Hamilton v. Moon

882 P.2d 1134 (1994)

130 Or. App. 403

Robert D. HAMILTON, Appellant, v. Joon Hyuk MOON, Respondent.

C92 0188CV; CA A77859.

Court of Appeals of Oregon.

Argued and Submitted October 18, 1993.

Decided October 5, 1994.

Review Denied December 20, 1994.

Thomas J. Sullivan, Wilsonville, argued the cause and filed the briefs for appellant.

Jay D. Enloe, Portland, argued the cause for respondent. With him on the brief was Lachenmeier, Enloe & Rall.

Before DEITS, P.J., and RIGGS and HASELTON,[*] JJ.

DEITS, Presiding Judge.

Plaintiff brought this action for injuries sustained in an automobile accident with defendant Joon Moon. In his original complaint, filed the day before the Statute of Limitations expired, plaintiff named "Kwon Moon" as the defendant. "Kwon" is the name of Joon's son. Plaintiff amended his complaint to name Joon as the defendant after the Statute of Limitations had run. The amended complaint was served on Joon within 60 days after the filing of the first complaint. Joon moved for, and the trial court granted, summary judgment on the ground that the action was time-barred. Plaintiff appeals, and we affirm.

Plaintiff contends that the amended complaint should be deemed to relate back to the earlier one under ORCP 23C, and that the action against Joon should therefore be deemed timely. He also contends that Joon was served within 60 days after the action was filed and that the 60-day "grace period" allowed for service by ORS 12.020 should be added to the two-year statutory period for purposes of determining whether the complaint relates back and the action was timely brought.

In Richlick v. Relco Equipment, Inc., 120 Or.App. 81, 852 P.2d 240, rev. den. 317 Or. 605, 860 P.2d 819 (1993), and Johnson v. MacGregor, 55 Or.App. 374, 637 P.2d 1362 (1981), rev. den. 292 Or. 589, 644 P.2d 1130 (1982), we considered circumstances analogous *1135 to these. We held that, when a complaint is amended to change or correct the designation of the defendant after the applicable limitation period has run, the doctrine of relation back does not relieve the action from the statutory bar unless, inter alia, "the party to be brought in [has] received notice of the action within the period of limitations * * *." 120 Or.App. at 85, 852 P.2d 240; see also 55 Or.App. at 377, 637 P.2d 1362. Joon did not have such notice here. In both Richlick and Johnson, we also rejected arguments based on ORS 12.020 identical to plaintiff's.

Plaintiff provides us with several arguments for overruling or distinguishing our earlier cases or finding their holdings to be inapplicable here. We are not convinced by those arguments. The action against Joon was not timely, and the trial court properly granted summary judgment.

Affirmed.

[*] Haselton, J., vice Durham, J.