[Cite as Harris v. Firelands Regional Med. Ctr., 2018-Ohio-3085.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Akeeba Harris                                              Court of Appeals No. E-17-053

        Appellant                                          Trial Court No. 2016-CV-0268

v.

Firelands Regional Medical Center, et al.                  DECISION AND JUDGMENT

        Appellees                                          Decided: August 3, 2018

                                                  *****

        Geoffrey L. Oglesby, for appellant.

        Chad M. Thompson and Kayla L. Henderson,
        for appellees, Mercy Health-St. Charles Hospital, LLC,
        Alex R. Andray, RN-C, and David W. Wall, BHT.


                                                  *****

        MAYLE, P.J.

        {¶ 1} Plaintiff-appellant, Akeeba Harris, appeals the August 15, 2017 judgment of

the Erie County Court of Common Pleas granting summary judgment in favor of
defendants-appellees, Mercy Health—St. Charles, LLC (“Mercy”), Alex R. Andray, and

David W. Ball. For the following reasons, we affirm the trial court judgment.

                                     I. Background

      {¶ 2} Very few facts are necessary to an understanding of the issues presented in

this appeal. Briefly stated, Akeeba Harris called for medical help on May 26, 2015, after

experiencing three days of sleeplessness and a severe headache. She was transported by

ambulance to Firelands Regional Medical Center (“Firelands”), and then to Mercy St.

Charles Hospital. Harris, who suffers from bipolar disorder, was ultimately admitted to

Mercy’s behavioral health unit. Shortly after her admission, early in the morning of

May 27, 2015, she suffered a foot fracture. Harris filed a complaint for medical

malpractice and negligence on April 13, 2016, naming the following defendants:

      Drs. And Nurses John and Jane Doe,

      Doctors and Nurses

      Real names cannot be determined without the Court’s discovery

      Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter

      c/o Firelands Regional Medical Center

      and

      Drs. And Nurses John and Jane Doe,

      Doctors and Nurses

      Real names cannot be determined without the Court’s discovery




2.
         Who treated Plaintiff prior to, on or about May 26, 2015 and thereafter

         c/o Mercy St. Charles Hospital

         {¶ 3} While Harris captioned her complaint against the John and Jane Doe nurses

and doctors “c/o” Firelands and Mercy, she did not specifically name Mercy or Firelands

as defendants. In fact, she identified no specific care providers until August 17, 2016,

when, with leave of court, she filed an amended complaint.1 At that time she named as

defendants Mercy, Alex R. Andray, R.N., and David W. Ball, “technician” (“the Mercy

defendants”), and Firelands. She filed a second amended complaint on January 11, 2017,

adding a fifth defendant, North Central EMS, the ambulance service that transported

Harris to the hospital.2

         {¶ 4} “The Unidentified Mercy Defendants” answered the original complaint,3 and

Mercy, Andray, and Ball answered the amended complaint. They asserted among their


1
  The magistrate’s order, journalized on June 17, 2016, provided that “Plaintiff is given
leave to amend the Complaint for purposes of confirming the identity of the proper
Plaintiff (If Plaintiff has a legal guardian) and to identify the John and Jane Doe
physician and nurses. Such leave given until August 19, 2016.”
2
    North Central EMS is not a party to this appeal.
3
 The answer of “Drs. And Nurses John and Jane Doe, Doctors and Nurses, Who Treated
Plaintiff Prior To, On or About May 26, 2015 and Thereafter c/o Mercy St. Charles
Hospital” included a footnote stating:

         To date, this is how Plaintiff has described and identified the second
         defendant(s) in this case. Without waiving any objection regarding
         Plaintiff’s use and identification of this second defendant(s), the
         undersigned will use Plaintiff’s description for purposes of answering the
         specific claims set forth in the Complaint.



