Bashara v. Corliss

Johnson, J.

Plaintiff appeals from a trial court decision concluding that his negligence complaint against defendant was barred by the statute of limitations. We affirm.

*2On October 4,1985, David Corliss, while driving his father’s car, was involved in a collision with a car in which plaintiff was a passenger. One week before the three-year statute of limitations would have run, plaintiff filed a complaint mistakenly naming David’s father, Bernard, as the defendant-driver. This complaint was never served. On October 18,1988, plaintiff filed an amended complaint naming David as the defendant-driver. Service was attempted at the address that had been David’s residence at the time of the accident, but David had moved. On November 7, 1988, plaintiff served the complaint against defendant upon the Commissioner of Motor Vehicles, pursuant to 12 V.S.A. § 892. Thus, service was made within sixty days of the filing of the original complaint. See V.R.C.P. 3 (requiring service within sixty days after filing complaint).

David did not receive actual notice of the suit until April 1989, when plaintiff was granted judgment by default. This judgment was sent to David’s former address, where plaintiff initially attempted service. David’s father still lived at this address and delivered the notice to David. David then answered the complaint and pled insufficiency of service of process and the statute of limitations. The trial court ruled that the action was barred by the three-year statute of limitations because the amended complaint did not relate back to the time of filing of the original complaint. Plaintiff appeals this decision.

Plaintiff contends that the amended complaint relates back to the date on which the original complaint was filed against the defendant’s father under V.R.C.P. 15(c), which states in relevant part:

An amendment changing the party against whom a claim is asserted relates back if . . . within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s 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 the party.

(Emphasis added.) Plaintiff argues that “the period provided by law for commencing the action” includes the time for completion of service of process, an additional sixty days.

*3The plaintiff’s argument is unpersuasive in the face of Rule 15(c)’s clear mandate. The language of V.R.C.P. 15(c) unambiguously requires that the real party must have notice during the period provided by law for commencing an action and makes no provision for notice during the period for service of process. Even if the language of Rule 15(c) was not clear, the Reporter’s Notes unequivocally limit relation back to cases where the new defendant had “notice and knowledge of the original proceeding within the period of the statute of limitations.” Reporter’s Notes, V.R.C.P. 15.

Relying on Justice Stevens’ dissent in Schiavone v. Fortune, 477 U.S. 21 (1986), plaintiff contends that reading Rule 15(c) to mean what it says renders the rule superfluous. Schiavone is not apposite. In Schiavone, plaintiffs’ amendment did not change the defendant; rather, it substituted defendant’s trademark “Fortune” with the defendant’s name of incorporation, “Fortune, also known as Time, Incorporated." Id. at 28. The dissent argued that because the amendment did not actually change the party, the requirements of Rule 15(c) quoted above should not apply. Id. at 36. Even if those requirements should apply, the dissent contended that there should be an exception in cases of misnomer only, to allow the amendment to relate back if defendant received notice within the period for service. Id. at 36-38.

This is not the case before us. It is true that the caption of plaintiff’s complaint changed only from “Bernard Corliss, Defendant” to “David Corliss, Defendant.” Plaintiff’s mistake, however, was greater than to name defendant incorrectly— plaintiff sued the wrong party.

Our reading of Rule 15(c) as it is written does not render it a nullity. Rule 15(c) merely allows the complaint to be corrected if the defendant had the requisite notice within the statute of limitations. While Rule 15(c)’s purpose may be limited, the purpose exists.

Moreover, under plaintiff’s construction of Rule 15(c), a plaintiff could file a complaint against anyone within the limitations period and change the defendant within the service-of-process period. This would essentially extend the statute of limitations beyond that provided by the Legislature. Something must happen within the limitations period to toll it; usually, ei*4ther the complaint is filed or defendant is served. When, as here, the complaint names the wrong defendant, neither of these acts has occurred to toll the statute of limitations. Rule 15(c) does not extend the statute of limitations, it merely allows notice to be the “something” that tolls the limitations period regarding the new defendant.

The period provided for plaintiff to commence the action in this case was three years. 12 V.S.A. § 512(4). Thus, for plaintiff’s amendment to relate back to the filing of the original complaint, David Corliss must have had notice of the original complaint, as well as notice that, but for plaintiff’s mistake, he would have been named in the original complaint. Plaintiff failed to argue or prove that David Corliss had notice of the commencement of the original suit or that he knew or should have known that but for a mistake, the action would have been brought against him. Accordingly, the trial court properly found that plaintiff’s action was barred by the statute of limitations.

Plaintiff also argues that Rule 15(c)’s notice requirement is satisfied if defendant had either actual or constructive notice. Plaintiff alleges defendant had constructive notice of the suit through process served on the Commissioner of Motor Vehicles. Defendant challenges the sufficiency of the service of process on the Commissioner. We need not reach the merits of either of these arguments because defendant did not have notice, actual or constructive, within the limitations period.

Affirmed.