Relation Back Amendment – Summary Judgment for Defendant
Granted Wherein Plaintiff Failed to Comply with Relation Back Requirements
Lawson v. Holmes, Inc., (2006) 166 Ohio App.3d 857:
In Lawson v. Holmes, Inc., the Twelfth District Court of Appeals wrote a very detailed opinion reviewing the standard associated with the plaintiff’s requirement in order to invoke the relation back amendment provisions set forth in the Civil Rules. Relation back amendments pertain to a plaintiff naming a defendant, after the expiration of the statute of limitations. In concept, relation back amendments are designed to substitute a defendant, in place of a John Doe, after the statute of limitation expires. In a nutshell, the analysis involves a determination of compliance with O.R.C.P. 15(D), O.R.C.P. 3(A) and O.R.C.P. 15(C). The within decision includes an excellent discussion of the interplay of the civil rules as well as the leading Ohio Supreme Court case in this area which is Amerine v. Haughton Elev. Co. (1989) 42 Ohio St.3d 57. The plaintiff’s original complaint named a John Doe. The complaint did not include the required phrase “name unknown” as well as the necessary phraseology that the plaintiff could not discover the name. These omissions were found to be fatal in the plaintiff’s original complaint when the plaintiff attempted to amend the complaint so as to relate back (within the applicable statute of limitations) so as to name additional defendants.
The case is unique inasmuch as there is a wealth of Ohio case law dealing with the fact that pleadings should not be procedural “mine fields” and instead cases should be decided on the merits. This particular argument was raised in Lawson, supra, and in paragraph 23 – 25 of its opinion, the court considered and rejected this specific argument:
“Appellants contend that the harsh result achieved by requiring strict compliance with Civ.R. 15(D) in this case goes against the "basic tenet of Ohio jurisprudence that cases should be determined on their merits and not on mere procedural technicalities." See Barksdale v. Van's Auto Sales (1988), 38 Ohio St.3d. 127, 527 N.E.2d 284. Appellants cite Civ.R. 1, directing courts to construe and apply the civil rules to effect just results, for the proposition that this court should reverse the grant of summary judgment and allow the case to proceed to trial on the merits. However, we cannot accept appellants' argument that public policy supports reversal on that basis in this case. ...
‘Neither legislative intent nor public policy supports an extension of the statute of limitations. R.C. 2305.10 and the other statutes of limitation mandate that complaints be filed within specific periods of time. That mandatory language and those specific time limits reflect the clearly expressed intent of the General Assembly that the time for filing a complaint not be arbitrarily extended.’”
The foundation of the Court’s decision was that in Amerine, supra, the Ohio Supreme Court had stated that compliance with O.R.C.P. 15(D) was a “specific requirement.”
The key to the relation back issues involves a technical analysis of the plaintiff’s original complaint which must include the specific language set forth in O.R.C.P. 15(D). If that language is missing, the plaintiff’s effort to amend the complaint outside the statute of limitations will not satisfy the relation back amendment requirements and the proposed new defendants will have summary judgment granted in their favor.
Waiver of the Affirmative Defense of
Failure to Exhaust Administrative Remedies
Harris v. Ford Motor Co., (2006) 166 Ohio App.3d 599:
The plaintiff filed a claim against Ford Motor Co. including a host of allegations and, in its answer, Ford denied those allegations and included the defense of failure to state a claim upon which relief can be granted. As discovery proceeded, the plaintiff propounded interrogatories to Ford asking for specificity on the failure to state a claim defense. In response thereto, Ford disclosed that the plaintiff had failed to pursue alternative dispute resolution prior to filing suit in the case.
The Second District Court of Appeals held that Ford had waived this defense by not including it in its original answer or any subsequent answer. The Court stated in paragraphs 16 – 17 of its opinion, the following:
“Exhaustion of administrative remedies is an affirmative defense that must be timely asserted or it is waived. ...
‘Under our adversarial system of justice it is the responsibility of the party seeking to benefit from the doctrine [of exhaustion of administrative remedies] to raise and argue it. Once raised, it becomes the duty of the trial court to determine upon consideration of the affirmative defenses ..., whether such action is proper. We do not perceive the obligation of arguing an affirmative defense to be unduly burdensome; it is consistent with the adversarial system of justice, and it protects the judiciary from the erosion of its authority represented by a holding that courts are without fundamental power to hear cases expressly placed within their purview by the General Assembly ...’”
