[Cite as Kearney v. Campbell,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

PATRICK C. KEARNEY C.A. No. 27495

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE BENJAMIN R. CAMPBELL, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV-2012-05-2453

DECISION AND JOURNAL ENTRY

Dated: March 30, 2016

MOORE, Judge.

{¶1} Plaintiff-Appellant Patrick C. Kearney appeals the decision of the Summit County

Court of Common Pleas granting summary judgment to Defendants-Appellees Benjamin

Campbell, Carol and James Bray, dba Bray’s Drain and Plumbing, and State Auto Insurance

Company (collectively “Appellees”) on Mr. Kearney’s complaint based upon Mr. Kearney’s lack

of standing. We affirm.

I.

{¶2} On May 14, 2010, in Barberton, Ohio, Mr. Kearney’s vehicle was involved in a

collision with a vehicle driven by Mr. Campbell, who at the time was working for Bray’s Drain

and Plumbing and driving one of the company’s cars. Mr. Kearney was injured in the accident.

{¶3} On May 23, 2011, Mr. Kearney filed a voluntary petition under Chapter 7 for

bankruptcy. Mr. Kearney did not list any claims against the Appellees as assets on the petition.

Specifically, next to the line that required the debtor to list “[o]ther contingent and unliquidated 2

claims of every nature,” Mr. Kearney indicated that he had none. On September 2, 2011, the

bankruptcy court entered an order finding that the bankruptcy estate had been fully administered,

the trustee was thereby discharged, and the Chapter 7 case was closed.

{¶4} On April 30, 2012, Mr. Kearney filed a complaint against Mr. Campbell, Mr. and

Ms. Bray, dba as Bray’s Drain and Plumbing, State Farm Mutual Automobile Insurance

Company, and John Doe #1. Mr. Kearney alleged that Mr. Campbell negligently operated the

vehicle and that his negligence caused Mr. Kearney’s injuries. He also alleged that Mr. and Ms.

Bray, dba as Bray’s Drain and Plumbing, negligently entrusted the care of the vehicle to Mr.

Campbell. Finally, Mr. Kearney sought uninsured/underinsured motorist coverage from his

policy with State Farm Mutual Automobile Insurance Company. Mr. Kearney later dismissed

his claim against State Farm Mutual Automobile Insurance Company and filed an amended

complaint naming State Auto Insurance Company as a Defendant. State Auto Insurance

Company, Mr. and Ms. Bray, and Mr. Campbell answered the amended complaint and asserted,

inter alia, as an affirmative defense, that Mr. Kearney was not the real party in interest.

{¶5} Ultimately, the Appellees sought and were granted leave to file a motion for

summary judgment. In his initial motion, Mr. Campbell asserted that Mr. Kearney’s claims were

barred by the doctrine of judicial estoppel because he failed to disclose his personal injury claim

on his bankruptcy petition and thus could not argue a contrary position in the present litigation.

Attached to Mr. Campbell’s motion was a portion of Mr. Kearney’s petition for bankruptcy and

the final decree. State Auto Insurance Company and Mr. and Ms. Bray filed motions seeking to

join in Mr. Campbell’s motion.

{¶6} Subsequently, State Auto Insurance Company filed a supplemental motion for

summary judgment asserting that Mr. Kearney was not the real party in interest and lacked 3

standing to file the suit; State Auto Insurance Company maintained that the claims belonged to

the bankruptcy estate. Following a pretrial, the trial court ordered Mr. Kearney to respond to the

summary judgment motions and to address whether, if the bankruptcy case is reopened, the

trustee would be outside the statute of limitations if it pursued Mr. Kearney’s personal injury

claims, whether Mr. Kearney could claim an interest in an exempted amount (if one existed), and

whether Civ.R. 17(A) would permit Mr. Kearney to cure the standing defect. The Appellees

were ordered to respond after Mr. Kearney filed his motion in opposition.

{¶7} Thereafter, Mr. Kearney filed a motion seeking an extension of time to respond to

the motions for summary judgment and an order holding in abeyance a ruling on the motion until

the bankruptcy trustee could have an opportunity to re-open the bankruptcy estate and make an

appearance in the action. Mr. Kearney submitted a memorandum in opposition and the

Appellees filed reply briefs maintaining that Mr. Kearney lacked standing and that his claims

were barred by judicial estoppel.

{¶8} The trial court granted summary judgment to the Appellees on the basis that Mr.

Kearney lacked standing to bring the action. Based upon that conclusion, the trial court declined

to address the issue of judicial estoppel.

{¶9} Mr. Kearney has appealed, raising two assignments of error for our review. They

will be addressed out of sequence to facilitate our review.

II.

ASSIGNMENT OF ERROR II

ALTERNATIVELY, THE TRIAL COURT ERRED IN GRANTING APPELLEES SUMMARY JUDGMENT WHERE A GENUINE ISSUE OF MATERIAL FACT REMAINED AS TO WHETHER [MR.] KEARNEY RETAINED AN[] INTEREST IN THE LITIGATION AND/OR HAD STANDING TO BRING THE CASE IN HIS OWN NAME. 4

{¶10} Mr. Kearney asserts in his second assignment of error that the trial court erred in

granting summary judgment to Appellees on Mr. Kearney’s complaint because a genuine issue

of material fact remained with respect to whether Mr. Kearney retained an interest in the matter

or had standing to sue. Based on Mr. Kearney’s arguments, we do not agree.

{¶11} In reviewing a trial court’s ruling on a motion for summary judgment, this Court

applies the same standard as the trial court, viewing the facts of the case in the light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving party.

Viock v. Stowe-Woodward Co.,

(6th Dist. 1983). Pursuant to Civ.R. 56(C),

summary judgment is proper if:

(1) No 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.

Temple v. Wean United, Inc.,

(1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record

that show the absence of a genuine issue of material fact. Dresher v. Burt,

(1996). Once this burden is satisfied, the non-moving party bears the burden of offering

specific facts to show a genuine issue for trial.

; Civ.R. 56(E).

{¶12} “[S]tanding is required to invoke the jurisdiction of the common pleas court, and

therefore it is determined as of the filing of the complaint.” Fed. Home Loan Mtge. Corp. v.

Schwartzwald,

,

. In order to establish standing, a party

“must assert a personal stake in the outcome of the action * * *.” (Emphasis omitted.) Reynolds

v. HCR ManorCare, Inc., 9th Dist. Summit No. 27411,

, ¶ 13, quoting Bank of

Am., N.A. v. Kuchta,

,

, ¶ 23. 5

{¶13} The accident that is the subject of the personal injury claims occurred on May 14,

2010. Appellees submitted evidence demonstrating that Mr. Kearney filed a voluntary petition

for bankruptcy under Chapter 7 on May 23, 2011 and failed to list the personal injury claims in

his petition. This Court has stated that, “the commencement of a voluntary, involuntary, or joint

bankruptcy creates an estate whereby the debtor is divested of virtually all property interests held

as of the commencement of the case.” Hargreaves v. Carter, 9th Dist. Summit No. 17450,

, *1 (Mar. 27, 1996). “The United States Court of Appeals for the Sixth Circuit has

held that upon commencement of the bankruptcy case, all causes of action, even if unassignable,

become ‘property’ of the bankruptcy estate pursuant to 11 U.S.C. 541(a)(1).”

citing In re

Cottrell,

(6th Cir. 1989). “Where a cause of action is property of the bankruptcy

estate, the debtor is divested of it” and does not have standing to assert the claim unless the

trustee abandons the claim. Kovacs v. Thomson, Hewitt & O’Brien,

(9th Dist. 1997); see also Murray v. Miller, 5th Dist. Richland No. 15CA02,

; Tyler v. DH Capital Mgt., Inc.,

(6th Cir. 2013). There has been no

argument that the trustee abandoned the claims; instead, the evidence supports the conclusion

that the claims were not abandoned, given that they were not even scheduled on the bankruptcy

petition. See

(listing what is required to demonstrate that a claim has been

abandoned).

{¶14} Mr. Kearney seems to suggest that he maintained an interest in the personal injury

claims because he was entitled to a bankruptcy exemption and/or to any proceeds obtained in

excess of that needed to satisfy his creditors. Mr. Kearney’s argument is undeveloped on this

point. See App.R. 16(A)(7). While he cites to case law that could potentially support his

argument, he failed to submit any evidence in the trial court to support his argument that at the 6

time of the commencement of the personal injury action he received an exemption or was

entitled to any excess proceeds; in fact, his contention that there would be any excess proceeds is

purely speculative.

{¶15} “The [Bankruptcy] Code affords debtors the right to exempt certain property from

the bankruptcy estate.” In re Robinson,

(Bankr.S.D.Ohio 2003). “Ohio has

chosen to ‘opt out’ of the federal exemption scheme; thus, Ohio residents who file for

bankruptcy relief are limited to the exemptions provided under Ohio law.”

, citing R.C.

2329.662.

A debtor may claim an exemption by filing a list of exempt property (on “Schedule C-Property Claimed as Exempt”) at the time the petition is filed. * * * Federal Rules of Bankruptcy Procedure 1007 and 4003 establish procedures governing the filing of the list of exempt assets on Schedule C, the assertion of objections to a debtor’s claimed exemptions, and the resolution of disputed exemption claims. An objection to a claimed exemption must be filed within 30 days after the conclusion of the meeting of creditors held under [section] 341 or within 30 days after any amendment to the schedule of property claimed as exempt. Fed. R. Bankr.P. 4003(b). A party objecting to an exemption has the burden of proving that the exemption is not properly claimed. Fed. R. Bankr.P. 4003(c).

