Sweat v. Boeder , 309 P.3d 295 ( 2013 )

2013 UT App 206_________________________________________________________
THE UTAH COURT OF APPEALS
LOU ANNE SWEAT,
Plaintiff and Appellant,
v.
JESS BOEDER AND SCHAFER BOEDER,
Defendants and Appellees.
Memorandum Decision
No. 20120397‐CA
Filed August 22, 2013
Third District, Salt Lake Department
The Honorable L.A. Dever
No. 110900588
Scott T. Poston, Attorney for Appellant
Albert W. Gray and Trent D. Holgate, Attorneys
for Appellees
JUDGE WILLIAM A. THORNE JR. authored this Memorandum
Decision, in which JUDGES CAROLYN B. MCHUGH and
J. FREDERIC VOROS JR. concurred.
THORNE, Judge:
¶1 Plaintiff Lou Anne Sweat appeals from the district court’s
decision granting Defendants Jess Boeder (Father) and Schafer
Boeder’s (Son) (collectively, the Boeders) motion to dismiss for
failure to state a claim. We affirm.
¶2 Sweat filed a complaint against Father on January 10, 2011,
alleging that he was the driver who had crashed into the back of
Sweat’s vehicle when it was stopped at a traffic light on January 12,
2007. On April 14, 2011, Sweat filed an amended complaint adding
Son in the case caption as a defendant but again alleging that
Father was the driver in the automobile accident. On October 27,
Sweat v. Boeder
2011, the Boeders filed a motion to dismiss for failure to state a
claim stating that Father was not the driver and that the four‐year
statute of limitations had expired as to Son, who was the actual
driver of the vehicle. The district court granted the Boeders’ motion
to dismiss.
¶3 Sweat argues that the district court erred in granting the
motion to dismiss against Son based on the running of the statute
of limitations. Specifically, Sweat contends that the relation back
doctrine under Utah Rule of Civil Procedure 15(c) permits her
amended complaint—adding Son as a defendant—to relate back to
the timely filed original complaint. Rule 15(c) provides
“[w]henever 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 proceeding.” Utah R. Civ. P.
15(c).
¶4 Generally, an amended pleading that adds new parties will
not relate back to the original filing. Penrose v. Ross, 2003 UT App
157, ¶ 9, 71 P.3d 631. There are, however, two types of cases where
relation back under rule 15(c) permits amended complaints with
new parties: “misnomer” and “identity of interest” cases. Id. ¶ 11
(internal quotation marks omitted). Here, the district court
determined that the facts of this case are parallel to those in Penrose,
wherein the court held that neither the misnomer nor identity of
interest exception applied. We review the district court’s rule 15(c)
analysis under a correctness standard. Gary Porter Constr. v. Fox
Constr., Inc., 2004 UT App 354, ¶ 31, 101 P.3d 371.
¶5 Sweat argues that her initial naming of Father as the
defendant was a misnomer because she reasonably relied upon the
Salt Lake City Police Department driver exchange form identifying
Father as both the driver and the owner of the automobile involved
20120397‐CA 2 2013 UT App 206Sweat v. Boeder
in the accident with Sweat.1 Sweat also argues that this is a
misnomer case because Son was named in the caption of the
amended complaint but inadvertently left out of the body of the
amended complaint. However, neither scenario fits under the
category of misnomer.
¶6 “A misnomer is involved when the correct party was served
so that the party before the Court is the one Plaintiff intended to
sue, but the name or description of the party in the Complaint is
deficient in some respect.” Tan v. Ohio Cas. Ins. Co., 2007 UT App
93, ¶ 12, 157 P.3d 367 (citation and internal quotation marks
omitted). Additionally, courts will generally allow an amendment
under rule 15 to correct technical defects in the naming or
identification of a party “[i]f the body of the complaint correctly
identifies the party, or if the proper person has actually been served
with process.” Id. (citation and internal quotation marks omitted);
see also Penrose, 2003 UT App 157, ¶¶ 12, 14.
¶7 This is not the case presented here. Sweat neither identified
Son in any capacity in the original complaint nor served Son until
after the expiration of the statute of limitations. Father and Son are
two distinct defendants, each identified in different documents
provided to Sweat prior to the running of the statute of limitations.2
Because Son’s identity as the driver was ascertainable and Son was
neither served nor identified in the original complaint, this case
does not involve a technical mistake. The addition or substitution
1
Son, in his affidavit, averred that he gave the investigat‐
ing officer his own name and showed the officer his driver
license and the vehicle’s registration. The citation that the inves‐
tigating officer issued to Son was in Son’s name, not Father’s
name.
2
In December 2010, the Boeders’ insurance company sent
a settlement letter to Sweat’s attorney identifying Son as the
insured, stating, “Our Insured: Schafer C Boeder.”
20120397‐CA 3 2013 UT App 206Sweat v. Boeder
of Son as a defendant would amount to a substantial change and
not merely a formality or technicality allowed under the relation
back doctrine. Thus, this case does not involve a misnomer. Having
so determined, we next consider whether Father and Son have an
identity of interest permitting the amended complaint to relate
back.
¶8 “Parties have an identity of interest when the real parties in
interest were sufficiently alerted to the proceedings, or were
involved in them unofficially, from an early stage.” Sulzen v.
Williams, 1999 UT App 76, ¶ 14, 977 P.2d 497 (citation and internal
quotation marks omitted). To qualify as an identity of interest case,
Sweat must establish that
(1) the amended pleading alleged only claims that
arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
pleading and (2) the added party had received
(actual or constructive) notice that it would have
been a proper party to the original pleading such that
no prejudice would result from preventing the new
party from using a statute of limitations defense that
otherwise would have been available.
Ottens v. McNeil, 2010 UT App 237, ¶ 43, 239 P.3d 308 (citation and
internal quotation marks omitted). One of the ways to establish
constructive notice is to prove “that the original and new party
share ‘the same interest’ concerning the litigation, including their
legal defenses and positions such that ‘notice of the action against
one serves to provide notice of the action to the other.’” Id. ¶ 45
(quoting Penrose, 2003 UT App 157, ¶¶ 15–19). This method of
proving constructive notice is known as the “Notice Transfer Test.”
Id. (citation and internal quotation marks omitted).
¶9 Here, the district court in applying the Notice Transfer Test
noted that the facts of this case are similar to those in Penrose v.
Ross, 2003 UT App 157, 71 P.3d 631, and determined that the
20120397‐CA 4 2013 UT App 206Sweat v. Boeder
identity of interest analysis in that case is relevant to this case. The
Penrose court determined that the father and son in that case did
not have an identity of interest because they did not have the same
legal interest in the outcome of the case. As in Penrose, Father’s
defense is that he was not negligent or liable because he was not
the driver and Son’s affirmative defense focuses on the running of
the statute of limitations. The legal position and defenses of the two
parties are not the same and a disposition of either party does not
affect the claims or defenses available to the other. See id. ¶ 19.
Because the parties do not have the same legal interest there is no
identity of interest. See id.
¶10 Since this case does not involve either a misnomer or an
identity of interest, we conclude that the district court correctly
declined to permit Sweat’s amended complaint to relate back to the
original complaint and therefore properly dismissed the case
against Son based on the running of the statute of limitations.3
Affirmed.
3
In her summary of the arguments, Sweat cursorily men‐
tions that Son had actual knowledge—at the same time Father
did—of the negligence claim asserted against Father. This court
in Ottens v. McNeil, 2010 UT App 237, 239 P.3d 308, considered
whether actual knowledge existed in that matter. Id. ¶ 50. How‐
ever, in Ottens we found that unity of interest existed as to one of
the claims. Id. ¶ 48. We have determined that there is no unity of
interest here, and therefore we do not consider Sweat’s actual
knowledge argument.
20120397‐CA 5 2013 UT App 206