*1 Whitley al., Bend Appellants, v. River’s et Appellees. al., et
Health
Care
Whitley
Care,
Bend Health
River’s
[Cite as
1217,
Lundberg Cupp, JJ., concur. O’Connor, Stratton, Lanzinger, and J., separately. concurs O’Donnell,
Brown, C.J., J., dissent. Pfeifer, concurring. J.,
O’Donnell, having as appeal decision to dismiss this majority’s I concur with the However, I in the language judg- include accepted. improvidently been as not be cited appeals ment that the entry ordering parties to this action. authority except by
Lundberg Stratton, J., foregoing opinion. in the concurs C.J., dissenting. Brown, bar, court, over the case at view, jurisdiction my having asserted record, briefs, merit and the I its merits. have considered
should decide court and the court of trial oral concluded arguments disaffirm. this court should legal premise decisions on a based their having improvidently as been appeal from dissent the dismissal therefore accepted. Virginia appointed West In this Marcella Christian been February mother, Ethel On of her Christian.
serve as Ethel’s capacity purportedly April Ethel died. On River’s defendants-appellees, complaint against filed a Marcella guardian, (“River’s or Care, Bend” Health L.L.C. and River’s Bend Bend Health Care “defendants”), Point, operated which nursing home South Ohio. The com- plaint against asserted tort claims River’s during Bend based on Ethel’s care *2 11, 2004, period February April through 2004. The River’s Bend defendants do dispute they not that were process complaint. served and answered the 8, 2005, June estate, On motion of the coadministrators of Ethel’s
{¶ 5} the trial court substituted Ethel’s estate as the named March plaintiff.1 On 41(A). voluntarily dismissed all by claims as authorized The deny they objected any defendants do not that during never time pendency proceedings of these to the court’s substitution of Ethel’s estate as the plaintiff. named February On the coadministrators of Ethel’s filed a estate
complaint asserting claims similar to those stated in the earlier complaint. They permitted asserted that Ohio law them to refile the action within of year one voluntary statute, dismissal of the first complaint reference to the saving R.C. —a 2305.19. law, There is no as a dispute that matter of Marcella’s status as a at the terminated death of her was, mother that the 2005 complaint filed, styled
when in defectively Christian, identifying as “Ethel by Y. Guardian, through Conservator and Marcella E. Christian.” granting summary judgment action, however, to River’s Bend the refiled trial court reasoned that the a “nullity,” rendering was saving statute to unavailable the estate. The court agreed decision, of a split accepting premise
{¶
that
8}
“the
by
death,
action commenced
the guardian, after her ward’s
nullity.”
is a
Care,
Whitley
145,
because the incorrectly identified the plaintiff as Ethel Chris- tian, by through guardian, her former rather than the of estate Ethel 3(A) Christian. Civ.R. specifically provides that civil action is “[a] commenced court, a with the if is year.” service obtained within one * * * Similarly, statute, of purposes saving action is commenced “[a]n * * filing petition *, office of the clerk service is obtained within one stated, good shown, 1. The of order substitution “For cause The Estate Ethel V. granted Christian, deceased, to itself leave for Ethel V. to become Plaintiff’ the case. Ethel, daughters Mazella, Whitley Two appointed other Marion C. and Patricia A. had been serve as coadministrators of estate. that deny Bend do the River’s defendants 2305.17. Here year.” R.C. was in 2005 and that service common pleas was filed express of the text Accordingly, application year one thereafter. obtained within an was 3(A) conclusion that action compels 2305.17 and R.C. been having legal question whether separate, It is commenced. brought by person been commenced, having to attack for was vulnerable prosecute action. lacking necessary capacity 17(A) the name prosecuted action shall be provides: “Every * * * ground action shall be dismissed on real in interest. No party until reasonable party name of the real interest prosecuted it is not objection for ratification commencement time has allowed after been of, in interest. party real Such by, joinder or substitution action or if the same effect as action ratification, or shall joinder, substitution *3 in party in the name of the real interest.” been commenced express inconsistent with the nullity theory logically of is Adoption the {¶ 11} 17(A). Here, to substitute the family neglected of terms Civ.R. the objected to the of Ethel prosecution as Bend could have plaintiff, estate River’s the that former guardian claims on basis the by Christian’s tort former objected, the interest.” Had River’s Bend party was not “real guardian 17(A) “a of the action until reasonable time precluded [had] dismissal Instead, family for to that error. counsel the Christian been allowed” correct error, the trial court substituted the corrected acknowledged pleading the objection the apparently by of as the without plaintiff, estate Ethel Christian fully by the substitution the trial court was consistent Accordingly, defendants. 17(A). 17(A), Similarly, pursuant the to Civ.R. with the letter and spirit plaintiff, the the estate as the action was after trial court’s substitution of if in the name of thereafter to be considered “as the action had been commenced real party the interest.” of trial court the court accepted The if filed a former on of
