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Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dawn SIDWELL, et al., Plaintiffs-Appellants, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees.

No. 109751

Decided: March 18, 2021

Rumizen & Weisman Co., Ltd., Scott A. Rumizen, R. Matthew Weisman, and Mitchell A. Weisman, Beachwood, for appellants. Collins, Roche, Utley & Garner, L.L.C., Beverly A. Adams, and Kurt D. Anderson, for appellees.


{¶ 1} This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 11.1. Dawn and Donna Sidwell (“Sidwells”) appeal the judgment entered in favor of James Ligus upon a motion for summary judgment.1 For the following reasons, we reverse the decision of the trial court and remand for further proceedings.

{¶ 2} The Sidwells were injured in a chain-reaction car accident involving three vehicles that occurred on July 23, 2017, allegedly caused by Lisa Ligus, who was driving a vehicle titled to her husband, James Ligus. The police report listed James as the owner and Lisa as the occupant of the car. The complaint, filed on July 22, 2019, mistakenly identified “James” Ligus as the defendant driver of the vehicle. In addition to misidentifying the real party defendant, the complaint indicated that the accident occurred a day after the complaint was filed — a temporal impossibility that could have been corrected under Civ.R. 12(E) (motion for more definite statement) if the Liguses could not determine which car accident was referenced in the complaint.

{¶ 3} Three months later, after James had filed a motion for summary judgment, the Sidwells moved to amend their complaint to substitute the incorrectly named defendant under Civ.R. 15(C) — seeking to substitute “Lisa Ligus” for “James Ligus” based on the fact that Lisa had been the intended real party defendant. No other changes to the complaint were sought. Attached as evidence to their motion, the Sidwells provided (1) a copy of a complaint against Lisa, filed almost a year before the Sidwells’ action, pertaining to persons injured in the second car involved in the accident; (2) the unredacted police report (the motion for summary judgment included a redacted copy of the police report that obscured the Liguses’ names); (3) a copy of the docket sheets indicating that Lisa accepted service for both the current and earlier actions; and (4) a copy of Lisa's January 2020 deposition transcript in which she acknowledged that she was the driver of James's car on the day of the accident, that neither she nor James had been in any other car accidents in the previous five years to cause them any confusion, that she contacted the couple's automobile insurance carrier regarding the complaint in this case, indicating her knowledge that the complaint involved a car accident, and that James's current attorney of record represented her in the earlier action.

{¶ 4} The trial court denied the motion to amend, without disclosing a reason in support of its decision, and granted judgment in favor of James in light of the fact that he could not be the tortfeasor since Lisa was driving and no negligent entrustment claims were advanced. This timely appeal followed.

{¶ 5} Civ.R. 15(C) provides a mechanism to substitute misidentified parties by amending the pleadings as long as the claims arose out of the same conduct, transaction, or occurrence as set forth in the original pleadings. Napier v. Ickes, 2019-Ohio-2774, 140 N.E.3d 137, ¶ 75 (5th Dist.), citing Kent State Univ. v. Bradley Univ., 11th Dist. Portage, 2019-Ohio-2088, 136 N.E.3d 774, ¶ 109, and Merrill Lynch Mtge. Lending, Inc. v. 1867 W. Mkt., L.L.C., 9th Dist. Summit No. 23443, 2007-Ohio-2198, 2007 WL 1345817, ¶ 8. The rule expressly contemplates amending a pleading to bring in a party. Civ.R. 15(C). Further,

[a]n 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.

Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 100-101, 529 N.E.2d 449 (1988), citing Civ.R. 15(C). Thus, if the party to be substituted, sometime within the year established under Civ.R. 3(A), has both received notice of the action and knew or should have known that but for the mistake the action would have been brought against them, substitution is proper.

{¶ 6} Appellate review of an order granting or denying a motion to substitute a party is reviewed for an abuse of discretion. The Ohio Supreme Court has declared that a trial court abuses its discretion by denying “a motion, timely filed, seeking leave to file an amended complaint, where it is possible that plaintiff may state a claim upon which relief may be granted and no reason otherwise justifying denial of the motion is disclosed.” Peterson v. Teodosio, 34 Ohio St.2d 161, 162, 297 N.E.2d 113 (1973) (“Teodosio”); Patterson v. V & M Auto Body, 63 Ohio St.3d 573, 576, 589 N.E.2d 1306 (1992) (expressly applying Teodosio to a motion to substitute a party under Civ.R. 15(C)) (“Patterson”). This standard exists because the “case law illustrates the liberality with which Ohio courts will permit amendments to cure defective pleadings.” Patterson at 577, 589 N.E.2d 1306.

{¶ 7} In this case, the Sidwells timely sought to substitute the real party defendant within three months of filing the complaint and there is no dispute the amended pleading arose from the same occurrence as delineated in the original complaint. Further, the misidentification of the first name of the defendant is the type of a mistake contemplated under Civ.R. 15(C), especially when the correct surname is included and the misidentification is of individuals at the same residence. Bentz v. Carter, 55 Ohio App.3d 120, 120, 562 N.E.2d 925 (8th Dist.1988) (trial court abused its discretion in denying motion to substitute one “Barbara A. Carter” for “Robert A. Carter” who both resided at the same address in a vehicular negligence action); Campbell v. Schlegel, 2015-Ohio-2808, 38 N.E.3d 1194, ¶ 21 (3d Dist.) (naming mother instead of daughter with different first names qualifies as a mistake as contemplated under Civ.R. 15(C)); see also Cecil v. Cottrill, 67 Ohio St.3d 367, 371, 618 N.E.2d 133 (1993) (Civ.R. 15(C) properly invoked when the plaintiff mistakenly named the father instead of the son as the defendant); Ratkosky v. CSX Transp., Inc., 8th Dist. Cuyahoga No. 92061, 2009-Ohio-5690, 2009 WL 3478231, ¶ 41 (trial court did not abuse its discretion in substituting the corporate entity known as First Energy with the separate entity known as GENCO under Civ.R. 15).

{¶ 8} Lisa's deposition conclusively demonstrated her knowledge of the lawsuit that would have been initiated against her but for the misidentification of the defendant in the complaint — she was expressly notified of both those facts at that time and acknowledged her role as the driver of the vehicle in the accident. That deposition occurred within the one-year period within which the commencement of the action must take place. Roche v. On Time Delivery Servs., 8th Dist. Cuyahoga No. 94036, 2010-Ohio-2358, 2010 WL 2136656, ¶ 35, but see Taylor v. Burkhart, 7th Dist. Monroe No. 19 MO 0013, 2020-Ohio-3632, 2020 WL 3639890, ¶ 37 (real party defendant was unaware of the lawsuit misidentifying the defendant until after the one-year period to commence the action under Civ.R. 3(A) expired). The plaintiff does not need to prove the substituted party's knowledge and awareness of the litigation as of the date of service or within the statute of limitations period. Roche at ¶ 34.

{¶ 9} Notwithstanding, under Civ.R. 15(C) the party to be brought in by amendment cannot play the part of the proverbial ostrich by actively avoiding the implications of the mistaken identification and proclaiming ignorance of objective facts. The standard is whether that party knew or should have known about the implications of the mistaken identification. The undisputed evidence in this case established that Lisa was aware of the litigation (she accepted service of the complaint) and she testified to knowing to contact the automobile insurance carrier after reading the complaint or discussing the issue with her husband. The only reason for calling the automobile insurance carrier would be if the complaint implicated that specific insurance policy. After being alerted to the fact that James had been named a defendant in an action implicating the couple's automobile insurance policy, despite the fact that he had not been involved in any accident in the previous five years, Lisa should have been aware of the mistaken identification given her knowledge of her own accident and her being the named defendant in the earlier lawsuit. But more important, Lisa knew enough about the nature of the lawsuit to specifically contact her previous counsel of record, who represented Lisa in the other lawsuit pertaining to the same accident and who eventually undertook James's representation in the underlying matter. This is more than enough to demonstrate that Lisa should have known that but for the mistaken identification in the complaint, the action would have been instituted against her independent of the knowledge gained at the deposition itself.

