[Cite as Smith v. Garber, 2013-Ohio-5677.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



KAREN A. SMITH, et al.                           JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiffs-Appellants                    Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. 13 CA 40
CHRISTINA C. GARBER, et al.

        Defendants-Appellees                     OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Case No. 12 CV 656


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        December 4, 2013



APPEARANCES:

For Plaintiffs-Appellants                     For Defendants-Appellees

DAVID G. SCHMIDT                              WILLIAM F. SCULLY, JR.
SCHMIDT LEGAL GROUP                           WILLIAMS MOLITERNO & SCULLY
614 West Superior Avenue, #1500               2241 Pinnacle Parkway
Cleveland, Ohio 44113                         Twinsburg, Ohio 44087
Richland County, Case No. 13 CA 40                                                    2

Wise, J.

       {¶1}   Appellants Karen A. Smith and Brandon Cooley appeal from the decision

of the Court of Common Pleas, Richland County, which dismissed their personal injury

lawsuit against Christina C. Garber and three other defendants. The relevant procedural

facts leading to this appeal are as follows.

       {¶2}   On September 22, 2007, Appellant Smith and Appellant Cooley were

allegedly injured in a rear-end automobile collision in Richland County, Ohio. The other

vehicle involved in the collision, a truck, was allegedly owned by “Midwest Logistics”

and driven by Christina C. Garber.

       {¶3}   However, it appears there are at least two separate business entities

known as “Midwest Logistics.” One is located on Southwyck Boulevard in Toledo, Ohio,

and the other is located in North Liberty, Indiana.

       {¶4}   On September 14, 2009, appellants filed a personal injury and negligence

action against Midwest Logistics (using the Toledo address) and Ms. Garber in the

Cuyahoga County Court of Common Pleas. Service has never been completed on

Garber, but it was completed on Midwest Logistics (Toledo) on September 29, 2009.

       {¶5}   On March 30, 2010, appellants filed an amended complaint in Cuyahoga

County naming as additional defendants Appellees Midwest Logistics (using the Indiana

address) and Medlin Trucking & Service (utilizing the same address as Midwest

Logistics (Indiana)). Service was completed on both Appellee Midwest (Indiana) and

Appellee Medlin Trucking on April 19, 2010.1 These two appellees filed a motion to




1
   The role of Medlin Trucking in the controversy at issue is not discussed at length in
the present appeal. Furthermore, Garber is not a participant in this appeal.
Richland County, Case No. 13 CA 40                                                          3


dismiss the amended complaint against them on May 3, 2010.                 The motion was

apparently not ruled upon by the Cuyahoga County Court of Common Pleas.

       {¶6}   Appellants thereafter filed a motion to transfer their action to the Richland

County Court of Common Pleas. The motion to transfer was granted on or about July 6,

2010. The case was captioned in Richland County as 2010-CV-0834. However,

appellants thereafter filed a Rule 41(A) notice of dismissal, and the complaint under

2010-CV-0834 was dismissed without prejudice on June 14, 2011.2

       {¶7}   On June 6, 2012, appellants re-filed their complaint in the Richland County

Court of Common Pleas, as case number 2012-CV-0656, naming four defendants.

Service was completed on both Appellees Midwest Logistics (Indiana) and Medlin

Trucking & Service on June 11, 2012. Service has never been completed on Midwest

Logistics (Toledo) or Garber in 2012-CV-0656.

       {¶8}   On October 24, 2012, Appellees Midwest Logistics (Indiana) and Medlin

Trucking & Service, without having filed an answer or otherwise formally responding to

appellants’ complaint, filed a motion to dismiss, citing the failure of appellants to file the

action within the applicable two-year statute of limitations. Appellants did not respond.

The motion to dismiss was granted by the trial court on December 20, 2012, as to

Appellees Midwest Logistics (Indiana) and Medlin Trucking & Service. The court,

however, gave appellants until March 20, 2013, to obtain service on the remaining

defendants. When service was not completed on the remaining defendants, the trial

court issued a final order of dismissal for failure to prosecute on April 9, 2013.




2
    The trial court file from 2010-CV-0834 has not been included in the present record
on appeal.
Richland County, Case No. 13 CA 40                                                        4


        {¶9}   On May 8, 2013, appellants filed a notice of appeal. They herein raise the

following sole Assignment of Error:

        {¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

REVERSIBLE ERROR WHEN IT GRANTED APPELLEES’ MOTION TO DISMISS.”

                                                 I.

        {¶11} In their sole Assignment of Error, appellants contend the trial court

committed reversible error in granting appellees’ motion to dismiss appellants’

complaint. We disagree.

        {¶12} Appellants first direct us to Ohio Civ.R. 15(C), which addresses the

“relation back” of amendments to original pleadings. The rule states as follows:

        {¶13} “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.”

        {¶14} In addition, Civ.R. 3(A) states:

        {¶15} “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
Richland County, Case No. 13 CA 40                                                        5


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 corrected pursuant

to Civ.R. 15(D).”

       {¶16} Civ.R. 3(A) and 15(C) thus interact with each other; i.e., if a plaintiff meets

the requirements of Civ.R. 15(C), “then Civ.R. 3(A) will permit relation back of the

amended complaint to fall within the statute of limitations.” Sims v. Agosta, 5th Dist.

Fairfield No. 95-CA-0019, 1996 WL 72610. However, “[t]he decision whether to allow a

Civ.R. 15(C) amendment is committed to the trial court's discretion and will not be

reversed absent an abuse of that discretion.” Robinson v. Spurlock, 4th Dist. Jackson

No. 11CA4, 20122-Ohio-1510, ¶ 23 (additional citations omitted). In order to find an

abuse of discretion, we must determine that the trial court's decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶17} However, we must first consider whether the case before us even

implicates Civ.R. 15(C). In Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627, 635 N.E.2d

323, the Ohio Supreme Court clearly held that while Civ.R. 15(C) may be employed to

substitute a party named in the amended pleading for a party named in the original

pleading, and the amended pleading then relates back to the date of the original

pleading, the Rule may not be employed to assert a claim against an additional party

while retaining a party against whom a claim was asserted in the original pleading. See

id., at paragraph one of the syllabus (emphases added). As aptly stated by the Eighth

District Court of Appeals: “*** Civ.R. 15(C) does not allow for the adding of a new party

to an original action under the relation back doctrine after the statute of limitations has
Richland County, Case No. 13 CA 40                                                          6


expired. When a new party is added, a new cause of action is created and will not relate

back to the date of filing the original action for statute of limitations purposes.” Bykova v.

Szucs, 8th Dist. Cuyahoga No. 87629, 2006-Ohio-6424, ¶ 4.

       {¶18} In the case sub judice, the 2012 “re-commenced” complaint (2012-CV-

0656) filed by appellants lists, inter alia, both the Indiana-based and the Toledo-based

entities known as Midwest Logistics as individual defendants. The trial court file further

reveals that separate certified mail service was at least attempted on both of these

entities. The record thus persuades us that appellants have followed a pattern of

adding, rather than substituting, party-defendants. When Midwest Logistics (Indiana)

and Medlin Trucking were “added” to the prior Cuyahoga County/Richland County case

(2010-CV-0834) in 2010, the statute of limitations had already passed. Appellants’

failure to properly bring the action against these two appellees within the statute of

limitations was not cured by appellants’ re-filing of the action in 2012 under the Ohio

savings statute.     We therefore find Kraly controls under the circumstances, and

appellants’ attempted invocation of Civ.R. 15(C) as a means of keeping their complaint

within the statute of limitations is without merit.

       {¶19} Even if we were to conclude otherwise, however, Civ.R. 15(C) sets forth

three requirements that must be met before an amendment relates back to the original

pleading. Of these, the second requirement is that the party “brought in” by the

amendment must receive, within the period provided by law for commencing the action,

such notice of the action that the party is able to maintain a defense. See Sims, supra,

citing Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 370. Appellants rely on a copy of an

email in the record dated December 3, 2009, from Don Huston of Sentry Insurance
Richland County, Case No. 13 CA 40                                                       7


Company, in which Huston indicates that Sentry’s insureds are Midwest Logistics

(Indiana) and Christina Garber. This document appears to have been inadvertently

stapled to appellees’ own motion to dismiss of October 24, 2012. Appellants

nonetheless never responded to appellees’ said motion to dismiss, and thus never

argued to the trial court the significance of the email or the manner in which Mr.

Huston’s knowledge was conveyed to or should be imputed to appellees. Under such

circumstances, because the Civil Rules are to be construed and applied “to effect just

results and eliminate impediments to the expeditious administration of justice”

(Blankenship v. CRT Tree, 8th Dist. Cuyahoga No. 80907, 2002-Ohio-5354, ¶ 27, citing

Civ.R. 1(B)), we cannot say the trial court abused its discretion by declining to allow the

case to proceed pursuant to Civ.R. 15(C).

      {¶20} Appellants’ sole Assignment of Error is overruled.

      {¶21} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. W. SCOTT GWIN


                                             ___________________________________
                                             HON. CRAIG R. BALDWIN

JWW/d 1029
Richland County, Case No. 13 CA 40                                             8


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




KAREN A. SMITH, et al.                    :
                                          :
       Plaintiffs-Appellants              :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
CHRISTINA C. GARBER, et al.               :
                                          :
       Defendants-Appellees               :         Case No. 13 CA 40




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to appellants.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. W. SCOTT GWIN


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
