Campbell v. Schlegel , 2015 Ohio 2808 ( 2015 )

[Cite as Campbell v. Schlegel, 2015-Ohio-2808.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
TAMMY CAMPBELL, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 4-14-19
v.
AMY D. SCHLEGEL, OPINION
DEFENDANT-APPELLEE.
Appeal from Defiance County Common Pleas Court
Trial Court No. 12-CV-42214
Judgment Reversed and Cause Remanded
Date of Decision: July 13, 2015
APPEARANCES:
Brian W. Kaiser for Appellant
J. Alan Smith for Appellee
Case No. 4-14-19
ROGERS, P.J.
{¶1} Plaintiffs-Appellants, Tammy Campbell (“Tammy”), Kelsie Campbell
(“Kelsie”), Kasey Campbell (“Kasey”), and Brian Campbell (“Brian”)
(collectively “the appellants”), appeal the judgment of the Court of Common Pleas
of Defiance County, which granted summary judgment in favor of Defendant-
Appellee, Amy Schlegel, and denied their motion to amend their complaint. On
appeal, the appellants argue that the trial court erred: (1) in finding that their
amendment to the complaint would not relate back under Civ.R. 15(C); (2) in
finding that the amended complaint would necessarily be barred by Civ.R. 3(A)
and the applicable statute of limitations; and (3) by not allowing evidence
regarding the legal representation of Amy and her family. For the reasons that
follow, we reverse the trial court’s judgment.
{¶2} On December 14, 2012, Tammy, Brian, and Kasey1 filed a complaint
against Amy. In their complaint, they alleged that on December 17, 2010, Amy
was operating a 2003 Chevrolet Impala and negligently operated her vehicle
resulting in a collision with Tammy’s vehicle. On that same day, Kelsie filed a
separate complaint alleging nearly identical facts in the Campbells’ complaint.
1
We note that there is an inconsistent spelling of “Kasey” throughout the record. Since she testified at her
deposition that the correct spelling of her name is “Kasey” that is what we will refer to her throughout this
opinion.
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Both complaints repeatedly referred to Amy as the operator of the vehicle that
caused the car accident.
{¶3} Amy filed her answers to both complaints on January 4, 2013. Amy
generally denied the allegations in both complaints and asserted several
affirmative defenses.
{¶4} On November 12, 2013, the trial court consolidated the two cases as
both causes of action arose from the same set of facts. (Docket No. 11).
{¶5} Amy filed a motion for summary judgment on May 14, 2014. In her
motion, Amy asked the court to grant summary judgment in her favor as it was
undisputed that she was not involved in the motor vehicle accident. Instead, it was
her daughter, Katelyn Schlegel, who was operating the motor vehicle the day of
the accident. In support of her argument, Amy attached the police report to her
motion, which stated that Katelyn was the driver of Unit #2 and Jacob Schlegel,
her son, was the occupant of Unit #2. The report identifies Amy as the owner of
the vehicle that Katelyn was driving. See (Docket No. 17, Exhibit F, p. 1, 5).
{¶6} Amy also argued that the Campbells’ claim against Katelyn had
expired under the two-year statute of limitation, and that they could not rely on
Civ.R. 15(C) to file an amended complaint as there was no mistake concerning the
identity of the proper party. In the alternative, Amy argued that the Campbells’
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complaint could not be amended under Civ.R. 3(A) since the time had expired for
proper service of the complaints.
{¶7} The Campbells filed their response to Amy’s motion for summary
judgment and a request for leave to file an amended complaint on July 3, 2014.
They argued that they should be allowed to amend their complaint and add
Katelyn as the proper defendant since their misnaming of the defendant was a
misnomer.
{¶8} The trial court held a hearing on the Campbells’ motion to amend the
complaint on September 16, 2014. At the hearing, the Campbells called Katelyn
to testify. Katelyn testified that she was married November 24, 2012, and is now
known as Katelyn Ruiz. She stated that she remembered the car accident and that
it occurred while she was on her way to school. Katelyn then had the following
exchange:
Q: Okay. So, following the initial discussion of this accident with
your parents, I assume you had some follow-up conversation with
them at a later date about it; is that correct?
A: Just when they told me I was, uh, my mom was actually getting
sued. That’s when we started talking about it.
Q: Okay. So, how, when did that come about? Do you recall?
A: It hasn’t been that long, maybe six months, a year, if that.
Q: Six months, a year, that she stated she was being sued?
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A: She said that I might get a call, and I was to contact my lawyer
– well, her lawyer.
Q: Did she tell you why you might get a call?
A: No. She didn’t really discuss her business with me.
***
Q: Okay. And you never got a call about it from anyone, I assume
the insurance company, attorneys, anybody?
A: No.
Sept. 16, 2014 Hearing, p. 11-13.
{¶9} Katelyn testified that she moved out of her parents the night of her
18th birthday, which was October 27, 2011.
{¶10} Amy then testified that she received the Campbells’ complaints
sometime near Christmas a year or two after the accident. After receiving the
complaints, she contacted her insurance company. She stated that her insurance
company provided her with an attorney. She then had the following relevant
exchange:
[Amy]: But to say exactly, I just told [the insurance company] I
don’t understand why I was getting [the complaints] and – and, uh,
and like I said it had been a year or two after the accident. So, it was
– I mean I
The Court: Did you recognize that these suit papers related – that
those had to do with your daughter being in the car?
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[Amy]: I didn’t at the time until, um, when I first received them
I didn’t, but then when I called the insurance company, my agent
here in town, and told them that I had received them, and then they
had said, they had told me that it was due to an accident that Katelyn
was involved in.
Id. at p. 29-30.
{¶11} Amy stated that it was her belief that the insurance company was
handling the matter for herself, not Katelyn. Id. at p. 33. Amy then testified that
she did not tell Katelyn about the lawsuit right away. She explained,
I didn’t say anything to Katelyn until after I spoke with the lawyer.
Because like I said, I wasn’t really sure what it pertained to, ‘cause
like I said, it listed me as driving her car. So I didn’t know if it was
supposed to be for me, because I own the car. ‘Cause that was what
my agent said, “Well, maybe it’s because the car is in your name.”
Id. at p. 36.
{¶12} However, Amy admitted that she told Katelyn about the complaint a
few weeks after being served. Id. at p. 35-36. She also admitted that she realized
the complaint mistakenly named herself as the driver of the car and that she
brought this mistake to her insurance agent’s attention. Id. at p. 31.
{¶13} On October 24, 2014, the trial court filed its judgment entry wherein
it denied the Campbells’ request to amend the complaint and dismissed all claims
against Amy.
{¶14} The Campbells timely appealed this judgment, presenting the
following assignments of error for our review.
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Assignment of Error No. I
THE TRIAL LOWER [SIC] COURT ERRORED [SIC] IN
FINDING THAT THE AMENDMENT TO THE COMPLAINT
WOULD NOT RELATE BACK UNDER CIVIL RULE 15(C).
Assignment of Error No. II
THE LOWER COURT ERRORED [SIC] IN FINDING THAT
THE CLAIMS IN THE AMENDED COMPLAINT WOULD
NECESSARILY BE BARRED BY CIVIL RULE 3(A) AND
THE APPLICABLE STATUTE OF LIMITATIONS.
Assignment of Error No. III
THE LOWER COURT ERRORED [SIC] IN NOT ALLOWING
EVIDENCE REGARDING LEGAL REPRESENTATION.
{¶15} Due to the nature of the assignments of error, we elect to address the
first and second assignments together.
Assignments of Error Nos. I & II
{¶16} In their first and second assignments of error, the Campbells argue
that the trial court erred in finding that Civ.R 3(A) would necessarily bar any
claims raised in an amended complaint and by finding that the amendment of the
complaint would not relate back to the original filing date under Civ.R. 15(C). We
agree.
Standard of Review
{¶17} We review a trial court’s decision regarding a motion to amend a
complaint under an abuse of discretion standard. Patterson v. V & M Auto Body,
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63 Ohio St.3d 573, 576 (1992). A trial court will be found to have abused its
discretion when its decision is contrary to law, unreasonable, not supported by the
evidence, or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-
278, ¶ 16-18 (2d Dist.). When applying the abuse of discretion standard, a
reviewing court may not simply substitute its judgment for that of the trial court.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Civ.R. 3(A) & 15(C)
{¶18} Civ.R. 3(A) explains how to commence a civil action and states:
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 Civ.R. 15(C), or upon a defendant
identified by a fictitious name whose name is later correct pursuant
to Civ.R. 15(D).
(Emphasis added.) Thus, for an action to be considered “commenced,” not only
must a complaint be filed, but the plaintiff must serve the defendant with the
complaint within one year from the date of the filing of the complaint. Gibson v.
Summers, 11th Dist. Portage No. 2008-P-0032, 2008-Ohio-6995, ¶ 22. Further,
the Supreme Court of Ohio has held that Civ.R. 3(A) must be read in pari materia
with Civ.R. 15(C). Cecil v. Cottrill, 67 Ohio St.3d 367, 370 (1993), citing
Amerine v. Haughton Elevator Co., 42 Ohio St.3d 57 (1989).
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{¶19} Civ.R. 15 concerns amended and supplemental pleadings. “Under
Civ.R. 15(C), an amendment changing a party may relate back to the filing date of
the original complaint for purposes of applying the statutes of limitations.”
Mollette v. Portsmouth City Council, 179 Ohio App.3d 455, 2008-Ohio-6342, ¶ 37
(4th Dist.). Specifically, 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.
Thus, for an amendment to relate back to the original pleading, three requirements
must be met. Cecil at 370. First, the amended complaint must arise from the same
occurrence as the original complaint. Id. “Second, the party ‘brought in’ by the
amendment must receive, ‘within the period provided by law for commencing an
action,’ such notice of the action that the party is able to maintain a defense.” Id.,quoting Civ.R. 15(C). Third, the new party must have known or should have
known that but for the mistake concerning the proper party’s identity, the action
would have been brought against the new party. Cecil at 370. “Pursuant to Cecil,
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* * * this must occur within the same period as provided in the second
requirement, i.e., within one year after the filing of the complaint.” Sims v.
Agosta, 5th Dist. Fairfield No. 95-CA-0019, 1996 WL 72610, *3 (Jan. 29, 1996).
{¶20} “The plain language of [Civ.R. 15(C)] relates to the substitution of a
proper party for one previously misidentified in the original complaint.” Coleman
v. Featheringill, 5th Dist. Richland No. 01CA094, 2002-Ohio-4664, ¶ 17, citing
Cecil; see also Knotts v. Solid Rock Enterprises, Inc., 2d Dist. Montgomery No.
21622, 2007-Ohio-1059, ¶ 31. “The concluding clause of Civ.R. 15(C) provides
further support for this view inasmuch as it refers to a mistake regarding the
identity of the proper party in the original pleading.” Coleman at ¶ 17.
{¶21} The first issue we must decide in this appeal is whether naming Amy
as the defendant was the type of mistake that was contemplated by Civ.R. 15(C).
Thus, the resolution of this case partially turns on the definition of “mistake,”
which is not defined by the Civil Rules. “Mistake” is defined as “to fail to
recognize or to identify wrongly.” Webster’s New International Dictionary 1446
(2002). We find that naming Amy instead of Katelyn as the driver of the car was a
“mistake” pursuant to Civ.R. 15(C). See Sims, 1996 WL 72610, *4.
{¶22} We find that the mistake the Campbells made, concerning the
identity of the proper party, is akin to the facts in Gardner v. Molnar, 5th Dist.
Stark No. CA-8651, 1992 WL 61595. In Gardner, the plaintiffs mistakenly
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named Robert Molnar, the owner of the vehicle, as the defendant even though he
was not in the car at the time of the accident or involved in the accident in any
way. Id. at *1. The plaintiffs sought to substitute Anthony Molnar, Robert’s son,
as Anthony was the driver of the vehicle. Id. The trial court found that the
plaintiffs had made a mistake concerning the identity of the driver, and went on to
analyze whether the three elements in Civ.R. 15(C) were met. Id. at *2.
