[Cite as Natl. City Bank v. Goodyear Tire & Rubber Co., 2014-Ohio-2977.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100178



            NATIONAL CITY BANK, EXECUTOR, ETC.

                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

              GOODYEAR TIRE & RUBBER CO., ET AL.

                                                           DEFENDANTS-APPELLEES


                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-09-695883

        BEFORE: Jones, P.J., Keough, J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEYS FOR APPELLANTS

Thomas W. Bevan
Jessica M. Bacon
Joshua P. Grunda
Bevan & Associates L.P.A. Inc.
6555 Dean Memorial Parkway
Boston Heights, Ohio 44236


ATTORNEYS FOR APPELLEES

For Vanderbilt Minerals, L.L.C.

Bruce P. Mandel
James N. Kline
Kurt S. Siegfried
Robert E. Zulandt, III
Ulmer & Berne L.L.P.
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113

For Union Carbide Company

Matthew M. Daiker
Perry W. Doran, II
Richard D. Schuster
Vorys, Sater, Seymour & Pease
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216
LARRY A. JONES, SR., P.J.:

         {¶1}     Plaintiffs-appellants, the estate of Paul Watson, Sr.1 and Brenda Watson

(collectively referred to as “plaintiffs” or “appellants”), appeal the trial court’s decision

dismissing their complaint with prejudice. We affirm.

                                     I. Procedural History

         {¶2} In 2005, Paul and Brenda Watson filed suit against numerous defendants,

including defendants-appellees, Vanderbilt Minerals, L.L.C., f.k.a. R.T. Vanderbilt

Company (“Vanderbilt”) and Union Carbide Company. The complaint alleged that Paul

sustained       some   form   of    disease    or   disability associated       with    exposure     to

asbestos-containing products that were present on his work sites and were manufactured or

distributed by the named defendants. Brenda Watson alleged a loss of consortium claim.

         {¶3} Paul Watson passed away in 2006, and a vice president at National City Bank

was appointed executor of his estate; the estate was filed in Montgomery County Probate

Court.

         {¶4} The plaintiffs filed a motion for leave in the trial court to substitute parties and

amend the complaint to add a wrongful death claim, which the court granted.                In January

2008, National City Bank was appointed representative of the estate in probate court and

another motion for leave to substitute parties and amend the complaint was filed and

granted by the trial court. On June 23, 2008, the plaintiffs voluntarily dismissed the



          Although the case caption lists National City Bank, Executor of the Estate of Paul R. Watson,
         1


Sr., as a plaintiff-appellant, National City Bank is not a party to the appeal.
complaint.

       {¶5} In August 2008, National City Bank submitted an application in probate court

to resign as executor of Paul Watson’s estate. The next month, in September 2008, the

probate court accepted the bank’s resignation and appointed Harry Beyoglides as executor.

       {¶6} On June 16, 2009, the plaintiffs, represented by the same law firm, refiled the

current action against 102 named defendants, including Vanderbilt and Union Carbide,

and 100 John Doe defendants.

       {¶7} On the refiled complaint, plaintiffs’ counsel, Bevan & Associates, identified

National City Bank, not Harry Beyoglides, as the plaintiff and executor of the estate of

Paul Watson. The law firm also named Brenda Watson as a plaintiff and alleged a loss of

consortium claim. Unlike the first complaint, however, the body of the refiled complaint

made no allegations specific to Paul Watson, his estate or heirs, or Brenda Watson.2

       {¶8} In April 2013, Vanderbilt filed a motion to dismiss arguing that since National

City Bank was not the executor of the estate at the time of the filing of the complaint, the

complaint was a nullity. Vanderbilt also moved for dismissal on the grounds that the

plaintiffs failed to state a claim upon which relief could be granted under Civ.R. 12(C).

Union Carbide filed a notice of joinder in Vanderbilt’s motion to dismiss.

       {¶9} The plaintiffs objected to the motion to dismiss, initially claiming that the

failure to name Beyoglides as the plaintiff and executor of Watson’s estate was excusable


          The body of the complaint identified the decedent as Robert Connell and the loss of
       2


consortium plaintiff as Connie Connell; presumably, this was a clerical error, but the plaintiffs never
corrected the error by asking for leave to file an amended complaint pursuant to Civ.R. 15.
neglect because plaintiffs were unaware that Beyoglides, not National City Bank, was the

estate representative at the time the complaint was refiled.      The plaintiffs also filed a

motion for substitution to substitute Beyoglides as the estate representative.

       {¶10} The trial court held a hearing on the motion to dismiss.      After the hearing,

the trial court granted the motion to dismiss, finding that the complaint was a nullity

because it was not brought by the proper party and the case was barred by the statute of

limitations because it was not refiled within one year of the voluntary dismissal of the first

complaint.    The court dismissed the case with prejudice.

       {¶11} The plaintiffs filed a timely notice of appeal and raised the following

assignments of error for our review:

       [I].   The trial court erred in dismissing this case.

       [II]. The trial court erred in dismissing the loss of consortium claim.

                                   II. Law and Analysis

       {¶12} ‘“An appellate court’s standard of review for a trial court’s actions regarding

a motion to dismiss is de novo.”’ Bliss v. Chandler, 11th Dist. Geauga No. 2006-G-2742,

2007-Ohio-6161, ¶ 91, quoting State ex rel. Malloy v. Girard, 11th Dist. Trumbull No.

2006-T-0019, 2007-Ohio-338, ¶ 8.

       {¶13} The complaint in this case alleged claims for personal injury and wrongful

death pursuant to R.C. 2305.10 and 2125.02, respectively. The statute of limitations for

personal injury claims is two years after a cause of action accrues. R.C. 2305.10.       The

statute of limitations for wrongful death claims is two years after the potential plaintiff’s
death. R.C. 2125.02.

       {¶14} R.C. 2125.02 additionally provides that a wrongful death action may only be

brought in the name of the authorized estate representative:

       (A) (1) Except as provided in this division, a civil action for wrongful death

       shall be brought in the name of the personal representative of the decedent

       for the exclusive benefit of the surviving spouse, the children, and the

       parents of the decedent, all of whom are rebuttably presumed to have

       suffered damages by reason of the wrongful death, and for the exclusive

       benefit of the other next of kin of the decedent.

       {¶15} As the appellants concede, the case was refiled in the wrong name.

       {¶16} The plaintiffs refiled their complaint pursuant to Ohio’s Savings Statute,

which provides that a plaintiff or a plaintiff’s representative “may commence a new action

within one year after the date of * * * the plaintiff’s failure otherwise than upon the merits

or within the period of the original applicable statute of limitations, whichever occurs

later.” R.C. 2305.19. Because Paul Watson died in 2006, the plaintiffs utilized the

Ohio Savings Statute to refile their claims even though the applicable statute of limitations

had expired.    As a result, the plaintiffs had one year following the June 23, 2008

dismissal of the first complaint in which to refile the case.

Excusable Neglect

       {¶17} Civ.R. 6(B) provides that if a civil rule specifies a time limit for any act, a

court can still allow the act after the expiration of the stated time period, where the failure
to act in a timely manner was the result of excusable neglect.     As it applies to this case,

Civ.R. 25(C) provides that a motion for substitution of parties must be made within 90

days or the action “shall” be dismissed.     A trial court’s decision on whether a party’s

neglect was excusable may not be reversed absent an abuse of discretion. Marion Prod.

Credit Assn. v. Cochran, 40 Ohio St.3d 265, 271, 533 N.E.2d 325 (1988).

       {¶18} In its response to Vanderbilt’s motion to dismiss and on appeal, the

appellants argue that their failure to “completely identify parties” in their complaint

amounts to excusable neglect under Civ.R. 6 because they were unaware that Beyoglides

was the estate representative at the time they refiled the complaint.   To support this claim,

the appellants note that the certificate of service from National City Bank’s application to

resign as estate representative, filed in probate court, listed the incorrect zip code for

Bevan & Associates. In addition, counsel for the plaintiffs averred that his firm was

unable to locate the probate court journal entries appointing Beyoglides as executor and he

did not remember receiving the entries.

       {¶19} We find the appellants’ claims to be without merit.        Even if counsel never

received the entries from probate court appointing Beyoglides as the estate representative,

the record reflects that counsel had knowledge that Beyoglides was the executor of the

estate before the motion to dismiss was filed, yet took no action to substitute the proper

party as plaintiff.

