Opinion
Accelerated Case No. 2000-T-0123.
October 12, 2001.
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas Case No. 99 CV 2030 ATTY. MICHAEL D. HARLAN.
ATTY. PATRICK K. WILSON, BUCKLEY GEORGE HARRINGTON, HOPPE MITCHELL,, 5704 Youngstown-Warren Road LTD., Niles, OH 44446 108 Main Avenue, S.W., #500, P.O. Box 1510, (For Plaintiff-Appellant) Warren, OH 44482-1510, (For Defendant-Appellee).
HON. WILLIAM M. O'NEILL, P.J., HON. JUDITH A. CHRISTLEY, J., HON. DIANE V. GRENDELL, J.
OPINION
Plaintiff-appellant, Mary Cross ("appellant"), appeals from the denial of her motion to amend her complaint pursuant to Civ.R. 15(C) by the Trumbull County Court of Common Pleas.
On November 5, 1997, appellant stepped on broken cement and fell through a defective porch railing. Appellant sustained serious injuries as a result. On November 4, 1999, appellant filed a complaint for premises liability against defendant-appellee, Rose Biviano ("Biviano"), alleging Biviano owned the property in Trumbull County where the fall occurred. Biviano filed a motion for a definite statement pursuant to Civ.R. 12(E). Biviano pointed out that appellant did not identify the address of the premises allegedly owned by Biviano, preventing her from responding to the complaint. Biviano also stated that the complaint did not identify appellant's status or who appellant was visiting. Biviano asked for a more definite statement or, in the alternative, that the trial court strike the complaint and dismiss the cause of action. Biviano stated she did not lease any premises to appellant or anyone appellant could have been visiting.
Appellant did not respond to Biviano's motion but instead filed a Civ.R. 15 motion to amend her complaint. Appellant asked to amend in order to name Wilmarda Land Company as the defendant. Appellant claimed she had learned through discovery that Wilmarda Land Company, and not Biviano, was the proper party defendant. On May 3, 2000, the trial court substituted Wilmarda Land Company as the named defendant for Biviano.
On May 15, 2000, Biviano filed a motion to dismiss the action. Biviano asked the trial court to overrule appellant's motion to amend, arguing Civ.R. 15(C) does not provide for the relation back of an amendment when the plaintiff is adding a party. Biviano claimed Civ.R. 15(C) did not apply when the statute of limitations had run against the proper party. Biviano argued that the statute of limitations for any claim against Wilmarda Land Company expired on November 5, 1999. Biviano asserted that the claim against Wilmarda Land Company did not comply with Civ.R. 15(C) because that rule requires commencement of the action within the time period provided by law.
Appellant's counsel countered in her brief by contending Civ.R. 15(C) provides for the relation back of an amendment when a party is being added or substituted, even when the statute of limitations has expired. In her brief, appellant stated she had good reason to believe Biviano owned the property because the person she was visiting paid rent to Biviano. Further, the address of the premises is not a valid street address used by the Trumbull County Recorder. The brief stated appellant learned during discovery that the land may be titled to the Wilmarda Land Company. Appellant contended Biviano was the de facto agent of the Wilmarda Land Company because she collects rents from the tenants and her sons are listed as contact persons with the Secretary of State for Ohio. Appellant maintained that, due to Biviano's close contact with Wilmarda Land Company, the substitution would not result in any prejudice to the new defendant. Further, the Wilmarda Land Company should have known that, but for the mistake in the identity of the proper party, the action would have been brought against it. Appellant's counsel attached no evidence to support the facts set forth in the brief. Appellant did not object to or question Biviano's standing to advance arguments regarding the issue of whether the Wilmarda Land Company should be substituted as the defendant in the action.
In her reply brief, Biviano stated she did not receive service of the complaint until November 17, 1999, or after the statute of limitations expired. Therefore, even if the Wilmarda Land Company had notice on that date, it still was too late for the purposes of Civ.R. 15(C).
On September 8, 2000, the trial court denied appellant's motion to amend and dismissed the complaint. The trial court found that service was perfected on Biviano after the statute of limitations had run. The trial court determined that Civ.R. 15(C) does not allow relation back as to new parties who were unaware of the action prior to the statute of limitations running.
Appellant has raised one assignment of error for this court's consideration:
"The trial court erred when it granted defendant-appellee's motion to dismiss and found that Civil Rule 15(C) did not allow amendment of the complaint to substitute the named defendant to relate back to the original filing date of the complaint pursuant to Civil Rule 15(C) when the original complaint was filed within the applicable statute of limitations but the improper party defendant did not receive service of process until after the statute of limitations had expired."
Before discussing appellant's specific issues, we must address the unusual procedural posture of this case. While appellant did not object to Biviano's standing to move or advance arguments in behalf of Wilmarda Land Company or raise this standing issue on appeal, this court cannot ignore the issue of standing (or lack thereof) in this case. The trial court should not have considered, let alone granted, non-party Biviano's motion to dismiss. Biviano had no standing to advance Wilmarda Land Company's motion, rights, or arguments. Allowing a non-party (Biviano had been dismissed as a party) to raise defenses by motion for a party who had not yet been served (Wilmarda Land Company) is plain error. See Voltz v. Manor Care Nursing Home (Mar. 31, 1999), Lake App. No. 98-L- 103, 1999 Ohio App. LEXIS 1435.
As to appellant's sole assignment of error, appellant contends the trial court abused its discretion by dismissing her complaint. Appellant asserts the trial court incorrectly assumed that Wilmarda Land Company did not have notice of the institution of the action prior to the expiration of the statute of limitations when, in fact, there was no evidence in the record pertaining to this issue. Appellant argues the trial court was required to base its ruling on facts presented to it by Wilmarda Land Company, and not Biviano, regarding when Wilmarda first learned of the commencement of the suit. Appellant maintains that Civ.R. 15(C) does not require that the substituted party receive notice of the filing of the lawsuit prior to the expiration of the statute of limitations.
The trial court's decision regarding a motion to amend a complaint is reviewed under an abuse of discretion standard. Patterson v. V M Auto Body (1992), 63 Ohio St.3d 573. An abuse of discretion connotes more than an error of law or judgment; rather it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122.
Civ.R. 15(C) governs the substitution of a proper party for one previously misidentified in the original complaint. Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627. Civ.R. 15(C) provides, in pertinent part:
"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."
Civ.R. 15(C) sets forth three requirements which must be met before an amendment relates back to the original pleading. First, the amended complaint must arise from the same events supporting the original complaint. Second, the party sought to be substituted by the amendment must receive notice of the action within the period provided by law so that the party is able to maintain a defense. Third, the new party, within the period provided by law for commencing the action, must have or should have known that, but for a mistake concerning the proper party's identity, the action would have been brought against the new party. Cecil v. Cottrill (1993), 67 Ohio St.3d 367.
Appellant is seeking to substitute the new defendant based upon the same facts as in the original complaint. Therefore, she has met the first requirement. In deciding whether appellant's motion to amend complied with the second and third requirements, it must be determined what the phrase "within the period provided by law for commencing the action" means. In Cecil, supra, the court stated that Civ.R. 15(C) must be read in pari materia with Civ.R. 3(A).
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 an incorrectly named defendant whose name is later corrected pursuant to Rule 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Rule 15(D)."
In applying both Civ.R. 3(A) and Civ.R. 15(C), a plaintiff may, within one year of the filing of a complaint, amend the complaint to name the correct defendant. The amended complaint must be served upon the correct defendant within one year of the filing of the complaint. The time period provided for by law includes the one year allowed for service in Civ.R. 3(A). See Walker v. Leis (Apr. 19, 1995), Hamilton App. No. C-940258, unreported, 1995 Ohio App. LEXIS 1592. As stated in Cecil, supra, at 370:
"If we were to accept the conclusion reached by the court of appeals, we would create an anomalous situation in that an accurately named defendant may be served up to one year after the limitations period has expired but a misnamed defendant must receive notice prior to the running of the statute of limitations period."
An amended complaint will relate back to the filing of the original complaint even if the plaintiff perfects service of the original complaint after the statute of limitations has expired. Megginson v. Song (Dec. 15, 1995), Scioto App. No. 95 CA 2337, unreported, 1995 Ohio App. LEXIS 5680. The substituted party receives timely notice of the suit if served prior to the expiration of the one year provided for in Civ.R. 3(A). Id. Appellant filed her motion to amend well within one year of the filing of the complaint. She complied with the second requirement set forth in Cecil. The trial court's erroneous denial of her motion to amend precluded the completion of the sevice of the amended complaint on the correct defendant.
Lastly, appellant had to show that Wilmarda Land Company, within the period provided by law, knew or should have known that, but for the mistake concerning the owner of the property, the complaint would have been filed against it. A mistake includes incorrectly identifying a party. Sims v. Agosta (Jan. 29, 1996), Fairfield App. No. 95-CA-0019, unreported, 1996 Ohio App. LEXIS 697.
