[Cite as Difiore v. Pfiester , 2012-Ohio-2456.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DAVID V. DIFIORE 

ADMINISTRATOR OF THE ESTATE 

OF CURTIS SMITH 

 Plaintiff-Appellant 

-vsALISON PFIESTER 

ADMINISTRATOR OF THE ESTATE 

OF PAUL W. MUCK, JR. 

 Defendant-Appellee 

JUDGES: 

Hon. Patricia A. Delaney, P.J. 

Hon. William B. Hoffman, J. 

Hon. Julie A. Edwards, J. 

Case No. 11-CA-44 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common 

Pleas Court, Case No. 2010 CV 562 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 31, 2012 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JOHN J. REAGAN MARK H. GAMS 

Kisling, Nestico & Redick, LLC Gallagher, Gams, Pryor, 

3412 W. Market Street Tallan & Lettrell L.L.P. 

Akron, Ohio 44333 471 East Broad Street, 19th Floor 

 Columbus, Ohio 43215-3872 
Fairfield County, Case No. 11-CA-44 2

Hoffman, J. 

{¶1} Plaintiff-appellant David D. DiFiore, Administrator of the Estate of Curtis 

Smith, appeals the July 22, 2011 Judgment Entry entered by Fairfield County Court of 

Common Pleas, which sustained the motion for summary judgment filed by defendantappellee Alison Pfiester, Administrator of the Estate of Paul W. Muck, Jr. 

STATEMENT OF THE CASE AND FACTS 

{¶2} On May 6, 2010, Appellant filed a Complaint, naming Paul W. Muck, Jr. 

(“Muck”); John Doe #1, Executor of the Estate of Paul W. Muck, Jr.; and State Farm 

Mutual Automobile Insurance Company (“State Farm”) as defendants. The Complaint 

sought damages for personal injuries suffered by Curtis Smith (“Smith”) as the result of 

a motor vehicle accident on May 10, 2008, in which Muck was the driver and Smith was 

the passenger. Muck died shortly after the accident from the injuries he sustained 

therein. Smith is also deceased, but his death was unrelated to the automobile 

accident. 

{¶3} Appellant voluntarily dismissed all claims against State Farm pursuant to 

Civ. R. 41(A). On December 20, 2010, Karen Muck, Muck’s widow, filed a notice and 

affidavit with the trial court acknowledging receipt of the Complaint, and advising the 

trial court as well as the other parties no estate had been opened for Muck. Appellant 

filed a motion for leave to file an amended complaint, which the trial court granted. On 

February 11, 2011, Appellant filed the first amended complaint, naming Appellant as the 

sole defendant. 

{¶4} Appellee filed a motion for summary judgment on June 8, 2011. Therein, 

Appellee asserted Appellant’s amended complaint was barred by the statute of 
Fairfield County, Case No. 11-CA-44 3

limitations. Appellee further maintained Appellant could not avail himself of Civ. R. 

15(D) as Appellant had knowledge of the fact Muck died as a result of the May 10, 2008 

accident, and prior to the expiration of the statue of limitations, but did not seek to 

appoint an administrator to serve as a defendant until after the expiration of the statute 

of limitations. In response, Appellant argued he properly amended the complaint 

pursuant to Civ. R. 15(C) and such amendment relates back to the date of the filing of 

the original Complaint which had been filed within the limitations period. 

{¶5} Via Judgment Entry filed July 22, 2011, the trial court sustained Appellee’s 

motion for summary judgment. 

{¶6} It is from this judgment entry Appellant appeals, raising as error: 

{¶7} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

IN FAVOR OF THE DEFENDANT-APPELLEE, THE ESTATE OF PAUL W. MUCK JR., 

IN FINDING THAT THE PLAINTIFF-APPELLANT’S AMENDED COMPLAINT WAS 

BARRED BY THE STATUTE OF LIMITATIONS AND DID NOT RELATE BACK TO 

THE FILING OF THE PLAINITFF-APPELLANT’S ORIGINAL COMPLAINT UNDER 

CIV.R. 15(C). 

{¶8} “II. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO 

MISTAKE UNDER CIV.R. 15(C) WHEN THE PLAINTIFF-APPELLANT, IN ITS 

ORIGINAL COMPLAINT, MISNAMED THE DEFENDANT AS PAUL W. MUCK JR. 

RATHER THAT THE ESTATE OF PAUL W. MUCK JR., EVEN THOUGH THE 

PLAINTIFF-APPELLANT LATER NAMED THE COMPLAINT TO SUBSTITUTE THE 

ESTATE OF PAUL W. MUCK JR. AS THE DEFENDANT, AND THE ESTATE OF PAUL 
Fairfield County, Case No. 11-CA-44 4

W. MUCK JR. KNEW AT ALL TIMES THAT THE ORIGINAL COMPLAINT WAS 

INTENDED.” 

{¶9} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As 

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio 

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. 

{¶10} Civ.R. 56 provides summary judgment may be granted only after the trial 

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) 

the moving party is entitled to judgment as a matter of law; and 3) it appears from the 

evidence that reasonable minds can come to but one conclusion and viewing such 

evidence most strongly in favor of the party against whom the motion for summary 

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267. 

{¶11} It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for 

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 
Fairfield County, Case No. 11-CA-44 5

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point to 

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924. 

I, II 

{¶12} Appellant’s assignments of error raise common and interrelated issues; 

therefore, we will address the arguments together. 

{¶13} The trial court found the Ohio Supreme Court’s decision in Baker v. 

McKnight, 4 Ohio St. 3d 125 (1983), controlled. Therein, the Supreme Court held: 

 Where the requirements of Civ.R. 15(C) for relation back are met, 

an otherwise timely complaint in negligence which designates as a sole 

defendant one who dies after the cause of action accrued but before the 

complaint was filed has met the requirements of the applicable statute of 

limitations and commenced an action pursuant to Civ.R. 3(A), and such 

complaint may be amended to substitute an administrator of the deceased 

defendant's estate for the original defendant after the limitations period 
Fairfield County, Case No. 11-CA-44 6

has expired, when service on the administrator is obtained within the oneyear, post-filing period provided for in Civ.R. 3(A). (Barnhart v. Schultz, 53 

Ohio St.2d 59, 372 N.E.2d 589 [7 O.O.3d 142], overruled.) Id. at syllabus. 

{¶14} Civ. R. 15(C) provides: 

 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. 

{¶15} In order for an amended pleading, which changes the party against whom 

a claim is asserted, to relate back to the date of the original pleading, a party must 

satisfy the following three requirements: “(1) the amendment must not add a new claim 

not included in the original complaint; (2) the new party must receive notice of the 

complaint within the statute of limitation period such that it would not be prejudiced in 

presenting its case; (3) the new party must have reason to believe that, but for the 

mistake, the notice was intended for it. Fink, Greenbaum & Wilson, Guide to the Ohio 
Fairfield County, Case No. 11-CA-44 7

Rules of Civil Procedure (2001) 15-8 to 15-9, § 15-5.” Marcinko v. Carson, 4th Dist. No. 

04CA723, 2004-Ohio-3850, para. 24. 

{¶16} We find, as did the trial court, Appellant has satisfied the first two 

requirements. However, with respect to the third condition, we find Appellant did not 

make “a mistake concerning the identity of the proper party.” Unlike the plaintiff in 

Baker, supra,1 Appellant was aware Muck was deceased at the time of the filing of the 

original Complaint. We find Appellant’s designation of Muck, the individual, as a 

defendant was not a mistake as contemplated by Civ. R. 15(C) and Appellant had 

ample time under the facts of this case to seek administration of Muck’s estate pursuant 

to R.C. 2113.06. Accordingly, we conclude Appellant did not meet the requirements of 

Civ.R.15(C) in order for the Amended Complaint to relate back as to Appellee. 

{¶17} Appellant’s first and second assignments of error are overruled. 

{¶18} The judgment of the Fairfield County Court of Common Pleas is affirmed. 

By: Hoffman, J. 

Delaney, P.J. and 

Edwards, J. concur s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 

1

 The Baker court specifically noted the plaintiff and her counsel were unaware the 

defendant tortfeasor had died prior to the expiration of the statute of limitations. Baker, 

supra, at p.125. 
Fairfield County, Case No. 11-CA-44 8

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DAVID V. DIFIORE : 

ADMINISTRATOR OF THE ESTATE : 

OF CURTIS SMITH : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ALISON PFIESTER : 

ADMINISTRATOR OF THE ESTATE : 

OF PAUL W. MUCK, JR. : 

 : 

 Defendant-Appellee : Case No. 11-CA-44 

 For the reason stated in our accompanying Opinion, the judgment of the Fairfield 

County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS