Patterson v. V & M Auto Body, 91-552

Citation589 N.E.2d 1306,63 Ohio St.3d 573
Decision Date06 May 1992
Docket NumberNo. 91-552,91-552
CourtUnited States State Supreme Court of Ohio
PartiesPATTERSON, Appellant, v. V & M AUTO BODY, Appellee.

Page 573

63 Ohio St.3d 573
589 N.E.2d 1306
PATTERSON, Appellant,
v.
V & M AUTO BODY, Appellee.
No. 91-552.
Supreme Court of Ohio.
Submitted Feb. 11, 1992.
Decided May 6, 1992.

[589 N.E.2d 1307] On October 23, 1987, Frederick Patterson, plaintiff-appellant herein, was in a vehicular accident. His 1979 Chevrolet van was later broken into at V & M Auto Body, defendant-appellee, in Girard, Ohio. The car was being stored,

Page 574

awaiting repair. Some items were stolen and others damaged. Plaintiff brought suit in the Girard Municipal Court against V & M Auto Body, seeking damages.

The complaint and summons were served on June 2, 1988 and defendant filed a general denial on July 28, 1988. Subsequently defendant sought leave to amend its answer and on February 16, 1989 an amended answer was filed. This answer specifically set forth the defense that defendant lacked the capacity to be sued. A second amended answer, setting forth the same defense, was sought to be filed on June 13, 1989. Although the trial court did not grant leave to file the second amended answer, the motion and second amended answer were served on plaintiff. At no time prior to or during trial did plaintiff move to amend his complaint.

The evidence at trial disclosed that V & M Auto Body was a sole proprietorship owned by Victor Searfoss. Defendant moved to dismiss after plaintiff rested, again asserting defendant's incapacity to be sued. The trial court overruled the motion, and the jury returned a verdict for plaintiff in the amount of $750. Defendant appealed, assigning as error the failure of the trial court to sustain its motion to dismiss. The Court of Appeals for Trumbull County held that, inasmuch as V & M Auto Body was an entity without real or legal existence, the lawsuit had never been properly commenced. Defendant's proper remedy was therefore not a motion to dismiss but a motion to strike, and if plaintiff did not move to amend his complaint, the trial court should have stricken the action sua sponte from its docket.

[589 N.E.2d 1308] The cause is now before this court on the allowance of a motion to certify the record.

Joan L. Turner, Youngstown, for appellant.

Richards & Meola, Charles L. Richards and Jeffrey V. Goodman, Warren, for appellee.

HERBERT R. BROWN, Justice.

In this case we are asked to decide whether a lawsuit may be knowingly maintained against a defendant solely under the fictitious name in which the defendant does business. For the following reasons, we hold that it may not.

It is well established that both plaintiff and defendant in a lawsuit must be legal entities with the capacity to be sued. Cf. Civ.R. 17(B); Barnhart v. Schultz (1978), 53 Ohio St.2d 59, 61, 7 O.O.3d 142, 143, 372 N.E.2d 589, 591, overruled on other grounds, Baker v. McKnight (1983), 4 Ohio St.3d 125, 4 OBR 371, 447 N.E.2d 104. A sole proprietorship has no legal identity separate

Page 575

from that of the individual who owns it. It may do business under a fictitious name if it chooses, but " * * * [d]oing business under another name does not create an entity distinct from the person operating the business. The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations. * * * " Duval v. Midwest Auto City, Inc. (D.Neb.1977), 425 F.Supp. 1381, 1387. The proper defendant in this case was Victor Searfoss, doing business as V & M Auto Body.

The Ohio Rules of Civil Procedure provide for liberal amendment of pleadings, under certain circumstances as of right, otherwise by leave of court. Leave of court "shall be freely given when justice so requires. * * * " Civ.R. 15(A). Amendments to claims or defenses ordinarily relate back to the date of the filing of the original pleading and an amendment to the parties will also relate back to the original complaint if "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."...

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    • September 27, 2019
    ...at trial, after trial and before judgment, after judgment, and even after an affirmance on appeal. Patterson v. V & M Auto Body , 63 Ohio St.3d 573, 589 N.E.2d 1306, fn. 1 (1992). It reiterated: "The timeliness of the motion is defined by the reasonable diligence of the moving party and any......
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    ...a sole proprietorship has no legal identity separate from that of the individual who owns it. See, e.g., Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 574–575, 589 N.E.2d 1306 (1992). David Childs and/or his sole proprietorship (Management Services Company) were said to be managing Holan......
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    ...business under another name does not create an entity distinct from the person operating the business. Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 574–575, 589 N.E.2d 1306 (1992). As the Ohio Supreme Court explained in Patterson:A sole proprietorship has no legal identity separate from......
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