Poptic v. Mulby

2012 Ohio 3959

• Court: Ohio Court of Appeals
• Decided: August 30, 2012
• Docket: 97860
• Status: Published

Opinion

[Cite as Poptic v. Mulby, 2012-Ohio-3959.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97860

ALAN POPTIC PLAINTIFF-APPELLANT

vs.

ANNETTE MULBY, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: DISMISSED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-757155

BEFORE: Rocco, J., Celebrezze, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: August 30, 2012 ATTORNEY FOR APPELLANT

J. Charles Ruiz-Bueno Charles Ruiz-Bueno Co., LPA 36130 Ridge Road Willoughby, Ohio 44094

ATTORNEY FOR APPELLEES

Stephen P. Leiby Leiby Hanna Rasnick Towne Evanchan Palmisano & Hobson 388 South Main Street, Suite 402 Akron, Ohio 44311 KENNETH A. ROCCO, J.:

{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R.11.1 and

Loc.App.R. 11.1, plaintiff-appellant Alan Poptic (“Alan”) appeals from the order of the

Cuyahoga Common Pleas Court dismissing, under Civ.R. 12(B)(6), Poptic’s complaint

against Annette Mulby, Forrest D. Thompson (“Thompson”), and Bradley Mulby

(collectively “defendants”). The purpose of an accelerated appeal is to allow this court

to render a brief and conclusory opinion. Crawford v. Eastland Shopping Mall Assn., 11

Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1. Because this appeal

does not name a real party in interest, we dismiss the appeal under Civ.R. 17(A).

{¶2} On April 11, 2011, Alan obtained a power of attorney from his father, Joseph

J. Poptic (“Joseph”). On June 9, 2011, a lawsuit was filed against defendants, naming

Alan and Joseph as plaintiffs. The complaint alleged unjust enrichment and a claim for

contribution; both claims were related to a property located at 5026 Cheswick Drive, in

Solon, Ohio (“the property”). On October 14, 2011, a second amended complaint was

filed, and on October 27, 2011, defendants filed a motion to dismiss the second amended

complaint. In a journal entry dated December 22, 2011, the trial court granted the

defendants’ motion to dismiss.

{¶3} A notice of appeal was filed on January 20, 2011, naming both Alan and

Joseph as appellants and setting forth two assignments of error: “I. The trial court committed prejudicial error in granting

defendants-appellees’ motion to dismiss the contribution claim.

“II. The trial court committed prejudicial error by going outside the four

corners of the complaint as a predicate to find res judicata for its dismissal of the

contribution claim.”

{¶4} After the notice of appeal was filed, Joseph, along with defendants-appellees,

filed a motion to dismiss Joseph as a party to this appeal. We granted that motion on

April 25, 2012. Accordingly, the only appellant in this appeal is now Alan.

{¶5} It is uncontested that Alan has no ownership interest in the property. The

second amended complaint alleged that Joseph and The Boden Family Trust (“the trust”)

were co-tenants of the property and that Annette Mulby and Thompson were the

successor Trustees of the trust. Nowhere does the complaint allege that Alan was a

co-tenant. In fact, the complaint alleges that Alan conveyed his interest to the trust and

that, in bringing this lawsuit, he was acting only as Joseph’s agent. Alan’s participation

in this lawsuit was via power of attorney, and as an attorney-in-fact, Alan could act only

on behalf of the principal, Joseph.

{¶6} Under Civ.R. 17(A) “[e]very action shall be prosecuted in the name of the real

party in interest.” In Kovacs v. Aetna Life Ins. Co., we concluded that an

attorney-in-fact has the capacity to file a lawsuit on behalf of the principal, but “the

attorney-in-fact is considered a nominal party only, and the action must be brought in the name of the party possessing the substantive right to relief.” Kovacs v. Aetna Life Ins.

Co., 8th Dist. No. 65295, 1994 Ohio App. LEXIS 1699, *10-11 (Apr. 21, 1994).

{¶7} In the present case the party with the substantive right to relief, Joseph, has

indicated (through his motion to be dismissed as party to this appeal) that he does not

wish to continue this appeal in his name. Even if Alan remains an attorney-in-fact, he is

merely a nominal party and no longer possesses the ability to continue this suit in

Joseph’s name. Accordingly, Alan lacks standing to bring this appeal. Because Alan is

the only named appellant, and because Alan does not have standing to bring this appeal,

we dismiss the appeal.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

_________________________________ KENNETH A. ROCCO, JUDGE FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR