[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.

                                                    -2-
Case No. 4-14-19



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’



                                        -3-
Case No. 4-14-19



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?


                                         -4-
Case No. 4-14-19



      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?



                                        -5-
Case No. 4-14-19



       [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.

                                         -6-
Case No. 4-14-19



                             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,

                                          -7-
Case No. 4-14-19



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).




                                        -8-
Case No. 4-14-19



       {¶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,


                                         -9-
Case No. 4-14-19



* * * 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

                                        -10-
Case No. 4-14-19



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

                                        -11-
Case No. 4-14-19



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,

                                        -12-
Case No. 4-14-19



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

                                        -13-
Case No. 4-14-19



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.

                                                  -14-
Case No. 4-14-19



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.


                                                 -15-
Case No. 4-14-19



       {¶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




                                        -16-