{¶23} Similarly, in Cecil, the Court found that the mistake in that case was
that the appellants merely called the appellee by a different name. 67 Ohio St.3d
at 371. The Court found that there was no confusion as to the identity of the
proper defendant to be sued. Of importance, the Court found that the insurance
carrier who adjusted the claim was given notice of the suit. Id. at 372. Further,
the Court found that the original complaint made clear the appellants never
intended to sue the father, but intended to sue the driver. This was evident “by the
fact that the body of the original complaint referred only to the driver of the
vehicle.” Id. Therefore, it was obvious “ ‘from the original complaint who the
intended defendant was, and if [appellee] did not infer this from the summons and
complaint, [he] should have done so.’ ” Id., quoting Hardesty v. Cabotage, 1 Ohio
St.3d 114, 117 (1982).
{¶24} The Court found that “ ‘[s]uch a result comports with the purpose of
the Civil Rules. “The spirit of the Civil Rules is the resolution of cases upon their
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merits, not upon pleading deficiencies.” ’ ” Id., quoting Hardesty at 117, quoting
Peterson v. Teodosio, 34 Ohio St.2d 161, 175 (1973). “Unless there is a showing
of bad faith, undue delay, or undue prejudice to the opposing party, the rules allow
for liberal amendment.” Roche v. On Time Delivery Servs., Inc., 8th Dist.
Cuyahoga No. 94036, 2010-Ohio-2358, ¶ 37, citing Turner v. Cent. Local School
Dist., 85 Ohio St.3d 95, 99 (1999).
{¶25} Since we have found that the Campbells made a mistake in naming
the proper defendant, we must now decide whether the amendment would relate
back to the date of the original filing under Civ.R. 15(C) and 3(A). Amy argues
that the Campbells’ failure to serve Katelyn within one year of filing their original
complaint is fatal to their appeal. Specifically, Amy argues that in Cecil, “the
Ohio Supreme Court allowed the plaintiff to amend their complaint to correct an
inadvertently misspelled name of the defendant because, although his name had
been misspelled, the proper defendant was actually served with the complaint
within the one (1) year time period set forth in Civ.R. 3(A).” (Emphasis sic.)
(Appellee’s Br., p. 10). We find that the appellee misrepresents the facts in Cecil.
{¶26} The Court in Cecil made no such statement that the correct defendant
was served within one year after the original complaint was filed. See generally
Cecil; see also Reighard v. Cleveland Elect. Illuminating, 7th Dist. Mahoning No.
05MA120, 2006-Ohio-2814, ¶ 18. Two days after filing the original complaint,
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service was made only upon the misnamed defendant—the father. Although the
father and son lived together and had the same name except for the middle initial,
the court did not rely on proper service being made as the reason for its decision.
Rather, the Court found that the son had notice for purposes of relation back.
Cecil, 67 Ohio St.3d at 371 (“defendant sought to be sued was given timely
notice”). The Court also noted that service on the son did not occur until 17
months after the original complaint was filed. Id. at 367, fn. 1. See also id. at 373
(Wright J., dissenting) (“the plaintiff did not serve the correct defendant until more
than seventeen months after the initial filing of the complaint”).
{¶27} Like the plaintiff in Cecil, the Campbells named a party that had the
capacity to be sued, i.e., Amy. The Campbells commenced the action by serving
the complaint on Amy, even though she was not the real party in interest. Doing
so commenced the action for purposes of Civ.R. 3(A). Thus, we must next
determine whether the Campbells complied with Civ.R. 15(C) in order for their
amended complaint to be deemed timely filed.
{¶28} First, we note that it is undisputed that the proposed amended
complaint arose from the same occurrence as the original complaint, and thus, the
first requirement is met. Next, we note that “Civ.R. 15(C) requires notice of the
action—not personal service—within the time period provided [by] Civ.R. 3(A).”
Mollette at ¶ 42; see also Reighard at ¶ 17 (“[Notice] to the intended defendant
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must occur within one year of the filing of the original complaint if the SOL has
run and that such notice does not require service”).2 While service can constitute
notice, notice can exist without service. Reighard at ¶ 21.
{¶29} Here, both Amy and Katelyn testified that Katelyn learned of the
complaint shortly after Amy was served with it. Katelyn testified that shortly after
the accident, she learned that her mother was served with the complaint and was
being sued by the Campbells. See Sept. 16, 2014 Hearing, p. 12. Amy similarly
testified that she talked to Katelyn about the complaint around Christmas time,
shortly after being served the complaint on December 19, 2012. Id. at p. 35-36.
Amy also testified that she realized that the complaint mistakenly named herself as
the driver, rather than Katelyn. Amy testified that she brought this fact to her
insurance agent’s attention. Id. at p. 31. Just as in Cecil, the mistake in this case
is that the Campbells simply called Katelyn by a different name. Instead of the
incorrect middle initial, they used the wrong first name. Further, the insurance
carrier adjusting the claim was given notice of the suit. In addition, the complaint,
by its very terms, reveals that the Campbells never intended to sue Amy, but in
fact, intended to sue the driver, Katelyn. The body of the complaint repeatedly
refers to the operator of the vehicle. Thus, just as in Cecil, it is evident from the
2
We note that at least one court has stated that “[t]he amended complaint must be served upon the correct
defendant within one year of the filing of the complaint.” Cross v. Biviano, 11th Dist. Trumbull No. 2000-
T-0123, 2001 WL 1217011, *3 (Oct. 12, 2001). We find that such a statement is in conflict with the Ohio
Supreme Court’s decision in Cecil, and thus, find the case unpersuasive.
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original complaint who the intended defendant was, and if Amy and Katelyn “ ‘did
not infer this from the summons and the complaint, [they] should have done so.’ ”
Cecil, 67 Ohio St.3d at 372, quoting Hardesty, 1 Ohio St.3d at 117.3
{¶30} To avoid this result, Amy compares the case sub judice to the two
cases of Brady v. Bucyrus Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460(3d Dist.), and McAbee v. Merryman, 7th Dist. Jefferson No. 13 JE 3, 2013-Ohio-
5291. However, we find both cases distinguishable. This court’s decision in
Brady dealt with Civ.R. 15(D), not Civ.R. 15(C). In McAbee, the plaintiffs did not
perfect service on anyone within the one-year period pronounced in Civ.R. 3(A).
Thus, we find both cases to be unpersuasive and not controlling to the outcome in
this case.
{¶31} In conclusion, we hold that the amendment to name Katelyn and
dismiss Amy should have been freely granted under the facts and circumstances
presented in this case. The amended complaint would have related back to the
date of the original complaint and that the proper defendant received timely notice
of the pending action.
3
We also find it odd that Amy, a party whom the appellants agree should be dismissed from the action,
continues to advance arguments to uphold the trial court’s decision to deny the motion to amend. Since no
one contests Amy’s lack of liability in this case, she has no standing to oppose the motion to amend. Amy
and Katelyn are covered under the same insurance policy, so they presumably have the same attorney. This
further shows that Katelyn would not be prejudiced by the amended complaint, as her attorney has been
involved in the litigation since its inception and has been advocating on her behalf the entire time.
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{¶32} Accordingly, we sustain the Campbells’ first and second assignments
of error.
Assignment of Error No. III
{¶33} In their third assignment of error, the Campbells argue that the trial
court erred by not allowing evidence regarding Amy’s and Katelyn’s legal
representation. Due to the resolution of the Campbells’ first and second
assignments of error, this argument is moot and we elect not to address it. App.R.
12(A)(1)(c).
{¶34} Having found error prejudicial to the Campbells in their first and
second assignments of error, we reverse the trial court’s judgment and remand this
matter for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr
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