{¶ 10} The Sidwells are not attempting to add an additional party. They correctly sought to substitute the proper party defendant, after inadvertently misidentifying the defendant in the complaint, by proposing to amend the complaint to bring Lisa into the action in place of, not in addition to, James. See, e.g., Smith v. Garber, 5th Dist. Richland No. 13 CA 40, 2013-Ohio-5677, 2013 WL 6834980, ¶ 17; Bykova v. Szucs, 8th Dist. Cuyahoga No. 87629, 2006-Ohio-6424, 2006 WL 3517958, ¶ 4 (“Szucs”). The proposed amended complaint does not contain any new allegations. Finally, there would have been little prejudice at the early stages of the proceedings should the substitution have been granted when first sought. Lisa was represented in the earlier lawsuit by James's counsel of record and, therefore, has failed to demonstrate an inability to defend the matter on the merits because of the mistaken identification of the real party defendant.

{¶ 11} In support of the decision to deny the motion to substitute, appellee heavily relies on Szucs — claiming that the substitution rule is limited to correcting minor errors like an incorrect middle initial or the corporate designation. In Szucs, however, the question before the panel was “whether Civ.R. 15(C) may be used to add a party-plaintiff to a timely-filed lawsuit after the statute of limitations has expired.” Id. at ¶ 1. In concluding that case law altogether precludes invoking Civ.R. 15(C) for that purpose, as opposed to substituting a nonparty for a party to the action, the panel discussed the scope of what is a permissible basis to substitute a nonparty for a party. Id. at ¶ 3. According to the panel,

a party may amend after the applicable statute of limitations has expired when the design is to substitute a party to correct a misnomer. We have interpreted Civ.R. 15(C) to apply to resolve minor errors. The common misnomer case is concerned with substituting a middle initial or substituting “incorporation” in place of “company.”

The panel's statement was not dispositive, nor has that obiter dictum been elevated to binding authority. See, e.g., State v. Jones, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 27. In fact, this argument, that the dicta in Szucs limits the scope of Civ.R. 15(C) to fixing only minor errors in naming parties within the action, has been expressly rejected. Roche, 8th Dist. Cuyahoga No. 94036, 2010-Ohio-2358, ¶ 31 (overruling the defendants’ argument that Civ.R. 15(C) cannot be used to substitute an entirely different corporate entity into the action based on the statement in Szucs that the rule is limited to correcting minor mistakes or misnomers).

{¶ 12} We continue to acknowledge that the mistaken identification contemplated under Civ.R. 15(C) is not limited to “minor errors,” such as misidentifying the corporate designation or correcting a “middle initial” as stated in Szucs, but extends to bringing in a party technically not then before the court under the unambiguous language of Civ.R. 15(C) that permits such course of action.2 Civ.R. 15(C) (the rule provides that the amendment may “change” the party designated in the pleading and the substitution permits the “bringing in” of that new party to the action); Roche at ¶ 31; Patterson, 63 Ohio St.3d at 577, 589 N.E.2d 1306 (1992) (Civ.R. 15(C) would have been properly invoked to substitute an individual person with a corporate entity that was not an actual legal entity under Ohio corporation law); Carter, 55 Ohio App.3d at 120, 562 N.E.2d 925 (two persons residing in same home could be substituted under Civ.R. 15(C)); Campbell, 2015-Ohio-2808, 38 N.E.3d 1194, ¶ 21 (3d Dist.) (same conclusion involving a mother and daughter with different first names). Because the dicta in Szucs continues to present the foundation of a misplaced argument, we take this opportunity to clarify the law in this district and unambiguously set forth what has already been declared: the authority established by Szucs is limited to the proposition that Civ.R. 15(C) cannot be invoked to amend a pleading to add additional parties. Roche, 8th Dist. Cuyahoga No. 94036, 2010-Ohio-2358, ¶ 31. Of further importance, in opining on the scope of the permissible amendment under Civ.R. 15(C), the Szucs panel relied on authority predating the enactment of the Ohio Civil Rules that has since been superseded by law. Szucs, citing Morgan v. Bayview Hosp., 82 Ohio Law Abs. 499, 500-501, 166 N.E.2d 430 (C.P. 1959), cited as authority in State Farm Mut. Auto. Ins. Co. v. Sandhu Auto Mechanic, Inc., 8th Dist. Cuyahoga No. 51218, 1986 WL 11655 (Oct. 16, 1986); compare Carter (two persons residing in same home sharing the same surname could be substituted under Civ.R. 15(C)). We cannot apply the Szucs rationale in light of the enactment of the Ohio Civil Rules.

{¶ 13} The Sidwells properly invoked Civ.R. 15(C) to seek to amend the pleading to substitute the proper party defendant misidentified in the original complaint.3 Under Teodosio and Patterson, the substitution of the defendants would have enabled the Sidwells to state a claim upon which relief may be granted. Because the trial court did not disclose the bases for denying the motion to substitute and none are apparent from the arguments presented in this appeal, we are compelled under the combination of Teodosio and Patterson to conclude that denying the motion constituted an abuse of discretion. Id.

{¶ 14} Inasmuch as the defendant heavily relied on Szucs during the trial court proceedings, we understand the apparent confusion created by the broad language employed in the decision. The impact that obiter dictum can have on trial courts and parties who are looking for clarity in the law is not lost on us. Nevertheless, Szucs is not controlling authority as to the scope of a permissible substitution and there is no other discernable reason to deny the motion to amend the complaint to substitute Lisa for James in this case. The decision to do so is hereby reversed. The motion for summary judgment in favor of “James Ligus” becomes a legal nullity; he will not be a party in the action following the filing of the amended complaint. The amended complaint, when filed upon remand, relates back to the date of the original complaint. The judgment entered against the plaintiffs upon all claims is vacated; the decision of the trial court denying the motion to amend complaint is reversed and the matter remanded for further proceedings.

{¶ 15} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.


1.   Although by designating this as an accelerated appeal, the parties have “agreed that we may render a decision in ‘brief and conclusionary form’ consistent with App.R. 11.1(E),” see, e.g., State v. D.F., 8th Dist. Cuyahoga No. 104410, 2017-Ohio-534, 2017 WL 632449, ¶ 1, and Shaker Hts. v. Brandon Profit El-Bey, 8th Dist. Cuyahoga Nos. 105701 and 105702, 2017-Ohio-9022, 2017 WL 6389147, ¶ 1, there appears to be confusion with regard to the application and scope of Civ.R. 15(C) that requires a more detailed discussion.

2.   In light of our conclusion that the statements regarding the scope of substitution under Civ.R. 15(C) in Szucs is dicta based on the panel's conclusion that Civ.R. 15(C) does not permit a plaintiff to add additional parties, the panel decision is not in conflict with Carter, 55 Ohio App.3d at 120, 562 N.E.2d 925, and our en banc procedure is not required to clarify the black-letter law of this district. App.R. 26(A)(2)(a).

3.   Appellee's reliance on Civ.R. 15(D) is misplaced in this case. That rule provides that a plaintiff may designate a defendant in the complaint by any name and description when the plaintiff is unable to name that party. In Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 23, the Ohio Supreme Court concluded that Civ.R. 15(D) does not extend to naming unknown parties, such as blanket inclusion of “John or Jane Does,” but instead contemplates a plaintiff naming a known party whose name is unknown at the time of filing. That rule and case has no application here. Civ.R. 15(C) expressly authorizes a plaintiff to amend the complaint to substitute the misidentified party under certain conditions. Contrary to appellee's argument, the rule expressly permits a nonparty to be substituted into the case but for the mistaken identity and does not act to extend the statute of limitations since the substitution must occur within the same time period within which the case is to be commenced.



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