The case is interesting insofar as affirmative defenses are set forth in O.R.C.P. 8(C). Affirmative defenses include:
“... accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”
A strict reading of O.R.C.P. 8(C) does not include an exhaustion of administrative remedies as an affirmative defense, but this particular case stands for the proposition that a court could very well consider the administrative remedy issue as a “... other matter constituting an avoidance or affirmative defense” and, therefore, it is prudent to include all available defenses in an answer.
Workers’ Compensation – Court Order of Physical Examination
Was Not a Final Appealable Order
Myers v. Toledo, (2006) 110 Ohio St.3d 218:
In Myers v. Toledo, the Ohio Supreme Court heard a challenge wherein it was claimed that the lower court’s issuance of an order compelling a physical examination affected a substantial right. The Court, in paragraph 17 of its opinion, defined the foregoing term and stated the following:
“A substantial right is defined in R.C. 2505.02(A)(1) as ‘a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.’”
If a substantial right was affected, a person could prosecute an appeal.
In paragraphs 20 and 22, the Ohio Supreme Court rejected this assertion and stated the following:
“In Ohio, however, it appears that court-ordered examinations were permitted at common law. ‘In an action to recover for personal injuries, caused by the negligence of the defendant, the court has the power to require the plaintiff to submit his person to an examination by physicians and surgeons, when necessary to ascertain the nature and extent of the injury.’ (citations omitted). At least between plaintiff and defendant there does not appear to be a common-law right against medical examination, and even if there was a common-law right it has been abrogated by rule. ...
A party to a cause of action in which the physical condition of the party is in controversy does not have a substantial right to prevent a court from ordering a physical examination. Therefore, a court order requiring a party to submit to an independent medical examination, for good cause shown, does not affect a substantial right and is not a final, appealable order under R.C. 2505.02(B)(2).”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Relation Back Amendment – Summary Judgment for Defendant
Granted Wherein Plaintiff Failed to Comply with Relation Back Requirements
Lawson v. Holmes, Inc., (2006) 166 Ohio App.3d 857:
In Lawson v. Holmes, Inc., the Twelfth District Court of Appeals wrote a very detailed opinion reviewing the standard associated with the plaintiff’s requirement in order to invoke the relation back amendment provisions set forth in the Civil Rules. Relation back amendments pertain to a plaintiff naming a defendant, after the expiration of the statute of limitations. In concept, relation back amendments are designed to substitute a defendant, in place of a John Doe, after the statute of limitation expires. In a nutshell, the analysis involves a determination of compliance with O.R.C.P. 15(D), O.R.C.P. 3(A) and O.R.C.P. 15(C). The within decision includes an excellent discussion of the interplay of the civil rules as well as the leading Ohio Supreme Court case in this area which is Amerine v. Haughton Elev. Co. (1989) 42 Ohio St.3d 57. The plaintiff’s original complaint named a John Doe. The complaint did not include the required phrase “name unknown” as well as the necessary phraseology that the plaintiff could not discover the name. These omissions were found to be fatal in the plaintiff’s original complaint when the plaintiff attempted to amend the complaint so as to relate back (within the applicable statute of limitations) so as to name additional defendants.
The case is unique inasmuch as there is a wealth of Ohio case law dealing with the fact that pleadings should not be procedural “mine fields” and instead cases should be decided on the merits. This particular argument was raised in Lawson, supra, and in paragraph 23 – 25 of its opinion, the court considered and rejected this specific argument:
“Appellants contend that the harsh result achieved by requiring strict compliance with Civ.R. 15(D) in this case goes against the "basic tenet of Ohio jurisprudence that cases should be determined on their merits and not on mere procedural technicalities." See Barksdale v. Van's Auto Sales (1988), 38 Ohio St.3d. 127, 527 N.E.2d 284. Appellants cite Civ.R. 1, directing courts to construe and apply the civil rules to effect just results, for the proposition that this court should reverse the grant of summary judgment and allow the case to proceed to trial on the merits. However, we cannot accept appellants' argument that public policy supports reversal on that basis in this case. ...
‘Neither legislative intent nor public policy supports an extension of the statute of limitations. R.C. 2305.10 and the other statutes of limitation mandate that complaints be filed within specific periods of time. That mandatory language and those specific time limits reflect the clearly expressed intent of the General Assembly that the time for filing a complaint not be arbitrarily extended.’”
The foundation of the Court’s decision was that in Amerine, supra, the Ohio Supreme Court had stated that compliance with O.R.C.P. 15(D) was a “specific requirement.”
The key to the relation back issues involves a technical analysis of the plaintiff’s original complaint which must include the specific language set forth in O.R.C.P. 15(D). If that language is missing, the plaintiff’s effort to amend the complaint outside the statute of limitations will not satisfy the relation back amendment requirements and the proposed new defendants will have summary judgment granted in their favor.
Waiver of the Affirmative Defense of
Failure to Exhaust Administrative Remedies
Harris v. Ford Motor Co., (2006) 166 Ohio App.3d 599:
The plaintiff filed a claim against Ford Motor Co. including a host of allegations and, in its answer, Ford denied those allegations and included the defense of failure to state a claim upon which relief can be granted. As discovery proceeded, the plaintiff propounded interrogatories to Ford asking for specificity on the failure to state a claim defense. In response thereto, Ford disclosed that the plaintiff had failed to pursue alternative dispute resolution prior to filing suit in the case.
The Second District Court of Appeals held that Ford had waived this defense by not including it in its original answer or any subsequent answer. The Court stated in paragraphs 16 – 17 of its opinion, the following:
“Exhaustion of administrative remedies is an affirmative defense that must be timely asserted or it is waived. ...
‘Under our adversarial system of justice it is the responsibility of the party seeking to benefit from the doctrine [of exhaustion of administrative remedies] to raise and argue it. Once raised, it becomes the duty of the trial court to determine upon consideration of the affirmative defenses ..., whether such action is proper. We do not perceive the obligation of arguing an affirmative defense to be unduly burdensome; it is consistent with the adversarial system of justice, and it protects the judiciary from the erosion of its authority represented by a holding that courts are without fundamental power to hear cases expressly placed within their purview by the General Assembly ...’”
The case is interesting insofar as affirmative defenses are set forth in O.R.C.P. 8(C). Affirmative defenses include:
“... accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”
A strict reading of O.R.C.P. 8(C) does not include an exhaustion of administrative remedies as an affirmative defense, but this particular case stands for the proposition that a court could very well consider the administrative remedy issue as a “... other matter constituting an avoidance or affirmative defense” and, therefore, it is prudent to include all available defenses in an answer.
Workers’ Compensation – Court Order of Physical Examination
Was Not a Final Appealable Order
Myers v. Toledo, (2006) 110 Ohio St.3d 218:
In Myers v. Toledo, the Ohio Supreme Court heard a challenge wherein it was claimed that the lower court’s issuance of an order compelling a physical examination affected a substantial right. The Court, in paragraph 17 of its opinion, defined the foregoing term and stated the following:
“A substantial right is defined in R.C. 2505.02(A)(1) as ‘a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.’”
If a substantial right was affected, a person could prosecute an appeal.
In paragraphs 20 and 22, the Ohio Supreme Court rejected this assertion and stated the following:
“In Ohio, however, it appears that court-ordered examinations were permitted at common law. ‘In an action to recover for personal injuries, caused by the negligence of the defendant, the court has the power to require the plaintiff to submit his person to an examination by physicians and surgeons, when necessary to ascertain the nature and extent of the injury.’ (citations omitted). At least between plaintiff and defendant there does not appear to be a common-law right against medical examination, and even if there was a common-law right it has been abrogated by rule. ...
A party to a cause of action in which the physical condition of the party is in controversy does not have a substantial right to prevent a court from ordering a physical examination. Therefore, a court order requiring a party to submit to an independent medical examination, for good cause shown, does not affect a substantial right and is not a final, appealable order under R.C. 2505.02(B)(2).”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.