Short v. Wert

2025 Ohio 1103

• Court: Ohio Court of Appeals
• Decided: March 28, 2025
• Docket: L-24-1152
• Status: Published

Opinion

[Cite as Short v. Wert, 2025-Ohio-1103.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Laura Short, et al. Court of Appeals No. L-24-1152

Appellants Trial Court No. CI0202204310

v.

Kenneth Wert DECISION AND JUDGMENT

Appellee Decided: March 28, 2025

*****

Mary M. Bollinger, for appellant.

Robert J. Huebner, for appellee.

ZMUDA, J.

{¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Common Pleas court, following dismissal of the complaint of appellants, Laura

Short and Ryan Short, and denial of the appellants’ motion for relief from judgment.

While there has been extensive briefing and motions filed in this appeal, the issue

presented in this case is straightforward. The proceedings are governed by Civ.R. 25 and

dismissal was required once the appellants/plaintiffs failed to substitute a proper party

defendant. {¶ 2} On November 14, 2022, appellants filed a negligence complaint against

Kenneth Wert, alleging Wert caused a vehicular collision on June 13, 2019, resulting in

personal injury and property damage as to Laura Short. Ryan Short sought damages for

loss of consortium. This complaint was a refiling of a prior complaint, but plaintiffs failed

to indicate a refiling at the time of filing. The complaint was assigned to a different court

than the trial court assigned to the first case. While not indicated in the pleadings, the first

complaint also named Kenneth Wert as defendant, a notice of suggestion of death was

filed indicating Kenneth Wert was deceased, and appellants failed to substitute a party for

Wert as required by Civ.R. 25. Instead, after the time to substitute had lapsed, appellants

voluntarily dismissed the first action pursuant to Civ.R. 41(A)(1)(a) on November 15,

2021, a year prior to the refiling on November 14, 2022.

{¶ 3} On November 29, 2022, counsel entered an appearance for Wert and filed a

notice of suggestion of death pursuant to Civ.R. 25, indicating Wert died on July 16,

2020. The notice was served on the appellants’ trial counsel that same day by email.

Appellants took no action in response to the suggestion of death, as required by Civ.R.

25.

{¶ 4} On March 22, 2023, 120 days after filing the suggestion of death, counsel

for Wert filed a motion to dismiss referencing Civ.R. 25. In support, Wert’s counsel

argued the proper notice of suggestion of death had been filed and served, and appellants

failed to substitute a proper party defendant. Counsel attached a copy of Wert’s death

certificate to the motion, along with a copy of the prior complaint, the suggestion of death

2. filed in that case, a copy of the complaint in the present case, and the suggestion of death

filed in the present case.

{¶ 5} As part of the motion for dismissal pursuant to Civ.R. 25, Wert’s counsel

sought dismissal on the merits, based on the affirmative defenses of failure of service and

expiration of the statute of limitations. Wert, through counsel, argued that the appellants

failed to commence the first action against a proper party defendant, and as a result, the

appellants’ second suit was filed beyond the two-year statute of limitations for a

negligence claim. However, Wert’s counsel did not reference Civ.R. 12(B)(6) or Civ.R. 56

as a basis for dismissal.

{¶ 6} On April 3, 2023, appellants filed a motion seeking leave to amend the

complaint, “for purposes of adding a Special Administrator for the Estate of Kenneth

Wert.” The motion for leave did not address the failure to seek substitution within 90

days under Civ.R. 25 or seek an extension based on excusable neglect, arguing instead

that the trial court must grant leave to amend to satisfy “due process.” The next day,

appellants filed a memorandum in opposition to the motion to dismiss, arguing no

knowledge of Wert’s death. Appellants contended their first notice of death was contained

within the motion to dismiss filed in the present case. In support, appellants addressed

only the notice in the prior case, arguing the suggestion of death was mistakenly

overlooked because appellants’ counsel was hospitalized with COVID-19. Appellants

argued in favor of amendment, rather than dismissal, in the interests of having their claim

determined on the merits.

3. {¶ 7} On August 4, 2023, the trial court entered a partial dismissal by written

opinion and judgment entry. The trial court referenced the requirements under Civ.R. 25

but focused primarily on the affirmative defenses argued by Wert’s counsel, even though

Wert was deceased and not a proper party defendant. The trial court determined that the

negligence claims were time-barred, based on a failure to commence any action against a

proper defendant in the first suit, and dismissed appellants’ negligence claims. The trial

court continued the matter as to the loss of consortium claim of Ryan Short, and granted

Ryan Short leave to file an amended complaint as to the loss of consortium claim only.

{¶ 8} Instead of amending the complaint, appellants filed a motion to reconsider

the partial dismissal, arguing their counsel’s serious illness prevented a response to the

suggestion of death. Counsel for Wert opposed the motion. On October 13, 2023, the trial

court denied the motion to reconsider.

{¶ 9} On November 1, 2023, appellants filed an appeal from the trial court’s denial

of the motion to reconsider. Because the trial court had not dismissed the loss of

consortium claim and it remained pending, we dismissed the appeal for lack of a final

order on January 22, 2024.

{¶ 10} On February 12, 2024, counsel for Wert filed a second motion to dismiss as

to the remaining loss of consortium claim. Once more, Wert’s counsel argued affirmative

defenses for Wert, failure of service and the bar of the statute of limitations. At the same

time, Wert’s counsel argued that Wert was a non-entity as a deceased person, and

appellants failed to amend their pleading to substitute his estate. As a result, the 4-year

4. statute of limitations for the loss of consortium claim had passed with no attempt to

commence the action against a proper defendant.

{¶ 11} Appellants opposed dismissal of the loss of consortium claim, and before

the trial court decided the second motion to dismiss, they filed a motion seeking relief

from judgment pursuant to Civ.R. 60(B), seeking to reinstate the dismissed claims of

Laura Short. In support, appellants argued newly discovered evidence under Civ.R.

60(B)(2), including technological/computer issues that affected receipt of legal

communications by their counsel. Additionally, appellants argued that the illness of their

counsel was a factor, meriting relief. The meritorious claim was argued as the strength of

appellants’ claims, should Laura’s claims be reinstated. Counsel for Wert filed a

memorandum in opposition to the motion.

{¶ 12} On June 5, 2024, the trial court denied appellants’ motion for relief from

judgment pursuant to Civ.R. 60(B). In a separate entry, on June 5, 2024, the trial court

granted the motion to dismiss the remaining loss of consortium claim, again addressing

the merits of the claim and finding the timeline dispositive. The trial court also noted

appellants’ failure to attempt to commence the action against a proper party defendant.

{¶ 13} This appeal followed on June 28, 2024. Appellants attached a copy of the

trial court’s judgment, denying their Civ.R. 60(B) motion, to their notice of appeal. The

docketing sheet filed with the notice of appeal was blank, identifying no probable issues

for review. However, appellants’ argument on appeal challenges the trial court’s dismissal

5. of their claims, with a single assignment of error:

The trial court erred in dismissing the case because plaintiffs did not

have notice of defendant’s death until it received defendant’s motion to

dismiss.

{¶ 14} The parties on appeal include only appellants. The appellee identified is

Kenneth Wert, a deceased person or non-entity incapable of having standing as a party.

However, Wert, a non-entity, is represented by counsel and has purported to file a brief,

as well as numerous motions challenging appellants’ compliance with the appellate

procedural requirements.

{¶ 15} First, Wert’s counsel filed a motion seeking to strike the July 17, 2024 brief

of appellants and the September 19, 2024 reply brief for failing to conform to 6th Dist.

Loc.App.R. 10(D), and App.R. 16. Wert argued, in part, that appellants failed to attach

the decision being appealed as an appendix to their brief and the reply brief introduced

new argument. In the alternative, Wert requested leave to file a surreply to appellants’

reply brief to address the additional argument raised in the reply.

{¶ 16} In response, appellants filed a motion to supplement and amend their

appellant brief. A memorandum in opposition to Wert’s motion to strike appellants’ reply

brief was filed by a third attorney, without leave, and although this attorney is the spouse

of appellants’ counsel, he has neither entered an appearance nor been granted leave to

participate in the appeal.

6. {¶ 17} As to the substance of the appeal, appellants attached the trial court’s denial

of the motion for relief from judgment to their notice of appeal, but the argument on

appeal instead challenges the trial court’s August 3, 2023 and June 5, 2024 dismissal

entries.1 Appellants argue they had no notice of the suggestion of death until the motion

filed on March 22, 2023. They further claim an estate for Wert was opened on April 3,

2023, a claim wholly without support in the record on appeal. There is also no record of

any substitution of the estate for Wert in these proceedings.

