[Cite as Cook v. Pitter Patter Learning Ctr., L.L.C., 2022-Ohio-961.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

LINDA K. COOK

Plaintiff/Appellant

v.

PITTER PATTER LEARNING 

CENTER, LLC, et al.

Defendants/Appellees

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Appellate Case No. 29260

Trial Court Case No. 2020-CV-1628

(Civil Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 25th day of March, 2022. 

. . . . . . . . . . . 

JASON P. MATTHEWS, Atty. Reg. No. 0073144 and MATTHEW C. SCHULTZ, Atty. 

Reg. No. 0080142, 130 West Second Street, Suite 924, Dayton, Ohio 45402

Attorneys for Plaintiff-Appellant

 

MATTHEW D. STOKELY, Atty. Reg. No. 0062611 and KRISTINA ELIZABETH CURRY,

Atty. Reg. No. 0084084, 40 North Main Street, Suite 2700, Dayton, Ohio 45423

Attorneys for Defendants-Appellees

 . . . . . . . . . . . . .

WELBAUM, J.
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{¶ 1} Plaintiff-Appellant, Linda Cook, appeals from a judgment dismissing her 

complaint against Defendants-Appellees, Pitter Patter Learning Center, LLC, and Zandra 

Phillips (collectively, “Appellees”). According to Cook, the trial court erred in dismissing 

the complaint because it failed to apply the proper standard of review. Cook also argues 

that the court failed to properly consider evidence about judicial estoppel.

{¶ 2} We conclude that dismissal of the complaint was partly based on incorrect 

factual conclusions related to the application of judicial estoppel. Accordingly, the trial 

court erred in dismissing Cook’s complaint. Furthermore, an alleged lacked of standing 

due to Cook’s Chapter 13 bankruptcy filing does not provide an alternate reason to affirm 

the dismissal. Cook had standing when the complaint was filed because she asserted 

that Appellees had caused her injury and damages by unlawfully terminating her 

employment, by failing to pay wages, by failing to pay minimum wages, and by illegally 

accessing her electronically-stored information. At that point, Cook had not yet filed for 

bankruptcy, and standing existed. 

{¶ 3} Whether the bankruptcy trustee subsequently became a real party in interest, 

depriving Cook of standing, or whether Cook had a concurrent interest for purposes of 

standing due to differences between Chapter 7 and Chapter 13 bankruptcy proceedings 

is for the trial court to decide on remand, along with the issue of judicial estoppel. 

Accordingly, the judgment of the trial court will be reversed and remanded for further 

proceedings. 

I. Facts and Course of Proceedings
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{¶ 4} On April 3, 2020, Cook filed a complaint against Appellees, alleging that her 

employment had been terminated in violation of R.C. 5113.52, Ohio’s “whistleblower” 

statute, and R.C. 5104.10, which precludes childcare employers from taking retaliatory 

actions against employees who have made good faith oral or written complaints to the 

director of job and family services. Cook also alleged that Appellees had failed to pay 

wages, had failed to pay minimum wages, and had illegally accessed her electronicallystored communications in violation of state and federal law. 

{¶ 5} The claims arose from Cook’s employment with Pitter Patter, which is a 

licensed daycare facility. According to the complaint, Cook was employed at Pitter Patter 

as an administrator from July 8, 2019 through October 9, 2019, and reported to Zandra 

Phillips. Complaint, ¶ 5 and 7. Cook’s job performance and conduct were satisfactory 

during her employment. Id. at ¶ 6. During her employment, Cook reported unsafe 

conditions to Phillips, including children’s access to prescription medication and sharp 

objects and improper staff-to-child ratios. However, Phillips failed to correct the 

conditions. Id. at ¶ 7. As a result, Cook sent an email on October 8, 2019, to a Day 

Care Licensing Specialist for the Ohio Department of Job and Family Services (“ODJFS”),

asking to speak with him about unsafe conditions at the daycare center. Id. 

{¶ 6} Cook sent the email using her private mobile phone and personal email 

account. Id. at ¶ 8. However, on October 9, 2019, Phillips handed Cook a printed copy 

of email communications between ODJFS and Cook and terminated Cook’s employment. 

Id. at ¶ 9. Cook then filed the current action against Appellees, Phillips and Pitter Patter.

{¶ 7} After receiving an extension of time to plead, Appellees filed an answer to 
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the complaint on June 3, 2020. Following a pretrial conference, the court set various 

litigation dates, including a January 21, 2021 discovery cutoff and a February 8, 2021 jury 

trial. 

{¶ 8} On December 3, 2021, Appellees filed a motion to dismiss the complaint 

pursuant to Civ.R. 12(B)(1) and, alternatively, Civ.R. 12(C), based on Cook’s failure to

disclose the existence of her action against Appellees when she filed for a Chapter 13 

bankruptcy. By agreement of the parties, the court vacated the trial date and granted 

Cook an extension of time to reply to the motion to dismiss. Cook then filed a response 

to the motion on December 29, 2020, arguing that her failure to list the claim against 

Appellees was inadvertent. As support, Cook attached her trial attorney’s affidavit and 

several other documents.

{¶ 9} On the same day, Cook also filed a motion in the trial court seeking to 

substitute the bankruptcy trustee as a real party in interest under Civ.R. 17(A). Again, 

Cook attached several documents, including the docket sheet for her bankruptcy case

and her trial attorney’s affidavit.

{¶ 10} Another pretrial order was filed on January 7, 2021, setting trial for October 

25, 2021. On February 9, 2021, Appellees responded to the motion to add the 

bankruptcy trustee and to Cook’s memorandum concerning the motion to dismiss.

{¶ 11} Along with a subsequent memorandum, Cook included her own affidavit, in 

which she said she had informed her bankruptcy attorney of the pending litigation. She 

further stated that this attorney and his staff had prepared the bankruptcy filings and had

not given her an opportunity to review them before filing. Cook therefore claimed she 
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had no knowledge that the common pleas court litigation had been omitted until 

Appellees’ motion to dismiss was filed. Plaintiff’s Reply Memorandum in Support of Her 

Motion to Substitute Bankruptcy Trustee as Real Party in Interest (Feb. 16. 2021)

(“Substitution Motion”), Cook Affidavit, p. 1-2. Appellees filed a surrreply to this 

memorandum on February 23, 2021.

{¶ 12} On September 9, 2021, the trial court filed an order and entry sustaining 

Appellees’ motion to dismiss and dismissing Cook’s complaint. This timely appeal 

followed. 

II. Alleged Error in Dismissal of the Complaint

{¶ 13} Cook’s sole assignment of error states that:

The Trial Court Erred by Granting the Motion to Dismiss Filed by 

Defendants-Appellees.

{¶ 14} Cook first contends that the trial court failed to apply the correct standard of 

review under Civ.R. 12(B)(1) or Civ.R.12(C). Specifically, Cook argues that the court 

made judgments on facts outside the pleadings, which is appropriate for summary 

judgment situations but not for motions to dismiss or motions for judgment on the 

pleadings. Cook further contends that because her intent was in question, this matter 

was not suitable for disposition by summary judgment. Following that discussion, Cook 

addresses the merits of dismissing the case. Before we consider these issues, we will 

outline the relevant standards.

 
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A. Applicable Standards

{¶ 15} As noted, Appellees’ motion to dismiss was based on Civ.R. 12(B)(1) and, 

alternatively, on Civ.R. 12(C). Civ.R. 12(B)(1) concerns dismissal based on “lack of 

jurisdiction over the subject matter,” and Civ.R. 12(C) pertains to motions for judgment on 

the pleadings. 

{¶ 16} “The standard of review for a dismissal pursuant to Civ.R. 12(B)(1) is 

whether any cause of action cognizable by the forum has been raised in the complaint.” 

State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989), citing Avco 

Fin. Servs. Loan, Inc. v. Hale, 36 Ohio App.3d 65, 67, 520 N.E.2d 1378 (10th Dist.1987). 

“In determining whether a plaintiff has alleged a cause of action sufficient to withstand a 

Civ.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction, a trial court is not 

confined to the allegations of the complaint, and it may consider evidentiary material 

pertinent to such inquiry without converting the motion to a motion for summary 

judgment.” Tibbs v. Kendrick, 93 Ohio App.3d 35, 39-40, 637 N.E.2d 397 (8th 

Dist.1994), citing Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 

211, 358 N.E.2d 526 (1976).

{¶ 17} Appellate review of dismissals under Civ.R. 12(B)(1) is de novo. State ex 

rel. Ohio Civ. Serv. Emps. Assn. v. State of Ohio, 146 Ohio St.3d 315, 2016-Ohio-478, 

56 N.E.3d 913, ¶ 12. This means we apply the same standards as the trial court. Carter 

v. Trotwood-Madison City Bd. of Edn., 181 Ohio App.3d 764, 2009-Ohio-1769, 910 

N.E.2d 1088, ¶ 26 (2d Dist.). 

{¶ 18} Unlike Civ.R. 12(B)(1), a decision on “a motion for judgment on the 
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pleadings is restricted solely to the allegations in the pleadings and any writings attached 

to the complaint.” Dearth v. Stanley, 2d Dist. Montgomery No. 22180, 2008-Ohio-487, 

¶ 24, citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973).

{¶ 19} “Under Civ.R. 12(C), dismissal is appropriate where a court (1) construes 

the material allegations in the complaint, with all reasonable inferences to be drawn 

therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the 

plaintiff could prove no set of facts in support of his claim that would entitle him to relief. 

* * * Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and 

that the movant is entitled to judgment as a matter of law.” State ex rel. Midwest Pride 

IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). 

{¶ 20} Appellate review of decisions made under Civ.R. 12(C) is also de novo. 

Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-

Ohio-5676, 983 N.E.2d 1267, ¶ 18. This is because the motion presents only questions 

of law. Id. 

{¶ 21} With these standards in mind, we return to consideration of Cook’s 

arguments. 

B. Trial Court Application of Standards

{¶ 22} Cook’s first argument is that the trial court erred in failing to apply the correct 

standards for dismissal under Civ.R. 12 and in considering matters outside the pleadings. 

The trial court’s decision was very brief and did not indicate whether it was relying on 

Civ.R. 12(B)(1) or (C). However, the trial court could not have relied solely on the 
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pleadings, because the fact of Cook’s bankruptcy case was not disclosed in the pleadings 

and was brought to the court’s attention well after the pleadings had closed.

