[Cite as Burchett v. Larkin, 192 Ohio App.3d 418 2011-Ohio-684.]




                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY


BURCHETT et al.,                                     :

        Appellants,                                  :    Case No. 09CA3305


        v.                                           :

LARKIN et al.,                                       :             DECISION AND JUDGMENT
                                                                   ENTRY
        Appellees.                                   :

_________________________________________________________________

                                           APPEARANCES:

James H. Banks, for appellants.

Stephen C. Rodeheffer, for appellees.
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-7-11

        Per Curiam.

        {¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that ordered

Steven L. Burchett and Jean Burchett, plaintiffs below and appellants herein, along with their

attorney, James H. Banks, to pay attorney fees to Patricia Larkin and Unity One Home Health

Care, defendants below and appellees herein.

        {¶ 2} Appellants raise the following assignments of error:

        FIRST ASSIGNMENT OF ERROR:

                The trial court’s judgment that the claims of plaintiffs-appellants are
SCIOTO, 09CA3305                                                                                  2

       frivolous because appellants were not the real party in interest, and the
       court’s award of attorney fees on that basis, is contrary to law and equity
       such that the judgment below must be reversed.

       SECOND ASSIGNMENT OF ERROR:

              The trial court’s award of attorney fees is contrary to law and equity
       such that the judgment below must be reversed.

       THIRD ASSIGNMENT OF ERROR:

               The trial court’s refusal to consider appellants’ motion to set aside
       its judgment entry upon remand by this court for such reconsideration is
       contrary to law and requires remand of the for [sic] such consideration.

       {¶ 3} On July 27, 2006, Cheryl L. Burchett died in an all-terrain vehicle accident. Amy

Papesh of the law firm Elk and Elk subsequently was appointed the administrator of the decedent’s

estate. On August 27, 2007, the decedent’s son, Steven J. Burchett, individually and as

administrator of the estate of Cheryl L. Burchett, filed a wrongful-death complaint against Jerry L.

Larkin and five John Does (Burchett I).

       {¶ 4} On July 24, 2008, the decedent’s husband, Steven L. Burchett (individually and/or

as spouse of Cheryl L. Burchett, deceased), and Jean Burchett filed a wrongful-death complaint

against Jerry Larkin, Patricia Larkin, Unity One Home Health Care, and Scioto County (Burchett

II).

       {¶ 5} On August 6, 2008, Jerry Larkin filed a motion to dismiss the Burchett II

complaint. He asserted that a complaint had already been filed by the administrator for the

decedent’s wrongful death, i.e., Burchett I. He further requested attorney fees.

       {¶ 6} On August 20, 2008, appellants filed an opposing memorandum and alternatively

requested the trial court to consolidate the action with Burchett I. Appellants maintained that

when they filed Burchett II, they were unaware of Burchett I.
SCIOTO, 09CA3305                                                                                     3

       {¶ 7} On August 26, 2008, the court found that “the within cause is a re-filed action (case

number 07-CIC-045) and was originally set before Judge William T. Marshall.” The court

therefore transferred Burchett II to Judge Marshall.

       {¶ 8} On February 9, 2009, the trial court dismissed Burchett II due to appellants’ failure

to institute the action in the administrator’s name.

       {¶ 9} On February 25, 2009, appellees filed a motion for attorney fees. At the

attorney-fee hearing, Banks testified that his clients retained him shortly before the statute of

limitations was due to expire. He stated that he was not aware that a wrongful-death action had

already been instituted or that an estate had been opened. He further testified that his clients had

advised him that no other lawsuits were pending. He admitted that he filed the action without

obtaining an appointment for either client to be the administrator, but stated that he did so to

protect against the statute of limitations. Banks admitted that he received Rodeheffer’s August 1,

2008 letter, in which Rodeheffer advised Banks that another lawsuit was pending, and that he did

not immediately respond to this letter. Banks stated that he did, however, respond to

Rodeheffer’s August 12, 2008 letter. Banks’s letter states:

               Your position that this lawsuit is frivolous under Rule 11 and/or R.C.
       2323.51 is baseless, as is your position that my clients are not proper parties in this
       action and that the same is duplicative of another lawsuit filed by my client’s son.
       Further, although I have reviewed the docket sheet you reference in your letter, I do
       not see where your clients have previously been named defendants in a matter
       involving mine and/or involving the estate of Cheryl Burchett.

