REECE POWERS III, Aрpellant, - vs - STEVEN K. DANKOF, et al., Appellees.
CASE NO. CA 24505
IN THE COURT OF APPEALS SECOND APPELLATE DISTRICT OF OHIO MONTGOMERY COUNTY
2011-Ohio-6180
[Cite as Powers v. Dankof, 2011-Ohio-6180.]
CIVIL APPEAL FROM MONTGOMERY COUNTY COURT OF COMMON PLEAS Case No. 2010 CV 05802
Freund, Freeze & Arnold, Neil F. Freund, Shannon K. Bockelman, Fifth Third Center, 1 South Main Street, Suite 1800, Dayton, Ohio 45402-2017, for appellees
HENDRICKSON, J.
{¶1} Plaintiff-appellant, Reece Powers III, appeals the decision of the Montgomery County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, Steven K. Dankof, et al. For the reasons that follow, wе affirm the decision of the trial court.
{¶3} Roughly one year later, on May 27, 2010, appellant filed a petition for bankruptcy in the United States Bankruptcy Court for the Southern District of Ohio. Appellant listed “potential legal malprаctice cases” in his debtor‘s schedule and statement of financial affairs. Thereafter, appellant filed the instant action against appellees, alleging legal malpractice and other related claims. On Novеmber 5, 2010, appellees moved for summary judgment, arguing appellant was not the real party in interest based upon the bankruptcy filing.
{¶4} On July 28, 2011, the trial court granted appellees’ motion after finding appellant lacked standing to assert the claim because he was not the real party in interest. The trial court explained that appellant‘s cause of action arose prior to the bankruptcy
{¶5} Appellant timely appeals, raising two assignments of error for review.
{¶6} Assignment of Error No. 1:
{¶7} “MR. POWERS IS THE REAL PARTY IN INTEREST AND HAS STANDING TO BRING THIS CLAIM.”
{¶8} As to apрellant‘s first issue, appellees argue that because appellant was under bankruptcy protection when he filed his claims against appellees, those claims are the property of the bankruptcy estate, mаking the bankruptcy trustee the real party in interest. Appellant, however, contends the bankruptcy trustee had full knowledge of the claims and chose to relinquish control of them to appellant when the trustee “indicated he would sеttle [the] bankruptcy estate without reference to [these claims.]” Thus, appellant asserts he has the legal right to pursue the claims and the trial court erroneously granted summary judgment on this matter.
{¶9} An appellate court reviews аn award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336. We apply the same standard as the trial court, viewing the facts in the case in a light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Innovative Technologies Cоrp. v. Advanced Mgt. Technology, Inc., Montgomery App. No. 23819, 2011-Ohio-5544, ¶28.
{¶10} Pursuant to
{¶11} “(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can comе to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. To prevail on a motion for summary judgment, the moving party must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. The non-moving party must then present evidence that some issue of material fаct remains for the trial court to resolve. Id.
{¶12} Resolution of this appeal requires us to apply federal bankruptcy law. Once a bankruptcy case is filed, all property, including civil causes of action, is property of thе bankruptcy estate.
{¶13} It is undisputed that when appellant filed his Chapter 7 bankruptcy petition, his claims аgainst appellees became proper assets of the bankruptcy estate.
{¶14} Under the Bankruptсy Code, the trustee abandons property either: by giving notice of the proposed abandonment to creditors,
{¶15} Thus, in order to demonstrate that the trustee had abandoned the claims against appellees, “appellant had to articulate specifiс facts on summary judgment to show that one of the following three conditions had occurred: (1) that the trustee had given notice to creditors of the proposed abandonment of the claims; or (2) that a party in interest had requested аbandonment of the claims and notice to creditors was afforded; or (3) that the claims were scheduled under [
{¶16} While we are uncertain from appellant‘s brief whether he contends abandonment occurred under
{¶17} Under
{¶18} Here, appellant points to no evidence, nor does the record indicate, that the notice given for the creditors’ meeting either specifically identified property the trustee wished to abandon, or indicated that the trustee planned tо announce the identity of such assets at the creditors’ meeting.
{¶19} We further find appellant did not establish abandonment under
{¶20} Here, appellant failed to list the claims with any specificity in his schedule of assets. Instead, appellant listed “potential malpractice claims” on his initial voluntary bankruptcy petition and placed the value thereof at “0.00[.]” We find this statement would not clearly put the trustee, the creditors, nor the bankruptcy court on notice that these specific claims existed. As such, under no circumstanсes would
{¶21} Because the bankruptcy trustee has not abandoned this appeal under
{¶22} As appellant failed to demonstrate any genuine issue of material fact remained in dispute on this matter, we find the trial court did not err by granting summary judgment in favor of appellees.
{¶23} Appellant‘s first assignment of error is overruled.
{¶24} Assignment of Error No. 2:
{¶25} “APPELLANT SHOULD HAVE BEEN PERMITTED LEAVE TO AMEND TO SUBSTITUTE A PARTY IF NECESSARY.”
{¶26} In his second assignment of error, appellant argues he should have been permitted to join the bankruptcy trustee as the “real party in interest” pursuant to
{¶27} A decision to allow or prohibit ratification under
{¶28} Pursuant to
{¶29} Pursuant to
{¶30} Appellees filed their answer to appellant‘s complaint on August 18, 2010, at which time they objected that appellant was not the real party in interest. Pursuant to
{¶31} Despite being aware of the objection, appellant made no effort to cure the defect for more than five months, between appellees’ answer and the entry granting summary judgment. Upon review of pertinent Ohio case law, we find the trial court‘s five-month delay provided appellant with more than a reasonable amount of time to cure any standing defect. In fact, as appellees correctly note, most Ohio courts have found 30 days or less to be a reasonable time to cure said defect. See, e.g., Karr, 2004-Ohio-3597 (four weeks reasonable to cure
{¶32} Because the trial court provided appellant with ample time to cure the deficiency through the mechanisms provided for in
{¶33} Appellant‘s second assignment of error is overruled.
{¶34} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur
Powell, P.J., Ringland and Hendrickson, JJ. of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 5(A)(3), Article IV of the Ohio Constitution.
Copies mailed to:
John J. Scaccia
Neil F. Freund
Shannon K. Bockelman