COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71840 JO ANNE AUSTIN : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION THE STANDARD BUILDING, et al : [Appeal brought against : R. W. Clark Co. only] : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 4, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 274,515 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant:: CHRISTOPHER M. ERNST Attorney at Law Weston, Hurd, Fallon, Paisley & Howley 2500 Terminal Tower Cleveland, Ohio 44113 CHRISTOPHER S. WINTERS Attorney at Law Winters & Masters Hilliard Building, 2nd Floor 1419 West 9th Street Cleveland, Ohio 44113 (Continued) APPEARANCES (Cont.) For defendant-appellee: DAVID J. FAGNILLI Attorney at Law 2 Davis & Young 1700 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115 3 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Jo Anne Austin appeals the decision of the Cuyahoga County Court of Common Pleas wherein it granted summary judgment in favor of defendant-appellee R.W. Clark Co. For the reasons stated below, we affirm. The record reflects the following facts relevant to the issues brought in this appeal. On July 29, 1994, appellant brought this action for personal injuries as a result of a fall that allegedly occurred on August 16, 1992. Named as defendants in the complaint were the Standard Building, the Brotherhood of Locomotive Engineers, National City Bank, the City of Cleveland, ABC Corporations I-X and John Does I-X. Appellant amended her complaint on February 8, 1995, with leave of the court and substituted the R.W. Clark Co. for ABC Corp. I. Appellant perfected service of the amended complaint on appellee R.W. Clark Corp. by certified mail on February 16, 1995. Appellee filed its answer to the amended complaint on March 8, 1995, and filed its amended answer on March 17, in which it asserted as a defense that the claim was brought outside the permissible statute of limitations. At the close of discovery, all defendants moved for summary judgment. In its motion for summary judgment filed January 26, 1996, appellee R.W. Clark claimed that two grounds existed for judgment in its favor. First, appellee asserted that appellant's claim against it was made outside the applicable statute of limitations and, second, appellee asserted that it owed no duty to 4 appellant relating to her alleged fall. The trial court denied the summary judgment motions of all defendants, including the motion of appellee. Thereafter, the defendants, including appellee R.W. Clark Co., moved the court to reconsider its rulings, and on May 13, 1996, the court granted the motion to reconsider wherein the court granted summary judgment as to appellee R.W. Clark Co. only, citing Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57. On May 22, defendants requested clarification of the court's order, and on June 7, the court entered an order clarifying its ruling wherein it stated that the matter remained pending against the Standard Building and the Brotherhood of Locomotive Engineers. On November 29, 1996, appellant moved the court to certify its decision in accordance with Civ.R. 54(B), which the trial court ordered, nunc pro tunc, on December 13, 1996, determining that there was no just cause for delay. From this order, appellant timely appeals and presents three assignments of error for our review. ASSIGNMENT OF ERROR NO. I CIV.R. 15(D) IS NOT THE APPLICABLE RULE IN THE SITUATION PRESENTED IN THIS CASE. ASSIGNMENT OF ERROR NO. II R.W. CLARK CO. WAIVED ANY ISSUE PERTAINING TO THE SERVICE OF THE AMENDED COMPLAINT AND, THEREFORE, SHOULD HAVE BEEN PRECLUDED FROM ARGUING SAID ISSUE IN ITS MOTION FOR SUMMARY JUDGMENT. 5 ASSIGNMENT OF ERROR NO. III THE CONDUCT OF R.W. CLARK CO. IS IN CLEAR VIOLATION OF THE SPIRIT OF THE CIVIL RULES. Initially, appellant asserts that Civ.R. 15(D) does not govern this case and the application of Amerine v. Haughton Elevator by the trial court was misplaced. Appellant, in reliance on Varno v. Bally Manufacturing Co. (1985), 19 Ohio St.3d 21, concludes that Civ.R. 15(D) does not apply but that Civ.R. 15(C) governs the matter before us. Essentially, appellant contends that pursuant to the civil rules, her amended complaint against the appellee related back to the initial filing of her complaint on July 29, 1994 and her action against appellee was not barred by the applicable statute of limitations. We do not agree. The applicable statute of limitations for the within action is found in R.C. 2305.10, which requires that the action be brought within two years of the date of the injury. The statute of limitations in the matter sub judice expired on August 16, 1994, two years from the date of appellant's alleged fall. We find appellant's reliance on Varno, supra is misplaced. The court in Varno held that in construing Civ.R. 15(D), where a complaint is filed that designates certain defendants by fictitious names, the cause of action is barred by the statute of limitations if, in the original complaint or an amended complaint substituting the action, the actual names are not personally served within the limitations period. The Varno court, in its holding, determined that Civ.R. 15(D) could not be used