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Plumb v. River City Erectors3/21/2000
APPEAL from the Franklin County Court of Common Pleas.
Plaintiffs-appellants John Plumb and Christa Plumb appeal from the May 18, 1999 decision and June 8, 1999 entry granting the September 21, 1998 motion to dismiss of defendant-appellee River City Erectors, Inc. ("River City"). For the reasons that follow, we affirm.
Appellants filed suit on August 25, 1997 against Duke Development Corporation, SOFCO Erectors, Inc., and a fictitious "XYZ Corporation," whose real name and address were unknown to Plumb. In their complaint for personal injuries and loss of consortium, appellants alleged that John Plumb was seriously injured on September 21, 1995, at a construction site due to the negligence of appellees. Christa Plumb brought a claim for loss of consortium.
On July 16, 1998, appellants voluntarily dismissed appellees Duke Development Corporation and SOFCO Erectors, Inc. The case remained active against XYZ Corporation. On August 6, 1998, appellants filed an amended complaint naming River City as the appellee in place of XYZ Corporation. The clerk of courts issued certified mail service of the summons and amended complaint upon River City, and Andrea R. Bailey accepted certified mail service on August 24, 1998.
On August 21, 1998, the trial court granted appellants' motion to appoint a special process server to serve River City. The process server personally served a copy of the amended complaint upon River City on August 24, 1998. The process server did not, however, serve River City with a summons at that time.
On September 21, 1998, River City moved to dismiss appellants' amended complaint as barred by the statute of limitations. River City argued that appellants did not obtain personal service on River City within one year as required by Civ.R.15(D) and 3(A). Therefore, River City contended that the amended complaint did not relate back to the date of the original complaint and was not, therefore, commenced within the two-year statute of limitations for personal injury actions.
The trial court sustained the motion, and this appeal followed.
On appeal, appellants raise a single assignment of error as follows:
The trial court erred in sustaining Defendant-Appellee's Motion to Dismiss when Plaintiff-Appellant had properly perfected service of process within the time provided by law.
Civ.R. 3(A) provides that an action is "commenced by filing a complaint with the court, if service is obtained within one year from such filing * upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ. R. 15(D)."
Civ.R. 15(D) provides:
Amendments where name of party 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 the copy thereof must be served personally upon the defendant.
In Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57, the Supreme Court applied both Civ.R. 15(D) and 3(A) to similar facts. Dorsella Amerine was injured when the elevator at her place of business malfunctioned. On August 22, 1983, two days before the expiration of the applicable statute of limitations, Amerine filed her original complaint against Haughton Elevator Company and two "John Doe" defendants. In early May 1984, Amerine discovered that John Doe No. 2 was the Otis Elevator Company. She amended
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