In re

.

{¶16} “Property remaining in the estate after completion of the exemption process is

subject to administration by the Chapter 7 trustee for the benefit of creditors.”

“The essential

first step in the process of determining what property may be withdrawn from the estate by

exemption is the debtor’s filing of a complete and accurate listing of all assets.”

“In

completing the required schedules, debtors have [the] absolute duty to report whatever interests

they hold in property, even if they believe their assets are worthless or unavailable to the

bankruptcy estate. This is because the bankruptcy court, not the debtor, decides what property is

exempt from the bankruptcy estate.” (Internal quotations and citations omitted.)

7

{¶17} As noted by the Appellees, Mr. Kearney did not list his personal injury claims as

assets on his petition, and he has pointed to nothing in the record indicating that the bankruptcy

court granted him an exemption as of the filing of his personal injury complaint. See

Schwartzwald,

,

(Standing “is determined as of the

filing of the complaint.”). Thus, assuming without deciding that Mr. Kearney would have

standing if the claims were exempt, Mr. Kearney has not met his reciprocal burden, as he has not

demonstrated that the bankruptcy court has ever found the claims to be exempt. Given all of the

foregoing, we conclude that, from the evidence submitted, reasonable minds could only come to

the conclusion that the personal injury claims were the property of the bankruptcy estate.

Accordingly, he did not have standing to pursue them. See Kovacs,

;

Murray,

; Tyler,

. Thus, Mr. Kearney was not the proper

party to bring the causes of action given that they were a part of the bankruptcy estate.

, citing Shefkiu v. Worthington Industries, 6th Dist. Fulton No. F-13-014, 2014-Ohio-

2970, ¶ 19.

{¶18} Further, because Mr. Kearney lacked standing to file the instant action, he could

not utilize Civ.R. 17(A) to substitute the real party in interest. See

(“Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend the jurisdiction of the courts

of this state, and a common pleas court cannot substitute a real party in interest for another party

if no party with standing has invoked its jurisdiction in the first instance.”). Because Mr.

Kearney had no standing to bring the action, he had no standing to seek to substitute the real

party in interest. See id. at ¶ 36. 8

{¶19} Accordingly, the trial court did not err in concluding that Mr. Kearney lacked

standing to pursue the instant matter.1 Mr. Kearney’s second assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN DENYING [MR.] KEARNEY’S REQUEST TO STAY PROCEEDINGS TO ALLOW THE TRUSTEE REASONABLE TIME TO SUBSTITUTE [MR.] KEARNEY’S BANKRUPTCY ESTATE AS THE REAL PARTY IN INTEREST BASED ON ITS MISTAKEN BELIEF THAT THE SUBSTITUTION WOULD NOT RELATE BACK TO [MR.] KEARNEY’S ORIGINAL FILING AND [] FALL OUTSIDE THE STATUTE OF LIMITATIONS.

{¶20} Mr. Kearney asserts in his first assignment of error that the trial court erred in

failing to stay the proceedings to allow the trustee time to reopen the bankruptcy case and

thereafter substitute the real party in interest. We do not agree.

{¶21} Granting Mr. Kearney a stay would have been a futile act because “a common

pleas court cannot substitute a real party in interest for another party if no party with standing has

invoked its jurisdiction in the first instance.” Schwartzwald,

, 2012-Ohio-

5017, at ¶ 38. As we noted above, Mr. Kearney lacked standing to file the instant action and

therefore the real party in interest could not be substituted. Further, because the substitution

could not occur, it is immaterial whether the substitution would relate back to the time of the

filing of the complaint.

{¶22} Mr. Kearney’s first assignment of error is overruled.

1 We note that the trial court should have dismissed the action without prejudice. See

. However, given that the parties seem to agree that the statute of limitations has run and the action could not be re-filed, and given that Mr. Kearney has not asserted error on this issue, we leave intact the trial court’s ruling. 9

III.

{¶23} The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

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 Appellant.

CARLA MOORE FOR THE COURT

SCHAFER, J. CONCURS.

CARR, P. J. CONCURRING IN JUDGMENT ONLY.

{¶24} I reluctantly concur in judgment only based on this Court’s precedent in

Hargreaves v. Carter, 9th Dist. Summit No. 17450,

(Mar. 27, 1996). 10

APPEARANCES:

CHRISTOPHER J. VANBLARGAN, MARK C. LINDSEY, and JOHN REAGAN, Attorneys at Law, for Appellant.

JOHN LYSENKO, Attorney at Law for Appellee.

CHRISTOPHER J. ANKUDA, Attorney at Law, for Appellee.

ANN MARIE O’BRIEN, Attorney at Law, for Appellee.

MICHAEL E. CICCOLINI, Attorney at Law, for Appellee.

VICTORIA D. BARTO, Attorney at Law, for Appellee.