Harris v. Firelands Regional Med. Ctr. , 2018 Ohio 3085 ( 2018 )

[Cite as Harris v. Firelands Regional Med. Ctr., 2018-Ohio-3085.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Akeeba Harris Court of Appeals No. E-17-053
Appellant Trial Court No. 2016-CV-0268
v.
Firelands Regional Medical Center, et al. DECISION AND JUDGMENT
Appellees Decided: August 3, 2018
*****
Geoffrey L. Oglesby, for appellant.
Chad M. Thompson and Kayla L. Henderson,
for appellees, Mercy Health-St. Charles Hospital, LLC,
Alex R. Andray, RN-C, and David W. Wall, BHT.
*****
MAYLE, P.J.
{¶ 1} Plaintiff-appellant, Akeeba Harris, appeals the August 15, 2017 judgment of
the Erie County Court of Common Pleas granting summary judgment in favor of
defendants-appellees, Mercy Health—St. Charles, LLC (“Mercy”), Alex R. Andray, and
David W. Ball. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} Very few facts are necessary to an understanding of the issues presented in
this appeal. Briefly stated, Akeeba Harris called for medical help on May 26, 2015, after
experiencing three days of sleeplessness and a severe headache. She was transported by
ambulance to Firelands Regional Medical Center (“Firelands”), and then to Mercy St.
Charles Hospital. Harris, who suffers from bipolar disorder, was ultimately admitted to
Mercy’s behavioral health unit. Shortly after her admission, early in the morning of
May 27, 2015, she suffered a foot fracture. Harris filed a complaint for medical
malpractice and negligence on April 13, 2016, naming the following defendants:
Drs. And Nurses John and Jane Doe,
Doctors and Nurses
Real names cannot be determined without the Court’s discovery
Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter
c/o Firelands Regional Medical Center
and
Drs. And Nurses John and Jane Doe,
Doctors and Nurses
Real names cannot be determined without the Court’s discovery
2.
Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter
c/o Mercy St. Charles Hospital
{¶ 3} While Harris captioned her complaint against the John and Jane Doe nurses
and doctors “c/o” Firelands and Mercy, she did not specifically name Mercy or Firelands
as defendants. In fact, she identified no specific care providers until August 17, 2016,
when, with leave of court, she filed an amended complaint.1 At that time she named as
defendants Mercy, Alex R. Andray, R.N., and David W. Ball, “technician” (“the Mercy
defendants”), and Firelands. She filed a second amended complaint on January 11, 2017,
adding a fifth defendant, North Central EMS, the ambulance service that transported
Harris to the hospital.2
{¶ 4} “The Unidentified Mercy Defendants” answered the original complaint,3 and
Mercy, Andray, and Ball answered the amended complaint. They asserted among their
1
The magistrate’s order, journalized on June 17, 2016, provided that “Plaintiff is given
leave to amend the Complaint for purposes of confirming the identity of the proper
Plaintiff (If Plaintiff has a legal guardian) and to identify the John and Jane Doe
physician and nurses. Such leave given until August 19, 2016.”
2
North Central EMS is not a party to this appeal.
3
The answer of “Drs. And Nurses John and Jane Doe, Doctors and Nurses, Who Treated
Plaintiff Prior To, On or About May 26, 2015 and Thereafter c/o Mercy St. Charles
Hospital” included a footnote stating:
To date, this is how Plaintiff has described and identified the second
defendant(s) in this case. Without waiving any objection regarding
Plaintiff’s use and identification of this second defendant(s), the
undersigned will use Plaintiff’s description for purposes of answering the
specific claims set forth in the Complaint.
3.
defenses that Harris failed to comply with Civ.R. 15(D), which sets forth the procedure
for naming unknown defendants, and that her claims were barred by the statute of
limitations. The Mercy defendants also claimed that Harris “failed to properly identify
and name one or more of the Mercy Defendants” and “failed to perform sufficient
process and/or sufficient service of process upon one or more of the Mercy Defendants.”4
{¶ 5} The case progressed and the parties offered different theories for the cause of
Harris’ foot fracture. Harris claimed that it occurred when Andray and Ball threw her
onto a bed to restrain her; the Mercy defendants claimed that it occurred when Harris
kicked and punched at the doors and walls of her room during one of several violent
outbursts she exhibited while being treated that evening.5
{¶ 6} Harris and the Mercy defendants filed motions for summary judgment on
March 30, and March 31, 2017, respectively. Harris moved on the issue of liability. She
claimed that regardless of whose version of events was accurate, it is undisputed that the
injury occurred at Mercy. She maintained that because she had suffered a “psychotic
4
Firelands also filed an answer. Harris eventually dismissed her claims against it after
admitting that her alleged injuries were not sustained at Firelands. In fact, Harris testified
at her January 13, 2017 deposition: “No question, I know [the injury] didn’t happen at
Firelands.” Her mother testified similarly: “[L]ike I told [plaintiff’s counsel] months
ago, almost a year, that it did not happen at Firelands.” Given this information, it is not
clear why plaintiff’s counsel pursued a claim against Firelands.
5
This synopsis of the Mercy defendants’ theory of the case is taken from a quote of
“Defense Expert Report P.5,” contained in Harris’ motion for summary judgment. The
defense-expert report itself is not contained in the record.
4.
break” and was under Mercy’s care at the time of her injury, the Mercy defendants owed
a duty to her—either to protect her from the staff or to protect her from self-inflicted
injury. She contended that either way, the Mercy defendants violated a duty to her, and
she was, therefore, entitled to summary judgment. Harris also insisted that her claim was
not a “medical claim” requiring expert testimony, and she claimed that the doctrine of res
ipsa loquitur absolved her of the obligation to support her claim with any evidence
beyond the fact that the injury occurred.
{¶ 7} The Mercy defendants claimed in their summary-judgment motion that
Harris’ complaint was barred by the statute of limitations because (1) she failed to satisfy
Civ.R. 15(D)’s requirements for using fictitious designations, and (2) Mercy was not
designated as a defendant in the original complaint, therefore, her amended complaint
against the hospital did not relate back to the date of the original complaint under Civ.R.
15(C).
{¶ 8} In a judgment entry dated August 15, 2017, the trial court denied Harris’
summary-judgment motion and granted summary judgment to the Mercy defendants.
{¶ 9} As to Harris’ motion, the trial court concluded that Harris’ claim was a
medical claim requiring expert testimony as to the standard of care, breach of the
standard of care, and injury proximately caused by breach of the standard of care. It
found that Harris’ motion was supported only by argument of counsel without citation to
the evidentiary record, let alone expert testimony. In other words, Harris’ motion lacked
5.
proper evidentiary support under Civ.R. 56(C). The court also found that despite Harris’
contention to the contrary, Harris herself created a disputed issue of fact as to where she
sustained her injury by also filing claims against Firelands and North Central EMS.
{¶ 10} The court also found that Harris could not rely on the theory of res ipsa
loquitur to support her motion for summary judgment because (1) res ipsa loquitur
creates only a permissible inference for the jury and cannot be used to support a
summary-judgment motion; and (2) Harris wholly failed to establish the two prerequisites
necessary for its application: that the instrumentality causing the injury was under the
exclusive management and control of the defendant when the injury occurred, and the
injury occurred under circumstances that would not have occurred if ordinary care had
been used.
{¶ 11} The trial court granted summary judgment to the Mercy defendants. It
began by recognizing that because Harris’ claim was a “medical claim,” the one-year
statute of limitations set forth in R.C. 2305.113 applied. Assuming that Harris’ injury
was sustained in the early-morning hours of May 27, 2015, the court determined that
Harris was required to file her claim by May 27, 2016. The court observed that while
Harris’ initial complaint was timely-filed on April 13, 2016, it failed to name Mercy as a
defendant. Therefore, when Harris filed her amended complaint on August 17, 2016, the
complaint did not “relate back” to the date of the original complaint under Civ.R. 15(C).
6.
{¶ 12} As to Harris’ claims against Andray and Ball, the court found that she
could not rely on Civ.R. 15(D) to preserve the statute of limitations because (1) she could
not in good faith say that she did not know their names given that they appear in the
Mercy chart over 30 times, and Harris and her legal guardian had obtained those records
before filing her complaint; (2) even if she did not know their names, she did not describe
their identities in her original complaint in the manner required by Civ.R. 15(D); and (3)
Harris did not comply with other Civ.R. 15(D) requirements in that she failed to aver that
she could not discover Andray and Ball’s names, failed to include the words “name
unknown” in the summons, and failed to personally serve Andray and Ball with the
summons.
{¶ 13} Harris appealed the trial court’s decision, and assigns the following errors
for our review:
Assignment of Error No. I
WHEN LEAVE OF COURT GIVES THE PLAINTIFF UNTIL A DATE CERTAIN TO
AMEND THE NAMES IN THE COMPLAINT, A DEFENDANT CANNOT GET
SUMMARY JUDGMENT ON BEING OUTSIDE THE STATUTE OF LIMITATIONS FOR
TIMELY FILING AND NAMING DEFENDANTS.
Sub-Assignment of Error No. I
SUMMARY JUDGMENT WAS IMPROPER REGARDLESS OF THE LEAVE OF
COURT.
7.
Assignment of Error No. III [sic]
SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY SHOULD HAVE BEEN
GRANTED IN FAVOR OF THE PLAINTIFF.
II. Standard of Review
{¶ 14} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App. 3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St. 2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 15} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St. 3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St. 3d 280, 293,
8.
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St. 3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App. 3d 817, 826,
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 201 (1986).
III. Law and Analysis
{¶ 16} In her first assignment of error, Harris argues that because the trial court
granted her leave to file an amended complaint, this effectively extended the statute of
limitations, thereby rendering her claims timely-filed. In a “sub-assignment of error,”
Harris argues that her amended complaint related back to the date of her original
complaint under Civ.R. 15(C) and (D), and was, therefore, timely-filed. And in her third
assignment of error, Harris argues that the trial court erred in denying her motion for
summary judgment. We address Harris’ arguments out of order.
A. Harris did not properly invoke Civ.R. 15(D).
{¶ 17} In her original complaint, filed before the statute of limitations expired,
Harris asserted claims against “Drs. And Nurses John and Jane Doe,” claiming that the
9.
defendants’ real names could not be determined without conducting discovery. After the
statute of limitations expired, with leave of court, she amended her complaint to
substitute Andray and Ball for the fictitiously-named defendants. The trial court
dismissed Harris’ claims against Andray and Ball, finding that Harris (1) knew or should
have known Andray and Ball’s names, and (2) failed to follow the procedure set forth in
Civ.R. 15(D) for filing claims against defendants whose names are unknown. Harris
claims that this was error.
{¶ 18} Civ.R. 15(D) describes the process for filing suit when the name of the
defendant is 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.
{¶ 19} If a plaintiff files her complaint within the applicable statute of limitations
and follows the specific requirements of Civ.R. 15(D), an amended complaint
substituting the fictitious names with the real names of the defendants will relate back to
10.
the time of the original filing of the action. Laneve v. Atlas Recycling, 119 Ohio St. 3d
324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 11.
{¶ 20} Importantly, however, “Civ.R. 15(D) does not permit a plaintiff to
designate a defendant by a fictitious name when the plaintiff actually knows the name of
that defendant.” Erwin v. Bryan, 125 Ohio St. 3d 519, 2010-Ohio-2202, 929 N.E.2d
1019, ¶ 23. Rather, “Civ.R. 15(D) applies only when the plaintiff has identified but does
not know the actual name of the defendant.” Id. at ¶ 25. What is more, the Ohio
Supreme Court has recognized that a plaintiff who believes she is a victim of malpractice
has a duty to investigate and discover the identity of the practitioner who committed the
alleged malpractice. Flowers v. Walker, 63 Ohio St. 3d 546, 550, 589 N.E.2d 1284
(1992). Once a malpractice claim has accrued, “the failure of the plaintiff to learn the
identity of an allegedly negligent party does not delay the running of the statute of
limitations.” Erwin at ¶ 26. Civ.R. 15(D) does not relieve a plaintiff of the duty to learn
the allegedly negligent party’s name, nor does it operate to extend the applicable statute
of limitations when a plaintiff has failed to timely identify the culpable parties. Id. at ¶
27.
{¶ 21} Harris and her mother were both deposed in this case. It is clear from their
testimony that they immediately believed that Harris had been the victim of malpractice,
and they were aware on May 27, 2015, of Andray and Ball’s first names: Alex and Dave.
Harris’ mother—who served as her guardian—requested and was provided Harris’
11.
medical records on June 9, 2015. According to the undisputed summary-judgment
evidence, their full names appear in the medical records at least 30 times, and no other
non-physician named “Alex” or “Dave” provided care to Harris.
{¶ 22} The trial court held that Harris could not in good faith claim that she did
not know Andray and Ball’s names, thus she could not rely on Civ.R. 15(D). We agree
with the court’s conclusion. Andray and Ball’s names were either known to Harris or
easily capable of being discovered upon even the most cursory of investigations. Harris,
therefore, did not properly avail herself of the procedure set forth in Civ.R. 15(D), and
her amended complaint did not relate back to the date she filed her original complaint.
