[Cite as Taneff v. HCR ManorCare Inc., 2015-Ohio-3453.]


STATE OF OHIO                   )                         IN THE COURT OF APPEALS
                                )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

SPECIAL ADMINISTRATOR THOMAS                              C.A. No.   27554
TANEFF ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES
OF ANNA NESTOR
                                                          APPEAL FROM JUDGMENT
        Appellant                                         ENTERED IN THE
                                                          COURT OF COMMON PLEAS
        v.                                                COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV 2013 11 5391
HCR MANORCARE, INC., et al.

        Appellees

                               DECISION AND JOURNAL ENTRY

Dated: August 26, 2015



        WHITMORE, Judge.

        {¶1}    Appellant Patty Leaver, administratrix of the estate of Anna Nestor, was

substituted for Thomas Taneff as the proper party to this appeal. Ms. Leaver appeals the trial

court’s grant of summary judgment in favor of Appellees, HCR ManorCare Services, Inc., HCR

ManorCare, Inc., Heartland Employment Services, LLC, ManorCare of Barberton, OH, LLC,

and Sara Burton (collectively, “ManorCare”). We reverse.

                                                    I

        {¶2}    Anna Nestor was a nursing home patient at ManorCare for 28 days before she

died on November 19, 2011. Her daughter, Ms. Leaver, filed a wrongful death action against

ManorCare on November 18, 2013, immediately prior to the two-year statutory time bar for

wrongful death claims.
                                                 2


         {¶3}    Ms. Leaver filed the wrongful death suit individually, and on behalf of her

mother’s wrongful death beneficiaries. At the time of filing, no estate had been opened for Ms.

Nestor, and Ms. Leaver was not the duly appointed personal representative of her mother’s

estate. Ms. Leaver hired probate attorney Thomas Taneff and began the process of opening an

estate for her mother after she filed suit. Mr. Taneff was appointed special administrator of Ms.

Nestor’s estate after the complaint was filed.

         {¶4}    ManorCare moved for judgment as a matter of law on the ground that Ms. Leaver

lacked standing to bring the wrongful death suit. ManorCare argued that Ms. Leaver lacked

standing because she had not demonstrated that: (1) there was an estate, and (2) she was the duly

appointed representative of the estate. Ms. Leaver did not respond to ManorCare’s motion, but

instead filed a second amended complaint,1 substituting Special Administrator Taneff as the

named party representative.

         {¶5}    ManorCare again moved for judgment as a matter of law, challenging Ms.

Leaver’s standing and capacity at the time of filing of the original complaint. The trial court

found that ManorCare was entitled to summary judgment under Civ.R. 56 on the basis of Ms.

Leaver’s alleged lack of standing. Specifically, the trial court found that: (1) Ms. Leaver lacked

standing to file the original complaint because she was not appointed personal representative of

her mother’s estate, and (2) because she lacked standing, the second amended complaint filed by

Special Administrator Taneff did not relate back to the original filing, and was therefore time

barred. The trial court did not address Ms. Leaver’s capacity to file the original complaint.




1
    The first amended complaint merely corrected typographical errors.
                                                  3


       {¶6}    Ms. Leaver now appeals.2 She raises two assignments of error for our review.

                                                  II

                                 Assignment of Error Number One

       THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF IN A
       WRONGFUL DEATH ACTION MUST BE APPOINTED PERSONAL
       REPRESENTATIVE OF THE ESTATE IN ORDER TO HAVE STANDING.

       {¶7}    In her first assignment of error, Ms. Leaver argues that the trial court erred when

it held that R.C. 2125.02(A)(1) requires a wrongful death beneficiary to be appointed the

personal representative of the estate before the beneficiary will have standing to sue. We agree.

       {¶8}    “Standing is a preliminary inquiry that must be made before a court may consider

the merits of a legal claim.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010–Ohio–6036, ¶ 9.

Whether standing exists is a question of law that an appellate court reviews de novo. State ex.

rel. Ohio Chapter of Associated Builders & Contractors, Inc. v. Barberton City School Dist. Bd.

of Edn., 188 Ohio App.3d 395, 2010-Ohio-1826, ¶ 10 (9th Dist.).

