{¶ 2} The relevant facts and procedural history are gleaned from the record. On August 7 or 8, 2003, Lewis was involved in a two-car automobile accident in Columbus. Hayes is the owner of the second vehicle, but was not present at the scene of the accident; rather, an individual referred to as "Joe Doe" was driving Hayes's vehicle. No one called police at the time of the accident. Joe Doe gave Lewis the name of "Joe," a telephone number, and a second number that turned out to be Hayes's cell phone number. Joe Doe then departed the scene before Lewis could obtain the vehicle identification number or other information about Joe Doe.
{¶ 3} On August 8, 2005, Lewis filed a complaint against Joe Doe and Hayes. On May 31, 2006, Lewis voluntarily dismissed the complaint pursuant to Civ. R. 41(A). On May 22, 2007, Lewis re-filed her complaint, again naming Joe Doe and Hayes as defendants. The re-filed complaint contained three counts: (1) negligence against Joe Doe; (2) derivative liability for Joe Doe's negligence against Hayes; and (3) negligent entrustment against Hayes.
{¶ 4} On June 8, 2007, Hayes filed an answer. On February 26, 2008, Hayes filed a motion to dismiss or, alternatively, a motion for summary judgment, seeking dismissal of Count 2 of the re-filed complaint, and a motion for summary judgment on Count 3. With respect to Count 2, Hayes argued that Lewis's complaint failed to state a claim because liability for a driver's negligence cannot be imposed upon a vehicle owner *3 merely by virtue of ownership.1 Alternatively, if the court construed Count 2 as stating a claim for agency liability, then, Hayes argued, reasonable minds could only conclude that Joe Doe was not acting as Hayes's authorized agent at the time he collided with Lewis. With respect to Count 3, Hayes argued that reasonable minds could only conclude from the evidence that Hayes did not know, nor should she have known at the time of the entrustment, of Joe Doe's incompetence, inexperience or reckless tendency as an automobile operator.
{¶ 5} For support of her motion for summary judgment, Hayes submitted her own affidavit. Therein, she averred that Joe Doe is an individual named "Joe Bruno" and that, at the time of the automobile accident, he was pet-sitting for her while she was away on business. She stated that she never granted him authority to operate her automobile while she was away, and she was unaware that he had done so until he contacted her to inform her that the accident had occurred. She further averred that, prior to the accident, she had no information or knowledge that he was an incompetent, careless or inexperienced driver.
{¶ 6} Lewis filed a memorandum contra. With respect to Count 2, she argued that her omission of any allegation regarding an agency relationship was not fatal to her claim that Hayes was derivatively liable for Joe Doe's negligence. She argued that she was entitled to have the court make all reasonable inferences from the language of the complaint in her favor, and that the court could reasonably infer an agency theory from the language of the complaint. She further argued that, based on Hayes's deposition testimony, reasonable minds could differ as to whether Joe Doe was acting as Hayes's *4 agent at the time he collided with Lewis's vehicle. With respect to Count 3, Lewis conceded that Hayes was entitled to summary judgment as to the negligent entrustment claim.
{¶ 7} The trial court journalized a decision and entry on June 3, 2008. Therein, the court sua sponte dismissed Count 1 of the complaint, which asserted a negligence claim against Joe Doe. The court reasoned that because Lewis had failed to amend her re-filed complaint to identify the previously unknown Joe Bruno, despite the fact that she knew his true identity, 2 and she failed to serve him within one year, her action against him had not been commenced, pursuant to Civ. R. 15(D) and 3(A), within the applicable statute of limitations.
{¶ 8} The court denied Hayes's motion to dismiss Count 2, finding that Lewis's complaint had sufficiently set forth a short and plain statement of an agency theory of liability, despite the fact that Lewis had not used the words "agent" or "agency." However, the court granted summary judgment in favor of Hayes as to Count 2, reasoning that there is no liability on the part of the principal where the plaintiff has failed to successfully assert a claim against the agent. Finally, the court granted Hayes's motion for summary judgment as to Count 3, Lewis having conceded that Hayes was entitled to same.
{¶ 9} Lewis timely appealed and advances three assignments of error, as follows:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, WHEN IT SUA SPONTE DISMISSED COUNT ONE OF THE COMPLAINT AND GRANTED SUMMARY JUDGMENT ON COUNT TWO OF THE COMPLAINT, WITHOUT PROVIDING *5 APPELLANT NOTICE AND THE OPPORTUNITY TO ADDRESS ISSUES RELEVANT TO THE TRIAL COURT'S SUA SPONTE INTENT TO DISMISS COUNT ONE AND GRANT SUMMARY JUDGMENT ON COUNT TWO.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DISMISSING COUNT ONE OF THE COMPLAINT AND GRANTING SUMMARY JUDGMENT ON COUNT TWO OF THE COMPLAINT, ON THE BASIS THAT HER CLAIMS AGAINST [JOE] DOE ARE "TIME-BARRED."
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DISMISSING COUNT ONE OF THE COMPLAINT AND GRANTING BY SUMMARY JUDGMENT ON COUNT TWO OF THE COMPLAINT, BY HOLDING THE DISMISSAL AND SUMMARY JUDGMENT TERMINATE APPELLANT'S COMPLAINT, WITH PREJUDICE.
{¶ 10} Hayes advances two cross-assignments of error as follows:
FIRST CROSS-ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED BY FAILING TO RULE THAT APPELLANT'S CLAIM — IF ANY — AGAINST JOE BRUNO WAS TIME-BARRED ON THE BASIS OF R.C.
2305.10 (A).SECOND CROSS-ASSIGNMENT OF ERROR:
THE TRIAL COURT ERRED BY INFERRING INTO THE COMPLAINT AN ALLEGATION THAT AGENCY WAS THE THEORY OF LIABILITY UPON WHICH APPELLANT ASSERTED COUNT TWO AGAINST APPELLEE KELLY HAYES.
{¶ 11} For ease of discussion we will address Lewis's assignments of error out of order. Lewis's second assignment of error and Hayes's first cross-assignment of error raise interrelated issues and will be addressed together. Both concern whether the trial court correctly concluded that Lewis's negligence claim against Joe Doe is barred on its *6 face and thus subject to dismissal for failure to state a claim upon which relief may be granted.
{¶ 12} We review de novo a judgment dismissing a complaint for failure to state a claim upon which relief can be granted. Ferron v. Fifth ThirdBank, Franklin App. No. 08AP-473,
{¶ 13} "In 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)." Amerine v. Haughton Elevator Co. (1989),
{¶ 14} Civ. R. 3(A) provides, "[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 a defendant identified by a fictitious name whose name is later corrected pursuant to Civ. R. 15(D)." Civ. R. 15(D) provides: *7
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.
{¶ 15} When it dismissed Count 1 of Lewis's complaint, the trial court determined that because Lewis never amended her re-filed complaint to state the true identity of Joe Doe, even though she had become aware of his true identity, and because she had failed to serve him with an amended complaint, all within one year of filing the re-filed complaint, she had never commenced her action against Joe Doe. For this reason, the trial court found Count 1 time-barred.3
{¶ 16} Lewis argues that she was unable to amend her complaint to state the true identity of Joe Doe because Joe Doe has concealed his whereabouts, thereby preventing her from ascertaining enough information about him to comply with Civ. R. 3(A) and 15(D). Without citation to authority, she argues that the trial court should have ruled that the deadline for compliance with Civ. R. 3(A) was tolled. She cites one case — Nationwide Mut. Ins. Co. v. Galman, Mahoning App. No. 03 MA 202,
{¶ 17} In response to Lewis's second assignment of error, and in support of her own first cross-assignment of error, Hayes argues that the trial court correctly dismissed Count 1 of Lewis's complaint. Hayes argues that, regardless whether Lewis did or did not *8 know Joe Doe's true identity at any particular time, she has failed to commence her action against him so as to avail herself of the saving statute for two reasons: (1) because she failed to amend her re-filed complaint and serve Joe Doe within one year from date she re-filed her complaint (which was the trial court's stated reason), and (2) because Lewis did not use the correct method of service upon Joe Doe of heroriginal complaint.
{¶ 18} "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)." Civ. R. 3(A). The statutory time limit for a plaintiff to commence a personal-injury action is two years from the date the cause of action accrued. R.C.
{¶ 19} However, R.C.
{¶ 20} Thus, assuming, without deciding, 4 that Lewis properly attempted to commence her original action against Joe Doe, she could only avail herself of the saving statute if she timely commenced her new action within the meaning of R.C.
{¶ 21} Lewis argues, however, that the time period afforded by R.C.
{¶ 22} For all of the foregoing reasons, Lewis's second assignment of error is overruled and Hayes's first cross-assignment of error is sustained.
{¶ 23} In her first assignment of error, Lewis contends that the trial court erred in dismissing sua sponte Count 1 of the complaint (which asserted a negligence cause of action against Joe Doe) and granting summary judgment against her on Count 2 (which asserted against Hayes respondeat superior liability for Joe Doe's negligence), without giving her prior notice of its intentions and an opportunity to present her arguments against dismissal. The Supreme Court of Ohio has observed:
The Rules of Civil Procedure neither expressly permit nor forbid courts to sua sponte dismiss complaints. Generally, a court may dismiss a complaint on its own motion pursuant to Civ. R. 12(B)(6), failure to state a claim upon which relief may be granted, only after the parties are given notice of the court's intention to dismiss and an opportunity to respond. However, some courts have recognized an exception to the general rule, allowing sua sponte dismissal without notice where the complaint is frivolous or the claimant obviously cannot possibly prevail on the facts alleged in the complaint.
(Citations omitted.) State ex rel. Edwards v. Toledo City School Dist.Bd. of Edn.,
{¶ 24} In her third assignment of error, Lewis argues that even if the trial court correctly dismissed Count 1 (and the derivative Count 2 against Hayes), the dismissal should have been without prejudice to re-filing. She directs our attention to the case of Sisk Assocs., Inc.v. Commt. to Elect Timothy Grendell, Franklin App. No. 07AP-1002,
{¶ 25} While Sisk may appear similar to the present case because inSisk a re-filed action was dismissed after the plaintiff failed to obtain service within one year of re-filing, the similarity ends there. The issue in Sisk was whether a dismissal for lack of personal jurisdiction was the functional equivalent of a second notice of voluntary dismissal under the "double dismissal" rule of Civ. R. 41(A)(1). The trial court in Sisk did not dismiss for failure to commence within the statute of limitations.6
{¶ 26} In La Barbera v. Batsch (1967),
{¶ 27} We now turn to Hayes's second cross-assignment of error. Because Hayes did not file a notice of cross-appeal, pursuant to App. R. 3(C), her proposed second assignment of error may be "`considered only for the purpose of preventing a reversal of the judgment under review.'"Jackson v. Columbus, Franklin App. No. 05AP-1035,
{¶ 28} Having overruled all of Lewis's assignments of error, sustained Hayes's first cross-assignment of error, and overruled as moot Hayes's second cross-assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
McGRATH and KLINE, JJ., concur.
KLINE, J., of the Fourth Appellate District, sitting by assignment of the Tenth Appellate District.