[Cite as Schisler v. Columbus Med. Equip., 2016-Ohio-3302.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Vernon Schisler, : 

 Plaintiff-Appellant, : 

 No. 15AP-551

v. : (C.P.C. No. 13CV-13717)

 

Columbus Medical Equipment et al., : (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on June 7, 2016 

 

On brief: Donahey, Defossez & Beausay, and Jacob J. 

Beausay, for appellant. Argued: Jacob J. Beausay. 

On brief: Weston Hurd LLP, Shawn W. Maestle, and John 

G. Farnan; Law Offices of Steven Kelley, and Cornelius J. 

O'Sullivan, Jr., for appellees. Argued: John G. Farnan. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} Plaintiff-appellant, Vernon Schisler, appeals the May 15, 2015 judgment of 

the Franklin County Court of Common Pleas granting the motion for summary judgment 

and judgment on the pleadings filed by defendants-appellees, Robert Jones ("Jones") and 

Columbus Medical Equipment ("CME"), and dismissing the complaint. For the reasons 

that follow, we affirm in part and reverse in part the judgment of the trial court. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} The facts of this case are undisputed. On December 12, 2011, appellant was 

involved in an automobile accident which allegedly caused him to suffer personal injuries. 

On December 20, 2013, appellant filed a complaint in the trial court naming as 

defendants: 

COLUMBUS MEDICAL EQUIPMENT 

c/o Mike Gunner, Statutory Agent 
No. 15AP-551 2 

3535 Fishinger Blvd., Suite 220 

Columbus, Ohio 43026 

and 

JOHN DOE 

306 East 5th Avenue 

Columbus, Ohio 43201 

{¶ 3} According to the complaint, "John Doe[,] an employee, agent, or apparent 

agent of Defendant Columbus Medical Equipment * * * operat[ed] a motor vehicle * * * in 

connection with his employment with Columbus Medical Equipment" and "negligently 

struck Mr. Schisler's vehicle." (Dec. 20, 2013 Compl. at 1-2.) The complaint references two 

dates of the alleged accident: December 11, and December 21, 2011. (Compl. at 1.) The 

complaint further states that "[t]he identity of Defendant Doe could not reasonably [be] 

ascertained." (Compl. at 1.) Appellant requested service of the complaint upon CME and 

John Doe by certified mail, and the summons accordingly issued under those names. 

Service of the original complaint by certified mail was completed for CME, and was 

completed for John Doe with the recipient signature "Carl A. Mulberry." (Dec. 27, 2013 

Proof of Service at 1.) 

{¶ 4} Three days later, on December 23, 2013, appellant amended the complaint, 

substituting "Robert Jones" in the place of John Doe, with the same address. (Dec. 23, 

2013 First Am. Compl. at 1.) The amended complaint states the date of the accident as 

"[o]n or about December 21, 2011." (Am. Compl. at 1.) Appellant again requested service 

of the amended complaint upon CME and Robert Jones by certified mail. Service of the 

amended complaint by certified mail was completed with respect to both CME and Jones. 

{¶ 5} On January 17, 2014, appellees answered the complaint asserting, among 

other defenses, insufficiency of service of the summons and complaint, failure to be 

properly identified, and expiration of the statute of limitations. Seven months later, on 

July 9, 2014, appellee Jones answered in his response to interrogatories that he had 

personally left the state of Ohio from July 14-27, 2012, July 11-22, 2013, and 

October 3-6, 2013, and that CME "remained open for business at all of [the] 

aforementioned times." (Def.'s Answers to Pl.'s Interrogs. at 3.) 
No. 15AP-551 3 

{¶ 6} On September 26, 2014, appellees filed a motion for summary judgment 

asserting that, despite the dates in the complaint, the accident actually occurred on 

December 12, 2011, and, therefore, the statute of limitations against CME and Jones 

expired before appellant filed the lawsuit. Appellees attached appellant's responses to 

appellees' request for admissions in support of their motion to support the assertion that 

the accident actually occurred on December 12, 2011. Appellant filed a memorandum 

contra on October 9, 2014, asserting that the statute of limitations had been tolled for 

approximately 27 days when Jones left the state during the limitations period, and that 

CME's liability was solely a derivative cause of action. Appellant attached appellee Jones' 

answers to interrogatories, showing that appellee Jones left the State of Ohio for 

approximately 27 days between July 14, 2012 and October 6, 2013. 