{¶ 18} To the extent that the notice of appeal does not match the claims on appeal,

courts have “long recognized that, in construing the Rules of Appellate Procedure, the

law favors and protects the right of appeal and that a liberal construction of the rules is

required in order to promote the objects of the Appellate Procedure Act and to assist the

parties in obtaining justice.” Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d

257, 258 (1982), citing In re Guardianship of Love, 19 Ohio St.2d 111, 115 (1969)

(additional citation omitted.). The purpose of a notice of appeal is to give notice to the

opposing party of the appeal and the substance of the appellant’s challenge. Id. at 259,

citing Capital Loan & Savings Co. V. Biery, 134 Ohio St. 333, 339 (1938). Absent

prejudice to the opposing party or bad faith, the appellate court has discretion to consider

1 We note that, pursuant to Civ.R. 60(B), the trial court could only consider relief from a “final judgment” and, as we previously noted, the trial court’s partial dismissal did not constitute a final judgment. Thus, the trial court had no authority to grant relief under Civ.R. 60(B). See Munn v. Rudy Stapelton & Son, 2003-Ohio-5606, ¶ 14 (6th Dist.), citing Prather v. American Medical Response, Inc., 2002-Ohio-5261, ¶ 10 (9th Dist.) (additional citation omitted.).

7. an appeal that is defective due to mistake. Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d

320, 322 (1995).

{¶ 19} In this case, because no substitution was even attempted, the opposing

party continues to be Wert, a nonentity who cannot be a party. The law is clear that no

claims may be pursued against a deceased defendant, as “an action may only be brought

against a party who actually or legally exists and has the capacity to be sued.” (Citation

omitted) Baker v. McKnight, 4 Ohio St. 3d 125, 127 (1983). Lacking proper substitution

under Civ.R. 25, the estate of Wert also lacks standing on appeal. See Hunter v. Rhino

Shield, 2024-Ohio-261, ¶ 17 (10th Dist.). Thus, this is a case with no opposing party, with

no possibility of prejudice to the opposing party. Therefore, despite the defect in

appellants’ notice of appeal, and the failure to fully comply with the Local Rules and

Appellate Rules, we exercise discretion in considering appellants’ challenge to the trial

court’s dismissal of their claims, partially dismissed on August 3, 2023, and finally

dismissed on June 5, 2024.

{¶ 20} Where the death of a party does not extinguish a legal claim, Civ.R.

25(A)(1) permits substitution for the deceased person upon motion, within 90 days after

death is suggested on the record. If no substitution is requested by motion within 90 days,

“the action shall be dismissed as to the deceased party.” (Emphasis added) Civ.R.

25(A)(1). “When the court dismisses the action pursuant to Rule 25, it does so because

there is, in effect, no opposing party over which the court can properly acquire personal

jurisdiction.” Perry v. Eagle-Picher Industries, Inc., 52 Ohio St.3d 168, 173 (1990). Thus,

8. a dismissal pursuant to Civ.R. 25(A)(1) does not determine the merits but is a dismissal

without prejudice for lack of personal jurisdiction. Id.

{¶ 21} In this case, the trial court decided a motion under Civ.R. 25 but did not

immediately dismiss the action against Wert, a deceased person, as required by the Rule.

Instead, the trial court considered the merits of Wert’s defenses to appellants’ claims,

addressing the proffered defenses without having personal jurisdiction over any

defendant. Therefore, “[o]nce that suggestion of death was filed, the trial court was

without authority to conduct proceedings involving [the decedent’s] interests until a

proper substitution of parties had been made[.]” Abood v. Nemer, 128 Ohio App.3d 151,

164 (9th Dist.1998). However, while the trial court erred in considering the defenses of

Wert in dismissing the action, dismissal in the case was proper and required under Civ.R.

25. Perry at 172.

{¶ 22} “A judgment by the trial court which is correct, but for a different reason,

will be affirmed on appeal as there is no prejudice to the appellant.” State ex rel. Sommers

v. Perkins Local Schools Bd. of Edu., 2017-Ohio-7991, ¶ 5 (6th Dist.), quoting Bonner v.

Bonner, 2005-Ohio-6173, ¶ 18 (3d Dist.). Accordingly, we find appellants’ assignment of

error not well-taken, and affirm the trial court’s dismissal, but based on Civ.R. 25 without

consideration of the merits of appellants’ claims.

{¶ 23} Because we find the trial court’s dismissal was proper, and Wert is not a

party to this appeal, we deny the pending motions as moot.

9. {¶ 24} Finding that substantial justice has been done, we affirm the judgment of

the Lucas County Court of Common Pleas. Appellants Laura and Ryan Short are ordered

to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, 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.supremecourt.ohio.gov/ROD/docs/.

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