Mousa v. Mt. Carmel Health Sys., Inc.Mousa v. Mt. Carmel Health Sys., Inc.
Rendered on June 25, 2013
Plevin & Gallucci, Frank Gallucci, III, and Michael D. Shroge; Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellants.
Arnold Todaro & Welch Co., L.P.A., Gregory B. Foliano, and Karen L. Clouse, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Plaintiffs-appellants, Marium Mousa, individually and as the Administratrix of the Estate of Jeremiah Mousa, Deceased, and Alex Mousa, individually, appeal from the judgment of the Franklin County Court of Common Pleas granting a motion for reconsideration and entering judgment on the pleadings in favor of defendants-appellees, Dr. Nicholas John Behrendt, Mount Carmel Heath System, Inc., and Mount Carmel St. Ann‘s Hospital. For the following reasons, we reverse the judgment of the trial court.
{¶ 2} This medical malpractice action arises from the birth of Jeremiah Mousa on November 2, 2008, at a facility owned and operated by Mount Carmel Health System, Inc., and Mount Carmel St. Ann‘s Hospital. Jeremiah Mousa sustained brain damage from the delivery, which was performed by Dr. Behrendt, and Jeremiah died on December 6, 2008. He was survived by his parents, Marium and Alex Mousa.
{¶ 3} On November 2, 2009, appellants filed a complaint raising claims of wrongful death (Count I), survivorship (Count II), and loss of consortium (Count III). The complaint indicated that the suit was brought by Marium and Alex Mousa in their individual capacities and the Estate of Jeremiah Mousa, Deceased, with Marium Mousa as the administratrix. Appellants noted in the complaint that Marium Mousa was “seeking to be the representative of the Estate of Jeremiah Mousa, Deceased and will ratify this Complaint once authorized to do so.” (Complaint, ¶ 1.) Appellants also brought suit against Dr. Michael Sprague, Northeast Obstetricians and Gynecologists, Inc., Dr. Richard Marger, Dr. Andrew Bokor, Abramovitz & Bokor, M.D., Inc., and John Does Number 1-10.
{¶ 4} Dr. Marger, Dr. Bokor, and Abramovitz & Bokor, M.D., Inc., were dismissed from the proceedings on April 26, 2010. On February 25, 2011, Marium Mousa was appointed as administratrix of the decedent‘s estate, and she ratified the complaint in her capacity as administratrix.
{¶ 5} Pursuant to
{¶ 7} The trial court concluded that appellees raised a standing defense and noted that standing cannot be waived. The trial court determined that appellant lacked standing and dismissed the wrongful death claim because Marium Mousa had not been appointed administratrix within the applicable two-year statute of limitations. The trial court dismissed all remaining claims on grounds that they are “a corollary” of the “wrongful death issue.” (Aug. 28, 2012 Decision, 1, fn. 1.)
II. ASSIGNMENT OF ERROR
{¶ 8} Appellants filed a timely notice of appeal and assign the following as error:
The trial judge erred as a matter of law by granting a motion for reconsideration and entering judgment on the pleadings in favor of defendant[s]-appellees.
III. DISCUSSION
{¶ 9} In their single assignment of error, appellants contend that the trial court erred by granting a motion for reconsideration and entering judgment on the pleadings in favor of appellees. We agree.
