[Cite as Ctr. for Family & Child Dev. v. Daley, 2013-Ohio-2592.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
THE CENTER FOR FAMILY AND                             :       Hon. W. Scott Gwin, P.J.
CHILD DEVELOPMENT, ET AL                              :       Hon. Sheila G. Farmer, J.
                                                      :       Hon. John W. Wise, J.
                      Plaintiffs-Appellants           :
                                                      :
-vs-                                                  :       Case No. CT2012-0054
                                                      :
MELISSA DALEY, ET AL                                  :
                                                      :       OPINION
                   Defendants-Appellees




CHARACTER OF PROCEEDING:                                  Civil appeal from the Muskingum County
                                                          Court of Common Pleas, Case No.
                                                          CC2011-0590

JUDGMENT:                                                 Affirmed

DATE OF JUDGMENT ENTRY:                                   June 20, 2013

APPEARANCES:

For - Appellants                                          For - Appellees

PETER CULTICE                                             SCOTT EICKELBERGER
58 N. Fifth St.                                           RYAN LINN
Zanesville, OH 43701                                      50 N. Fourth Street
                                                          Zanesville, OH 43701

For - Donald Davis                                        For - Bradley Bumpus
DERRICK MOOREHEAD                                         D. WESLEY NEWHOUSE
58 N. Fifth St.                                           NPL&M
Zanesville, OH 43701                                      5025 Arlington Centre Blvd.
                                                          Columbus, OH 43220
[Cite as Ctr. for Family & Child Dev. v. Daley, 2013-Ohio-2592.]


Gwin, P.J.

        {¶1}     Appellants appeal the October 18, 2012 judgment entry of the Muskingum

County Court of Common Pleas granting summary judgment to appellees and

dismissing the action without prejudice.

                                           Facts & Procedural History

        {¶2}     Appellants The Center for Child and Family Development (“CFCD”) and

Phillip Arthur (“Arthur”) filed their complaint on November 18, 2011, alleging various civil

torts including fraud and breach of duty of loyalty against appellees, current and

previous officers and directors of CFCD or others to whom payments had been made by

CFCD.       Simultaneously with their complaint, appellants filed a motion to appoint

receiver.      After appellees filed their answers, they filed a motion to dismiss on

December 19, 2011, alleging appellant Arthur lacked standing to maintain the action

because he did not have the authority to act on behalf of CFCD and was not the

president of the board of trustees of CFCD.

        {¶3}     The trial court decided that before concluding whether to appoint a

receiver, the court had to determine whether appellants had standing to file and

maintain the cause of action.              On December 29, 2011, appellees and appellants

stipulated to the use of a special master. Counsel for appellees and appellants signed

and filed an agreed entry appointing a special master. The trial court appointed the

special master to research and investigate the issue of whether or not appellants had

standing to file and maintain the cause of action; determine who are board members;

and determine who constituted the board at the time the complaint was filed. The

agreed order required the special master to submit a written report with his
Muskingum County, Case No. CT2012-0054                                                    3


recommendations. Though the special master had “serious questions” about corporate

expenditures and conflicts of interest of CFCD, he limited his inquiry to the questions

asked by the trial court and concluded that “Arthur does not have standing to maintain

this action, that the board members at the time this action was initiated (November 18,

2011) were Richard Hull, Patrick Hurley, and Valerie McHenry, and that the current

board members of the Corporation are Richard Hull, Patrick Hurley, Valerie McHenry,

and Rick Cline.” The special master provided his original report to the trial court, with

copies to be distributed to all parties. The trial court filed the report of the special

master under seal.

       {¶4}   On May 24, 2012, appellees filed a joint motion for summary judgment for

failure of the real party in interest to commence the action. Appellees incorporated the

report of the special master into their motion, attached as an exhibit a May 8, 2012

resolution of CFCD to dismiss the current action, and attached as an exhibit an affidavit

of Richard Hull, stating he is a member of the board of trustees of CFCD and stating the

copy of the action of the board members to dismiss the above-captioned lawsuit is a

true and accurate copy of the original document containing his signature and the

signature of the other board members.

       {¶5}   Appellants filed a motion to strike the motion for summary judgment or

motion to deny summary judgment on May 29, 2012, stating the trial court requested a

dismissal entry without prejudice based on the report of the special master and arguing

the court should deny the motion for summary judgment because the motion does not

comply with Rule 56 and because no depositions, answers to interrogatories, written

admissions, affidavits, transcripts or written stipulations of fact exist. At the conclusion
Muskingum County, Case No. CT2012-0054                                                  4


of their motion, appellees requested the trial court schedule a hearing on the report of

the special master.    The trial court denied appellants’ motion to set a hearing to

challenge the recommendations of the special master on July 9, 2012.

      {¶6}   A scheduling order issued by the trial court on July 9, 2012 stated that “all

parties who desire to oppose said motion for summary judgment shall file all

documents, exhibits, affidavits, etc. as contemplated under Civil Rule 56 together with a

legal brief in opposition to the motion on or before August 9, 2012.” Pursuant to the

scheduling order, reply briefs were due on or before August 24, 2012. On August 9,

2012, appellants filed a memorandum in opposition to summary judgment, again stating

appellees failed to submit any Rule 56(C) evidence in support of their motion.

Appellees filed a reply on August 24, 2012.

