[Cite as Shefkiu v. Worthington Industries, Inc., 2014-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT FULTON COUNTY
Raif Shefkiu Court of Appeals No. F-13-014
Appellant/Cross-Appellee Trial Court No. 10CV000332
v.
Worthington Industries, et al. DECISION AND JUDGMENT
Appellee/Cross-Appellant Decided: July 3, 2014
*****
Jay Harris, for appellant/cross-appellee.
Wesley D. Merillat, Michael A. Bruno, Tiffany Strelow Cobb and Lauren N. Fromme, for appellee/cross-appellant.
YARBROUGH, P.J.
I. Introduction
{¶ 1} This is an appeal and cross-appeal from a judgment of the Fulton County
Court of Common Pleas, following a jury trial, which found in favor of plaintiff-
appellant, Raif Shefkiu, on his claim for damages resulting from a workplace accident. Shefkiu has appealed the trial court’s judgment, arguing that the trial court should have
awarded a new trial because the jury failed to consider his non-economic damages, and
because one of the jurors should have been dismissed for cause. Defendant/cross-
appellant, Worthington Industries, Inc. (“Worthington”), has filed a cross-appeal, in
which it asserts that the trial court erred when it denied Worthington’s motion for
summary judgment and allowed Shefkiu to amend his complaint. For the following
reasons, we reverse.
A. Facts and Procedural Background
{¶ 2} On October 13, 2008, Shefkiu was the driver of a truck that was being
loaded with large steel coils at Worthington. As part of the loading process, Shefkiu was
asked to be on the trailer because some of the steel coils were twisting as they were being
placed by the crane. While Shefkiu was on the trailer, he noticed that one of the coils on
the crane was beginning to fall. Instinctively, Shefkiu jumped off the trailer to avoid
being crushed by the 15,000-pound coil. Shefkiu landed on both feet on the concrete
floor five feet and two inches below.
{¶ 3} Within one half-hour of jumping from the trailer, Shefkiu began
experiencing severe back and leg pain. He was taken to the hospital by ambulance,
where he was diagnosed as having a lower back strain/sprain. Subsequent x-rays, CT
scans, and MRIs revealed no structural damage; however, Shefkiu’s pain has never
subsided. As a result of the pain, Shefkiu has been unable to work since the incident.
2. {¶ 4} Because he was unable to work, Shefkiu filed for voluntary Chapter 7
bankruptcy protection in May 2009. Notably, in his petition, Shefkiu did not list any
potential claims against Worthington as assets despite being instructed to list “Other
contingent and unliquidated claims of every nature.” Nevertheless, in August 2009,
Shefkiu retained an attorney to negotiate a settlement or bring a negligence action against
Worthington based on the damages he sustained from the accident. The bankruptcy court
was not notified regarding this potential claim. One month later, in September 2009,
Shefkiu was discharged of his debts by the bankruptcy court.
{¶ 5} On October 8, 2010, Shefkiu initiated the present lawsuit against
Worthington for damages resulting from its alleged negligence. Thereafter, in January
2012, Shefkiu moved the bankruptcy court to reopen his Chapter 7 bankruptcy case in
light of his claim against Worthington, which the bankruptcy court granted in February
2012.
{¶ 6} On October 15, 2012, Worthington moved for summary judgment in this
negligence action. As support for its motion, Worthington argued that Shefkiu lacked
standing to bring his tort claim because the claim belonged to the bankruptcy trustee.
Alternatively, Worthington argued that Shefkiu’s claim was precluded by judicial
estoppel because he failed to list the potential claim as an asset in the bankruptcy court.
Shefkiu responded by moving to amend his complaint in order to add the bankruptcy
trustee as an additional plaintiff. Shefkiu contended that such an amendment would moot
Worthington’s motion for summary judgment. On November 30, 2012, the trial court,
3. noting the preference that cases be decided upon their merits, granted Shefkiu’s motion to
amend his complaint, and denied Worthington’s motion for summary judgment.
{¶ 7} The matter then proceeded to a four-day jury trial starting August 27, 2013.
During the voir dire of the jury, one of the potential jurors initially indicated that in order
for him to decide in favor of the plaintiff, he would need to be 90 percent sure that the
plaintiff was right and the defendant was wrong. The trial court subsequently questioned
the juror and instructed him that the appropriate burden of proof was a preponderance of
the evidence, which meant that the plaintiff must only prove his case is more likely than
not, or 51 percent. After being instructed, the potential juror indicated that he now
understood the standard, and would be able to follow the law regarding the burden of
proof. Later, during the jury selection, Shefkiu challenged the potential juror for cause
based on his 90 percent comment. The trial court denied Shefkiu’s challenge for cause.
Shefkiu then exercised one of his peremptory challenges to dismiss the potential juror.
{¶ 8} Once the jury was selected, the trial commenced, and several days of
testimony followed. On Friday afternoon, before a holiday weekend, the parties
completed their presentation of the evidence and the trial court instructed the jury before
deliberations. As part of the instructions, the jurors were informed that the first $152,500
of any award would go to Shefkiu’s bankruptcy estate and to reimburse his workers’
compensation payments. The jury then retired. Before the end of the day, the jury
returned with a verdict in favor of Shefkiu. Six of the eight members of the jury found
that Worthington was 51 percent negligent and Shefkiu was 49 percent negligent. The
4. six members also found that Shefkiu suffered $153,000 in damages for economic loss,
but did not suffer any damages for human loss (pain and suffering). The jury was then
discharged.
{¶ 9} Subsequently, on October 8, 2013, Shefkiu moved for a new trial. In his
motion, he argued that the jury failed to consider his non-economic loss for pain and
suffering because they left that line on the jury form blank. In addition, Shefkiu argued
that he should be awarded a new trial because he was forced to use a preemptory
challenge on a juror that should have been dismissed for cause. The trial court denied
Shefkiu’s motion for a new trial. This appeal and cross-appeal followed.
B. Assignments of Error
{¶ 10} Shefkiu has timely appealed the judgment denying his motion for a new
trial, raising two assignments of error for our review:
1. Where the jury finds in favor of the plaintiff in a personal injury
action and awards economic damages, but fails to award damages for the
non economic damages — the human harms and losses of pain and
suffering, mental and emotional anguish, and loss of enjoyment of life, the
trial court should have granted plaintiff’s motion for a new trial on the issue
of damages. The trial court’s failure to grant a new trial deprived plaintiff
of full and fair compensation.
2. Where a prospective juror indicates that he would require
plaintiff to prove his case by a higher burden of proof than the law requires,
5. this raises doubt as to whether that juror is “entirely unbiased” or can
follow the law and the juror must be dismissed for cause pursuant to R.C.
2313.17(B)(9) and (D). The trial court’s failure to grant a new trial
deprived plaintiff the use of his three peremptory challenges.
{¶ 11} In addition, Worthington has cross-appealed the trial court’s November 30,
2012 judgment entry, also raising two assignments of error:
1. The trial court erred by denying the motion of Defendant-
Appellee/Cross-Appellant Worthington Industries Incorporated
(“Worthington” or “Appellee”) for summary judgment.
2. The trial court erred by granting the motion of Plaintiff-
Appellant/Cross-Appellee Raif Shefkiu (“Shefkiu”) for leave to amend the
complaint to add Kelly M. Hagan (“Trustee”) as an additional plaintiff.
II. Analysis
{¶ 12} We will begin with Worthington’s cross-appeal. Because we find that the
two assignments of error are interrelated, we will address them together.
A. Bankruptcy Trustee and Summary Judgment
{¶ 13} In its first assignment of error, Worthington argues that it was entitled to
summary judgment because Shefkiu did not have standing to bring the negligence action,
and because Shefkiu was judicially estopped from bringing the action because he had
represented to the bankruptcy court that he did not have any assets in the form of
unliquidated claims. Shefkiu responded to this motion by seeking to add the bankruptcy
6. trustee as an additional plaintiff. In its second assignment of error, Worthington argues
that the trial court erred when it permitted Shefkiu to amend his complaint to bring in the
bankruptcy trustee.
{¶ 14} We review the grant or denial of summary judgment de novo, applying the
same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d
127, 129, 572 N.E.2d 198 (9th Dist.1989). Under Civ.R. 56(C), summary judgment is
appropriate where (1) there is no genuine issue as to any material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion, and viewing the evidence in the light most favorable to the non-moving
party, that conclusion is adverse to the non-moving party. Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 15} As to motions to amend the complaint, we review a trial court’s decision to
grant or deny such motion for an abuse of discretion. Landis v. Grange Mut. Ins. Co., 95
Ohio App.3d 422, 429, 642 N.E.2d 679 (6th Dist.1994), citing Peterson v. Teodosio, 34
Ohio St.2d 161, 297 N.E.2d 113 (1973). An abuse of discretion connotes that the trial
court’s attitude in reaching its decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} We agree with Worthington that Shefkiu does not have standing to bring
the negligence claim. The bankruptcy code provides that when a debtor files for
bankruptcy protection, he or she must file a schedule of assets and liabilities. 11 U.S.C.
521(a)(1)(B). Included in those assets and liabilities are “all legal or equitable interests
7. of the debtor in property as of the commencement of the case.” 11 U.S.C. 541(a)(1).
Unliquidated personal injury actions are considered part of the debtor’s legal or equitable
interests. In re Cottrell, 876 F.2d 540, 543 (6th Cir.1989). In the absence of
abandonment by the bankruptcy trustee, Shefkiu’s personal injury action remained
property of the bankruptcy estate. 11 U.S.C. 554(d). Here, Shefkiu does not argue that
his claim was abandoned. Therefore, because he does not have any property interest in
the claim, he is not the real party in interest. McLynas v. Karr, 10th Dist. Franklin No.
03AP-1075, 2004-Ohio-3597, ¶ 21.
{¶ 17} Shefkiu disputes this conclusion, arguing that he retains an interest in an
amount exempted from the bankruptcy, and in any surplus money remaining after the
creditors have been satisfied. This view was adopted by the Seventh District in Reighard
v. Cleveland Elec. Illuminating, 7th Dist. Mahoning No. 05 MA 120, 2006-Ohio-2814,
¶ 6. In that case, the Seventh District concluded that the plaintiffs “maintained an
interest” in the action, reasoning that the bankruptcy estate should not be trusted to
represent the interests of the plaintiffs in that “the bankruptcy estate may have an interest
in settling for a low amount just to satisfy its creditors without regard to what the
[plaintiffs] believe their claim is worth.” We, however, do not take such a cynical view
of the bankruptcy trustee. Indeed, the trustee is “‘accountable for all property received,’
* * * and has the duty to maximize the value of the estate.” Commodity Futures Trading
Comm. v. Weintraub, 471 U.S. 343, 352, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985), citing
11 U.S.C. 704(a)(1) and (2).
8. {¶ 18} Furthermore, as it relates to the exemption amount, the federal rules require
that the exemption be sought in the bankruptcy action. Fed.R.Bankr.P. 4003(a) (“A
debtor shall list the property claimed as exempt * * * on the schedule of assets required
to be filed by Rule 1007.” (Emphasis added.)). Thus, because Shefkiu had not listed this
negligence action as exempt property, or even listed it as property at all, he cannot claim
an interest in the exempted amount.
{¶ 19} Finally, federal courts consistently have held that only the bankruptcy
trustee, and not the debtor, is the proper party to bring causes of action that are part of the
bankruptcy estate. See, e.g., Bauer v. Commerce Union Bank, Clarksville, Tennessee,
859 F.2d 438, 441 (6th Cir.1988); In re Darrah, 337 B.R. 313, 316 (N.D.Ohio 2005).
Accordingly, we hold that Shefkiu is not the real party in interest in the negligence claim
against Worthington, and has no standing to pursue such claim.
{¶ 20} Our conclusion does not end this analysis, however, as Shefkiu moved to
amend the complaint to add the bankruptcy trustee as an additional plaintiff.
Worthington contends that allowing the amendment was an abuse of discretion because a
party that lacks standing cannot initiate a lawsuit and then amend the pleadings to add an
additional plaintiff who does have standing. Further, Worthington argues that even if the
bankruptcy trustee could have been added as an additional plaintiff, any claim brought by
the bankruptcy trustee was beyond the statute of limitations since the claim does not
relate back to the initial filing of the complaint under Civ.R. 15(C). Thus, because an
amendment to add the bankruptcy trustee would have been futile, leave to amend should
9. have been denied. Shefkiu states, on the other hand, without any supporting argument or
case law, that the amended pleading relates back under Civ.R. 15(C).
{¶ 21} Regarding the timeliness of an action, 11 U.S.C. 108(a) provides that if a
debtor has a cause of action, and the statute of limitations on that cause of action has not
expired before the date of the filing of the bankruptcy petition, the bankruptcy trustee
may commence such action before the later of the end of the statute of limitations or two
years after the order of relief. In Ohio, tort actions for bodily injury are subject to a two-
year statute of limitations. R.C. 2305.10(A). Thus, because the cause of action arose on
October 13, 2008, the applicable statute of limitations expired on October 13, 2010.
Shefkiu filed his voluntary petition for bankruptcy on May 12, 2009. Such filing
constituted an “order of relief” under the bankruptcy code. 11 U.S.C. 301(b). Therefore,
the bankruptcy trustee was required to commence the cause of action before the later of
October 13, 2010 or May 12, 2011.
{¶ 22} In this case, although Shefkiu initiated the lawsuit against Worthington on
October 8, 2010, the motion to amend the complaint was not filed until November 9,
2012. Consequently, in order for the bankruptcy trustee’s action in the amended
complaint to be within the statute of limitations, the amendment must relate back to the
initial filing of the complaint. The parties present arguments relative to Civ.R. 15(C),
which governs the relation back of amendments to pleadings. It provides,
Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or attempted to
10. be set forth in the original pleading, the amendment relates back to the date
of the original pleading. An amendment changing the party against whom
a claim is asserted relates back if the foregoing provision is satisfied and,
within the period provided by law for commencing the action against him,
the party to be brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have
been brought against him. Civ.R. 15(C).
{¶ 23} Although a straightforward reading of Civ.R. 15(C) does not contemplate
the relation back of a complaint that has been amended to add a plaintiff, the Ohio
Supreme Court has noted:
The Ohio Rules of Civil Procedure, including Civ.R. 15(C), were
patterned after the Federal Rules of Civil Procedure. The 1966 Advisory
Committee Notes to federal Rule 15(c) state: “The relation back of
amendments changing plaintiffs is not expressly treated in * * * Rule 15(c)
since the problem is generally easier. * * * [T]he chief consideration of
policy is that of the statute of limitations, and the attitude taken in * * *
Rule 15(c) toward change of defendants extends by analogy to amendments
changing plaintiffs.”
11. The primary purpose of Civ.R. 15(C) is to preserve actions which,
through mistaken identity or misnomer, have been filed against the wrong
person. * * * *
Federal courts have allowed relation back when the new plaintiff is
the real party in interest or an original plaintiff brings a new cause of action
in a different capacity, but generally not when a new plaintiff brings a new
cause of action. Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio
St.3d 86, 101, 529 N.E.2d 449 (1988).
{¶ 24} Although we recognize that the parties frame their argument concerning the
relation back of the amendment to add the bankruptcy trustee under Civ.R. 15, we
nonetheless note that other courts that have faced similar situations have resolved the
matter under Civ.R. 17(A), which governs real parties in interest. Civ.R. 17(A) provides,
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 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
12. 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.
