COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69018 : WILLIAM STEGMAN : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CITY OF CLEVELAND, ET AL. : : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 29, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-251007 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: ROBERT J. DiCELLO, ESQ. SHARON SOBOL JORDAN, ESQ. 7556 Mentor Avenue Director of Law Mentor, Ohio 44060 FARRUQ JAFERY, ESQ. Assistant Law Director City of Cleveland City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 RICHARD R. KUEPPER, ESQ. 480 Skylight Office Tower 1660 W. 2nd Street Cleveland, Ohio 44113-1454 - 2 - KARPINSKI, J.: Plaintiff-appellant William Stegman appeals from orders of the trial court granting judgment in favor of defendants- appellees city of Cleveland and Anthony Allega Cement Contractor, Inc. ("Allega") in this personal injury action arising out of a defective sidewalk. Stegman filed a complaint against Cleveland in the trial court on April 26, 1993. Stegman's complaint alleged that he fell in a large hole on or about August 12, 1991, while riding his bicycle on the sidewalk of East 185th Street near Interstate 90 exit ramp 182A. Stegman alleged that Cleveland negligently maintained the sidewalk and failed to warn him of the sidewalk defect and that this negligence proximately caused his injuries. Cleveland filed an answer denying Stegman's allegations and raised various affirmative defenses. Among the defenses raised was that Stegman's claims should have been asserted against other unnamed parties over which Cleveland had no control. On July 26, 1994, Cleveland filed a third-party complaint for indemnity or contribution against Allega. Allega filed an answer to Cleveland's third-party complaint on September 30, 1994, and raised, inter alia, the defense that the indemnity and contribution claims were not filed against them within the statute of limitations. Cleveland filed a motion for summary judgment arguing that the sidewalk was maintained by the state of Ohio and that - 3 - Cleveland had no notice of the defective condition. Cleveland's motion for summary judgment was supported by, inter alia, deposition testimony of Stegman and affidavits of Cleveland Bureau of Sidewalks superintendent Jacinto Cuellar and Ohio Department of Transportation Structure Maintenance and Inspection Engineer James Barnhart. Cuellar's affidavit stated that the defective sidewalk was on property owned and maintained by the state of Ohio. Approximately three weeks prior to the incident, the state of Ohio entered into a contract with Allega to install handicap accessible sidewalk on the site and Allega was in the process of installing the sidewalk ramp when the incident occurred. Stegman's brief in opposition made various legal arguments, but did not provide any conflicting evidence. Stegman filed an amended complaint, with leave of the trial court, on February 21, 1995, seeking to add Allega as an additional defendant. Allega filed a motion to dismiss the amended complaint against it arguing that Stegman's action was barred by the two-year statute of limitations. Stegman's brief in opposition argued that the trial court should not dismiss his amended complaint against Allega because he was unable to discover the identity of Allega within the limitations period and Allega suffered no prejudice from the delay. The trial court granted Cleveland's motion for summary judgment and Allega's motion to dismiss in orders journalized March 27, 1995, and May 2, 1995, respectively. Stegman timely appeals raising two assignments of error. - 4 - Stegman's first assignment of error follows: WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AGAINST THE PLAINTIFF-APPELLANT AND IN FAVOR OF DEFENDANT CITY OF CLEVELAND. The first assignment of error lacks merit. Stegman contends the trial court improperly granted summary judgment in favor of Cleveland, because Cleveland has a statutory duty to maintain sidewalks within the municipality. R.C. 723.01 and 2744.02(B)(2). However, based on our review of the record, Stegman has failed to show any error. Cleveland produced evidence that the state of Ohio owned and ODOT maintained the property where the incident occurred. Summary judgment is warranted in this context where a plaintiff fails to produce any evidence that defendant owned the premises where the injury occurred. See Witkiewicz v. Daisy Investment Corp. (Feb. 2, 1995), Cuyahoga App. No. 65691, unreported. It is well established that a governmental entity has no duty to maintain a sidewalk when the sidewalk is not within its control. Gorham v. Regional Transit Authority (Feb. 20, 1986), Cuyahoga App. No. 50108, unreported at 3. The record reveals that, at most, Cleveland is an abutting property owner adjacent to the defective sidewalk. Owners of property which abuts public sidewalks may be liable for defects in the sidewalk under certain circumstances. Crowe v. Hoffman (1983), 13 Ohio App.3d 254. However, Stegman has failed to show that Cleveland caused the defect, negligently maintained the - 5 - sidewalk, permitted the defect to exist for its private benefit, or was made liable by statute or ordinance. Furthermore, the record contains no indication that Cleveland had any notice of the defective condition of the sidewalk. Accordingly, Stegman's first assignment of error is overruled. Stegman's second assignment of error follows: WHETHER THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF- APPELLANT'S COMPLAINT AGAINST DEFENDANT ALLEGA. The second assignment of error lacks merit. Stegman argues the trial court improperly granted Allega's motion to dismiss his amended complaint on statute of limitations grounds. Stegman argues he timely commenced the action against Cleveland and that he was unable to raise his claims against Allega until after discovery revealed its role in the incident. Based on our review of the record, Stegman's arguments are unpersuasive. Civ.R. 15 governs the filing of amended complaints. Civ.R. 15(C) specifically governs the effective date of amendments as follows: (C) Relation back of amendments. 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 a defense on the merits, and (2) knew or should have known that, but for - 6 - a mistake concerning the identity of the proper party, the action would have been brought against him. (Emphasis added.) The Ohio Supreme Court has recognized that for an amendment to relate back against a new party, the new party must have timely notice of the action. Cecil v. Cottrill (1993), 67 Ohio St.3d 367, 370. An amendment does not relate back when there is no evidence that the newly added defendant received notice of the action before the statute of limitations expired as in this case. Kuhn v. Seneca Broadview Hills Apts. (Sept. 12, 1991), Cuyahoga App. No. 58942, unreported at 3-5; Herhuth v. Greater Cleveland Regional Transit Authority (July 3, 1991), Cuyahoga App. No. 60960, unreported. This court has previously held, contrary to the authority cited by Stegman, that without such timely notice, an amendment does not relate back even if the new defendant did not suffer any prejudice from the delay. Kuhn v. Seneca Broadview Hills Apts., supra. Accordingly, Stegman's second assignment of error is overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas 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, C.J., and DYKE, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .