Toledo Bar Assn. v. Rust , 124 Ohio St. 3d 305 ( 2010 )


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  • [Cite as Toledo Bar Assn. v. Rust, 
    124 Ohio St.3d 305
    , 
    2010-Ohio-170
    .]
    TOLEDO BAR ASSOCIATION v. RUST.
    [Cite as Toledo Bar Assn. v. Rust, 
    124 Ohio St.3d 305
    , 
    2010-Ohio-170
    .]
    Attorneys — Misconduct — Complaint dismissed when respondent had arguably
    viable legal support for his actions.
    (No. 2009-1171 ⎯ Submitted September 29, 2009 ⎯ Decided January 28, 2010.)
    ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
    Discipline of the Supreme Court, No. 08-026.
    __________________
    Per Curiam.
    {¶ 1} Respondent, John G. Rust of Toledo, Ohio, Attorney 
    Registration No. 0000098,
     was admitted to the practice of law in Ohio in 1948. The Board of
    Commissioners on Grievances and Discipline recommends that we suspend
    respondent’s license to practice for six months, but stay the suspension on
    conditions, including a two-year monitored probation. The recommendation is
    based on findings that respondent agreed to file a wrongful-death action at the
    behest of the decedent’s heir, but then brought the suit on behalf of the
    administrator of the decedent’s estate, the proper party-plaintiff, without obtaining
    the administrator’s authority for the suit.
    {¶ 2} The board found a single violation of Prof.Cond.R. 1.16(a)(1),
    which requires a lawyer to decline or terminate representation if “the
    representation will result in the violation of the Ohio Rules of Professional
    Conduct or other law.” Respondent objects to this finding, citing precedent that
    he insists allows a beneficiary to file a wrongful-death claim in the name of the
    administrator when the administrator has refused to pursue the action. Without
    deciding the viability of his legal strategy, we find that respondent initiated the
    wrongful-death action in good faith and that he had an arguable basis in law and
    SUPREME COURT OF OHIO
    fact that was not frivolous for filing the claim. Because lawyers may advance
    such claims in attempting to extend, modify, or reverse existing law, we hold that
    respondent committed no ethical impropriety and dismiss the complaint against
    him.
    {¶ 3} Relator, Toledo Bar Association, charged respondent in a single
    count with multiple violations of the Rules of Professional Conduct, including
    Prof.Cond.R. 1.16(a)(1). A panel of three board members heard the case, found
    the Prof.Cond.R. 1.16(a)(1) violation, and recommended both the dismissal of all
    other charges and a one-year suspension of respondent’s license, with the
    suspension stayed on conditions of (1) participation in the Ohio Lawyers
    Assistance Program (“OLAP”), (2) completion of a two-year probation, and (3)
    no further misconduct. The board adopted the panel’s finding of misconduct, but
    recommended a six-month suspension, stayed on the listed conditions.
    Alleged Misconduct
    Facts
    {¶ 4} In early 2007, Duane Tillimon1 consulted respondent about
    bringing a wrongful-death action to recover for his mother’s death on January 20,
    2005. Tillimon, the sole beneficiary of his mother’s estate, suspected that her
    former guardian and the nursing home where she died contributed to the cause of
    her death.
    {¶ 5} Tillimon had already filed one wrongful-death complaint against
    the guardian and the nursing home while being represented by another lawyer.
    The previous lawyer filed the complaint in mid-January 2006, naming the
    1. {¶ a} Later that year, the Lucas County Court of Common Pleas declared Tillimon a vexatious
    litigator. Under R.C. 2323.52(A)(3), “vexatious litigator” means:
    {¶ b} “[A]ny person who has habitually, persistently, and without reasonable grounds engaged
    in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of
    appeals, court of common pleas, municipal court, or county court, whether the person or another
    person instituted the civil action or actions, and whether the vexatious conduct was against the
    same party or against different parties in the civil action or actions.”
    2
    January Term, 2010
    administrator initially appointed to oversee the decedent’s estate as plaintiff.
