[Cite as Schisler v. Columbus Med. Equip., 2016-Ohio-3302.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Vernon Schisler, :
Plaintiff-Appellant, :
No. 15AP-551
v. : (C.P.C. No. 13CV-13717)
Columbus Medical Equipment et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on June 7, 2016
On brief: Donahey, Defossez & Beausay, and Jacob J.
Beausay, for appellant. Argued: Jacob J. Beausay.
On brief: Weston Hurd LLP, Shawn W. Maestle, and John
G. Farnan; Law Offices of Steven Kelley, and Cornelius J.
O'Sullivan, Jr., for appellees. Argued: John G. Farnan.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Plaintiff-appellant, Vernon Schisler, appeals the May 15, 2015 judgment of
the Franklin County Court of Common Pleas granting the motion for summary judgment
and judgment on the pleadings filed by defendants-appellees, Robert Jones ("Jones") and
Columbus Medical Equipment ("CME"), and dismissing the complaint. For the reasons
that follow, we affirm in part and reverse in part the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts of this case are undisputed. On December 12, 2011, appellant was
involved in an automobile accident which allegedly caused him to suffer personal injuries.
On December 20, 2013, appellant filed a complaint in the trial court naming as
defendants:
COLUMBUS MEDICAL EQUIPMENT
c/o Mike Gunner, Statutory Agent
No. 15AP-551 2
3535 Fishinger Blvd., Suite 220
Columbus, Ohio 43026
and
JOHN DOE
306 East 5th Avenue
Columbus, Ohio 43201
{¶ 3} According to the complaint, "John Doe[,] an employee, agent, or apparent
agent of Defendant Columbus Medical Equipment * * * operat[ed] a motor vehicle * * * in
connection with his employment with Columbus Medical Equipment" and "negligently
struck Mr. Schisler's vehicle." (Dec. 20, 2013 Compl. at 1-2.) The complaint references two
dates of the alleged accident: December 11, and December 21, 2011. (Compl. at 1.) The
complaint further states that "[t]he identity of Defendant Doe could not reasonably [be]
ascertained." (Compl. at 1.) Appellant requested service of the complaint upon CME and
John Doe by certified mail, and the summons accordingly issued under those names.
Service of the original complaint by certified mail was completed for CME, and was
completed for John Doe with the recipient signature "Carl A. Mulberry." (Dec. 27, 2013
Proof of Service at 1.)
{¶ 4} Three days later, on December 23, 2013, appellant amended the complaint,
substituting "Robert Jones" in the place of John Doe, with the same address. (Dec. 23,
2013 First Am. Compl. at 1.) The amended complaint states the date of the accident as
"[o]n or about December 21, 2011." (Am. Compl. at 1.) Appellant again requested service
of the amended complaint upon CME and Robert Jones by certified mail. Service of the
amended complaint by certified mail was completed with respect to both CME and Jones.
{¶ 5} On January 17, 2014, appellees answered the complaint asserting, among
other defenses, insufficiency of service of the summons and complaint, failure to be
properly identified, and expiration of the statute of limitations. Seven months later, on
July 9, 2014, appellee Jones answered in his response to interrogatories that he had
personally left the state of Ohio from July 14-27, 2012, July 11-22, 2013, and
October 3-6, 2013, and that CME "remained open for business at all of [the]
aforementioned times." (Def.'s Answers to Pl.'s Interrogs. at 3.)
No. 15AP-551 3
{¶ 6} On September 26, 2014, appellees filed a motion for summary judgment
asserting that, despite the dates in the complaint, the accident actually occurred on
December 12, 2011, and, therefore, the statute of limitations against CME and Jones
expired before appellant filed the lawsuit. Appellees attached appellant's responses to
appellees' request for admissions in support of their motion to support the assertion that
the accident actually occurred on December 12, 2011. Appellant filed a memorandum
contra on October 9, 2014, asserting that the statute of limitations had been tolled for
approximately 27 days when Jones left the state during the limitations period, and that
CME's liability was solely a derivative cause of action. Appellant attached appellee Jones'
answers to interrogatories, showing that appellee Jones left the State of Ohio for
approximately 27 days between July 14, 2012 and October 6, 2013.
{¶ 7} The motion for summary judgment remained pending before the trial court.
On January 16, 2015, appellees filed a "Motion for Judgment on the Pleadings in Favor of
Defendant Robert Jones and Renewed Motion for Summary Judgment in Favor of
Columbus Medical Equipment," arguing that the original summons did not contain the
words "name unknown" and that Jones was not personally served with a copy of either
the original or amended complaint under Civ.R. 15(D). Thus, according to appellees,
appellant's failure to comply with the strict requirements of Civ.R. 15(D) resulted in the
relation back concept of Civ.R. 15(C) being inapplicable to the amended complaint filed on
December 23, 2013. In the renewed motion for summary judgment in favor of CME,
appellees reiterated their argument that the claim was barred by the statute of limitations.
Appellees attached exhibits to their motions including appellant's responses to requests
for admissions showing the date of the accident as December 12, 2011. Appellant filed a
memorandum contra, with the answers to interrogatories again attached as an exhibit
showing the times appellee Jones was absent from the state, followed by appellees' reply.
{¶ 8} On May 15, 2015, the trial court granted appellees' motions and dismissed
the complaint. In doing so, the court ruled that appellant filed his initial complaint eight
days after the two-year statute of limitation ran as it applies to CME, and, therefore,
granted appellees' motion for summary judgment in part. The court additionally found
that, under Civ.R. 15(D), appellant failed to include the words "name unknown" on the
summons and failed to perfect personal service of the complaint on Jones, finding service
No. 15AP-551 4
by certified mail insufficient under precedent analyzing service under Civ.R. 15(D). As
such, the trial court granted appellees' motion for judgment on the pleadings in favor of
Jones.
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant assigns two assignments of error for our review:
[I.] The trial court erred in granting Defendant Robert Jones'
Motion for Judgment on the Pleadings because Civ.R. 15(D)
is only applicable to dismiss a plaintiff's case when a plaintiff
attempts to "relate back" pursuant to Civ.R. 15(C).
[II.] The trial court erred in granting Columbus Medical
Equipment's Motion for Summary Judgment because the
statute of limitations for a derivatively liable principal is
the same as the agent's statute of limitations.
III. DISCUSSION
A. Standard of Review
{¶ 10} Civ.R. 12(C) states: "After the pleadings are closed but within such time as
not to delay the trial, any party may move for judgment on the pleadings." "In ruling on a
motion for judgment on the pleadings, the court is permitted to consider both the
complaint and answer." Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-1048,
2015-Ohio-2668, ¶ 3, quoting Toldeo City School Dist. Bd. of Edn. v. State Bd. of Edn.,
10th Dist. No. 14AP-93, 2014-Ohio-3741, ¶ 18, citing State ex rel. Midwest Pride IV,
Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Additionally, the Supreme Court of Ohio
has held that "[i]t is axiomatic that a trial court may take judicial notice of its own
docket." Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580 (1994).
Therefore, it is "proper for the trial court to take judicial notice of its docket in the
immediate case in the context of a Civ.R. 12(C) motion to determine when and how [a
defendant] was served with the complaint and summons." Whitehead v. Skillman Corp.,
12th Dist. No. CA2014-03-061, 2014-Ohio-4893, ¶ 8. See also Pearson v. Columbus, 10th
Dist. No. 14AP-313, 2014-Ohio-5563, ¶ 17.
{¶ 11} When presented with a motion for judgment on the pleadings, a trial court
must construe all the material allegations of the complaint as true and must draw all
reasonable inferences in favor of the nonmoving party. Smith v. Ohio Dept. of Transp.,
No. 15AP-551 5
10th Dist. No. 15AP-521, 2015-Ohio-5240, ¶ 6, citing Peters and Pontious. The court will
grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in
support of the claim(s) that would entitle him or her to relief. Id. A judgment on the
pleadings dismissing an action is subject to a de novo standard of review in the court of
appeals. Id., citing RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. No.
13AP-1, 2013-Ohio-4343, ¶ 13, citing Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio
App.3d 114, 2011-Ohio-2048, ¶ 5 (10th Dist.).
{¶ 12} An appellate court reviews summary judgment under a de novo standard as
well. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is
appropriate only when the moving party demonstrates (1) no genuine issue of material
fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 13} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). However, the moving party cannot discharge its initial burden under this rule
with a conclusory assertion that the nonmoving party has no evidence to prove its case;
the moving party must specifically point to evidence of the type listed in Civ.R. 56(C)
affirmatively demonstrating that the nonmoving party has no evidence to support the
nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the
moving party discharges its initial burden, summary judgment is appropriate if the
nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56,
with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at
430; Civ.R. 56(E).
B. Original Motion for Summary Judgment
{¶ 14} The bar of the statute of limitations was not obvious from the face of either
complaint. In the original motion for summary judgment appellees argued that the
No. 15AP-551 6
statute of limitations expired with respect to both CME and appellee Jones before
appellant filed his lawsuit. By filing a motion for summary judgment, appellees were
permitted by rule to attach responses to the requests for admissions that showed the date
of the accident as December 12, 2011 instead of the date referenced in the complaint. In
responding to the motion for summary judgment, appellant was able to submit evidence
that the statute of limitations was tolled while appellee Jones was out of state. Neither
side contests these facts. What is apparent from the record is that neither side could
establish its case simply by reference to the pleadings. Appellees needed information
outside the pleadings to show that the date of the accident was really December 12, 2011,
instead of December 21, 2011. Appellant needed information outside the pleadings to
show that the two-year statute of limitations was tolled for the approximately twenty-
seven days appellee Jones was out of state during the limitations period.
C. Motion for Judgment on the Pleadings and Renewed Motion for
Summary Judgment
{¶ 15} By filing both a motion for judgment on the pleadings as to appellee Jones
and a renewed motion for summary judgment only as to appellee CME, appellees attempt
to circumvent appellant's argument that both the complaint and the amended complaint
were filed timely because appellee Jones was absent from the state. By filing a motion for
judgment on the pleadings only with respect to appellee Jones, appellees seek to limit the
court's consideration to the pleadings and thus require the court to determine the appeal
without regard to the undisputed facts in the record that were established by means of the
first motion for summary judgment; namely that both complaints were filed timely with
respect to appellee Jones, and that the complaint contained an error as to the date the
accident occurred. These facts are critically important in deciding whether the relation
back doctrine of Civ.R. 15(C) and the strict filing requirements of Civ.R. 15(D) have any
applicability to the case.
{¶ 16} Civ.R. 12(C) motions are specifically designed for resolving questions of law.
Peterson v. Teodosio, 34 Ohio St. 2d 161, 166 (1973). Additionally, a Civ.R. 12(C) motion
"requires a determination that no factual issues exist and that the movant is entitled to
judgment as a matter of law." Pontious at 570. Here, the statute of limitations and the
timeliness of the amended complaint are crucial factors in deciding whether appellant was
No. 15AP-551 7
required to comply with the strictures of Civ.R. 15(D). Whether the statute of limitations
barred this action and whether appellant had to comply with the requirements of Civ.R.
15(D) cannot be determined from the pleadings because neither the complaint nor the
amended complaint states the correct date of the accident or shows the time during which
the statute of limitations was tolled. A motion to dismiss or a motion for judgment on the
pleadings, based on the bar of the statute of limitations, should not be granted if the
complaint does not conclusively demonstrate on its face that the action is barred by the
statute of limitations. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376
(1982), paragraph three of the syllabus; Goodwin v. Dept. of Rehab. & Corr., 10th Dist.
No. 95API03-393 (Sep. 19, 1995). Thus, judgment on the pleadings was not the
appropriate mechanism for determining whether the claim against appellee Jones should
have been dismissed because the statute of limitations issue could not be resolved simply
by reference to the pleadings.
{¶ 17} One important purpose of the Ohio Rules of Civil Procedure is to "effect just
results by eliminating * * * impediments to the expeditious administration of justice."
Civ.R. 1(B). Appellees filed a motion for summary judgment as to both appellees, then
combined motion for judgment on the pleadings and a motion for summary judgment.
Since our standard of review for both motions is de novo, and there are no genuine issues
of material fact, we shall accept the materials submitted by the parties as exhibits and
review the trial court's decision to dismiss the complaint under the de novo summary
judgment standard of review.
D. First Assignment of Error
{¶ 18} In his first assignment of error, appellant contends the trial court erred in
dismissing appellant's complaint against appellee Jones based on its application of Civ.R.
15(D). Appellant argues that since he amended his complaint within 28 days of serving his
original complaint under Civ.R. 15(A), and "properly substituted" Jones for "John Doe"
prior to the expiration of the statute of limitations, Civ.R. 15(D) does not apply.