      {¶7}   The trial court granted summary judgment to appellees on October 18,

2012, finding Arthur was not the real party in interest and lacked standing to pursue the

current action. The trial court based its decision on the report of the special master,

Exhibit A, and Exhibit B of appellees’ motion for summary judgment. Appellants appeal

from the October 18, 2012 judgment entry and raise the following assignment of error

on appeal:

      {¶8}   “I. THE MUSKINGUM COUNTY, OHIO, COURT OF COMMON PLEAS

(TRIAL COURT) ERRED AS A MATTER OF LAW IN ITS DECISION GRANTING

SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES SINCE DOCUMENTS

NECESSARY FOR THE TRIAL COURT TO CONSIDER PURSUANT TO RULE 56(C)

OF THE OHIO RULES OF CIVIL PROCEDURE WERE NOT PRESENT BEFORE THE

TRIAL COURT.”
Muskingum County, Case No. CT2012-0054                                                     5

                                       Real Party in Interest

       {¶9}   Civil Rule 17(A) provides in part:

              “Every action shall be prosecuted in the name of the real party in

              interest. * * * 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 if the action had been commenced in the

              name of the real party in interest.”

       {¶10} A real party in interest is “one who has a real interest in the subject matter

of the litigation, and not merely an interest in the action itself, i.e., one who is directly

benefited or injured by the outcome of the case.” Shealy v. Campbell, 20 Ohio St.3d 23,

24-25, 485 N.E.2d 701 (1985). If one who is not the real party in interest asserts a

claim, then the party lacks standing to prosecute the action, but the court is not deprived

of subject matter jurisdiction. See State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70,

701 N.E.2d 1002 (1998), citing State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662

N.E.2d 366, 369 (1996); and State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245,

251, 594 N.E.2d 616, 621(1992). The lack of standing may be cured by substituting the

proper party so that a court otherwise having subject matter jurisdiction may proceed to

adjudicate the matter. Civ.R. 17.
Muskingum County, Case No. CT2012-0054                                                  6

                                      Summary Judgment

      {¶11} Civ.R. 56 states, in pertinent part:

              “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 of material fact and that

      the moving party is entitled to judgment as a matter of law. No evidence or

      stipulation may be considered except as stated in this rule. A summary

      judgment shall not be rendered unless it appears from the evidence or

      stipulation, and only from the evidence or stipulation, that reasonable

      minds can come to but one conclusion and that conclusion is adverse to

      the party against whom the motion for summary judgment is made, that

      party being entitled to have the evidence or stipulation construed mostly

      strongly in the party’s favor. A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶12} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
Muskingum County, Case No. CT2012-0054                                                     7

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

        {¶13} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court.          Smiddy v. The

Wedding Party, Inc., 30 Ohio St. 3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶14} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).

        {¶15} Appellants argue the trial court’s entry granting summary judgment is

erroneous as a matter of law because no documents, with the exception of the

complaint and answers, were available for the trial court to consider when granting the

motion for summary judgment. We disagree.

        {¶16} In this case, the parties stipulated to utilize a special master to investigate

and report on the issue of whether appellants had standing to file and maintain the
Muskingum County, Case No. CT2012-0054                                                        8


cause of action. The special master’s report, incorporated into the motion for summary

judgment, conclusively found the action was not commenced by a real party in interest.

Subsequent to the special master’s report, CFCD, by unanimous written action of the

board, authorized dismissal of this action by resolution, expressly refusing to ratify this

action. The affidavit of Richard Hull states he is a member of the board of trustees of

CFCD and that the copy of the action of the board members to dismiss the above-

captioned lawsuit is a true and accurate copy of the original document containing his

signature and the signature of the other board members. The documents provided by

appellees are of evidentiary quality and value pursuant to Civ.R. 56(C), indicate

appellant Arthur is not a real party in interest, and that CFCD authorized dismissal of the

action by resolution.

       {¶17} As appellees met their evidentiary burden to establish there is no issue of

material fact that Arthur is not a real party in interest and CFCD authorized dismissal of

the action by resolution, appellants have the reciprocal burden to point to evidentiary

material that suggests summary judgment is not warranted. No contrary Civ.R. 56(C)

evidence was presented by appellants to indicate that Arthur was the real party in

interest when this action was commenced or that CFCD did not authorize dismissal of

the action. Further, Arthur’s complaint is pled entirely upon his standing as president of

CFCD. Because the CFCD board authorized dismissal of this action, CFCD, as the real

party in interest, does not intend to join or substitute itself as the plaintiff in this action.

Accordingly, we find there is no genuine issue of material fact remaining to be litigated

and appellees are entitled to a judgment as a matter of law. The trial court did not err in

granting summary judgment to appellees.
Muskingum County, Case No. CT2012-0054                                     9


      {¶18} Appellants’ assignment of error is overruled.

      {¶19} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.

Farmer, J., and

Wise, J., concur


                                       _________________________________
                                       HON. W. SCOTT GWIN


                                       _________________________________
                                       HON. SHEILA G. FARMER


                                       _________________________________
                                       HON. JOHN W. WISE




WSG:clw 0603
[Cite as Ctr. for Family & Child Dev. v. Daley, 2013-Ohio-2592.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


THE CENTER FOR FAMILY AND
CHILD DEVELOPMENT, ET AL                               :
                                                       :
                         Plaintiffs-Appellants         :
                                                       :
                                                       :
-vs-                                                   :           JUDGMENT ENTRY
                                                       :
MELISSA DALEY, ET AL                                   :
                                                       :
                                                       :
                      Defendants-Appellees             :           CASE NO. CT2012-0054




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Muskingum County Court of Common Pleas is affirmed. Costs to appellants.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. SHEILA G. FARMER


                                                           _________________________________
                                                           HON. JOHN W. WISE
