[Cite as Taneff v. HCR ManorCare Inc., 2015-Ohio-3453.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

SPECIAL ADMINISTRATOR THOMAS 

TANEFF ON BEHALF OF THE 

WRONGFUL DEATH BENEFICIARIES 

OF ANNA NESTOR 

 Appellant 

 v. 

HCR MANORCARE, INC., et al. 

 Appellees 

C.A. No. 27554 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2013 11 5391 

DECISION AND JOURNAL ENTRY

Dated: August 26, 2015 

 

WHITMORE, Judge. 

{¶1} Appellant Patty Leaver, administratrix of the estate of Anna Nestor, was 

substituted for Thomas Taneff as the proper party to this appeal. Ms. Leaver appeals the trial 

court’s grant of summary judgment in favor of Appellees, HCR ManorCare Services, Inc., HCR 

ManorCare, Inc., Heartland Employment Services, LLC, ManorCare of Barberton, OH, LLC, 

and Sara Burton (collectively, “ManorCare”). We reverse. 

I 

{¶2} Anna Nestor was a nursing home patient at ManorCare for 28 days before she 

died on November 19, 2011. Her daughter, Ms. Leaver, filed a wrongful death action against 

ManorCare on November 18, 2013, immediately prior to the two-year statutory time bar for 

wrongful death claims. 
2 

 

{¶3} Ms. Leaver filed the wrongful death suit individually, and on behalf of her 

mother’s wrongful death beneficiaries. At the time of filing, no estate had been opened for Ms. 

Nestor, and Ms. Leaver was not the duly appointed personal representative of her mother’s 

estate. Ms. Leaver hired probate attorney Thomas Taneff and began the process of opening an 

estate for her mother after she filed suit. Mr. Taneff was appointed special administrator of Ms. 

Nestor’s estate after the complaint was filed. 

{¶4} ManorCare moved for judgment as a matter of law on the ground that Ms. Leaver 

lacked standing to bring the wrongful death suit. ManorCare argued that Ms. Leaver lacked 

standing because she had not demonstrated that: (1) there was an estate, and (2) she was the duly 

appointed representative of the estate. Ms. Leaver did not respond to ManorCare’s motion, but 

instead filed a second amended complaint,1

 substituting Special Administrator Taneff as the 

named party representative. 

{¶5} ManorCare again moved for judgment as a matter of law, challenging Ms. 

Leaver’s standing and capacity at the time of filing of the original complaint. The trial court 

found that ManorCare was entitled to summary judgment under Civ.R. 56 on the basis of Ms. 

Leaver’s alleged lack of standing. Specifically, the trial court found that: (1) Ms. Leaver lacked 

standing to file the original complaint because she was not appointed personal representative of 

her mother’s estate, and (2) because she lacked standing, the second amended complaint filed by 

Special Administrator Taneff did not relate back to the original filing, and was therefore time 

barred. The trial court did not address Ms. Leaver’s capacity to file the original complaint. 

 

1

 The first amended complaint merely corrected typographical errors. 
3 

 

{¶6} Ms. Leaver now appeals.2 She raises two assignments of error for our review. 

II 

Assignment of Error Number One

THE TRIAL COURT ERRED IN FINDING THAT THE PLAINTIFF IN A 

WRONGFUL DEATH ACTION MUST BE APPOINTED PERSONAL 

REPRESENTATIVE OF THE ESTATE IN ORDER TO HAVE STANDING. 

{¶7} In her first assignment of error, Ms. Leaver argues that the trial court erred when 

it held that R.C. 2125.02(A)(1) requires a wrongful death beneficiary to be appointed the 

personal representative of the estate before the beneficiary will have standing to sue. We agree.

{¶8} “Standing is a preliminary inquiry that must be made before a court may consider 

the merits of a legal claim.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010–Ohio–6036, ¶ 9. 

Whether standing exists is a question of law that an appellate court reviews de novo. State ex. 

rel. Ohio Chapter of Associated Builders & Contractors, Inc. v. Barberton City School Dist. Bd. 

of Edn., 188 Ohio App.3d 395, 2010-Ohio-1826, ¶ 10 (9th Dist.). 

{¶9} Likewise, this Court reviews a trial court’s grant of summary judgment de novo. 

