Lusk v. Crown Pointe Care Ctr.Lusk v. Crown Pointe Care Ctr.
Case Information
*1
[Cite as
Lusk v. Crown Pointe Care Ctr.
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Jеffrey Wills Lusk, Individually and as :
Executor of the Estate of
Dorothy Jean Ross Lusk, Deceased, :
Plaintiff-Appellant, :
(C.P.C. No. 18CV-2941) v. :
(ACCELERATED CALENDAR) Crown Pointe Care Center et al., :
Defendants-Appellees. :
D E C I S I O N NUNC PRO TUNC [1] Rendered on April 16, 2019 On brief: Jeffrey Wills Lusk , pro se. Argued: Jeffrey Wills Lusk.
On brief: Poling Law and Brant E. Poling , for appellees Central Ohio Hospitalists, Inc., DBA MedOne Hospital Physicians, Daniel Miller, M.D., and Brian Pulliam, C.N.P. Argued: Zachary Hoover.
On brief: Tucker Ellis LLP, Ernest W. Auciello, and Jeffrey C. Sindelar, Jr. , for appellees Crown Pointe Care Center, SHCP Franklin, Inc., Foundations Health Solutions, Inc., Atlas Healthcare Solutiоns, Inc., Crista King, and Lynn Marie Gutridge.
APPEAL from the Franklin County Court of Common Pleas LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Jeffrey Wills Lusk, individually and as executor of the estate of Dorothy Jean Ross Lusk, deceased, appeals pro se from a judgment of the Franklin County Court of Common Pleas dismissing Lusk's wrongful death аnd survival claims against defendants-appellees, Crown Pointe Care Center et al. For the following reasons, we dismiss this appeal.
I. Facts and Procedural History In April 2018, Lusk, individually and as executor of the estate of his deceased
mother, initiated this action pro se against appellеes alleging wrongful death and survival claims. Appellees moved to dismiss Lusk's complaint because, as a non-lawyer, he was engaging in the unauthorized practice of law by filing the complaint pro se, the claims were time-barred, and the medical negligence claims were not accompanied by the required affidavit of merit. On July 9, 2018, the trial court dismissed Lusk's wrongful death claim based on its finding that Lusk's filing of that claim constituted the unauthorized practice of law, and it dismissed his survival claim based on its finding that the statute of limitations had run as to that claim. On July 10, 2018, Lusk filed a notice of appeal. Two days later, appellees
moved to dismiss the appeal on the basis that Lusk, a non-lawyer, may not litigate this appeal. On July 17, 2018, this court filed an entry agreeing that Lusk may not litigate the matter, but rather than dismissing the appeal at that time, permitted him a reasonable time to obtain counsel. The court noted that, if, within 30 days, counsel had not made an appearance on Lusk's behalf, the appeal would be dismissed. On August 1, 2018, Lusk filed a motion to defer ruling on appellees' motion to dismiss the аppeal until the case is submitted for decision. This court granted Lusk's motion, thereby permitting the appeal to be briefed and deferring a ruling on the issue of whether Lusk, as a non-lawyer, may prosecute any part of this appeal. On August 15, 2018, appellees moved for reconsideration of the decision to defer ruling on the pro se representation question, which this court denied. The appeal was argued and submitted to the court for decision on February 19, 2019. [2]
II. Assignments of Error Lusk assigns the following errors for our review:
[1.] The trial court erred to the prejudice of appellant by granting appellees' motion to dismiss, by failing to accept all allegations of the complaint as true, by failing to grant appellant all reasonable inferences from those facts, and by finding that it was beyond all doubt that appellant could prove nо set of facts that would entitle him to relief.
[2.] The trial court erred to the prejudice of appellant by ruling non-attorney executor appearing pro se constituted the unauthorized practice of law by failing to: recognize wrongful death and survival aсtions are separate; follow the Ohio Supreme Court non-attorney executor pro se exception; respect the executor-beneficiary fiduciary relationship; recognize that executor has all the rights of decedent, including right to appear pro se; recognizes executor has management rights that belonged to decedent; recognize executor appearing pro se exercised his own management rights rather than rights of estate or beneficiaries; recognize executor's personal liability for mismanagement that ensures proper management-and not a requirement that he hire an attorney to represent the beneficiaries' interests; recognize distinction between vesting management rights in executor and beneficial interests in beneficiaries; recognize the role of the fiduciary duties in regulating the executor-beneficiary relationship; recognize executor owes no duties to the beneficiaries; recognize an estate is very much unlike a corporation bеcause it is not a legal entity, as it cannot sue nor be sued; and recognize the executor is the beneficial interest in the corpus of the estate as its sole beneficiary.
