[Cite as Florkey v. Malott, 2011-Ohio-5199.]


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


MOLLIE FLORKEY, [an adjudicated                        :
incompetent adult, by next-best-friend/                :
daughter Jane Branson as well as Jane                  :
Branson individually,]1                                :
                                                       :
             Plaintiffs-Appellants,                    :           Case No: 11CA9
                                                       :
             v.                                        :
                                                       :           DECISION AND
JAMES MALOTT,                                          :           JUDGMENT ENTRY
                                                       :
             Defendant-Appellee.                       :            Filed: September 30, 2011



                                               APPEARANCES:

Jane Branson, Hillsboro, Ohio, pro se Appellant.

William E. Peelle & Brett W. Rudduck, Peelle Law Offices, Co., L.P.A., Wilmington,
Ohio, for Appellee.


Kline, J.:

{¶1}         Jane Branson (hereinafter “Branson”), appeals the judgment of the Highland

County Court of Common Pleas, which dismissed her complaint under Civ.R. 12(B)(6)

and Civ.R. 17(A). Branson describes herself as the “next-best-friend/daughter” of Mollie

Florkey (hereinafter “Florkey”), and Branson brings this appeal both on behalf of Florkey

and herself individually.




1
  The trial court’s “ENTRY OF DISMISSAL” styles this case as “MOLLIE FLORKEY VS. JAMES
MALOTT[.]” But after reviewing the style of the complaint and reading the verified complaint itself, it is
apparent that Jane Branson filed the complaint on behalf of both (1) Mollie Florkey and (2) herself
individually.
Highland App. No. 11CA9                                                              2


{¶2}       James Malott (hereinafter “Malott”) is Florkey’s guardian, and Branson filed

the present suit against Malott. Branson’s complaint seeks two types of relief. First,

Branson seeks relief on Florkey’s behalf. And second, Branson seeks to have Malott

removed as Florkey’s guardian. To the extent that Branson seeks relief on Florkey’s

behalf, we find that Branson is not the real party in interest. Therefore, the trial court

properly dismissed these claims under Civ.R. 12(B)(6) and Civ.R. 17(A). The trial court,

however, did not have jurisdiction to hear Branson’s guardian-removal claim.

Therefore, we remand this matter and instruct the trial court to transfer Branson’s

guardian-removal claim to the probate court. For these reasons, we affirm, in part, and

reverse, in part, the trial court’s judgment.

                                                I.

{¶3}       Mollie Florkey is Branson’s mother. In a prior case, Branson sought to be

appointed as Florkey’s guardian, but the probate court appointed Malott instead. See In

re Guardianship of Florkey, Highland App. No. 07CA22, 2008-Ohio-4994 (hereinafter

“Florkey I”).

{¶4}       On December 7, 2010, Branson filed a pro se complaint against Malott.

Branson referred to herself as Florkey’s “next-best-friend/daughter” and made claims

against Malott on Florkey’s behalf. In her complaint, Branson alleged that Malott acted

under “the auspices of [a] fraudulent POA and fraudulent guardianship appointment[.]”

Branson further claimed that Malott violated both Florkey’s constitutional rights and

Florkey’s rights under the Americans With Disabilities Act. For these reasons, Branson

asked (1) that Malott’s Power of Attorney be cancelled and (2) that Malott “be made to

account honestly and fully for his acts, conducts and financial dealings under the POA
Highland App. No. 11CA9                                                              3


document, and that an award of unspecified damages be awarded to [Florkey] and her

estate for all wrongs and unauthorized acts, conducts and dealings which either

benefited the defendant and worked a damage to [Florkey] and her estate.”

{¶5}      Branson’s complaint also alleges that Malott acquired real property from

Florkey for “grossly inadequate consideration.” As a result, Branson included an action

to quiet title under R.C. 5303.01. Essentially, Branson asked the trial court to return the

real property to Florkey.

{¶6}      On January 5, 2011, Malott filed motions to dismiss under Civ.R. 12(B)(6) and

Civ.R. 17. Malott claimed (1) that Branson is not the real party in interest and (2) that

Branson’s various claims have no basis in law or fact.

{¶7}      On February 14, 2011, the trial court held a hearing on Malott’s motion to

dismiss. Malott appeared at the hearing with his attorney, and Branson appeared pro

se. We do not have a transcript of this hearing.

{¶8}      On February 15, 2011, the trial court granted Malott’s motion to dismiss. The

trial court found the following: “Malott is currently the court appointed Guardian over

Mollie Florkey in case # 20072036 in the Highland County Court of Common Pleas,

Probate Division. As Guardian over the person of Mollie Florkey[,] James Malott has

not ratified this action via affidavit or otherwise. The Court therefore finds the current

action has not been brought by a real party in interest contra to Ohio Civil Rule 17.”

February 15, 2011 Entry of Dismissal. The trial court also agreed that Branson’s

various claims have no basis in law or fact.

{¶9}      Branson appeals and asserts the following three assignments of error: I. “The

trial Court’s finding that the complaint cannot be brought by the Next-Best-Friend absent
Highland App. No. 11CA9                                                                4


being ratified by the ‘alleged’ guardian is contrary to law and Ohio public policy,

unconstitutional, and[] an abuse of the trial Court’s discretion.” II. “The trial Court[’s]

determination that Plaintiff’s complaint failed to state a claim upon which relief could be

granted is in error as a matter of law, and is likewise an abuse of discretion.” And, III.

“The trial Court abused its discretion in overruling the motion for change of venue and

likewise abused its discretion dismissing the motion as moot.”

                                              II.

{¶10}       Initially, we note that Branson failed to provide a transcript of the February 14,

2011 hearing on Malott’s motion to dismiss. In relevant part, App.R. 9(B) provides: “At

the time of filing the notice of appeal the appellant, in writing, shall order from the

reporter a complete transcript or a transcript of the parts of the proceedings not already

on file as the appellant considers necessary for inclusion in the record and file a copy of

the order with the clerk.” Because Branson bears the burden of demonstrating error by

reference to matters in the record, she has a duty to provide a transcript of the

proceedings. Pryor v. Pryor, Ross App. No. 09CA3096, 2009-Ohio-6670, at ¶24.

“When portions of the transcript necessary for resolution of assigned errors are omitted

from the record, the reviewing court has nothing to pass upon and thus, as to those

assigned errors, the court has no choice but to presume the validity of the lower court’s

proceedings, and affirm.” Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197,

199. Therefore, to the extent that a record of the February 14, 2011 hearing is

necessary to resolve this appeal, we must presume the validity of the trial court’s

decision.

                                              III.
Highland App. No. 11CA9                                                             5


{¶11}     We will address Branson’s first-and-second assignments of error together. In

her first assignment of error, Branson contends that the trial court erred when it found

that she is not the real party in interest. And in Branson’s second assignment of error,

she contends that the trial court erred when it granted Malott’s motion to dismiss.

{¶12}     Branson’s complaint seeks two types of relief. First, Branson asserts claims

against Malott on Florkey’s behalf. As to these claims, we find that the trial court

correctly dismissed Branson’s complaint under Civ.R. 12(B)(6) and Civ.R. 17. Second,

Branson seeks to remove Malott as Florkey’s guardian. As to Branson’s guardian-

removal claim, we find that the trial court lacked jurisdiction. Therefore, we remand this

case and instruct the trial court to transfer Branson’s guardian-removal claim to the

probate court.

                                   a. Motion to Dismiss

{¶13}     A dismissal for failure to state a claim upon which relief can be granted is a

question of law that we review de novo. Cleveland Elec. Illum. Co. v. Pub. Util. Comm.,

76 Ohio St.3d 521, 523, 1996-Ohio-298. “In reviewing a complaint upon a motion to

dismiss pursuant to Civ.R. 12(B)(6), [the Supreme Court of Ohio] has held that a court

must presume that all factual allegations of the complaint are true and that all

reasonable inferences must be made in favor of the nonmoving party.” Perez v.

Cleveland (1993), 66 Ohio St.3d 397, 399 (citation omitted). To dismiss a complaint

under Civ.R. 12(B)(6), “it must appear from the face of the complaint that [Branson] can

prove no set of facts that would entitle [her] to relief.” Maitland v. Ford Motor Co., 103

Ohio St.3d 463, 2004-Ohio-5717, at ¶11.

                                 b. Real Party In Interest
Highland App. No. 11CA9                                                                6


{¶14}      “Every action shall be prosecuted in the name of the real party in interest.”

Civ.R. 17(A). “A real party in interest is one who is directly benefited or injured by the

outcome of the case.” U.S. Bank Natl. Assn. v. Marcino, 181 Ohio App.3d 328, 2009-

Ohio-1178, at ¶31, citing Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. “If an

individual or one in a representative capacity does not have a real interest in the subject

matter of the action, that party lacks the standing to invoke the jurisdiction of the court.”

Residential Funding Co., L.L.C. v. Thorne, Lucas App. No. L-09-1324, 2010-Ohio-4271,

at ¶29, citing State ex rel. Dallman v. Court of Common Pleas, Franklin Cty. (1973), 35

Ohio St.2d 176, syllabus. Significantly, however, a “guardian * * * may sue in his name

as such representative without joining with him the party for whose benefit the action is

brought.” Civ.R. 17(A).

        c. Dismissal Was Proper Because Branson is not the Real Party In Interest

{¶15}      To the extent that Branson’s complaint seeks relief on Florkey’s behalf, we

find that Branson is not the real party in interest. Florkey I established Malott as the

guardian of both Florkey’s person and estate. See Florkey I at ¶¶3, 6, 14, 16.

Therefore, Malott may sue on Florkey’s behalf. This is so even though Malott would not

have a real interest in the suit. Rather, Florkey herself would be the real party in

interest. See Civ.R. 17(B); Boyd v. Edwards (1982), 4 Ohio App.3d 142, 145 (“The Rule

* * * makes clear that where a guardian brings such suit, he is not himself the ‘party’ but

is acting in the ‘name’ of ‘the real party in interest[.]’”).

{¶16}      Similarly, in the present case, Florkey is the real party in interest.

Furthermore, Branson is not Florkey’s guardian -- Malott is. Therefore, unlike Malott,

Branson may not sue on Florkey’s behalf. See Civ.R. 17(B) (“Whenever a minor or
Highland App. No. 11CA9                                                             7


incompetent person has a representative, such as a guardian or other like fiduciary, the

representative may sue or defend on behalf of the minor or incompetent person. If a

minor or incompetent person does not have a duly appointed representative the minor

may sue by a next friend or defend by a guardian ad litem.”) (emphasis added).

{¶17}     Because Branson is neither (1) the real party in interest nor (2) Florkey’s

guardian, she does not have standing to bring claims on Florkey’s behalf. “Lack of

standing challenges a party’s capacity to bring an action and is properly raised by a

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

granted.” Cramer v. Javid, Franklin App. No. 10AP-199, 2010-Ohio-5967, at ¶10

(citation omitted). Accordingly, to the extent that Branson brings claims on Florkey’s

behalf, we find that dismissal was proper under Civ.R. 12(B)(6) and Civ.R. 17.

                            d. Jurisdiction of the Lower Court

{¶18}     Branson claims that her suit should proceed because, in part, she seeks to

remove Malott as Florkey’s guardian. After a liberal reading of Branson’s complaint, we

find that Branson has asserted a guardian-removal claim. See, generally, Barnes v.

Tolliver (1995), 100 Ohio App.3d 391, 393 (liberally construing a pro se plaintiff’s

complaint); In re Guardianship of Constable, Clermont App. Nos. CA2006-08-058 &

CA2006-09-067, 2007-Ohio-3346, at ¶8 (“Ohio courts have recognized that an

interested person may move for the removal of a guardian under [R.C. 2109.24.]”). We

note, however, that Branson filed this suit in the general division of the Highland County

Court of Common Pleas. And under R.C. 2101.24(A)(1)(e), “the probate court has

exclusive jurisdiction * * * [t]o appoint and remove guardians, conservators, and

testamentary trustees, direct and control their conduct, and settle their accounts[.]”
Highland App. No. 11CA9                                                               8


(Emphasis added.) On appeal, we must raise any jurisdictional issues sua sponte.

See, e.g., Huddleston v. Mullen, Washington App. No. 09CA39, 2010-Ohio-2491, at

¶13. Therefore, we find that the lower court lacked jurisdiction to consider Branson’s

guardian-removal claim.

{¶19}     Thus, the question is: What should the trial court have done with the

guardian-removal portion of Branson’s complaint? The trial court did not discuss

jurisdictional issues in its entry of dismissal. And because we do not have a transcript,

we do not know whether the parties discussed jurisdictional issues at the February 14,

2011 hearing. Nevertheless, we must address these jurisdictional issues and determine

the proper course of action for Branson’s guardian-removal claim.

{¶20}      Here, we find that Branson’s guardian-removal claim should be transferred to

the probate court. “Civ.R. 73, which governs the probate court, provides, in part, that

‘[p]roceedings which are improperly venued shall be transferred to a proper venue

provided by law and this subdivision * * *.’ Civ.R[.] 73(B). [The Tenth District Court of

Appeals] has interpreted that rule to authorize the transfer of a matter from the general

division of the common pleas court to the probate division of the common pleas court

when the matter was docketed in the wrong division of the common pleas court.” Keith

v. Bringardner, Franklin App. No. 07AP-666, 2008-Ohio-950, at ¶15, citing Siebenthal v.

Summers (1978), 56 Ohio App.2d 168, 173-174. We agree with the Tenth Appellate

District’s interpretation of Civ.R. 73(B). Furthermore, we note that Civ.R. 73(B) uses the

word “shall.” Usually, “[t]he word ‘shall’ is * * * interpreted to make the provision in

which it is contained mandatory.” State v. Smith, Stark App. No. 2010-CA-00335, 2011-

Ohio-3206, at ¶48, citing Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d
Highland App. No. 11CA9                                                               9


102, 107. Accordingly, under Civ.R. 73(B), Branson’s guardian-removal claim should

be transferred to the probate court. See Bringardner at ¶17 (finding that “the trial court

should have transferred the case to the probate division”); Siebenthal at 174 (finding

that “the trial court erred and abused its discretion in overruling the motion for transfer”).

                                             IV.

{¶21}     In conclusion, to the extent that Branson brings claims on Florkey’s behalf,

Branson is not the real party in interest. Therefore, the trial court properly dismissed

these claims under Civ.R. 12(B)(6) and Civ.R. 17. Additionally, to the extent that

Branson seeks to remove Malott as Florkey’s guardian, the trial court lacks jurisdiction.

Therefore, we remand this matter and instruct the trial court to transfer Branson’s

guardian-removal claim to the probate court.

{¶22}     Accordingly, we overrule, in part, and sustain, in part, Branson’s first-and-

second assignments of error. Based on our decision, Branson’s third assignment of

error is moot. See App.R. 12(A)(1)(c). (Both Civ.R. 73(B) and Branson’s third

assignment of error contain the word “venue.” However, Branson’s third assignment of

error has no relation to Civ.R. 73(B). In the proceedings below, Branson moved to have

her case transferred from Highland County to an adjoining county. Branson’s third

assignment of error addresses the trial court’s denial of her change-of-venue motion.)

{¶23}     Therefore, we (1) affirm, in part, the judgment of the trial court, (2) reverse, in

part, the judgment of the trial court, and (3) remand this cause to the trial court for

further proceedings consistent with this opinion.

                              JUDGMENT AFFIRMED, IN PART, REVERSED, IN PART,
                                                      AND CAUSE REMANDED.
Highland App. No. 11CA9                                                            10


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN
PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings
consistent with this opinion. Appellants and Appellee shall pay equally the 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
Highland County Common Pleas Court 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. Exceptions.


       Harsha, P.J. and Abele, J.: Concur in Judgment and Opinion.



                                  For the Court


                                  BY:_____________________________
                                     Roger L. Kline, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
