Penrose v. Ross, No. 20010943 CA.

• Court: Court of Appeals of Utah
• Writing for the Court: GREENWOOD.
• Citation: 2003 UT App 157,71 P.3d 631
• Parties: Nana G. PENROSE, Plaintiff and Appellant, v. Bryant ROSS, an individual (formerly identified as Doe 1); Christopher Ross, an individual; Does 2-5, inclusive, whose true names are not known to plaintiff, Defendants and Appellee.
• Decision Date: 22 May 2003
• Docket Number: No. 20010943 CA.

71 P.3d 631
2003 UT App 157

Nana G. PENROSE, Plaintiff and Appellant,
v.
Bryant ROSS, an individual (formerly identified as Doe 1); Christopher Ross, an individual; Does 2-5, inclusive, whose true names are not known to plaintiff, Defendants and Appellee

No. 20010943 CA.

Court of Appeals of Utah.

May 22, 2003.

71 P.3d 632

Scott N. Cunningham, Salt Lake City, for Appellant

Michael W. Wright and Richard K. Glauser, Salt Lake City, for Appellee.

Before Judges DAVIS, GREENWOOD and THORNE.

OPINION

GREENWOOD, Judge:

¶ 1 Nana Penrose (Penrose) appeals the trial court's grant of summary judgment for defendant, Bryant Ross (Ross), claiming error in the court's determination that her

71 P.3d 633

amended complaint does not properly relate back to the original complaint. We affirm

BACKGROUND

¶ 2 On November 17, 2000, just days prior to the expiration of the statute of limitations on her claim, Penrose filed a complaint for negligence (Original Complaint) against Christopher Ross (Father) and Does 1-5. In the Original Complaint, Penrose alleged that she was traveling southbound on 900 East when Father and Does 1-5 pulled out of a parking lot and hit her car. Penrose claimed that Father and Does 1-5 were negligent in: failing to pay attention to existing and changing traffic conditions; failing to look out for vehicles on the road, resulting in a traffic ticket; driving too fast; and driving and operating an automobile improperly. Penrose claimed damages from serious injuries she sustained, resulting in permanent impairment, mental anguish, sleeplessness, nausea, headaches, and dizziness. Penrose additionally sought damages exceeding $3,000 for various medical services.

¶ 3 On December 27, 2000, after the statute of limitations had run, Penrose filed an Amended Complaint, identifying Doe 1 as Ross, Father's son. Penrose's Amended Complaint names Father as the owner of the vehicle but alleges that the negligent party was Ross, who was driving the car, not Father. Aside from the change in the identity of the negligent party, all other allegations as to cause and injury remained the same as in the Original Complaint.

¶ 4 Father responded to the Original Complaint on January 2, 2001, denying significant parts.¹ Father also filed an affidavit on January 5, 2001, stating that although he was the owner of the vehicle involved in the accident, he was not the driver. Father included a copy of the police report that identified Ross as the driver of the car that collided with Penrose.

¶ 5 Ross filed a Motion for Summary Judgment, claiming the action against him was barred by the statute of limitations. Father also filed a Motion for Summary Judgment, arguing that because Penrose had amended her complaint alleging that Ross was the true driver of the vehicle, he could not be liable.

¶ 6 The trial court granted Ross's Motion for Summary Judgment, determining that the statute of limitations had run and that no identity of interest existed between Father and Ross. The trial court also granted Father's Motion for Summary Judgment, concluding that a "cause of action for negligence may not be made out solely on the basis of ownership." Penrose appeals the summary judgment granted to Ross.

ISSUE AND STANDARD OF REVIEW

¶ 7 Penrose contends that the trial court erred in granting Ross's Motion for Summary Judgment. "In considering an appeal from a grant of summary judgment, we view the facts in a light most favorable to the losing party below. And in determining whether those facts require, as a matter of law, the entry of judgment for the prevailing party below, we give no deference to the trial court's conclusions of law: those conclusions are reviewed for correctness." Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989).²

ANALYSIS

¶ 8 The traffic accident from which this suit arose occurred on November 21, 1996. Thus, the statute of limitations for Penrose's claim of negligence expired on November 21, 2000. See Utah Code Ann. § 78-12-25(3) (2002) ("An action may be brought within four years: ... for relief not otherwise provided for by law."); see also State Bank of S. Utah v. Troy Hygro Sys., 894 P.2d 1270, 1274 (Utah Ct.App.1995) (stating claims of negligence are governed by Utah Code Ann. § 78-15-25(3)). On November 17, 2000, just

71 P.3d 634

four days before the expiration of the statute of limitations, Penrose filed her Original Complaint, asserting that Father's negligent driving resulted in an accident injuring Penrose. Penrose properly filed an Amended Complaint prior to service of Father's responsive pleading. See Utah R. Civ. P. 15(a) ("A party may amend his pleading once as a matter of course at any time before a responsive pleading is served ...."). However, the Amended Complaint, filed on December 27, 2000, naming Ross as defendant Doe 1, was filed after the statute of limitations expired. Therefore, the issue before this court is whether the Amended Complaint properly relates back to the Original Complaint, thus permitting Penrose to pursue her action against Ross

¶ 9 Utah Rule of Civil Procedure 15(c) governs the relation back of amendments, stating: "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." Id. Rule 15(c) further "allows a plaintiff to cure defects in his or her original complaint despite the intervening running of a statute of limitations." Russell v. Standard Corp., 898 P.2d 263, 265 (Utah 1995). Generally, however, rule 15(c)

will not apply to an amendment which substitutes or adds new parties for those brought before the court by the original pleadings ....

There is an exception to this rule. The exception operates where there is a relation back, as to both plaintiff and defendant, when new and old parties have an identity of interest; so it can be assumed or proved the relation back is not prejudicial. The rationale underpinning this exception is one which obstructs a mechanical use of a statute of limitations; to prevent adjudication of a claim.

Doxey-Layton Co. v. Clark, 548 P.2d 902, 906 (Utah 1976) (emphasis added); see also Vina v. Jefferson Ins. Co. of N.Y., 761 P.2d 581, 586 (Utah Ct.App.1988) (applying identity of interest rule laid out in Doxey-Layton). "An identity of interest exists `when "the real parties in interest were sufficiently alerted to the proceedings, or were involved in them unofficially, from an early stage." ' " Nunez v. Albo, 2002 UT App 247,¶ 29, 53 P.3d 2 (quoting Sulzen v. Williams, 1999 UT App 76,¶ 14, 977 P.2d 497 (quoting Doxey-Layton, 548 P.2d at 906)), cert. denied, 59 P.3d 603 (Utah 2002).

¶ 10 Citing the above cases, Penrose argues that there is an "identity of interest" when the real party is alerted to the proceeding so as to avoid prejudice. Penrose reasons that it is reasonable to assume that Father told Ross he was served with a complaint asserting damages resulting from the accident involving Ross because (1) Father was served at the same residence as Ross, (2) Father knew Ross was driving his car and was in an accident, (3) Father knew he...