       {¶20} The trial court record contains a September 4, 2008 order issued by probate

court that: (1) accepted National City Bank’s resignation as executor of the estate; (2)
appointed Beyoglides as the successor administrator of the estate; and (3) ordered Bevan

& Associates to “prepare any papers required to file any future settlements of wrongful

death claims for approval.”       Although the appellants’ attorney averred “there is no

evidence of our office ever receiving this order” and he personally had “no recollection of

having received” the order, the probate court issued notice to the firm at the correct

address.   Moreover, counsel never stated in his affidavit that he was unaware of the

change in estate representative before the complaint was refiled.

       {¶21} The record also contains an April 3, 2009 status report filed in probate court.

 The report, filed by Beyoglides, makes mention of the wrongful death lawsuit and that it

was being handled by Bevan & Associates. The status report was filed two months prior

to the refiling of the complaint in this case.

       {¶22} Ten months later, on February 2, 2010, Beyoglides filed a report of

distribution of Watson’s assets in probate court that listed a payment of $2,500 to Bevan &

Associates for attorney fees.

       {¶23} But the evidence perhaps most damaging to the appellants is their own

discovery responses that list Beyoglides as the executor of Paul Watson’s estate. The

responses were signed by a Bevan & Associates attorney and filed in the trial court on

March 12, 2012, 11 months before Vanderbilt filed its motion to dismiss.

       {¶24} In light of the above, the appellants’ failure to properly identify the proper

plaintiff bringing suit did not amount to excusable neglect.

Capacity to Sue
       {¶25} Prior to the oral hearing on the motion to dismiss, the plaintiffs filed a

supplemental brief that raised the issue of capacity to sue, which deals with a person’s

eligibility to commence the action and is typically determined without regard to the claims

being asserted.    See Wanamaker v. Davis, 2d Dist. Montgomery No. 2005-CA-151,

2007-Ohio-4340, ¶ 42.

       {¶26} The appellants argue that they always had the capacity to sue the defendants;

therefore, dismissing the complaint because they incorrectly named one of the plaintiffs

was in error. Instead, the trial court should have allowed the plaintiffs to substitute

Beyoglides for National City Bank. To support its argument that substitution of parties

was the proper remedy, the appellants rely on Mousa v. Mt. Carmel Health Sys., 10th Dist.

Franklin No. 12AP-737, 2013-Ohio-2661. In Mousa, a medical malpractice suit was

filed on behalf of a deceased child by the child’s estate even though the estate

representative had not yet been appointed. More than a year after the filing of the lawsuit

and after the statute of limitations had expired, the child’s mother was appointed executor

of the estate.   The Mousa court determined that when a question exists as to whether an

individual in a wrongful death action had been properly appointed an administrator of a

decedent’s estate, the proper remedy is the substitution of the proper representative, rather

than dismissal of the action. Id. at ¶ 18, citing De Garza v. Chetister, 62 Ohio App.2d

149, 155, 405 N.E.2d 331 (6th Dist.1978).

       {¶27} The Mousa court reasoned that the parents had standing to bring a wrongful

death action even though an estate representative had not yet been named at the time the
suit was commenced since the child’s parents were the injured parties in the wrongful

death action and, because they were beneficiaries of the decedent, they were also the real

parties in interest.   Mousa at ¶ 19.

       {¶28} The appellants rely on Mousa to argue that the trial court should have

allowed it to substitute Beyoglides as the proper plaintiff, arguing that the real issue is not

whether they had standing to sue, but the capacity of the administrator to sue on behalf of

the estate.   According to the appellants, since the real party in interest, the estate of Paul

Watson, did not change, standing also was not affected; the only thing that was affected

was the capacity of the administrator of the estate.

       {¶29} Vanderbilt argues that Mousa is distinguishable, and we agree. In Mousa,

as in the other cases the appellants cite,3 the estate representatives had not yet been

appointed when the cases were filed and when the statute of limitations expired.          The

complaints were also filed by parties in interest. In this case, National City Bank was not

a party in interest and Beyoglides was appointed the executor of Paul Watson’s estate a

year prior to the refiling of the complaint.