premise nullity that a is behalf rather personal who cause of than person possessed deceased The of is Barnhart v. premise of the estate. that Ohio representatives genesis 142, (1978), 59, 589, 7 372 N.E.2d which held Schultz 53 Ohio St.2d O.O.3d has who named once the statute of limitations has deceased expired, personal as sole defendant cannot amend person defendant, representative of the even service on representative deceased complaint. year was within one obtained v. case, however, in 1983. Baker expressly was overruled The Barnhart 104, (1983), 125, 371, syllabus. 447 This 4 Ohio 4 OBR N.E.2d McKnight St.3d outright away than to nibble it to overrule Barnhart “preferable court found 1220 at
years overly unnecessarily technical and rule of severe law announced Baker, 129, 371, 447 that case.” Id. at 4 OBR In N.E.2d expressly rejected nullity that a theory, holding improperly who has, fact, names a deceased person the sole defendant 3(A). an action pursuant rejecting nullity commenced theory, quoted approval Baker court with appellate court’s Barnhart: “ original complaint ‘The in this opinion, our did not name the wrong Rather, as a party party defendant. the correct was designated, but the designation in light amounted to misnomer the fact the named defendant was then The fiduciary deceased. eventual substitution of the of the alleged tortfeasor’s estate was not a cause of action and did not involve an in any entire of the change parties. contrary, On the simply amendment sic).” legal Baker, substituted the successor decedent.’ 4 (Emphasis Ohio 104, 3, (Jan. 447 fn. quoting 26, 1977), St.3d N.E.2d Barnhart v. Schultz C-75377, Hamilton No. App. WL 199632. Baker court The further observed that the substituted defendant had
timely
notice
the claim before
statute
expired
of limitations had
suffered no prejudice through her substitution as
personal
representative of
(1982),
Quoting Hardesty
Cabotage
decedent.
v.
Ohio St.3d
“
noted,
OBR
438 N.E.2d
the Baker court
a result comports
‘Such
with
the purpose of the Civil Rules.
spirit
“The
the Civil Rules
is
resolution of
merits,
cases
their
upon
pleading deficiencies.”
Peterson
Teodosio
(1973),
262, 269],
St.2d
Ohio
O.O.2d
[63
defendant. see no to extending reasoning of Baker to here, i.e., the factual circumstances at issue complaint improperly where the names as former of correctly naming instead formal representatives of the decedent’s estate. Under nullity theory adopted of the court of appeals contrary to the express language of Civ.R. when a putative legal
representative lacks legal capacity to act on behalf of plaintiffs estate in filing complaint, trial court would lack authority to allow the amendment of pleadings and the substitution of a correct party being legally no recogniz- —there able no pending legal there would be no could be any amended nor action in which parties could be substituted. Presum- ably, only remedy to correct the initial pleading error would be the of a filing separate, and the commencement of a new action. That result is inconsistent with spirit of the Civil Rules. Moreover, if nullity analysis accepted, preserve defendant could
the defense of lack capacity to prosecute it, claims without specifically pleading as illustrated by the result reached by the trial court and the court of this case. That directly result contradicts the express language 9(A), states, which “When a party desires to raise an issue as to the legal existence of any party or the capacity any party to sue or be sued or authority of a party to sue or be sued a representative capacity, he shall do so by specific * * negative addition, averment logical extension of nullity theory permit a defendant to participate “null” proceedings after of a defectively styled complaint and thereafter collaterally attack a resulting judg- ment. None of these possible consequences is consistent with “expeditious justice” administration of that the Civil Rules were adopted to ensure. This court should therefore expressly disapprove application of a
nullity theory factual circumstances such as those presented here. Should the viable,2 nullity theory remain unfortunate and unintended consequences likely will occur future eases. Accordingly, dissent. J.,
Pfeifer,
foregoing
concurs
opinion.
*5
have,
2.
Appellate
Both the Third and
my
improperly,
the Fifth
Districts
view
sanctioned
Ctr.,
application
nullity theory.
Estate
v. St. Rita’s Med.
1-07-53,
App.
Allen
No.
of Newland
Giorgianni curiae, Flowers, amicus Paul reversal for Ohio Association urging W. Justice.