Taneff v. HCR ManorCare Inc.Taneff v. HCR ManorCare Inc.
DECISION AND JOURNAL ENTRY
{¶1} Appellant Patty Leaver, administratrix of the estate of Anna Nestor, was substituted for Thomas Taneff as the proper party to this appeal. Ms. Leaver appeals the trial court’s grant of summary judgment in favor of Appellees, HCR ManorCare Services, Inc., HCR ManorCare, Inc., Heartland Employment Services, LLC, ManorCare of Barberton, OH, LLC, and Sara Burton (collectivеly, “ManorCare“). We reverse.
I
{¶2} Anna Nestor was a nursing home patient at ManorCare for 28 days before she died on November 19, 2011. Her daughter, Ms. Leaver, filed a wrongful death action against ManorCare on November 18, 2013, immediately prior to the two-year statutory time bar for wrongful death claims.
{¶3} Ms. Leaver filed the wrongful death suit individually, and on behalf of her mother’s wrongful death beneficiaries. At the timе of filing, no estate had been opened for Ms. Nestor, and Ms. Leaver was not the duly appointed personal representative of her mother’s estate. Ms. Leaver hired probate attorney Thomas Taneff and began the process of opening an estate for her mother after she filed suit. Mr. Taneff was appointed special administrator of Ms. Nestor’s estate аfter the complaint was filed.
{¶4} ManorCare moved for judgment as a matter of law on the ground that Ms. Leaver lacked standing to bring the wrongful death suit. ManorCare argued that Ms. Leaver lacked standing because she had not demonstrated that: (1) there was an estate, and (2) she was the duly appointed representative of the estate. Ms. Leaver did not respond to ManorCare’s motion, but instead filed a second amended complaint,1 substituting Special Administrator Taneff as the named party representative.
{¶5} ManorCare again moved for judgment as a matter of law, challenging Ms.
{¶6} Ms. Leaver now appeals.2 She raises two assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF IN A WRONGFUL DEATH ACTION MUST BE APPOINTED PERSONAL REPRESENTATIVE OF THE ESTATE IN ORDER TO HAVE STANDING.
{¶7} In her first assignment of error, Ms. Leaver argues that the trial court erred when it held that
{¶8} “Standing is a preliminary inquiry that must be made before a court may consider the merits of a legal claim.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010–Ohio–6036, ¶ 9. Whether standing exists is a question of law that an appellate court reviews de novo. State ex. rel. Ohio Chapter of Associated Builders & Contractors, Inc. v. Barberton City School Dist. Bd. of Edn., 188 Ohio App.3d 395, 2010-Ohio-1826, ¶ 10 (9th Dist.).
{¶9} Likewise, this Court reviews a trial court’s grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under
(1) [n]o 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 aрpears from the evidence that reasonable minds can come 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., 50 Ohio St.2d 317, 327 (1977).
{¶10} “The right to sue for wrongful death in Ohio is a statutorily created right.” Tennant v. State Farm Mut. Ins. Co., 81 Ohio App.3d 20, 23 (9th Dist. 1991) citing Rubeck v. Huffman, 54 Ohio St.2d 20, 22 (1978). The wrongful death statutes are codified in
{¶11} Here, the trial court’s grant of summary judgment to ManorCare is based on Ms. Leaver’s alleged lack of standing under
{¶12} “Capacity concerns a determination as to whether an individual may properly sue, either as an entity or on behalf of another.” Mousa at ¶ 13, citing Natl. City Mtge. v. Skipper, 9th Dist. Summit No. 24772, 2009-Ohio-5940, ¶ 11. “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.” Skipper at ¶ 11 quoting Country Club Townhouses North Condominium Unit Owners Assn., supra at *3.
{¶13} Standing, on the other hand, is jurisdictional and involves whether a party has a personal stake in the outcome of an action, rather than a representative or nominal interest in the claim. Reynolds at ¶ 13-14. A party has standing if it is a real party in interest. Id. A real party in interest is an individual who has suffered an injury in a matter. Id., citing Mousa at ¶ 12.
{¶14} With respect to the requirements of
{¶15} ManorCare argues that children of the decedent do not inevitably have standing under the wrongful death statute. In support of this argument, ManorCare cites to cases for the proposition that, when a statute conveys standing, the constitutional
{¶16} Similarly,
{¶17} The first assignment of error is sustained.
Assignment of Error Number Two
THE TRIAL COURT ERRED IN FINDING THAT RELATION BACK DID NOT APPLY TO THE SECOND AMENDED COMPLAINT.
{¶18} In her second assignment of error, Ms. Leaver argues that the trial court erred when it held that the second amended complaint filed by Special Administrator Taneff did not relate back to the original complaint, and consequently was time barred under the two-year limitation on wrongful death actions in
{¶19} ManorCare argues that relation back should not be permitted here because the wrongful death statute must be strictly construed. According to ManorCare, when the suit is not brought in the name of the personal representative in the first instance, the complaint fails to state a cause of action and is a nullity, so that there is no complaint to which a subsequent pleading may relate.
