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Austin v. Standard Building12/4/1997
JUDGMENT AFFIRMED.
Plaintiff-appellant Jo Anne Austin appeals the decision of the Cuyahoga County Court of Common Pleas wherein it granted summary judgment in favor of defendant-appellee R.W. Clark Co. For the reasons stated below, we affirm.
The record reflects the following facts relevant to the issues brought in this appeal. On July 29, 1994, appellant brought this action for personal injuries as a result of a fall that allegedly occurred on August 16, 1992. Named as defendants in the complaint were the Standard Building, the Brotherhood of Locomotive Engineers, National City Bank, the City of Cleveland, ABC Corporations I-X and John Does I-X. Appellant amended her complaint on February 8, 1995, with leave of the court and substituted the R.W. Clark Co. for ABC Corp. I. Appellant perfected service of the amended complaint on appellee R.W. Clark Corp. by certified mail on February 16, 1995. Appellee filed its answer to the amended complaint on March 8, 1995, and filed its amended answer on March 17, in which it asserted as a defense that the claim was brought outside the permissible statute of limitations. At the close of discovery, all defendants moved for summary judgment. In its motion for summary judgment filed January 26, 1996, appellee R.W. Clark claimed that two grounds existed for judgment in its favor. First, appellee asserted that appellant's claim against it was made outside the applicable statute of limitations and, second, appellee asserted that it owed no duty to appellant relating to her alleged fall. The trial court denied the summary judgment motions of all defendants, including the motion of appellee. Thereafter, the defendants, including appellee R.W. Clark Co., moved the court to reconsider its rulings, and on May 13, 1996, the court granted the motion to reconsider wherein the court granted summary judgment as to appellee R.W. Clark Co. only, citing Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57. On May 22, defendants requested clarification of the court's order, and on June 7, the court entered an order clarifying its ruling wherein it stated that the matter remained pending against the Standard Building and the Brotherhood of Locomotive Engineers. On November 29, 1996, appellant moved the court to certify its decision in accordance with Civ.R. 54(B), which the trial court ordered, nunc pro tunc, on December 13, 1996, determining that there was no just cause for delay. From this order, appellant timely appeals and presents three assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
CIV.R. 15(D) IS NOT THE APPLICABLE RULE IN THE SITUATION PRESENTED IN THIS CASE.
ASSIGNMENT OF ERROR NO. II
R.W. CLARK CO. WAIVED ANY ISSUE PERTAINING TO THE SERVICE OF THE AMENDED COMPLAINT AND, THEREFORE, SHOULD HAVE BEEN PRECLUDED FROM ARGUING SAID ISSUE IN ITS MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR NO. III
THE CONDUCT OF R.W. CLARK CO. IS IN CLEAR VIOLATION OF THE SPIRIT OF THE CIVIL RULES.
Initially, appellant asserts that Civ.R. 15(D) does not govern this case and the application of Amerine v. Haughton Elevator by the trial court was misplaced. Appellant, in reliance on Varno v. Bally Manufacturing Co. (1985), 19 Ohio St.3d 21, concludes that Civ.R. 15(D) does not apply but that Civ.R. 15(C) governs the matter before us. Essentially, appellant contends that pursuant to the civil rules, her amended complaint against the appellee related back to the initial filing of her complaint on July 29, 1994 and her action against appellee was not barred by the applicable statute of limitations. We do not agree.
The applicable statute of limitation
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