Cecil v. Cottrill, 92-1216

• Decision Date: 22 September 1993
• Docket Number: No. 92-1216,92-1216
• Citation: 618 N.E.2d 133,67 Ohio St.3d 367
• Parties: CECIL et al., Appellants, v. COTTRILL, Appellee.
• Court: Ohio Supreme Court

Page 367

67 Ohio St.3d 367

618 N.E.2d 133

CECIL et al., Appellants, v. COTTRILL, Appellee.

No. 92-1216.

Supreme Court of Ohio.

Submitted May 18, 1993.

Decided Sept. 22, 1993.

SYLLABUS BY THE COURT

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).

On September 5, 1987, appellant, Donna J. Cecil, was injured when the automobile she was operating was hit from behind by an automobile driven by appellee, James L. Cottrill. The accident report provided that James C. Cottrill ("James C.") was the owner of the vehicle driven by appellee at the time of the accident. James C. is appellee's father and, at all relevant times herein, appellee and James C. resided at the same address.

As a result of the accident, Donna and her husband, Robert E. Cecil, appellants, retained counsel. Thereafter, in a letter dated April 8, 1988, and specifically addressed to appellee James L. Cottrill, appellants' attorney requested that appellee, appellee's insurance company or appellee's attorney contact him to assist in the progress of a settlement and avoid litigation. Following this letter, it appears that appellants' attorney had various correspondence with appellee's insurance carrier. Specifically, in a letter dated February 17, 1989, to appellee's carrier, appellants' attorney expressed a desire to negotiate an amicable settlement with respect to the September 5, 1987 accident with "Your Insured: James L. Cottrill." (Emphasis added.) Appellants' counsel also stated that if a settlement could not be reached by September 5, 1989, appellants would be forced to file a lawsuit in order to avoid the expiration of the applicable statute of limitations.

It is apparent that an agreement was not reached. Thus, on September 5, 1989, appellants filed their original complaint naming James C. as sole defendant. However, in their complaint, appellants alleged that the "defendant" negligently operated an automobile causing the accident. Appellants sought recovery for injuries sustained by Donna, and Robert joined in the action with a claim for loss of consortium of Donna.

On September 7, 1989, appellants served upon James C., by certified mail, the original complaint. On this same date, James C. informed appellee (his son) that a lawsuit had been filed regarding the September 5, 1987 accident. Further, it appears that appellee's insurance carrier was also immediately informed of the pending action.

An answer to appellants' original complaint was not immediately filed. Rather, appellants, through counsel, reached an agreement with Gary E. Kegg, a claims supervisor with appellee's insurer, allowing an extension in which to file an answer. In a letter dated September 14, 1989, to appellants' attorney, Kegg acknowledged that a suit was filed against "Our Insured: James Cottrill." In this letter, Kegg also confirmed that the suit was filed "to protect the statute [of limitations]," and that the purpose for allowing an extension to file an answer was to facilitate negotiations and reach a settlement. Appellants' attorney responded by letter, confirming that appellants agreed to grant an extension of "indefinite duration" in which an answer could be filed.

On February 28, 1990, appellants amended their original complaint. The amended complaint was virtually identical to appellants' original complaint except that appellants reduced certain damages sustained by Donna as a result of her injuries.

On March 9, 1990, James C. filed an answer to appellants' February 28, 1990 complaint. For the most part, James C. denied the averments in the amended complaint. James C. also asserted that Donna's injuries were caused by her own negligence and that appellants failed to join all necessary parties.

Apparently sometime after appellants filed their amended complaint, appellants discovered that they had mistakenly named James C. as the defendant-driver rather than appellee, James L.--the real party in interest. Consequently, appellants sought leave to file a second amended complaint to correct this matter.

On January 8, 1991, the trial court, following a hearing, granted appellants' motion to file an amended complaint. Thereafter, the trial court dismissed James C. as a party to appellants' lawsuit.

On February 5, 1991, ¹ appellee filed his answer and defended on various grounds. Particularly, appellee set forth the affirmative defense that appellants failed to commence an action against him within the applicable statute of limitations. On this same date, appellee filed a motion requesting that the trial court strike appellants' second amended complaint and that the court dismiss appellants' entire action with prejudice. Two days later, and prior to a response by appellants, appellee's motion was granted by the trial court. The trial court essentially concluded that appellants' second amended complaint did not satisfy the requirements of Civ.R. 15(C) and that appellants failed to obtain service on appellee within the period of time required by Civ.R. 3(A).

On February 15, 1991, appellants filed a motion for relief from judgment. On March 8, 1991, the trial court granted appellants' motion, setting aside its earlier February 7, 1991 decision. However, following a hearing, the trial court reaffirmed its February 7, 1991 decision. In an entry dated May 1, 1991, the trial court adopted the reasoning in its February 7, 1991 entry and dismissed appellants' second amended complaint.

On appeal, the court of appeals affirmed the judgment of the trial court in part and reversed it in part. The court of appeals found that Donna's personal injury claim was time-barred. The court of appeals, however, concluded that Robert's consortium cause of action was properly commenced. The court determined that the consortium claim was not time-barred because that claim was not subject to the two-year limitations period set forth in R.C. 2305.10 but, instead, was subject to the four-year limitations period provided in R.C. 2305.09(D).

The cause is now before this court pursuant to the allowance of a motion and cross-motion ² to certify the record.

Allen Schulman, Jr., Canton, for appellants.

Fosson, Mann & Preston and Mark A. Preston, Chillicothe, for appellee.

PER CURIAM.

The issue presented is whether Civ.R. 15(C), read in pari materia with Civ.R. 3(A) and 15(A), allows appellants' second amended complaint, regarding Donna's personal injury claim, ³ to relate back to the time of the filing of the original complaint on September 5, 1989.

Civ.R. 15(C) provides in 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." (Emphasis added.)

Civ.R. 15(C) sets forth three requirements that must be met before an amendment relates back to the original pleading. 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.

There is no question that the first requirement of Civ.R. 15(C) has been met. In their second amended complaint, appellants sought to change only the middle initial of the defendant from James C. to James L.

The controversy in this case is whether the second and third requirements of Civ.R. 15(C) were met "within the period provided by law for commencing the action." Interpreting this language, the court of appeals held that the trial court properly determined that Donna's personal injury action was time-barred. In reaching this conclusion, the court of appeals found that Donna's cause of action was time-barred because appellee did not receive notice of the lawsuit before the expiration of the two-year limitations period set forth in R.C. 2305.10.

We do not agree with the conclusion reached by the court of appeals. As amended, Civ.R. 3(A) provides that "[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) * * *." (Emphasis added.)

By its very terms, Civ.R. 3(A) provides two conditions for commencement of a civil action. The complaint must be filed and service obtained within one year from the filing. Further, Civ.R. 3(A) must be read in pari materia with Civ.R. 15(C). Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57, 537 N.E.2d 208.

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 limitations period. ⁴ The conclusion reached by the court of appeals is a type of situation this court sought to correct when we accepted the...