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Under Civ.R. 56(C), summary 

judgment is only proper if: 

(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the 

moving party is entitled to judgment as a matter of law; and (3) it appears from 

the evidence that reasonable minds can come to but one conclusion, and viewing 

such evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. 

 

2

 After the notice of appeal was filed, Mr. Taneff was removed as special administrator, and Ms. 

Leaver became the administratrix of the estate. ManorCare moved to dismiss the appeal based 

on Mr. Taneff’s alleged lack of standing. This Court deferred ruling on the motion to dismiss. 

Subsequently, we ordered Ms. Leaver to either amend the notice of appeal to reflect her status as 

the personal representative of the estate, and to be substituted as the proper party to the appeal, or 

face dismissal. Ms. Leaver complied. We granted Ms. Leaver’s motions to amend the notice of 

appeal and to be substituted as the proper appellant without deciding the ultimate issues on 

appeal. 
4 

 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

{¶10} “The right to sue for wrongful death in Ohio is a statutorily created right.” 

Tennant v. State Farm Mut. Ins. Co. ̧ 81 Ohio App.3d 20, 23 (9th Dist. 1991) citing Rubeck v. 

Huffman, 54 Ohio St.2d 20, 22 (1978). The wrongful death statutes are codified in R.C. Chapter 

2125. The statute provides that a wrongful death action generally must be brought within two 

years of the decedent’s death. R.C. 2125.02(D)(1). Further, “[w]rongful death actions must 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[.]’” Cushing v. Sheffield Lake, 

9th Dist. Lorain No. 13CA010464, 2014-Ohio-4617, ¶ 4, quoting R.C. 2125.02(A)(1). “A 

personal representative appointed in this state, with the consent of the court making the 

appointment and at any time before or after the commencement of a civil action for wrongful 

death, may settle with the defendant the amount to be paid.” R.C. 2125.02(C).

{¶11} Here, the trial court’s grant of summary judgment to ManorCare is based on Ms. 

Leaver’s alleged lack of standing under R.C. 2125.02 to bring a wrongful death action, because 

she was not the personal representative of the estate when she filed the original complaint. In so 

holding, the trial court has confused “standing” and “capacity.” A party must have both standing 

and capacity to sue. Mousa v. Mt. Carmel Health Sys., Inc., 10th Dist. Franklin No. 12AP-737, 

2013-Ohio-2661, ¶ 12. However, standing and capacity are distinct legal concepts under Ohio 

law. See Reynolds v. HCR ManorCare, Inc., 9th Dist. Summit No. 27411, 2015-Ohio-2933, ¶ 

13; Eichenberger v. Woodlands Assisted Living Residence, LLC, 10th Dist. Franklin No. 12AP987, 2013-Ohio-4057, ¶ 14-15; Country Club Townhouses North Condominium Unit Owners 

Assn. v. Slates, 9th Dist. Summit No. 17299, 1996 WL 28003, *2 (Jan. 24, 1996). 
5 

 

{¶12} “Capacity concerns a determination as to whether an individual may properly sue, 

either as an entity or on behalf of another.” Mousa at ¶ 13, citing Natl. City Mtge. v. Skipper, 9th 

Dist. Summit No. 24772, 2009-Ohio-5940, ¶ 11. “Capacity to sue or be sued does not equate 

with the jurisdiction of a court to adjudicate a matter; it is concerned merely with a party’s right 

to appear in a court in the first instance.” Skipper at ¶ 11 quoting Country Club TownhousesNorth Condominium Unit Owners Assn. at *3. 

{¶13} Standing, on the other hand, is jurisdictional and involves whether a party has a 

personal stake in the outcome of an action, rather than a representative or nominal interest in the 

claim. Reynolds at ¶ 13-14. A party has standing if it is a real party in interest. Id. at ¶ 14. A 

real party in interest is an individual who has suffered an injury in a matter. Id., citing Mousa at 

¶ 12. 

{¶14} With respect to the requirements of R.C. 2125.02(A)(1), this Court has held that 

“[t]he real parties in interest in a wrongful death action are the beneficiaries, while the personal 

representative is a nominal party to the case.” Cushing, 2014-Ohio-4617 at ¶ 4, citing Toledo 

Bar Assn. v. Rust, 124 Ohio St.3d 305, 2010-Ohio-170, ¶ 21. Section 2125.02(A)(1) provides 

that surviving children, among others, are the beneficiaries of a wrongful death action. 

