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Kowalski v. Pong

Court of Appeals of Ohio, Second District, Montgomery

December 29, 2017

RICHARD KOWALSKI, et al. Plaintiff-Appellant
v.
THONG V. PONG, et al. Defendant-Appellee

         Civil Appeal from Common Pleas Court No. 15-CV-6432

          ALFRED W. SCHNEBLE III, Atty. Reg. No. 0030741, Attorney for Plaintiff-Appellant

          T. ANDREW VOLLMAR, Atty. Reg. No. 0064033, Attorney for Defendant-Appellee

          OPINION

          HALL, P.J.

         {¶ 1} Richard and Claudine Kowalski appeal from the trial court's dismissal of their personal-injury action against Kristina Hernandez. Finding no error, we affirm.

         I. Background

         {¶ 2} On December 14, 2013, the Kowalskis were involved in an auto accident. They filed a complaint for personal injury against Thong V. Phong, [1] the owner of the other vehicle, on December 9, 2015, a few days before the statute of limitations expired. About a week later, Phong filed an answer stating that he was not involved in the accident. The Kowalskis subsequently discovered that the vehicle was actually driven by Hernandez. So on February 1, 2016, they moved to amend their complaint under Civ.R. 15 or, alternatively, to add Hernandez as a defendant under Civ.R. 21 or to substitute her for Phong under Civ.R. 17.

         {¶ 3} On April 5, 2016, the trial court overruled the motion under Civ.R. 17 but stayed consideration of the motion under Civ.R. 15 and 21, pending an evidentiary hearing. On October 20, the court overruled the motion to add Hernandez as a defendant under Civ.R. 21 and granted the motion to amend the complaint under Civ.R. 15(C). The court allowed the Kowalskis to file an amended complaint that names Hernandez as the sole defendant of a negligence claim. Citing Civ.R. 3(A), the court noted that "[t]he period for commencing the case against Ms. Hernandez, taking into account the date on which Plaintiffs filed their original complaint, runs for approximately seven weeks more, ending on or about December 9, 2016."

         {¶ 4} The Kowalskis immediately filed an amended complaint that requests service on Hernandez at her home address. But the clerk of courts did not issue a summons for service to her. About three months later, on January 31, 2017, the Kowalskis again requested service. This time, the clerk issued a summons for service, but a week later, on February 7, service was returned unsuccessful. On March 27, a motion to dismiss was filed for failure to obtain service on Hernandez within the one-year requirement of Civ.R. 3(A). Two days later, the Kowalskis again asked the clerk to serve Hernandez. She was served successfully on April 5.

         {¶ 5} On April 17, the trial court granted the motion to dismiss. The court noted that under Civ.R. 15(C) the substitution of Hernandez for Phong related back to the date that the original complaint was filed, which means that Hernandez was brought into the case before the two-year statute of limitations expired. But under Civ.R. 3(A), said the court, the Kowalskis were still required to obtain service within one year of the original complaint's filing date, which they conceded they had not done.

         {¶ 6} The Kowalskis appealed.

         II. Analysis

         {¶ 7} The sole assignment of error alleges that the trial court erred by granting the motion to dismiss.

         {¶ 8} The trial court dismissed this case because the Kowalskis failed to obtain timely service on Hernandez. Under the applicable two-year statute of limitations, R.C. 2305.10, the Kowalskis had until December 15, 2015, to commence their action for personal injuries. Civ.R. 3(A) pertinently states that "[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)." Consequently having filed their complaint on December 9, 2015, the Kowalskis had until December 9, 2016, to obtain service on a defendant. It is not disputed that Hernandez was served on April 5, 2017, after the Civ.R. 3(A) deadline. But the Kowalskis contend that ...


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