    Later, when that administrator was replaced by a successor due to a conflict, the
    complaint was amended to name the successor administrator as the plaintiff. But
    then the guardian’s counsel discovered that the successor administrator had not
    authorized the filing of the wrongful-death suit. The guardian’s counsel obtained
    an affidavit from the administrator disavowing the wrongful-death claim and
    moved to dismiss, asserting that Tillimon had no authority to sue. Tillimon’s
    previous lawyer responded in April 2006 by voluntarily dismissing the complaint
    without prejudice, thereby allowing the action to be refiled later.
    {¶ 6} When Tillimon retained respondent, the statute of limitations on
    the wrongful-death action was within a week or ten days of expiring. Respondent
    concluded from the administrator’s affidavit that the administrator had not and
    would not authorize the pursuit of a wrongful-death claim against the former
    guardian and nursing home. Respondent nevertheless refiled the case in late
    March 2007 in the Lucas County Common Pleas Court. To do so, he used a
    slightly modified version of the complaint that Tillimon’s former counsel had
    filed, still naming the successor administrator as plaintiff.
    {¶ 7} The guardian, who had refused service of the complaint, monitored
    the proceedings from the common pleas court’s online docket. In early April
    2007, the guardian’s counsel obtained a second affidavit from the estate’s
    administrator indicating that the administrator had not authorized a wrongful-
    death action on behalf of the estate. At the same time, the administrator wrote to
    respondent and demanded that the suit be dismissed.
    {¶ 8} Respondent responded by asking the common pleas court to
    substitute Tillimon as plaintiff in the case, which the court did. In his motion,
    respondent alleged that the decedent’s guardian had wrongfully failed to authorize
    surgery for the decedent; that respondent’s client, the decedent’s sole heir, wanted
    to pursue a wrongful-death action against the guardian and others; and that the
    3
    SUPREME COURT OF OHIO
    administrator of the decedent’s estate had indicated that he was not interested in
    pursuing the action. Respondent obtained an affidavit from a physician who had
    treated the decedent that supported respondent’s theory as to her death.
    {¶ 9} The guardian then moved for reconsideration of the substitution
    order.    Respondent, in turn, asked for a stay of the common pleas court
    proceedings to obtain an order from the probate court substituting his client as
    administrator of the estate. In July 2007, the common pleas court vacated its
    substitution order and reinstated the estate administrator as plaintiff, holding that
    the probate court had exclusive jurisdiction to replace an estate fiduciary.
    {¶ 10} The guardian next filed a memorandum opposing the motion to
    stay and moved for dismissal, arguing again that respondent lacked authority to
    sue. The court denied the stay. That August, respondent filed a notice, advising
    the court:
    {¶ 11} “Son and sole heir Duane J. Tillmon, by his counsel, advising court
    of our ‘followup’ to move probate court to act on Mr. Tillmon’s motion for
    appointment as executor or special administrator, promptly.”
    {¶ 12} The common pleas court dismissed the wrongful-death action
    several days later without addressing the notice.
    Analysis
    {¶ 13} The board found respondent in violation of Prof.Cond.R.
    1.16(a)(1) because he filed a wrongful-death action that named as plaintiff the
    administrator of the decedent’s estate, even though respondent knew that the
    administrator did not want to pursue the action. In objecting to the board’s
    finding, respondent claims that he had to file the action as he did because (1) his
    client, the decedent’s only heir, wanted to file the action, but the administrator,
    the proper party-plaintiff, opposed the action, and (2) the statute of limitations
    was about to expire. Respondent insists that his filing on behalf of the estate
    administrator was permissible under Douglas v. Daniels Bros. Coal Co. (1939),
    4
    January Term, 2010
    
    135 Ohio St. 641
    , 
    15 O.O. 12
    , 
    22 N.E. 195
    ; Burwell v. Maynard (1970), 
    21 Ohio St.2d 108
    , 
    50 O.O.2d 268
    , 
    255 N.E.2d 628
    ; and R.C. 2113.18. Because this
    precedent and its progeny at least arguably permitted respondent to file the action
    to avoid the statute of limitations for wrongful-death actions and to then obtain his
    client’s appointment under the statute as the administrator of his mother’s estate,
    we sustain the objection and find no misconduct.
    {¶ 14} R.C. 2113.18 authorizes a probate court to remove the
    administrator of a decedent’s estate under circumstances that respondent claims
    are present here⎯when the administrator refuses to bring a wrongful-death action
    and a prima-facie case for wrongful-death exists. That statute provides:
    {¶ 15} “(B) The probate court may remove any executor or administrator
    upon motion of the surviving spouse, children, or other next of kin of the
    deceased person whose estate is administered by the executor or administrator if
    both of the following apply:
    {¶ 16} “(1) The executor or administrator refuses to bring an action for
    wrongful death in the name of the deceased person;
    {¶ 17} “(2) The court determines that a prima-facie case for a wrongful
    death action can be made from the information available to the executor or
    administrator.”
    {¶ 18} In authorizing wrongful-death actions, R.C. 2125.02(A)(1)
    provides that in general:
    {¶ 19} “[A] civil action for wrongful death shall be brought in the name of
    the personal representative of the decedent for the exclusive benefit of the
    surviving spouse, the children, and the parents of the decedent, all of whom are
    rebuttably presumed to have suffered damages by reason of the wrongful death,
    and for the exclusive benefit of the other next of kin of the decedent.” (Emphasis
    added.)
    5
    SUPREME COURT OF OHIO
    {¶ 20} Respondent’s defense raises the question whether this statute (1)
    allows only the personal representative of the estate to file the wrongful-death
    action or (2) allows, as an initial matter, a beneficiary or other party in interest to
    initiate the proceeding in the name of the personal representative. Over the years,
    courts have often followed the latter interpretation and acknowledged that it is not
    necessarily fatal to the wrongful-death claim for a party other than the fiduciary
    appointed by the probate court to file the action. Respondent relies on two of
    these cases⎯Douglas v. Daniels Bros. Coal Co., 
    135 Ohio St. 641
    , 
    15 O.O. 12
    ,
    
