COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68991 JOHN R. SHAVER, ET AL., : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiffs-Appellants : : AND v. : : OPINION R.A. DARDEN COMPANY, ET AL., : : PER CURIAM : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 275018 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: Thomas G. Kelley KELLEY, KLIMA & SULLIVAN 516 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendants-appellees: Richard R. Kuepper Brian A. Meeker KUEPPER, WALKER, HAWKINS & CHULIK Skylight Office Tower 1660 W. Second Street Suite No. 480 Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiffs-appellants John R. Shaver and Barbara Shaver appeal from the trial court order granting defendant-appellee R.A. Darden Company's motion to dismiss appellants' complaint. Appellants' complaint was filed on August 8, 1994 against appellee "and John Doe Construction Company." It avers appellant John R. Shaver suffered an injury on his job site on December 11, 1991 due to the defendants' negligence. 1 Appellee stated the following in its motion to dismiss: 1) appellants originally filed this action against "Thomas A. Darden Construction Company and John Doe Construction Company" on December 10, 1993 (emphasis added); 2) the trial court ordered appellants to 2 perfect service by June 15, 1994 or the case would be dismissed; 3) appellants filed an amended complaint on June 15, 1994 adding appellee as a defendant; 4) the trial court dismissed the original complaint on June 17, 1994 for failure to perfect service; and 5) appellants obtained service on appellee on June 20, 1994. Appellants never filed a notice of appeal from the trial court's order of dismissal; appellants simply refiled their action approximately a month and a half later, this time deleting "Thomas A. Darden Construction Company" as a defendant. Upon consideration of both appellee's motion and appellants' brief in opposition, the trial court granted appellee's motion to 1 Appellants did not dispute these statements in their brief in opposition to appellee's motion. 2 See Civ.R. 4(E), Civ.R. 41(B)(1), and Loc. R. 18. -3- dismiss on the basis that appellants' action was barred by R.C. 2305.10, the applicable two-year statute of limitations. In so doing, the trial court rejected appellants' arguments that either 3 Civ.R. 15(C) or (D) applied to save their claim against appellee. This court disagrees. Initially, this court notes that to the extent appellants attempt to argue that the trial court erred in dismissing their original complaint, their argument may not be considered. App.R. 4(A); see, also, e.g., Bosco v. Euclid (1974), 38 Ohio App.2d 40 at headnote 1. However, the authority appellants cite as support for their position, viz., Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57, is persuasive when considered in relation to the facts of this case. Appellants attempted to amend their original complaint prior to a dismissal of the original action. Clearly, the change from "Thomas" to "R." Darden Company indicates appellants were merely correcting the defendant's name. Cf. Calman v. Mize (1989), 63 Ohio App.3d 231; Land v. Rolm Corp. (1993), 87 Ohio App.3d 305. Thus, pursuant to Civ.R. 3(A) and Civ.R. 15(C), once the amended complaint was filed, appellants had a year from the date the original complaint was filed in which to perfect service on appellee, unless appellee could show Civ.R. 15(C)(1) and (2) applied. Kraly v. Vannenkirk (1994), 69 Ohio St.3d 627. Since 3 On appeal, appellants now claim that only Civ.R. 15(D) "is the proper Rule to be considered;" however, the record fails to indicate appellants complied with the requirements of that rule. -4- appellee admitted being served on June 20, 1994, despite the trial court's dismissal of the original complaint in the meantime, the action had been "attempted to be commenced." Cf., Motorists Mutual Ins. Co. v. Huron Rd. Hosp. (1995), 73 Ohio St.3d 391; Cecil v. Cottril (1993), 67 Ohio St.3d 367; Children's Hospital v. Dept. of Public Welfare (1982), 69 Ohio St.2d 523 at syllabus; Branscom v. Birtcher (1988), 55 Ohio App.3d 242, 244. Therefore, the trial court erred in granting appellee's motion to dismiss. For the foregoing reasons, appellants' assignment of error is sustained. The opinion and order of the trial court is therefore reversed and this case is remanded for further proceedings according to law. -5- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, PRESIDING JUDGE JAMES M. PORTER, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .