[Cite as Whitehead v. Skillman Corp., 2014-Ohio-4893.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




MATTHEW WHITEHEAD,                                       :
                                                              CASE NO. CA2014-03-061
        Plaintiff-Appellant,                             :
                                                                      OPINION
                                                         :             11/3/2014
   - vs -
                                                         :

SKILLMAN CORPORATION, et al.,                            :

        Defendants-Appellees.                            :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2012-03-0909



O'Connor, Acciani & Levy LPA, Michael D. Weisensel, 2200 Kroger Building, 1014 Vine
Street, Cincinnati, Ohio 45202, for plaintiff-appellant

Matthew R. Skinner, P.O. Box 145496, Cincinnati, Ohio 45250, for defendant-appellee,
Ferguson Construction Co.



        M. POWELL, J.

        {¶ 1} Plaintiff-appellant, Matthew Whitehead, appeals from a decision in the Butler

County Court of Common Pleas granting judgment on the pleadings to defendant-appellee,
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Ferguson Construction Company (Ferguson). For the reasons outlined below, we affirm the

decision of the trial court.


1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar.
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       {¶ 2} On March 2, 2012, Whitehead filed a complaint alleging that he was injured on

or about May 23, 2011 while he was working on a construction project for a local school

district. Whitehead named the Skillman Corporation (Skillman), the company directing the

project, as a defendant. In addition to naming Skillman, Whitehead named defendants John

Doe Nos. 1 through 20. In naming the John Doe defendants, Whitehead stated that they

were individuals or entities "whose identities could not be ascertained prior to the filing of this

Complaint despite the due diligence of [Whitehead]." Whitehead later substituted Ferguson

for John Doe No. 1 alleging that Ferguson created the hazard that resulted in his injury. After

being added as a defendant, Ferguson was served with the complaint on October 17, 2013.

       {¶ 3} On November 18, 2013, Ferguson filed an answer along with a motion for

judgment on the pleadings. Ferguson argued that the two-year statute of limitations for a

personal injury claim had run, and thus the claim was improper. The trial court granted

Ferguson's motion for judgment on the pleadings. By considering its docket, the trial court

determined that Ferguson was served with the summons and complaint on October 17, 2013

and found that Whitehead named Ferguson as a defendant outside of the statute of

limitations and failed to serve Ferguson within one year of the filing of the original complaint.

       {¶ 4} Whitehead now appeals, asserting a single assignment of error for review:

       {¶ 5} THE TRIAL COURT COMMITTED ERROR IN GRANTING JUDGMENT ON

THE PLEADINGS IN FAVOR OF FERGUSON CONSTRUCTION COMPANY.

       {¶ 6} Whitehead argues that the trial court should not have granted Ferguson

judgment on the pleadings. Whitehead contends that it was impossible for the trial court to

determine whether Ferguson was timely included in the case by merely considering the

complaint and answer. It is undisputed that in order to determine when and how Ferguson

was served, the court had to look outside of the pleadings to the records of the clerk of

courts. If we find that it was proper for the trial court to consider the date Ferguson was
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served by consulting its docket, Whitehead argues that his personal injury claim against

Ferguson was not outside of the statute of limitations because the claim relates back to the

date of the filing of the original complaint pursuant to Civ.R. 15(C).

       {¶ 7} A trial court's decision on a Civ.R. 12(C) motion for judgment on the pleadings

is reviewed by an appellate court de novo. Golden v. Milford Exempted Village School Bd. of

Edn., 12th Dist. Clermont No. CA2008-10-097, 2009-Ohio-3418, ¶ 6. Pursuant to Civ.R.

12(C), a judgment on the pleadings is appropriate if the court finds, beyond doubt, that the

plaintiff can prove no set of facts in support of his claim that would entitle him to relief. In

ruling on the Civ.R. 12(C) motion, the court construes as true all the material allegations in

the complaint, with all reasonable inferences to be drawn therefrom, in favor of the

nonmoving party. Corporex Dev. & Constr. Mgt., Inc. v. Shook, 106 Ohio St.3d 412, 2005-

Ohio-5409, ¶ 2. Civ.R. 12(C) motions are specifically for resolving questions of law. Whaley

v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581. "The determination of a motion for

judgment on the pleadings is limited solely to the allegations in the pleadings and any

writings attached to the pleadings." Golden at ¶ 3, citing Peterson v. Teodosio, 34 Ohio

St.2d 161 (1973).

       {¶ 8} The Ohio Supreme Court has held that "[i]t is axiomatic that a trial court may

take judicial notice of its own docket." Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio

St.3d 576, 580 (1994). In the context of a Civ.R. 12(B)(6) motion, which must be judged only

considering the face of the complaint, we have held that a court may take judicial notice of

the court proceedings in the immediate case. See Mansour v. Croushore, 194 Ohio App.3d

819, 2011-Ohio-3342, ¶ 18 (12th Dist.); see also Anetomang v. OKI Sys. Ltd., 10th Dist.

Franklin No. 10AP-1182, 2012-Ohio-822. Consequently, it was proper for the trial court to

take judicial notice of its docket in the immediate case in the context of a Civ.R. 12(C) motion

to determine when and how Ferguson was served with the complaint and summons.
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       {¶ 9} To avoid the time bar of an applicable statute of limitations when determining

whether a formerly unknown or fictitious defendant who is now known has been properly

served, Civ.R. 15(C), (D), and 3(A) must be read in conjunction with one another. Amerine v.

Haughton Elevator Co., Div. of Reliance Elec. Co., 42 Ohio St.3d 57 (1989), paragraph one

of the syllabus. Civ.R. 15(C) provides for when an amended complaint relates back to the

date of the filing of the original complaint, and states in part:

              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.

Additionally, the rule specifies the conditions under which an amendment relates back to the

filing of the original complaint when there is a change in the named party. Id. In any event,

in order for Civ.R. 15(C) to apply when an unknown or fictitious defendant is involved, the

plaintiff must comply with the specific requirements of Civ.R. 15(D). LaNeve v. Atlas

Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 11.

       {¶ 10} When filing a complaint, Civ.R. 15(D) is invoked when a plaintiff is acquainted

with the description of a defendant but is unaware of the defendant's name at the time the

complaint is filed. Mardis v. Meadow Wood Nursing Home, 12th Dist. Brown No. CA2010-04-

007, 2010-Ohio-4800, ¶ 28, citing Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, ¶

23. Under this rule, a plaintiff can file a complaint and later amend that complaint when the

name of the unknown party is discovered. Anetomang at ¶ 10, citing Civ.R. 15(D). "[W]hen

a plaintiff designates a defendant by a fictitious name, Civ.R. 15(D) requires that the plaintiff

provide a description of the defendant in the pleadings and aver in the complaint the fact that

the plaintiff could not discover the name." (Emphasis sic.) Erwin at ¶ 23. Furthermore,

Civ.R. 15(D) "directs that the summons contain the words 'name unknown' and be personally

served on the defendant." Id.

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       {¶ 11} In this case, in the original complaint, Whitehead stated that he could not

ascertain the fictitious defendants. There was no description that would provide enough

information for the John Doe defendants to be served. Whitehead only stated that the John

Doe defendants were somehow involved in the school district construction project, directly or

as agents of another company. Moreover, Whitehead did not request that a summons be

issued containing "name unknown," nor was such a summons ever served on Ferguson.

Consequently, Whitehead did not comply with the specific requirements of Civ.R. 15(D).

       {¶ 12} Additionally, Civ.R. 3(A) requires that service be obtained upon a defendant,

including a formerly unknown or fictitious defendant, within one year of the filing of an original

complaint. "[W]here a plaintiff names a fictitious defendant and later corrects the complaint

to insert the defendant's proper name, the amendment relates back to the filing of the original

complaint and the defendant must be served with process within one year of the date the

original complaint was filed." Mardis at ¶ 28, citing Amerine, 42 Ohio St.3d at 59. When the

defendant is served within one year of the original complaint, "so long as the original

complaint was filed prior to the expiration of the statutory time limit, 'service does not have to

be made on the formerly fictitious, now identified, defendant within the statute of limitations.'"

LaNeve, 119 Ohio St.3d 324, 2008-Ohio-3921 at ¶ 12, quoting Amerine at 59.

       {¶ 13} In this case, the original complaint was filed on March 2, 2012, within the two-

year statute of limitations for a personal injury claim. See R.C. 2305.10(A). Nevertheless,

Ferguson was not served until October 17, 2013. As such, service was not obtained upon

Ferguson within one year of the filing of the original complaint as required by Civ.R. 3(A).

Because Whitehead neither complied with the specific provisions of Civ.R. 15(D) nor Civ.R.

3(A), the relation-back provision of Civ.R. 15(C) does not apply.

       {¶ 14} As the trial court may take judicial notice of its own docket and the relation-back

provision of Civ.R. 15(C) does not apply, the trial court was proper in granting Ferguson
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judgment on the pleadings. Whitehead's single assignment of error is overruled.

      {¶ 15} Judgment affirmed.


      RINGLAND, P.J., and S. POWELL, J., concur.




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