       {¶30} The Mousa court also relied heavily on the fact that the defendants failed to

raise the affirmative defense of capacity to sue in their answer.    Although the appellants

claims that Vanderbilt likewise failed to raise the affirmative defense of capacity to sue,

both Vanderbilt and Union Carbide properly raised all affirmative defenses by entering


       Klinger v. Corr. Corp. of Am., Inc., N.D.Ohio No. 4:11cv2299, 2012 U.S. Dist. LEXIS
       3


176246 (Dec. 12, 2012), Wanamaker, 2d Dist. Montgomery No. 2005-CA-151, 2007-Ohio-4340;
Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195 (1939).
notices of appearance in accordance with the trial court’s Case Management Order.

Case Management Order — Asbestos Docket

      {¶31} To manage the large amount of asbestos-related cases, the Cuyahoga County

Common Pleas Court developed a specialized asbestos docket.           In 1997, the court

implemented Local Rule 16 as a special provision related to asbestos litigation. Loc.R.

16 of the Court of Common Pleas of Cuyahoga County, General Division, provides:

      (A) In an action involving any allegation for injury or death arising from
      exposure to asbestos, the rules of civil procedure governing a civil action
      shall apply except as provided by this rule.

      (B) The caption of all legal papers filed in the action shall contain the
      designation “Civil Action — Asbestos.”

      (C) Within twenty-eight (28) days after service of the complaint, the
      defendant shall enter an appearance which shall constitute:

      (1) a denial of all averments of fact in the complaint;

      (2) an allegation of all affirmative defenses; and

      (3) a claim for indemnification and contribution from any other party.

      By filing an entry of appearance, all averments of appearance, all averments
      of fact are deemed denied (subdivision (c)(1)), all affirmative defenses are
      deemed alleged (subdivision (c)(2)), and each defendant is deemed to have
      asserted a claim for indemnity and contribution against each other party
      (subdivision (c)(3)).

      {¶32} An electronic filing system was first implemented in 1998 to manage

voluminous filings in asbestos-relate cases. In 2003, the system was replaced with the

current “File & Serve” electronic filing system.   To implement the File & Serve system,

the court issued a 42-part document titled In Re: Special Docket No. 73958, Case
Management Order to Implement Lexis-Nexis File & Serve In Place of CLAD (“Case

Management Order”).

       {¶33} The Case Management Order provides:

       4. Answer

       Defendants and Third-Party Defendants are no longer to file answers to
       Plaintiff’s Complaints or Third-Party Complaints in asbestos litigation in
       Cuyahoga County, Ohio. Rather, the following procedure will apply:

       a. Within 28 days after service of the Complaint, the Defendant or
       Third-Party Defendant shall enter an appearance which shall constitute:

       i. a denial of all averments of fact in the Complaint or Third-Party
       Complaint, and;

       ii. an allegation of all affirmative defenses.

       {¶34} The appellants claim that Vanderbilt’s method of raising the defense of

capacity to sue pursuant to the trial court’s Case Management Order did not serve to raise

it as an affirmative defense because this section of the trial court’s Case Management

Order is unconstitutional in that it conflicts with the Civil Rules. At oral argument, for

the first time, the appellants additionally claimed that Loc.R. 16 is likewise

unconstitutional because it conflicts with the Civil Rules.

       {¶35} We need not reach the merits of the appellants’ arguments, however, because

they have waived these claims by not raising them at the trial court level.            “‘A

fundamental rule of appellate review is that an appellate court will not consider any error

that could have been, but was not, brought to the trial court’s attention.”’     Kimberly

Entertainment Corp. v. Liquor Control Comm., 10th Dist. Franklin No. 96APE05-581,
1996 Ohio App. LEXIS 5313, *5 (Nov. 26, 1996), quoting Little Forest Med. Ctr. v. Ohio

Civ. Rights Comm., 91 Ohio App.3d 76, 80, 631 N.E.2d 1068 (9th Dist.1993). “A party

waives ‘the right to appeal an issue that was in existence prior to or at time of trial if that

party did not raise issue at the appropriate time in court below.”’ Kimberly at id. quoting

Little Forest at id. “As a result, ‘constitutional rights may be lost as finally as any others

by a failure to assert them at the proper time.”’ Kimberly at id. quoting State v. Childs,

14 Ohio St.2d 56, 62, 236 N.E.2d 545 (1968); Atkins v. Dir., Ohio Dept. of Job & Family

Servs., 10th Dist. Franklin No. 08AP-182, 2008-Ohio-4109, ¶ 19.

       {¶36} The plaintiffs raised the issue of capacity to sue prior to the trial court’s

hearing on the motion to dismiss. At no time prior to its appellate brief, however, did the

appellants claim that the Case Management Order was unconstitutional. And it was not

until appellate oral argument that the appellants first claimed that Loc.R. 16 was

unconstitutional.

       {¶37} While the appellants raise an interesting argument, neither party has had the

opportunity to fully brief the issue, nor has the trial court had the chance to give the

argument its consideration.

       {¶38} In light of the above, the appellants have waived their constitutional

argument.

Complaint is a Nullity

       {¶39} Because National City Bank no longer represented Paul Watson’s estate at

the time the complaint in the instant case was filed, it was not a proper party plaintiff.
This fact was known to the plaintiffs, through counsel, possibly before the complaint was

filed, likely by October 2009 when Beyoglides recommended Bevan & Associates receive

$2,500 in attorney fees paid out of the estate, and most assuredly by March 2012 when the

plaintiffs filed their discovery response. Yet at no time prior to Vanderbilt filing its

motion to dismiss did the plaintiffs move to amend the complaint and/or file a substitution

of parties. Simply put, National City Bank was an improper party plaintiff on the case for

over four years.

       {¶40} This failure on behalf of the appellants is not a pleading technicality but,

rather, a question of legal authority on the part of one person, or entity, to act for another.

For example, no one would consider that National City Bank, not being the estate

representative, could sign a release of liability in exchange for settlement of a lawsuit.

See, generally, Whitley v. River’s Bend Health Care, 183 Ohio App.3d 145, 150,

2009-Ohio-3366, 916 N.E.2d 515 (4th Dist.).

       {¶41} Therefore, based on our de novo review, we find that the trial court correctly

determined that the appellants’ claims were time-barred and dismissed the complaint with

prejudice.

       {¶42} The first assignment of error is overruled.

Loss of Consortium Claim

       {¶43} In the second assignment of error, the appellants claim that the trial court

erred in dismissing Brenda Watson’s loss of consortium claim.

       {¶44} A claim for loss of consortium is derivative of the other claims and, although
a separate cause of action, can only be maintained if the primary cause of action is proven.

 Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93, 585 N.E.2d 384 (1992); Turk v.

Novacare Rehab. of Ohio, 8th Dist. Cuyahoga No. 94635, 2010-Ohio-6477;Vinicky v.

Pristas, 163 Ohio App.3d 508, 2005-Ohio-5196, 839 N.E.2d 88 (8th Dist.); Breno v.

Mentor, 8th Dist. Cuyahoga No. 81861, 2003-Ohio-4051.              Because there was no

underlying or primary cause of action to be proven in this case, the loss of consortium

claim was also properly dismissed.

       {¶45} The second assignment of error is overruled.

Cross-Assignment of Error

       {¶46} Vanderbilt raises a cross-assignment of error to prevent reversal under

App.R. 3(C)(2), which provides that a cross-appeal is not required where an appellee seeks

to defend a trial court’s judgment “on a ground other than that relied upon by the trial

court,” but does not seek to change the judgment or order. McCarthy v. Sterling Chem.,

Inc., 1st Dist. Hamilton Nos. C-110805 and C-110856, 2012-Ohio-5211, ¶ 9.

       {¶47} The assigned error is as follows:

       The trial court’s dismissal should also or independently be affirmed because
       plaintiff-appellant failed to state a claim upon which relief can be granted.

       {¶48} In its motion to dismiss, Vanderbilt moved, in the alternative, for judgment

on the pleadings pursuant to Civ.R. 12(C), which provides, “After the pleadings are closed

but within such times as not to delay the trial, any party may move for judgment on the

pleadings.”

       {¶49} Because the trial court dismissed the complaint with prejudice based on it
being a nullity and did not rule on Vanderbilt’s Civ.R. 12(C) motion to dismiss, Vanderbilt

asks this court to independently review its motion and find that there was an additional

basis to dismiss the complaint based on Civ.R. 12(C). We decline to do so; based upon

our disposition of the first assignment of error resulting in an affirmance of the trial court’s

decision, Vanderbilt’s cross-assignment of error is moot and need not be considered.

       {¶50} The cross-assignment of error is overruled.

       {¶51} Judgment affirmed.

       It is ordered that appellees recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR
