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McGlone v. Blaha



Carletta and Thomas McGlone appeal the summary judgment entered by the Ross County Court of Common Pleas in favor of Charity Blaha and the dismissal of their complaint. They assign the following error:

The court errored in granting defendant's motion for summary judgment and motion to dismiss for failure to prosecute on the grounds that plaintiffs are not the real party in interest and lacked standing to bring suit.

For the reasons discussed below, we affirm the judgment of the trial court.

In June 1995, Mrs. McGlone and Ms. Blaha were involved in an automobile accident. The McGlones allege that Ms. Blaha was negligent and proximately caused Mrs. McGlone's injuries. After the accident, but prior to filing their complaint against Ms. Blaha, the McGlones filed for and received Chapter 7 bankruptcy protection.

The McGlones' bankruptcy petition included a list of assets and liabilities, and a statement of their current earnings. The McGlones failed to list their claim against Ms. Blaha as an asset but indicated on their schedule of current income (schedule I) that Mrs. McGlone was " nemployed due to injury in auto accident."

Myron Terlecky was appointed the trustee of the McGlones' estate by the bankruptcy court. In his deposition testimony, Mr. Terlecky stated that he asked the McGlones about the automobile accident at the meeting of the creditors. According to Mr. Terlecky, Mrs. McGlone told him that there was no offer forthcoming from the insurance company (presumably Ms. Blaha's), that she had insurance coverage, and that most of her medical bills were subject to being paid. Based on this information, Mr. Terlecky determined that the claim was not worth pursuing on behalf of the creditors. Specifically, Mr. Terlecky reasoned that after paying the attorney's fees and awarding the McGlones their share of the recovery allowed under the bankruptcy statute, there would be no money available to distribute to the creditors. Mr. Terlecky conceded that the claim was not listed in the schedule B list of assets where it should have been, but he did not request an amended schedule from the McGlones because he had already determined not to pursue the claim.

On cross-examination, Mr. Terlecky testified that debtors are required to schedule their assets so that they are disclosed to the bankruptcy court. Further, if a creditor wanted to determine the available assets, he would look at schedule B. Mr. Terlecky indicated that he believes the personal injury claim was scheduled, though not properly, because of the statement made on schedule I.

Mr. Terlecky testified that he does not know whether he knew the circumstances of the accident, the amount of insurance coverage available to Ms. Blaha, or how much uninsured or underinsured coverage the McGlones had, at the time of the meeting. He stated that he met with the McGlones for less than five to ten minutes and that he never gave notice to the creditors that he did not intend to pursue the personal injury claim.

Ms. Blaha filed a motion to dismiss the complaint under Civ.R. 17(A) which requires that a lawsuit be filed by the real party in interest. Ms. Blaha asserted that the claim against her was part of the bankruptcy estate and only the trustee could pursue the claim. The trial court granted the McGlones leave to join the trustee and denied the motion to dismiss. When the McGlones failed to join the trustee by the court-imposed deadline, Ms. Blaha moved for summary judgment or, in the alternative, a dismissal for failure to prosecute under Civ.R. 41(B)(1). The McGlones opposed this motion on the ground that the personal injury

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