{¶ 23} The fact that Harris knew or should have known Andray and Ball’s names
is dispositive here—it precluded her from utilizing Civ.R. 15(D). But even if Civ.R.
15(D) was properly invoked by Harris, we agree with the trial court that Harris failed to
follow the specific requirements of the rule.
{¶ 24} Under Civ.R. 15(D), a complaint against a party whose name is unknown
must describe the defendant, and a summons containing the words “name unknown”
must be personally served on the defendant. Erwin, 125 Ohio St. 3d 519, 2010-Ohio-
2202, 929 N.E.2d 1019, at paragraph one of the syllabus. We find that Harris failed to
describe or personally serve Andray and Ball, and the summons did not include the words
“name unknown” as required by the rule.
12.
{¶ 25} First, it is undisputed that Harris knew Andray and Ball’s first names, yet
she did not use those names in the complaint. She also did not describe their
appearances, identify their positions or the hospital unit in which they worked, or provide
any other information that would permit personal service. In fact, the body of Harris’
complaint purports to describe only “John Doe” physicians—she never attempted to
identify any nurse or other provider involved in her treatment that day. Ohio courts have
explained that under Civ.R. 15(D), a description must provide enough information for the
John Doe defendants to be served. See Erwin at ¶ 2; Whitehead v. Skillman Corp., 12th
Dist. Butler No. CA2014-03-061, 2014-Ohio-4893, ¶ 11. “An insufficiently identified
defendant is a mere ‘placeholder,’ and Civ.R. 15(D) does not apply to such
placeholders.” Pearson v. City of Columbus, 2014-Ohio-5563, 26 N.E.3d 842, ¶ 25 (10th
Dist.). Harris’ failure to describe the defendants precludes her from relying on Civ.R.
15(D).
{¶ 26} Second, the summons in this case did not contain the words “name
unknown.” Harris insists that the phrase used in the summons here—“whose names are
unable to be ascertained,” “means the same as ‘unknown’ and thus supports the spirit of
the rule.” As an initial matter, the summons was not worded “whose names are unable to
be ascertained.” (See above.) But more importantly, Ohio Supreme Court case law
demonstrates that Civ.R. 15(D) must be strictly followed. In Laneve, 119 Ohio St. 3d
324, 2008-Ohio-3921, 894 N.E.2d 25, at ¶ 14, for instance, plaintiff designated certain
13.
defendants as “John Doe, unknown.” The court held that this designation failed to meet
the specific requirements of Civ.R. 15(D). Id. at ¶ 15. See also Miller v. Am. Family Ins.
Co., 6th Dist. Ottawa No. OT-02-011, 2002-Ohio-7309, ¶ 37 (“John Doe and/or John
Doe, Inc., Plaintiffs’ insurer and successor companies or entities thereto. Identities and
addresses unknown” did not meet strict requirement that words “name unknown” be
used). As in Laneve, Harris failed to include the words “name unknown,” providing yet
another reason that she cannot rely on Civ.R. 15(D).
{¶ 27} Finally, it is undisputed that Harris did not personally serve Andray and
Ball. Summonses were issued in their names but served “c/o Mercy St. Charles Hospital”
by certified mail. “Certified mail is an improper method of service under Civ.R. 15(D),
which specifies that personal service is the only method by which a fictitious, now
identified, defendant may be served.” Laneve at ¶ 17. Harris implicitly acknowledges
her failure to abide by this rule, but she cites Knotts v. Solid Rock Enterprises, Inc., 2d
Dist. Montgomery No. 21622, 2007-Ohio-1059, which criticizes the personal-service
requirement of Civ.R. 15(D). Regardless of this criticism, the rule continues to require
personal service. Harris’ failure to comply with this requirement, again, prevents her
from relying on Civ.R. 15(D).
{¶ 28} Because Harris knew Andray and Ball’s names and because she failed to
comply with the strict requirements of Civ.R. 15(D), her claims against them were
properly dismissed as untimely-filed.
14.
B. Harris’ amended complaint did not relate back under Civ.R. 15(C).
{¶ 29} Harris captioned her original complaint in the name of the fictitiously-
named defendants “c/o Mercy St. Charles Hospital.” (Emphasis added.) The trial court
held that Mercy was not named as a defendant in the original complaint, therefore, her
amended complaint did not relate back to the date of the filing of her original complaint.
It dismissed Harris’ claims against Mercy as time-barred. Harris argues that this was
error. She maintains that Mercy was identified as a party in the original complaint.
{¶ 30} Civ.R. 15(C) provides:
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.
15.
