dissenting.
{¶ 27} I respectfully dissent for the following reasons.
{¶ 28} The relevant statute of limitations bars actions if a plaintiff has not commenced them within one year of the accrual of the action. See R.C. 2305.113; R.C. 2305.03. The word “commencement” is a defined term for the purposes of the statute of limitations. “An action is commenced * * * by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year.” R.C. 2305.17. If the service is obtained within the required year, then the date of commencement is the date of filing. See Goolsby v. Anderson Concrete Corp. (1991), 61 Ohio St.3d 549, 550, 575 N.E.2d 801 (considering Civ.R. 3(A), which imposes similar requirements for the commencement of an action, and concluding that “it is not necessary to obtain service upon a defendant within the limitations period”).
{¶ 29} Here, it is uncontested that a complaint was filed, on behalf of the plaintiff, within the statute of limitations, and that service was obtained within a year. The requirements for commencement under R.C. 2305.17 are met, and there is no justification for a dismissal for failure to comply with the statute of *153limitations. The only plausible objection, based on the statute’s text, is that the plaintiff did not “[file] a petition in the office of the clerk of the proper court” within the meaning of the statute because the wrong representative party filed it. That is, the petition was not filed within the meaning of the statute because the guardian who brought the suit on behalf of the plaintiff was no longer empowered to act. However, the Supreme Court of Ohio has held that when a plaintiff files a suit against a deceased defendant, and the complaint fails to name the estate as the opposing party, an amendment to the complaint that fixes this error relates back to the initial filing, and the complaint serves to commence the action. Baker v. McKnight (1983), 4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104, syllabus. And if under Baker a plaintiff has commenced an action where the service on the defendant is arguably defective, then I see no reason why the plaintiff has not commenced an action here. This is particularly true because the statute of limitations serves to safeguard the interests of defendants. Here, service was properly obtained; the only defect is in regard to the representative party that brought the action on behalf of the plaintiff. Under these circumstances, a plaintiff should be permitted to amend the complaint to remedy a defect in the representative party. See Douglas v. Daniels Bros. Coal Co. (1939), 135 Ohio St. 641, 647, 15 O.O. 12, 22 N.E.2d 195 (finding that a change in a nominal party relates back, and may be made even after the statute of limitations has run).
{¶ 30} The majority analogizes the issue of this case to the question of whether “a fiduciary, with knowledge of her ward’s death, could bind the ward to a contract.” I agree that in order for any representative to bind a principal to a contract, the formation of the contract must comply with the established requirements of the law of agency. However, unlike the contract issue, here the question is not whether the case, as originally filed, could have prevailed, but whether, as filed, the original suit served to “commence” an action within the meaning of the statute.
{¶ 31} The majority cites two court of appeals cases, and both of these cases rely upon Levering v. Riverside Methodist Hosp. (1981), 2 Ohio App.3d 157, 2 OBR 173, 441 N.E.2d 290, a Tenth District case. In that case, the plaintiff, while living, retained a lawyer to file an action against the defendant, but the plaintiff died before the lawyer filed the complaint. Id. at 158, 2 OBR 173, 441 N.E.2d 290. In Levering, the Tenth District Court of Appeals followed Barnhart v. Schultz (1978), 53 Ohio St.2d 59, 7 O.O.3d 142, 372 N.E.2d 589, which was later expressly overruled in Baker, 4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104. And the Levering court held: “A complaint for personal injury requires a plaintiff and a defendant. There was only a defendant; hence, the complaint was a nullity and not a pleading. Civ.R. 15, which pertains to amendments of pleadings, does not apply.” Levering, 2 Ohio App.3d at 159, 2 OBR 173, 441 N.E.2d 290.
*154{¶ 32} This language that construes the initial complaint as a nullity has its basis in the now overruled Barnhart v. Schultz. See Barnhart 53 Ohio St.3d at 61, 7 O.O.3d 142, 372 N.E.2d 589. Under Levering, a complaint requires both a plaintiff and a defendant. But under Baker, 4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104, the Supreme Court of Ohio held that a complaint serves to commence an action even when the complaint names, as living, a now deceased defendant. Therefore, I see no reason to believe that a suit initiated by an erroneous representative plaintiff cannot serve to commence an action under Baker.
{¶ 33} Accordingly, for the foregoing reasons, I respectfully dissent.