       {¶9}    Likewise, this Court reviews a trial court’s grant of summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), summary

judgment is only proper if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

2
  After the notice of appeal was filed, Mr. Taneff was removed as special administrator, and Ms.
Leaver became the administratrix of the estate. ManorCare moved to dismiss the appeal based
on Mr. Taneff’s alleged lack of standing. This Court deferred ruling on the motion to dismiss.
Subsequently, we ordered Ms. Leaver to either amend the notice of appeal to reflect her status as
the personal representative of the estate, and to be substituted as the proper party to the appeal, or
face dismissal. Ms. Leaver complied. We granted Ms. Leaver’s motions to amend the notice of
appeal and to be substituted as the proper appellant without deciding the ultimate issues on
appeal.
                                                4



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

       {¶10} “The right to sue for wrongful death in Ohio is a statutorily created right.”

Tennant v. State Farm Mut. Ins. Co.¸ 81 Ohio App.3d 20, 23 (9th Dist. 1991) citing Rubeck v.

Huffman, 54 Ohio St.2d 20, 22 (1978). The wrongful death statutes are codified in R.C. Chapter

2125. The statute provides that a wrongful death action generally must be brought within two

years of the decedent’s death. R.C. 2125.02(D)(1). Further, “[w]rongful death actions must 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[.]’” Cushing v. Sheffield Lake,

9th Dist. Lorain No. 13CA010464, 2014-Ohio-4617, ¶ 4, quoting R.C. 2125.02(A)(1). “A

personal representative appointed in this state, with the consent of the court making the

appointment and at any time before or after the commencement of a civil action for wrongful

death, may settle with the defendant the amount to be paid.” R.C. 2125.02(C).

       {¶11} Here, the trial court’s grant of summary judgment to ManorCare is based on Ms.

Leaver’s alleged lack of standing under R.C. 2125.02 to bring a wrongful death action, because

she was not the personal representative of the estate when she filed the original complaint. In so

holding, the trial court has confused “standing” and “capacity.” A party must have both standing

and capacity to sue. Mousa v. Mt. Carmel Health Sys., Inc., 10th Dist. Franklin No. 12AP-737,

2013-Ohio-2661, ¶ 12. However, standing and capacity are distinct legal concepts under Ohio

law. See Reynolds v. HCR ManorCare, Inc., 9th Dist. Summit No. 27411, 2015-Ohio-2933, ¶

13; Eichenberger v. Woodlands Assisted Living Residence, LLC, 10th Dist. Franklin No. 12AP-

987, 2013-Ohio-4057, ¶ 14-15; Country Club Townhouses North Condominium Unit Owners

Assn. v. Slates, 9th Dist. Summit No. 17299, 1996 WL 28003, *2 (Jan. 24, 1996).
                                                 5


        {¶12} “Capacity concerns a determination as to whether an individual may properly sue,

either as an entity or on behalf of another.” Mousa at ¶ 13, citing Natl. City Mtge. v. Skipper, 9th

Dist. Summit No. 24772, 2009-Ohio-5940, ¶ 11. “Capacity to sue or be sued does not equate

with the jurisdiction of a court to adjudicate a matter; it is concerned merely with a party’s right

to appear in a court in the first instance.” Skipper at ¶ 11 quoting Country Club Townhouses-

North Condominium Unit Owners Assn. at *3.

        {¶13} Standing, on the other hand, is jurisdictional and involves whether a party has a

personal stake in the outcome of an action, rather than a representative or nominal interest in the

claim. Reynolds at ¶ 13-14. A party has standing if it is a real party in interest. Id. at ¶ 14. A

real party in interest is an individual who has suffered an injury in a matter. Id., citing Mousa at

¶ 12.

        {¶14} With respect to the requirements of R.C. 2125.02(A)(1), this Court has held that

“[t]he real parties in interest in a wrongful death action are the beneficiaries, while the personal

representative is a nominal party to the case.” Cushing, 2014-Ohio-4617 at ¶ 4, citing Toledo

Bar Assn. v. Rust, 124 Ohio St.3d 305, 2010-Ohio-170, ¶ 21. Section 2125.02(A)(1) provides

that surviving children, among others, are the beneficiaries of a wrongful death action.

