Varno v. Bally Manufacturing Co.

Holmes, J. The procedural issue presented on appeal is whether an amended complaint under Civ. R. 15(D), which substitutes the true name of a defendant that was previously designated by a fictitious name in the original complaint which was not served upon such defendant, relates back to the date of filing the original pleading for the purposes of the statute of limitations.1 Throughout this litigation, appellant has maintained that Civ. R. 15(D) should be read in conjunction with Civ. R. 3(A) so that if service is obtained on the unknown defendant within one year of filing the complaint, the action is not foreclosed, by the statute of limitations which ran prior to the filing and service of the amended complaint. The members of the appellate court rejected this argument and, for the reasons which follow, we agree with their assessment of the case. It is uncontroverted that appellant’s cause of action is governed by the two-year statute of limitations contained in R.C. 2305.10. [23] Civ. R. 15(D) sets forth the procedure for Doe defendant pleadings. The rule 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. ”2 (Emphasis added.) As noted by the above-emphasized language, our rule possesses the unique requirement that a copy of the summons must contain the designation “name unknown” and be personally served upon the defendant in question. A review of procedural rules from other jurisdictions does not disclose another rule similar to ours. Therefore, we are precluded from looking to decisions from other states in an effort to assist our determination herein.3 An examination of reported decisions in this state indicates that only one appellate court has addressed this specific issue. In Vocke v. Dayton (1973), 36 Ohio App. 2d 139 [65 0.0.2d 159], the Court of Appeals for Montgomery County was confronted with a situation in which the plaintiff filed a negligence action naming as defendants the city of Dayton and three of its employees whom she described by the Doe procedure. After the statute of limitations had expired, but within one year from filing suit, plaintiff had process served on three city employees in an attempt to substitute them for the Doe defendants. The Vocke court sustained the defense of the bar of the statute of limitations and held that Civ. R. 15(D) necessitates sufficient identification of the defendant so that personal service can be made upon him at the time of filing the original complaint. Id. at paragraph one of the syllabus. Furthermore, the court refused to utilize Civ. R. 3(A) to spare the cause of action from the statute of limitations in the following observation at 143: “If the present plaintiff were to prevail in her contention, any claimant could, within the period of limitation, file a petition without designation or description of any defendant, and without service upon anyone, in the mere hope that within a year thereafter he might discover a missing party to designate.” In an interpretation of the Vocke case and the procedural rules involved, Judge McCormac reasoned: [24] “* * * Civil Rule 15(D) applies only when the name is unknown and the complaint provides a sufficient description or identification of a defendant to permit personal service upon him. Civil Rule 3(A) requires that there be a commencement of an action against someone. Thus if the actual name of a defendant is unknown at the time of filing the complaint, it is necessary to identify the defendants sufficiently to cause personal service to be made upon them in order to commence an action under Civil Rule 3(A) so that the statute of limitations is tolled.” McCormac, Ohio Civil Rules Practice (Cum. Supp. 1984) 88, 89, Section 9.18. See, also, Jack Davis Painting Co. v. Eller Enterprises, Inc. (1982), 8 Ohio App. 3d 211, 213; Collins v. Dept. of Natural Resources (Jan. 6, 1983), Franklin App. No. 82AP-370, unreported. We find this authority persuasive and hold that the application of Civ. R. 15(D) is limited to those cases in which the defendant’s identity and whereabouts are known to the plaintiff, but the actual name of the defendant is unknown. Where a complaint is filed against entities or persons designated by fictitious names but no personal service is made on such defendants, Civ. R. 3(A) cannot in conjunction with Civ. R. 15(D) act to extend the time of service past the statute-of-limitations period. Civ. R. 3(A) is not intended to extend the applicable limitations period. The rule merely permits service to be made within one year after the complaint is filed. In addition, Civ. R. 15(D) is clear; the complaint must sufficiently identify the unknown defendant so that personal service can be obtained upon filing the lawsuit. We recognize that with our holding today a plaintiff’s attorney will in a few instances be at a disadvantage when a client seeks legal assistance just prior to the expiration of the statute of limitations and the actual name of a defendant cannot be ascertained until the discovery process of the litigation. However, the rule, as currently written, cannot be interpreted to provide a remedy in those few situations. Accordingly, we hold that in construing Civ. R. 15(D), where a complaint is filed which designates certain defendants by fictitious names, the cause of action is barred by the statute of limitations if the original complaint or an amended complaint substituting the actual names of the defendants is not personally served within the limitations period. The judgment of the court of appeals is affirmed. Judgment affirmed. Sweeney, Locher, Douglas and Wright, JJ., concur. Celebrezze, C.J., and C. Brown, J., dissent. Footnotes [1] This appeal does not present the court with an issue concerning the relation back of permissible amendments to pleadings to correct the inadvertent misnomer of a party. The criteria for the misnomer situation are contained in Civ. R. 15(C) and the case law decided thereunder. [2] In relation to the commencement of a civil proceeding, Civ. R. 3(A) provides: “A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing.” [3] An extensive review of cases from other jurisdictions is contained in Annotation (1978), 85 A.L.R. 3d 130, and Hogan, California’s Unique Doe Defendant Practice: A Fiction Stranger than Truth (1977-1978), 30 Stan. L. Rev. 51, 58.