(Appellant's Brief, 14.) In essence, appellant argues that compliance with Civ.R. 15(D) is
only required in "relation back" situations where the statute of limitations has intervened
between the original and amended complaint. (Appellant's Brief, 17.)
No. 15AP-551 8
{¶ 19} Appellees argue that the plain language of Civ.R. 15(D) provides that
plaintiffs who do not know the names of identified parties must follow certain
requirements, and does not confine compliance with the rule to relation back factual
situations.
{¶ 20} Civ.R. 15 provides requirements for amendment and supplementing
pleadings. In pertinent part, Civ.R. 15 states:
(A) Amendments. A party may amend its pleading once as
a matter of course within twenty-eight days after serving it
or, if the pleading is one to which a responsive pleading
is required within twenty-eight days after service of a
responsive pleading or twenty-eight days after service of a
motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In
all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave. The
court shall freely give leave when justice so requires.
***
(C) Relation back of amendments. Whenever the claim
or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to
be set forth in the original pleading, the amendment relates
back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates
back if the foregoing provision is satisfied and, within the
period provided by law for commencing the action against
him, the party to be brought in by amendment (1) has received
such notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits, and (2)
knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been
brought against him.
***
(D) Amendments where name of party unknown.
When the plaintiff does not know the name of a defendant,
that defendant may be designated in a pleading or proceeding
by any name and description. When the name is discovered,
the pleading or proceeding must be amended accordingly.
The plaintiff, in such case, must aver in the complaint the fact
that he could not discover the name. The summons must
No. 15AP-551 9
contain the words "name unknown," and a copy thereof must
be served personally upon the defendant.
{¶ 21} In analyzing Civ.R. 15(D), the Supreme Court has specified that "[a]
claimant may use Civ.R. 15(D) to file a complaint designating a defendant by any name
and designation when the plaintiff has identified but does not know the name of that
party, provided that the plaintiff avers in the complaint that the name of the defendant
could not be discovered and a summons containing the words 'name unknown' is issued
and personally served on the defendant." (Emphasis sic.) Erwin v. Bryan, 125 Ohio St.3d
519, 2010-Ohio-2202, ¶ 40. Each Civ.R. 15(D) requirement must be met in order for the
plaintiff to take advantage of Civ.R. 15(D), amend the original complaint, and invoke the
relation-back provisions of Civ.R. 15(C). Pearson at ¶ 15. Furthermore, these
requirements are strictly construed. See, e.g., Pearson at ¶ 16, 21 (finding allegation in
original complaint that defendants' names were unknown insufficient to meet the Civ.R.
15(D) requirement that the summons include the words "name unknown"); Laneve v.
Atlas Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 17 ("Certified mail is an
improper method of service under Civ.R. 15(D), which specifies that personal service is
the only method by which a fictitious, now identified, defendant may be served.").
{¶ 22} Here, it appears from the record that there was initial confusion about the
date of the accident. Under Ohio law, the statutory time limit to commence a personal
injury claim is two years from the date the injury was incurred or discovered.
R.C. 2305.10(A). Apparently, appellant or his counsel thought that the accident occurred
on December 21, 2011, and he filed the original complaint against CME and an unknown
defendant on December 20, 2013, one day before he thought the statute of limitations
expired.
{¶ 23} However, as appellant later learned in discovery, even though the accident
actually occurred on December 12, 2011, the applicable statutory time limit had not
expired as to appellee Jones because he had been absent from the State of Ohio. See R.C.
2305.15 (tolling of limitation during defendant's absence). Thus, both the original and
amended complaints were filed within the applicable statute of limitations as applied to
appellee Jones. Appellant filed his amended complaint within the statute of limitations as
to appellee Jones. This was his right under Civ.R. 15(A), and once he obtained service on
No. 15AP-551 10
appellee Jones, appellant's lawsuit was properly commenced pursuant to Civ.R. 3(A).
These facts distinguish the instant case from the classic scenario which requires strict
adherence to Civ.R. 15(D) so as to avoid the time bar of an applicable statute of
limitations.
{¶ 24} Cases dealing with the application of Civ.R. 15(D) and the strict
requirements contained in that rule, revolve around situations where a plaintiff files a
complaint against a John Doe defendant and later substitutes a named defendant after
the statute of limitations expires. Such was the case in Erwin. In Erwin, a wrongful
death complaint named several "John Doe" defendants, but none of them were served
with a summons before the expiration of the statute of limitations. The Supreme Court of
Ohio recognized "that a claimant may not be able to identify all culpable parties at the
time of filing a complaint," but went on to "point out that nothing in our opinion should
be construed to prevent amendment of a timely filed complaint before the expiration of
the statute of limitations." Id. at ¶ 39.
{¶ 25} In Amerine v. Haughton Elevator Co., 42 Ohio St.3d 57 (1989), the plaintiff
filed her original complaint against a company and two John Doe defendants two days
before the expiration of the statute of limitations. The plaintiff later discovered the
identity of a John Doe defendant and filed an amended complaint outside the statute of
limitations. The Supreme Court of Ohio upheld dismissal of the complaint against the
now identified John Doe defendant because the plaintiff failed to comply with Civ.R.
15(D) when she served the original complaint and the amended complaint upon the
defendant by certified mail instead of personal service. Id. at 58. In that opinion, the
Supreme Court of Ohio also stated that "[i]n determining if a previously unknown, now
known, defendant has been properly served so as to avoid the time bar of an applicable
statute of limitations, Civ. R. 15(D) must be read in conjunction with Civ.R. 15(C) and
3(A)." (Emphasis added.) Amerine at syllabus.
{¶ 26} Here, the time bar of the statute of limitations is not an issue. Appellant
unquestionably filed both the original complaint and the amended complaint within the
applicable statute of limitations as it applies to appellee Jones. Therefore, when appellant
filed his amended complaint he did not need to invoke the relation-back provisions of
Civ.R. 15(C), and there is no need to consider Civ.R. 15(D) because the amended
No. 15AP-551 11
complaint was duly filed on December 23, 2013, within the applicable statute of
limitations, and properly served upon appellee Jones as evidenced by the certified mail
receipt in the record dated January 23, 2014.
{¶ 27} Under Civ.R. 15(A), a party may amend his pleading once as a matter of
course at any time before a responsive pleading is served without leave of court. That is
what happened here. Appellee Jones was properly served by certified mail with the
summons and amended complaint. A plaintiff may properly name a fictitious defendant
and amend his complaint under Civ.R. 15(A), without regard to the requirements of
amending under Civ.R. 15(D), as long as the amended complaint is filed before the
expiration of the statute of limitations.
{¶ 28} To apply Civ.R. 15(D) to dismiss this action against appellee Jones in the
presence of another rule, Civ.R. 15(A), that permits a plaintiff leave to freely amend his
complaint once as a matter of course without leave of court, is not in the spirit of the Civil
Rules. Civ.R. 15(D) should not operate in a manner that cancels out Civ.R. 15(A). "The
spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading
deficiencies. * * * Pleadings are simply an end to that objective." Peterson at 175.
{¶ 29} Consequently, the trial court erred by dismissing the claim against appellee
Jones. Accordingly, appellant's first assignment of error is sustained.
E. Second Assignment of Error
{¶ 30} Appellant's second assignment of error asserts that the trial court erred in
granting CME's motion for summary judgment because the statute of limitations for his
derivative liability claims against CME was tolled for the 27 days Jones left Ohio. We
disagree.
{¶ 31} Generally, a third party injured by an employee acting within the scope of
his employment may pursue damages against the employer under the doctrine of
respondeat superior in addition to or instead of pursuing damages against the employee.
Orebaugh v. Wal-Mart Stores, Inc., 12th Dist. No. CA2006-08-185, 2007-Ohio-4969,
¶ 13-19, citing Flagg v. Bedford, 7 Ohio St.2d 45, 47-48 (1966); Tisdale v. Toledo Hosp.,
197 Ohio App.3d 316, 2012-Ohio-1110, ¶ 42 (6th Dist.). The statute of limitations that
applies to the claim against the employee also applies to the derivative action against the
employer. Doe v. First United Methodist Church, 68 Ohio St.3d 531, 537 (1994). The
No. 15AP-551 12
statute of limitations for negligence is two years. R.C. 2305.10(A). The statute of
limitations may be tolled during a defendant's absence from the state. R.C. 2305.15(A).
Generally, "[i]f a defendant is amenable to service of process during that time period for
R.C. 2305.15(A) purposes, that defendant is present in the state," and the tolling statute
does not apply. Jones v. St. Anthony Med. Ctr., 10th Dist. No. 95APE08-1014 (Feb. 20,
1996), citing Thompson v. Horvath, 10 Ohio St.2d 247, 251 (1967).
{¶ 32} In their motion for summary judgment, appellees pointed to evidence that
both the original and amended complaint fell outside of the two-year mark from the
actual date of the accident, December 12, 2011, and that CME was amenable to service of
process throughout the entire statutory period by being open for business and having a
statutory agent. Appellant pointed to evidence that Jones left the state of Ohio from
July 14-27, 2012, July 11-22, 2013, and October 3-6, 2013, and argued that those days
should toll the statute of limitations for bringing a claim against CME. Because CME was
amenable to service of process within the entire two-year statute of limitations period,
and the complaint was filed over two years after the accident occurred, appellant's claim
against CME is time barred. The trial court did not err in concluding the same.
{¶ 33} Accordingly, appellant's second assignment of error is overruled.
IV. CONCLUSION
{¶ 34} Having determined that appellant's first assignment of error is sustained
and the second assignment of error is overruled, we affirm in part and reverse in part the
judgment of the Franklin County Court of Common Pleas, and remand the matter for
further proceedings in accordance with this decision.
Judgment affirmed in part,
reversed in part; cause remanded
BROWN, J., concurs.
SADLER, J., concurs in part and dissents in part.
SADLER, J., concurring in part and dissenting in part.
{¶ 35} I agree with the majority that, under the second assignment of error, the
trial court did not err in granting CME's motion for summary judgment. However, I
disagree with the majority decision in determining under the first assignment of error that
No. 15AP-551 13
the trial court erred in holding that Civ.R. 15(D) applies. Accordingly, I respectfully
concur in part and dissent in part.
{¶ 36} At the outset, I must note disagreement with the majority's essential
conversion of the motion for judgment on the pleadings into a motion for summary
judgment. (See majority decision at 7.) Not only am I unaware of any precedent to do so,
nowhere in his brief does appellant call for us to convert the motion for judgment on the
pleadings into a motion for summary judgment for purposes of review. In fact, appellant
provides us with the standard of review for a motion for a judgment on the pleadings and
simply inserts information outside of the pleadings into his arguments without
reconciling it with the limited standard of review on a motion for judgment on the
pleadings. In his first assignment of error, appellant seeks only review of whether the trial
court erred in granting appellee Jones' motion for judgment on the pleadings "because
Civ.R. 15(D) is only applicable to dismiss a plaintiff's case when a plaintiff attempts to
'relate back' pursuant to Civ.R. 15(C)." (Appellant's Brief at 8-9.) Nonetheless, in
considering materials outside of the pleadings in this particular case (in ascertaining the
correct date of the accident and potential tolling evidence), the majority has considered
inappropriate materials under Civ.R. 12(C).
{¶ 37} Furthermore, despite the procedural nuances of this case, in my view the
trial court did not err in dismissing appellant's complaint based on the application of
Civ.R. 15(D). First, the pleadings show that appellant filed the original complaint on
December 20, 2013, the amended complaint on December 23, 2013, and indicated in the
amended complaint that the accident occurred on December 21, 2011. It is clear that
appellant was attempting to relate the amended complaint back to the original complaint
to avoid the two-year statute of limitations for the negligence claim and, in the process,
invoked the procedures required by Civ.R. 15(D). See, e.g., Whitehead v. Skillman Corp.,
12th Dist. No. CA2014-03-061, 2014-Ohio-4893, ¶ 10 ("When filing a complaint, Civ.R.
15(D) is invoked when a plaintiff is acquainted with the description of a defendant but is
unaware of the defendant's name at the time the complaint is filed."); Laneve v. Atlas
Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 14 ("[Plaintiff's] complaint
invoked Civ.R. 15(D) by designating certain defendants as "John Doe, unknown.").
No. 15AP-551 14
{¶ 38} I also disagree with the majority's view that Civ.R. 15(D) only applies within
the context of relation back scenarios. The plain language of Civ.R. 15(D) provides that
plaintiffs who do not know the names of identified parties "must" follow certain
requirements and does not confine compliance with the rule to relation back factual
situations. To the contrary, another section of the rule, Civ.R. 15(C), addresses relation
back of amendments as a separate issue and includes within it relation back in regard to
changing an "incorrectly named defendant," a separate endeavor from amending an
unknown party name under Civ.R. 15(D). See Civ.R. 3(A) (distinguishing between
incorrectly named defendants under Civ.R. 15(D) and defendants identified by fictitious
names under Civ.R. 15(D)). While appellant cites to cases that discuss Civ.R. 15(D) within
the context of resolving relation back issues, these cases do not stand for the proposition
that Civ.R. 15(D) only applies within the context of relation back scenarios.
{¶ 39} I likewise disagree with the majority's view that Civ.R. 15(A) permits a
plaintiff to disregard Civ.R. 15(D). My reading of the entirety of the rule shows that, while
Civ.R. 15(A) allows amendment of a complaint without leave of court for a period of 28
days after serving it, Civ.R. 15(D) still has strict requirements regarding that amended
complaint's content and how it may be served in situations involving identified but
unnamed defendants. In other words, Civ.R. 15(D) is less about if/when a complaint can
be filed than about what that complaint has to say and how it should be served in those
situations where the name of the defendant is unknown. Because Civ.R. 15(A) allows
amendment of a complaint without leave of court for a period of 28 days after serving it,
in my view, appellant was free to amend the complaint during that time to adhere to
Civ.R. 15(D) requirements regarding content and personal service. After that period,
appellant was also free to seek the court's leave or written consent from the opposing
counsel to properly amend the complaint to conform with Civ.R. 15(D).
{¶ 40} Having determined that Civ.R. 15(D) applies, I would find that appellant did
not adhere to Civ.R. 15(D)'s strictly construed requirements. As we stated in Pearson v.
Columbus, 10th Dist. No. 14AP-313, 2014-Ohio-5563, ¶ 21, "[t]he plain, unambiguous
language of Civ.R. 15(D) mandates that the words 'name unknown' appear in the
summons, not the complaint. We cannot alter that language." See also Easter v.
Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, ¶ 36 (discussing
No. 15AP-551 15
Mears v. Mihalega, 11th Dist. No. 97-T-0040 (Dec. 19, 1997), and Amerine v. Haughton
Elevator Co., 42 Ohio St.3d 57 (1989), as cases where the plaintiff's omission of the words
"name unknown" in the summons, alone, warranted the granting of summary judgment).
Thus, even without reaching the issue of personal service, it is clear that appellant did not
comply with Civ.R. 15(D), as the summons did not contain the statutorily required phrase
"name unknown."
{¶ 41} Therefore, because appellant filed an original complaint with the court that
identified Jones by a fictitious name, but never corrected the name pursuant to Civ.R.
15(D), appellant did not meet the strict requirements of Civ.R. 15(D). Accordingly, this
action was never properly commenced under Civ.R. 3(A) ("A civil action is commenced by
filing a complaint with the court, if service is obtained within one year from such filing
upon a named defendant, or upon an incorrectly named defendant whose name is later
corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name
whose name is later corrected pursuant to Civ.R. 15(D).").
{¶ 42} Finally, I would not address appellant's alternative argument asserting that
his amended complaint should "effectively be considered a refiling" under Goolsby v.
Anderson Concrete Corp., 61 Ohio St.3d 549 (1991), and Fetterolf v. Hoffmann-LaRoche,
Inc., 102 Ohio App.3d 106 (11th Dist.1995), two cases which consider Civ.R. 3(A)
commencement outside of the context of Civ.R. 15(D). (Appellant's Brief at 22.)
Appellant did not make this argument to the trial court. Niehaus v. Columbus
Maennerchor, 10th Dist. No. 07AP-1024, 2008-Ohio-4067, ¶ 55 ("It is well-settled that a
party may not raise an issue on appeal that was not initially raised before the trial court.");
Ohio Farmers Ins. Co. v. Estate of Brace, 116 Ohio App.3d 395, 401 (10th Dist.1997),
quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29, 32 (8th Dist.1981) (" 'A party may not
assert a new legal theory for the first time before an appellate court.' ").
{¶ 43} Accordingly, I would overrule appellant's first and second assignments of
error and affirm the decision of the trial court. Because the majority decision does
otherwise and for the reasons stated above, I concur in part and dissent in part.
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