{¶20} ManorCare’s argument for strict construction of
{¶21} In Douglas, the Supreme Court of Ohio held that an amended wrongful death petition related back to the filing of the original complaint, and the action was deemed commenced within the statutory time limit, when the wrongful death plaintiff amended her petition to show that she was appointed administratrix after the limitation period had expired. Id. at paragraph one of the syllabus. In so holding, the Court considered whether the requirement of the wrongful death statute that the prosecution of the actiоn be in the name of the personal representative is an essential term. The Court found that it was not an essential term, but rather found that the requirement is “no part of the cause of action itself.” Id. at 647. Specifically, the Court stated:
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 action 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 thаt the action, if brought, shall be brought 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 haled into court to an[s]wer for the same wrong.
{¶22} Indeed, both the Supreme Court of Ohio and this Court have said that the wrongful death statute should not be strictly construed, but rather “is prоcedural and remedial in nature and should be given a liberal construction.” Stone v. Phillips, 9th Dist. Summit No. 15908, 1993 WL 303281, *2 (Aug. 11, 1993) citing Kyes v. Pennsylvania Rd. Co., 158 Ohio St. 362 (1952), paragraph two of the syllabus. We have recognized that
{¶23} In Stone, this Court noted that Ohio courts have examined procedural issues surrounding the amendment of the original complaint, and the doctrine of relatiоn back. Stone at *3. “In addressing these questions, the courts balance the statute’s avowed purpose to compensate beneficiaries with its technical requirements.” Id. We explained that, “[i]n addressing amendment of wrongful death complaints, this court stressed that ‘[j]ustice abhors the loss of causes of action by pure technicalities.‘” Id., quoting Bell v. Coen, 48 Ohio App.2d 325, 327 (9th Dist.1975). “In that tradition, case law in Ohio illustrates that trial courts liberаlly permit pleadings to be amended to cure a defect, so that determinations may be made on the merits.” Stone at *3, citing Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 107 (1907); Patterson v. V&M Auto Body, 63 Ohio St.3d 573, 577 (1992).
{¶24} We also have recognized that an amendment with respect to a plaintiff’s capacity to sue – such as the amendment at issue here – relates to the right of action, and not the substantive cause of action. Stone at *3, citing Douglas, 135 Ohio St. at 647. “Therefore, substitution of parties is the proper remedy, rather than dismissal of the action.” Id., citing De Garza v. Chetister, 62 Ohio App.2d 149, 155 (6th Dist.1978).
{¶25} Respecting the doctrine of relation back, we said that the general rule is that the appointment of the administrator relates back to the filing of the petition. Stone, 1993 WL 303281 at *3, citing Archdeacon at 106-107. Relation back is not applied only if a new cause of action is introduced, such that the defendant would suffer prejudice. Id., citing Burwell v. Maynard, 21 Ohio St.2d 108, 111 (1970).
{¶26} Remaining mindful of the liberal amendment and relation back allowances for wrongful death petitions, we held in Stone that an amended wrongful death complaint related back to the original filing date. Stone at *4. In that case, the mother of the decedent and grandmother of the decedent’s three minor children filed a wrongful death petition and referred to herself as “Executrix of the Estate” and “Guardian” of the children. Id. As in the instant case, there was no estate in existence at the time of filing of the original complaint, and no guardian had yet been appointed for the children. Id. When the plaintiff later sought amendment to change the caption on the complaint, her attorney’s name was substituted as personal representative, and she had been duly appointed guardian. Id. We held that relation back was approрriate when: (1) the record contained no evidence that the plaintiff acted other than on the reasonable belief that, as the closest relative of the decedent, she would be appointed administrator; (2) there was no evidence that the defendant was prejudiced by the substitution of party names where all of the real parties in interest and claims remained the same; and (3) all of the beneficiaries were appropriately represented in the suit, so that the defendant did not need to fear being sued repeatedly for the same alleged wrong. Id.
{¶27} Stone is strikingly similar to this case and compels a similar conclusion. Here, Ms. Leaver is an immediate relative of the deceased, and is explicitly one of the beneficiaries of
{¶28} We do not believe our conclusion to be irreconcilably at odds with Ramsey v. Neiman, 69 Ohio St.3d 508 (1994). In Ramsey, four Justices, the majority, joined in the concurring opinion and concluded that, under the express language of
{¶29} Ms. Leaver’s second assignment of error is sustained.
III
{¶30} Ms. Leaver’s assignments of еrror are sustained. The judgment of the Summit County Court of Common Pleas is reversed, and this matter is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
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 Summit, 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 upоn 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.
Costs taxed to Appellees.
BETH WHITMORE
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
MICHAEL J. FULLER, JR. and D. BRYANT CHAFFIN, Attorneys at Law, for Appellant.
ROBERT M. ANSPACH, J. RANDALL ENGWERT, and DAVID J. BORELL, Attorneys at Law, for Appellees.