Gingrich v. G & G Feed & Supply, L.L.C.

[Cite as Gingrich v. G & G Feed & Supply, L.L.C., 2022-Ohio-982.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

LORI J. GINGRICH JUDGES:
Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellant Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2021 CA 00060
G & G FEED & SUPPLY, LLC, ET AL.,

Defendants-Appellees OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Case No. 2018 CV
00410

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 25, 2022

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

ANTHONY A. MAHAN THOMAS R. MERRY, ESQ.
Mahan Law Thomas R. Merry Co., LPA
102 Fairfield Avenue – 2nd Floor 155 Commerce Park Drive, Ste. #3
Bellevue, KY 41073 Westerville, OH 43082
Licking County, Case No. 2021 CA 00060 2

Hoffman, J.
{¶1} Plaintiff-appellant Lori J. Gingrich appeals the July 8, 2021 Order entered

by the Licking Court of Common Pleas, which denied her motion to correct the record.

Defendant-appellee is IronGate Equestrian Center (“IronGate”).

STATEMENT OF THE CASE

{¶2} On April 11, 2018, Appellant filed a complaint for intentional tort, naming G

& G Feed & Supply as defendant. Appellant worked for G & G Feed, which was owned

and operated by Tera Gore. The complaint alleged, on April 15, 2016, Gore intentionally

struck Appellant with a heavy metal clipboard, causing Appellant to sustain serious

injuries. At the time of the incident, Appellant was working at an equestrian event and

Gore was her boss. Appellant filed an amended complaint on April 13, 2018, adding

Gore, Global Vision Alliance, Inc., and IronGate as defendants (“Defendants,”

collectively).

{¶3} After Defendants failed to answer, Appellant filed a motion for default

judgment on June 26, 2018. Via Entry filed July 26, 2018, the trial court granted the

motion. The trial court conducted a hearing on damages on August 27, 2018.

Defendants did not appear. Via Entry filed September 7, 2018, the trial court awarded

Appellant damages in the amount of $953,578.75. On September 27, 2018, Defendants

filed a Civ.R. 60(B) motion for relief from judgment. Appellant filed a response in

opposition on December 3, 2018. Defendants filed a reply in support of their motion for

relief from judgment on December 20, 2018. Via Decision and Entry filed January 15,

2019, the trial court granted the motion and vacated the July 26, 2018 Entry granting

default judgment against Defendants and the September 7, 2018 Entry awarding

damages to Appellant.
Licking County, Case No. 2021 CA 00060 3

{¶4} Appellant appealed the decision to this Court, arguing the trial court abused

its discretion in granting defendants' Civ. R. 60(B) motion for relief from judgment. This

Court agreed and reversed the trial court’s judgment and remanded the matter to the trial

court to reinstate the default judgment and the damages award. Gingrich v. G & G Feed,

5th Dist. Licking No. 2019 CA 00008, 2019-Ohio-4779. Upon remand, Appellant filed a

motion for post-judgment interest. The trial court scheduled an evidentiary hearing on

January 30, 2021. Via Judgment Entry filed January 30, 2021, the trial court reinstated

the default judgment and damages award, and granted post-judgment interest.

{¶5} At some point in her collection efforts, Appellant learned IronGate was the

registered tradename for Otter Fork Equestrian Complex, LLC. (“Otter Fork”). Appellant

filed a Praecipe for a Certificate of Judgment in the name of “Otter Fork Equestrian

Complex, LLC T/A IronGate Equestrian Center” with the Licking County Clerk of Courts

on March 27, 2020. The Clerk issued the Certificate of Judgment listing Otter Fork as a

judgment debtor. Thereafter, the attorney for Otter Fork contacted the Licking County

Clerk’s Office and instructed the Clerk to amend the Certificate of Judgment to remove

Otter Fork as a judgment debtor.

{¶6} On February 22, 2021, Appellant filed a Motion to Correct the Record,

requesting the trial court amend and correct the record, including the judgment entry,

docket, and certificate of judgment, to reflect the legal name of IronGate, to wit: Otter

Fork. IronGate filed a memorandum contra, arguing Appellant should not be permitted to

amend the complaint and judgment to add a new defendant. Appellant filed a reply in

support of her motion. Via Order filed July 8, 2021, the trial court denied Appellant’s

motion. The trial court found:
Licking County, Case No. 2021 CA 00060 4

The motion has not identified any errors in the record that need to be

corrected. In fact, the Court has given [Appellant] precisely what she asked

for – a judgment against IronGate.

***

While it is true that a Plaintiff can commence and maintain an action

against a trade name, the Court is unaware of any case law that suggests

or holds that a judgment against a trade name is automatically a judgment

against a legal entity that registered the trade name.

[Appellant] commenced and maintained her lawsuit against IronGate

and a judgment has been rendered against IronGate.

July 8, 2021 Order Denying Plaintiff’s Motion to Correct the Record

at 2-3, unpaginated.

{¶7} It is from this order Appellant appeals, raising the following assignments of

error:

I. THE TRIAL COURT ERRED IN HOLDING A JUDGMENT

AGAINST A PARTY NAMED BY ITS TRADE NAME IS NOT

ENFORCEABLE AGAINST THE LEGAL ENTITY THAT REGISTERS THE

NAME PURSUANT TO R.C. 1329, THEREBY DENYING EXECUTION

THEREON AND EFFECTIVELY VACATING PLAINTIFF’S JUDGMENT.
Licking County, Case No. 2021 CA 00060 5

II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION

TO CORRECT THE RECORD TO AMEND THE JUDGMENT AND

CERTIFICATE OF JUDGMENT TO INCLUDE THE LEGAL NAME OF THE

JUDGMENT DEBTOR, THEREBY DENYING EXECUTION THEREON

AND EFFECTIVELY VACATING PLAINTIFF’S JUDGMENT.

I

{¶8} In her first assignment of error, Appellant asserts the trial court erred in

finding a judgment against a trade name is not enforceable against the entity behind the

trade name.

{¶9} In support of her position, Appellant relies upon Family Medicine Found.,

Inc. v. Bright, 96 Ohio St.3d 183, 2002–Ohio–4034, in which the Ohio Supreme Court

held “R.C. 1329.10(C) permits a plaintiff to bring suit against a party named only by its

fictitious name.” Id. at ¶15; See, also R.C. 1329.10(C) (“An action may be commenced or

maintained against the user of a trade name or fictitious name whether or not the name

had been registered or reported in compliance with section 1329.01 of the Revised

Code.”). Appellant submits the Bright Court implicitly held “a judgment against a fictious

name is automatically enforceable against the legal entity using the name.” Brief of

Appellant at 9.

{¶10} In Bright, Bright filed a medical malpractice action against the Thomas E.

Rardin Family Practice Center (“the Practice Center”). Id. at ¶1. Prior to filing the action,

Bright's attorneys made repeated, yet unsuccessful, attempts to identify the legal entity

behind the Practice Center. Id. at 13. The trial court granted Bright’s motion for default
Licking County, Case No. 2021 CA 00060 6

judgment against the Practice Center, which neither filed an answer nor appeared. Id. at

¶1. The trial court conducted a damages hearing and entered judgment against the

Practice Center in the amount of $978,840.41. Id.

{¶11} Bright subsequently learned the Practice Center was the fictitious name of

Family Medicine Foundation, Inc. (“FMF”). Id. at ¶2. Bright filed a motion for judgment

debtor examination to determine FMF's ability to satisfy the default judgment against the

Practice Center. Id. at ¶3. In response, FMF filed a motion to intervene and a motion to

vacate the judgment, arguing the default judgment was void as such was rendered

against a nonentity. Id. The trial court denied both motions. Id.

{¶12} Thereafter, FMF filed an action against Bright and her attorneys, seeking

an injunction to prohibit Bright from executing upon FMF's assets to satisfy the default

judgment against the Practice Center. Id. at ¶4. The trial court denied the requested

relief, finding the judgment was enforceable against FMF. Id. The court of appeals

reversed, holding, under R.C. 1329.10(C), a suit could not be commenced or maintained

against a party named only by its fictitious name. Id. The Ohio Supreme Court reversed

the judgment of the court of appeals, holding “R.C. 1329.10(C) permits a plaintiff to bring

suit against a party named only by its fictitious name.” Id. at ¶15. The Bright Court

concluded “FMF's request for injunctive relief was properly denied by the trial court.” Id.

{¶13} IronGate argues Bright is factually distinguishable from the instant action,

explaining, unlike the plaintiff in Bright, Appellant herein “failed to do even the most basic

due diligence with the Ohio Secretary of State, as the identification of the registrant of the

trade name is literally four clicks away from the home page for the Ohio Secretary of

State.” Brief of Appellee at 16. We shall discuss this argument in detail, infra. IronGate
Licking County, Case No. 2021 CA 00060 7

submits the instant action is more analogous to Bailey v. E. Liverpool City Hosp., No.

4:14–cv–2809, 2015 WL 5102768 (N.D. Ohio Aug. 31, 2015).

{¶14} In Bailey, Plaintiff brought a lawsuit against East Liverpool City Hospital and

East Liverpool City Hospital, Growing for Tomorrow and Today (“Trade Name

Defendants”) as well as the user of the trade name, The City Hospital Association,

alleging age discrimination in violation of the Age Discrimination in Employment Act

(“ADEA”). Id. at *1. The Trade Name Defendants filed a Rule 12(b)(6) motion to dismiss,

arguing they are trade names registered with the State of Ohio and do not employ any

employees; therefore, could not be held liable under the ADEA. Id. at *4. Plaintiff, relying

on Bright, maintained the Trade Name Defendants were proper parties to her lawsuit. Id.

{¶15} The Bailey Court distinguished Bright, stating:

Appellants in Bright only named the Practice Center in the complaint

because they were unable to determine the legal entity behind the fictitious

name. Bright, 772 N.E.2d at 11. In this case, the two Trade Name

Defendants are registered with the State of Ohio, and their holder, The City

Hospital Association, is readily ascertainable and part of the lawsuit. Bailey

could have reasonably determined The City Hospital Association is the legal

entity behind the trade names. Bailey's failure to utilize public records does

not permit her to maintain an action against the Trade Name Defendants.

(Citation omitted). Id.
Licking County, Case No. 2021 CA 00060 8

{¶16} We note “the decisions of federal courts constitute persuasive authority only

and are not binding on this court.” State v. Prom, 12th Dist. Butler No. CA2004-07-174,

2005-Ohio-2272, ¶ 22. Nevertheless, we find IronGate’s reliance on Bailey misplaced.

{¶17} The procedural posture of the case before us is significantly different from

the procedural posture of Bailey. Bailey is the ruling by a federal district court on a Rule

12(b)(6) motion to dismiss. The Bailey Plaintiff named the Trade Name Defendants and

the user of the trade name as defendants in her original complaint. The Trade Name

Defendants appeared and filed a motion to dismiss. Here, IronGate neither answered the

complaint nor appeared. IronGate did not take any steps to disclose itself as a trade

name or identify Otter Fork as the holder of the trade name prior to filing its Civ. R. 60(B)

motion for relief from judgment. Due to these differences, we find Bailey not only

inapplicable, but also unpersuasive so as to alter the applicability of Bright in this case.

{¶18} The Bailey Court also found it lacked “jurisdiction to entertain a suit against

trade names.” Bailey, supra at *4, citing Rachells v. Cingular Wireless, 483 F.Supp.2d

583, 587 (N.D. Ohio 2007). In the instant action, the trial court had jurisdiction to entertain

Appellant’s suit against IronGate because, pursuant to R.C. 1329.10(C), a plaintiff may

commence or maintain an action against a party named only by its fictitious name.

{¶19} In Ginn v. Stonecreek Dental Care, 12th Dist. Fayette Nos. CA2018-09-018,

CA2018-09-019, and CA2018-11-022, 2019-Ohio-3229, the Twelfth District Court of

Appeals addressed the question of “whether ‘maintained’ could be interpreted to

empower a plaintiff to sue a trade name only and ultimately receive a judgment against

the trade name.” Id. at ¶53. Because the statute does not define “maintained,” the Ginn

Court looked to the plain and ordinary meaning of the word:
Licking County, Case No. 2021 CA 00060 9

Webster's Dictionary provides the following definitions for “maintain”:

1 : to keep in a state of repair, efficiency, or validity : preserve from failure

or decline * * * 2 a : to sustain against opposition or danger : back up :

DEFEND, UPHOLD * * * b : to uphold in argument : contend for * * * 3 : to

persevere in : carry on : keep up : CONTINUE * * * 4 : to provide for : bear

the expense of : SUPPORT * * * 5 : to affirm in or as if in argument: ASSERT,

DECLARE * * * 6 : to assist (a party to legal action) so as to commit

maintenance.

Webster's Third New International Dictionary 1362 (1993). Id. at ¶54.

{¶20} The Ginn Court concluded:

In general, most of these definitions fall within the concept of

“ensuring the survival of.” Thus, an ordinary and plain interpretation of

“maintained” as used in R.C. 1329.10(C) would support the conclusion that

the Revised Code permits suit to be filed solely against a trade name and

for such suit to be “maintained” through the entire course of an action and

that a judgment ultimately rendered in such a suit is not void. Additionally,

this court's interpretation is buttressed by R.C. 1329.10(B), which expressly

permits suit to be brought and maintained by a registered trade name, but

not a fictitious name. It would be inconsistent to conclude that, on one hand,

the Revised Code recognizes a registered trade name as an entity that can
Licking County, Case No. 2021 CA 00060 10

bring an action and be awarded a judgment but, on the other hand, a

registered trade name is not an entity that can be sued to a judgment. Id.

{¶21} In Ginn, following a jury trial and after the trial court entered final judgment

on the verdict, Stonecreek Dental Care (“Stonecreek Dental”) moved the trial court to

correct the judgment entry to reflect “Stonecreek Dental Care Chillicothe – J. Clarke

Sanders, D.D.S., LLC” as the defendant's legal name. Id. at ¶9. “Stonecreek Dental Care

Chillicothe – J. Clarke Sanders, D.D.S., LLC” was the limited liability company which

operated the Stonecreek Dental’s office in Chillicothe. Id. Stonecreek Dental argued

“Stonecreek Dental Care” was merely a trade name and any judgment against the trade

name was void. Id. The trial court denied Stonecreek Dental's motion to correct the

judgment entry. Id. Stonecreek Dental appealed. Id. at ¶10.

{¶22} On appeal, Stonecreek Dental argued the judgment against the trade name

“Stonecreek Dental Care” was void as being rendered against a nonentity. Id. at ¶50.

Although Stonecreek Dental acknowledged the Revised Code permits an action to be

brought against a fictitious business name, it argued Plaintiff Ginn, after bringing the

action, had a duty to substitute the legal entity behind the trade name, and failed to do

so. Id.

{¶23} After analyzing Bright, the Ginn Court noted Stonecreek Dental clearly had

knowledge the suit had been filed against the trade name, yet took no formal action to

bring this issue to the court until after the judgment had been rendered against it following

the jury trial. Id. at ¶59. The Court continued, “While Stonecreek Dental did not ignore

the complaint and defended the suit, its implied acquiescence to have the case tried
Licking County, Case No. 2021 CA 00060 11

against its trade name also supports the conclusion that the judgment against

“Stonecreek Dental Care” is not void.” Id. The Twelfth District concluded “R.C.

1329.10(C) does not indicate that a plaintiff must take any further action, such as

substituting the legal entity behind the trade name, in order to ‘maintain’ the action against

the trade name.” Id. at ¶61. The Ginn Court did not address whether the judgment would

allow Plaintiff Ginn to institute collection proceedings against all “owners and users” of

the trade name, finding “[t]hat issue is not before the court in this appeal.” Id. at ¶63.

{¶24} In accordance with Ginn, we find Appellant was not required to take any

further action in order to maintain the action against IronGate. Otter Fork allowed the

action to proceed with IronGate as a named defendant. After revealing Otter Fork as the

legal entity behind the trade name in Defendants’ Civ R. 60(B) motion, the matter was

defended using only the trade name “IronGate.” Otter Fork persisted in using the trade

name to protect the sui juris entity. In light of the fact Otter Fork knew its rights could be

affected by the action, “we find it difficult to understand how it can now cry foul and

allege…” Appellant should not be able to collect on her judgment. See, Bright at ¶14.

Under these circumstances, we find “an entity should not be permitted to dodge liability.”

Id.

{¶25} We disagree with IronGate’s assertion Appellant’s failure “to do even the

most basic due diligence with the Ohio Secretary of State” is somehow fatal to her claim.

Brief of Appellee at 16. If the legislature had intended for a plaintiff to determine the legal

entity behind the trade name before commencing or maintaining “an action against a party

named only by its fictitious name” pursuant to R.C. 1329.10(C), the legislature would have

included such language in the statute. The legislature did not include such language;
Licking County, Case No. 2021 CA 00060 12

therefore, we find no such burden exists. A legal entity’s decision to register a trade name

does not create a separate duty on a private party seeking to bring suit against that entity,

although such practice should be encouraged to avoid the issue raised in the case sub

judice.

{¶26} In Bright, while the Supreme Court noted Bright and her attorneys made

attempts to identify the legal entity behind the Practice Center, the High Court focused on

the fact FMF, despite having knowledge of the lawsuit filed against its fictitious name, did

not take any action to defend the suit or “take adequate steps to apprise appellants of

FMF's connection to the Practice Center.” Id. at ¶13-14. In the instant action, Appellant’s

Amended Complaint was sent via certified mail to IronGate at 12298 Croton Road,

Croton, OH 43013, its primary location. Deposition of Tera Gore at 17. The return receipt

for the certified mail was signed by Tera Gore on April 17, 2018. Trial Docket #4. After

Defendants failed to answer or appear, Appellant filed a motion for default judgment,

which the trial court granted. The trial court subsequently awarded damages to Appellant.

{¶27} On September 27, 2018, Attorney Angela Paul Whitfield as “Counsel for

Defendants G & G Feed & Supply LLC, Tera Gore, Global Vision Alliance, Inc., and

IronGate Equestrian Center” filed a Civ. R. 60(B) Motion for Relief from Judgment.

Therein, Defendants asserted excusable neglect as grounds for relief under Civ. R.

60(B)(1). Defendants also argued they had “several meritorious defenses to Plaintiff’s

complaint,” including, inter alia, “IronGate Equestrian Center is not a legal entity, but

rather a trade name, and was not the employer of [Appellant] and not related to the

incident.” Defendants’ Motion for Relief from Judgment at 11, 13. Attached to

Defendants’ Civ. R. 60(B) motion is the Affidavit of Tera Gore, in which Gore averred,
Licking County, Case No. 2021 CA 00060 13

“IronGate Equestrian Center is a trade name and was not an employer, nor was it owned

by any of the Defendants on April 15, 2016. A true and correct copy of the State of Ohio

certificate for the original filing of the trade name is attached hereto as Exhibit 1.”

Defendants’ Motion for Relief from Judgment, Exhibit B, Affidavit of Tera Gore at ¶4.

Exhibit 1 of Gore’s Affidavit is a copy of the Certificate from the Ohio Secretary of State

registering the tradename “IronGate Equestrian Center” to Otter Fork.

{¶28} As stated, supra, Otter Fork allowed the action to proceed with IronGate as

the named defendant. The matter was defended using only the trade name “IronGate.”

Although Otter Fork’s identity was disclosed in Defendants’ motion for relief from

judgment, Otter Fork has persisted in using the trade name throughout all subsequent

filings, including this Appeal. Similar to the Ohio Supreme Court’s finding in Bright, we

find Otter Fork cannot hide behind its trade name to avoid liability.

{¶29} In Bright, the Ohio Supreme Court declined to apply Patterson v. V & M

Auto Body, 63 Ohio St.3d 573, 589 N.E.2d 1306 (1992), finding the Patterson decision

did not mention R.C. 1329.10(C), which was the basis of its holding in the matter before

it. Bright, supra at ¶13. The High Court explained Patterson “held that a plaintiff may not

maintain an action against a defendant solely under a fictitious name where the plaintiff

knows that the defendant does business as a sole proprietor.” Id. at ¶12. In Patterson,

the plaintiff named a sole proprietorship as the defendant. Patterson, supra at 574. The

owner of the sole proprietorship notified the plaintiff on three occasions the plaintiff had

sued an entity without the capacity to be sued. Id. at 575. However, the plaintiff did not

amend his complaint, and over the defendant's objections, the case proceeded to trial,

resulting in judgment in favor of the plaintiff. Id. at 575–576. We find Bright limited the
Licking County, Case No. 2021 CA 00060 14

holding of Patterson to matters involving sole proprietorships. Because the case sub

judice does not involve a sole proprietorship, we find Patterson inapplicable.

{¶30} Bright was before the Ohio Supreme Court on review of the Tenth District

Court of Appeals’ reversal of the trial court’s denial of FMF’s request for injunctive relief

and the trial court’s determination the judgment against the Practice Center was

enforceable against FMF. The Bright Court, concluding “FMF's request for injunctive

relief was properly denied by the trial court,” reversed the judgment of the court of

appeals. In doing so, the Ohio Supreme Court implicitly reinstated the trial court’s

judgment entry denying injunctive relief and allowing Bright to enforce her judgment

against FMF.

{¶31} Based upon the foregoing and in accordance with Bright, we find the

judgment against IronGate is enforceable against Otter Fork.

{¶32} Appellant’s first assignment of error is sustained.

II

{¶33} In her second assignment of error, Appellant contends the trial court erred

in denying her motion to correct the record to amend the judgment and certificate of

judgment. We agree.

{¶34} Civ. R. 15(A) provides, in part:

(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
Licking County, Case No. 2021 CA 00060 15

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.

{¶35} “Amendments to name the real party being sued under a trade name,

whether individual or corporation, should be allowed upon the theory that a trade name

is really the name of the person using it.” Zak v. J.R. Chapman Trucking, 6th Dist. Huron

App. No. H-78-9, 1978 WL 214971 (Citations omitted). “The liberal provisions of Civ. R.

15(A) . . . created a comprehensive grant of power to the courts to permit amendments

so that a court could, either before or after judgment, in furtherance of justice and on such

terms as it deems proper, amend any pleading or process by correcting a mistake in the

name of a party or a mistake in any other respect.” Id. (Citations and footnotes omitted).

(Emphasis added). Because the language of Civ.R. 15(A) favors a liberal amendment

policy, “a motion for leave to amend should be granted absent a finding of bad faith, undue

delay or undue prejudice to the opposing party.” Gasper v. Bank of Am., N.A., 9th Dist.

Medina No. 17CA0091-M, 2019-Ohio-1150, ¶16, quoting Hoover v. Sumlin, 12 Ohio St.3d

1, 6, 465 N.E.2d 377 (1984).

{¶36} Upon review of the record in this matter, we find nothing therein to establish

Appellant acted in bad faith. Nor do we find anything which shows a correction of the

record would cause undue delay or undue prejudice to Otter Fork. Accordingly, we find

the trial court erred in failing to grant Appellant’s motion to correct the record under Civ.

R. 15(A).
Licking County, Case No. 2021 CA 00060 16

{¶37} We also find a correction of the record would have been appropriate under

Civ. R. 15(C).

{¶38} Civ. R. 15(C) provides:

(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.

{¶39} Thus, a party must meet three requirements before an amendment

“changing the party” can relate back to the original pleading pursuant to Civ. R. 15(C).

Caterpillar Financial Services Corp. v. Tatman, 4th Dist. Ross, 2019-Ohio-2110, 137

N.E.3d 512, ¶ 49. “First, the claim in the amended complaint must arise ‘out of the

conduct, transaction, or occurrence set forth or attempted to be set forth in the original

pleading.’ Second, the party sought to be substituted by the amendment must have

received notice of the action ‘within the period provided by law for commencing the action,’
Licking County, Case No. 2021 CA 00060 17

so that the party is not prejudiced in maintaining a defense. Third, the new party, ‘within

the period provided by law for commencing the action,’ knew or should have known that,

but for a mistake concerning the proper party's identity, the action would have been

brought against the new party.” Id. “The primary purpose of Civ.R. 15(C) is to preserve

actions that, through mistaken identity or misnomer, have been filed against the wrong

person.” Id. at ¶ 50 quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d

86, 101, 529 N.E.2d 449 (1988).

{¶40} We find the three requirements have been met here. The claims against

Otter Fork would be identical to the claims originally asserted against IronGate. Otter

Fork had notice of the action against its trade name.1 Finally, Otter Fork knew or should

have known Appellant’s designation of IronGate, its registered trade name, as a named

defendant exposed it to liability.

{¶41} Appellant’s second assignment of error is sustained.

1 We are aware Otter Fork has filed another Civ. R. 60(B) motion, which is presently pending in the trial
court. Therein, Otter Fork asserts improper service on IronGate. Because the motion for relief from
judgment was not before the trial court at the time of the judgment entry under review in this Appeal, we
have not considered it in reaching our decision.
Licking County, Case No. 2021 CA 00060 18

{¶42} The judgment of the Licking County Court of Common Pleas is reversed

and the matter remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, J.
Wise, Earle, P.J. and
Delaney, J. concur