Vernon Schisler, Plaintiff-Appellant, v. Columbus Medical Equipment et al., Defendants-Appellees.
No. 15AP-551 (C.P.C. No. 13CV-13717)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on June 7, 2016
[Cite as Schisler v. Columbus Med. Equip., 2016-Ohio-3302.]
TYACK, J.
(REGULAR CALENDAR)
On brief: Weston Hurd LLP, Shawn W. Maestle, and John G. Farnan; Law Offices of Steven Kelley, and Cornelius J. O‘Sullivan, Jr., for appellees. Argued: John G. Farnan.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Plaintiff-appellant, Vernon Schisler, appeals the May 15, 2015 judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment and judgment on the pleadings filed by defendants-appellees, Robert Jones (“Jones“) and Columbus Medical Equipment (“CME“), and dismissing the complaint. For the reasons that follow, we affirm in part and reverse in part the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The facts of this case are undisputed. On December 12, 2011, appellant was involved in an automobile accident which allegedly caused him to suffer personal injuries. On December 20, 2013, appellant filed a complaint in the trial court naming as defendants:
COLUMBUS MEDICAL EQUIPMENT
c/o Mike Gunner, Statutory Agent
3535 Fishinger Blvd., Suite 220
Columbus, Ohio 43026and
JOHN DOE
306 East 5th Avenue
Columbus, Ohio 43201
{¶ 3} According to the complaint, “John Doe[,] an employee, agent, or apparent agent of Defendant Columbus Medical Equipment * * * operat[ed] a motor vehicle * * * in connection with his employment with Columbus Medical Equipment” and “negligently struck Mr. Schisler‘s vehicle.” (Dec. 20, 2013 Compl. at 1-2.) The complaint references two dates of the alleged accident: December 11, and December 21, 2011. (Compl. at 1.) The complaint further states that “[t]he identity of Defendant Doe could not reasonably [be] ascertained.” (Compl. at 1.) Appellant requested service of the complaint upon CME and John Doe by certified mail, and the summons accordingly issued under those names. Service of the original complaint by certified mail was completed for CME, and was completed for John Doe with the recipient signature “Carl A. Mulberry.” (Dec. 27, 2013 Proof of Service at 1.)
{¶ 4} Three days later, on December 23, 2013, appellant amended the complaint, substituting “Robert Jones” in the place of John Doe, with the same address. (Dec. 23, 2013 First Am. Compl. at 1.) The amended complaint states the date of the accident as “[o]n or about December 21, 2011.” (Am. Compl. at 1.) Appellant again requested service of the amended complaint upon CME and Robert Jones by certified mail. Service of the amended complaint by certified mail was completed with respect to both CME and Jones.
{¶ 5} On January 17, 2014, appellees answered the complaint asserting, among other defenses, insufficiency of service of the summons and complaint, failure to be properly identified, and expiration of the statutе of limitations. Seven months later, on July 9, 2014, appellee Jones answered in his response to interrogatories that he had personally left the state of Ohio from July 14-27, 2012, July 11-22, 2013, and October 3-6, 2013, and that CME “remained open for business at all of [the] aforementioned times.” (Def.‘s Answers to Pl.‘s Interrogs. at 3.)
{¶ 7} The motion for summary judgment remained pending before the trial court. On January 16, 2015, appellees filed a “Motion for Judgment on the Pleadings in Favor of Defendant Robert Jones and Renewed Motion for Summary Judgment in Favor of Columbus Medical Equipment,” arguing that the original summons did not contain the words “name unknown” and that Jones was not personally served with a copy of either the original or amended complaint under
{¶ 8} On May 15, 2015, the trial court granted appellees’ motions and dismissed the complaint. In doing so, the court ruled that appellant filed his initial complaint eight days after the two-year statute of limitation ran as it applies to CME, and, therefore, granted appellees’ motion for summary judgment in part. The court additionally found that, under
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant assigns two assignments of error for our review:
[I.] The trial court erred in granting Defendant Robert Jones’ Motion for Judgment on the Pleadings because
Civ.R. 15(D) is only applicable to dismiss a plaintiff‘s case when a plaintiff attempts to “relate back” pursuant toCiv.R. 15(C) .[II.] The trial court erred in granting Columbus Medical Equipment‘s Motion for Summary Judgment because the statute of limitations for a derivatively liable principal is the same as the аgent‘s statute of limitations.
III. DISCUSSION
A. Standard of Review
{¶ 10}
{¶ 11} When presented with a motion for judgment on the pleadings, a trial court must construe all the material allegations of the complaint as true and must draw all reasonable inferences in favor of the nonmoving party. Smith v. Ohio Dept. of Transp.,
{¶ 12} An appellate court reviews summary judgment under a de novо standard as well. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is appropriate only when the moving party demonstrates (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor.
{¶ 13} Pursuant to
B. Original Motion for Summary Judgment
{¶ 14} The bаr of the statute of limitations was not obvious from the face of either complaint. In the original motion for summary judgment appellees argued that the
C. Motion for Judgment on the Pleadings and Renewed Motion for Summary Judgment
{¶ 15} By filing both a motion for judgment on the pleadings as to appellee Jones and a renewed motion for summary judgment only as to appellee CME, appellees attempt to circumvent appellant‘s argument that both the complaint and the amended complaint were filed timely because appellee Jones was absent from the state. By filing a motion for judgment on the pleadings only with respect to appellee Jones, appellees seek to limit the court‘s consideration to the pleadings and thus require the court to determine the appeal without regard to the undisputed facts in the record that were established by means of the first motion for summary judgment; namely that both complaints were filed timely with respect to appellee Jones, and that the complaint contained an error as to the date the accident occurred. These facts are critically important in deciding whether the relation back doctrine of
{¶ 16}
{¶ 17} One important purpose of the Ohio Rules of Civil Procedure is to “effect just results by eliminating * * * impediments to the expeditious administration of justice.”
D. First Assignment of Error
{¶ 18} In his first assignment of error, appellant contends the trial court erred in dismissing appellant‘s complaint against appellee Jones based on its application of
{¶ 20}
(A) Amendments. A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-еight days after service of a motion under
Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.* * *
(C) 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. 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.
* * *
(D) 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} In analyzing
{¶ 22} Here, it appears from the record that there was initial confusion about the date of the accident. Under Ohio law, the statutory time limit to commence a personal injury claim is two years from the date the injury was incurred or discovered.
{¶ 23} However, as appellant later learned in discovery, even though the accident actually occurred on December 12, 2011, the applicable statutory time limit had not expired as to appellee Jones because he had been absent from the State of Ohio. See
{¶ 24} Cases dealing with the application of
{¶ 25} In Amerine v. Haughton Elevator Co., 42 Ohio St.3d 57 (1989), the plaintiff filed her original complaint against a company and two John Doe defendants two days before the expiration of the statute of limitations. The plaintiff later discoverеd the identity of a John Doe defendant and filed an amended complaint outside the statute of limitations. The Supreme Court of Ohio upheld dismissal of the complaint against the now identified John Doe defendant because the plaintiff failed to comply with
{¶ 26} Here, the time bar of the statute of limitations is not an issue. Appellant unquestionably filed both the original complaint and the amended complaint within the applicable statute of limitations as it applies to appellee Jones. Therefore, when appellant filed his amended complaint he did not need to invoke the relation-back provisions of
{¶ 27} Under
{¶ 28} To apply
{¶ 29} Consequently, the trial court erred by dismissing the claim against appellee Jones. Accordingly, appellant‘s first assignment of error is sustained.
E. Second Assignment of Error
{¶ 30} Appellant‘s second assignment of error asserts that the trial cоurt erred in granting CME‘s motion for summary judgment because the statute of limitations for his derivative liability claims against CME was tolled for the 27 days Jones left Ohio. We disagree.
{¶ 31} Generally, a third party injured by an employee acting within the scope of his employment may pursue damages against the employer under the doctrine of respondeat superior in addition to or instead of pursuing damages against the employee. Orebaugh v. Wal-Mart Stores, Inc., 12th Dist. No. CA2006-08-185, 2007-Ohio-4969, ¶ 13-19, citing Flagg v. Bedford, 7 Ohio St.2d 45, 47-48 (1966); Tisdale v. Toledo Hosp., 197 Ohio App.3d 316, 2012-Ohio-1110, ¶ 42 (6th Dist.). The statute of limitations that applies to the claim against the employee also applies to the derivative action against the employеr. Doe v. First United Methodist Church, 68 Ohio St.3d 531, 537 (1994). The
{¶ 32} In their motion for summary judgment, appellees pointed to evidence that both the original and amended complaint fell outside of the two-year mark from the actual date of the accident, December 12, 2011, and that CME was amenable to service of process throughout the entire statutory рeriod by being open for business and having a statutory agent. Appellant pointed to evidence that Jones left the state of Ohio from July 14-27, 2012, July 11-22, 2013, and October 3-6, 2013, and argued that those days should toll the statute of limitations for bringing a claim against CME. Because CME was amenable to service of process within the entire two-year statute of limitations period, and the complaint was filed over two years after the accident occurred, appellant‘s claim against CME is time barred. The trial court did not err in concluding the same.
{¶ 33} Accordingly, appellant‘s second assignment of error is overruled.
IV. CONCLUSION
{¶ 34} Having determined that appellant‘s first assignment of error is sustained and the second assignment of error is overruled, we affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas, and remand the matter for further proceedings in accordance with this decision.
Judgment affirmed in part, reversed in part; cause remanded
BROWN, J., concurs.
SADLER, J., concurs in part and dissents in part.
SADLER, J., concurring in part and dissenting in part.
{¶ 35} I agree with the majority that, under the second assignment of error, the trial court did not err in granting CME‘s motion for summary judgment. However, I disagree with the majority decision in determining under the first assignment of error that
{¶ 36} At the outset, I must notе disagreement with the majority‘s essential conversion of the motion for judgment on the pleadings into a motion for summary judgment. (See majority decision at 7.) Not only am I unaware of any precedent to do so, nowhere in his brief does appellant call for us to convert the motion for judgment on the pleadings into a motion for summary judgment for purposes of review. In fact, appellant provides us with the standard of review for a motion for a judgment on the pleadings and simply inserts information outside of the pleadings into his arguments without reconciling it with the limited standard of review on a motion for judgment on the pleadings. In his first assignment of error, appellant seeks only review of whether the trial court erred in granting appellee Jones’ motion for judgment on the pleadings “because
{¶ 37} Furthermore, despite the procedural nuances of this case, in my view the trial court did not err in dismissing appellant‘s complaint based on the application of
{¶ 39} I likewise disagree with the majority‘s view that
{¶ 40} Having determined that
{¶ 41} Therefore, because appellant filed an original complaint with the court that identified Jones by a fictitious name, but never corrected the name pursuant to
{¶ 42} Finally, I would not аddress appellant‘s alternative argument asserting that his amended complaint should “effectively be considered a refiling” under Goolsby v. Anderson Concrete Corp., 61 Ohio St.3d 549 (1991), and Fetterolf v. Hoffmann-LaRoche, Inc., 102 Ohio App.3d 106 (11th Dist.1995), two cases which consider
{¶ 43} Accordingly, I would overrule appellant‘s first and second assignments of error and affirm the decision of the trial court. Because the majority decision does otherwise and for the reasons stated above, I concur in part and dissent in part.