2013 UT App 206

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

L OU A NNE S WEAT

, Plaintiff and Appellant,

v.

J ESS B OEDER AND S CHAFER B OEDER

, Defendants and Appellees.

Memorandum Decision

No. 20120397

‐ CA

Filed August 22, 2013

Third District, Salt Lake Department

The Honorable L.A. Dever

No. 110900588

Scott T. Poston, Attorney for Appellant

Albert W. Gray and Trent D. Holgate, Attorneys

for Appellees

J UDGE W ILLIAM A. T HORNE J R

. authored this Memorandum

Decision, in which J UDGES C AROLYN B. M C H UGH and

J. F REDERIC V OROS J R

. concurred.

THORNE, Judge:

¶1 Plaintiff Lou Anne Sweat appeals from the district court’s

decision granting Defendants Jess Boeder (Father) and Schafer

Boeder’s (Son) (collectively, the Boeders) motion to dismiss for

failure to state a claim. We affirm.

¶2 Sweat filed a complaint against Father on January 10, 2011,

alleging that he was the driver who had crashed into the back of

Sweat’s vehicle when it was stopped at a traffic light on January 12,

2007. On April 14, 2011, Sweat filed an amended complaint adding

Son in the case caption as a defendant but again alleging that

Father was the driver in the automobile accident. On October 27,Sweat v. Boeder

20120397

‐ CA 2013 UT App 206 2 2011, the Boeders filed a motion to dismiss for failure to state a

claim stating that Father was not the driver and that the four

‐ year

statute of limitations had expired as to Son, who was the actual

driver of the vehicle. The district court granted the Boeders’ motion

to dismiss.

¶3 Sweat argues that the district court erred in granting the

motion to dismiss against Son based on the running of the statute

of limitations. Specifically, Sweat contends that the relation back

doctrine under Utah Rule of Civil Procedure 15(c) permits her

amended complaint—adding Son as a defendant—to relate back to

the timely filed original complaint. Rule 15(c) provides

“[w]henever 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 proceeding.” Utah R. Civ. P.

15(c).

¶4 Generally, an amended pleading that adds new parties will

not relate back to the original filing. Penrose v. Ross

, 2003 UT App

157, ¶ 9, 71 P.3d 631. There are, however, two types of cases where

relation back under rule 15(c) permits amended complaints with

new parties: “misnomer” and “identity of interest” cases. Id. ¶ 11

(internal quotation marks omitted). Here, the district court

determined that the facts of this case are parallel to those in Penrose

, wherein the court held that neither the misnomer nor identity of

interest exception applied. We review the district court’s rule 15(c)

analysis under a correctness standard. Gary Porter Constr. v. Fox

Constr., Inc.

, 2004 UT App 354, ¶ 31, 101 P.3d 371.

¶5 Sweat argues that her initial naming of Father as the

defendant was a misnomer because she reasonably relied upon the

Salt Lake City Police Department driver exchange form identifying

Father as both the driver and the owner of the automobile involvedSweat v. Boeder

1 Son, in his affidavit, averred that he gave the investigat

‐ ing officer his own name and showed the officer his driver

license and the vehicle’s registration. The citation that the inves

‐ tigating officer issued to Son was in Son’s name, not Father’s

name.

2 In December 2010, the Boeders’ insurance company sent

a settlement letter to Sweat’s attorney identifying Son as the

insured, stating, “Our Insured: Schafer C Boeder.”

20120397

‐ CA 2013 UT App 206 3 in the accident with Sweat. 1 Sweat also argues that this is a

misnomer case because Son was named in the caption of the

amended complaint but inadvertently left out of the body of the

amended complaint. However, neither scenario fits under the

category of misnomer.

¶6 “A misnomer is involved when the correct party was served

so that the party before the Court is the one Plaintiff intended to

sue, but the name or description of the party in the Complaint is

deficient in some respect.” Tan v. Ohio Cas. Ins. Co.

, 2007 UT App

93, ¶ 12, 157 P.3d 367 (citation and internal quotation marks

omitted). Additionally, courts will generally allow an amendment

under rule 15 to correct technical defects in the naming or

identification of a party “[i]f the body of the complaint correctly

identifies the party, or if the proper person has actually been served

with process.” Id. (citation and internal quotation marks omitted);

see also Penrose

, 2003 UT App 157, ¶¶ 12, 14.

¶7 This is not the case presented here. Sweat neither identified

Son in any capacity in the original complaint nor served Son until

after the expiration of the statute of limitations. Father and Son are

two distinct defendants, each identified in different documents

provided to Sweat prior to the running of the statute of limitations. 2

Because Son’s identity as the driver was ascertainable and Son was

neither served nor identified in the original complaint, this case

does not involve a technical mistake. The addition or substitutionSweat v. Boeder

20120397

‐ CA 2013 UT App 206 4 of Son as a defendant would amount to a substantial change and

not merely a formality or technicality allowed under the relation

back doctrine. Thus, this case does not involve a misnomer. Having

so determined, we next consider whether Father and Son have an

identity of interest permitting the amended complaint to relate

back.

¶8 “Parties have an identity of interest when the real parties in

interest were sufficiently alerted to the proceedings, or were

involved in them unofficially, from an early stage.” Sulzen v.

Williams

, 1999 UT App 76, ¶ 14, 977 P.2d 497 (citation and internal

quotation marks omitted). To qualify as an identity of interest case,

Sweat must establish that

(1) the amended pleading alleged only claims that

arose out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original

pleading and (2) the added party had received

(actual or constructive) notice that it would have

been a proper party to the original pleading such that

no prejudice would result from preventing the new

party from using a statute of limitations defense that

otherwise would have been available.

Ottens v. McNeil

, 2010 UT App 237, ¶ 43, 239 P.3d 308 (citation and

internal quotation marks omitted). One of the ways to establish

constructive notice is to prove “that the original and new party

share ‘the same interest’ concerning the litigation, including their

legal defenses and positions such that ‘notice of the action against

one serves to provide notice of the action to the other.’” Id. ¶ 45

(quoting Penrose

, 2003 UT App 157, ¶¶ 15–19). This method of

proving constructive notice is known as the “Notice Transfer Test.”

Id. (citation and internal quotation marks omitted).

¶9 Here, the district court in applying the Notice Transfer Test

noted that the facts of this case are similar to those in Penrose v.

Ross

, 2003 UT App 157, 71 P.3d 631, and determined that theSweat v. Boeder

3 In her summary of the arguments, Sweat cursorily men

‐

tions that Son had actual knowledge—at the same time Father

did—of the negligence claim asserted against Father. This court

in Ottens v. McNeil

, 2010 UT App 237, 239 P.3d 308, considered

whether actual knowledge existed in that matter. Id. ¶ 50. How

‐

ever, in Ottens we found that unity of interest existed as to one of

the claims. Id. ¶ 48. We have determined that there is no unity of

interest here, and therefore we do not consider Sweat’s actual

knowledge argument.

20120397

‐ CA 2013 UT App 206 5 identity of interest analysis in that case is relevant to this case. The

Penrose court determined that the father and son in that case did

not have an identity of interest because they did not have the same

legal interest in the outcome of the case. As in Penrose

, Father’s

defense is that he was not negligent or liable because he was not

the driver and Son’s affirmative defense focuses on the running of

the statute of limitations. The legal position and defenses of the two

parties are not the same and a disposition of either party does not

affect the claims or defenses available to the other. See id. ¶ 19.

Because the parties do not have the same legal interest there is no

identity of interest. See id.

¶10 Since this case does not involve either a misnomer or an

identity of interest, we conclude that the district court correctly

declined to permit Sweat’s amended complaint to relate back to the

original complaint and therefore properly dismissed the case

against Son based on the running of the statute of limitations. 3

Affirmed.