{¶ 7} The motion for summary judgment remained pending before the trial court. 

On January 16, 2015, appellees filed a "Motion for Judgment on the Pleadings in Favor of 

Defendant Robert Jones and Renewed Motion for Summary Judgment in Favor of 

Columbus Medical Equipment," arguing that the original summons did not contain the 

words "name unknown" and that Jones was not personally served with a copy of either 

the original or amended complaint under Civ.R. 15(D). Thus, according to appellees, 

appellant's failure to comply with the strict requirements of Civ.R. 15(D) resulted in the 

relation back concept of Civ.R. 15(C) being inapplicable to the amended complaint filed on 

December 23, 2013. In the renewed motion for summary judgment in favor of CME, 

appellees reiterated their argument that the claim was barred by the statute of limitations. 

Appellees attached exhibits to their motions including appellant's responses to requests 

for admissions showing the date of the accident as December 12, 2011. Appellant filed a 

memorandum contra, with the answers to interrogatories again attached as an exhibit 

showing the times appellee Jones was absent from the state, followed by appellees' reply. 

{¶ 8} On May 15, 2015, the trial court granted appellees' motions and dismissed 

the complaint. In doing so, the court ruled that appellant filed his initial complaint eight 

days after the two-year statute of limitation ran as it applies to CME, and, therefore, 

granted appellees' motion for summary judgment in part. The court additionally found 

that, under Civ.R. 15(D), appellant failed to include the words "name unknown" on the 

summons and failed to perfect personal service of the complaint on Jones, finding service 
No. 15AP-551 4 

by certified mail insufficient under precedent analyzing service under Civ.R. 15(D). As 

such, the trial court granted appellees' motion for judgment on the pleadings in favor of 

Jones. 

II. ASSIGNMENTS OF ERROR 

{¶ 9} Appellant assigns two assignments of error for our review: 

[I.] The trial court erred in granting Defendant Robert Jones' 

Motion for Judgment on the Pleadings because Civ.R. 15(D) 

is only applicable to dismiss a plaintiff's case when a plaintiff 

attempts to "relate back" pursuant to Civ.R. 15(C). 

[II.] The trial court erred in granting Columbus Medical 

Equipment's Motion for Summary Judgment because the 

statute of limitations for a derivatively liable principal is 

the same as the agent's statute of limitations. 

III. DISCUSSION 

A. Standard of Review

{¶ 10} Civ.R. 12(C) states: "After the pleadings are closed but within such time as 

not to delay the trial, any party may move for judgment on the pleadings." "In ruling on a 

motion for judgment on the pleadings, the court is permitted to consider both the 

complaint and answer." Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-1048, 

2015-Ohio-2668, ¶ 3, quoting Toldeo City School Dist. Bd. of Edn. v. State Bd. of Edn., 

10th Dist. No. 14AP-93, 2014-Ohio-3741, ¶ 18, citing State ex rel. Midwest Pride IV, 

Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Additionally, the Supreme Court of Ohio 

has held that "[i]t is axiomatic that a trial court may take judicial notice of its own 

docket." Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580 (1994). 

Therefore, it is "proper for the trial court to take judicial notice of its docket in the 

immediate case in the context of a Civ.R. 12(C) motion to determine when and how [a 

defendant] was served with the complaint and summons." Whitehead v. Skillman Corp., 

12th Dist. No. CA2014-03-061, 2014-Ohio-4893, ¶ 8. See also Pearson v. Columbus, 10th 

Dist. No. 14AP-313, 2014-Ohio-5563, ¶ 17. 

{¶ 11} When presented with a motion for judgment on the pleadings, a trial court 

must construe all the material allegations of the complaint as true and must draw all 

reasonable inferences in favor of the nonmoving party. Smith v. Ohio Dept. of Transp., 
No. 15AP-551 5 

10th Dist. No. 15AP-521, 2015-Ohio-5240, ¶ 6, citing Peters and Pontious. The court will 

grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in 

support of the claim(s) that would entitle him or her to relief. Id. A judgment on the 

pleadings dismissing an action is subject to a de novo standard of review in the court of 

appeals. Id., citing RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. No. 

13AP-1, 2013-Ohio-4343, ¶ 13, citing Franks v. Ohio Dept. of Rehab. & Corr., 195 Ohio 

App.3d 114, 2011-Ohio-2048, ¶ 5 (10th Dist.). 

{¶ 12} An appellate court reviews summary judgment under a de novo standard as 

well. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio 

Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is 

appropriate only when the moving party demonstrates (1) no genuine issue of material 

fact exists, (2) the moving party is entitled to judgment as a matter of law, and 

(3) reasonable minds could come to but one conclusion and that conclusion is adverse to 

the party against whom the motion for summary judgment is made, that party being 

entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex 

rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997). 

{¶ 13} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). However, the moving party cannot discharge its initial burden under this rule 

with a conclusory assertion that the nonmoving party has no evidence to prove its case; 

the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) 

affirmatively demonstrating that the nonmoving party has no evidence to support the 

nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the 

moving party discharges its initial burden, summary judgment is appropriate if the 

nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, 

with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 

430; Civ.R. 56(E). 

B. Original Motion for Summary Judgment

{¶ 14} The bar of the statute of limitations was not obvious from the face of either 

complaint. In the original motion for summary judgment appellees argued that the 
No. 15AP-551 6 

statute of limitations expired with respect to both CME and appellee Jones before 

appellant filed his lawsuit. By filing a motion for summary judgment, appellees were 

permitted by rule to attach responses to the requests for admissions that showed the date 

of the accident as December 12, 2011 instead of the date referenced in the complaint. In 

responding to the motion for summary judgment, appellant was able to submit evidence 

that the statute of limitations was tolled while appellee Jones was out of state. Neither 

side contests these facts. What is apparent from the record is that neither side could 

establish its case simply by reference to the pleadings. Appellees needed information 

outside the pleadings to show that the date of the accident was really December 12, 2011, 

instead of December 21, 2011. Appellant needed information outside the pleadings to 

show that the two-year statute of limitations was tolled for the approximately twentyseven days appellee Jones was out of state during the limitations period. 

C. Motion for Judgment on the Pleadings and Renewed Motion for 

Summary Judgment 

{¶ 15} By filing both a motion for judgment on the pleadings as to appellee Jones 

and a renewed motion for summary judgment only as to appellee CME, appellees attempt 

to circumvent appellant's argument that both the complaint and the amended complaint 

were filed timely because appellee Jones was absent from the state. By filing a motion for 

judgment on the pleadings only with respect to appellee Jones, appellees seek to limit the 

court's consideration to the pleadings and thus require the court to determine the appeal 

without regard to the undisputed facts in the record that were established by means of the 

first motion for summary judgment; namely that both complaints were filed timely with 

respect to appellee Jones, and that the complaint contained an error as to the date the 

accident occurred. These facts are critically important in deciding whether the relation 

back doctrine of Civ.R. 15(C) and the strict filing requirements of Civ.R. 15(D) have any 

applicability to the case. 

{¶ 16} Civ.R. 12(C) motions are specifically designed for resolving questions of law. 

Peterson v. Teodosio, 34 Ohio St. 2d 161, 166 (1973). Additionally, a Civ.R. 12(C) motion 

"requires a determination that no factual issues exist and that the movant is entitled to 

judgment as a matter of law." Pontious at 570. Here, the statute of limitations and the 

timeliness of the amended complaint are crucial factors in deciding whether appellant was 
No. 15AP-551 7 

required to comply with the strictures of Civ.R. 15(D). Whether the statute of limitations 

barred this action and whether appellant had to comply with the requirements of Civ.R. 

15(D) cannot be determined from the pleadings because neither the complaint nor the 

amended complaint states the correct date of the accident or shows the time during which 

the statute of limitations was tolled. A motion to dismiss or a motion for judgment on the 

pleadings, based on the bar of the statute of limitations, should not be granted if the 

complaint does not conclusively demonstrate on its face that the action is barred by the 

statute of limitations. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 

(1982), paragraph three of the syllabus; Goodwin v. Dept. of Rehab. & Corr., 10th Dist. 

No. 95API03-393 (Sep. 19, 1995). Thus, judgment on the pleadings was not the 

appropriate mechanism for determining whether the claim against appellee Jones should 

have been dismissed because the statute of limitations issue could not be resolved simply 

by reference to the pleadings. 

{¶ 17} One important purpose of the Ohio Rules of Civil Procedure is to "effect just 

results by eliminating * * * impediments to the expeditious administration of justice." 

Civ.R. 1(B). Appellees filed a motion for summary judgment as to both appellees, then 

combined motion for judgment on the pleadings and a motion for summary judgment. 

Since our standard of review for both motions is de novo, and there are no genuine issues 

of material fact, we shall accept the materials submitted by the parties as exhibits and 

review the trial court's decision to dismiss the complaint under the de novo summary 

judgment standard of review. 

D. First Assignment of Error 

{¶ 18} In his first assignment of error, appellant contends the trial court erred in 

dismissing appellant's complaint against appellee Jones based on its application of Civ.R. 

15(D). Appellant argues that since he amended his complaint within 28 days of serving his 

original complaint under Civ.R. 15(A), and "properly substituted" Jones for "John Doe" 

prior to the expiration of the statute of limitations, Civ.R. 15(D) does not apply. 

(Appellant's Brief, 14.) In essence, appellant argues that compliance with Civ.R. 15(D) is 

only required in "relation back" situations where the statute of limitations has intervened 

between the original and amended complaint. (Appellant's Brief, 17.) 
No. 15AP-551 8 

{¶ 19} Appellees argue that the plain language of Civ.R. 15(D) provides that 

plaintiffs who do not know the names of identified parties must follow certain 

requirements, and does not confine compliance with the rule to relation back factual 

situations. 

{¶ 20} Civ.R. 15 provides requirements for amendment and supplementing 

pleadings. In pertinent part, Civ.R. 15 states: 

(A) Amendments. A party may amend its pleading once as 

a matter of course within twenty-eight days after serving it 

or, if the pleading is one to which a responsive pleading 

is required within twenty-eight days after service of a 

responsive pleading or twenty-eight days after service of a 

motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In 

all other cases, a party may amend its pleading only with the 

opposing party's written consent or the court's leave. The 

court shall freely give leave when justice so requires. 

* * * 

(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 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. 

 

* * * 

(D) Amendments where name of party unknown. 

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 case, must aver in the complaint the fact 

that he could not discover the name. The summons must 
No. 15AP-551 9 

contain the words "name unknown," and a copy thereof must 

be served personally upon the defendant. 

{¶ 21} In analyzing Civ.R. 15(D), the Supreme Court has specified that "[a] 

claimant may use Civ.R. 15(D) to file a complaint designating a defendant by any name 

and designation when the plaintiff has identified but does not know the name of that 

party, provided that the plaintiff avers in the complaint that the name of the defendant 

could not be discovered and a summons containing the words 'name unknown' is issued 

and personally served on the defendant." (Emphasis sic.) Erwin v. Bryan, 125 Ohio St.3d 

519, 2010-Ohio-2202, ¶ 40. Each Civ.R. 15(D) requirement must be met in order for the 

plaintiff to take advantage of Civ.R. 15(D), amend the original complaint, and invoke the 

relation-back provisions of Civ.R. 15(C). Pearson at ¶ 15. Furthermore, these 

requirements are strictly construed. See, e.g., Pearson at ¶ 16, 21 (finding allegation in 

original complaint that defendants' names were unknown insufficient to meet the Civ.R. 

15(D) requirement that the summons include the words "name unknown"); Laneve v. 

Atlas Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 17 ("Certified mail is an 

improper method of service under Civ.R. 15(D), which specifies that personal service is 

the only method by which a fictitious, now identified, defendant may be served."). 

{¶ 22} Here, it appears from the record that there was initial confusion about the 

date of the accident. Under Ohio law, the statutory time limit to commence a personal 

injury claim is two years from the date the injury was incurred or discovered. 

R.C. 2305.10(A). Apparently, appellant or his counsel thought that the accident occurred 

on December 21, 2011, and he filed the original complaint against CME and an unknown 

defendant on December 20, 2013, one day before he thought the statute of limitations 

expired. 

{¶ 23} However, as appellant later learned in discovery, even though the accident 

actually occurred on December 12, 2011, the applicable statutory time limit had not 

expired as to appellee Jones because he had been absent from the State of Ohio. See R.C. 

2305.15 (tolling of limitation during defendant's absence). Thus, both the original and 

amended complaints were filed within the applicable statute of limitations as applied to 

appellee Jones. Appellant filed his amended complaint within the statute of limitations as 

to appellee Jones. This was his right under Civ.R. 15(A), and once he obtained service on 
No. 15AP-551 10 

appellee Jones, appellant's lawsuit was properly commenced pursuant to Civ.R. 3(A). 

These facts distinguish the instant case from the classic scenario which requires strict 

adherence to Civ.R. 15(D) so as to avoid the time bar of an applicable statute of 

limitations. 

{¶ 24} Cases dealing with the application of Civ.R. 15(D) and the strict 

requirements contained in that rule, revolve around situations where a plaintiff files a 

complaint against a John Doe defendant and later substitutes a named defendant after 

the statute of limitations expires. Such was the case in Erwin. In Erwin, a wrongful 

death complaint named several "John Doe" defendants, but none of them were served 

with a summons before the expiration of the statute of limitations. The Supreme Court of 

Ohio recognized "that a claimant may not be able to identify all culpable parties at the 

time of filing a complaint," but went on to "point out that nothing in our opinion should 

be construed to prevent amendment of a timely filed complaint before the expiration of 

the statute of limitations." Id. at ¶ 39. 

{¶ 25} In Amerine v. Haughton Elevator Co., 42 Ohio St.3d 57 (1989), the plaintiff 

filed her original complaint against a company and two John Doe defendants two days 

before the expiration of the statute of limitations. The plaintiff later discovered the 

identity of a John Doe defendant and filed an amended complaint outside the statute of 

limitations. The Supreme Court of Ohio upheld dismissal of the complaint against the 

now identified John Doe defendant because the plaintiff failed to comply with Civ.R. 

15(D) when she served the original complaint and the amended complaint upon the 

defendant by certified mail instead of personal service. Id. at 58. In that opinion, the 

Supreme Court of Ohio also stated that "[i]n 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)." (Emphasis added.) Amerine at syllabus. 

{¶ 26} Here, the time bar of the statute of limitations is not an issue. Appellant 

unquestionably filed both the original complaint and the amended complaint within the 

applicable statute of limitations as it applies to appellee Jones. Therefore, when appellant 

filed his amended complaint he did not need to invoke the relation-back provisions of 

Civ.R. 15(C), and there is no need to consider Civ.R. 15(D) because the amended 
No. 15AP-551 11 

complaint was duly filed on December 23, 2013, within the applicable statute of 

limitations, and properly served upon appellee Jones as evidenced by the certified mail 

receipt in the record dated January 23, 2014. 

{¶ 27} Under Civ.R. 15(A), a party may amend his pleading once as a matter of 

course at any time before a responsive pleading is served without leave of court. That is 

what happened here. Appellee Jones was properly served by certified mail with the 

summons and amended complaint. A plaintiff may properly name a fictitious defendant 

and amend his complaint under Civ.R. 15(A), without regard to the requirements of 

amending under Civ.R. 15(D), as long as the amended complaint is filed before the 

expiration of the statute of limitations. 

{¶ 28} To apply Civ.R. 15(D) to dismiss this action against appellee Jones in the 

presence of another rule, Civ.R. 15(A), that permits a plaintiff leave to freely amend his 

complaint once as a matter of course without leave of court, is not in the spirit of the Civil 

Rules. Civ.R. 15(D) should not operate in a manner that cancels out Civ.R. 15(A). "The 

spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading 

deficiencies. * * * Pleadings are simply an end to that objective." Peterson at 175. 

{¶ 29} Consequently, the trial court erred by dismissing the claim against appellee 

Jones. Accordingly, appellant's first assignment of error is sustained. 

E. Second Assignment of Error 

{¶ 30} Appellant's second assignment of error asserts that the trial court erred in 

granting CME's motion for summary judgment because the statute of limitations for his 

derivative liability claims against CME was tolled for the 27 days Jones left Ohio. We 

disagree. 

{¶ 31} Generally, a third party injured by an employee acting within the scope of 

his employment may pursue damages against the employer under the doctrine of 

respondeat superior in addition to or instead of pursuing damages against the employee. 

Orebaugh v. Wal-Mart Stores, Inc., 12th Dist. No. CA2006-08-185, 2007-Ohio-4969, 

¶ 13-19, citing Flagg v. Bedford, 7 Ohio St.2d 45, 47-48 (1966); Tisdale v. Toledo Hosp., 

197 Ohio App.3d 316, 2012-Ohio-1110, ¶ 42 (6th Dist.). The statute of limitations that 

applies to the claim against the employee also applies to the derivative action against the 

employer. Doe v. First United Methodist Church, 68 Ohio St.3d 531, 537 (1994). The 
No. 15AP-551 12 

statute of limitations for negligence is two years. R.C. 2305.10(A). The statute of 

limitations may be tolled during a defendant's absence from the state. R.C. 2305.15(A). 

Generally, "[i]f a defendant is amenable to service of process during that time period for 

R.C. 2305.15(A) purposes, that defendant is present in the state," and the tolling statute 

does not apply. Jones v. St. Anthony Med. Ctr., 10th Dist. No. 95APE08-1014 (Feb. 20, 

1996), citing Thompson v. Horvath, 10 Ohio St.2d 247, 251 (1967). 

{¶ 32} In their motion for summary judgment, appellees pointed to evidence that 

both the original and amended complaint fell outside of the two-year mark from the 

actual date of the accident, December 12, 2011, and that CME was amenable to service of 

process throughout the entire statutory period by being open for business and having a 

statutory agent. Appellant pointed to evidence that Jones left the state of Ohio from 

July 14-27, 2012, July 11-22, 2013, and October 3-6, 2013, and argued that those days 

should toll the statute of limitations for bringing a claim against CME. Because CME was 

amenable to service of process within the entire two-year statute of limitations period, 

and the complaint was filed over two years after the accident occurred, appellant's claim 

against CME is time barred. The trial court did not err in concluding the same. 

{¶ 33} Accordingly, appellant's second assignment of error is overruled. 

IV. CONCLUSION 

{¶ 34} Having determined that appellant's first assignment of error is sustained 

and the second assignment of error is overruled, we affirm in part and reverse in part the 

judgment of the Franklin County Court of Common Pleas, and remand the matter for 

further proceedings in accordance with this decision. 

Judgment affirmed in part, 

reversed in part; cause remanded 

BROWN, J., concurs. 

SADLER, J., concurs in part and dissents in part. 

SADLER, J., concurring in part and dissenting in part. 

{¶ 35} I agree with the majority that, under the second assignment of error, the 

trial court did not err in granting CME's motion for summary judgment. However, I 

disagree with the majority decision in determining under the first assignment of error that 
No. 15AP-551 13 

the trial court erred in holding that Civ.R. 15(D) applies. Accordingly, I respectfully 

concur in part and dissent in part. 

{¶ 36} At the outset, I must note disagreement with the majority's essential 

conversion of the motion for judgment on the pleadings into a motion for summary 

judgment. (See majority decision at 7.) Not only am I unaware of any precedent to do so, 

nowhere in his brief does appellant call for us to convert the motion for judgment on the 

pleadings into a motion for summary judgment for purposes of review. In fact, appellant 

provides us with the standard of review for a motion for a judgment on the pleadings and 

simply inserts information outside of the pleadings into his arguments without 

reconciling it with the limited standard of review on a motion for judgment on the 

pleadings. In his first assignment of error, appellant seeks only review of whether the trial 

court erred in granting appellee Jones' motion for judgment on the pleadings "because 

Civ.R. 15(D) is only applicable to dismiss a plaintiff's case when a plaintiff attempts to 

'relate back' pursuant to Civ.R. 15(C)." (Appellant's Brief at 8-9.) Nonetheless, in 

considering materials outside of the pleadings in this particular case (in ascertaining the 

correct date of the accident and potential tolling evidence), the majority has considered 

inappropriate materials under Civ.R. 12(C). 

{¶ 37} Furthermore, despite the procedural nuances of this case, in my view the 

trial court did not err in dismissing appellant's complaint based on the application of 

Civ.R. 15(D). First, the pleadings show that appellant filed the original complaint on 

December 20, 2013, the amended complaint on December 23, 2013, and indicated in the 

amended complaint that the accident occurred on December 21, 2011. It is clear that 

appellant was attempting to relate the amended complaint back to the original complaint 

to avoid the two-year statute of limitations for the negligence claim and, in the process, 

invoked the procedures required by Civ.R. 15(D). See, e.g., Whitehead v. Skillman Corp., 

12th Dist. No. CA2014-03-061, 2014-Ohio-4893, ¶ 10 ("When filing a complaint, Civ.R. 

