Bashara v. Corliss

BASHARA_V_CORLISS.92-140; 161 Vt. 1; 632 A.2d 30 

[Filed 17-Sep-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-140


 Frederick Bashara                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 David Corliss                                December Term, 1992



 David A. Jenkins, J.

 Craig Weatherly of Gravel and Shea, Burlington, for plaintiff-appellant

 Jeffry W. White of Theriault & Joslin, P.C., Montpelier, for defendant-
    appellee



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   Plaintiff appeals from a trial court decision concluding
 that his negligence complaint against defendant was barred by the statute of
 limitations.  We affirm.
      On October 4, 1985, David Corliss, while driving his father's car, was
 involved in a collision with a car in which plaintiff was a passenger.  One
 week before the three-year statute of limitations would have run, plaintiff
 filed a complaint mistakenly naming David's father, Bernard, as the
 defendant-driver.  This complaint was never served.  On October 18, 1988,
 plaintiff filed an amended complaint naming David as the defendant-driver.
 Service was attempted at the address that had been David's residence at the

 

 time of the accident, but David had moved.  On November 7, 1988, plaintiff
 served the complaint against defendant upon the Commissioner of Motor
 Vehicles, pursuant to 12 V.S.A. { 892.  Thus, service was made within sixty
 days of the filing of the original complaint.  See V.R.C.P. 3 (requiring
 service within sixty days after filing complaint).
      David did not receive actual notice of the suit until April 1989, when
 plaintiff was granted judgment by default.  This judgment was sent to
 David's former address, where plaintiff initially attempted service.
 David's father still lived at this address and delivered the notice to
 David.  David then answered the complaint and pled insufficiency of service
 of process and the statute of limitations.  The trial court ruled that the
 action was barred by the three-year statute of limitations because the
 Amended Complaint did not relate back to the time of filing of the original
 Complaint.  Plaintiff appeals this decision.
      Plaintiff contends that the Amended Complaint relates back to the date
 on which the original Complaint was filed against the defendant's father
 under V.R.C.P. 15(c), which states in relevant part:
           An amendment changing the party against whom a claim is
           asserted relates back if . . . within the period
           provided by law for commencing the action against the
           party, the party to be brought in by amendment (1) has
           received such notice of the institution of the action
           that the party will not be prejudiced in maintaining the
           party's defense on the merits, and (2) knew or should
           have known that, but for a mistake concerning the
           identity of the proper party, the action would have been
           brought against the party.

 (Emphasis added.)  Plaintiff argues that "the period provided by law for
 commencing the action" includes the time for completion of service of
 process, an additional sixty days.

 

      The plaintiff's argument is unpersuasive in the face of Rule 15(c)'s
 clear mandate.  The language of V.R.C.P. 15(c) unambiguously requires that
 the real party must have notice during the period provided by law for com-
 mencing an action and makes no provision for notice during the period for
 service of process.  Even if the language of Rule 15(c) was not clear, the
 Reporter's Notes unequivocally limit relation back to cases where the new
 defendant had "notice and knowledge of the original proceeding within the
 period of the statute of limitations . . . ."  Reporter's Notes, V.R.C.P.
 15.
      Relying on Justice Stevens' dissent in Schiavone v. Fortune, 477 U.S. 21 (1986) (Stevens, J., dissenting), plaintiff contends that reading Rule
 15(c) to mean what it says renders the Rule superfluous.  Schiavone is not
 apposite.  In Schiavone, plaintiffs' amendment did not change the defendant;
 rather, it substituted defendant's trademark "Fortune" with the defendant's
 name of incorporation, "Fortune, also known as Time, Incorporated."  Id. at
 23.  The dissent argued that because the amendment did not actually change
 the party, the requirements of Rule 15(c) quoted above should not apply.
 Id. at 36.  Even if those requirements should apply, the dissent contended
 that there should be an exception in cases of misnomer only, to allow the
 amendment to relate back if defendant received notice within the period for
 service.  Id. at 36-38.
      This is not the case before us.  It is true that the caption of
 plaintiff's complaint changed only from "Bernard Corliss, Defendant" to
 "David Corliss, Defendant."  Plaintiff's mistake, however, was greater than
 to name defendant incorrectly -- plaintiff sued the wrong party.

