JAMES LEE ROBINSON, еt al., Plaintiffs-Appellants/Cross-Appellees, v. BOB SPURLOCK, et al., Defendants-Appellees/Cross-Appellants.
Case No. 11CA4
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
DATE JOURNALIZED: 3-29-12
2012-Ohio-1510
ABELE, P.J.
DECISION AND JUDGMENT ENTRY; CIVIL APPEAL FROM COMMON PLEAS COURT
COUNSEL FOR APPELLANT, TECHNOLOGY INSURANCE GROUP: B. Scott Jones and Brian Sullivan, Reminger Co., L.P.A., One Riverfront Plaza, 401 West Main Street, Ste. 710, Louisville, Kentucky, 40202
COUNSEL FOR CROSS-APPELLANT, BOB SPURLOCK: Mark S. Maddox, Frost, Maddox & Norman Co., L.P.A., 987 South High Street, Columbus, Ohio 43206
ABELE, P.J.
{¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment. A jury found in favor of Bob Spurlock, defendant below and cross-appellant herein, on subrogated claims brought against him by Technology Insurаnce Group (TIG), plaintiff below and appellant herein. TIG assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFFS-APPELLANTS’ MOTIONS FOR JOINDER OR, IN THE ALTERNATIVE, MOTIONS TO AMEND THE RE-FILED COMPLAINT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN INSTRUCTING THE JURY WITH INTERROGATORY #1.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN PROHIBITING PLAINTIFFS-APPELLANTS FROM INTRODUCING EVIDENCE THAT SPURLOCK FERTILIZER WAS AN UNREGISTERED TRADE NAME.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFFS-APPELLANTS MOTION FOR NEW TRIAL.”
Cross-Appellant assigns the following cross-assignments of error:
FIRST CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT OVERRULED BOB SPURLOCK’S MOTION FOR SUMMARY JUDGMENT.”
SECOND CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT OVERRULED BOB SPURLOCK’S MOTION FOR DIRECTED VERDICT.”
{¶ 2} James Robinson and Agnes Robinson are residents of the Commonwealth of Kentucky. On August 16, 2006, James Robinson, employed by Caudill Seed, a Kentucky company, delivered supplies from his employer to a business owned by Bob Spurlock and his son Tyson Spurlock, in Jackson County, Ohio. When Robinson arrived at the business, Tysоn
{¶ 3} very heavy and the skid loader began to tip forward. Robinson and another man then climbed onto the back of the skid loader to act as a counter weight. Eventually, the skid loader fell onto Robinson’s feet and caused him injury.
{¶ 4} On April 11, 2007, the Robinsons filed suit against “Bob Spurlock, d/b/a Spurlock Fertilizer” and an unknown employee of that unincorporаted business. TIG filed its own complaint in that case on March 14, 2008, but on December 31, 2008 filed a
{¶ 5} The Robinsons and TIG re-commenced the action on April 6, 2009 against “Bob Spurlock, d/b/a Spurlock Fertilizer,” an unknown employee of Spurlock Fertilizer and “Unknown Owners of Spurlock Fertilizer.” The gist of the complaint’s allegations were that one or more of the Spurlock defendants negligently instructed him to stand on the skid loader to act as a counterweight and led to his injuries. The Robinsons sought damages in excess of $25,000. TIG alleged that it paid compensation and medical benefits to Robinson and was thus subrogated to his interests and sought compensatory damages exceeding $268,000. Spurlock denied liability.
{¶ 6} On May 22, 2009, TIG filed a motion to join, as a new party defendant, “Spurlock’s Ag-Lime Fertilizer, LLC.” Alternatively, TIG asked that it be permitted to amend
{¶ 7} Cross-appellants ultimately settled with the Robinsons and the matter proceeded to a jury trial on TIG’s subrogated claims over several days in December 2010. A good portion of the evidence dealt with how Spurlock held itself out to the publiс – either as an LLC or as “Spurlock Fertilizer,” an unincorporated business under which Bob Spurlock did business. As to the issue of liability, Tyson Spurlock denied that he told Robinson to stand on the back of the skid loader as a counterweight. Indeed, Spurlock testified that he actually ordered Robinson off the skid loader when he noticed that Robinson had climbed on.
{¶ 8} Robinson, however, testified that Spurlock told him to stand on back of the loader to counter the weight of the pallets in the truck. That said, Robinson conceded that he had been told in the past to never ride these machines in that manner and that he saw the decals on this particular machine that warned against such riders. Robinson also admitted that he did not believe that the skid loader could handle the weight of the load. In retrospect, Robinson admitted, “[i]t probably wasn’t the smartest thing I done.”
{¶ 10} Eight days later, TIG filed a
I
{¶ 11} Before we address appellant’s assignments of error on their merits, we must first resolve a threshold jurisdictional issue. Cross-appellant argues that we do not possess jurisdiction to review appellant’s assignments of error because he did not file a notice of appeal from the March 30, 2011 entry that denied his motion for new trial. We disagree.
{¶ 12} We recognize that appellant did not file a Notice of Appeal from the entry that denied his motion for new trial. Rather, appellant filed a notice of appeal from the trial court’s January 3, 2011 judgment. A motion for new trial tolls time under
{¶ 13} Appellant’s motion for new trial rendered his January 28, 2011 Notice of Appeal premature. A premature Notice of appeal is treated as being filed immediately after a final appealable order.
II
{¶ 14} In its first assignment of error, TIG asserts that the trial court erred by denying its 2009 motion to bring the LLC into the action as a party defendant.
{¶ 15} We begin our analysis with the recognition that Robinson sustained his injuries on August 16, 2006. Thus, any claim that he may have against the tortfeasor must have been commenced within two years of that date.
{¶ 16} Here, the statute of limitations expired on August 16, 2008. TIG filed its complaint in the original case on March 14, 2008, well within the limitations time period. Although TIG voluntarily dismissed that claim in December 2008, it nevertheless had one year to re-file its action. See
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, оr occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his 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 him.”
{¶ 18} A
{¶ 19} Several pleadings from the original case were included as exhibits in this case and make clear that Bob Spurlock was served in the original action. The evidence also indicates that he and his son are the owners of the LLC and, thus, it appears that Tyson Spurlock would have had knowledge of the action. The Spurlocks should also have known that, but for a mistake in
{¶ 20} We also conclude that the amendment would not have added a new party. See Estate of Finley v. Cleveland Metroparks, 189 Ohio App.3d 139, 937 N.E.2d 645, 2010-Ohio-4013, at ¶18. A new defendant adds a new claim. In the case sub judice, however, the claim remained the same. The only change is that the claim would be asserted agаinst the LLC rather than Spurlock, personally, “d/b/a Spurlock Fertilizer.”
{¶ 21} Indeed, the facts in the case sub judice are similar to Milos in which a lawsuit named “Nationwide Insurance Company.” “Nationwide Mutual Insurance Company” filed an answer and stating that it had been improperly designated in the complaint. Later, the complaint was voluntary dismissed, but refiled within the
“It was apparent from the complaint who the intended defendant was, because it identified Nationwide‘s business address and a Nationwide policy was attached to the complaint. Nationwide received timely service of the complaint, was on notice of the claim, and was not prejudiced in defending the case on the merits. Under these circumstances, the correction of the inadvertent misnomer of the defendant relates back to the original complaint in the initial action and is not affected by an intervening statute of limitations. (Citations omitted.) Id. at ¶11.
{¶ 22} We believe that the same circumstances exist here. The Spurlocks were on notice of the claim (against Bob Spurlock) who received timely service of the complaint. Also, no prejudice would
{¶ 23} We readily acknowledge that the decision whether to allow a
{¶ 24} In the case sub judice, we believe that we must heed the Ohio Supreme Court‘s admonition that when possible cases should be decided on the merits, rather than pleading technicalities. See State ex rel. Montgomery v. R & D Chem. Co. (1995), 72 Ohio St.3d 202, 204, 648 N.E.2d 821; Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3, 454 N.E.2d 951; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 297 N.E.2d 113. Because the LLC was not a party to thе action, the jury did not have the opportunity to consider the LLC‘s liability for TIG’s insured‘s injuries.
{¶ 25} For these reasons, TIG’s first assignment of error is hereby sustained.2
{¶ 26} Because our ruling on the TIG’s first assignment of error requires a reversal of the trial court‘s judgment, TIG’s three remaining assignments of error have been rendered moot. See
IV
{¶ 27} We now proceed to consider the cross-assignments of error.3
V
{¶ 28} In the first cross-assignment of error, cross-appellant argues that the trial court erred by overruling his motion for summary judgment. The motion argued that the only person with whom Robinson had contact on the day of the accident was Tyson Spurlock, that Tyson Spurlock was not joined as a party to the case and, therefore, Bob Spurlock could not be held vicariously liable. The trial court overruled the motion without comment on the substantive issues and cross-appellant argues this constitutes error.
{¶ 29} To begin, cross-aрpellant’s motion was premised, in part, on the pleading and joinder problems that we discussed in our resolution of appellant’s first assignment of error.
{¶ 30} Summary judgment under
{¶ 31} Cross-appellant’s motion for summary judgment includes Bob Spurlock‘s affidavit wherein he attested that he and his son, Tyson, operated the fertilizer business as partners and then formed the LLC in 2005. Although the affidavit fails to explicitly state that Tyson Spurlock was not employed by the LLC, of which he was a part owner, this affidavit is sufficient to, at a minimum, carry the burden of showing that the business is an LLC rather than an independent proprietorship. The burdеn then shifted to TIG which submitted, in rebuttal, an affidavit from Robinson who attested that the business was advertised as “Spurlock Fertilizer” without any indication that it is an LLC. Although the affidavit fails to mention that the business was held out as a sole proprietorship and operated by Bob Spurlock, we agree that this is sufficient to raise a genuine issue of material fact as to corporate form. Whether the business was, in fact, operated as a limited liability compаny, or, instead, as a sole proprietorship, this is an issue that the jury must determine.
{¶ 32} Cross-appellant also contends that the defendants are entitled to judgment in their favor as a matter of law because Tyson Spurlock was not joined as a party defendant. Cross-appellant cites Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, for the proposition that a principal (a hospital) cannot be found liable under the doctrine of agency by estoppel when its agents (рhysicians working as independent contractors) were not joined in
{¶ 33} In Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 876 N.E.2d 1201, 2007-Ohio-5587, the Ohio Supreme Court declined to apply Comer to bar recovery when the complaint alleged that negligence of nurses (employees) who, apparently, were not named as parties to the action. Id. at ¶¶3, 44-45.4 Our Third District colleagues have also held that Comer did not bar holding a principal liable for an employee’s tort because the principle of respondeat superior is different than the doctrine of agency by estoppel asserted in Comer. See Holland v. Bob Evans Farms, Inc., Shelby App. 17-07-12, 2008-Ohio-1487, at ¶¶10-11. In Holland, as in the case sub judice, an “unknown employee” was joined as a defendant.5 If the trier of fact concluded that the business operated as a sole proprietorship, rather than an LLC, this would have been enough to impose liability on Spurlock, vicariously, through his son as an employee.
{¶ 34} For these reasons, we find no error in the court’s ruling that Spurlock is not entitled to judgment in his favor as a matter of law. Thus, we hereby overrule Spurlock‘s first cross-assignment of error.
VI
{¶ 35} Cross-appellant asserts in his final cross-assignment of error that the trial court erred by denying motions for a directed verdict made both at the conclusion of TIG’s case and at
{¶ 36} In considering a motion for directed verdict, a court must construe all the evidence mostly strongly in favor of the non-moving party.
{¶ 37} Robinson and his wife both testified that the business was held out to be a sole proprietorship (Spurlock’s Fertilizer), rather than an LLC or other corporate form. In fact, this is the question that the jury was asked to resolve in the first interrogatory. Although the jury rejected Robinsons’ testimony, and apparently accepted that of the Spurlocks, the fact remains that the evidence adduced at trial is sufficient to get the matter to the jury.
{¶ 38} We again note that much of the confusion surrounding this issue would nоt have occurred if TIG was permitted to amend the complaint to change the name of the company from “Bob Spurlock, d/b/a Spurlock Fertilizer” to the name of the LLC. Both the motion for summary judgment and the two motions for directed verdict were premised, in one way or another, on the failure to include the correct party as a defendant. Having ruled that it constitutes error to deny TIG’s motion to amend the complaint to includе that party, these pleading technicalities have now been largely rendered superfluous. The second cross-assignment of error is thus overruled for these reasons.
{¶ 39} Having sustained TIG’s first assignment of error, we hereby reverse the judgment
JUDGMENT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Harsha, J., Concurring:
{¶ 40} The trial court denied the motion to amend because “neither Spurlock’s Ag-Lime Fertilizer, LLC nor an ‘unknown’ Defendant was named in the original action, for Civ. R. 15 to apply, the Amended Complaint would have to be filed prior to the expiration of the appropriate statute of limitations.” This rationale is clearly erroneous. The court apparently decided the motion based upon its mistaken view of whether an amendment would relate back to the original complaint. The proper approach is to first decide whether to allow the amendment under
{¶ 41} Moreover, the analysis used here reflects a misunderstanding of
{¶ 42} Although the trial court had discretion to decide whether to allow the amendment under
It is ordered that the judgment be reversed and that the case be remanded for further proceedings consistent with this opinion. Appellants-Cross Appellees to recover costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs with Concurring Opinion
Kline, J.: Concurs in Judgment & Opinion
BY:
Peter B. Abele
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.