3.
defenses that Harris failed to comply with Civ.R. 15(D), which sets forth the procedure

for naming unknown defendants, and that her claims were barred by the statute of

limitations. The Mercy defendants also claimed that Harris “failed to properly identify

and name one or more of the Mercy Defendants” and “failed to perform sufficient

process and/or sufficient service of process upon one or more of the Mercy Defendants.”4

       {¶ 5} The case progressed and the parties offered different theories for the cause of

Harris’ foot fracture. Harris claimed that it occurred when Andray and Ball threw her

onto a bed to restrain her; the Mercy defendants claimed that it occurred when Harris

kicked and punched at the doors and walls of her room during one of several violent

outbursts she exhibited while being treated that evening.5

       {¶ 6} Harris and the Mercy defendants filed motions for summary judgment on

March 30, and March 31, 2017, respectively. Harris moved on the issue of liability. She

claimed that regardless of whose version of events was accurate, it is undisputed that the

injury occurred at Mercy. She maintained that because she had suffered a “psychotic




4
  Firelands also filed an answer. Harris eventually dismissed her claims against it after
admitting that her alleged injuries were not sustained at Firelands. In fact, Harris testified
at her January 13, 2017 deposition: “No question, I know [the injury] didn’t happen at
Firelands.” Her mother testified similarly: “[L]ike I told [plaintiff’s counsel] months
ago, almost a year, that it did not happen at Firelands.” Given this information, it is not
clear why plaintiff’s counsel pursued a claim against Firelands.
5
 This synopsis of the Mercy defendants’ theory of the case is taken from a quote of
“Defense Expert Report P.5,” contained in Harris’ motion for summary judgment. The
defense-expert report itself is not contained in the record.



4.
break” and was under Mercy’s care at the time of her injury, the Mercy defendants owed

a duty to her—either to protect her from the staff or to protect her from self-inflicted

injury. She contended that either way, the Mercy defendants violated a duty to her, and

she was, therefore, entitled to summary judgment. Harris also insisted that her claim was

not a “medical claim” requiring expert testimony, and she claimed that the doctrine of res

ipsa loquitur absolved her of the obligation to support her claim with any evidence

beyond the fact that the injury occurred.

         {¶ 7} The Mercy defendants claimed in their summary-judgment motion that

Harris’ complaint was barred by the statute of limitations because (1) she failed to satisfy

Civ.R. 15(D)’s requirements for using fictitious designations, and (2) Mercy was not

designated as a defendant in the original complaint, therefore, her amended complaint

against the hospital did not relate back to the date of the original complaint under Civ.R.

15(C).

         {¶ 8} In a judgment entry dated August 15, 2017, the trial court denied Harris’

summary-judgment motion and granted summary judgment to the Mercy defendants.

         {¶ 9} As to Harris’ motion, the trial court concluded that Harris’ claim was a

medical claim requiring expert testimony as to the standard of care, breach of the

standard of care, and injury proximately caused by breach of the standard of care. It

found that Harris’ motion was supported only by argument of counsel without citation to

the evidentiary record, let alone expert testimony. In other words, Harris’ motion lacked




5.
proper evidentiary support under Civ.R. 56(C). The court also found that despite Harris’

contention to the contrary, Harris herself created a disputed issue of fact as to where she

sustained her injury by also filing claims against Firelands and North Central EMS.

       {¶ 10} The court also found that Harris could not rely on the theory of res ipsa

loquitur to support her motion for summary judgment because (1) res ipsa loquitur

creates only a permissible inference for the jury and cannot be used to support a

summary-judgment motion; and (2) Harris wholly failed to establish the two prerequisites

necessary for its application: that the instrumentality causing the injury was under the

exclusive management and control of the defendant when the injury occurred, and the

injury occurred under circumstances that would not have occurred if ordinary care had

been used.

       {¶ 11} The trial court granted summary judgment to the Mercy defendants. It

began by recognizing that because Harris’ claim was a “medical claim,” the one-year

statute of limitations set forth in R.C. 2305.113 applied. Assuming that Harris’ injury

was sustained in the early-morning hours of May 27, 2015, the court determined that

Harris was required to file her claim by May 27, 2016. The court observed that while

Harris’ initial complaint was timely-filed on April 13, 2016, it failed to name Mercy as a

defendant. Therefore, when Harris filed her amended complaint on August 17, 2016, the

complaint did not “relate back” to the date of the original complaint under Civ.R. 15(C).




6.
       {¶ 12} As to Harris’ claims against Andray and Ball, the court found that she

could not rely on Civ.R. 15(D) to preserve the statute of limitations because (1) she could

not in good faith say that she did not know their names given that they appear in the

Mercy chart over 30 times, and Harris and her legal guardian had obtained those records

before filing her complaint; (2) even if she did not know their names, she did not describe

their identities in her original complaint in the manner required by Civ.R. 15(D); and (3)

Harris did not comply with other Civ.R. 15(D) requirements in that she failed to aver that

she could not discover Andray and Ball’s names, failed to include the words “name

unknown” in the summons, and failed to personally serve Andray and Ball with the

summons.

       {¶ 13} Harris appealed the trial court’s decision, and assigns the following errors

for our review:

       Assignment of Error No. I

       WHEN LEAVE OF COURT GIVES THE PLAINTIFF UNTIL A DATE CERTAIN TO

       AMEND THE NAMES IN THE COMPLAINT, A DEFENDANT CANNOT GET

       SUMMARY JUDGMENT ON BEING OUTSIDE THE STATUTE OF LIMITATIONS FOR

       TIMELY FILING AND NAMING DEFENDANTS.

       Sub-Assignment of Error No. I

       SUMMARY JUDGMENT WAS IMPROPER REGARDLESS OF THE LEAVE OF

       COURT.




7.
      Assignment of Error No. III [sic]

      SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY SHOULD HAVE BEEN

      GRANTED IN FAVOR OF THE PLAINTIFF.

                                II. Standard of Review

      {¶ 14} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

             (1) that there is no genuine issue as to any material fact; (2) that the

      moving party is entitled to judgment as a matter of law; and (3) that

      reasonable minds can come to but one conclusion, and that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made, who is entitled to have the evidence construed most strongly in his

      favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

      N.E.2d 46 (1978), Civ.R. 56(C).

      {¶ 15} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,




8.
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

                                  III. Law and Analysis

       {¶ 16} In her first assignment of error, Harris argues that because the trial court

granted her leave to file an amended complaint, this effectively extended the statute of

limitations, thereby rendering her claims timely-filed. In a “sub-assignment of error,”

Harris argues that her amended complaint related back to the date of her original

complaint under Civ.R. 15(C) and (D), and was, therefore, timely-filed. And in her third

assignment of error, Harris argues that the trial court erred in denying her motion for

summary judgment. We address Harris’ arguments out of order.

                    A. Harris did not properly invoke Civ.R. 15(D).

       {¶ 17} In her original complaint, filed before the statute of limitations expired,

Harris asserted claims against “Drs. And Nurses John and Jane Doe,” claiming that the




9.
defendants’ real names could not be determined without conducting discovery. After the

statute of limitations expired, with leave of court, she amended her complaint to

substitute Andray and Ball for the fictitiously-named defendants. The trial court

dismissed Harris’ claims against Andray and Ball, finding that Harris (1) knew or should

have known Andray and Ball’s names, and (2) failed to follow the procedure set forth in

Civ.R. 15(D) for filing claims against defendants whose names are unknown. Harris

claims that this was error.

       {¶ 18} Civ.R. 15(D) describes the process for filing suit when the name of the

defendant is 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 a copy thereof must be served

       personally upon the defendant.

       {¶ 19} If a plaintiff files her complaint within the applicable statute of limitations

and follows the specific requirements of Civ.R. 15(D), an amended complaint

substituting the fictitious names with the real names of the defendants will relate back to




10.
the time of the original filing of the action. Laneve v. Atlas Recycling, 119 Ohio St.3d

324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 11.

       {¶ 20} Importantly, however, “Civ.R. 15(D) does not permit a plaintiff to

designate a defendant by a fictitious name when the plaintiff actually knows the name of

that defendant.” Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d

1019, ¶ 23. Rather, “Civ.R. 15(D) applies only when the plaintiff has identified but does

not know the actual name of the defendant.” Id. at ¶ 25. What is more, the Ohio

Supreme Court has recognized that a plaintiff who believes she is a victim of malpractice

has a duty to investigate and discover the identity of the practitioner who committed the

alleged malpractice. Flowers v. Walker, 63 Ohio St.3d 546, 550, 589 N.E.2d 1284

(1992). Once a malpractice claim has accrued, “the failure of the plaintiff to learn the

identity of an allegedly negligent party does not delay the running of the statute of

limitations.” Erwin at ¶ 26. Civ.R. 15(D) does not relieve a plaintiff of the duty to learn

the allegedly negligent party’s name, nor does it operate to extend the applicable statute

of limitations when a plaintiff has failed to timely identify the culpable parties. Id. at ¶

27.

       {¶ 21} Harris and her mother were both deposed in this case. It is clear from their

testimony that they immediately believed that Harris had been the victim of malpractice,

and they were aware on May 27, 2015, of Andray and Ball’s first names: Alex and Dave.

Harris’ mother—who served as her guardian—requested and was provided Harris’




11.
medical records on June 9, 2015. According to the undisputed summary-judgment

evidence, their full names appear in the medical records at least 30 times, and no other

non-physician named “Alex” or “Dave” provided care to Harris.

       {¶ 22} The trial court held that Harris could not in good faith claim that she did

not know Andray and Ball’s names, thus she could not rely on Civ.R. 15(D). We agree

with the court’s conclusion. Andray and Ball’s names were either known to Harris or

easily capable of being discovered upon even the most cursory of investigations. Harris,

therefore, did not properly avail herself of the procedure set forth in Civ.R. 15(D), and

her amended complaint did not relate back to the date she filed her original complaint.

       {¶ 23} The fact that Harris knew or should have known Andray and Ball’s names

is dispositive here—it precluded her from utilizing Civ.R. 15(D). But even if Civ.R.

15(D) was properly invoked by Harris, we agree with the trial court that Harris failed to

follow the specific requirements of the rule.

       {¶ 24} Under Civ.R. 15(D), a complaint against a party whose name is unknown

must describe the defendant, and a summons containing the words “name unknown”

must be personally served on the defendant. Erwin, 125 Ohio St.3d 519, 2010-Ohio-

2202, 929 N.E.2d 1019, at paragraph one of the syllabus. We find that Harris failed to

describe or personally serve Andray and Ball, and the summons did not include the words

“name unknown” as required by the rule.




12.
         {¶ 25} First, it is undisputed that Harris knew Andray and Ball’s first names, yet

she did not use those names in the complaint. She also did not describe their

appearances, identify their positions or the hospital unit in which they worked, or provide

any other information that would permit personal service. In fact, the body of Harris’

complaint purports to describe only “John Doe” physicians—she never attempted to

identify any nurse or other provider involved in her treatment that day. Ohio courts have

explained that under Civ.R. 15(D), a description must provide enough information for the

John Doe defendants to be served. See Erwin at ¶ 2; Whitehead v. Skillman Corp., 12th

Dist. Butler No. CA2014-03-061, 2014-Ohio-4893, ¶ 11. “An insufficiently identified

defendant is a mere ‘placeholder,’ and Civ.R. 15(D) does not apply to such

placeholders.” Pearson v. City of Columbus, 2014-Ohio-5563, 26 N.E.3d 842, ¶ 25 (10th

Dist.). Harris’ failure to describe the defendants precludes her from relying on Civ.R.

15(D).

