[Cite as Latimore v. Hartford Life & Acc. Ins. Co., 2012-Ohio-447.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


LILLIAN LOUISE LATIMORE                               :     JUDGES:
JULIET LATIMORE                                       :
                                                      :     Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellant           :     Hon. John W. Wise, J.
                                                      :     Hon. Julie A. Edwards, J.
-vs-                                                  :
                                                      :     Case No. 2011CA00227
HARTFORD LIFE AND ACCIDENT                            :
INSURANCE COMPANY, et al.                             :
                                                      :
                     Defendants-Appellees             :     OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2010CV03809

JUDGMENT:                                                 AFFIRMED IN PART; REVERSED AND
                                                          REMANDED IN PART

DATE OF JUDGMENT ENTRY:                                   January 30, 2012

APPEARANCES:

For Appellant:                                              For Appellee-Hartford Life and Accident
                                                            Insurance Company:

JULIET A. LATIMORE, Pro Se                                  MEGAN E. BAILEY
426 N. Franklin Ave.                                        41 S. High St.
Alliance, OH 44601                                          Columbus, OH 43215

                                                            CAROLINE H. GENTRY
                                                            One South Main Street, Suite 1600
                                                            Dayton, Ohio 45302

                                                            For Appellees-The Alliance Community
                                                            Hospital and Erik White, M.D.:

                                                            MICHAEL OCKERMAN
                                                            3737 Embassy Parkway
                                                            P.O. Box 5521
                                                            Akron, OH 44334
Delaney, P.J.

        {¶1} Plaintiff-Appellant Juliet A. Latimore appeals the February 23, 2011 and

September 30, 2011 judgments of the Stark County Court of Common Pleas.

        {¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides in pertinent part:

        {¶3} “(E) Determination and judgment on appeal.

        {¶4} “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

        {¶5} “The decision may be by judgment entry in which case it will not be

published in any form.”

        {¶6} This appeal shall be considered in accordance with the aforementioned

rule.

                      STATEMENT OF THE FACTS AND CASE

        {¶7} Lillian Louise Latimore was admitted to the Alliance Community Hospital

emergency room on December 23, 2009 because she was non-responsive.                Ms.

Latimore’s left lung collapsed while in the emergency room, allegedly due to a medical

procedure she received in the emergency room. Ms. Latimore was released from the

hospital on January 6, 2010. She was readmitted on January 7, 2010 and discharged

on January 25, 2010. Ms. Latimore passed away on January 27, 2010.

        {¶8} Ms. Latimore was covered under a group “Hospital Accident Insurance

Policy” underwritten by Defendant-Appellee Hartford Life and Accident Insurance

Company.     Ms. Latimore was the named insured under the Policy and the sole
beneficiary of the Policy. A daily benefit is payable under the Policy to the insured

when the insured suffers an “injury.” An “injury” is defined by the Policy as “bodily

injury resulting directly from accident and independently of all other causes which

occurs while you are covered under the policy” that results in the insured’s

hospitalization. The Policy does not cover loss from “sickness or disease” and further

states, “medical or surgical treatment of a sickness or disease [ ] is not considered as

resulting from injury.”

       {¶9} Plaintiff-Appellant Juliet A. Latimore is Ms. Latimore’s daughter and

power of attorney.

       {¶10} On March 30, 2010, Appellant filed a claim under the Policy on Ms.

Latimore’s behalf as her power of attorney.      Appellant claimed Ms. Latimore was

entitled to benefits under the policy for the days Ms. Latimore was hospitalized.

Appellant claimed Ms. Latimore’s collapsed lung, resulting in her hospitalization, was

due to an accident caused by her treatment in the emergency room.              Hartford

subsequently denied her claim.

       {¶11} On October 14, 2010, Appellant filed a complaint in the Stark County

Court of Common Pleas.       In her pro se complaint, Appellant requested damages

against Defendant-Appellee Hartford Life and Accident Insurance Company for its

failure to provide benefits to Ms. Latimore. Appellant also alleged medical negligence

against Defendants-Appellees Alliance Community Hospital and Erik White, M.D.

Appellant did not file an affidavit of medical negligence under Civ.R. 10(D)(2) with the

complaint or file a contemporaneous motion requesting an extension of time to file the

affidavit.
       {¶12} Alliance Community Hospital and Dr. White filed a motion for judgment

on the pleadings on January 3, 2011, for Appellant’s failure to state a claim upon

which relief could be granted and Appellant’s failure to comply with Civ.R. 10(D)(2).

Appellant did not oppose the motion. The trial court granted the motion on February

23, 2011 and dismissed Appellant’s claims against Alliance Community Hospital and

Dr. White with prejudice. On March 7, 2011, Appellant filed a motion for extension of

time to file the affidavit of merit. The trial court denied the motion on April 28, 2011.

       {¶13} Appellant filed a notice of appeal of the February 23, 2011 trial court

decision.   We dismissed Appellant’s appeal on June 6, 2011 for lack of a final

appealable order.

       {¶14} Hartford filed a motion for summary judgment on August 5, 2011. In its

motion, Hartford argued that Appellant lacked standing to bring the appeal, Appellant

was engaging in the unauthorized practice of law, and the terms of the Policy barred

Appellant’s claim. The trial court granted Hartford’s motion for summary judgment on

September 30, 2011.

       {¶15} It appears from Appellant’s pro se brief that Appellant is appealing both

the trial court’s February 23, 2011 and September 30, 2011 decisions.

       {¶16} Appellant’s brief fails to comply with App.R. 16. There is no statement of

the assignments of error presented for review, with reference to the place in the record

where each error is reflected pursuant to App.R. 16(A)(3).           We can glean from

Appellant’s brief that she contends the trial court’s decision to dismiss Alliance

Community Hospital and Dr. White for her failure to comply with Civ.R. 10(D)(2) was in
error. Appellant next argues that the trial court erred in granting Hartford’s motion for

summary judgment.

      {¶17} Alliance Community Hospital and Dr. White

      {¶18} Alliance Community Hospital and Dr. White filed its motion for judgment

on the pleadings, or in the alternative, a motion to dismiss on the grounds that

Appellant failed to state a claim upon which relief could be granted under Civ.R.

12(B)(6) and Appellant’s failure to file an affidavit of merit as required by Civ.R.

10(D)(2). The trial court granted the motion on February 23, 2011.

      {¶19} The failure to file a Civ.R. 10(D)(2) affidavit is contested by way of a

Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be

granted. Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379,

897 N.E.2d 147, ¶ 13.

      {¶20} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de

novo. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551

N.E.2d 981 (1990). A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint. State ex rel.

Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d

378 (1992). Under a de novo analysis, we must accept all factual allegations of the

complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

      {¶21} Pursuant to Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167,

2008-Ohio-5379, 897 N.E.2d 147, ¶9-15, we find the trial court did not err in
dismissing Appellant’s complaint against the Alliance Community Hospital and Dr.

White for failure to provide the required affidavit.

       {¶22} However, also pursuant to Fletcher, we find the trial court’s dismissal of

Appellant’s complaint against Alliance Community Hospital and Dr. White with

prejudice to be in error. The Ohio Supreme Court stated, ““[b]ecause courts are to

construe the Civil Rules to achieve a just result, * * *, a dismissal for failure to comply

with Civ.R. 10(D)(2) is without prejudice because it is an adjudication otherwise than

on the merits.” Id. at ¶ 20.

       {¶23} We also note that Appellees have directly challenged the adequacy of

Appellant’s complaint pursuant to Civ.R. 12 (B)(6), however, as the Supreme Court

noted in Fletcher, even if the trial court had correctly dismissed the case because,

without the accompanying affidavit, unsupported conclusions are not sufficient to

withstand such a motion, a dismissal for failure to state a claim is without prejudice

except in those cases where the claim cannot be pleaded in any other way. Id. at ¶ 14-

17.   A motion to dismiss goes towards the sufficiency of the complaint, and not

towards the merits of the underlying claim. Thus, the dismissal should have been

without prejudice in any event.

       {¶24} We therefore sustain Appellant’s appeal in part.           The trial court's

February 23, 2011 judgment dismissing the complaint is affirmed, but reversed to the

extent it was done with prejudice. The matter is remanded to the trial court to enter an

order dismissing the complaint against those parties without prejudice.

       {¶25} Hartford Life and Accident Insurance Company
      {¶26} Appellant also argues in her brief the trial court erred in granting

Hartford’s motion for summary judgment. We disagree.

      {¶27} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

      {¶28} “Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (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 come to but one conclusion,

and viewing such evidence most strongly in favor of the nonmoving party, that

conclusion is adverse to the party against whom the motion for summary judgment is

made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d

1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4

O.O3d 466, 472, 364 N.E.2d 267, 274.”

      {¶29} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35, 506 N.E.2d 212 (1987).

      {¶30} Hartford argued in its motion for summary judgment Appellant lacked

standing to bring the complaint before the court because Appellant was not the real

party in interest to the present action. We agree.

      {¶31} Civ.R. 17(A) reads, “[e]very action shall be prosecuted in the name of the

real party in interest.” We stated in Brumfield v. Eberly, 5th Dist. No. 03 CA 28, 2004-
Ohio-1402, ¶30, “[t]he test for determining who is a real party in interest is: ‘Who

would be entitled to damages?’ Young v. Merrill, Lynch, Pierce, Fenner & Smith, Inc.

(1993), 88 Ohio App.3d 12, 16, 623 N.E.2d 94.”

       {¶32} In this case, Ms. Latimore is the insured and named beneficiary of the

Policy. Appellant is not a named beneficiary of the Policy. Appellant argues through

the authority of her power of attorney, she is submitting a claim on Ms. Latimore’s

behalf and bringing a suit against Hartford for its failure to honor the claim. Appellant

states the power of attorney permits Appellant “to compromise, settle or to sue and

carry on any and all suits of legal proceedings” in Ms. Latimore’s name or for her

benefit. However, Appellant’s authority to act on behalf of Ms. Latimore by virtue of

the power of attorney lapsed upon Ms. Latimore’s death.         Santa v. Ohio Dept. of

Human Serv., 136 Ohio App.3d 190, 193, 736 N.E.2d 86 (8th Dist. 2000). Accord

Blackburn v. Ward, 4th Dist. No. 05CA3014, 2006-Ohio-406. There is no Civ.R. 56

evidence presented that Appellant is the executor of Ms. Latimore’s estate and is

bringing the suit on the estate’s behalf.

       {¶33} Accordingly, there is no genuine issue of material fact that Appellant has

no legal authority to act on Ms. Latimore’s behalf. We agree with the trial court that

Appellant is not the real party in interest to the present action and therefore has no

standing to prosecute this action against Hartford.

       {¶34} The trial court further found that because Appellant’s authority under the

power of attorney lapsed upon Ms. Latimore’s death, Appellant lacks legal authority to

represent Ms. Latimore pro se in a judicial proceeding. Appellant is not an attorney

admitted to practice law in the State of Ohio. Appellant is not a beneficiary under the
Policy nor has Appellant presented evidence that she is the executor of Ms. Latimore’s

estate.

      {¶35} R.C. 4705.01 states:

      {¶36} “No person shall be permitted to practice as an attorney and counselor at

law, or to commence, conduct, or defend any action or proceeding in which the person

is not a party concerned, either by using or subscribing the person's own name, or the

name of another person, unless the person has been admitted to the bar by order of

the supreme court in compliance with its prescribed and published rules.”

      {¶37} Upon our de novo review, we find that reasonable minds can only

conclude that Appellant is without standing or authority to bring this claim against

Hartford.

      {¶38} Accordingly, Appellant’s appeal is sustained in part and overruled in part.

The February 23, 2011 judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed only as to the trial court’s dismissal of Appellant’s

complaint with prejudice. The matter is remanded to the trial court to enter an order

dismissing Appellant’s complaint against Alliance Community Hospital and Erik White,

M.D. without prejudice.

By: Delaney, P.J.

Wise, J. and Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY

                                       HON. JOHN W. WISE

                                       HON. JULIE A. EDWARDS
               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

LILLIAN LOUISE LATIMORE                      :
JULIET LATIMORE                              :
                                             :
                     Plaintiff-Appellant     :
                                             :
-vs-                                         :   JUDGMENT ENTRY
                                             :
HARTFORD LIFE AND ACCIDENT                   :
INSURANCE COMPANY, et al.                    :
                                             :   Case No. 2011CA00227
                   Defendants-Appellees      :



       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed in part, and reversed and remanded

in part.    Costs to be split between Appellant and Appellees Alliance Community

Hospital and Erik White, M.D.




                                           HON. PATRICIA A. DELANEY



                                           HON. JOHN W. WISE



                                           HON. JULIE A. EDWARDS
