Easter v. Complete Gen. Constr. Co.Easter v. Complete Gen. Constr. Co.
{¶ 2} The relevant facts and procedural history of this case follow. Appellant alleges that on November 19, 2002, she accompanied her mother to an *2 appointment with a physician whose office is located on North High Street in the City of Gahanna in Franklin County. On that date, Complete General Construction Co., was in the process of performing work as general contractor under its contract with the City of Gahanna for the repair, replacement and improvement of streets, curbs, sidewalks, landscaping and lighting along North High Street. Appellee was a subcontractor on the project.
{¶ 3} Appellant further alleges that as part of the improvement project, appellee had recently constructed a new brick sidewalk that abutted the concrete walkway from the front entrance of the physician's office building. After her mother's appointment, as appellant attempted to step from the walkway to the new sidewalk, she stepped into a deep trench or hole that was obscured by fallen leaves. This trench or hole ran the length of one side of the new sidewalk, beginning at the corner formed by the intersection of the walkway and sidewalk. Appellant's foot became wedged in the trench and she lost her balance, fell forward onto the sidewalk, and sustained injuries to various parts of her body.
{¶ 4} On November 12, 2004, appellant filed a complaint in the Franklin County Court of Common Pleas, naming as a defendant Complete General Construction Co., as well as seven John Doe Company defendants. In her complaint, she alleged that she could not ascertain the names of the John Doe Company defendants. She included the words "name unknown" in the caption as to each John Doe Company defendant, and she included the words "name unknown" in the original summons. *3
{¶ 5} On November 11, 2005, appellant personally served appellee with a copy of the original summons and a copy of the original complaint. On November 17, 2005, appellant moved the court for leave to amend her complaint to add appellee in place of one of the John Doe Company defendants. On November 21, 2005, the court granted that motion. On November 22, 2005, appellant filed her first amended complaint, and filed a praecipe requesting service upon appellee of "a summons and a copy of Plaintiff's First Amended Complaint" by certified mail. On December 5, 2005, appellee was served with a copy of the first amended complaint by certified mail.
{¶ 6} On March 21, 2006, appellee filed a motion for judgment on the pleadings, arguing that because it was not personally served with a copy of the amended complaint within one year of the filing of the original complaint, the amended complaint did not relate back to the original complaint. As such, it maintained, the action against appellee was not commenced within the applicable two-year statute of limitations, and appellant's claims against appellee were barred as a matter of law.
{¶ 7} In her memorandum opposing appellee's motion, appellant argued that
THE TRIAL COURT ERRED IN GRANTING ZUBER LANDSCAPE, INC.'S MOTION FOR JUDGMENT ON THE PLEADINGS.
{¶ 8} A
{¶ 9} A motion for judgment on the pleadings is to be granted when, after viewing the allegations and reasonable inferences therefrom in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Brown v. Wood Cty. Bd. ofElections (1992),
{¶ 10} The Supreme Court of Ohio has held, and the parties agree, 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,
{¶ 11} Appellant argues that Rules 3 and 15 of the Ohio Rules of Civil Procedure are very clear and that she has met each and every one of their requirements so that her first amended complaint relates back to her original complaint vis À vis appellee. She contends that she was required to (1) timely file her original complaint; (2) allege therein that she was unable to discover the name of the John Doe Company defendant that she later identified as appellee; (3) include the words "name unknown" in the original summons; (4) personally serve upon appellee a copy of the original summons and original complaint within one year of the filing of the original complaint; and (5) amend the complaint to identify appellee upon discovering appellee's identity. Because she took all of these steps, she urges, the trial court erred in determining that her first amended complaint does not relate back.
{¶ 12} She argues that the trial court's ruling would shorten the one-year period for obtaining service under
{¶ 13} Finally, appellant argues that the cases upon which the trial court relied for its analysis of the question were all resolved on some factual issue different than that presented in this case, such as a plaintiff using certified mail instead of personal service, or failing to include the words "name unknown" in the original summons. She argues that the cases the trial court cited are thus distinguishable from the present case and do not support the action that the court took in granting judgment as a matter of law to appellee.
{¶ 14} In response, appellee argues that the applicable civil rules require that both the amendment and personal service of the amended complaint occur within the one-year time limit for service provided in
{¶ 15} It also follows, appellee argues, that because
{¶ 16} It is undisputed that appellant's original complaint was filed prior to the expiration of the applicable statute of limitations, and that the statute of limitations had expired by the time appellant discovered that appellee was one of the John Doe Company defendants. Thus, in order for her amended complaint to have been timely commenced against appellee, it must relate back to her original complaint, pursuant to
{¶ 17} Resolution of appellant's assignment of error, and consideration of the parties' arguments, require examination of
{¶ 18}
*8Commencement. — A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing * * * upon a defendant identified by a fictitious name whose name is later corrected pursuant to
Civ. R. 15(D) .
{¶ 19}
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.
{¶ 20}
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 contain the words "name unknown," and a copy thereof must be served personally upon the defendant.
{¶ 21}
{¶ 22} To resolve this question we look to
{¶ 23} In addition, "[t]he summons must contain the words `name unknown,' and a copy thereof must be served personally upon the defendant." The word "thereof" refers to the "summons." This is in accordance with the rule of grammar that, "'[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent * * *.'" Indep. Ins. Agents of Ohio, Inc. v.Fabe (1992),
{¶ 24} Moreover, it is the original summons that must be personally served upon the defendant, because it would be illogical to require that a new summons, issued with an amended complaint, contain the words "name unknown" when the defendant's name, by that time, would no longer be unknown to the plaintiff. But the defendant's name would be unknown at the time of the filing of the original complaint and service of the original summons. *10
{¶ 25}
{¶ 26} Finally, we must read
{¶ 27} Based upon the plain language of
{¶ 28} The Eleventh Appellate District has also held that
{¶ 29} We observe that
{¶ 30} Appellee argues that the case of Mustric v. Penn TrafficCorp. (Sept. 7, 2000), 10th Dist. No. 00AP-277, evidences that this appellate district has already interpreted
{¶ 31} Specifically, appellee directs our attention to the following two sentences of the Mustric opinion: "* * * appellant did not personally serve Ingle Barr after it had been specifically named in theaction. Hence, the trial court in the original action properly determined that the action had not been commenced against Ingle Barr."
{¶ 32} First, these two sentences were part of a multi-paragraph discussion of the strict mandate that service upon a John Doe defendant be personal service *13
and not mail service. Second, the sentence immediately following the quoted portion of the Mustric opinion above reads, "[h]owever, this is not the exact issue before this court. Our determination rests upon R.C.
{¶ 33} Thus, the question before the Mustric court was not whether the amended complaint related back to the original complaint; rather, the issue was whether the plaintiff had attempted to commence his action as against Ingle Barr, for purposes of the saving statute. The language upon which appellee relies, while by no means a declarative statement on the issue before this court — whether the plaintiff should serve the original summons and complaint, or the amended complaint, upon the newly identified defendant — is, in any case, dicta.
{¶ 34} "Dicta" is defined as "expressions in court's opinions which go beyond the facts before court and therefore are * * * not binding in subsequent cases as legal precedent." Westfield v. Galatis,
{¶ 35} Appellee also urges that a number of other cases from our sister districts — cases upon which the trial court also relied — support the proposition that the plaintiff must serve a copy of the amended complaint upon the newly identified defendant within one year of filing the original complaint. But the cases of Haeufle v. Taggart,
12th Dist. No. CA2005-05-102,
{¶ 36} Appellee also directs our attention to the cases of Mears v.Mihalega (Dec. 19, 1997), 11th Dist. No. 97-T-0040, andPatrolman X. v. City of Toledo (1999),
{¶ 37} Mears, too, is distinguishable from the present case. InMears, the plaintiff omitted the words "name unknown" in the summons, and this alone, the court noted, warranted the granting of summary judgment, just as it had in Amerine. As well, the plaintiff inMears had served the John Doe defendant more than one year after he had filed his original complaint. The Mears court considered and *15
rejected the plaintiff's argument that the one-year period granted by
{¶ 38} It is true that the plaintiff in Mears had personally served the John Doe defendant with the amended complaint and not the original complaint, but this does not mean that Mears stands for the proposition that the John Doe defendant must be personally served with the amended complaint. The important point in Mears was that the plaintiff had not served the John Doe defendant within one year of filing his original complaint and he had failed to include the words "name unknown" in the original summons, and both of these omissions were fatal to his attempt to have his amended complaint relate back to his original complaint.
{¶ 39} In Patrolman X, the Lucas County Court of Common Pleas ruled that the plaintiff's claim against a John Doe defendant did not relate back to his original complaint when he did not amend his complaint to identify the defendant until nearly 22 months after filing his original complaint. Neither the court of appeals' opinion (which affirmed the trial court but contains no substantive discussion of the issue of relation back) nor the court of common pleas' opinion, which is appended to the court of appeals' opinion and incorporated therein by reference, specifically mentions whether the plaintiff attempted or achieved service, or what method of service, if any, was used. It thus appears that the plaintiff did not serve the John Doe defendant with a copy of anything within one year of the filing of the original complaint. For this reason, it was appropriate to grant summary judgment in the defendant's favor. *16
{¶ 40} Neither the trial court nor the appellate court inPatrolman X confronted the precise issue that we must address in the present case: whether
{¶ 41} This statement may support appellee's position to some degree, but it is far from clear that the court intended to speak definitively about the issue of what the plaintiff was required to serve upon the newly identified defendant. Moreover, it appears that the court was as concerned with the effect of the statute of limitations as it was with the amount of time that had elapsed from the filing of the original complaint to the time of amendment.
{¶ 42} In any case, holdings from the Sixth Appellate District are not binding upon this court. To the extent that Patrolman X stands for the proposition that in order for an amended complaint to relate back to the original complaint pursuant to
{¶ 43} We also reject appellee's argument that the word "accordingly" in
{¶ 44} Finally, we reject appellee's argument that because the requirement that the plaintiff amend the complaint comes before the requirement to personally serve, in the text of
{¶ 45} In order for her amended complaint to relate back to her original complaint with respect to appellee, appellant was required to do the following: (1) *18 designate appellee by a fictitious name in her original complaint; (2) aver in her original complaint that she could not discover the name of the fictitious defendant; (3) include the words "name unknown" in the original summons; (4) personally serve appellee, within one year from the filing of her original complaint, with a copy of the original summons and original complaint; and (5) upon discovering appellee's true name, amend her original complaint to designate appellee by its correct name rather than the fictitious name by which she had previously designated it. Appellant met all of those requirements. Therefore, her amended complaint relates back to her original complaint, and, as such, the trial court erred in granting appellee's motion for judgment on the pleadings.
{¶ 46} For all of the foregoing reasons, appellant's sole assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.
Judgment reversed; cause remanded.