{¶ 25} For example, in McLynas v. Karr, 10th Dist. Franklin No. 03AP-1075,
2004-Ohio-3597, the Tenth District held that the matter must be remanded for the
plaintiff to have a reasonable time to add the bankruptcy trustee as an additional plaintiff,
or to prove that the bankruptcy trustee abandoned the claim. In that case, the plaintiff
was injured in an automobile accident. Prior to filing her complaint, she filed for
bankruptcy.1 The defendants moved to dismiss the complaint on the basis that the
bankruptcy trustee was the real party in interest. The trial court agreed, and dismissed the
plaintiff’s complaint. On appeal, the Tenth District determined that the plaintiff had not
met her burden of proving that the bankruptcy trustee had abandoned her claim, thus, “the
claims remain the property of the bankruptcy estate under Section 554(d), Title 11,
U.S.Code, and only the bankruptcy trustee can pursue them.” Id. at ¶ 21. Accordingly,
the court concluded that the trial court properly found that the plaintiff is not the real
party in interest. Still, the Tenth District remanded the matter because it determined that
the plaintiff was not afforded a reasonable amount of time to cure the real party in interest
deficiency as required by Civ.R. 17(A). Id. at ¶ 25. See also Kinder v. Zuzak, 11th Dist.
Lake No. 2008-L-167, 2009-Ohio-3793 (following McLynas, and remanding the matter
for plaintiff to satisfy the real party in interest requirement through the mechanisms of
Civ.R. 17(A)); Powers v. Dankof, 2d Dist. Montgomery No. CA 24505, 2011-Ohio-6180
1 Unlike Shefkiu, the plaintiff listed her potential claim as part of the bankruptcy estate.
13. (applying Civ.R. 17(A), but holding that the plaintiff failed to cure the standing defect by
adding the bankruptcy trustee within a reasonable time).
{¶ 26} Regardless of whether Shefkiu attempts to justify the inclusion of the
bankruptcy trustee under Civ.R. 15(C) or Civ.R. 17(A), the Ohio Supreme Court has
recently held that neither rule is available where, as here, the party commencing the
litigation lacks standing. In Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, the Ohio Supreme Court reasoned,
Standing is required to invoke the jurisdiction of the common pleas
court. Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend
the jurisdiction of the courts of this state, and a common pleas court cannot
substitute a real party in interest for another party if no party with standing
has invoked its jurisdiction in the first instance. (Emphasis added.) Id. at
¶ 38.
{¶ 27} Here, as noted above, Shefkiu’s claim against Worthington became part of
the bankruptcy estate when Shefkiu filed for bankruptcy. Shefkiu has made no showing
that the bankruptcy trustee has subsequently abandoned the claim. Thus, at the time
Shefkiu filed his complaint, he was not the real party in interest and did not have standing
to sue. Therefore, pursuant to Schwartzwald, Shefkiu cannot now rely on the Rules of
Civil Procedure to extend the trial court’s jurisdiction by bringing in the bankruptcy
trustee as an additional plaintiff when Shefkiu lacked standing in the first instance.
14. {¶ 28} Accordingly, we hold that the trial court abused its discretion when it
allowed Shefkiu to amend his complaint to add the bankruptcy trustee as an additional
plaintiff, and that the court erred when it denied Worthington’s motion for summary
judgment. Worthington’s assignments of error on cross-appeal are well-taken.
Furthermore, our resolution of Worthington’s cross-appeal renders Shefkiu’s assignments
of error on appeal moot, and they need not be considered. App.R. 12(A)(1)(c).
III. Conclusion
{¶ 29} For the foregoing reasons, the judgment of the Fulton County Court of
Common Pleas is reversed, and the cause is dismissed. Shefkiu is ordered to pay the
costs of this appeal in accordance with App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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