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Wood v. McClelland

Court of Appeals of Ohio, Eighth District

September 6, 2013

JOHN WOOD, ESQ. RELATOR
v.
HONORABLE JUDGE ROBERT McCLELLAND, ET AL. RESPONDENTS

Writ of Prohibition Motion Nos. 466181 and 466747 Order No. 467677

FOR RELATOR John Wood, pro se.

ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor BY: Nora E. Graham David Lambert Assistant County Prosecutors Justice Center.

JOURNAL ENTRY AND OPINION

EILEEN T GALLAGHER, JUDGE

(¶ 1} Relator, John Wood, Esq. ("Wood" or "Relator"), has petitioned this court for a writ of prohibition preventing respondents, Judge McClelland and Magistrate Kevin Augustyn ("Respondents"), from exercising jurisdiction over Count 1 of the second amended complaint for foreclosure that was filed in Fannie Mae v. Hicks, Cuyahoga C.P. No. CV-746293 (hereinafter the "underlying action"). Wood is not a party, but there is no dispute that he represents defendant Hicks in the underlying action. The court has before it Respondents' motion for summary judgment, Relator's response to Respondents' motion for summary judgment, Relator's motion for summary judgment, Respondents' response to Relator's motion for summary judgment, a reply in support of Respondents' motion for summary judgment, and Relator's reply to Respondents' response to Relator's motion for summary judgment.

(¶ 2} Having considered the entire record, the arguments of the parties, and the applicable law, Respondents' motion for summary judgment is granted and Relator's motion for summary judgment is denied for the reasons that follow.

(¶3} Wood's petition avers that in the underlying action, plaintiff Fannie Mae is without standing to pursue Count 1 of the second amended complaint, and therefore, the trial court patently and unambiguously lacks jurisdiction to exercise jurisdiction over this count.

(¶4} The gravamen of this action centers around Fannie Mae's cause of action to enforce a note and mortgage in the underlying action. Fannie Mae averred it is a person entitled to enforce the note pursuant to R.C. 1303.01 and 1303.38. Wood contends that the note is invalid because it was lost while in the possession of a third party, not Fannie Mae. Hicks filed a motion to dismiss the second amended complaint on this basis, which the trial court denied. Wood then commenced this action.

(¶ 5} Respondents have moved for summary judgment on the following alleged grounds: (1) Wood is not the real party in interest and lacks standing to pursue this original action in his own name, and (2) Wood has failed to establish a claim for relief in prohibition. Wood responds that he has standing by virtue of his "representative capacity" as Hicks's counsel in the underlying litigation and maintains that he has satisfied all requirements necessary to merit relief in prohibition. Respondents are entitled to summary judgment on both grounds.

A. Wood lacks standing

(¶ 6} "It is elementary that every action shall be prosecuted in the name of the real party in interest * * *." State ex rel. Dallman v. Court of Common Pleas, 35 Ohio St.2d 176, 178, 298 N.E.2d 515 (1973), citing Civ.R. 17(A) and Cleveland Paint & Color Co. v. Bauer Mfg. Co., 155 Ohio St. 17, N.E.2d 545 (1951), paragraph one of the syllabus. "A party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action." Id. at syllabus.

(¶ 7} Wood concedes that he has no personal interest in the underlying litigation but believes he has standing in his "representative capacity" as defendant Hicks's attorney. However, Wood's employment as Hicks's counsel of record in the underlying foreclosure action does not give him standing to pursue this original action in his own name. Civ.R. 17(A) confers standing to pursue an action in a representative capacity only in the following circumstances:

Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, 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. When a statute of this state so provides, an action for the use or benefit of another shall be brought in the name of this state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or ...

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