Phyllis L. Pearson, Plaintiff-Appellant, v. City of Columbus et al., Defendants-Appellees.
No. 14AP-313
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
December 18, 2014
[Cite as Pearson v. Columbus, 2014-Ohio-5563.]
(C.P.C. No. 13CV-9497) (REGULAR CALENDAR)
DECISION
Rendered on December 18, 2014
Clifford O. Arnebeck, Jr., for appellant.
Richard C. Pfeiffer, Jr., City Attorney, and Andrew D.M. Miller, for appellees.
APPEAL from the Franklin County Court of Common Pleas
{1} Plaintiff-appellant, Phyllis L. Pearson, appeals a judgment of the Franklin County Court of Common Pleas that dismissed her action against defendants-appellees, Joseph Valiski and Donald Worthington. For the following reasons, we affirm that judgment.
{2} On August 26, 2013, Pearson filed suit against the city of Columbus, the Columbus Division of Police, and John Does 1 and 2. According to the complaint, the John Doe defendants were police officers employed by the Columbus Division of Police who unjustifiably shot and killed Pearson‘s son, Obee Shepard, on August 26, 2011. The complaint referred to those police officers by fictitious names because their actual names were then unknown and undiscoverable. Pearson, as administrator of Shepard‘s estate
{3} Pearson instructed the Franklin County Clerk of Courts to serve copies of the complaint upon the city, the Columbus Division of Police, and the John Doe defendants by certified mail. Pearson directed the clerk to address the copies to the John Doe defendants to the care of the Columbus Division of Police. The clerk issued summonses in the names of “John Doe 1” and “John Doe 2.” Using certified mail, the clerk served copies of the complaint and the summonses on the John Doe defendants at the specified address.
{4} On October 1, 2013, Pearson filed an amended complaint that substituted the actual names of appellees in place of the “John Doe” designation. The amended complaint alleged that Valiski and Worthington were the police officers who killed Shepard. Per Pearson‘s instruction, the clerk served copies of the amended complaint, along with summonses issued in appellees’ actual names, on Valiski and Worthington.
{5} Instead of answering the amended complaint, Valiski and Worthington moved to dismiss it pursuant to
{6} The trial court agreed with Valiski and Worthington that Pearson had not satisfied
{7} Pearson appeals the March 18, 2014 judgment, and she assigns the following error:
THE TRIAL COURT BELOW ERRED TO THE PREJUDICE OF PHYLLIS L. PEARSON BY DISMISSING HER FIRST AMENDED COMPLAINT ON THE GROUND THAT IT FAILED TO STATE CLAIMS FOR RELIEF AGAINST JOSEPH VALISKI AND DONALD WORTHINGTON.
{8} A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. A court may dismiss a complaint under
{9} Here, the parties agree that a two-year statute of limitations applies, although they differ regarding the source of that statute of limitations. Pearson points to
action[s] against a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or propriety function * * * shall be brought within two years after the cause of action accrues, or within any applicable shorter period of time for bringing the action provided by the Revised Code.
{10} The limitations period in
{11} Pearson‘s claim accrued on August 26, 2011, so the statute of limitations lapsed on August 26, 2013. Pearson did not bring her claims against Valiski and Worthington until October 1, 2013—over a month after the statute of limitations ran. Her claims, therefore, are barred by the statute of limitations unless they fall within the aegis of
{12} Pearson, however, cannot rely on
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.
{13}
{14} Unfortunately, no precedent sets out the exact degree of specificity necessary to properly identify a fictitiously named defendant. Both the Supreme Court of Ohio and the staff notes to
{15} In addition to identifying the defendant in the original complaint, the plaintiff seeking to take advantage of
{16} Here, Pearson did not include the words “name unknown” in the summonses, and she did not personally serve appellees with copies of the original complaint and summonses. Pearson, therefore, did not comply with the
{17} A court cannot rely on evidence outside of the complaint to decide a
{18} Pearson contends that taking judicial notice was error because service of a complaint and summons does not constitute a “proceeding.” We disagree. The term “proceeding” refers to “[t]he regular and orderly progression of a lawsuit” and includes “[a]n act or step that is part of a larger action.” Black‘s Law Dictionary (9th Ed.2009). Service of the original complaint and summonses, therefore, is part of the proceedings of this case.
{19} Pearson next maintains that
When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56.
Pursuant to this provision, after a trial court converts a motion to dismiss into a motion for summary judgment, the court must decide the converted motion based on
{20} In sum, we reject each of Pearson‘s judicial-notice arguments. Therefore, we conclude that the trial court did not err in taking judicial notice of the manner of service and the documents served on the John Doe defendants.
{21} Second, Pearson argues that, by alleging in the original complaint that Valiski‘s and Worthington‘s names were unknown, she met the requirement that the summonses include the words “name unknown.” We are not persuaded. The plain, unambiguous language of
{22} Third, Pearson argues that the trial court committed plain error by not delaying its decision on appellees’ motion to dismiss to allow her additional time to personally serve Valiski and Worthington with the necessary documents. Pearson points out that, pursuant to
{23} In response to this argument, appellees rely on Anetomang v. OKI Sys. Ltd., 10th Dist. No. 10AP-1182, 2012-Ohio-822, wherein this court stated that, “in Erwin, [125 Ohio St.3d 519, 2010-Ohio-2202,] the court * * * stated that service on the fictitiously named defendant, using the original complaint and a summons containing the words ‘name unknown,’ must be completed prior to the expiration of the applicable statute of limitations.” Anetomang at ¶ 18. (Emphasis omitted.) Based on this statement,
{24} In Erwin, the Supreme Court of Ohio held that ”
{25} The Erwin court drew a distinction between knowing the name of a defendant and knowing the identity of a defendant. In order to use
{26} Lack of appreciation for the difference between naming and identifying a defendant results in an incorrect interpretation of Erwin. As we stated above, the Supreme Court held that a plaintiff cannot use placeholders, i.e., non-identified defendants, in a timely filed complaint “and then identify, name, and personally serve those defendants after the limitations period has elapsed.” Id. at paragraph two of the syllabus. By this holding, the court did not require service of the original complaint and summons on fictitiously named defendants prior to the expiration of the statute of limitations. Rather, the court was condemning the use of placeholders and prohibiting the application of
{27} This interpretation of Erwin is consistent with prior Supreme Court precedent addressing
{28} Erwin did not overrule LaNeve or Amerine. In fact, the Erwin court recognized that “a plaintiff may benefit from the one-year period allowed in
{29} Based on all of the foregoing, we conclude that we contravened Supreme Court precedent and
{30} Applying
{31} In sum, we conclude that Pearson failed to comply with
{32} For the foregoing reasons, we overrule Pearson‘s sole assignment of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.