    22 N.E. 195
    , and Burwell v. Maynard, 
    21 Ohio St.2d 108
    , 
    50 O.O.2d 268
    , 
    255 N.E.2d 628
    ⎯both of which offer the same explanation:
    {¶ 21} “ ‘The requirement of the wrongful death statute that the
    prosecution of the action be in the name of the personal representative is no part
    of the cause of action itself, but relates merely to the right of action or remedy.
    That requirement was obviously intended for the benefit and protection of the
    surviving spouse, children and next of kin of a decedent, the real parties in
    interest. The personal representative is only a nominal party. Wolf, Adm'r, v. Lake
    Erie & W. Ry. Co., 
    55 Ohio St. 517
    , 
    45 N.E. 708
    , 
    36 L.R.A. 812
    . Nor does the
    statute require that the personal representative shall bring the action (Wolf,
    Adm’r., v. Lake Erie & W. Ry. Co., supra), but merely provides that the action, if
    brought, shall be brought in the name of the personal representative. The only
    concern defendants have is that the action be brought in the name of the party
    authorized so that they may not again be haled into court to answer for the same
    wrong.’ ” Burwell at 110, 
    50 O.O.2d 268
    , 
    255 N.E.2d 628
    , quoting Douglas at
    647, 
    15 O.O. 12
    , 
    22 N.E.2d 195
    .
    {¶ 22} Douglas is most specifically on point.         In that case, a widow
    instituted an action alleging her husband’s wrongful death. Douglas, 135 Ohio St.
    at 641, 
    15 O.O. 12
    , 
    22 N.E.2d 195
    . Though the widow had not been appointed
    administrator, she filed the action as the decedent’s personal representative under
    6
    January Term, 2010
    the mistaken impression that she had been appointed. Id. at 645. Thus, like
    respondent, the widow filed the case without the authority of a validly appointed
    personal representative.      She discovered her error after expiration of the
    applicable statute-of-limitations period and amended her petition to show her later
    appointment as administrator. Id. Allowing the amendment to relate back and
    preserve the claim, the court held:
    {¶ 23} “Where a widow institutes an action, as administratrix, for
    damages for the wrongful death of her husband, under the mistaken belief that she
    had been duly appointed and had qualified as such, thereafter discovers her error
    and amends her petition so as to show that she was appointed administratrix after
    the expiration of the statute of limitation applicable to such action, the amended
    petition will relate back to the date of the filing of the petition, and the action will
    be deemed commenced within the time limited by statute.” Id. at paragraph one
    of the syllabus.
    {¶ 24} Respondent argues that this authority allowed him to bring a
    wrongful-death action by filing a complaint naming the administrator as plaintiff.
    In fact, he took this precedent so literally that he represented himself to be the
    plaintiff’s lawyer on the pleading.       The board found respondent’s argument
    “certainly worthy of consideration” but nevertheless found that the filing of a
    wrongful-death action required approval of the administrator or executor of the
    decedent’s estate.
    {¶ 25} Precedent following Douglas and Burwell, however, suggests
    otherwise. In Kyes v. Pennsylvania RR. Co. (1952), 
    158 Ohio St. 362
    , 363, 
    49 O.O. 239
    , 
    109 N.E.2d 503
    , for example, a trial court permitted the substitution of
    the administrator, who lived in Pennsylvania, as the named plaintiff after the
    ancillary administrator failed to qualify, even though the two-year statute of
    limitations for a wrongful-death suit had passed. Finding no error in the trial
    7
    SUPREME COURT OF OHIO
    court’s refusal to dismiss the case as time-barred, this court quoted the first
    syllabus paragraph in Douglas and then noted:
    {¶ 26} “In the opinions in the Wolf and Douglas cases, supra, it is
    observed that under the provisions of the statute it is not even necessary that the
    representative bring the action. The requirement is merely that the action be
    brought in his name.” (Emphasis sic.) Kyes, 158 Ohio St. at 365, 
    49 O.O. 239
    ,
    
    109 N.E.2d 503
    .
    {¶ 27} More recently, the rule was discussed in In re Estate of Ross
    (1989), 
    65 Ohio App.3d 395
    , 400, 
    583 N.E.2d 1379
    :
    {¶ 28} “R.C. 2125.02(A) provides that a wrongful death action ‘shall’ be
    brought in the name of the deceased's personal representative. This and similar
    language has been interpreted to mean that only the personal representative has
    the legal capacity to sue under this statutory cause of action. Moss v. Hirzel
    Canning Co. (1955), 
    100 Ohio App. 509
    , 
    60 O.O. 397
    , 
    137 N.E.2d 440
    . If the
    action is brought by the beneficiaries, it must be dismissed or the correct party
    substituted. Sabol v. Pekoc (1947), 
    148 Ohio St. 545
    , 
    36 O.O. 182
    , 
    76 N.E.2d 84
    .
    Usually, the personal representative is the executor or administrator of the estate.
    {¶ 29} “Yet it is equally settled that the representative is a nominal party,
    unless he is also a beneficiary, and that the beneficiaries are the real parties in
    interest. Kyes v. Pennsylvania Rd. Co. (1952), 
    158 Ohio St. 362
    , 
    49 O.O. 239
    ,
    
    109 N.E.2d 503
    ; Burwell v. Maynard (1970), 
    21 Ohio St.2d 108
    , 
    50 O.O.2d 268
    ,
    
    255 N.E.2d 628
    . Thus, it has been stated that the statute is satisfied if the action is
    merely brought in the representative's name, Kyes, supra, and that the name
    requirement was designed to avoid multiple actions for the same wrong. Burwell,
    supra.”
    {¶ 30} This court again considered who may file a wrongful-death action
    under R.C. Chapter 2125 in Ramsey v. Neiman (1994), 
    69 Ohio St.3d 508
    , 
    634 N.E.2d 211
    .        There, a decedent’s father who had not been appointed
    8
    January Term, 2010
    administrator, executor, or other fiduciary of his daughter’s estate argued that he
    qualified as the decedent’s personal representative and had authority to sue for his
    daughter’s wrongful death. Id. at 511. We first observed that R.C. 2125.02(A)(1)
    has “remained virtually unchanged since the date the statute was originally
    enacted in 1851” and that it was modeled after Lord Campbell’s Act, passed by
    Parliament in 1846. Id. at 509-510. In creating a cause of action for wrongful
    death, Lord Campbell’s Act authorized executors and administrators to bring the
    new action, providing:
    {¶ 31} “ ‘And be it enacted, That every such Action shall be for the
    Benefit of the Wife, Husband, Parent, and Child of the Person whose Death shall
    have been so caused, and shall be brought by and in the Name of the Executor or
    Administrator of the Person deceased * * *.’ (Emphasis added.) 9 & 10 Vict. Ch.
    93, 86 Eng. Stat. at Large 531 * * * .” Ramsey, 69 Ohio St.3d at 510, 
    634 N.E.2d 211
    , quoting 86 Eng.Stat. at Large 531.
    {¶ 32} Ramsey thus held that the reference in R.C. 2125.02(A)(1) to a
    “personal representative” required “an executor or administrator, i.e., an
    individual appointed by a court, to bring the cause of action.” Id. at 510. This
    conclusion is consistent with the language in Lord Campbell’s Act requiring that
    the wrongful-death action be brought by and in the name of the executor or
    administrator. But according to the concurring opinion, joined by three other
    justices, the lead opinion incorrectly construed the statute to “mandate[] that the
    personal representative be appointed before he or she can enter the courthouse to
    file a wrongful death complaint.” Id. at 513. As the opinion points out, this
    requirement is not specified anywhere in the statute:
    {¶ 33} “The language in R.C. 2125.02(A)(2) and 2125.02(C) indicates
    that the personal representative must be court-appointed after the complaint has
    been filed, but before any judgment is entered or any settlement is reached.
    9
    SUPREME COURT OF OHIO
    {¶ 34} “Summary judgment would provide the appropriate mechanism to
    screen out those plaintiffs who have not received court appointment after filing
    their complaints. In the present case, the plaintiff was not appointed as the
    decedents' personal representative after he filed his complaint.”                      Id. at 514
    (Pfeifer, J., concurring).
    {¶ 35} The Ramsey court distinguished Douglas and Kyes on the bases
    that the father in Ramsey had not been appointed administrator and the record did
    not show “any attempt on his part to become appointed.” 69 Ohio St.3d at 513,
    
    634 N.E.2d 211
    . But here, respondent pursued the wrongful-death claim in the
    name of the proper party. The common pleas court initially granted respondent’s
    motion to substitute his client for the administrator. And when the common pleas
    court reconsidered its authority to remove a probate-court-appointed fiduciary as
    the named party and reinstated the administrator as the plaintiff, respondent gave
    notice that he intended to petition the probate court to have his client appointed as
    a special administrator.2         He did request that his client be named a special
    administrator, but the probate court denied the request, and as of the panel
    hearing, that decision was on appeal.
    {¶ 36} At least one court has even advocated filing a wrongful-death
    action in the name of the personal representative under the circumstances facing
    respondent and his client. In Gottke v. Diebold, Inc. (Aug. 9, 1990), Licking App.
    No. CA-3484, 
    1990 WL 120801
    , *1, a daughter filed suit against two defendants,
    alleging the wrongful death of her mother and that she was the personal
    representative of her mother’s estate. As in respondent’s case, the probate-court-
    appointed executor opposed the claim. 
    Id.
     The court concluded:
    2. The guardian’s attorney testified that even if respondent’s client had been appointed special
    administrator, he still would not have had the authority to prosecute the wrongful-death action.
    This witness admitted, however, that if the probate court had substituted the client as the “regular”
    administrator, and the common pleas court had not dismissed the action, the appointment would
    have related back to and saved the complaint.
    10
    January Term, 2010
    {¶ 37} “[A]n action for wrongful death must be brought in the name of the
    personal representative of the decedent; Civ.R. 17 [precluding dismissal of actions
    not filed in the name of the real party in interest without allowing reasonable time
    after objection to permit ratification by or joinder or substitution of the real party]
    may not be used to, in effect, extend the applicable statute of limitations; and the
    doctrine of relation back does not apply where the plaintiff misrepresents his/her
    capacity, and fails to procure appointment within the time prescribed by the
    appropriate statute of limitations, or file ‘in the name of’ the personal
    representative.” (Emphasis added.) Id. at *3.
    {¶ 38} The court of appeals in Gottke affirmed the dismissal of the
    daughter’s action as to both defendants because she filed the complaint in her own
    name and not in the name of the personal representative. Citing Kyes, Wolf, and
    Douglas, the court faulted the daughter for not taking the very action that
    respondent took to preserve his client’s claim:
    {¶ 39} “Appellee correctly argues that rather than mislead the defendants
    and the court [the daughter] could have brought the action in the name of the
    actual fiduciary. That would have accomplished the statutory intent of focusing
    the response of the court and the adverse parties upon the probated estate.
    {¶ 40} “Under the provisions of the statute it is not even necessary that the
    representative bring the action. The requirement is merely that the action be
    brought in his name.” Id. at *4.
    Conclusion
    {¶ 41} In his zeal to file a complaint “in the name” of this decedent’s
    personal representative, respondent did initially represent himself to be the
    plaintiff-administrator’s lawyer on the pleading. This discrepancy, however, is
    not the focus of either relator’s complaint or the board’s report. Moreover, little
    harm came of his mistake, inasmuch as the client notified the decedent’s guardian
    11
    SUPREME COURT OF OHIO
    the day after the suit was filed that he had retained respondent, and respondent
    properly identified himself as his client’s lawyer in later filings.
    {¶ 42} In any event, we need not decide here whether respondent
    correctly interpreted precedent.      As stated in Prof.Cond.R. 3.1, lawyers are
    permitted to advance claims and defenses for which “there is a basis in law and
    fact for doing so that is not frivolous, which includes a good faith argument for an
    extension, modification, or reversal of existing law.” And under DR 7-102(A)(2),
    the predecessor to Prof.Cond.R. 3.1, a lawyer could not “[k]nowingly advance a
    claim or defense that is unwarranted under existing law”; however, the lawyer
    could “advance such claim or defense if it can be supported by good faith
    argument for an extension, modification, or reversal of existing law.”
    {¶ 43} The comment to Prof.Cond.R. 3.1 embellishes these standards:
    {¶ 44} “[1] The advocate has a duty to use legal procedure for the fullest
    benefit of the client’s cause, but also a duty not to abuse legal procedure. The
    law, both procedural and substantive, establishes the limits within which an
    advocate may proceed. However, the law is not always clear and never is static.
    Accordingly, in determining the proper scope of advocacy, account must be taken
    of the law’s ambiguities and potential for change.
    {¶ 45} “[2] The filing of an action or defense or similar action taken for a
    client is not frivolous merely because the facts have not first been fully
    substantiated or because the lawyer expects to develop vital evidence only by
    discovery. What is required of lawyers, however, is that they inform themselves
    about the facts of their clients’ cases and the applicable law and determine that
    they can make good faith arguments in support of their clients’ positions. Such
    action is not frivolous even though the lawyer believes that the client’s position
    ultimately will not prevail. The action is frivolous, however, if the lawyer is
    unable either to make a good faith argument on the merits of the action taken or to
    12
    January Term, 2010
    support the action taken by a good faith argument for an extension, modification,
    or reversal of existing law.”
    {¶ 46} Respondent’s strategy may have been flawed, but the fact that he
    had some arguably viable legal support for his actions is enough to avoid
    disciplinary sanction. We therefore find no violation of the ethical standards
    incumbent upon Ohio lawyers. The complaint against respondent is dismissed.
    Judgment accordingly.
    MOYER,    C.J.,   and    PFEIFER,    LUNDBERG   STRATTON,   O’CONNOR,
    O’DONNELL, and CUPP, JJ., concur.
    LANZINGER, J., dissents and would impose a stayed six-month suspension.
    __________________
    Jonathan B. Cherry, Bar Counsel, Yvonne Tertel, and Paul D. Giha, for
    relator.
    Kerger & Hartman, L.L.C., and Richard M. Kerger, for respondent.
    ______________________
    13
    

Document Info

Docket Number: 2009-1171

Citation Numbers: 2010 Ohio 170, 124 Ohio St. 3d 305, 921 N.E.2d 1056

Judges: Moyer, Pfeifer, Stratton, O'Connor, O'Donnell, Cupp, Lanzinger

Filed Date: 1/28/2010

Precedential Status: Precedential

Modified Date: 10/19/2024