[Cite as Greenberg v. Heyman-Silbiger, 2017-Ohio-515.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Amy and Josh Greenberg,                            :
Co-Guardians of the Person and Estate
of Lawrence D. Schaffer et al.,                    :
                                                   :
                Plaintiffs-Appellants,
                                                   :
v.                                                                 No. 16AP-283
                                                   :        (C.P.C. No. 15CVH-09-8335)
Sherri R. Heyman-Silbiger, Executor of
The Estate of Brian L. Heyman et al.               :        (REGULAR CALENDAR)

                Defendants-Appellees.              :


                                          D E C I S I O N

                                   Rendered on February 14, 2017


                On brief: Giorgianni Law LLC, and Paul Giorgianni, for
                appellants. Argued: Paul Giorgianni.

                On brief: Reminger Co., L.P.A., D. Patrick Kasson and
                Acacia M. Perko, for appellees. Argued: D. Patrick Kasson.

                    APPEAL from Franklin County Court of Common Pleas

TYACK, P.J.
        {¶ 1} Plaintiffs-appellants, Josh and Amy Greenberg, as Co-Guardians of the
Person and Estate of Lawrence D. Schaffer, appeal from the April 8, 2016 decision and
entry granting defendants-appellees, Sherri R. Heyman-Silbiger, Executor of the Estate of
Brian L. Heyman, and Trustee of the Brian L. Heyman Trust's, motion to dismiss the first
amended complaint for lack of subject-matter jurisdiction, motion for summary
judgment, and the decision denying the motion for substitution of parties. For the
reasons that follow, we affirm the judgment of the court of common pleas.
No. 16AP-283                                                                            2


I. FACTUAL AND PROCEDURAL BACKGROUND

       {¶ 2} Josh and Amy Greenberg were the guardians of the person and the estate of
Lawrence D. Schaffer. Plaintiff, Rybac, Inc., is an Ohio corporation owned by Schaffer
and a named plaintiff in the original and amended complaint. Rybac, Inc. is not pursuing
an appeal in this action.
       {¶ 3} Schaffer and Brian L. Heyman had, over a period of years, a personal and
business relationship. Schaffer loaned funds to Heyman pursuant to an oral contract, and
Heyman allegedly failed to repay those funds. Heyman died on February 8, 2015. An
estate was opened in Cuyahoga County on April 28, 2015, with Sherri Heyman-Silbiger as
executor. On July 13, 2015, the Greenbergs, as Schaffer's guardians, presented a claim
against the Heyman estate for $1,000,000. On July 23, 2015, the Greenbergs received
notice that the claim had been disallowed. Rybac, Inc. did not present a claim against
Heyman's estate at any time.
       {¶ 4} Approximately two months later, on September 20, 2015, Schaffer died.
The day after Schaffer died, on September 21, 2015, the Greenbergs filed the original
complaint in this case as "C0-Guardians of the Person and Estate of Lawrence D.
Schaffer." The complaint alleged breach of an oral agreement to repay funds, fraud in the
inducement, unjust enrichment, conversion of funds from Rybac, Inc., and fraud.
       {¶ 5} On September 22, 2015, the day after filing the complaint in this case, the
Greenbergs, as guardians for Schaffer, filed a suggestion of death of their ward,
Lawrence D. Schaffer, in an unrelated case. (Nov. 9, 2015 Affidavit of Adam Fried, Ex. A.)
No suggestion of death was filed in the instant case.
       {¶ 6} On September 23, 2015, two days after the complaint was filed, the two-
month statute of limitations on rejected claims against the Heyman estate expired
pursuant to R.C. 2117.12.
       {¶ 7} An estate was opened for Schaffer in the Franklin County Probate Court on
October 1, 2015. Josh Greenberg was appointed fiduciary of the estate.
       {¶ 8} On October 23, 2015, the Greenbergs, again acting only as Schaffer's
guardians, filed an amended complaint in this case adding a claim for elder abuse, but, in
all other respects, the amended complaint appeared to be the same as the first complaint.
No. 16AP-283                                                                                    3


         {¶ 9} On November 9, 2015, Silbiger filed a combined motion to dismiss the first
amended complaint, pursuant to Civ.R. 12(B)(1), and a motion for summary judgment
pursuant to Civ.R. 56(C). Silbiger argued that the Greenbergs had no legal authority to
commence an action on behalf of their ward Schaffer because Schaffer died prior to the
filing of the complaint.     Silbiger argued that the death of the ward terminated the
guardianship and the powers of the guardian to act on behalf of the ward, and therefore
the complaint filed by the Greenbergs as guardians was a nullity. Furthermore, Silbiger
claimed that the personal representative of Schaffer's estate failed to commence an action
before the limitations period expired. Thus, Silbiger argued that any claim attributable to
Schaffer was time-barred by application of R.C. 2117.12, the two-month statute of
limitations for filing a claim against an estate.
         {¶ 10} On November 24, 2015, Josh Greenberg, now the executor of the estate of
Lawrence D. Schaffer, moved, under Civ.R. 25(A)(1), to substitute the estate of Schaffer,
as the correct party plaintiff in place of Amy and Josh Greenberg, Co-Guardians in the
case.1    The Greenbergs responded to the motion to dismiss/motion for summary
judgment by arguing that the situation was akin to a misnomer of a party in the caption of
the complaint rather than a case where a previously unknown claim was raised for the
first time by filing suit in the name of a deceased person. The Greenbergs argued that
prior to his death, Schaffer was, in essence, a party to the ongoing claim against Heyman's
estate and therefore the instant case was not a new action raising an unknown claim in
the name of a deceased person.
         {¶ 11} Silbiger responded that Civ.R. 25(A) only applies if a party dies. Since
Schaffer was never a party to the instant action because he was deceased at the time the
complaint was filed, Silbiger argued that Civ.R. 25(A)(1) could not be used. Silbiger
asserted they would be prejudiced by any late substitution because allowing such
substitution would interfere with the timely administration of the Heyman estate.
         {¶ 12} The Greenbergs then responded that it was not possible for the Schaffer
estate to be opened within the narrow timeframe in this case and that the Greenbergs



1 The Greenbergs argue on appeal that Civ.R. 17(A) applies, but in their response to the motion to
dismiss/motion for summary judgment, Civ.R. 17 was not mentioned.
No. 16AP-283                                                                               4


were acting on behalf of Schaffer to preserve the claim that was filed and rejected in the
Cuyahoga County Probate Court.
       {¶ 13} Here, the trial court first examined Rybac, Inc.'s claims and found them to
be time-barred because Rybac, Inc. did not present a claim against the Heyman estate
within six months of the death of Heyman pursuant to R.C. 2117.06(B).
       {¶ 14} The trial court then determined that Schaffer's death terminated the
guardianship and, along with it, any power of the Greenbergs to commence an action on
his behalf. The trial court cited Whitley v. River's Bend Health Care, 183 Ohio App.3d
145, 2009-Ohio-3366 (4th Dist.) ("Whitley I"), for the proposition that "[t]his is no
pleading technicality but, rather, a question of legal authority on the part of one person to
act for another." Id. at ¶ 15. The trial court, relying on Whitley I and Levering v.
Riverside Methodist Hosp., 2 Ohio App.3d 157, 159 (10th Dist.1981), found that the
complaint—filed by the guardians after the death of their ward—was a legal nullity, and
not a pleading.
       {¶ 15} The trial court rejected the argument that the complaint could be rescued by
substitution of the executor of the estate pursuant to Civ.R. 25(A). Relying on Levering,
the trial court reasoned that Civ.R. 25(A) only allowed substitution upon death if a party
dies. Since Schaffer was already deceased prior to the filing of the complaint, the trial
court concluded there was no party-plaintiff from the inception, and therefore Civ.R.
25(A) did not apply. The trial court denied the motion for substitution of parties. The
trial court then reasoned that R.C. 2117.12, the two-month statute of limitations for
commencing an action on a rejected claim, barred any further attempt to commence an
action regarding Schaffer's claim against the Heyman estate.
       {¶ 16} The trial court recognized that the result was harsh but determined that it
was bound by the letter of the law, and it could not exercise jurisdiction over a legal
nullity. The trial court found that any further attempt to commence an action against the
Heyman estate on claims previously rejected by the estate was statutorily time-barred.
Accordingly, the trial court granted the combined motion to dismiss and motion for
summary judgment.
       {¶ 17} This appeal followed.
II. ASSIGNMENTS OF ERROR
No. 16AP-283                                                                              5


        {¶ 18} On appeal, the Greenbergs assign the following as error:

              1. The court erred by overruling the November 24, 2015
              Motion for Substitution of Parties.

              2. With respect to the survivorship claims of the deceased
              ward Lawrence Schaffer, the court erred by granting
              summary judgment under Civil Rule 56 and/or dismissing
              the claims under Civil Rule 12(B)(1).

III. STANDARD OF REVIEW

        {¶ 19} This case comes to us by way of a motion to dismiss for lack of subject-
matter jurisdiction, pursuant to Civ.R. 12(B)(1), and a motion for summary judgment
pursuant to Civ.R. 56. Appellate courts review both of these judgments de novo. Bruce v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-310, 2016-Ohio-8132, ¶ 6 (Civ.R.
12(B)(1) motion); Williams v. Columbus, 10th Dist. No. 16AP-269, 2016-Ohio-7969, ¶ 10
(summary judgment).
        {¶ 20} Civ.R. 12(B)(1) permits dismissal where the trial court lacks jurisdiction
over the subject matter of the litigation. The standard of review for a dismissal, pursuant
to Civ.R. 12(B)(1), is whether any cause of action cognizable by the forum has been raised
in the complaint. PNC Bank, N.A. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383,
¶ 21.
        {¶ 21} Here, defendants are not challenging the subject-matter jurisdiction of the
court of common pleas, but, rather, are inquiring into the Greenbergs' ability to invoke the
trial court's jurisdiction over this particular case. See Bank of Am., N.A. v. Kuchta, 141
Ohio St.3d 75, 2014-Ohio-4275, ¶ 18, 22 (distinguishing between different concepts of the
term "jurisdiction").    A lack of standing vitiates the party's ability to invoke the
jurisdiction of a court, even a court of competent subject-matter jurisdiction.          Id.
However, standing and capacity to sue do not challenge the subject-matter jurisdiction of
the court. PNC Bank at ¶ 22. Thus, the Greenbergs' alleged lack of standing is not a
matter subject to a motion for dismissal pursuant to Civ.R. 12(B)(1). Id.
        {¶ 22} Therefore, we shall proceed to address the parties' arguments under the
summary judgment standard of review. When we review a trial court's decision on a
motion for summary judgment, we apply the same standard as the trial court and conduct
No. 16AP-283                                                                                6


an independent review, without deference to the trial court's determination. Maust v.
Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). We must affirm the
trial court's judgment if any grounds the movant raised in the trial court support it.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
       {¶ 23} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to
be litigated, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
       {¶ 24} With these standards in mind, we turn to the parties' arguments.
IV. ANALYSIS
       {¶ 25} In their first assignment of error, the Greenbergs argue the trial court erred
in overruling their November 24, 2015 motion for substitution of parties. That motion
was filed by the Greenbergs pursuant to Civ.R. 25(A)(1). That rule provides that "[i]f a
party dies and the claim is not thereby extinguished, the court shall, upon motion, order
substitution of the proper parties."    The Greenbergs sought to substitute the estate of
Schaffer as the correct party-plaintiff, and Josh Greenberg as the executor authorized to
file suit on behalf of the estate.
       {¶ 26} In Levering, counsel filed a complaint for a plaintiff who, unbeknownst to
counsel, had died more than six months earlier. This court held that Civ.R. 25(A)(1) is not
applicable when the plaintiff dies prior to the filing of the complaint because the action is
a nullity and cannot be lawfully commenced under Civ.R. 3(A). Id. at 159. In deciding
Levering, this court relied in part on Barnhart v. Schultz, 53 Ohio St.2d 59 (1978) ("one
deceased cannot be a party to an action" and "and a suit brought against a dead person is
a nullity"), which was subsequently overruled by Baker v. McKnight, 4 Ohio St.3d 125
No. 16AP-283                                                                             7


(1983), thus calling into question the current validity of the "nullity" theory as well as
whether Levering continues to be good law.
       {¶ 27} Barnhart was a motor vehicle accident case in which the defendant died
before the plaintiffs filed the complaint.   The plaintiffs filed an amended complaint
naming the probate estate fiduciary as defendant, but only after the limitations period
expired. The Supreme Court of Ohio upheld a statute of limitations defense, holding that
the original complaint was a nullity because there was no defendant.
       {¶ 28} In Baker, the Supreme Court of Ohio reversed course and specifically
overruled Barnhart. The Baker syllabus provides:
              Where the requirements of Civ.R. 15(C) for relation back are
              met, an otherwise timely complaint in negligence which
              designates as a sole defendant one who dies after the cause of
              action accrued but before the complaint was filed has met
              the requirements of the applicable statute of limitations and
              commenced an action pursuant to Civ.R. 3(A), and such
              complaint may be amended to substitute an administrator of
              the deceased defendant's estate for the original defendant
              after the limitations period has expired, when service on the
              administrator is obtained within the one-year, post-filing
              period provided for in Civ.R. 3(A). (Barnhart v. Schultz, 53
              Ohio St.2d 59 [7 O.O.3d 142], overruled.)

       {¶ 29} Barnhart and Baker involved deceased defendants, but Levering involved a
deceased plaintiff. This distinction did not affect this court's analysis in Levering, with
the court stating:
              Plaintiff seeks to distinguish Barnhart on the basis that
              Barnhart involved a deceased defendant and this case
              involves a deceased plaintiff. However, that distinction is
              without merit. The complaint filed in Barnhart was a nullity
              because there was no party-defendant, the named defendant
              having been deceased prior to the filing of the complaint.
              Similarly, the complaint in this case was a nullity because
              there was no party-plaintiff, the named plaintiff having been
              deceased prior to the filing of the complaint.

Levering at 159.

       {¶ 30} However, in Simms v. Alliance Community Hosp., 5th Dist. No. 2007-CA-
225, 2008-Ohio-847, the court did distinguish between deceased plaintiffs and deceased
No. 16AP-283                                                                             8


defendants.     The court noted that Barnhart had been overruled by Baker, but
nevertheless agreed with the reasoning of Levering that if a plaintiff is deceased at the
time the complaint is filed, the complaint is still a nullity. Simms at ¶ 22. This question
has not been definitively resolved by the Supreme Court, but we do note that with respect
to plaintiffs, "a party commencing litigation must have standing to sue in order to present
a justiciable controversy and invoke the jurisdiction of the common pleas court." Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 41. We
shall discuss the issue of standing in more detail with respect to the second assignment of
error.
         {¶ 31} Picking up on certain language in Baker, the Greenbergs argued before the
trial court that the situation in their case is more of a pleading technicality akin to
misnomer of a party in that the complaint designated Schaffer as the correct party who
had a claim against the Heyman estate, but in light of the fact that Schaffer was deceased
at the time of the filing of the complaint, the complaint should be amended under Civ.R.
25(A) to substitute the legal successor of the decedent.
         {¶ 32} However, the Greenbergs cannot escape the fact that Schaffer was never a
live party when the action was initiated, and therefore Civ.R. 25(A) cannot operate to
allow substitution.
         {¶ 33} On appeal, the Greenbergs have abandoned the argument that substitution
should be made pursuant to Civ.R. 25(A), and instead have advanced for the first time the
argument that under Civ.R. 21, 17(A), and 15(C), the trial court should have substituted
the Schaffer estate as the real party in interest with the substitution relating back,
pursuant to Civ.R 15(C) to the timely filing of the original complaint. However, the
Greenbergs never requested any substitution pursuant to Civ.R. 17 before the trial court.
Instead, they filed an amended complaint approximately one month later with the same
caption, and did not notify the trial court that their ward had died. Only after Silbiger
filed a motion to dismiss/motion for summary judgment attacking the legal authority of
the Greenbergs to file suit on behalf of Schaffer, did the Greenbergs attempt to substitute
the estate of Schaffer as the correct party plaintiff.
         {¶ 34} Since the Greenbergs have not argued that the trial court should have
applied Civ.R. 25(A) to substitute Schaffer's estate in place of the Greenbergs as co-
No. 16AP-283                                                                               9


guardians, we find the trial court did not err by overruling the November 24, 2015 motion
for substitution of parties pursuant to Civ.R. 25.
       {¶ 35} Accordingly, we overrule the first assignment of error.
       {¶ 36} In their second assignment of error, the Greenbergs argue the trial court
erred in granting summary judgment on the survivorship claims of the deceased ward,
Schaffer. Under this assignment of error, the Greenbergs raise several arguments. First,
as mentioned previously, they claim for the first time on appeal that Civ.R. 21, 17(A), and
15(C), empower the trial court to substitute the estate of Lawrence Schaffer as party-
plaintiff. The Greenbergs also claim that Whitley I has zero value as precedent.
V. WHITLEY I v. RIVER'S BEND HEALTH CARE
       {¶ 37} There is apparently only one Ohio state court decision ruling that a
complaint filed by a guardian on behalf of a ward after the ward dies is a legal nullity. The
defendants and the trial court relied heavily on Whitley I, a Fourth District case decided
in 2009.    However, the subsequent history of Whitley I raises a question as to its
continued validity.
       {¶ 38} In Whitley I, Marcella Christian had been appointed guardian of her
mother, Ethel Christian. Ethel died on February 7, 2005 and on April 15, 2005, in her
capacity as guardian, Marcella filed a complaint against Ethel's nursing home, River's
Bend Health Care, alleging tort claims based on the care Ethel received there.
       {¶ 39} In June 2005, on motion of the co-administrators of Ethel's estate, the trial
court substituted Ethel's estate as the named plaintiff. After a voluntary dismissal and
refiling of the action, the trial court granted summary judgment in favor of River's Bend
based on a failure to file an action to which the saving statute could be applied before the
one-year statute of limitations expired.
       {¶ 40} The Fourth District Court of Appeals affirmed in a split decision, finding
that the death of the ward terminated the powers of the guardian. Id. at ¶ 15, citing
Simpson v. Holmes, 106 Ohio St. 437 (1922).           The court then held that the action
commenced by the guardian after her ward's death was a nullity, the legal authority to
commence a suit is more than a pleading technicality, and the refiled action could not
relate back to an action that was a nullity. Whitley I at ¶ 14-17.
No. 16AP-283                                                                              10


       {¶ 41} On appeal to the Supreme Court, the court first voted 5-2 to hear the appeal,
Whitley v. River's Bend Health Care, 123 Ohio St.3d 1493, 2009-Ohio-6015 ("Whitley
II"), then voted to dismiss the appeal as improvidently granted. Whitley v. River's Bend
Health Care, 126 Ohio St.3d 1217, 2010-Ohio-3269 ("Whitley III"). Chief Justice Brown
dissented from the decision to dismiss the appeal, writing a full analysis of the case, and
setting forth why he believed Whitley I was wrongly decided by the court of appeals.
       {¶ 42} Chief Justice Brown wrote in pertinent part:
               There is no dispute that as a matter of law, Marcella's status
               as a guardian terminated at the death of her mother and that
               the 2005 complaint was, when filed, defectively styled in
               identifying the plaintiff as "Ethel V. Christian, by and
               through her Conservator and Guardian, Marcella E.
               Christian."

Whitley III at ¶ 7.

       {¶ 43} The Chief Justice then went on to reject the nullity theory, saying that:
               I reject the contention that a civil action was not commenced
               in 2005 because the original complaint incorrectly identified
               the plaintiff as Ethel Christian, by and through her former
               guardian, rather than the estate of Ethel Christian. Civ.R.
               3(A) specifically provides that "[a] civil action is commenced
               by filing a complaint with the court, if service is obtained
               within one year." Similarly, for purposes of the saving
               statute, "[a]n action is commenced * * * by filing a petition in
               the office of the clerk * * *, if service is obtained within one
               year." R.C. 2305.17. Here the River's Bend defendants do not
               deny that a complaint was filed in the common pleas court in
               2005 and that service was obtained within one year
               thereafter. Accordingly, application of the express text of
               Civ.R. 3(A) and R.C. 2305.17 compels the conclusion that an
               action was commenced. It is a separate, legal question
               whether that action, having been commenced, was
               vulnerable to attack for having been brought by a person
               lacking the necessary capacity to prosecute the action.

Whitley III at ¶ 9.

       {¶ 44} Chief Justice Brown then explained that the nullity theory was logically
inconsistent with Civ.R. 17(A), that provides as follows:
No. 16AP-283                                                                               11


              Real party in interest. Every action shall be prosecuted in
              the name of the real party in interest. An executor,
              administrator, guardian, bailee, trustee of an express trust, a
              party with whom or in whose name a contract has been made
              for the benefit of another, or a party authorized by statute
              may sue in his name as such representative without joining
              with him the party for whose benefit the action is brought.
              When a statute of this state so provides, an action for the use
              or benefit of another shall be brought in the name of this
              state. No action shall be dismissed on the ground that it is
              not prosecuted in the name of the real party in interest until
              a reasonable time has been allowed after objection for
              ratification of commencement of the action by, or joinder or
              substitution of, the real party in interest. Such ratification,
              joinder, or substitution shall have the same effect as if the
              action had been commenced in the name of the real party in
              interest.

       {¶ 45} The Chief Justice saw no reason not to extend the reasoning of Baker to
deceased plaintiffs and to allow substitution of the estate as the named plaintiff when the
complaint improperly named as plaintiff a former guardian instead of the formal
representative of the decedent's estate. Whitley III at ¶ 17. Another justice concurred in
the dissent, and two other justices indicated they would include language that the court of
appeals decision should not be cited as authority except by the parties to the action. Id. at
¶ 2, 20.
       {¶ 46} Whitley I stands for the proposition that a complaint filed by a guardian on
behalf of a ward after the ward dies is a legal nullity. In light of its subsequent appellate
history, as well as the Supreme Court's decision in Baker, the continued validity of
Whitley I and Levering as support for the nullity theory is questionable.
       {¶ 47} We agree with the reasoning of Chief Justice Brown and the court of appeals
in Whitley III that as a matter of law, the Greenbergs' status as guardians terminated at
the death of Schaffer, and the complaint, when filed, was defectively styled in identifying
the plaintiff as "Amy and Josh Greenberg, Co-Guardians of the Person and Estate of
Lawrence D. Schaffer," rather than the estate of Schaffer.
       {¶ 48} We recognize that there may be some merit to the Greenbergs' argument
that the issue is one of capacity to sue, and note that capacity is an issue which must be
timely raised by the defendant or is waived. Mikolay v. Transcon Builders, Inc., 8th Dist.
No. 16AP-283                                                                                 12


No. 42047 (Jan. 22, 1981). However, Civ.R. 17(A) has no applicability unless the plaintiff
has standing to invoke the jurisdiction of the court in the first place, either in an
individual or representative capacity, with some real interest in the subject matter.
Franzese v. Falcon, 11th Dist. No. 7-071 (Nov. 19, 1979), citing State ex rel. Dallman v.
Court of Common Pleas, 35 Ohio St.2d 176 (1973).
       {¶ 49} In addition, the Greenbergs failed to preserve this issue on appeal because
they failed to raise the issue before the trial court. We therefore reject the argument being
raised for the first time on appeal, that the correct party be substituted pursuant to Civ.R.
17(A). Because this argument was not raised below, it is waived.
       {¶ 50} A party who fails to raise an argument in the trial court waives the right to
raise it on appeal. Harding Pointe, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist.
No. 13AP-258, 2013-Ohio-4885, ¶ 43, citing Betz v. Penske Truck Leasing Co., L.P., 10th
Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 34. "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." Little Forest Med. Ctr. v. Ohio Civ. Rights Comm.,
91 Ohio App.3d 76, 80 (9th Dist.1993). "A party waives 'the right to appeal [an] issue
that was in existence prior to or at [the] time of trial if that party did not raise [the] issue
at the appropriate time in [the] court below.' " Kimberly Entertainment Corp. v. Liquor
Control Comm., 10th Dist. No. 96APE05-581 (Nov. 26, 1996), quoting Little Forest Med.
Ctr. at 80.
       {¶ 51} In addition to arguing that the Greenbergs have waived the argument of
lack of capacity to sue that could be cured by substitution pursuant to Civ.R. 17(A),
Silbiger also argues that at the time the Greenbergs filed suit, they lacked standing.
VI. STANDING
       {¶ 52} Silbiger argues that at the time Schaffer died, the representative of the
estate was the only person authorized to file suit to assert Schaffer's claims. In their
argument to the trial court, Silbiger argued that the Greenbergs lacked the legal authority
to file the complaint. On appeal, they alter that argument slightly, arguing that not only
was the complaint a nullity under Levering and Whitley I, but the Greenbergs also lacked
standing pursuant to Schwartzwald.
No. 16AP-283                                                                             13


          {¶ 53} Silbiger argues that because of Schaffer's death, when the Greenbergs filed
the complaint, they had no interest in the case as guardians on behalf of Schaffer, they
lacked standing, and they were in no better position to file suit than a stranger to the
action.
          {¶ 54} In order to commence a lawsuit, a party must have both standing and the
capacity to sue. Eichenberger v. Woodlands Assisted Living Residence, LLC, 10th Dist.
No. 12AP-987, 2013-Ohio-4057, ¶ 14, citing Mousa v. Mt. Carmel Health Sys., 10th Dist.
No. 12AP-737, 2013-Ohio-2661, ¶ 12. Standing is to be determined at the commencement
of suit. Schwartzwald at ¶ 24. In addition, the Supreme Court has held that standing is
jurisdictional in nature, and therefore may be raised at any time. Id. at ¶ 22.
          {¶ 55} While Schaffer was alive, his guardians were authorized to file suit on his
behalf. But once he died, the executor of the estate, as legal representative, stands in the
decedent's shoes and may ordinarily prosecute in his representative capacity any cause
which his decedent could have instituted. Dawson v. Ohio Dept. of Human Servs., 68
Ohio App.3d 262, 263 (1st Dist.1990).
          {¶ 56} As discussed above, the Greenbergs' status as guardians terminated at the
death of Schaffer. Simpson, supra. "A party lacks standing to invoke the jurisdiction of
the court unless he has, in an individual or representative capacity, some real interest in
the subject matter of the action." Dallman at syllabus.
          {¶ 57} Here, Schaffer's death carried the result that the Greenbergs lacked
standing, and this lack of standing means that the Greenbergs were unable to present a
justiciable controversy and invoke the jurisdiction of the court of common pleas. "It is
fundamental that a party commencing litigation must have standing to sue in order to
present a justiciable controversy and invoke the jurisdiction of the common pleas court.
Civ.R. 17(A) does not change this principle, and a lack of standing at the outset of
litigation cannot be cured by receipt of an assignment of the claim or by substitution of
the real party in interest." Schwartzwald at ¶ 41.
          {¶ 58} Because the Greenbergs lacked standing to commence the action once
Schaffer died, the second assignment of error is overruled.
No. 16AP-283                                                                        14


VII. CONCLUSION
      {¶ 59} Based on the foregoing, the Greenbergs' two assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                   Judgment affirmed.


                          KLATT and HORTON, JJ., concur.
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