 

      Our reading of Rule 15(c) as it is written does not render it a
 nullity.  Rule 15(c) merely allows the complaint to be corrected if the
 defendant had the requisite notice within the statute of limitations.
 While Rule 15(c)'s purpose may be limited, the purpose exists.
      Moreover, under plaintiff's construction of Rule 15(c), a plaintiff
 could file a complaint against anyone within the limitations period and
 change the defendant within the service-of-process period.  This would
 essentially extend the statute of limitations beyond that provided by the
 Legislature.  Something must happen within the limitations period to toll
 it; usually, either the complaint is filed or defendant is served.  When, as
 here, the complaint names the wrong defendant, neither of these acts has
 occurred to toll the statute of limitations.  Rule 15(c) does not extend
 the statute of limitations, it merely allows notice to be the "something"
 that tolls the limitations period regarding the new defendant.
      The period provided for plaintiff to commence the action in this case
 was three years.  12 V.S.A. { 512(4).  Thus, for plaintiff's amendment to
 relate back to the filing of the original complaint, David Corliss must have
 had notice of the original complaint, as well as notice that, but for
 plaintiff's mistake, he would have been named in the original complaint.
 Plaintiff failed to argue or prove that David Corliss had notice of the
 commencement of the original suit or that he knew or should have known that
 but for a mistake, the action would have been brought against him.
 Accordingly, the trial court properly found that plaintiff's action was
 barred by the statute of limitations.
      Plaintiff also argues that Rule 15(c)'s notice requirement is
 satisfied if defendant had either actual or constructive notice.  Plaintiff

 

 alleges defendant had constructive notice of the suit through process served
 on the Commissioner of Motor Vehicles.  Defendant challenges the sufficiency
 of the service of process on the Commissioner.  We need not reach the merits
 of either of these arguments because defendant did not have notice, actual
 or constructive, within the limitations period.
           Affirmed.

                                         FOR THE COURT;



                                         ________________________________
                                         Associate Justice

------------------------------------------------------------------------------
                                 Dissenting
 

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-140


 Frederick Bashara                            Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 David Corliss                                December Term, 1992



 David A. Jenkins, J.

 Craig Weatherly of Gravel and Shea, Burlington, for plaintiff-appellant

 Jeffry W. White of Theriault & Joslin, P.C., Montpelier, for defendant-
    appellee



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J., dissenting.  Because I believe that the Court's
 construction of V.R.C.P. 15(c), requiring that a misnamed defendant have
 notice of a lawsuit during the applicable statute-of-limitations period, is
 needlessly rigid, I dissent.
      That plaintiff filed his original complaint in a timely manner is
 undisputed.  His complaint, however, contained one simple and understandable
 mistake; it named "Bernard" rather than "David" Corliss as defendant.  The
 record does not reveal exactly how the mistake came about or how plaintiff
 discovered the error, but presumably the accident report named them both and
 the scrivener of the complaint mixed them up.  Nevertheless, within the 60-

 

 day period provided for service of process under V.R.C.P. 3, an amended
 complaint was filed using the correct name for the first time.
      Plaintiff took timely measures to correct the mistake and, barring
 prejudice to defendant -- which the court specifically found was not a
 factor -- common sense suggests that the suit not be barred.  The contrary
 result reached by the Court is neither consistent with the spirit of our
 rules of civil procedure nor required by the language of V.R.C.P. 15(c).
      Vermont has a longstanding tradition of liberality in allowing
 amendments to pleadings when no prejudice is shown, a tradition predating
 and not changed by the adoption of the civil rules of procedure.  Tracy v.
 Vinton Motors, Inc., 130 Vt. 512, 513-14, 296 A.2d 269, 271 (1972).  A
 liberal amendment policy values the substance of claims over procedural
 technicalities.  Lillicrap v. Martin, 156 Vt. 165, 170, 591 A.2d 41, 44
 (1989); see also id. at 170-71, 591 A.2d  at 44 (quoting 1 R. Field, V.
 McKusick & L. Wroth, Maine Civil Practice { 15.1, at 301 (2d ed. 1970))
 (Rule 15 intended to "'facilitate the disposition of litigation on the
 merits and to subordinate the importance of pleadings'").  These principles
 -- rather than a stinting hypertechnical approach -- should guide the
 Court's inquiry when interpreting the civil rules.
      First, I question whether Rule 15(c), providing for "relation back" of
 amendments "changing the party against whom a claim is asserted," should
 apply here at all.  This is not a case where a plaintiff identified one
 person as the defendant and later sought to add or change to another.
 Rather, this case is in the nature of misnomer.  The original complaint and
 the amended complaint are identical.  In both documents, plaintiff seeks to
 sue a defendant who "[o]n or about October 4, 1985 . . . on a public highway

 

 in Washington County . . . operated a motor vehicle in a careless and
 negligent manner . . . [which] collided with the automobile in which
 plaintiff was riding as a passenger."  These words describe David Corliss,
 not his father Bernard, who was not in the car at the time of the accident.
 The confusion is not about who drove the car, only about the driver's first
 name.  Nothing in the original complaint suggests that plaintiff ever
 intentionally sought to sue Bernard Corliss under any theory of liability.
 Reading the complaint, David or Bernard would easily realize the error.
 Under these circumstances, the only issue should be whether defendant was
 prejudiced.  See Beyda v. USAir, Inc., 697 F. Supp. 1394, 1399 (W.D. Pa.
 1988) (amendment merely correcting misnomer rather than changing parties
 relates back under first sentence of Rule 15(c) as long as defendant not
 prejudiced); see also Schiavone v. Fortune, 477 U.S. 21, 35-36 (1986)
 (Stevens, J., dissenting) (changing-the-party test in Rule 15(c) does not
 apply to misnomer cases);  Dandrea v. Malsbary Manufacturing Co., 839 F.2d 163, 167-68 (3d Cir. 1988) (Schiavone does not bar relation back if
 amendment merely corrects defendant's name).
      Even assuming plaintiff does fall within Rule 15(c), the Court's
 interpretation is needlessly inflexible.  Under the rule an amendment
 relates back if
         within the period provided by law for commencing the
         action against the party, the party to be brought in by
         amendment . . . has received such notice of the
         institution of the action that the party will not be
         prejudiced in maintaining the party's defense on the
         merits.  (Emphasis added.)

 In Vermont, an action may be commenced by either filing of the complaint or
 by service of process on the defendant.  V.R.C.P. 3.  As a practical matter,
 an action cannot be commenced until defendant has in fact been served, and,

 

 when the action is begun by filing of the complaint, plaintiff has 60 days
 to accomplish service of process.  Id.  Thus, even a properly named defend-
 ant is not entitled to notice of the lawsuit for 60 additional days after
 the filing of the complaint.  In the context of Rule 15(c), the most
 reasonable interpretation of the period of commencement is the 60 days
 provided by law for completing the initiation of the suit.  Plaintiff filed
 his original complaint within the statute of limitations period; he filed
 his amended complaint within the period for commencing the lawsuit.  Rule
 15(c) should save his complaint.
      The sole purpose of the concept of relation back embodied in V.R.C.P.
 15(c) is to save claims that would otherwise be time barred.  The Court's
 parsimonious interpretation of the rule -- making the date of relation back
 coincide with the expiration of the statute of limitations -- means a plain-
 tiff who innocently makes a naming mistake receives nothing he did not
 already have without the rule.  A naming error will not be apparent when
 the complaint is filed; it may very well become apparent when an attempt at
 service is made.  Only an interpretation of the rule that allows plaintiff
 extra time to correct the error is consistent with the rule's purpose.
 Instead, the Court's reading values technicality above substance and denies
 plaintiff a hearing on the merits -- a result unnecessary to vindicate
 defendant's interests.
      The Court's approach is identical to that taken by the United States
 Supreme Court in Schiavone v. Fortune, 477 U.S. 21 (1986), a decision which
 has been roundly criticized by commentators.  See Epter, An Un-Fortune-ate
 Decision: The Aftermath of the Supreme Court's Eradication of the Relation-
 Back Doctrine, 17 Fla. St. U.L. Rev. 715 (1990); Bauer, Schiavone: An Un-

 

 Fortune-ate Illustration of the Supreme Court's Role as Interpreter of the
 Federal Rules of Civil Procedure, 63 Notre Dame L. Rev 720 (1988); Brussack,
 Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61 S. Cal. L.
 Rev. 671 (1988); Lewis, The Excessive History of Federal Rule 15(c) and Its
 Lessons for Civil Rules Revision, 85 Mich. L. Rev. 1507 (1987).  As a result
 of this critical outcry, F.R.C.P. 15(c) was changed effective 1991.  The
 Reporter's Notes to the 1991 Amendment do not mince words about the reason
 for a rule change:  "On the basis of the text of the former rule, the Court
 reached a result in Schiavone v. Fortune that was inconsistent with the
 liberal pleading practices secured by [F.R.C.P.] 8."  Federal Rule 15(c)(3)
 is now more explicit, providing that if an amendment changes "the party or
 the naming of the party against whom a claim is asserted" that party can be
 brought in by amendment if it has notice "within the period provided by Rule
 4(j) for service of the summons and complaint," that is, up to as many as
 180 days after the statute of limitations has run.
      This Court need not replicate the tortured reasoning of Schiavone, a
 thoroughly discredited approach.  The language of Rule 15(c) is not, as the
 Court asserts, so "clear" that we must follow it.  To the contrary, this
 language was the basis of considerable conflicting case law before
 Schiavone.  See, e.g., Kirk v. Cronvich, 629 F.2d 404, 408 (5th Cir. 1980);
 Ingram v. Kumar, 585 F.2d 566, 571-72 (2d Cir. 1978) (supporting a more
 liberal interpretation of the rule).  Rather, when defendant suffers no
 measurable prejudice, this Court should interpret the rule to effectuate its
 purpose -- litigation on the merits.

 

      I am authorized to state that Justice Dooley joins in this dissent.


                                         _________________________________
                                         James L. Morse, Associate Justice