{¶ 10} Pursuant to
{¶ 11} Appellants brought a wrongful death claim, pursuant to
{¶ 12} A party must have both standing and capacity to sue to commence a lawsuit. Standing to sue is required to invoke the jurisdiction of the common pleas court in every lawsuit, and standing is to be determined at the commencement of suit. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 24. A person lacks standing unless he has a real interest in the subject matter of the action. Id. at ¶ 22. A person has such an interest if he has suffered an injury by the defendant. Id. at ¶ 36. See also State ex rel. Walgate v. Kasich, 10th Dist. No. 12AP-548, 2013-Ohio-946, ¶ 11 (noting that a plaintiff has standing to sue if he demonstrates
{¶ 13} In addition to standing, a party must have the capacity to sue. Natl. Crime Reporting, Inc. v. McCord & Akamine, LLP, 177 Ohio App.3d 551, 2008-Ohio-3950, ¶ 7 (10th Dist.). Capacity concerns a determination as to whether an individual may properly sue, either as an entity or on behalf of another. Natl. City Mtge. v. Skipper, 9th Dist. No. 24772, 2009-Ohio-5940, ¶ 11. See also Wanamaker v. Davis, 2d Dist. No. 2005-CA-151, 2007-Ohio-4340, ¶ 42 (stating that capacity to sue refers to the eligibility of a person to commence an action). Capacity to sue is not a jurisdictional requirement. Skipper at ¶ 11. Lack of capacity is an affirmative defense. Id. at ¶ 12. Therefore, pursuant to
{¶ 14} Appellants challenge the trial court‘s decision to enter a judgment on the pleadings in favor of appellees on grounds that Marium Mousa lacked standing to bring a wrongful death action on behalf of the estate of Jeremiah Mousa. Appellants argue that the issue of Marium Mousa‘s authority to bring the wrongful death action pertains to whether she had capacity to sue, and appellants argue that appellees waived that issue by failing to raise it as an affirmative defense in their answer.
{¶ 15} Appellees argue that they have raised a standing defense, and they assert that standing did not exist at the time the complaint was filed because there was no estate opened or administrator appointed on behalf of the decedent. Appellees also argue that, although Marium Mousa was eventually appointed personal representative of the decedent‘s estate, the appointment had no impact on her standing to bring the
{¶ 16} A review of Mohat reveals that it was not based on principles of standing, but, rather, was decided on grounds that no party had authority, i.e., capacity, to bring a wrongful death suit on behalf of the beneficiaries. Recently, the same court in Klinger v. Corr. Corp. of Am., Inc., N.D.Ohio No. 4:11cv2299 (Dec. 12, 2012), held that a personal representative need not be appointed by a court before filing a wrongful death suit. The Klinger court held that when an individual brings suit prior to being appointed by the court as an administrator that that person has capacity to sue and concluded that a party may proceed with a wrongful death claim upon the proper appointment of a personal representative.
{¶ 17} Preceding Mohat, the Supreme Court of Ohio held in Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 647-48 (1939), that where a widow had brought a wrongful death suit under the mistaken belief that she was the administratrix of her deceased husband‘s estate, she was allowed to proceed in her suit even though she received her appointment after the statute of limitations had expired. The Supreme Court determined that the widow‘s status as administratrix concerns her capacity to sue. Id. at 648.
{¶ 18} In Stone v. Phillips, 9th Dist. No. 15908 (Aug. 11, 1993), the court followed Douglas and held that a trial court was not required to dismiss a wrongful death suit on grounds that the administrator of the decedent‘s estate was not appointed until after the complaint was filed and even though the decedent‘s estate had not been opened at the time the complaint was filed. In De Garza v. Chetister, 62 Ohio App.2d 149, 155 (6th Dist.1978), the court held that when a question exists as to whether an individual in a wrongful death action had been properly appointed an administrator of a decedent‘s
{¶ 19} Here, the decedent‘s parents, Marium and Alex Mousa, are the injured parties in the wrongful death action and, as beneficiaries of the decedent, are the real parties in interest. Thus, Marium and Alex Mousa have standing to bring a wrongful death action in this matter. Accordingly, we find the wrongful death action does not fail for lack of standing.
{¶ 20} As discussed above, an individual bringing suit must have capacity to sue to be a proper party. Consistent with Douglas and Klinger, when a wrongful death action is filed, pursuant to
{¶ 21} Given our decision on the trial court‘s disposition of the wrongful death claim, we conclude that the trial court erred by granting the motion for reconsideration and entering judgment on the pleadings in favor of appellees on all claims. Therefore, we must reverse the judgment of the trial court. For all these reasons, we sustain appellants’ single assignment of error.
IV. CONCLUSION
{¶ 22} Having sustained appellants’ single assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand the matter to that court for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
KLATT, P.J., and VUKOVICH, J., concur.
VUKOVICH, J., of the Seventh Appellate District, sitting by assignment in the Tenth Appellate District.
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