{¶ 23} The Ohio Rules of Civil Procedure define “pleadings” as a complaint and an 

answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if 

the answer contains a cross-claim; a third-party complaint, if a person who was not an 

original party is summoned under the provisions of Civ.R. 14; and a third-party answer, if 

a third-party complaint is served.” Civ.R. 7(A). The pleadings, as relevant here, were 

Cook’s complaint and Appellees’ answer. Nothing in these documents indicates any 

deficiency in Cook’s ability to bring or maintain an action, and judgment therefore could 

not have been based on Civ.R. 12(C). 

{¶ 24} The crux of the argument against Cook is that she failed to disclose her 

pending lawsuit when she filed for bankruptcy. This would not have been discovered 

during the pleading stage because Cook had not yet filed the bankruptcy action when the 

complaint was filed. In fact, Cook did not file the bankruptcy action until two months later. 

Matters pertinent to the bankruptcy filing would obviously have been outside the pleadings

in the pending lawsuit.

{¶ 25} As indicated, Civ.R. 12(B)(1) allows consideration of matters outside the 

pleadings. We have not found authority in Ohio discussing judicial estoppel in the 

context of Civ.R. 12(B)(1), which applies to dismissals based on “lack of jurisdiction over 

the subject matter.” 

{¶ 26} Judicial estoppel is an equitable doctrine that courts use at their discretion 

“to prevent ‘improper use of judicial machinery.’ ” New Hampshire v. Maine, 532 U.S. 
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742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), quoting Konstantinidis v. Chen, 626 

F.2d 933, 938 (D.C.Cir.1980). In New Hampshire, the United States Supreme Court 

decided that judicial estoppel fit best a controversy between two states over a river 

boundary that these states had previously litigated. Id. at 749. While the procedural 

context of New Hampshire involved dismissal of an original complaint, the Supreme Court 

did not mention any particular dismissal vehicle such as lack of jurisdiction or failure to 

state a claim. Id. at 745. However, the court only considered documents filed in the 

prior action and did not consider other facts outside the record. Id. at 746-748 and 751-

754. That contrasts with the situation before us, where the evidence included pleadings 

in another case (the bankruptcy), as well as affidavits from both Cook and her attorney 

about events that occurred.

{¶ 27} In the context of bankruptcy situations, summary judgment is typically 

employed, due to reliance on facts that would be outside the record. E.g. White v. 

Wyndham Vacation Ownership, Inc., 617 F.3d 472, 475 (6th Cir.2010) (converting a 

Fed.Civ.R. 12(B)(6) motion into a motion for summary judgment). See also Saha v. 

Research Inst. at Nationwide Children's Hosp., 10th Dist. Franklin No. 12AP-590, 2013-

Ohio-4203, ¶ 8 and 16-17 (converting a motion to dismiss to a summary judgment 

motion). Thus, converting Appellees’ motion into one for summary judgment would 

probably have been the better course of action here.

{¶ 28} From the documents in the record, it appears that Cook first disclosed the 

bankruptcy filing in her answers to interrogatories, which were sent to Appellees on 

September 18, 2020. See Response in Opposition to Defendants’ Motion to Dismiss 
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(Dec. 29, 2020), Affidavit of Matthew Schultz attached as Ex. A, ¶ 4-5, and Ex.1A attached 

to Schultz’s Affidavit, p. 5 and 14. 

{¶ 29} Shortly after Cook’s deposition was taken on November 11, 2020, 

Appellees’ counsel “confirmed” the bankruptcy filing. Defendants’ Motion to Dismiss 

(December 2, 2021), p. 3 and Affidavit of Matthew Stokely, attached as Ex. F. 

Appellees then filed their motion to dismiss on December 2, 2020.

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{¶ 30} When the motion to dismiss was filed, the summary judgment deadline had 

expired. However, on December 17, 2020, the trial court vacated the trial date at the 

parties’ joint request and allowed Cook two additional weeks to reply to the motion. 

Agreed Decision, Order, and Entry Vacating the Trial Date (Dec. 17, 2020), p. 1. On 

December 29, 2020, Cook filed a response, which included her attorney’s affidavit and 

documents. She also filed her own affidavit on February 16, 2021, as part of her request 

to substitute the bankruptcy trustee as plaintiff. 

{¶ 31} In view of these facts, Cook was aware that the trial court would be 

considering matters outside the record in deciding Appellees’ motion. She did not object, 

and, in fact, it would have been impossible to decide the motion without reviewing 

evidence that was not in the pleadings. As a result, Cook waived any objection to the 

procedure and to the court’s review of matters outside the record. Courts have 

“ ‘consistently held that an appellate court need not consider an error which a party 

complaining of the trial court's judgment could have called, but did not call, to the trial 

1 Appellees did not explain the nearly three-month delay in filing the motion to dismiss.

After receiving the interrogatory answers, the information could have easily been 

“confirmed” by looking at the bankruptcy records.
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court's attention at a time when such error could have been avoided or corrected by the 

trial court.’ ” State v. Simmons, 2d Dist. Montgomery No. 23991, 2011-Ohio-5561, ¶ 31, 

quoting State v. Williams, 51 Ohio St.2d 112, 117, 364 N.E.2d 1364 (1977), vacated in 

part on other grounds, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978). 

C. Alleged Material Facts

{¶ 32} Cook’s second argument is that the trial court should not have decided the 

issue of her intent, as that was a factual issue for trial. In view of our finding that Cook 

waived objection to the court’s considering matters outside the pleadings, a summary 

judgment standard is appropriate here. 

{¶ 33} “Summary judgment is appropriate if (1) no genuine issue of any material 

fact remains, (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 

construing the evidence most strongly in favor of the nonmoving party, that conclusion is 

adverse to the party against whom the motion for summary judgment is made.” State ex 

rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 

832, ¶ 9, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 

(1977). The law is well-settled that in reviewing summary judgment decisions, we 

conduct de novo review, “which means that we apply the same standards as the trial 

court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-Ohio-2722, 873 

N.E.2d 345, ¶ 16 (2d Dist.). 

{¶ 34} The issue before the trial court was whether Cook was precluded from 
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proceeding with her action against Appellees because she failed to disclose that she had

filed for bankruptcy two months after she filed the complaint in the common pleas court. 

A considerable body of law exists indicating that judicial estoppel can apply in such 

situations. 

{¶ 35} Judicial estoppel is used where a litigant fails to disclose bankruptcy 

proceedings because “[a] debtor has an affirmative duty to disclose all of its assets to the 

bankruptcy court.” Browning v. Levy, 283 F.3d 761, 775 (6th Cir.2002), citing 11 U.S.C. 

521. These assets would include sums a party expects to recover or has recovered in 

litigation because they could be used to satisfy creditors’ claims. 

{¶ 36} “The doctrine of judicial estoppel forbids a party ‘from taking a position 

inconsistent with one successfully and unequivocally asserted by the same party in a prior 

proceeding.’ ” Teledyne Industries, Inc. v. N.L.R.B., 911 F.2d 1214, 1217 (6th Cir.1990), 

quoting Reynolds v. Commr. of Internal Revenue, 861 F.2d 469, 472-473 (6th Cir.1988). 

See also Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, 

¶ 5 and 24-31 (applying judicial estoppel where plaintiff discharged attorney fees in 

bankruptcy, but failed to list her pending retaliation claim, for which she ultimately 

received attorney fees, on the schedule of assets in the bankruptcy case).

{¶ 37} “Judicial estoppel is an equitable doctrine that preserves the integrity of the 

courts by preventing a party from abusing the judicial process through cynical 

gamesmanship, achieving success on one position, then arguing the opposite to suit an 

exigency of the moment.” Teledyne Industries at 1217-1218; see also Greer-Burger at 

¶ 25. This doctrine “ ‘applies only when a party shows that his opponent: (1) took a 
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contrary position; (2) under oath in a prior proceeding; and (3) the prior position was 

accepted by the court.’ ” Cavins v. S & B Health Care, Inc., 2015-Ohio-4119, 39 N.E.3d 

1287, ¶ 84 (2d Dist.), quoting Smith v. Dillard Dept. Stores, Inc., 139 Ohio App.3d 525, 

744 N.E.2d 1198 (8th Dist.2000). 

{¶ 38} Judicial estoppel could apply here because Cook filed for bankruptcy on 

June 4, 2020, about two months after she filed the current litigation, in which she claimed 

damages in excess of $25,000. See Complaint, p. 7; and Docket for Bankruptcy Case 

No. 3:20-bk-31450, attached to Substitution Motion, p. 1-2. The Chapter 13 bankruptcy 

petition that Cook filed specifically required disclosure of whether the petitioner had been

a party to any legal action within the year prior to filing for bankruptcy. Cook answered 

“no” both when she filed the petition and when she filed an amended petition on July 16, 

2020. See Motion to Dismiss (Dec. 2, 2020), Ex. A, p. 26, and Ex, D, p. 6. Cook also 

denied in the original petition that she had any legal claims against third parties, and she

did not correct that when she amended the petition. Ex. A at p. 15.

{¶ 39} The bankruptcy court accepted Cook’s position, as an October 24, 2020

order was filed confirming her Chapter 13 plan. See Ex. E attached to the Motion to 

Dismiss. 

{¶ 40} In the context of bankruptcy proceedings, the Sixth Circuit Court of Appeals 

has applied an exception (or third prong) to the analysis, which is that “ ‘judicial estoppel 

is inappropriate in cases of conduct amounting to nothing more than mistake or 

inadvertence.’ ” White, 617 F.3d at 476, quoting Browning, 283 F.3d at 776. In deciding 

whether a party’s “conduct resulted from mistake or inadvertence,” the Sixth Circuit 
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“considers whether: (1) she lacked knowledge of the factual basis of the undisclosed 

claims; (2) she had a motive for concealment; and (3) the evidence indicates an absence 

of bad faith.” Id. at 478.

{¶ 41} Cook argues that intent is a factual issue to be resolved at trial. However, 

this is not always true, because “intent is rarely provable by direct evidence, it may be 

inferred from the ‘totality of the circumstances.’ ” Davis v. Sun Refining & Marketing Co., 

109 Ohio App.3d 42, 56, 671 N.E.2d 1049 (2d Dist.1996), quoting Klapchar v. Dunbarton 

Properties, Ltd., 5th Dist. Stark No. CA-8521, 1991 WL 249432, *2 (Nov. 4, 1991).

{¶ 42} In contrast to Cook’s position, Appellees argue that “ ‘[a] motive to conceal 

claims from the bankruptcy court always exists as a matter of law, since “it is always in a 

Chapter 13 petitioner's interest to minimize income and assets.” ’ ” Appellees’ Brief, p. 

14-15, quoting Moore v. Hodge, 1st Dist. Hamilton No. C-180633, 2019-Ohio-4752, ¶ 14, 

which, in turn, quotes Saha, 10th Dist. Franklin No. 12AP-590, 2013-Ohio-4203, at ¶ 19.2 

{¶ 43} This legal presumption about motive applies, however, to whether a plaintiff 

“received potential financial benefits from concealing the claim, and thus had a motive to 

do so.” Stanley v. FCA US, LLC, N.D.Ohio No. 3:19-cv-640, 2021 WL 5760546, *6 (Dec. 

3, 2021). See also Davis v. Fiat Chrysler Autos. U.S., LLC, 747 Fed.Appx. 309, 316 (6th

Cir.2018). Once that presumption is established, “the burden shifts to Plaintiff to set forth 

2 Moore’s reference to Saha is incorrect, as Saha does not contain such a quote in 

paragraph 19 or at any other place in the opinion. See Saha, 10th Dist. Franklin No. 

12AP-590, 2013-Ohio-4203. The Tenth District Court of Appeals did make such a quote

in a later decision in Saha. See Saha v. Research Institute at Nationwide Children's 

Hosp., 10th Dist. Franklin No. 18AP-661, 2019-Ohio-1792, ¶ 19 (quoting from the trial 

court’s decision), and ¶ 33 (quoting from Lewis v. Weyerhaeuser Co., 141 Fed.Appx. 420, 

426 (6th Cir. 2005), and White, 617 F.3d at 479).
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evidence showing a lack of bad faith.” Stanley at *7, citing White, 617 F.3d at 479, and 

Finney v. Volvo Group N. Am., LLC, 562 B.R. 914, 918 (M.D.Tenn 2015). See also

Moore at ¶ 14. Thus, while Cook’s motive to conceal could have been inferred as a 

matter of law, she was still allowed to establish that she had not acted in bad faith. 

{¶ 44} “The Sixth Circuit has made clear that the bad faith analysis for applying 

judicial estoppel in the bankruptcy context generally focuses on three attributes: effort, 

effectiveness, and timing. To avoid estoppel, a party generally must show they made a 

good-faith, effective effort to inform the bankruptcy court about the potential claim.” 

Couch v. Certified Flooring Installation, Inc., 439 F.Supp.3d 964, 972 (S.D.Ohio 2020), 

citing Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 898-899 (6th Cir. 2004). 

“Likewise, a court is less inclined to find bad faith when the party attempted to inform the 

bankruptcy court about the potential action before a motion to dismiss forced the party's 

hand.” (Emphasis sic.) Id., citing Newman v. Univ. of Dayton, 751 Fed. Appx. 809, 814-

815 (6th Cir.2018).

{¶ 45} In the case before us, the trial court’s decision was quite short – just about

a page long. After noting Cook’s claim that her failure to disclose had been inadvertent, 

the court stated:

However, notwithstanding the offer of Plaintiff’s counsel to contact 

his client’s bankruptcy counsel, there was no affirmative action to correct 

the error or any evidence before the Court as to why or how the Plaintiff 

herself did not disclose this action to her bankruptcy lawyer, if in fact she 

did not. Ohio courts have held, as urged by Defendants, that a motive to 
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conceal claims from the bankruptcy court always exists, because it is 

always in the best interest of a petitioner to minimize income and assets. 

See, e.g. Moore v. Hodge, 2019-Ohio-4752.

(Emphasis added.) Order and Entry Sustaining Defendant’s Motion to Dismiss (Sept. 9, 

2021), p. 1. 

{¶ 46} However, contrary to the trial court’s statement, Cook’s affidavit indicates 

that she did, in fact, tell her bankruptcy attorney about the pending lawsuit. See

Substitution Motion, Cook Affidavit. 

{¶ 47} Specifically, Cook stated in the affidavit that she had decided in late spring 

2020 that she needed to investigate bankruptcy protection. As a result, she contacted 

attorney Tim Deerfield to discuss the bankruptcy. Cook further said that she told

Deerfield she had been terminated from her job and that a lawsuit was pending in 

Montgomery County Common Pleas Court. Cook Affidavit at ¶ 3-5. Cook’s affidavit

then said that she had decided to file bankruptcy and retained Deerfield; that he and his 

staff had prepared the bankruptcy papers; and that they had not given her an opportunity 

to review the papers before they were filed. Id. at ¶ 6-7. In addition, Cook stated that 

she had had no intention of hiding the fact of the pending lawsuit and that she did not 

have any idea that her claim against Appellees had been omitted from the bankruptcy 

filing until she learned of the motion to dismiss. Id. at ¶ 8-9. 

{¶ 48} While Cook did not refer to specific dates in her affidavit, the structure of the 

outlined facts indicates that Cook did inform her bankruptcy attorney at the outset about 

the pending lawsuit. Furthermore, although Cook should have reviewed the documents 
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before signing, she says she was not given the opportunity. The signatures on the 

original petition filed on June 4, 2020, and on the amended documents filed on July 16, 

2020 were electronic; they were not signed by hand, with Cook’s signature. Motion to 

Dismiss, Ex. A at p. 6, 33, and 40; Ex. C, p. 13; and Ex. D at p. 9. Therefore, as the 

record stands, there is nothing contradicting Cook’s claim, and part of the basis for the 

trial court’s decision was simply incorrect. 

{¶ 49} Accordingly, the trial court’s decision must be reversed. This is not to say 

that Cook will ultimately prevail against a judicial estoppel claim. We express no opinion 

on that point. 

D. Standing

{¶ 50} In their brief, Appellees have offered an alternate basis for affirming the trial 

court’s decision. We will address this point, because “[a]n appellate court may affirm 

based on different reasoning than found by a trial court, but an appellate court cannot 

disturb a judgment or order that is legally correct based on different reasoning.” John A. 

Becker Co. v. Jedson Eng., Inc., 2018-Ohio-3924, 121 N.E.3d 788, ¶ 19 (2d Dist.), citing 

State ex rel. Sommers v. Perkins Local Schools Bd. of Edn., 2017-Ohio-7991, 98 N.E.3d 

1117, ¶ 26 (6th Dist.). “The fundamental questions in an appeal are, one, whether the 

appealed decision itself is erroneous and, two, whether that error is prejudicial. A 

decision that achieves the right result must be affirmed, even if the wrong reasoning is 

used to justify the decision, because an error in reasoning is not prejudicial.” Id. 

{¶ 51} According to Appellees, Cook lacked standing to pursue her employment 
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claims in the trial court because all property, including civil claims, is the property of the 

bankruptcy estate. Consequently, only the bankruptcy trustee had standing to pursue 

such claims, unless the trustee abandoned them. In their brief, Appellees equate a lack 

of standing with subject matter jurisdiction and also suggest that we should dismiss the 

appeal on this basis. Appellees’ Brief at p. 17. 

{¶ 52} Under established law, we have the ability to consider our jurisdiction and 

may even raise it on our own motion. E.g., In re Guardianship of Igah, 2d Dist. 

Montgomery No. 26416, 2015-Ohio-4511, ¶ 14, citing State ex rel. White v. Cuyahoga 

Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997). As an example, 

“failure to comply with time requirements of App.R. 4(A) is a jurisdictional defect, which is 

fatal to an appeal.” CitiBank v. Abu-Niaaj, 2d Dist. Greene No. 2011-CA-45, 2012-Ohio2099, ¶ 7, citing In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, ¶ 17. 

(Other citations omitted.) Likewise, lack of a final appealable order requires that we 

dismiss an appeal for lack of jurisdiction. Igah at ¶ 18. 

{¶ 53} “ ‘Subject-matter jurisdiction of a court connotes the power to hear and 

decide a case upon its merits’ and ‘defines the competency of a court to render a valid 

judgment in a particular action.’ ” Cheap Escape Co. v. Haddox, LLC, 120 Ohio St.3d 

493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 

86, 87, 290 N.E.2d 841 (1972). The subject matter jurisdiction of courts of appeals is 

granted by Ohio Constitution, Article IV, Section 3(B)(1)(f), which gives them original 

jurisdiction over certain matters like mandamus actions, and in “any cause on review as 

may be necessary to its complete determination.”
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{¶ 54} In addition, courts of appeals have “such jurisdiction as may be provided by 

law to review and affirm, modify, or reverse judgments or final orders of the courts of 

record inferior to the court of appeals within the district” (other than direct appeals of 

judgments imposing death), and “such appellate jurisdiction as may be provided by law 

to review and affirm, modify, or reverse final orders or actions of administrative officers or 

agencies.” Id. at (B)(2).

{¶ 55} However, jurisdiction is also restricted by R.C. 2505.03(A), which only 

allows appellate courts to consider “final orders” in cases over which the court has 

jurisdiction. Flynn v. Fairview Village Retirement Community, Ltd., 132 Ohio St.3d 199, 

2012-Ohio-2582, 970 N.E.2d 927, ¶ 5. This is why we must dismiss cases for lack of 

final appealable orders. 

{¶ 56} In the case before us, a final appealable order existed because the trial 

court dismissed Cook’s action. We also clearly have jurisdiction under Section 3, Article 

IV of the Ohio Constitution to review the trial court’s final order. Moreover, we have not 

found the trial court’s judicial estoppel dismissal to be proper. And finally, the trial court 

has not yet considered whether the bankruptcy trustee should be allowed to be 

substituted as the “real party in interest.” 

{¶ 57} There is also a difference between subject matter jurisdiction and standing 

to pursue an action, although courts often confuse the matter by equating the terms

“jurisdiction” and “standing” without considering the difference between “subject matter 

jurisdiction” and the more general notion of jurisdiction. 

{¶ 58} “The general term ‘jurisdiction’ can be used to connote several distinct 
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concepts, including jurisdiction over the subject matter, jurisdiction over the person, and 

jurisdiction over a particular case.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 

2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-

Ohio-1980, 806 N.E.2d 992, ¶ 11-12. As noted in Kuchta:

Subject-matter jurisdiction is the power of a court to entertain and 

adjudicate a particular class of cases. * * * A court's subject-matter 

jurisdiction is determined without regard to the rights of the individual parties 

involved in a particular case. * * * A court's jurisdiction over a particular case 

refers to the court's authority to proceed or rule on a case that is within the 

court's subject-matter jurisdiction. * * * This latter jurisdictional category 

involves consideration of the rights of the parties. If a court possesses 

subject-matter jurisdiction, any error in the invocation or exercise of 

jurisdiction over a particular case causes a judgment to be voidable rather 

than void.

(Citations omitted.) Kuchta at ¶ 19.

{¶ 59} While standing is a “jurisdictional” requirement, a lack of standing does not 

invalidate a court’s subject matter jurisdiction. Id. at ¶ 20. See also Lundeen v. Turner, 

164 Ohio St.3d 159, 2021-Ohio-1533, 172 N.E.3d 150, ¶ 25 (“a plaintiff's alleged lack of 

standing to sue on a note and maintain a foreclosure action does not affect the subjectmatter jurisdiction of a common pleas court to entertain a foreclosure action”). Instead, 

“[a] determination of standing necessarily looks to the rights of the individual parties to 

bring the action, as they must assert a personal stake in the outcome of the action in 
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order to establish standing.” Id. at ¶ 23, citing Ohio Pyro, Inc. v. Ohio Dept. of 

Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. “Lack of 

standing is certainly a fundamental flaw that would require a court to dismiss the action, 

* * * and any judgment on the merits would be subject to reversal on appeal. But a 

particular party's standing, or lack thereof, does not affect the subject-matter jurisdiction 

of the court in which the party is attempting to obtain relief.” (Citations omitted.) Id.

{¶ 60} In the context of judicial estoppel and bankruptcy proceedings, federal 

courts have also distinguished between Article III jurisdiction and standing. See

Martineau v. Wier, 934 F.3d 385, 391 (4th Cir. 2019) (holding that bankruptcy debtor was 

the real party in interest to pursue tort claims against defendants). 

{¶ 61} Federal courts also have distinguished between the interests of Chapter 7 

debtors and those filing under Chapter 13 (as is the case here). See Wilson v. Dollar 

Gen. Corp., 717 F.3d 337, 343 (4th Cir. 2013) (joining five other Circuit Courts of Appeal

that had considered the question, and concluding that “Chapter 13 debtors have standing 

to bring causes of action in their own name on behalf of the estate”).3 

3 The Sixth Circuit Court of Appeals is not one of these circuits. Recently, the Sixth 

Circuit decided a case on other grounds and stated that it, therefore, “need not resolve 

this question today” as to whether a Chapter 13 debtor in general “ ‘is the real party in 

interest’ or whether he is ‘an interloper, trying to prosecute a claim that belongs to his 

estate in bankruptcy.’ ” Kolesar v. Allstate Ins. Co., 814 Fed.Appx. 988, 990 (6th Cir. 

2020), quoting Biesek v. Soo Line R. Co., 440 F.3d 410, 413 (7th Cir. 2006). See also 

Perry v. Allstate Indemnity Co., N.D.Ohio No. 1:16-cv-01522, 2021 WL 3560195, *3 (Aug. 

12, 2021) (stating, after discussing Kolesar, that “the overwhelming authority militates in 

favor of finding that a debtor in a Chapter 13 bankruptcy [proceeding] is the real party in 

interest to prosecute an action”); In re Connor, M.D.Tenn. No. 3:21-bk-00276, 2022 WL 

108356, *4 (Jan. 4, 2022) (noting that six Circuit Courts of Appeals had ruled in favor of 

the “concurrent jurisdiction” of the trustee and a Chapter 13 debtor. The court also 

projected that the Sixth Circuit would rule in favor of this idea as well.) The circuit courts

in question are the Second, Third, Fourth, Seventh, Tenth, and Eleventh Circuit Courts of 
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{¶ 62} Wilson provided the following explanation of the differences between 

Chapter 7 and Chapter 13 cases:

Chapter 7 and Chapter 13 provide two distinct methods for an 

individual to cure his indebtedness. Chapter 7 adopts the “much more 

radical solution,” Cable [v. Ivy Tech State College, 200 F.3d [467] at 472

[7th Cir. 1999], of requiring the debtor to relinquish possession of the estate 

to the trustee for liquidation and distribution to creditors. See 11 U.S.C. 

§ 704. To effectuate this purpose, the trustee’s management of the estate

– including causes of action that are part of the estate – must necessarily 

be free from interference by the debtor. Cable, 200 F.3d at 472. Thus, 

under Rule 17’s real-party-in-interest requirement, it is the Chapter 7 

trustee, but not the Chapter 7 debtor, who may possess standing on behalf 

of the estate to bring a pre-petition claim. * * * 4

Chapter 13, however, provides a different framework. Under Chapter 

13, the debtor remains in possession of the property of the estate and cures 

his indebtedness, under the supervision of the trustee, by way of regular 

payments to creditors from his earnings through a court approved payment 

plan. See 11 U.S.C. §§ 1306(b), 1322; Olick [v. Parker & Parsley 

Appeals. Id. 

4 Cable was overruled on other grounds in Hill v. Tangherlini, 724 F.3d 965, 967, fn. 1 

(7th Cir. 2013), which overruled various prior decisions “to the extent that they suggest a 

plaintiff may not rely on ‘self-serving’ evidence to create a material factual dispute.”
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Petroleum Co.], 145 F.3d [513] at 516 [(2d Cir.1998)].

(Footnote added; citations omitted.) Wilson at 343-344. 

{¶ 63} In this context, Wilson went on to note that: 

Chapter 13 also modifies other powers generally given to the debtor 

and trustee. For example, not only does the Chapter 13 debtor retain 

possession of the property of the estate, the Chapter 13 debtor also 

assumes “exclusive of the trustee, the rights and powers of a trustee[,]” 11 

U.S.C. § 1303, found in many of the provisions of § 363 regarding the 

general administration of bankruptcy estates. In other words, in addition to 

his power to possess property, the Chapter 13 debtor is explicitly given the 

authority, exclusive of the trustee, to use, sell, or lease property of the estate 

in certain circumstances. As the Seventh Circuit recognized, “[i]t would 

frustrate the essential purpose of § 1306 to grant the debtor possession of 

the chose in action yet prohibit him from pursuing it for the benefit [of] the 

estate.” Cable, 200 F.3d at 473.

Implicit in that act of possession, as authorized by statute, is the right 

of the Chapter 13 debtor – unlike the Chapter 7 debtor – to sue in his own 

name in such actions pursuant to Rule 17(a) of the Federal Rules of Civil 

Procedure. See Fed.R.Civ.P. 17(a)(1)(G) (permitting “a party authorized 

by statute” to sue in his or her own name without joining the person for 

whose benefit the action is brought). Accordingly, because the Chapter 13 

debtor is explicitly given the power to possess and use the property, and 
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implicit within that use is the permissible maintenance of a cause of action 

that is part of the estate, the Chapter 13 debtor has standing to maintain a 

prepetition claim.

Federal Rule of Bankruptcy Procedure 6009 envisions the same 

result. Under Rule 6009 “the trustee or debtor in possession may 

prosecute or may enter an appearance and defend any pending action or 

proceeding by or against the debtor....” Fed. R. Bankr.P. 6009; see Smith

[v. Rockett], 522 F.3d [1080], at 1082 & n. 2 [(10th Cir.2008)] (recognizing 

that although “debtor in possession” is a term of art in the Chapter 11 

context, a Chapter 13 debtor possesses the Chapter 13 estate and has thus 

been considered analogous to a Chapter 11 debtor due to their enhanced 

representative and operational capacities); Cable, 200 F.3d at 472 (same). 

In this sense, the Chapter 13 debtor “steps into the role of trustee and 

exercises concurrent authority to sue and be sued on behalf of the estate.” 

Cable, 200 F.3d at 473 (citing Fed. R. Bankr.P. 6009).

Wilson, 717 F3d. at 344. See also Olick, 145 F.3d at 516 (noting that “[i]t is also the case 

that in Chapter 13 proceedings (unlike Chapter 7 proceedings) the creditors’ recovery is 

drawn from the debtor's earnings, not from the assets of the bankruptcy estate; it is only 

the Chapter 13 debtor who stands to gain or lose from efforts to pursue a cause of action 

that is an asset of the bankruptcy estate. Accordingly, the trustee's participation in such 

an action is generally not needed to protect the Chapter 13 creditors’ rights.”) 

{¶ 64} Like Fed.R.Civ.P. 17(a)(1)(G), Ohio’s Civ.R. 17(A), which deals with real 
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parties in interest, provides that “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.” 

{¶ 65} For purposes of standing, “[a] real party in interest is directly benefited or 

injured by the outcome of the case rather than merely having an interest in the action 

itself.” State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 226, 685 N.E.2d 754 (1997). 

“To succeed in establishing standing, plaintiffs must show that they suffered (1) an injury 

that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and (3) likely to 

be redressed by the requested relief.” Moore v. Middletown, 133 Ohio St.3d 55, 2012-

Ohio-3897, 975 N.E.2d 977, ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

{¶ 66} When Cook filed suit on April 3, 2020, she clearly had standing to sue 

Appellees. Cook’s complaint alleged that Appellees had caused her injury and damages 

by unlawfully terminating her employment, by failing to pay wages, by failing to pay 

minimum wages, and by illegally accessing her electronically-stored information. At that 

time, Cook had not yet filed for bankruptcy, and standing existed. 

{¶ 67} Whether the bankruptcy trustee subsequently became a real party in 

interest, depriving Cook of standing, or whether Cook had a concurrent interest for 

purposes of standing is for the trial court to decide. Accordingly, we cannot dismiss 

Cook’s appeal based on lack of standing, nor can we affirm the trial court’s dismissal on 

the alternate ground that Appellees have advanced. 

{¶ 68} Based on the preceding discussion, Cook’s sole assignment of error is 
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sustained. 

III. Conclusion

{¶ 69} Cook’s assignment of error having been sustained, the judgment of the trial 

court is reversed, and this cause is remanded for further proceedings consistent with this 

opinion. 

. . . . . . . . . . . . .

DONOVAN, J. and EPLEY, J., concur. 

Copies sent to: 

Jason P. Matthews

Matthew C. Schultz

Matthew D. Stokely

Kristina Elizabeth Curry

Hon. Timothy N. O’Connell, Administrative Judge