Opinion
C.A. No. 06C-07-133 JAP.
Submitted: May 21, 2009.
Decided: August 27, 2009.
On Defendant Huovinen's Motion for Summary Judgment.
DENIED.
David J. Lyons, Esquire, The Lyons Law Firm, Wilmington, Delaware, Attorney for Plaintiff Smiley.
Robert J. Leoni, Esquire, Shelsby Leoni, Stanton, Delaware, Attorney for Defendant Huovinen.
Stephen P. Casarino, Esquire, Casarino Christman Shalk, P.A., Wilmington, Delaware, Attorney for Defendant Taylor.
Dear Counsel:
This is another chapter in the saga of Toots the stray dog. On August 9, 2004, Plaintiff James Smiley was bitten by Toots when she escaped from Defendant Steve Huovinen's yard through a hole in the fence. After being bitten, Mr. Smiley went to the front of Mr. Huovinen's house to inquire about the dog. Defendant Elizabeth Taylor, Mr. Huovinen's then-girlfriend (now-wife), was present and told Mr. Smiley that she owned the dog.
For chapter of this story 1 see Smiley v. Taylor, 2008 WL 5206811 (Del. Super.).
On July 19, 2006, shortly before the two-year statute of limitations expired, Mr. Smiley filed a lawsuit seeking damages for his injuries against Ms. Taylor as the alleged owner of Toots. His claim rested primarily upon a Delaware statute which imposes strict liability on the owner of a dog for injuries caused by that dog. In a June 2007 arbitration in the case, Mr. Huovinen testified that he owned Toots at the time of the bite. Prior to this testimony Mr. Smiley had no reason to believe that Mr. Huovinen — as opposed to Ms. Taylor — owned Toots. Soon thereafter, Mr. Smiley subsequently amended his complaint to add Mr. Huovinen as a defendant, claiming that he is strictly liable under the same statute which formed the basis of his claim against Ms. Taylor.
The original complaint also named Cheryl Paloni as a defendant. The Court granted Ms. Paloni's motion for summary judgment on December 10, 2008. Smiley, 2008 WL 5206811.
7 Del. C. § 1711.
The issue now before this Court is whether the amendment relates back to the original filing of the complaint under Superior Court Civil Rule 15(c). Mr. Huovinen claims that the amended complaint does not relate back and therefore Mr. Smiley's claims against him are barred by the statute of limitations.
Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993) (stating that "[a]dditional entities may be added as parties under Rule 15(c) after the running of the period of limitations `if the requirements of Rule 15(c) are met'").
10 Del. C. § 8119 provides that "[n]o action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained. . . ."
Rule 15(c) provides:
An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or the defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the name of the party against whom a claim is asserted if the forgoing provision (2) is satisfied and, within the period provided by statue or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) 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.
There is no dispute that the amended complaint relates to the same conduct or occurrence set forth in the original complaint or that Mr. Huovinen had notice of this lawsuit during the relevant time period. Mr. Huovinen's only contention is that the "third prong of Rule 15(c) has not been met in this case." Therefore, the only issue before the Court is whether Mr. Huovinen should have known that but for a mistake concerning the identity of the owner of Toots, the lawsuit would have been brought against him.
Def. Mot. for Summ. J., D.I. 68, at ¶ 5.
Delaware courts have held that a "mistake" satisfies Rule 15(c) when the party makes "a true mistake concerning the identity or name of the proper party." On the other hand, an amendment will not relate back where the plaintiff "merely chose the wrong party to sue" because — in the absence of a mistake by the plaintiff, of which the defendant sought to be added was aware — the defendant "could assume that he or she was not originally joined for tactical reasons or lack of proof."
Brown v. City of Wilmington Zoning Bd. of Adjustment, 2007 WL 1828261, at *11 (Del. Super.).
Id. (quoting 61B AM. JUR. 2D Pleading § 869).
Mr. Huovinen argues that "[r]egardless of Plaintiff learning after the statue of limitations had run that Huovinen allegedly owned the dog he still could have named Huovinen as a Defendant for allowing the dog to escape from his backyard." Because Mr. Smiley did not bring a lawsuit against Mr. Huovinen for negligence as a landowner, Mr. Huovinen claims that he was entitled to assume that he "was not originally joined for tactical reasons or lack of proof."
Def. Mot. at ¶ 9.
Brown, 2007 WL 1828261, at *11.
The Court disagrees. The fact that Mr. Smiley could have sued Mr. Huovinen as a landowner is not material to the issue of whether Mr. Smiley made a mistake regarding the identity of Toots' owner. The record demonstrates that Ms. Taylor informed Mr. Smiley that she was the owner of Toots and Mr. Smiley had no reason to question that assertion until Mr. Huovinen testified at arbitration. When taken in the light most favorable to the non-moving party, the record shows that Mr. Huovinen knew of the lawsuit through Ms. Taylor; knew that she was being sued as the alleged owner of the Toots; and knew that he, in fact, was Toots' owner. Accordingly, there was a "true mistake concerning the identity or name of the proper party" and Mr. Huovinen should have known that, but for that mistake, he would have been named as a defendant. Therefore, Mr. Huovinen's motion for summary judgment is DENIED.
Mason v. United Servs. Auto. Ass'n, 697 A.2d 388, 392 (Del. 1997) (stating that when determining a motion for summary judgment the court must "examine the record to determine whether, after viewing the facts in the light most favorable to the nonmoving party, the moving party has demonstrated that no material issues of fact are in dispute and it is entitled to judgment as a matter of law").
Brown, 2007 WL 1828261, at *11.
IT IS SO ORDERED
oc: Prothonotary