         {¶ 26} Second, the summons in this case did not contain the words “name

unknown.” Harris insists that the phrase used in the summons here—“whose names are

unable to be ascertained,” “means the same as ‘unknown’ and thus supports the spirit of

the rule.” As an initial matter, the summons was not worded “whose names are unable to

be ascertained.” (See above.) But more importantly, Ohio Supreme Court case law

demonstrates that Civ.R. 15(D) must be strictly followed. In Laneve, 119 Ohio St.3d

324, 2008-Ohio-3921, 894 N.E.2d 25, at ¶ 14, for instance, plaintiff designated certain




13.
defendants as “John Doe, unknown.” The court held that this designation failed to meet

the specific requirements of Civ.R. 15(D). Id. at ¶ 15. See also Miller v. Am. Family Ins.

Co., 6th Dist. Ottawa No. OT-02-011, 2002-Ohio-7309, ¶ 37 (“John Doe and/or John

Doe, Inc., Plaintiffs’ insurer and successor companies or entities thereto. Identities and

addresses unknown” did not meet strict requirement that words “name unknown” be

used). As in Laneve, Harris failed to include the words “name unknown,” providing yet

another reason that she cannot rely on Civ.R. 15(D).

       {¶ 27} Finally, it is undisputed that Harris did not personally serve Andray and

Ball. Summonses were issued in their names but served “c/o Mercy St. Charles Hospital”

by certified mail. “Certified mail is an improper method of service under Civ.R. 15(D),

which specifies that personal service is the only method by which a fictitious, now

identified, defendant may be served.” Laneve at ¶ 17. Harris implicitly acknowledges

her failure to abide by this rule, but she cites Knotts v. Solid Rock Enterprises, Inc., 2d

Dist. Montgomery No. 21622, 2007-Ohio-1059, which criticizes the personal-service

requirement of Civ.R. 15(D). Regardless of this criticism, the rule continues to require

personal service. Harris’ failure to comply with this requirement, again, prevents her

from relying on Civ.R. 15(D).

       {¶ 28} Because Harris knew Andray and Ball’s names and because she failed to

comply with the strict requirements of Civ.R. 15(D), her claims against them were

properly dismissed as untimely-filed.




14.
       B. Harris’ amended complaint did not relate back under Civ.R. 15(C).

       {¶ 29} Harris captioned her original complaint in the name of the fictitiously-

named defendants “c/o Mercy St. Charles Hospital.” (Emphasis added.) The trial court

held that Mercy was not named as a defendant in the original complaint, therefore, her

amended complaint did not relate back to the date of the filing of her original complaint.

It dismissed Harris’ claims against Mercy as time-barred. Harris argues that this was

error. She maintains that Mercy was identified as a party in the original complaint.

       {¶ 30} 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.




15.
       {¶ 31} Where the requirements of Civ.R. 15(C) are otherwise satisfied, the rule

“may be employed to substitute a party named in the amended pleading for a party

misidentified in the original pleading to permit the amended pleading to relate back to the

date of the original pleading.” Kraly v. Vannewkirk, 69 Ohio St.3d 627, 632, 635 N.E.2d

323 (1994). The Ohio Supreme Court has made clear, however, that the rule may not be

used “to assert a claim against an additional party while retaining a party against whom a

claim was asserted in the original pleading.” Id. at paragraph one of the syllabus. Thus,

where a plaintiff attempts to add a party to her complaint, not due to mistaken identity,

but to assert claims that should have been asserted in the original complaint, the claims

will not relate back to the original filing date under Civ.R. 15(C). Kilko v. Walter, 8th

Dist. Cuyahoga No. 94920, 2010-Ohio-6364, ¶ 19.

       {¶ 32} Harris argues that Mercy “was listed as a party just was not captioned

correctly in the original pleading [sic].” But numerous Ohio courts, including this court,

have held that the designation “c/o” in a complaint is insufficient to name an individual

as a party defendant.

       {¶ 33} In Phh Mtge. Corp. v. Therrien, 10th Dist. Franklin No. 12AP-312, 2012-

Ohio-5307, the plaintiff filed a complaint naming various defendants, including “5872

OREILY DRIVE FORECLOSURE DEFENSE TRUST C/O BRIAN K. URBANSKI

TRUSTEE (hereinafter “the trust”).” Urbanski participated in the litigation, purporting to

file various pro se motions and pleadings on behalf of the trust, but after the plaintiff




16.
alleged that he was engaging in the unauthorized practice of law, he retained counsel who

obtained leave to file an amended answer and counterclaim on Urbanski’s behalf. The

plaintiff moved to strike Urbanski’s amended answer and counterclaim on the ground that

he was not personally a party to the action. The trial court granted the plaintiff’s motion

and found that Urbanski was not a party to the action. Urbanski appealed. He argued

that he was named by virtue of the designation “C/O BRIAN K. URBANSKI

TRUSTEE.” Citing Civ.R. 10(A), which governs what must be included in captioning a

complaint and naming parties, the appellate court found that “such a designation [was]

insufficient to individually name him as a party.” Id. at ¶ 9, citing Ohio Dept. of Transp.

v. Storage World, Inc., 9th Dist. No. 11CA0002-M, 2012-Ohio-4437, ¶ 9.

       {¶ 34} In Storage World, Inc., the court held that the trial court lacked personal

jurisdiction to enter a judgment against the president of the defendant company where the

summons was addressed to “Storage World Inc., c/o Michael DeMarco, President.” Id.

The court held that DeMarco “was not named as an individual defendant * * * and was

not served a summons that was addressed to him individually.” Id.

       {¶ 35} And in Smith v. Bassett, 6th Dist. Ottawa No. OT-96-018, 1996 Ohio App.

LEXIS 5167 (Nov. 15, 1996), we held that only one party was named as a defendant in a

case captioned “BASSETTS’, INC. dba BASSETTS IGA C/O RICHARD G.

BASSETT.” We found that Richard Bassett was not a party and had been named only to

accept service.




17.
       {¶ 36} Here, as in the cases we have cited, the complaint and summons are

addressed “c/o Mercy St. Charles Hospital.” Mercy itself was not named a defendant.

See also Heine v. Crall, 10th Dist. Franklin No. 93AP-65, 1993 Ohio App. LEXIS 2616,

*5 (May 18, 1993) (holding that under Civ.R. 10(A), the caption of a complaint must

make clear that a person is named as a defendant in the action, and explaining that despite

receiving personal service, it is not the duty of the would-be defendant “to peruse the

body of the complaint and try to determine whether or not it was a defendant”). Harris’

amended complaint naming Mercy as a party, therefore, did not relate back to the date of

the filing of the original complaint because it was not an “amendment changing the party

against whom a claim is asserted”—it purported to add a party. The claim against Mercy

was, therefore, properly dismissed as time-barred.

             C. The trial court could not extend the statute of limitations.

       {¶ 37} In her first assignment of error, Harris claims that the statute of limitations

for filing claims against the Mercy defendants was extended when the magistrate granted

her leave to amend her complaint. The Mercy defendants counter that (1) Harris failed to

raise this argument in the lower court and has, therefore, waived it for purposes of appeal;

and (2) the trial court lacks the authority to extend the applicable statute of limitations.

       {¶ 38} The Ohio Supreme Court has made clear that establishing the statute of

limitations for a cause of action “is the province of the legislative, not the judicial, branch

of government.” Erwin, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 4. It




18.
emphasized in Erwin that “[n]either the Rules of Civil Procedure nor our case law ought

be interpreted or understood to set policy or change existing statutes of limitation for

causes of action.” Id. See also Estate of Adams, 2013-Ohio-5824, 6 N.E.3d 673, ¶ 19

(11th Dist.) (“[A]lthough a court possesses the discretion to grant a motion to extend, it

does not have the authority to sua sponte extend the statute of limitations set forth under

R.C. Chapter 2106 for a surviving spouse to exercise his or her elective rights. The

extension was therefore legally invalid.”). The magistrate’s decision granting Harris

leave to amend her complaint under Civ.R. 15(A) could not operate to extend the statute

of limitations.

       {¶ 39} Harris cites two cases that she claims support her position that a trial court

can extend the applicable statute of limitations by granting leave to amend: Boley v.

Knowles, 905 S.W.2d 86 (Mo.1995), a Missouri case, and Merkosky v. Wilson, 11th Dist.

Lake No. 2008-L-017, 2008-Ohio-3252.

       {¶ 40} In Boley, a minor sued a physician for malpractice and her mother joined

the action in her individual capacity. The mother sought to amend her complaint to add a

claim for medical expenses. Her motion was denied because her claim was barred by the

applicable statute of limitations. The minor then sought leave to amend the complaint to

add a claim for those same expenses. The trial court denied the motion, holding that to

grant leave to the minor to amend her complaint “would effectively extend the statute of

limitations that barred her mother’s claim.” Id. at 88. The question the appellate court




19.
faced was whether the claim for medical expenses belonged exclusively to the parents—

in which case, the claim was lost because the statute of limitations had expired—or

whether the minor could assert the claim. It found that the minor could, in fact, assert the

claim for medical expenses, thus the claim was not barred by the statute of limitations.

       {¶ 41} Aside from being non-binding on this court, Boley does not stand for the

proposition that a court’s order granting leave to amend a complaint extends the statute of

limitations for a claim that would otherwise be barred as untimely.

       {¶ 42} In the second case cited by Harris, Merkosky, the plaintiff filed a claim for

legal malpractice. The defendant moved for summary judgment, arguing that plaintiff’s

complaint was not filed within the one-year statute of limitations. Plaintiff sought leave

to amend his complaint, alleging that new facts supported his claims; however, none of

those new facts feasibly altered the last day by which plaintiff knew of the alleged

malpractice. The trial court granted summary judgment in favor of defendant on the

basis that plaintiff’s claims were time-barred, and denied plaintiff’s motion for leave to

amend because the proposed amended complaint would not alter the result of the

litigation. The appellate court affirmed.

       {¶ 43} Harris apparently believes that Merkosky stands for the proposition that

where a motion for leave to amend is denied, “the statute of limitations remain[s] in

place,” and conversely, where a motion is granted, the statute of limitations is extended.

That is not how it works. Courts lack the authority to extend the statute of limitations




20.
imposed by the legislature. While it is certainly appropriate to deny leave to amend a

complaint on the basis that the amended complaint states claims that are time-barred —

especially where, as in Merkosky, summary-judgment motions had already been filed

based on the statute of limitations defense—it does not stand to reason that a court’s

decision granting leave to amend cures a plaintiff’s failure to timely file her claims.6

       {¶ 44} We reject Harris’ claim that the magistrate’s order granting leave to amend

her complaint extended the applicable statute of limitations.

       {¶ 45} Because Civ.R. 15(C) and (D) were not properly utilized by Harris, and

because the trial court lacked authority to extend the statute of limitations, we find that

Harris’ claims against the Mercy defendants were time-barred and properly dismissed.

We, therefore, find her first assignment of error and her “sub-assignment of error” not

well-taken. Because of our disposition of these assignments of error, we need not

proceed to her third assignment of error.

                                      IV. Conclusion

       {¶ 46} We find Harris’ first assignment of error and her “sub-assignment of error”

not well-taken. In light of our rulings on these assignments of error, we need not

consider her third assignment of error. We affirm the August 15, 2017 judgment of the




6
 This is especially true where, as here, the statute of limitations had expired before leave
was granted. Certainly a trial court has no authority to resurrect a claim after the statute
of limitations has already expired.




21.
Erie County Court of Common Pleas. Harris is ordered to pay the costs of this appeal

under App.R. 24.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           ____________________________
                                                       JUDGE
James D. Jensen, J.
                                               ____________________________
Christine E. Mayle, P.J.                               JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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