[3.] The trial court erred to the prejudice of appellant by ruling non-attorney executor appearing pro se constituted the unauthorized practice of law by failing to recognize adult children are not presumed to have suffered from the loss of a parent, thus, are potential statutory beneficiaries not yet determined by Frаnklin County Ohio Probate Court to be real parties in interest.
[4.] The trial court erred to the prejudice of appellant by finding
the statute of limitations had run before decent knew her
See Morgan v. Eads
,
injuries were proximately caused by conduct of defendants despite the fact complaint conclusively shows on its face the action is not barred by the statute of limitations under the authority of the "discovery rule."
[5.] The trial court erred to the prejudice of appellant by failing to convert motion to dismiss to motion for summary judgment, as required by Civ.R. 12, because appellant introduced extrinsic evidence.
III. Discussion
{¶ 5} Before addressing Lusk's assignments of error, wе must first analyze the threshold issue of whether this matter is properly before this court. Lusk, a non-attorney, is proceeding pro se. He argues he is entitled to litigate this appeal of the trial court's dismissal of the wrongful death and survival claims based on his status as the sole bеneficiary under decedent's will. We disagree. While a party may represent himself in a court proceeding without the
assistance of a lawyer, the general rule is that a layperson may not represent another person
in a legal action.
Norwalk MK, Inc. v. McCormick
,
establishes such a claim in Ohio. Under this statute, "[w]hen the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages." Such an action must be "brought in the name of the persоnal representative of the decedent for the exclusive benefit of the surviving spouse, the children, * * * the parents of the decedent, * * * [and] the other next of kin of the decedent." R.C. 2125.02(A)(1). For the purpose of R.C. 2125.02, "personal representative" means either thе executor or administrator of the decedent's estate. Slater v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 17AP-453, 2018- Ohio-1475, ¶ 16 (10th Dist.). The requirement that a wrongful death action be brought in the name of the
decedent's personal representative, who is generally represented by counsel, prevents a
multiplicity of suits and facilitates distribution of any sums received from wrongful-death
claims to the various beneficiaries.
Peters v. Columbus Steel Castings Co.
, 115 Ohio St.3d
134,
survival action brought to recover for a decedent's own injuries before his or her death is
independent from a wrongful-death action seeking damages for the injuries that the
decedent's beneficiaries suffer as a result of the death, even though the same nominal party
[the personal representative] prosecutes both actions."
Peters
at ¶ 7. "Under the general
survival statute, R.C. 2305.21, a victim's right of action for personal injuries survives and
passes to hеr personal representative, and may be instituted for the benefit of the estate."
Shinaver v. Szymanski
,
responsibilities associated with his status as the executor of decedent's estate enable him,
as a non-lawyer, to litigate matters for the benefit of the estate because there are sufficient
checks on his management of the litigation. But this assertion fails to recognize the
distinction between thе administration of a decedent's estate and a wrongful death or
survival action being filed on behalf of the next of kin or the estate in the name of the
administrator as the nominal party. An administrator's duties pertaining to the
administration of an estate do not change the principles precluding a non-lawyer from
engaging in the practice of law.
Williams
, 10th Dist. No. 09AP-28,
IV. Disposition For the foregoing reasons, we dismiss this appeal.
Appeal dismissed.
SADLER and DORRIAN, JJ., concur.
Notes
[1] This decision replaсes, nunc pro tunc, the original decision released April 9, 2019, and is effective as of that date. This decision reflects the motion granted February 11, 2019, in which the case style was corrected to reflect executor, rather than administrator. Additionally, the decision notes Lusk as executor accordingly.
[2] After this appeal was submitted for decision, Lusk moved to supplement the record with a document that purports to show that no creditor claims have been filed against the decedent's estate. However, because the submitted document was not part of the record below, we deny Lusk's motion and do not consider it.