FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV 2014-11-5041
KIRCHER and RYAL MCGRAW, Attorneys at Law, for Appellant.
S. MERMELSTEIN, Attorney at Law, for Appellant.
MOORE CARULAS and TAMMI J. LEES, Attorneys at Law, for
STEPHEN W. FUNK, Attorney at Law, for Appellee.
T. GALVIN and STEPHAN C. KREMER, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
A. SCHAFER, JUDGE.
Plaintiff-Appellant, Malieka Evans, appeals the judgment of
the Summit County Court of Common Pleas granting in part the
summary judgment motion of Defendant-Appellee, Akron General
Medical Center ("AGMC") and granting the summary
judgment motion of Defendant-Appellee, General Emergency
Medical Specialists, Inc. ("GEMS").
On November 9, 2014, Evans filed a complaint against AGMC and
several "Doe" defendants, whose identities were
then unknown. The complaint alleged, inter alia, claims for
negligent hiring and negligent supervision and/or retention.
On January 7, 2015, Evans filed an amended complaint that
substituted GEMS for one of the previously unnamed
defendants. A summons and copy of the amended complaint was
personally served upon the statutory agent for GEMS on April
On May 20, 2015, GEMS filed a motion to dismiss, arguing that
the amended complaint failed to state a claim upon which
relief can be granted and that Evans had failed to effectuate
proper service. The trial court denied GEMS' motion on
June 5, 2015, and GEMS filed a timely answer thereafter and
the matter proceeded through the pretrial process.
GEMS filed its first motion for summary judgment on December
22, 2015, and a second motion for summary judgment on January
25, 2015. The trial court granted GEMS' second motion for
summary judgment on May 12, 2016.
AGMC filed its motion for summary judgment on February 17,
2016. The trial court granted AGMC's motion on July 21,
Evans filed this timely appeal, raising two assignments of
error for our review. To facilitate review, we elect to
consider the assignments of error out of order.
of Error II
The trial court erred in finding that service of
process on Defendant, General Emergency Medical Specialists,
Inc. ("GEMS"), was insufficient where it was
personally served with the Amended Complaint in a timely
manner, failed to affirmatively allege insufficiency of service
of process in its Answer, and fully participated in the
In her second assignment of error, Evans contends that the
trial court erred by granting GEMS' motion for summary
judgment on the basis that Evan's amended complaint
naming GEMS in place of a previously identified by a
fictitious name did not relate back to the original
Under Civ.R. 56(C), summary judgment is appropriate when:
(1)[no] genuine issue as to any material fact remains 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., 50 Ohio St.2d 317, 327
(1977). The movant bears the initial burden of demonstrating
the absence of genuine issues of material fact concerning the
essential elements of the nonmoving party's case.
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If
the moving party satisfies this burden, the non-moving party
"must set forth specific facts showing that there is a
genuine issue for trial." Id. at 293. A review
of a trial court's grant of summary judgment is
considered de novo. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105 (1996). Accordingly, we apply the same
standard as the trial court, viewing the facts in the light
most favorable to the non-moving party and resolving any
doubt in the favor of the non-moving party. Viock v.
Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th
Dist.1983); Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359 (1992).
In her complaint, Evans alleges that she was sexually
assaulted by an employee of GEMS on November 9, 2012, and
that as a result of GEMS' negligence she suffered
psychological, emotional, and physical injuries, and
emotional distress. It is undisputed in this case that the
statute of limitations for a claim of negligent hiring and
negligent supervision/retention is two years. See
R.C. 2305.10. Evans' original complaint was filed
November 9, 2014, exactly two years after the alleged
incident. Evans' complaint listed as defendants AGMC and
several "Doe" defendants, whose identities were
then unknown. On January 7, 2015, Evans filed an amended
complaint that substituted GEMS for one of the previously
unnamed defendants. As Evans filed her amended complaint
after the statute of limitations expired, her claims are
barred unless the amended complaint relates back to the
filing of Evans' original complaint.
Pursuant to Civ.R.3(A), a civil action is commenced if
service of a complaint is obtained within one year from the
filing of the complaint on a defendant identified by a
fictitious name whose name is later corrected pursuant to
Civ.R. 15(D). Civ.R. 15(D) states,
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 contain
the words "name unknown," and a copy thereof must
be served personally upon the defendant.
that a plaintiff meets the specific requirements of Civ.R.
15(D), the relation-back provisions of Civ.R. 15(C) are then
considered." LaNeve v. Atlas Recycling, 119
Ohio St.3d 324, 2008-Ohio-3921, ¶ 11, citing Amerine
v. Haughton Elevator Co., Div. of Reliance Electric Co.,42 Ohio St.3d 57, 58 (1989). That provision provides, in
part, that "[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 ...