Again, had the trial court allowed appellant the opportunity to amend the complaint, as moved by appellant, Wilmarda Land Company would have known that but for the mistake concerning property ownership, the complaint would have been filed against it, because the amended complaint would have been filed against Willmarda Land Company, within the period provided by law.
The dissent maintains that the operative time for satisfying the third requirement of Civ.R. 15(C) that the substituted party must know or should have known that the lawsuit would have been brought against it but for a misnamed original party is "at the time the original complaint was filed and served." This position conflicts with the express ruling by the Supreme Court of Ohio in Cecil. The Supreme Court of Ohio, in Cecil, stated that this third requirement must be satisfied "within the same period as provided in the second requirement." Cecil, supra, 67 Ohio St.3d at 370. As discussed above, that "same period" is within one year after the filing of a complaint, provided that complaint is filed within the applicable statute of limitations.
This case is similar to Cecil. In Cecil, as in this case, the trial court ruled that Civ.R. 15(C) does not allow relation back as to new parties who were unaware of the action prior to the statute of limitations running. The Supreme Court of Ohio in Cecil held that Civ.R. 15(C) must be read in pari materia with Civ.R. 3(A) and Civ.R. 15(A). We agree. Based on Cecil, the lower court's ruling is incorrect. The spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading deficiencies. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175. Decisions on the merits should not be avoided on the basis of mere technicalities. Conley v. Gibson (1957), 355 U.S. 41, 48.
The dissent opines that Cecil does not support the majority's conclusion in this case. Cecil expands the time frame for relating back to include the one year service period provided by Civ.R. 3(A). This one-year extension applies to the second and third prongs of the Cecil analysis. Cecil is relevant because it recognizes that extra time period for service upon Wilmarda Land Company, which service could have and most likely would have occurred during that period had the trial court not denied appellant's motion to amend to bring Wilmarda Land Company into this case.
For these reasons, we believe that the second and third requirements of Civ.R. 15(C) have been met. This case warrants application of the general recommendation in Civ.R. 15(A) that "leave of court [to amend] shall be freely given when justice so requires."
Accordingly, appellant's assignment of error is sustained. The dismissal ruling of the trial court is reversed and this matter is remanded with instructions that Wilmarda Land Company remain as the defendant herein and that appellant serve a copy of the amended complaint on Wilmarda Land Company within thirty days from the date of this decision.
JUDGE DIANE V. GRENDELL, O'NEILL, P.J., concurs, CHRISTLEY, J., dissents with Dissenting Opinion.
For the reasons that follow, I respectfully dissent from the majority's decision that it was error for the trial court to dismiss appellant's complaint.
As a preliminary matter, I would also like to comment on the fact that appellee lacked standing to move for the dismissal of the Wilmarda Land Company. The record shows that appellant filed her motion to amend the complaint to add the Wilmarda Land Company in place of appellee. Presumably, the stated basis for this motion was that the Wilmarda Land Company was the actual owner of the property. The trial court, in a judgment entry dated May 3, 2000, granted appellant's motion and presumably in doing so, dismissed appellee from the suit. Nevertheless, appellee was somehow allowed to reenter the litigation by filing a motion to dismiss.
In this motion, appellee essentially presented arguments that should have been proffered by a representative of the Wilmarda Land Company. For instance, appellee argued that the statute of limitations for any claim against the Wilmarda Land Company had expired, and that the company should not be brought in as a substitute party because the requirements of Civ.R. 15(C) had not been satisfied.
It is axiomatic that the doctrine of standing requires a litigant to present claims and arguments concerning the violation of his or her own rights and not those of a third party. Sky Financial Group, Inc. v. Mogul (June 1, 2001), Trumbull App. No. 2000-T-0038, unreported, 2001 Ohio App. LEXIS 2480, at 8-9, citing Warth v. Seldin (1975), 422 U.S. 490, 499. In her brief to this court, appellee acknowledged that "there was no relationship between [herself] and the Wilmarda Land Company ***." (Emphasis added.) As such, there was absolutely no reason for appellee to be asserting the rights of the Wilmarda Land Company in her motion to dismiss.
Procedurally, we then have the fascinating situation where an added party, who has never been served and never had counsel designated, being defended by a dismissed party. It gets better when no one objects to this bizarre representation, and appellant fails to raise or argue this issue on appeal. Of course, the Wilmarda Land Company is not going to object at any point. As a result, while the trial court should not have considered this motion to dismiss, plain error did not result as the majority suggests.
Plain error results from a void judgment, as opposed to a voidable judgment. "[A] judgment that is tainted with an error of law, making it valid although subject to reversal on appeal, would be voidable." Old Meadow Harm Co. v. Petrowski (Mar. 2, 2001), Geauga App. No. 2000-G-2265, unreported, 2001 WL 209066, at 2, fn. 2. In contrast, a judgment is void when it has no legal effect. "For example, `a judgment based on a proceeding in which the court lacked jurisdiction over the person *** or jurisdiction over the subject matter of the action[,]' would be void." Id.
In the instant matter, the trial court should not have considered appellee's motion to dismiss because she had no standing to advance such arguments. This, however, did not render the court's ultimate judgment void. Rather, the trial court's judgment is voidable as it dismissed appellant's case for the wrong reasons.
I note that if no other valid reason existed for dismissing Wilmarda Land Company, this would have been a void judgment as it pertained to the company.
As to the merits of the proposed amendment by appellant, she certainly had standing to attempt to amend her complaint by adding the Wilmarda Land Company as the named defendant. However, for the following reasons, I believe that the trial court, in effect, properly denied appellant's motion to amend the complaint.
There are generally two instances contemplated when a complaint can be amended to change a party. The first is when a totally new defendant is being added or joined. Civ.R. 20 and 21. Under those circumstances, a new defendant may be able to assert a statute of limitations defense if there is no provision for a relation back to the original filing of the complaint when a new defendant is added or joined. Picciuto v. Lucas Cty. Bd. of Commsrs. (1990), 69 Ohio App.3d 789.
The second instance is when the correct defendant is known but is wrongly named or wrongly served with the original complaint. The process now becomes one of substitution, not addition. The substitution is the mere renaming or serving of the same defendant but by the correct designation. In general, Civ.R. 15(C) applies to the substitution of a proper party for one previously misidentified in the original complaint. Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, paragraph one of the syllabus. It is only this latter situation which, under Civ.R. 15(C), is allowed to relate back to the original complaint. Further, it is the obligation of the party seeking the amendment under Civ.R. 15(C) to demonstrate to the court that the situation is the latter and not the former. Mere allegations will not suffice.
In Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 370, the Supreme Court of Ohio reaffirmed the three requirements that must be met under Civ.R. 15(C) before an amended complaint with a substituted defendant can relate back to the original complaint:
"First, the amended complaint must arise from the same events which support the original complaint. Second, the party `brought in' by the amendment must receive, ` within the period provided by law for commencing the action,' such notice of the action that the party is able to maintain a defense. Third, within the same period as provided in the second requirement, the new party must have or should have known that but for a mistake concerning the proper party's identity, the action would have been brought against the new party." (Emphasis added.)
The critical holding in Cecil was that the time frame for the relation back of a party could be expanded by Civ.R. 3(A)'s one year allowance for service:
"The language, `within the period provided by law for commencing the action,' as used in Civ.R. 15(C), includes the time for service allowed by Civ.R. 3(A)." Cecil at syllabus.
Thus, the instant trial court was incorrect in its reasoning when it determined that the Wilmarda Land Company was untimely named because the statute of limitations had run. Appellant could have filed during that extra year now allowed per Cecil. However, the court's error is nonprejudicial because even if the filing had been allowed to take place, Wilmarda Land Company was never qualified as a proper substitute for appellee in the first place under Civ.R. 15(C). Regardless, the end result is the same in that the Wilmarda Land Company is not a defendant anymore.
It is the above point on which I disagree with the majority; to-wit: was the third element of Civ.R. 15(C) satisfied? In the instant matter, the original complaint improperly named and served appellee instead of the Wilmarda Land Company. To cure this defect, appellant filed a motion to amend her complaint after the statute of limitations had run, but before the one year for service under Civ.R. 3(A) had expired. Pursuant to Cecil, appellant could do so if her claim was one of substitution and not joinder or addition. Unfortunately, her sole claim was that the Wilmarda Land Company was the real owner, not appellee. There was no allegation in her motion that appellee and the Wilmarda Land Company were one and the same, or that an agency relationship existed. Hence, it was clear that her original intent was to add or join a new defendant, not to substitute for an old defendant. As a result, the motion to amend was initially a motion to add or join a new party defendant; therefore, per Civ.R. 15(C), it could not relate back. It was not until appellee filed her motion to dismiss that appellant responded by claiming that she was substituting and not adding a party defendant.
Further, even if this had been a proper motion to substitute, in order to relate back, appellant still had to satisfy all three requirements of Civ.R. 15(C). Insofar as the first and second requirements of Civ.R. 15(C) are concerned, I concur with the majority that these elements have been met pursuant to Cecil. However, as previously indicated appellant failed to satisfy the third requirement. No evidence was ever provided to demonstrate that the Wilmarda Land Company knew or should have known, at the time the original complaint was filed, that the lawsuit would have been brought against it, but for the misnaming of appellee as the defendant. Here is the heart of this dissent.
In its analysis, I believe the majority misconstrues the third requirement of Civ.R. 15(C). The majority seems to suggest that had the trial court permitted appellant to amend her complaint, then the Wilmarda Land Company would have known that, but for the mistake, the complaint would have been filed against it because it would now be aware of the amended complaint. Their point being, I believe, that the Wilmarda Land Company would have been brought into the lawsuit within the one year of service now allowed under Cecil.
The issue, however, is not whether the Wilmarda Land Company would know about the suit as a result of a newly filed amended complaint within the newly allotted time. The issue is that I believe Cecil can only be interpreted the following way: the third condition of Civ.R. 15(C) requires appellant to show that at the time the original complaint was filed, the Wilmarda Land Company knew or should have known that the lawsuit would have been filed against it but for the misnaming of appellee as the defendant. As to this point, the Supreme Court of Ohio acknowledged that during the time in which the original complaint could have been filed, the plaintiff's attorney sent a letter to the substituted party defendant in an effort to settle the matter and avoid litigation. Hence, the substituted party defendant had knowledge of the lawsuit. Cecil at 371-372.
Cecil simply allows one extra year for the motion to amend to be made. It does not extend the statute of limitations. Instead, appellant had to demonstrate the date and degree of knowledge of the party sought to be substituted. Specifically, at the time the complaint was filed, did Wilmarda Land Company know of the lawsuit?
As previously indicated, there was absolutely no evidence attached to appellant's motion to amend or in the record to show that at the time the original complaint was filed, the Wilmarda Land Company knew or should have known that the lawsuit had mistakenly named appellee instead of the company.
Further, appellant's motion to amend alleged no relationship from which such knowledge could be imputed between the Wilmarda Land Company and appellee. It was not until her response to appellee's motion to dismiss that appellant first claimed appellee was a de facto agent if not the actual owner or part-owner of the Wilmarda Land Company. Even then, she included no evidential submissions.
As the party seeking to amend her complaint, appellant had the burden to demonstrate that a relationship existed between appellee and the Wilmarda Land Company, and that at the time the complaint was filed, Wilmarda Land Company knew of the suit. Consequently, appellant failed to demonstrate that the third requirement of Civ.R. 15(C) was met. See, e.g., Kosa v. Pruchinsky (1992), 82 Ohio App.3d 649, 653-654 (holding that knowledge of a lawsuit could not be imputed to a corporation based on service of the complaint on the defendant when there is no evidence to indicate that the defendant was served as an agent of the corporation). See, generally, Kocis v. Chorba (Mar. 31, 1999), Ottawa App. No. OT-98-033, unreported, 1999 WL 173638, at 2; Christian Medicine v. Sobotka (Jan. 10, 1996), Lorain App. No. 95CA006101, unreported, 1996 WL 12004, at 3 (holding that it is proper for a trial court to deny a motion to amend a complaint when the record is devoid of any evidence showing compliance with Civ.R. 15(C)).
Finally, I want to reiterate my disagreement with the majority's claim that Cecil stands for the conclusion that the statute of limitations is extended by one year. Instead, Cecil merely stands for the proposition that the time frame for a substituted party to relate back has been expanded to include the one year time for service allowed under Civ.R. 3(A). Cecil at syllabus. In other words, Cecil simply allows an additional year in which to file an amended complaint. It does not impact the requirement that the substituted party must have or should have known of the lawsuit at the time the complaint was filed. As a result, I believe that Cecil is actually irrelevant except as it pertains to the additional one year service allowance per Civ.R. 3(A).
Therefore, I respectfully dissent. Albeit for the wrong reasons, the trial court correctly denied appellant's motion to amend the complaint and correctly dismissed the action in its entirety.