15(D) is invoked when a plaintiff is acquainted with the description of a defendant but is 

unaware of the defendant's name at the time the complaint is filed."); Laneve v. Atlas 

Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 14 ("[Plaintiff's] complaint 

invoked Civ.R. 15(D) by designating certain defendants as "John Doe, unknown."). 
No. 15AP-551 14 

{¶ 38} I also disagree with the majority's view that Civ.R. 15(D) only applies within 

the context of relation back scenarios. The plain language of Civ.R. 15(D) provides that 

plaintiffs who do not know the names of identified parties "must" follow certain 

requirements and does not confine compliance with the rule to relation back factual 

situations. To the contrary, another section of the rule, Civ.R. 15(C), addresses relation 

back of amendments as a separate issue and includes within it relation back in regard to 

changing an "incorrectly named defendant," a separate endeavor from amending an 

unknown party name under Civ.R. 15(D). See Civ.R. 3(A) (distinguishing between 

incorrectly named defendants under Civ.R. 15(D) and defendants identified by fictitious 

names under Civ.R. 15(D)). While appellant cites to cases that discuss Civ.R. 15(D) within 

the context of resolving relation back issues, these cases do not stand for the proposition 

that Civ.R. 15(D) only applies within the context of relation back scenarios. 

{¶ 39} I likewise disagree with the majority's view that Civ.R. 15(A) permits a 

plaintiff to disregard Civ.R. 15(D). My reading of the entirety of the rule shows that, while 

Civ.R. 15(A) allows amendment of a complaint without leave of court for a period of 28 

days after serving it, Civ.R. 15(D) still has strict requirements regarding that amended 

complaint's content and how it may be served in situations involving identified but 

unnamed defendants. In other words, Civ.R. 15(D) is less about if/when a complaint can 

be filed than about what that complaint has to say and how it should be served in those 

situations where the name of the defendant is unknown. Because Civ.R. 15(A) allows 

amendment of a complaint without leave of court for a period of 28 days after serving it, 

in my view, appellant was free to amend the complaint during that time to adhere to 

Civ.R. 15(D) requirements regarding content and personal service. After that period, 

appellant was also free to seek the court's leave or written consent from the opposing 

counsel to properly amend the complaint to conform with Civ.R. 15(D). 

{¶ 40} Having determined that Civ.R. 15(D) applies, I would find that appellant did 

not adhere to Civ.R. 15(D)'s strictly construed requirements. As we stated in Pearson v. 

Columbus, 10th Dist. No. 14AP-313, 2014-Ohio-5563, ¶ 21, "[t]he plain, unambiguous 

language of Civ.R. 15(D) mandates that the words 'name unknown' appear in the 

summons, not the complaint. We cannot alter that language." See also Easter v. 

Complete Gen. Constr. Co., 10th Dist. No. 06AP-763, 2007-Ohio-1297, ¶ 36 (discussing 
No. 15AP-551 15 

Mears v. Mihalega, 11th Dist. No. 97-T-0040 (Dec. 19, 1997), and Amerine v. Haughton 

Elevator Co., 42 Ohio St.3d 57 (1989), as cases where the plaintiff's omission of the words 

"name unknown" in the summons, alone, warranted the granting of summary judgment). 

Thus, even without reaching the issue of personal service, it is clear that appellant did not 

comply with Civ.R. 15(D), as the summons did not contain the statutorily required phrase 

"name unknown." 

{¶ 41} Therefore, because appellant filed an original complaint with the court that 

identified Jones by a fictitious name, but never corrected the name pursuant to Civ.R. 

15(D), appellant did not meet the strict requirements of Civ.R. 15(D). Accordingly, this 

action was never properly commenced under Civ.R. 3(A) ("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 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)."). 

{¶ 42} Finally, I would not address appellant's alternative argument asserting that 

his amended complaint should "effectively be considered a refiling" under Goolsby v. 

Anderson Concrete Corp., 61 Ohio St.3d 549 (1991), and Fetterolf v. Hoffmann-LaRoche, 

Inc., 102 Ohio App.3d 106 (11th Dist.1995), two cases which consider Civ.R. 3(A) 

commencement outside of the context of Civ.R. 15(D). (Appellant's Brief at 22.) 

Appellant did not make this argument to the trial court. Niehaus v. Columbus 

Maennerchor, 10th Dist. No. 07AP-1024, 2008-Ohio-4067, ¶ 55 ("It is well-settled that a 

party may not raise an issue on appeal that was not initially raised before the trial court."); 

Ohio Farmers Ins. Co. v. Estate of Brace, 116 Ohio App.3d 395, 401 (10th Dist.1997), 

quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29, 32 (8th Dist.1981) (" 'A party may not 

assert a new legal theory for the first time before an appellate court.' "). 

{¶ 43} Accordingly, I would overrule appellant's first and second assignments of 

error and affirm the decision of the trial court. Because the majority decision does 

otherwise and for the reasons stated above, I concur in part and dissent in part. 

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