Accordingly, Ms. Leaver is a beneficiary here. As a beneficiary, she is a real party in interest,

and thus has standing to bring the wrongful death claim. See Reynolds, 2015-Ohio-2933 at ¶ 14,

16.

        {¶15} ManorCare argues that children of the decedent do not inevitably have standing

under the wrongful death statute. In support of this argument, ManorCare cites to cases for the

proposition that, when a statute conveys standing, the constitutional requirement of a personal

stake in the controversy is irrelevant. ManorCare’s argument is not well taken. The cases to
                                                  6


which ManorCare cites hold that statutory standing may expand the scope of potential plaintiffs

beyond those that would otherwise have a stake in the controversy, not that the existence of a

statute obviates the standing of a party with a personal stake in the controversy, particularly

when the wrongful death statute at issue specifies that surviving children indeed are the real

parties in interest to the action. In Ohio Valley Associated Builders & Contrs. v. DeBra-

Kuempel, 192 Ohio App.3d 504, 2011-Ohio-756, ¶ 18-20, 29 (2d Dist.), a case on which

ManorCare relies, the statute at issue expanded standing to individuals who may not have

suffered a direct injury under the prevailing wage law. Likewise, the court in Ohio Valley

Associated Builders & Contrs. v. Indus. Power Sys., Inc., 190 Ohio App.3d 273, 2010-Ohio-4930

(6th Dist.) held that dismissal was inappropriate because the statute at issue authorized the

plaintiff association to file suit even though it had not suffered a personal injury. Id. at ¶ 14-26.

       {¶16} Similarly, R.C. 2125.02 expands the scope of possible plaintiffs with standing

from the narrower confines of those with an immediate stake in the controversy, to include the

personal representative of an estate, who may or may not have a personal stake in the outcome of

the litigation. Together with Civ.R. 17, the statute specifically provides an exception to the

requirement that a real party in interest be named in the caption of the case. Civ.R. 17(A) (“An

executor *** 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.”) However, R.C. 2125.02

does not nullify the standing of a real party in interest, who, under the wrongful death statute, is

the beneficiary of a wrongful death claim.

       {¶17} The first assignment of error is sustained.

                                 Assignment of Error Number Two

       THE TRIAL COURT ERRED IN FINDING THAT RELATION BACK DID
       NOT APPLY TO THE SECOND AMENDED COMPLAINT.
                                                 7


       {¶18} In her second assignment of error, Ms. Leaver argues that the trial court erred

when it held that the second amended complaint filed by Special Administrator Taneff did not

relate back to the original complaint, and consequently was time barred under the two-year

limitation on wrongful death actions in R.C. 2125.02(D). We agree.

       {¶19} ManorCare argues that relation back should not be permitted here because the

wrongful death statute must be strictly construed. According to ManorCare, when the suit is not

brought in the name of the personal representative in the first instance, the complaint fails to

state a cause of action and is a nullity, so that there is no complaint to which a subsequent

pleading may relate.

       {¶20} ManorCare’s argument for strict construction of R.C. 2125.02 relies in significant

part on Sabol v. Pekoc, 148 Ohio St. 545 (1947). The Sabol court acknowledged that no cause

of action for wrongful death existed at common law, and “[u]nless a petition for wrongful death

is filed strictly according to the essential terms of the wrongful-death act, such petition does not

state a good cause of action because the act is the sole source of the right upon which the petition

is based.” Id. at 552, 558. The Court found that the two-year time limitation found in R.C.

2125.02 is an essential term of the act, so that a wrongful death claim filed for the first time

outside of that time limitation is time barred, even if the late filing is due to fraud. Id. at 558.

ManorCare appears to invoke Sabol to make the requirement of R.C. 2125.02 that the case be

captioned in the name of the personal representative of the decedent’s estate an essential term.

However, the Supreme Court of Ohio has already rejected this argument in Douglas v. Daniel

Bros. Coal Co., 135 Ohio St. 641 (1939).

       {¶21} In Douglas, the Supreme Court of Ohio held that an amended wrongful death

petition related back to the filing of the original complaint, and the action was deemed
                                                  8


commenced within the statutory time limit, when the wrongful death plaintiff amended her

petition to show that she was appointed administratrix after the limitation period had expired. Id.

at paragraph one of the syllabus. In so holding, the Court considered whether the requirement of

the wrongful death statute that the prosecution of the action be in the name of the personal

representative is an essential term. The Court found that it was not an essential term, but rather

found that the requirement is “no part of the cause of action itself.” Id. at 647. Specifically, the

Court stated:

       The requirement of the wrongful death statute that the prosecution of the action be
       in the name of the personal representative is no part of the cause of action itself,
       but relates merely to the right of action or remedy. That requirement was
       obviously intended for the benefit and protection of the surviving spouse, children
       and next of kin of a decedent, the real parties in interest. The personal
       representative is only a nominal party. Nor does the statute require that the
       personal representative shall bring the action *** but merely provides that the
       action, if brought, shall be brought in the name of the personal representative.
       The only concern defendants have is that the action be brought in the name of the
       party authorized so that they may not again be haled into court to an[s]wer for the
       same wrong.

Id. at 647-48.

       {¶22} Indeed, both the Supreme Court of Ohio and this Court have said that the

wrongful death statute should not be strictly construed, but rather “is procedural and remedial in

nature and should be given a liberal construction.” Stone v. Phillips, 9th Dist. Summit No.

15908, 1993 WL 303281, *2 (Aug. 11, 1993) citing Kyes v. Pennsylvania Rd. Co., 158 Ohio St.

362 (1952), paragraph two of the syllabus. We have recognized that R.C. 1.11 requires that

“’[r]emedial laws and all proceedings under them shall be liberally construed in order to promote

their object and assist the parties in obtaining justice.’” Stone at *2, quoting R.C. 1.11.

       {¶23} In Stone, this Court noted that Ohio courts have examined procedural issues

surrounding the amendment of the original complaint, and the doctrine of relation back. Stone at
                                                9


*3.   “In addressing these questions, the courts balance the statute’s avowed purpose to

compensate beneficiaries with its technical requirements.”        Id.   We explained that, “[i]n

addressing amendment of wrongful death complaints, this court stressed that ‘[j]ustice abhors the

loss of causes of action by pure technicalities.’” Id., quoting Bell v. Coen, 48 Ohio App.2d 325,

327 (9th Dist.1975). “In that tradition, case law in Ohio illustrates that trial courts liberally

permit pleadings to be amended to cure a defect, so that determinations may be made on the

merits.” Stone at *3, citing Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 107

(1907); Patterson v. V&M Auto Body, 63 Ohio St.3d 573, 577 (1992).

       {¶24} We also have recognized that an amendment with respect to a plaintiff’s capacity

to sue – such as the amendment at issue here – relates to the right of action, and not the

substantive cause of action. Stone at *3, citing Douglas, 135 Ohio St. at 647. “Therefore,

substitution of parties is the proper remedy, rather than dismissal of the action.” Id., citing De

Garza v. Chetister, 62 Ohio App.2d 149, 155 (6th Dist.1978).

       {¶25} Respecting the doctrine of relation back, we said that the general rule is that the

appointment of the administrator relates back to the filing of the petition. Stone, 1993 WL

303281 at *3, citing Archdeacon at 106-107. Relation back is not applied only if a new cause of

action is introduced, such that the defendant would suffer prejudice. Id., citing Burwell v.

Maynard, 21 Ohio St.2d 108, 111 (1970).

       {¶26} Remaining mindful of the liberal amendment and relation back allowances for

wrongful death petitions, we held in Stone that an amended wrongful death complaint related

back to the original filing date. Stone at *4. In that case, the mother of the decedent and

grandmother of the decedent’s three minor children filed a wrongful death petition and referred

to herself as “Executrix of the Estate” and “Guardian” of the children. Id. As in the instant case,
                                                 10


there was no estate in existence at the time of filing of the original complaint, and no guardian

had yet been appointed for the children. Id. When the plaintiff later sought amendment to

change the caption on the complaint, her attorney’s name was substituted as personal

representative, and she had been duly appointed guardian. Id. We held that relation back was

appropriate when: (1) the record contained no evidence that the plaintiff acted other than on the

reasonable belief that, as the closest relative of the decedent, she would be appointed

administrator; (2) there was no evidence that the defendant was prejudiced by the substitution of

party names where all of the real parties in interest and claims remained the same; and (3) all of

the beneficiaries were appropriately represented in the suit, so that the defendant did not need to

fear being sued repeatedly for the same alleged wrong. Id.