in conjunction with Civ.R. 3(A) to overcome the time bar of a statute of limitations. In 1986, 6 Civ.R. 3(A) was amended to correct the result obtained in Varno and, consequently, to permit an amended complaint to relate back to the date of filing in a situation where the plaintiff does not know the actual name of the defendant but amends the complaint as provided in Civ.R. 15(D). As amended, Civ.R. 3(A) provides: A civil action is commenced by the filing of 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 Rule 15(C) or upon a defendant identified by a fictitious name whose name is later corrected by Rule 15(D). A plain reading of the rule, therefore, shows us that a plaintiff may gain an additional year from the date of filing within which to correctly identify and serve the proper defendant if the plaintiff does so in accordance with Civ.R. 15(C) or (D). Civ.R. 15(D) is applicable to the situations where the name of a party is unknown to the plaintiff at the time of filing the complaint and provides that: 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 a 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. Consequently, if a plaintiff timely files an action naming an unknown John Doe defendant containing the words name unknown, then, even though a statute of limitations has intervened, 7 plaintiff may serve the John Doe defendant upon discovering who he is within one year after commencing the action by personally serving a copy of the summons upon him. Civ.R. 15(D). The amended complaint then relates back to the initial filing date of the complaint. Civ.R. 3(A). Civ.R. 15(C), which governs the relation back to the original filing date of an amended pleading, provides for relation back when the amendment changing the party satisfies the requirements that: *** where the party to be brought in by the 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. (Emphasis added). The record before us leads us to conclude that Civ.R. 15(D) governs the matter before us. We reject appellant's reliance on Civ.R. 15(C). The record reflects that the names of the corporations that appellant intended to name as defendants in her lawsuit were unknown to her at the time of filing; therefore, in her complaint, appellant designated them as ABC Corporations I-X. She further complied with the directives of Civ.R. 15(D) by designating these defendants in the complaint as name unknown. Then, in accordance with the requirement of Civ.R. 15(D), when the name of the appellee became known to her, appellant filed her amended complaint, properly naming it as R.W. Clark Co. Appellant obtained certified mail service of the amended complaint 8 upon appellee. Consequently, the record before us does not support appellant's contention that Civ.R. 15(C), which relates to changing a party by amendment where the wrong party is named through mistake or inadvertence, is applicable in this case. There is no indication here that naming the ABC Corp. was done by mistake. Further, even if appellant were able to show that the amended complaint was necessary to change the party to the correct party as permitted by Civ.R. 15(C), the record does not show any evidence that appellee had received such notice of the institution of the action that it would not be prejudiced or that appellee knew or should have known that but for the mistake the action would have been brought against it as required by that rule. Therefore, having determined that Civ.R. 15(D) governs the amended complaint of appellant, we review the propriety of the trial court's grant of summary judgment to appellee on the basis of Amerine, supra. We review the summary judgment of appellant de novo. The Ohio Supreme Court interpreted the amended Civ.R. 3(A) in Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57 and upheld the decision of the trial court, which granted the summary judgment of the defendant. The supreme court determined that the statute of limitations had elapsed before the complaint was amended. The issue presented to the court was whether Civ.R. 15(D), read in conjunction with Civ.R. 15(C) and 3(A), allowed for the appellant's amended complaint to relate back to the time of filing the original complaint. The court held, at the syllabus: 9 In determining if a previously unknown, now known, defendant has been properly served so as to avoid the time bar of an applicable statute of limitations, Civ.R. 15(D) must be read in conjunction with Civ.R. 15(C) and 3(A). However, as in the matter sub judice, the plaintiff in Amerine had served the amended complaint upon the defendant by certified mail. The Amerine court found that: Civ.R. 15(D) specifically requires that the summons must be served personally upon the defendant. In this case, service was performed by way of certified mail which is clearly not in accordance with the requirement of Civ.R. 15(D). Civ.R. 15(D) also requires that the summons must contain the words name unknown. Appellants also failed to meet this specific requirement of the rule. Amerine, supra, at 58. Therefore, finding that Civ.R. 15(D) requires personal service to be made, the supreme court affirmed the grant of summary judgment as to the defendant, finding that it was proper, due to the plaintiff's failure to meet the specific requirements of Civ.R. 15(D). Consequently, where, as here, appellant has failed to follow the requirements of Civ.R. 15(D), she is unable to claim the benefit of the relation back of the amended complaint as provided by Civ.R. 3(A). Amerline supra; see, also, Gaston v. City of Toledo (1995), 106 Ohio App.3d 66, 79; McConville v. Jackson Comfort Systems, Inc. (1994), 95 Ohio App.3d 297. Therefore, we find that Civ.R. 15(D) governs the matter before us and appellant's failure to follow the requirements of that rule preclude her from gaining the benefit of the relation back of her amended complaint 10 to the date of filing as permitted by Civ.R. 3(A). The trial court properly granted summary judgment to appellee on the basis of Amerine, supra. Accordingly, appellant's first assignment of error not well taken. Next, appellant argues that appellee waived any issue relating to service of the amended complaint and, consequently, appellee should have been precluded from arguing the issue of failure of service in its motion for summary judgment. Appellant's argument is without merit. Appellee moved for summary judgment on the basis that service was obtained by certified mail and appellant had failed to commence the suit against appellee before the applicable statute of limitations had run. In its motion for summary judgment, appellee did not argue that service was defective. The record reflects that appellant perfected certified service on the appellee; however, such service was perfected outside the time allowed by the statutory limitation within which it is required to commence a personal injury claim. Appellant attempted to rely on the benefit bestowed by Civ.R. 3(A) providing for the relation back of the amendment by utilizing Civ.R. 15(D). Appellant was entitled to rely upon Civ.R. 15(D) because she did not know the name of appellee, as evidenced by the complaint in which she asserted that the ABC Corp. I-X were name unknown. Upon discovery of the correct identity of the previously unknown defendant, appellant filed her amended complaint. Appellant served appellee by certified mail. 11 Appellant's action was barred by the statute of limitations because appellant failed to meet the requirements of Civ.R. 15(D), not because she failed to obtain good service on appellee. In fact, had the statute of limitations not run as of the date appellant perfected certified service upon appellee, such service would have been sufficient to maintain the action against appellee without reliance on Civ.R. 15(D). Whether appellee waived the defenses pertaining to the service of process is irrelevant to the matter at issue in this case. The issue in the matter sub judice is whether appellant met the requirements of Civ.R. 15(D) in order to obtain the benefit of Civ.R. 3(A), which permits the relation back of the amended complaint to the date of filing the original complaint in order to avoid the statute of limitations. Therefore, we find that where appellee made no argument or claim that service was defective, it is irrelevant whether appellee waived its defenses to service. Appellant's second assignment of error is without merit. Finally, appellant argues that appellee is in clear violation of the spirit of the civil rules because appellee lay like a snake in the grass waiting for the time for commencement to expire pursuant to Civ.R. 3(A) before it jumped up and proclaimed it could not be legally sued. Appellant relies on Markese v. Ellis (1967), 11 Ohio App.2d 160 and Brown v. Marsaw (May 19, 1994), Cuyahoga App. No. 66360, unreported, for the proposition that appellee ought not to be permitted to have lulled her into a false sense of security, thereby subjecting her claim to the statute of 12 limitations. Although the court in Markese recognized this principle of law, under the facts of the case, the court determined that there was no evidence that the defendants had lulled Markese into a false sense of security and subjected her to the expiration of the statute of limitations. In the matter sub judice, the record reflects that appellee filed its amended answer on March 17, 1995, in which it affirma- tively pled the defense of statute of limitations. This affirma- tive defense was the only change from the original answer. Therefore, from March 17 to July 29, 1995, a period of three and one-half months, appellant had the opportunity to review the rule, correct her error, and properly follow the requirement of Civ.R. 15(D) to personally serve the summons on appellee. Had appellant done so, the requirements of Civ.R. 15(D) would have been met, the amended complaint would have related back to the date of filing pursuant to Civ.R. 3(A), and the statute of limitations would not be a bar to the action against appellee. With the facts of the case as they are before us, we do not see the actions of appellee as violating the spirit of the civil rules. Accordingly, we find appellant's third assignment of error to be without merit. The judgment of the trial court is affirmed. 13 It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, C.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .