[Cite as Armatas v. Cleveland Clinic Found., 2016-Ohio-7315.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STEVEN A. ARMATAS : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellant : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : CLEVELAND CLINIC FOUNDATION : Case No. 2016CA00123 : and : : C. MARTIN HARRIS, M.D. : : Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2015-CVF-4368
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 11, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
STEVEN A. ARMATAS GREGORY T. ROSSI 7690 Bucknell Circle N.W. W. BRADFORD LONGBRAKE North Canton, Ohio 44720 Hanna, Campbell & Powell, LLP 3737 Embassy Parkway, Suite 100 Akron, Ohio 44333 Stark County, Case No. 2016CA00123 2
Baldwin, J.
{¶1} Plaintiff-appellant Steven Armatas appeals from the February 23, 2016,
May 13, 2016 and May 18, 2016 Judgment Entries of the Canton Municipal Court.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 11, 2014, appellant Steven Armatas’ father suffered a cardiac
episode and was taken by ambulance to Aultman Hospital where he was in a coma and
on a respirator. After being told by doctors at Aultman Hospital that his father was unlikely
to recover and should be taken off of the respirator, appellant disagreed and sought to
get a second opinion.
{¶3} On or about December 2, 2014, appellant, as agent for his father, accessed
MyConsult to obtain a second opinion about his father’s diagnosis and prognosis.
MyConsult is an online medical second opinion service offered by appellee Cleveland
Clinic Foundation. Appellant signed the relevant forms on his father’s behalf as
“Alexander E. Armatas by: Steven A. Armatas, Agent via Power of Attorney.” This form
included a MyConsult Online Medical Second Opinion Consultation Proxy Form signed
on December 9, 2014 and a MyConsult Online Medical Second Opinion Consultation
Patient Consent form signed on December 8, 2014.
{¶4} Appellant, as agent for his father, contacted Health Advocate, a separate
and independent company, to assist in obtaining his father’s medical records and
providing them to MyConsult so that MyConsult could provide a second opinion. On
December 8, 2014, appellant, as “Agent via Power of Attorney”, signed a Health Advocate
Authorization for Use and Disclosure of Protected Health Information. Appellant paid
approximately $245.00 to Health Advocate for this service. Stark County, Case No. 2016CA00123 3
{¶5} On December 31, 2014, appellant’s father, who had never been taken off
of the respirator, passed away. Shortly thereafter, appellant received a response from
Health Advocate indicating that the medical records had been sent to MyConsult. On or
about February 26, 2015, MyConsult informed appellant that, as a result of his father’s
death, it would not be rendering a second opinion. Appellant was never billed by appellee
Cleveland Clinic Foundation and the money that he paid to Health Advocate was refunded
to him.
{¶6} Thereafter, on September 2, 2015, appellant filed a complaint against
appellee Cleveland Clinic Foundation and appellee C. Martin Harris, M.D. Appellant, in
his complaint, alleged as follows with respect to appellee Dr. Harris:
5. Defendant Martin Harris, M.D. (hereinafter, “Dr. Harris”) is the
Chief Information Officer and Chairman of the information Technology
Division of the Cleveland Clinic Foundation, and also serves as Executive
Director of e-Cleveland Clinic, which operates several electronic health
clinical programs offered by CCF over the Internet and via the use of various
forms of electronic communications.
***
10. Under the supervision and direction of Dr. Harris, CCF manages
and operates an online medical consulting service, under the umbrella of e-
Cleveland Clinic, known as the Cleveland Clinic MyConsult Clinical
Operations Center (hereinafter, “MyConsult”), which engages in the
business of utilizing physicians and other medical professionals employed
by CCF to review and analyze the medical records of individuals who seek Stark County, Case No. 2016CA00123 4
to obtain a second or additional medical opinion from a Cleveland Clinic
doctor regarding a current diagnosis and/or such conditions, symptoms,
illnesses, injuries or maladies that such persons are currently exhibiting.…
{¶7} Appellant asserted claims for breach of contract, breach of fiduciary duty,
negligent misrepresentation, intentional and negligent infliction of emotional distress,
negligence and joint and several liability. Appellees, on October 2, 2015, filed an answer
to the complaint. Appellees, in their answer, set forth numerous affirmative defenses,
including the defense that appellant was not the real party in interest.
{¶8} On October 13, 2015, appellant filed a Motion for Award of Sanctions
pursuant to Civ.R. 11 and R.C. 2323.51. Appellant, in his motion, argued that defense
counsel “has done little more than cut and paste a number of boilerplate ‘lack of
knowledge’ answers and inapplicable affirmative defenses into a document, and sign it,
even though the most rudimentary investigation and discussions with his client would
have provided much of the ‘knowledge’ that he so desperately seeks.” Appellees filed a
brief in opposition to the Motion for Sanctions on October 26, 2015 and appellant filed a
reply brief on November 2, 2015.
{¶9} Appellant, on November 9, 2015, filed a Motion for Leave to Amend
Plaintiff’s Original Complaint, seeking to dismiss his claims for intentional and negligent
infliction of emotional distress. Pursuant to a Judgment Entry filed on the same day, the
trial court granted the motion.
{¶10} After other pleadings were filed, the trial court, as memorialized in a
Judgment Entry filed on January 7, 2016, denied appellant’s Motion for Award of Stark County, Case No. 2016CA00123 5
Sanctions. While appellant filed a Motion for Reconsideration and a Motion for Civ.R.
54(B) certification, such motions were denied.
{¶11} Appellee Dr. Harris, on January 26, 2016, filed a Motion for Summary
Judgment supported by his own affidavit. Appellant, on January 27, 2016, filed a
response to the same and appellee Dr. Harris, on February 10, 2016, filed a reply brief.
The trial court, pursuant to a Judgment Entry filed on February 11, 2016, denied the
Motion for Summary Judgment, finding that appellee Dr. Harris’ affidavit “does not
specifically address the dates that Dr. Harris supervised and/or directed the My Consult
Program.” The trial court found that there was a genuine issue of material fact as to his
role in this dispute.
{¶12} Subsequently, on March 8, 2016, appellee Dr. Harris filed a Motion for
Reconsideration of his Motion for Summary Judgment, attaching an additional affidavit to
his motion. On March 16, 2016, appellees filed a joint Motion for Summary Judgment
arguing, in part, that appellant lacked standing and, on March 24, 2016, appellant filed a
response to appellee Dr. Harris’ Motion for Reconsideration. Appellee Dr. Harris, on
March 28, 2016, filed a supplement to his Motion for Reconsideration. On March 30, 2016,
he filed his original affidavit, noting that a copy had been attached to his Motion for
Reconsideration. Appellant, on March 31, 2016, filed a reply to appellees’ Motion for
Summary Judgment.
{¶13} The trial court, pursuant to a Judgment Entry filed on May 13, 2016, granted
appellee Dr. Harris’ Motion for Reconsideration and granted summary judgment in his
favor. On May 18, 2016, the trial court granted summary judgment in favor of appellee
Cleveland Clinic Foundation, finding that appellant lacked standing to bring the action. Stark County, Case No. 2016CA00123 6
{¶14} Appellant now raises the following assignments of error on appeal:
{¶15} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
ERROR IN DISMISSING PLAINTIFF’S MOTION FOR SANCTIONS PURSUANT TO
CIV. R. 11 AND R.C. 2323.51 BY FAILING TO CORRECTLY APPLY THE LAW ON THE
SUBJECT OF FRIVOLOUS LEGAL CONDUCT AND NEGLECTING TO TAKE INTO
ACCOUNT DEFENSE COUNSEL’S NUMEROUS UNREASONABLE DENIALS OF THE
FACTS ALLEGED BY PLAINTIFF IN HIS COMPLAINT.”
{¶16} “II. THE TRIAL COURT ERRED IN DISMISSING DR. HARRIS AS A
DEFENDANT PURSUANT TO CIV. R. 56(C) BY FAILING TO TAKE INTO ACCOUNT
GENUINE ISSUES OF MATERIAL FACT REGARDING DEFENDANT’S SUPERVISORY
ROLE WITH MYCONSULT AND MISINTERPRETING THE LAW OF “VICARIOUS
LIABILITY” AND “NOTICE PLEADING” IN OHIO.”
{¶17} “III. THE TRIAL COURT ERRED IN DISMISSING CCF AS A DEFENDANT
PURSUANT TO CIV. R. 56(C) ON THE GROUNDS PLAINTIFF WAS NOT THE REAL
PARTY IN INTEREST TO THE LITIGATION AND THAT THE MYCONSULT PROGRAM
WAS DESIGNED TO ASSIST ONLY CURRENTLY-ILL PATIENTS.”
I
{¶18} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Motion for Sanctions pursuant to Civ.R. 11 and R.C. 2323.51.
{¶19} Civ.R. 11 governs the signing of motions, pleadings, and other documents.
The rule states that “[e]very pleading, motion, or other document of a party represented
by an attorney shall be signed by at least one attorney of record * * *.” By signing the
pleading or motion, the attorney certifies that the attorney has read the motion; to the best Stark County, Case No. 2016CA00123 7
of the attorney's knowledge, information, and belief there is good ground to support the
motion; and that the motion is not interposed for delay. See Civ.R. 11. To impose a
sanction under Civ.R. 11, the trial court must determine whether the attorney met the
three standards. Namenyi v. Tomasello, 2nd Dist. Greene No.2013–CA–75, 2014–Ohio–
4509, ¶ 14.
{¶20} “Civ.R. 11 employs a subjective bad faith standard.” Ferron v. Video
Professor, Inc., 5th Dist. Delaware No. 08–CAE–09–0055, 2009–Ohio–3133, ¶ 77
quoting Stone v. House of Day Funeral Serv., Inc. 140 Ohio App.3d 713, 721, 748 N.E.2d
1200 (6th Dist.2000). “If any one of the three Civ.R. 11 requirements is not satisfied, the
trial court must then determine whether the violation was willful as opposed to merely
negligent.” Namenyi, 2014–Ohio–4509 at ¶ 14 quoting Ponder v. Kamienski, 9th Dist.
Summit No. 23270, 2007–Ohio–5035, ¶ 36. The attorney's actual intent or belief is
relevant to the determination of willfulness. Ferron, 2009–Ohio–3133 at ¶ 77. If the trial
court finds the Civ.R. 11 violation was willful, it may impose an appropriate sanction.
Namenyi, 2014–Ohio–4509 at ¶ 14.
{¶21} The trial court's decision to impose sanctions cannot be reversed absent an
abuse of discretion. Ferron, 2009–Ohio–3133 at ¶ 77.
{¶22} In contrast to Civ.R. 11, the imposition of sanctions under R.C. 2323.51
requires the trial court to find frivolous conduct. R.C. 2323.51 provides that a court may
award court costs, reasonable attorney fees, and other reasonable expenses incurred in
connection with the civil action or appeal to any party to the civil action or appeal who was
adversely affected by frivolous conduct. Prior to awarding damages under R.C. 2323.51,
the trial court must hold a hearing “to determine whether particular conduct was frivolous, Stark County, Case No. 2016CA00123 8
to determine, if the conduct was frivolous, whether any party was adversely affected by
it, and to determine, if an award is to be made, the amount of that award[.]” R.C.
2323.51(B)(2)(a).
{¶23} “Frivolous conduct” is the conduct of a party to a civil action or of the party's
counsel that satisfies any of the following four criteria:
(i) It obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another improper purpose,
including, but not limited to, causing unnecessary delay or a needless
increase in the cost of litigation.
(ii) It is not warranted under existing law, cannot be supported by
a good faith argument for an extension, modification, or reversal of existing
law, or cannot be supported by a good faith argument for the establishment
of new law.
(iii) The conduct consists of allegations or other factual
contentions that have no evidentiary support or, if specifically so identified,
are not likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are
not warranted by the evidence or, if specifically so identified, are not
reasonably based on a lack of information or belief.
R.C. 2323.51(A)(2)(a)(i)-(iv).
{¶24} The question of what constitutes frivolous conduct may be either a factual
determination or a legal determination. Ferron, 2009–Ohio–3133 at ¶ 44. No single Stark County, Case No. 2016CA00123 9
standard of review applies in R.C. 2323.51 cases. Wiltberger v. Davis, 110 Ohio App .3d
46, 51, 673 N.E.2d 628 (10th Dist.1996). The finding of frivolous conduct under R.C.
2323.51 is determined without reference to what the individual knew or believed.
Namenyi, 2014–Ohio–4509 at ¶ 16. A determination that the conduct is not warranted
under existing law and cannot be supported by a good faith argument for an extension,
modification, or reversal of existing law requires a legal analysis. Ferron, 2009–Ohio–
3133 at ¶ 44. With respect to purely legal issues, we follow a de novo standard of review
and need not defer to the judgment of the trial court. Id. However, we do find some degree
of deference appropriate in reviewing a trial court's factual determinations and will not
disturb such factual determinations where the record contains competent, credible
evidence to support such findings. Id.
{¶25} In the case sub judice, appellant filed a complaint on September 2, 2015
and appellees filed an answer on October 2, 2015. On October 13, 2015, appellant filed
a Motion for Award of Sanctions pursuant to Civ.R. 11 and R.C. 2323.51, arguing that
defense counsel “has done little more than cut and paste a number of boilerplate ‘lack of
knowledge’ answers and inapplicable affirmative defenses into a document, and sign it,
even though the most rudimentary investigation and discussions with his client would
have provided much of the ‘knowledge’ that he so desperately seeks.”
{¶26} Civ.R. 8(B) states as follows:
A party shall state in short and plain terms the party's defenses to
each claim asserted and shall admit or deny the averments upon which the
adverse party relies. If the party is without knowledge or information
sufficient to form a belief as to the truth of an averment, the party shall so Stark County, Case No. 2016CA00123 10
state and this has the effect of a denial. Denials shall fairly meet the
substance of the averments denied. When a pleader intends in good faith
to deny only a part of a qualification of an averment, the pleader shall specify
so much of it as is true and material and shall deny the remainder. Unless
the pleader intends in good faith to controvert all the averments of the
preceding pleading, the pleader may make the denials as specific denials
or designated averments or paragraphs, or the pleader may generally deny
all the averments except the designated averments or paragraphs as the
pleader expressly admits; but, when the pleader does intend to controvert
all its averments, including averments of the grounds upon which the court's
jurisdiction depends, the pleader may do so by general denial subject to the
obligations set forth in Civ. R. 11.
{¶27} Civ.R. 8(E) states as follows:
(E) Pleading to be concise and direct; consistency
(1) Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleading or motions are required.
(2) A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or defense or in
separate counts or defenses. When two or more statements are made in
the alternative and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more of
the alternative statements. A party may also state as many separate claims
or defenses as he has regardless of consistency and whether based on Stark County, Case No. 2016CA00123 11
legal or equitable grounds. All statements shall be made subject to the
obligations set forth in Rule 11.
{¶28} We find that the trial court did not abuse its discretion in denying appellant’s
Motion for Sanctions because the trial court’s decision was not arbitrary, unconscionable
or unreasonable. The trial court, in its January 7, 2016, Judgment Entry denying
appellant’s Motion for Sanctions, found that “the parties are at a very early stage in the
litigation of this matter and that the pleadings were appropriate for the early stages of
litigation.” We agree. In accordance with Civ.R. 8, appellees admitted a number of
matters in their answer and raised standard affirmative defenses, in short and plain terms,
in response to appellant’s lengthy 17 page complaint. We concur with appellees that
appellees and their counsel were not, at such stage of the proceedings, required to
engage in “the level of investigation that would be appropriate during discovery.” There
is no evidence of any frivolous conduct or that appellees’ counsel acted willfully or in bad
faith in answering appellant’s complaint. We further note that appellant, in his November
9, 2015 Motion for Leave to Amend his original complaint, sought to dismiss two causes
of action following “additional investigation and research.”
{¶29} Appellant’s first assignment of error is, therefore, denied.
II
{¶30} Appellant, in his second assignment of error, argues that the trial court erred
in granting appellee Dr. Harris’ Motion for Summary Judgment.
{¶31} Civil Rule 56(C) states, in pertinent part, as follows:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, Stark County, Case No. 2016CA00123 12
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.
{¶32} 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). 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, 36, 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.
{¶33} 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 demonstrate the absence of a genuine issue of fact on a material element of the Stark County, Case No. 2016CA00123 13
non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662
N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the
nonmoving 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).
{¶34} As is stated above, appellant, in his complaint, alleged as follows with
respect to appellee Dr. Harris:
5. Defendant Martin Harris, M.D. (hereinafter, “Dr. Harris”) is the Chief
Information Officer and Chairman of the information Technology Division of
the Cleveland Clinic Foundation, and also serves as Executive Director of
e-Cleveland Clinic, which operates several electronic health clinical
programs offered by CCF over the Internet and via the use of various forms
of electronic communications.
10. Under the supervision and direction of Dr. Harris, CCF manages and
operates an online medical consulting service, under the umbrella of e-
Cleveland Clinic, known as the Cleveland Clinic MyConsult Clinical
Operations Center (hereinafter, “MyConsult”), which engages in the
business of utilizing physicians and other medical professionals employed
by CCF to review and analyze the medical records of individuals who seek
to obtain a second or additional medical opinion from a Cleveland Clinic Stark County, Case No. 2016CA00123 14
doctor regarding a current diagnosis and/or such conditions, symptoms,
illnesses, injuries or maladies that such persons are currently exhibiting. …
(Emphasis added).
{¶35} Appellee Dr. Harris, in support of his request for summary Judgment, filed
two affidavits. Appellee Dr. Harris, in his January 13, 2016 first affidavit, stated that he
was currently the Chief Information Officer and Chairman of the Information Technology
Division of the Cleveland Clinic Foundation, that he did not currently supervise or direct
the MyConsult Program, and that he did not supervise or direct such program during the
timeframe set forth in appellant’s allegations. After the trial court denied his initial Motion
for Summary Judgment, appellee Dr. Harris filed a Motion for Reconsideration with
another affidavit. Appellee Dr. Harris, in an affidavit dated March 4, 2016, stated, in
relevant part, as follows:
2. I am currently the Chief Information Officer and Chairman of the
Information Technology Division of the Cleveland Clinic Foundation. I am
also currently the Executive Director of eCleveland Clinic.
3. I supervised and directed the MyConsult program between 2004 and
December, 2013.
4. Since December 2013, until the present day, I have not supervised or
directed the MyConsult program, including during the timeframe of Plaintiff’s
alleged contacts with MyConsult as described in his First Amended
Complaint, i.e. December 2, 2014 to March 25, 2015. Stark County, Case No. 2016CA00123 15
5. Prior to the filing of this lawsuit, I was not aware of Plaintiff’s existence
and I was not aware of Plaintiff’s communications with the MyConsult
program.
6. At no point did I have any direct communications with Plaintiff. At no
point did I enter into any contract with Plaintiff.
{¶36} Appellee Dr. Harris, therefore, has set forth Civ.R. 56 evidence that he did
not supervise or direct the MyConsult program during the relevant period as alleged by
appellant. Appellant, in response, has failed to rebut the affidavit with any proper Civ.R.
56 evidence. While appellant attached to his response to appellees’ Motion for Summary
Judgment PowerPoint slides from a presentation by appellee Dr. Harris that were pulled
off of the internet, the same are not proper Civ.R. 56 evidence. Moreover, appellant, in
his written response to discovery, admitted that he had no contract with appellee Dr.
Harris and that there were no direct communications between the two. During his
deposition, portions of which were attached to appellees’ March 16, 2016 Motion for
Summary Judgment, he admitted that he never had any personal conversations with
appellee Dr. Harris, that he had never received an e-mail with appellee Dr. Harris’ name
on it, and that he had never attempted to contact him directly by phone, e-mail or
otherwise.
{¶37} Appellant also argues that appellee Dr. Harris is vicariously liable for the
actions of appellee Cleveland Clinic Foundation by virtue of his responsibilities with e-
Cleveland Clinic as its Executive Director. As noted by the court in Walker v. Crawford,
No. 5:97-CV-1033, 1999 WL 33917846, (N.D. Ohio Sept. 16, 1999) at 7, “a corporate
officer or director is, in general, personally liable for all torts which he authorizes or directs Stark County, Case No. 2016CA00123 16
or in which he participates, .. notwithstanding that he acted as an agent of the corporation
and not on his own behalf.” (Citation omitted). There is no evidence that appellee Harris
authorized, directed or actively participated in any alleged breach of contract or tort in this
case.
{¶38} Based on the foregoing, and for the reasons set forth below, we find that
the trial court did not err in granting summary judgment in favor of appellee Dr. Harris.
{¶39} Appellant’s second assignment of error is, therefore, overruled.
III
{¶40} Appellant, in his third assignment of error, argues that the trial court erred
in granting appellee Cleveland Clinic Foundation’s Motion for Summary Judgment.
{¶41} We shall apply the summary judgment standard set forth above with respect
to appellant’s second assignment of error.
{¶42} The trial court, in its May 18, 2016 Judgment Entry, granted appellee
Cleveland Clinic Foundation’s Motion for Summary Judgment, finding that appellant was
not the real party in interest and lacked standing to bring the action. Appellees had raised
the issue of standing in their answer and in their Motion for Summary Judgment.
{¶43} Civil Rule 17(A) provides, in relevant part, as follows:
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. ….. No action shall be dismissed on the ground that it Stark County, Case No. 2016CA00123 17
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.
{¶44} 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,
1998-Ohio-275, 701 N.E.2d 1002. 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.
{¶45} In the case sub judice, appellant signed all relevant forms on his father’s
behalf as “Alexander E. Armatas by: Steven A. Armatas, Agent via Power of Attorney”
due to his father’s incapacitation. As noted by the trial court, none of the forms were
signed by appellant in his individual capacity and all of appellant’s dealing with appellee
Cleveland Clinic Foundation were as power of attorney for his father. We concur with
the trial court that any causes of action against appellee Cleveland Clinic Foundation must
be brought by the executor or administrator of the estate of appellant’s father, who is
deceased. Stark County, Case No. 2016CA00123 18
{¶46} Based on the foregoing, we find that the trial court did not err in granting
appellee Cleveland Clinic Foundation’s Motion for Summary Judgment.
{¶47} Appellant’s third assignment of error is, therefore, denied.
{¶48} Accordingly, the judgment of the Canton Municipal Court is affirmed.
By: Baldwin, J.
Farmer, P.J. and
Gwin, J. concur.