complaint, pursuant to
{¶ 18} In contrast to the resolution of a
{¶ 19} When a
{¶ 20} The trial court effectively converted appellees’
{¶ 21} Though having motions for summary judgment pending, the trial court expressly chose to review and grant appellees’ motion to dismiss filed June 29, 2011 and hold as moot all remaining motions. (June 11, 2012 Decision.) Because the trial court erred in dismissing this matter, pursuant to
B. First Conditional Cross-Assignment of Error
{¶ 22} In their first conditional cross-assignment of error, appellees assert the trial court erred in determining that appellant‘s first claim was not a medical claim governed by
{¶ 23} As defined by
{¶ 24} “A complaint may be dismissed under
{¶ 25} The complaint alleges appellees “negligently failed to exercise control over” and “negligently failed to provide for” the decedent‘s safety and health “when she was ejеcted face first from a wheel chair being operated and controlled by the Defendants.” (Apr. 7, 2011 Amended Complaint, 3.) The complaint further alleges that, as a result of appellees’ negligence, the decedent “fell out of her wheel chair onto a carpeted ramp” and sustained injuries. (Apr. 7, 2011 Amended Complaint, 3.)
{¶ 26} In concluding the first claim of appellant‘s complaint did not constitute a “medical claim,” the trial court stated the decedent fell out of her wheelchair on her way to lunch and that “[t]ransportation to lunch is not ancillary to, or ‘an inherently necessary party of’ [decedent‘s] treatment or care as required for the one year statute of limitations to apply.” (June 11, 2012 Decision 3.) To come to this conclusion, the trial court explicitly relied upon appellant‘s affidavit that was attached to his memorandum contra to appellees’ motion to dismiss.
{¶ 27} Given the procedural posture of this case as discussed above, we must conclude the trial court erred by considering evidence beyond the complaint to determine the applicable statute of limitations. The complaint, on its face, does not conclusively establish whether or not the claim asserted is a medical claim and whether a one-year or two-year statute of limitations is applicable in this case. Miller v. Village of Lincoln Hts., 197 Ohio App.3d 285, 2011-Ohio-6722 (1st Dist.) (unauthorized documents attached to memorandum in response to motion to dismiss cannot be considered when ruling on a
{¶ 28} Accordingly, we sustain appellees’ first conditional cross-assignment of error to the extent that the court erred by considering evidence beyond the complaint to
C. Second Conditional Cross-Assignment of Error
{¶ 29} In their second conditional cross-assignment of error, appellees assert the trial cоurt erred in not dismissing Baugus on the grounds that appellant did not obtain service upon her within one year of filing the complaint. Appellees’ second cross-assignment of error is the subject of appellant‘s motion to dismiss filed in this court on February 8, 2013.
{¶ 30} Because the trial court dismissed the entire complaint on an alternative basis, the trial court did not discuss whether or not service was timely perfеcted. This court has stated previously that it is well-established that a reviewing court will not ordinarily address issues that were not tried by the trial court. State ex rel. Pitz v. Columbus, 56 Ohio App.3d 37, 45 (10th Dist.1988). In such a situation, the appellate court should reserve judgment until such time as the undecided issues are considered by the trial court and that decision is appealed. Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 935 (10th Dist.2000), citing Warner v. Uptown-Downtown Bar, 6th Dist. No. WD-96-024 (Dec. 20, 1996).
{¶ 31} As a result, we conclude appellees’ second cross-assignment of errоr is not yet ripe and remand the matter for consideration of this and other issues. Mehta v. Ohio Univ., 194 Ohio App.3d 844, 2011-Ohio-3484 (10th Dist.) (issues not addressed by trial court deemed not yet ripe for appellate review and remanded to trial court for consideration). Our resolution of appellees’ second conditional cross-assignment of error renders moot appellant‘s motion to dismiss.
IV. CONCLUSION
{¶ 32} Based upon the foregoing, we sustain bоth of appellant‘s assignments of error. Additionally, appellees’ first conditional cross-assignment of error is sustained to the extent indicated in this decision. We decline to address for the first time issues not previously addressed by the trial court and, accordingly, conclude appellees’ second conditional cross-assignment of error is not yet ripe, which renders moot appеllant‘s motion to dismiss. We, therefore, reverse the judgment of the Franklin County Court of
Motion to dismiss rendered moot; judgment reversed and cause remanded.
BROWN and DORRIAN, JJ., concur.
_____________________________