       {¶27} Stone is strikingly similar to this case and compels a similar conclusion. Here,

Ms. Leaver is an immediate relative of the deceased, and is explicitly one of the beneficiaries of

R.C. 2125.02(A)(1). Just as in Stone, Ms. Leaver named herself representative of the wrongful

death beneficiaries in her original complaint, even though no estate had been opened, and she

was not the duly appointed personal representative of the estate. Also like in Stone, Ms. Leaver

amended her complaint after the expiration of the two-year time limitation on wrongful death

actions, naming her attorney as the personal representative of the estate. As in Stone, there is no

evidence here that, when she filed her original complaint, Ms. Leaver believed other than that

she would be appointed administrator of her mother’s estate.           Nor is there evidence that

ManorCare has been prejudiced by the substitution of party names; ManorCare does not face any

new claims or adverse parties as a result of the amendment, and has been aware of the claims

against it since the commencement of the lawsuit. Furthermore, ManorCare has not made any

allegation that it will be subject to future litigation brought by improperly excluded beneficiaries.
                                                11


Accordingly, we hold that Ms. Leaver’s second amended complaint relates back to the date the

original complaint was filed, and thus is not time barred under R.C. 2125.02(D).3

       {¶28} We do not believe our conclusion to be irreconcilably at odds with Ramsey v.

Neiman, 69 Ohio St.3d 508 (1994).        In Ramsey, four Justices, the majority, joined in the

concurring opinion and concluded that, under the express language of R.C. 2125.02(C), a

personal representative must be appointed by a court before the case is settled (or judgment

rendered), not before it is filed. Id. at 513-514 (Pfeifer, J., concurring in judgment only). Only

three Justices joined the lead opinion’s reasoning that the appointment of a personal

representative of a decedent’s estate should be a condition precedent to the institution of a

wrongful death action. Id. at 511. Further, in the case below, the facts were that the plaintiff

may never have taken any steps to be appointed as personal representative, so there would have

been no amended pleading substituting a duly appointed representative of the estate to relate

back to the original filing. Ramsey v. Neiman, 9th Dist. Summit No. 15786, 1993 WL 21005, *2

(Jan. 27, 1993). This Court has explained that “we chose not to extend the holding in Ramsey

beyond its own facts.” Stone, 1993 WL 303281 at *3.4            Accordingly, there is no conflict



3
   We are not persuaded by ManorCare’s concern that allowing relation back under these
circumstances could result in an indefinite extension of the time to bring a wrongful death suit in
compliance with R.C. 2125.02(A)(1), or that wrongful death defendants are put at risk of
multiple, concurrent claims if a personal representative can be appointed sometime after the
filing of the original complaint. We agree with the concurrence in Ramsey v. Neiman, 69 Ohio
St.3d 508 (Ohio 1994) that summary judgment would provide an effective “mechanism to screen
out those plaintiffs who have not received court appointment after filing their complaints” (or are
not acting diligently to seek appointment of a personal representative). Id. at 514 (Pfeifer, J.,
concurring in judgment only).
4
  “No personal representative had been appointed, even at the time of oral argument, in the
Ramsey case. That decision, holding that ‘the doctrine of relation back should not apply’ is
inapplicable to this case where we have an appointment to relate back.” Stone, 1993 WL 303281
at *5 (Cook, P.J., concurring.)
                                                12


between Ramsey and our holding today that Ms. Leaver’s second amended complaint relates

back to her original filing, and therefore, is not time barred under R.C. 2125.02(D).

       {¶29} Ms. Leaver’s second assignment of error is sustained.

                                                III

       {¶30} Ms. Leaver’s assignments of error are sustained. The judgment of the Summit

County Court of Common Pleas is reversed, and this matter is remanded for proceedings

consistent with this opinion.

                                                                                Judgment reversed
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                        13



HENSAL, P. J.
SCHAFER, J.
CONCUR.

APPEARANCES:

MICHAEL J. FULLER, JR. and D. BRYANT CHAFFIN, Attorneys at Law, for Appellant.

ROBERT M. ANSPACH, J. RANDALL ENGWERT, and DAVID J. BORELL, Attorneys at
Law, for Appellees.