Accordingly, Ms. Leaver is a beneficiary here. As a beneficiary, she is a real party in interest, 

and thus has standing to bring the wrongful death claim. See Reynolds, 2015-Ohio-2933 at ¶ 14, 

16.

{¶15} ManorCare argues that children of the decedent do not inevitably have standing 

under the wrongful death statute. In support of this argument, ManorCare cites to cases for the 

proposition that, when a statute conveys standing, the constitutional requirement of a personal 

stake in the controversy is irrelevant. ManorCare’s argument is not well taken. The cases to 
6 

 

which ManorCare cites hold that statutory standing may expand the scope of potential plaintiffs 

beyond those that would otherwise have a stake in the controversy, not that the existence of a 

statute obviates the standing of a party with a personal stake in the controversy, particularly 

when the wrongful death statute at issue specifies that surviving children indeed are the real 

parties in interest to the action. In Ohio Valley Associated Builders & Contrs. v. DeBraKuempel, 192 Ohio App.3d 504, 2011-Ohio-756, ¶ 18-20, 29 (2d Dist.), a case on which 

ManorCare relies, the statute at issue expanded standing to individuals who may not have 

suffered a direct injury under the prevailing wage law. Likewise, the court in Ohio Valley 

Associated Builders & Contrs. v. Indus. Power Sys., Inc., 190 Ohio App.3d 273, 2010-Ohio-4930 

(6th Dist.) held that dismissal was inappropriate because the statute at issue authorized the 

plaintiff association to file suit even though it had not suffered a personal injury. Id. at ¶ 14-26. 

{¶16} Similarly, R.C. 2125.02 expands the scope of possible plaintiffs with standing 

from the narrower confines of those with an immediate stake in the controversy, to include the 

personal representative of an estate, who may or may not have a personal stake in the outcome of 

the litigation. Together with Civ.R. 17, the statute specifically provides an exception to the 

requirement that a real party in interest be named in the caption of the case. Civ.R. 17(A) (“An 

executor *** 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.”) However, R.C. 2125.02 

does not nullify the standing of a real party in interest, who, under the wrongful death statute, is 

the beneficiary of a wrongful death claim. 

{¶17} The first assignment of error is sustained. 

Assignment of Error Number Two

THE TRIAL COURT ERRED IN FINDING THAT RELATION BACK DID 

NOT APPLY TO THE SECOND AMENDED COMPLAINT. 
7 

 

{¶18} In her second assignment of error, Ms. Leaver argues that the trial court erred 

when it held that the second amended complaint filed by Special Administrator Taneff did not 

relate back to the original complaint, and consequently was time barred under the two-year 

limitation on wrongful death actions in R.C. 2125.02(D). We agree. 

{¶19} ManorCare argues that relation back should not be permitted here because the 

wrongful death statute must be strictly construed. According to ManorCare, when the suit is not 

brought in the name of the personal representative in the first instance, the complaint fails to 

state a cause of action and is a nullity, so that there is no complaint to which a subsequent 

pleading may relate. 

{¶20} ManorCare’s argument for strict construction of R.C. 2125.02 relies in significant 

part on Sabol v. Pekoc, 148 Ohio St. 545 (1947). The Sabol court acknowledged that no cause 

of action for wrongful death existed at common law, and “[u]nless a petition for wrongful death 

is filed strictly according to the essential terms of the wrongful-death act, such petition does not 

state a good cause of action because the act is the sole source of the right upon which the petition 

is based.” Id. at 552, 558. The Court found that the two-year time limitation found in R.C. 

2125.02 is an essential term of the act, so that a wrongful death claim filed for the first time 

outside of that time limitation is time barred, even if the late filing is due to fraud. Id. at 558. 

ManorCare appears to invoke Sabol to make the requirement of R.C. 2125.02 that the case be 

captioned in the name of the personal representative of the decedent’s estate an essential term. 

However, the Supreme Court of Ohio has already rejected this argument in Douglas v. Daniel 

Bros. Coal Co., 135 Ohio St. 641 (1939). 

{¶21} In Douglas, the Supreme Court of Ohio held that an amended wrongful death 

petition related back to the filing of the original complaint, and the action was deemed 
8 

 

commenced within the statutory time limit, when the wrongful death plaintiff amended her 

petition to show that she was appointed administratrix after the limitation period had expired. Id. 

at paragraph one of the syllabus. In so holding, the Court considered whether the requirement of 

the wrongful death statute that the prosecution of the action be in the name of the personal 

representative is an essential term. The Court found that it was not an essential term, but rather 

found that the requirement is “no part of the cause of action itself.” Id. at 647. Specifically, the 

Court stated: 

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. Nor does the statute require that the 

personal representative shall bring the action *** 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 an[s]wer for the 

same wrong. 

Id. at 647-48. 

{¶22} Indeed, both the Supreme Court of Ohio and this Court have said that the 

wrongful death statute should not be strictly construed, but rather “is procedural and remedial in 

nature and should be given a liberal construction.” Stone v. Phillips, 9th Dist. Summit No. 

15908, 1993 WL 303281, *2 (Aug. 11, 1993) citing Kyes v. Pennsylvania Rd. Co., 158 Ohio St. 

362 (1952), paragraph two of the syllabus. We have recognized that R.C. 1.11 requires that 

“’[r]emedial laws and all proceedings under them shall be liberally construed in order to promote 

their object and assist the parties in obtaining justice.’” Stone at *2, quoting R.C. 1.11. 

{¶23} In Stone, this Court noted that Ohio courts have examined procedural issues 

surrounding the amendment of the original complaint, and the doctrine of relation back. Stone at 
9 

 

*3. “In addressing these questions, the courts balance the statute’s avowed purpose to 

compensate beneficiaries with its technical requirements.” Id. We explained that, “[i]n 

addressing amendment of wrongful death complaints, this court stressed that ‘[j]ustice abhors the 

loss of causes of action by pure technicalities.’” Id., quoting Bell v. Coen, 48 Ohio App.2d 325, 

327 (9th Dist.1975). “In that tradition, case law in Ohio illustrates that trial courts liberally 

permit pleadings to be amended to cure a defect, so that determinations may be made on the 

merits.” Stone at *3, citing Archdeacon v. Cincinnati Gas & Elec. Co., 76 Ohio St. 97, 107 

(1907); Patterson v. V&M Auto Body, 63 Ohio St.3d 573, 577 (1992). 

{¶24} We also have recognized that an amendment with respect to a plaintiff’s capacity 

to sue – such as the amendment at issue here – relates to the right of action, and not the 

substantive cause of action. Stone at *3, citing Douglas, 135 Ohio St. at 647. “Therefore, 

substitution of parties is the proper remedy, rather than dismissal of the action.” Id., citing De 

Garza v. Chetister, 62 Ohio App.2d 149, 155 (6th Dist.1978). 

{¶25} Respecting the doctrine of relation back, we said that the general rule is that the 

appointment of the administrator relates back to the filing of the petition. Stone, 1993 WL 

303281 at *3, citing Archdeacon at 106-107. Relation back is not applied only if a new cause of 

action is introduced, such that the defendant would suffer prejudice. Id., citing Burwell v. 

Maynard, 21 Ohio St.2d 108, 111 (1970). 

{¶26} Remaining mindful of the liberal amendment and relation back allowances for 

wrongful death petitions, we held in Stone that an amended wrongful death complaint related 

back to the original filing date. Stone at *4. In that case, the mother of the decedent and 

grandmother of the decedent’s three minor children filed a wrongful death petition and referred 

to herself as “Executrix of the Estate” and “Guardian” of the children. Id. As in the instant case, 
10 

 

there was no estate in existence at the time of filing of the original complaint, and no guardian 

had yet been appointed for the children. Id. When the plaintiff later sought amendment to 

change the caption on the complaint, her attorney’s name was substituted as personal 

representative, and she had been duly appointed guardian. Id. We held that relation back was 

appropriate when: (1) the record contained no evidence that the plaintiff acted other than on the 

reasonable belief that, as the closest relative of the decedent, she would be appointed 

administrator; (2) there was no evidence that the defendant was prejudiced by the substitution of 

party names where all of the real parties in interest and claims remained the same; and (3) all of 

the beneficiaries were appropriately represented in the suit, so that the defendant did not need to 

fear being sued repeatedly for the same alleged wrong. Id.

{¶27} Stone is strikingly similar to this case and compels a similar conclusion. Here, 

Ms. Leaver is an immediate relative of the deceased, and is explicitly one of the beneficiaries of 

R.C. 2125.02(A)(1). Just as in Stone, Ms. Leaver named herself representative of the wrongful 

death beneficiaries in her original complaint, even though no estate had been opened, and she 

was not the duly appointed personal representative of the estate. Also like in Stone, Ms. Leaver 

amended her complaint after the expiration of the two-year time limitation on wrongful death 

actions, naming her attorney as the personal representative of the estate. As in Stone, there is no 

evidence here that, when she filed her original complaint, Ms. Leaver believed other than that 

she would be appointed administrator of her mother’s estate. Nor is there evidence that 

ManorCare has been prejudiced by the substitution of party names; ManorCare does not face any 

new claims or adverse parties as a result of the amendment, and has been aware of the claims 

against it since the commencement of the lawsuit. Furthermore, ManorCare has not made any 

allegation that it will be subject to future litigation brought by improperly excluded beneficiaries. 
11 

 

Accordingly, we hold that Ms. Leaver’s second amended complaint relates back to the date the 

original complaint was filed, and thus is not time barred under R.C. 2125.02(D).3 

{¶28} We do not believe our conclusion to be irreconcilably at odds with Ramsey v. 

Neiman, 69 Ohio St.3d 508 (1994). In Ramsey, four Justices, the majority, joined in the 

concurring opinion and concluded that, under the express language of R.C. 2125.02(C), a 

personal representative must be appointed by a court before the case is settled (or judgment 

rendered), not before it is filed. Id. at 513-514 (Pfeifer, J., concurring in judgment only). Only 

three Justices joined the lead opinion’s reasoning that the appointment of a personal 

representative of a decedent’s estate should be a condition precedent to the institution of a 

wrongful death action. Id. at 511. Further, in the case below, the facts were that the plaintiff 

may never have taken any steps to be appointed as personal representative, so there would have 

been no amended pleading substituting a duly appointed representative of the estate to relate 

back to the original filing. Ramsey v. Neiman, 9th Dist. Summit No. 15786, 1993 WL 21005, *2 

(Jan. 27, 1993). This Court has explained that “we chose not to extend the holding in Ramsey

beyond its own facts.” Stone, 1993 WL 303281 at *3.4

 Accordingly, there is no conflict 

 

3

 We are not persuaded by ManorCare’s concern that allowing relation back under these 

circumstances could result in an indefinite extension of the time to bring a wrongful death suit in 

compliance with R.C. 2125.02(A)(1), or that wrongful death defendants are put at risk of 

multiple, concurrent claims if a personal representative can be appointed sometime after the 

filing of the original complaint. We agree with the concurrence in Ramsey v. Neiman, 69 Ohio 

St.3d 508 (Ohio 1994) that summary judgment would provide an effective “mechanism to screen 

out those plaintiffs who have not received court appointment after filing their complaints” (or are 

not acting diligently to seek appointment of a personal representative). Id. at 514 (Pfeifer, J., 

concurring in judgment only). 

4

 “No personal representative had been appointed, even at the time of oral argument, in the 

Ramsey case. That decision, holding that ‘the doctrine of relation back should not apply’ is 

inapplicable to this case where we have an appointment to relate back.” Stone, 1993 WL 303281 

at *5 (Cook, P.J., concurring.) 
12 

 

between Ramsey and our holding today that Ms. Leaver’s second amended complaint relates 

back to her original filing, and therefore, is not time barred under R.C. 2125.02(D). 

{¶29} Ms. Leaver’s second assignment of error is sustained. 

III 

{¶30} Ms. Leaver’s assignments of error are sustained. The judgment of the Summit 

County Court of Common Pleas is reversed, and this matter is remanded for proceedings 

consistent with this opinion. 

Judgment reversed 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellees. 

 

 BETH WHITMORE 

 FOR THE COURT 
13 

 

HENSAL, P. J. 

SCHAFER, J. 

CONCUR.

APPEARANCES:

MICHAEL J. FULLER, JR. and D. BRYANT CHAFFIN, Attorneys at Law, for Appellant. 

ROBERT M. ANSPACH, J. RANDALL ENGWERT, and DAVID J. BORELL, Attorneys at 

Law, for Appellees.