{¶ 31} Where the requirements of Civ.R. 15(C) are otherwise satisfied, the rule
“may be employed to substitute a party named in the amended pleading for a party
misidentified in the original pleading to permit the amended pleading to relate back to the
date of the original pleading.” Kraly v. Vannewkirk, 69 Ohio St. 3d 627, 632, 635 N.E.2d
323 (1994). The Ohio Supreme Court has made clear, however, that the rule may not be
used “to assert a claim against an additional party while retaining a party against whom a
claim was asserted in the original pleading.” Id. at paragraph one of the syllabus. Thus,
where a plaintiff attempts to add a party to her complaint, not due to mistaken identity,
but to assert claims that should have been asserted in the original complaint, the claims
will not relate back to the original filing date under Civ.R. 15(C). Kilko v. Walter, 8th
Dist. Cuyahoga No. 94920, 2010-Ohio-6364, ¶ 19.
{¶ 32} Harris argues that Mercy “was listed as a party just was not captioned
correctly in the original pleading [sic].” But numerous Ohio courts, including this court,
have held that the designation “c/o” in a complaint is insufficient to name an individual
as a party defendant.
{¶ 33} In Phh Mtge. Corp. v. Therrien, 10th Dist. Franklin No. 12AP-312, 2012-
Ohio-5307, the plaintiff filed a complaint naming various defendants, including “5872
OREILY DRIVE FORECLOSURE DEFENSE TRUST C/O BRIAN K. URBANSKI
TRUSTEE (hereinafter “the trust”).” Urbanski participated in the litigation, purporting to
file various pro se motions and pleadings on behalf of the trust, but after the plaintiff
16.
alleged that he was engaging in the unauthorized practice of law, he retained counsel who
obtained leave to file an amended answer and counterclaim on Urbanski’s behalf. The
plaintiff moved to strike Urbanski’s amended answer and counterclaim on the ground that
he was not personally a party to the action. The trial court granted the plaintiff’s motion
and found that Urbanski was not a party to the action. Urbanski appealed. He argued
that he was named by virtue of the designation “C/O BRIAN K. URBANSKI
TRUSTEE.” Citing Civ.R. 10(A), which governs what must be included in captioning a
complaint and naming parties, the appellate court found that “such a designation [was]
insufficient to individually name him as a party.” Id. at ¶ 9, citing Ohio Dept. of Transp.
v. Storage World, Inc., 9th Dist. No. 11CA0002-M, 2012-Ohio-4437, ¶ 9.
{¶ 34} In Storage World, Inc., the court held that the trial court lacked personal
jurisdiction to enter a judgment against the president of the defendant company where the
summons was addressed to “Storage World Inc., c/o Michael DeMarco, President.” Id.
The court held that DeMarco “was not named as an individual defendant * * * and was
not served a summons that was addressed to him individually.” Id.
{¶ 35} And in Smith v. Bassett, 6th Dist. Ottawa No. OT-96-018, 1996 Ohio App.
LEXIS 5167 (Nov. 15, 1996), we held that only one party was named as a defendant in a
case captioned “BASSETTS’, INC. dba BASSETTS IGA C/O RICHARD G.
BASSETT.” We found that Richard Bassett was not a party and had been named only to
accept service.
17.
{¶ 36} Here, as in the cases we have cited, the complaint and summons are
addressed “c/o Mercy St. Charles Hospital.” Mercy itself was not named a defendant.
See also Heine v. Crall, 10th Dist. Franklin No. 93AP-65, 1993 Ohio App. LEXIS 2616,
*5 (May 18, 1993) (holding that under Civ.R. 10(A), the caption of a complaint must
make clear that a person is named as a defendant in the action, and explaining that despite
receiving personal service, it is not the duty of the would-be defendant “to peruse the
body of the complaint and try to determine whether or not it was a defendant”). Harris’
amended complaint naming Mercy as a party, therefore, did not relate back to the date of
the filing of the original complaint because it was not an “amendment changing the party
against whom a claim is asserted”—it purported to add a party. The claim against Mercy
was, therefore, properly dismissed as time-barred.
C. The trial court could not extend the statute of limitations.
{¶ 37} In her first assignment of error, Harris claims that the statute of limitations
for filing claims against the Mercy defendants was extended when the magistrate granted
her leave to amend her complaint. The Mercy defendants counter that (1) Harris failed to
raise this argument in the lower court and has, therefore, waived it for purposes of appeal;
and (2) the trial court lacks the authority to extend the applicable statute of limitations.