       {¶ 10} Banks testified that he did not agree with Rodeheffer that his clients were not

proper parties. Banks observed that in Burchett I, Steven J. Burchett was named the plaintiff as

the administrator of the estate, even though he had not been appointed. Banks therefore

questioned the validity of Burchett I and continued to pursue Burchett II in order to preserve his
SCIOTO, 09CA3305                                                                                    4

clients’ rights.

          {¶ 11} The decedent’s husband, Steven L. Burchett, testified that he initially retained the

law firm of Elk and Elk to represent him, but he subsequently notified the law firm that he did not

want it to represent him. He went to Banks after hearing that the statute of limitations might

expire soon. He stated that when he went to Banks, he did not know whether an estate had been

opened or whether another lawsuit was pending.

          {¶ 12} On July 7, 2009, the trial court found that appellants’ complaint “is totally devoid

of merit.” The court observed that appellants’ attorney did not request the probate court to

appoint his client the administrator until the court dismissed the complaint. The court further

stated that Banks “cannot escape the fact that he filed a lawsuit knowing that [appellants] were not

the real party in interest for prosecuting the claim.” The court therefore determined that the case

was frivolous and awarded appellees attorney fees. On July 31, 2009, appellants filed a notice of

appeal.

          {¶ 13} On November 2, 2009, appellants filed a motion to stay the proceedings and to

remand the case “for the limited purpose of permitting the Trial Court to consider Appellants’

motion for reconsideration of its order based upon events which have transpired since the filing of

the Notice of Appeal in this case.” On September 23, 2009, the Scioto County Probate Court

issued an order appointing Steven L. Burchett as administrator of his wife’s estate and ordered that

“Steven L. Burchett shall be substituted as the correct party in the lawsuit pending in Scioto

County Clerk of Court, Case No. 07 CIC 045.”

          {¶ 14} On November 6, 2009, we granted appellants’ motion to remand. We stated that

the “matter is remanded to the trial court for the limited purpose noted above,” which was
SCIOTO, 09CA3305                                                                                     5

appellants’ “motion to remand this matter to the trial court for consideration of their motion for

reconsideration.”

        {¶ 15} On remand, appellants filed a Civ.R. 60(B) motion for relief from judgment. On

July 7, 2010, the trial court summarily dismissed appellants’ motion for relief from judgment as

beyond the scope of the remand. The court construed our remand as limited to considering a

“motion for reconsideration.”

        {¶ 16} On July 16, 2010, appellants filed a “notice of intent to proceed and/or request for

limited remand.” Appellants requested this court to allow the appeal to proceed or, alternatively,

to stay the proceedings and direct the trial court to rule upon their Civ.R. 60(B) motion.

        {¶ 17} On July 26, 2010, this court placed the appeal on the active calendar.

        {¶ 18} Appellants’ first two assignments of error challenge the trial court’s decision to

award appellees attorney fees. Because the same legal principles apply to both assignments of

error, we have combined them.

        {¶ 19} R.C. 2323.51(B) authorizes a trial court to award attorney fees to any party

adversely affected by frivolous conduct. R.C. 2323.51(A)(2) defines “frivolous conduct” to

mean:

              (a) Conduct of [a] party to a civil action, * * * or of the * * * party’s counsel
        of record that satisfies any of the following:

              (i) It obviously serves merely to harass or maliciously injure another party
        to the civil action or appeal or is for another improper purpose, including, but not
        limited to, causing unnecessary delay or a needless increase in the cost of litigation.

              (ii) It is not warranted under existing law, cannot be supported by a good
        faith argument for an extension, modification, or reversal of existing law, or cannot
        be supported by a good faith argument for the establishment of new law.

             (iii) The conduct consists of allegations or other factual contentions that
SCIOTO, 09CA3305                                                                                     6

       have no evidentiary support or, if specifically so identified, are not likely to have
       evidentiary support after a reasonable opportunity for further investigation or
       discovery.

             (iv) The conduct consists of denials or factual contentions that are not
       warranted by the evidence or, if specifically so identified, are not reasonably based
       on a lack of information or belief.

       {¶ 20} Courts must carefully apply R.C. 2323.51 “so that legitimate claims are not

chilled.” Hickman v. Murray (Mar. 22, 1996), Montgomery App. No. CA 15030, 1996 WL

125916, *5. As the Hickman court explained:

              A party is not frivolous merely because a claim is not well-grounded in fact.
       Richmond Glass & Aluminum Corp. v. Wynn (Sept. 5, 1991), Columbiana App. No.
       90-C-46, [1991 WL 172902, at *2]. Furthermore, the statute was not intended to
       punish mere misjudgment or tactical error. Turowski v. Johnson (1991), 70 Ohio
       App.3d 118, 123, quoting Stephens v. Crestview Cadillac (1989), 62 [64] Ohio
       App.3d 129, 134. Instead, the statute was designed to chill egregious,
       overzealous, unjustifiable, and frivolous action. Turowski v. Johnson (1990), 68
       Ohio App.3d 704, 706.

                Whether a claim is warranted under existing law is an objective
       consideration. Lewis v. Celina Fin. Corp. (1995), 101 Ohio App.3d 464, 473,
       citing Ceol v. Zion Indust. Inc. (1992), 81 Ohio App.3d 286, 291. The test, we
       find, is whether no reasonable lawyer would have brought the action in light of the
       existing law. In other words, a claim is frivolous if it is absolutely clear under the
       existing law that no reasonable lawyer could argue the claim.

Id.

       {¶ 21} Additionally, “[w]hen * * * reasonable inquiry by a party’s counsel of record

should reveal the inadequacy of a claim, a finding that the counsel of record has engaged in

frivolous conduct is justified, as is an award, made within the statutory guidelines, to any party

adversely affected by the frivolous conduct.” Ron Scheiderer & Assoc. v. London (1998), 81

Ohio St.3d 94, 97-98, 689 N.E.2d 552.

       {¶ 22} Whether conduct is frivolous is a question of law that an appellate court
SCIOTO, 09CA3305                                                                                     7

independently reviews. See Passmore v. Greene Cty. Bd. of Elections (1991), 74 Ohio App.3d

707, 712, 600 N.E.2d 309; see also Burns v. Henne (1996), 115 Ohio App.3d 297, 685 N.E.2d 294;

Wiltberger v. Davis (1996), 110 Ohio App.3d 46, 51, 673 N.E.2d 628; Tomb & Assoc., Inc. v.

Wagner (1992), 82 Ohio App.3d 363, 366, 612 N.E.2d 468. Once a reviewing court finds that the

trial court’s frivolous-conduct finding is substantiated, the decision to award attorney fees as a

sanction for that conduct rests within the trial court’s sound discretion. Consequently, we will not

reverse a trial court’s decision to award attorney fees for frivolous conduct under R.C. 2323.51

absent an abuse of that discretion. Riley v. Langer (1994), 95 Ohio App.3d 151, 159, 642 N.E.2d

1, overruled on other grounds in Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, at ¶ 22,

fn. 16; Blackburn v. Lauder (Nov. 12, 1996), Lawrence App. No. 96CA05, 1996 WL 666658. An

abuse of discretion connotes more than a mere error of law or judgment; rather, it implies an

unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. See, e.g.,

Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589

N.E.2d 24; Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120,

122, 573 N.E.2d 622.

       {¶ 23} In the case sub judice, our independent review substantiates the trial court’s finding

of frivolous conduct.

               R.C. 2125.02(A) provides that a wrongful death action “shall” be brought in
       the name of the deceased’s personal representative. This and similar language has
       been interpreted to mean that only the personal representative has the legal capacity
       to sue under this statutory cause of action. Moss v. Hirzel Canning Co. (1955),
       100 Ohio App. 509, 60 O.O. 397, 137 N.E.2d 440. If the action is brought by the
       beneficiaries, it must be dismissed or the correct party substituted. Sabol v. Pekoc
       (1947), 148 Ohio St. 545, 36 O.O. 182, 76 N.E.2d 84.

In re Estate of Ross (1989), 65 Ohio App.3d 395, 400, 583 N.E.2d 1379.
SCIOTO, 09CA3305                                                                                     8

       {¶ 24} In the case at bar, Banks filed the present lawsuit for wrongful death while knowing

that neither appellant had been appointed the administrator of the decedent’s estate. The

wrongful-death statute plainly states that the action shall be brought in the personal

representative’s name. The failure to do so will result in a dismissal of the action, unless the

proper party is substituted. Once opposing counsel alerted Banks to the fact that appellants had

not properly instituted the case, Banks did not take any corrective action to request that the proper

party be substituted or to have his client named the personal representative. Rather, the only

action he took was to seek to consolidate the two cases. His action, however, was not properly

instituted; and thus, consolidating the cases would not have corrected the error with his action.

We emphasize that we do not fault Banks for filing the action. However, his subsequent conduct

contributed to the opposing party’s incurring attorney fees to defend against an action that clearly

required either dismissal or substitution of the proper party. In the context of this case, Banks’s

failure to take any corrective action for approximately six months from the date of Larkin's motion

to dismiss to the trial court's dismissal may be construed as frivolous conduct. Furthermore,

although Burchett eventually requested the probate court to appoint him the administrator of his

wife’s estate, he did not do so until after the trial court dismissed the complaint.

       {¶ 25} We recognize that in Toledo Bar Assn. v. Rust, 124 Ohio St.3d 305,

2010-Ohio-170, 921 N.E.2d 1056, the Ohio Supreme Court refused to find that a lawyer

committed an ethical violation by filing a wrongful-death action on behalf of the administrator of a

decedent’s estate without obtaining the administrator’s authority. In Rust, the administrator

refused to authorize the wrongful-death action and demanded that Rust dismiss the action. Rust

then requested the trial court to substitute the decedent’s sole heir as the plaintiff, which the court
SCIOTO, 09CA3305                                                                                      9

permitted. The decedent’s former guardian objected to the substitution, at which point Rust

requested the trial court to stay the matter while he requested the probate court to substitute his

client as the administrator. The trial court subsequently vacated its substitution order and

reinstated the estate administrator as the plaintiff in the wrongful-death action. The trial court

later dismissed the action.

          {¶ 26} The Board of Commissioners on Grievances and Discipline found that Rust

violated Prof.Cond.R. 1.16(A)(1) by filing a wrongful-death action that named the administrator

when Rust knew that the administrator did not want to pursue the action. Rust objected to the

board’s finding and argued that he had to file the action because his client, the decedent’s only

heir, wanted to file the action but the administrator did not, and because the statute of limitations

was about to expire. Rust maintained that his filing on the administrator’s behalf was permissible

under at least two cases. The Ohio Supreme Court agreed and stated: “Because this precedent and

its progeny at least arguably permitted respondent to file the action to avoid the statute of

limitations for wrongful-death actions and to then obtain his client’s appointment under the statute

as the administrator of his mother’s estate, we sustain the objection and find no misconduct.” Id.

at ¶13.

          {¶ 27} We find Rust distinguishable from the case at bar. First, in Rust, the lawyer

complied with the wrongful-death statute by instituting the action in the administrator’s name. In

the case at bar, Banks did not institute the action in the administrator’s name. Banks has cited no

case law that would authorize him to file the action without naming the personal representative of

the estate as the plaintiff. Second, in the case sub judice, the purported administrator had already

filed a wrongful-death action, unlike the situation in Rust in which the prior action was no longer
SCIOTO, 09CA3305                                                                                   10

pending. Furthermore, once Rust learned of potential problems, he took corrective action. In the

case sub judice, Banks did not take corrective action. Instead, his subsequent actions caused

appellees to incur needless attorney fees. Once again, we believe that the trial court's decision to

award attorney fees to appellees, based in part upon the length of time that elapsed between

Larkin's motion to dismiss and the court's dismissal (approximately six months), does not

constitute an abuse of discretion.

       {¶ 28} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s

first and second assignments of error.

       {¶ 29} In their third assignment of error, appellants argue that the trial court erred by

concluding that it could not consider appellants’ Civ.R. 60(B) motion upon remand.

       {¶ 30} We note, however, that appellants did not file a notice of appeal from the trial

court’s July 7, 2010 decision to dismiss their motion.

       {¶ 31} Accordingly, based upon the foregoing reasons, we overrule appellants’ third

assignment of error and affirm the trial court’s judgment.

                                                                                Judgment affirmed.

       ABELE and KLINE, JJ., concur.

       MCFARLAND, J., concurs in judgment only.

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