{¶ 38} The Ohio Supreme Court has made clear that establishing the statute of
limitations for a cause of action “is the province of the legislative, not the judicial, branch
of government.” Erwin, 125 Ohio St. 3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 4. It
18.
emphasized in Erwin that “[n]either the Rules of Civil Procedure nor our case law ought
be interpreted or understood to set policy or change existing statutes of limitation for
causes of action.” Id. See also Estate of Adams, 2013-Ohio-5824, 6 N.E.3d 673, ¶ 19
(11th Dist.) (“[A]lthough a court possesses the discretion to grant a motion to extend, it
does not have the authority to sua sponte extend the statute of limitations set forth under
R.C. Chapter 2106 for a surviving spouse to exercise his or her elective rights. The
extension was therefore legally invalid.”). The magistrate’s decision granting Harris
leave to amend her complaint under Civ.R. 15(A) could not operate to extend the statute
of limitations.
{¶ 39} Harris cites two cases that she claims support her position that a trial court
can extend the applicable statute of limitations by granting leave to amend: Boley v.
Knowles, 905 S.W.2d 86 (Mo.1995), a Missouri case, and Merkosky v. Wilson, 11th Dist.
Lake No. 2008-L-017, 2008-Ohio-3252.
{¶ 40} In Boley, a minor sued a physician for malpractice and her mother joined
the action in her individual capacity. The mother sought to amend her complaint to add a
claim for medical expenses. Her motion was denied because her claim was barred by the
applicable statute of limitations. The minor then sought leave to amend the complaint to
add a claim for those same expenses. The trial court denied the motion, holding that to
grant leave to the minor to amend her complaint “would effectively extend the statute of
limitations that barred her mother’s claim.” Id. at 88. The question the appellate court
19.
faced was whether the claim for medical expenses belonged exclusively to the parents—
in which case, the claim was lost because the statute of limitations had expired—or
whether the minor could assert the claim. It found that the minor could, in fact, assert the
claim for medical expenses, thus the claim was not barred by the statute of limitations.
{¶ 41} Aside from being non-binding on this court, Boley does not stand for the
proposition that a court’s order granting leave to amend a complaint extends the statute of
limitations for a claim that would otherwise be barred as untimely.
{¶ 42} In the second case cited by Harris, Merkosky, the plaintiff filed a claim for
legal malpractice. The defendant moved for summary judgment, arguing that plaintiff’s
complaint was not filed within the one-year statute of limitations. Plaintiff sought leave
to amend his complaint, alleging that new facts supported his claims; however, none of
those new facts feasibly altered the last day by which plaintiff knew of the alleged
malpractice. The trial court granted summary judgment in favor of defendant on the
basis that plaintiff’s claims were time-barred, and denied plaintiff’s motion for leave to
amend because the proposed amended complaint would not alter the result of the
litigation. The appellate court affirmed.
{¶ 43} Harris apparently believes that Merkosky stands for the proposition that
where a motion for leave to amend is denied, “the statute of limitations remain[s] in
place,” and conversely, where a motion is granted, the statute of limitations is extended.
That is not how it works. Courts lack the authority to extend the statute of limitations
20.
imposed by the legislature. While it is certainly appropriate to deny leave to amend a
complaint on the basis that the amended complaint states claims that are time-barred —
especially where, as in Merkosky, summary-judgment motions had already been filed
based on the statute of limitations defense—it does not stand to reason that a court’s
decision granting leave to amend cures a plaintiff’s failure to timely file her claims.6
{¶ 44} We reject Harris’ claim that the magistrate’s order granting leave to amend
her complaint extended the applicable statute of limitations.
{¶ 45} Because Civ.R. 15(C) and (D) were not properly utilized by Harris, and
because the trial court lacked authority to extend the statute of limitations, we find that
Harris’ claims against the Mercy defendants were time-barred and properly dismissed.
We, therefore, find her first assignment of error and her “sub-assignment of error” not
well-taken. Because of our disposition of these assignments of error, we need not
proceed to her third assignment of error.
IV. Conclusion
{¶ 46} We find Harris’ first assignment of error and her “sub-assignment of error”
not well-taken. In light of our rulings on these assignments of error, we need not
consider her third assignment of error. We affirm the August 15, 2017 judgment of the
6
This is especially true where, as here, the statute of limitations had expired before leave
was granted. Certainly a trial court has no authority to resurrect a claim after the statute
of limitations has already expired.
21.
Erie County Court of Common Pleas. Harris is ordered to pay the costs of this appeal
under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
James D. Jensen, J.
____________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
22.