Lemus v. Potter

                                     201

      Argued and submitted October 1, 2019, affirmed September 1, 2021


                        Maria LEMUS,
                       Plaintiff-Appellant,
                                 v.
                        Gary POTTER,
                   aka Matthew Donald Potter,
                     Defendant-Respondent.
                 Washington County Circuit Court
                      16CV40991; A167142
                                   

     In this negligence action, plaintiff sued “Gary Potter aka Matthew Donald
Potter” to recover damages resulting from an automobile accident. Before trial,
and after the applicable statute of limitations period had expired, plaintiff
moved to amend her complaint to substitute Gary’s son, Matthew Donald Potter,
as defendant. The trial court denied that motion primarily because the amendment would not relate back to the initial complaint under ORCP 23 C and would
be untimely. The court entered a directed verdict against plaintiff based on the
pleadings and dismissed her complaint with prejudice. This appeal followed,
with plaintiff assigning error to the court’s determination of the requirements
of ORCP 23 C and the subsequent rulings. Held: The amendment substituting
Matthew Donald Potter for Gary Potter changed the party against whom plaintiff’s claim was asserted within the meaning of ORCP 23 C. Because Matthew
Potter did not receive notice within the applicable statute of limitations that
an action had been instituted against Gary Potter, an amendment substituting
Matthew for Gary would not relate back to the original complaint under ORCP 23
C and would be time barred. The trial court did not err by denying the motion to
amend, entering a directed verdict, and dismissing the complaint with prejudice.
   Affirmed.




   Janelle F. Wipper, Judge.
   Ron K. Cheng argued the cause for appellant. Also on the
opening brief was Pickett Dummigan McCall LLP. Also on
the combined reply and answering brief were R. Brendan
Dummigan and Pickett Dummigan McCall LLP.
   Tyler E. Staggs argued the cause for respondent. Also
on the answering brief were David E. Smith and Spooner &
Much, PC. Also on the reply brief was Spooner & Much, PC.
202                                                         Lemus v. Potter

   Before Mooney, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.*
    KISTLER, S. J.
    Affirmed.




______________
   * Kamins, J., vice Hadlock, J. pro tempore; Kistler, S. J., vice DeHoog, J.
Cite as 

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        KISTLER, S. J.
         Plaintiff brought this negligence action against
Gary Potter to recover damages resulting from an automobile accident. Before trial, plaintiff moved to amend her complaint to substitute Gary’s son, Matthew Donald Potter, for
Gary. The trial court denied that motion primarily because
plaintiff’s claim against Matthew would not relate back to
her prior complaint under ORCP 23 C and, as a result, would
be untimely. Having denied plaintiff’s motion to amend, the
court entered a directed verdict against plaintiff and dismissed her complaint with prejudice. We affirm the trial
court’s judgment.
         On January 15, 2015, plaintiff and Matthew Potter
were involved in a two-car accident. They exchanged information after the accident, and plaintiff took photographs
of the information that Matthew provided her. One photograph depicts a driver’s license issued to Matthew Donald
Potter. The other depicts an insurance card issued to Gary
and Diane Potter.
         On December 12, 2016, approximately a month before
the statute of limitations ran, plaintiff filed a complaint
against Gary Potter, alleging that he negligently had
caused the accident. The caption identified “Gary Potter” as
the defendant. The first paragraph in the complaint identified where the accident occurred and where the parties
lived. It alleged that, at all material times, “Defendant[,]
Gary Potter, resided in the city of Beaverton, county of
Washington, state of Oregon.” The remainder of the complaint alleged that “defendant” had driven negligently and
hit plaintiff’s car.
         On January 13, 2017, approximately two days before
the statute of limitations ran, plaintiff filed an amended
complaint. The amended complaint altered defendant’s
name in the caption to read as follows: “Gary Potter aka
Matthew Donald Potter.” (Emphasis and some capitalization
omitted.) The amended complaint made no other changes. It
did not alter the allegation in the first paragraph of the complaint that “Defendant[,] Gary Potter,” resided in Beaverton,
Oregon, or the allegations that “defendant” negligently had
caused the accident.
204                                           Lemus v. Potter

         The certificate of service recites that, on January 24,
2017, a process server served the summons and amended
complaint on “Gary Potter aka Matthew Donald Potter” by
leaving a copy of those documents with an adult who resided
at Gary Potter’s home. (Emphasis and some capitalization
omitted.) However, the address where the process server left
copies of the summons and amended complaint turned out
to be Matthew Potter’s home, not Gary’s home.
         Defendant Gary Potter filed a timely answer in
which he admitted that his son Matthew had been involved
in the accident but denied that he had been involved. His
answer also alleged, as affirmative defenses, that plaintiff
had failed to properly serve him (Gary) with summons or
process and that, as a result, any claims against him and
his son were time barred. Gary Potter then moved for summary judgment. In support of that motion, he argued that,
as a factual matter, plaintiff had sued the wrong person
and that, as a procedural matter, she had failed to properly
serve him within the statute of limitations. Gary submitted
an affidavit, which plaintiff did not dispute, that he had not
been involved in the accident and that the address where
plaintiff had left the summons and amended complaint was
not his home.
         Relying on Harmon v. Fred Meyer, 

,

 (1997), plaintiff responded that it was apparent that the amended complaint identified Matthew Potter
as the defendant but misnamed him. Gary Potter replied
that Harmon was inapposite; the question in that case was
whether a motion to amend related back to the original
complaint under ORCP 23 C. Gary argued that, because
plaintiff had not moved to amend her complaint, he (Gary)
was the only named defendant, plaintiff had no valid claim
against him, and the complaint should be dismissed. In
support of that argument, Gary Potter observed that the
caption in the amended complaint incorrectly identified an
alias by which he supposedly was known. It did not result in
Matthew Potter’s being named as a separate defendant.
        The trial court issued an order granting summary
judgment “as to Defendant Gary Potter.” The order then
stated, without further explanation: “The Court finds that
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Defendant Matthew Potter was properly put on notice and
served the Amended Complaint. The case is not dismissed
as to Defendant Matthew Potter.” Gary Potter moved for
reconsideration, which the court denied without comment,
and the parties began preparing for trial.
         The case was assigned to a different judge for trial.
Shortly before trial, the court ruled that it would not reconsider the summary judgment ruling. It also ruled that “the
amended complaint w[ill] be the complaint that we w[ill] be
proceeding to trial on.” After the court made those rulings,
plaintiff moved orally on January 24, 2018, more than three
years after the accident occurred, for leave to file a second
amended complaint substituting Matthew Donald Potter
for Gary Potter. Defendant objected, arguing that amending the complaint to state a claim against Matthew Potter
rather than Gary Potter would “chang[e] the party against
whom the claim is asserted” within the meaning of ORCP
23 C and that, under the terms of that rule, the amendment
would not relate back to the earlier complaint. Defendant
argued that plaintiff’s motion to amend should be denied
because it would be time barred.1 Plaintiff’s response did
not engage with that argument. Rather, plaintiff’s argument in support of amending the complaint proceeded from
the unexplained assumption that her proposed amendment
would not change the party against whom the claim was
asserted.2 Plaintiff asked the trial court either to grant her
motion to amend or, if it denied the motion, to dismiss her
complaint without prejudice.
          The trial court agreed with defendant that allowing
a second amended complaint substituting Matthew Potter
for Gary Potter would change the party against whom plaintiff’s claim was asserted and that the amended claim would
not relate back under ORCP 23 C to the earlier complaint.

    1
      When the trial court asked why plaintiff had not moved earlier to amend
the pleadings and substitute Matthew for Gary, plaintiff’s lawyer responded,
that, in his view, “to have refiled, I believe, would actually have caused the case
to be dismissed due to a statute of limitations issue.”
    2
      Plaintiff had argued earlier in response to defendant’s summary judgment
motion that her complaint identified Matthew Potter as the defendant but misnamed him, but she did not repeat that argument in support of her motion to
amend.
206                                                         Lemus v. Potter

The court accordingly denied plaintiff’s motion to amend,
granted a directed verdict against plaintiff based on the
allegations in the amended complaint, and dismissed plaintiff’s amended complaint with prejudice. The court entered
judgment accordingly.
         On appeal, plaintiff assigns error to three rulings:
the ruling denying her motion to amend, the ruling granting
a directed verdict, and the ruling dismissing her complaint
with prejudice. Defendant cross-assigns error to the summary
judgment ruling to the extent that it recognized that the case
could proceed against Matthew Potter. In defendant’s view,
the motions judge correctly granted his summary judgment
motion and dismissed him from the case. At that point, he
argues, no named defendant remained in the case and, without a motion to amend, the only option left for the motions
judge was to dismiss the complaint in its entirety.
         At oral argument, plaintiff argued that the parties’
dispute turns on one issue—whether the amendment to substitute Matthew Potter for Gary Potter “chang[ed] the party
against whom [plaintiff’s negligence] claim [wa]s asserted.”
See ORCP 23 C. Specifically, ORCP 23 C provides that an
amendment “changing the party against whom a claim is
asserted” will relate back to the original pleading if three
conditions are met.3 First, the claim that the party seeks
to assert must “ar[i]se out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading.” Second, the person against whom the claim
is asserted must have received notice within the applicable
statute of limitations that an action had been instituted,
albeit against some other party. Third, the person against
   3
     ORCP 23 C provides:
       “Whenever the claim or 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, the amendment relates back to the date of the
   original pleading. An amendment changing the party against whom a claim
   is asserted relates back if the foregoing provision is satisfied and, within the
   period provided by law for commencing the action against the party to be
   brought in by the amendment, such party (1) has received such notice of the
   institution of the action that the party will not be prejudiced in maintaining
   any 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 brought in by the amendment.”
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whom the claim is now asserted either “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 brought in by the amendment.”
         In this case, the parties do not dispute that the
first and third conditions are satisfied. They also do not
dispute that the second condition is not satisfied. On that
issue, the only evidence in the record is that Matthew Potter
received notice of this action on January 24, 2017, after the
limitations period had expired. Although there is evidence
that Matthew received notice of plaintiff’s action within
the 60-day grace period for serving the complaint, notice
received within the 60-day period does not satisfy the second condition set out in ORCP 23 C. Harmon, 

; Richlick v. Relco Equipment, Inc., 

,

, rev den, 

 (1993).
         It follows that, if the proposed amendment substituting Matthew Potter for Gary Potter changed the person
against whom plaintiff’s negligence claim was asserted, the
claim will not relate back to the amended complaint and
will be untimely. We begin with that issue4 and note, as a
preliminary matter, that our cases analyzing that issue fall
on a spectrum. At one end of the spectrum, the two parties
are separate, distinct individuals, and it is readily apparent that substituting one for the other would “chang[e] the
party against whom the claim is asserted.” See Worthington
v. Estate of Milton E. Davis, 

, 

, rev den, 

 (2012) (substituting the personal
representative for the deceased defendant changed the
party); Hamilton v. Moon, 

, 

, rev den, 

 (1994) (substituting the father for
the son in an automobile accident case changed the party).
       At the other end of the spectrum are cases where
the complaint is brought against the correct defendant, but
    4
      At first blush, defendant’s cross-assignment of error might appear to
provide a more straightforward way to resolve this appeal. Defendant’s cross-assignment of error assumes, however, that plaintiff would not have moved to
amend her complaint to substitute Matthew for Gary if the motions judge had
dismissed Gary as a defendant on summary judgment and ruled that the complaint should be dismissed. That assumption is questionable, and we begin with
the issue that plaintiff identifies on appeal as pivotal.
208                                                         Lemus v. Potter

the complaint misspells or misstates the defendant’s name
in some minor respect. See Harmon, 

(substituting “The Interlake Corporation” for “Interlake,
Inc.”); Schiavone v. Fortune, 

, 

,

 (1986) (Stevens, J., dissenting) (reasoning
that, under Federal Rules of Civil Procedure (FRCP) 15(c),
correcting minor variations in the spelling of a defendant’s
name would not change the party against whom the claim
is asserted).5 The greater the difference between the name
set out in the complaint and the correct defendant’s name,
the more we have looked to other indicia in the complaint
and summons to determine whether the complaint, read as
a whole, identified the correct defendant. See Harmon, 

 (concluding that the variation in the defendant’s name was not material after noting that no entity
named Interlake, Inc. existed, that the complaint accurately described the correct defendant’s relationship with
the plaintiff’s employer, and that the summons correctly
named The Interlake Corporation as the defendant). When
the complaint, read as a whole, correctly identifies the defendant but misstates the defendant’s name in some nonmaterial way, an amendment to correct that misstatement will
not “chang[e] the party against whom the claim is asserted”
and will relate back if it complies with the first condition set
out in ORCP 23 C; in that situation, the amendment need
not comply with the second and third conditions set out in
ORCP 23 C to relate back. Harmon, 

.6
         Not all cases fall at either end of the spectrum. One
common class of cases that falls somewhere in the middle
arises when a plaintiff mistakenly sues a corporate defendant using its popular name rather than its technically correct one. In Schiavone, for example, the plaintiff mistakenly
     5
       The version of FRCP 15(c) that the Court interpreted in Schiavone is identical to ORCP 23 C. Richlick, 

 n 3. As noted below, FRCP 15(c) was
amended after Schiavone was decided.
     6
       Our decisions have labelled the first class of cases as one where the complaint “misidentifies” the defendant and the second class as one where the complaint correctly identifies but “misnames” the defendant. Those labels, however,
can sometimes impede rather than advance the analysis. Every complaint that
“misidentifies” a defendant will “misname” that entity, with the result that every
misidentification case plausibly can be described linguistically, although not
legally, as a misnaming case. In deciding this case, we have attempted to avoid
those labels and to refer instead to the legal concepts the labels describe.
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brought a defamation action against Fortune magazine,
which was a trademark and internal division of Time, Inc.,
when the plaintiff should have brought the action against
Time, Inc. 

. Similarly, in Mitchell v. The Timbers,

, 

 (1999), the plaintiff brought a
negligence action against the assumed business name of the
tavern where he was injured (The Timbers) when he should
have sued the entity to whom the assumed business name
was registered. Accord Vergara v. Patel, 

, 

 (2020).
         The courts have reached divergent results when
deciding whether amending the complaint to substitute a
corporate entity’s official name for its popular one would
change the party against whom the claim is asserted. The
United States Supreme Court concluded in Schiavone that
substituting Time, Inc. for its internal division Fortune
changed the party against whom the defamation claim was
asserted, while we concluded in Mitchell that amending the
complaint to substitute “the registrant dba The Timbers”
for “The Timbers” did not change the party. Schiavone, 

; Mitchell, 163 Or at 319-20.7 Essentially, in
Mitchell, we recognized that the tavern’s assumed business
name was the nickname or alter ego of the registrant. 

. It followed that the original complaint, read
as a whole, identified the correct defendant but misnamed it,
as the registrant reasonably should have understood. 

. Because an amendment clarifying that point did not
change the party against whom the claim was asserted, it
related back to the original complaint without needing to
meet the second and third conditions set out in ORCP 23 C.8
    7
      After Schiavone, the second requirement in FRCP 15(c) was amended to
provide that an amendment that changed the party against whom the claim was
asserted would relate back if that party was on notice that an action had been instituted “within the period provided … for service of the summons and complaint.”
See Freund v. Fleetwood Enterprises, Inc., 956 F2d 354, 363 (1st Cir 1992) (discussing amendment). Oregon has not made a similar amendment to ORCP 

      We note that, even if the amendment to rename the defendant in Mitchell
had “chang[ed] the party against whom the claim [wa]s asserted,” the amendment
complied with the three conditions set out in ORCP 23 C and thus related back
to the original complaint. First, the amendment did not change the substance of
the claim. Second, because the plaintiff had served the original complaint on the
registrant within the applicable two-year statute of limitations, Mitchell, 

, the correct defendant (the registrant) was on notice within the statute
210                                                         Lemus v. Potter

Our decision in Vergara is to the same effect. See 

.9
         With that background in mind, we turn to the facts
of this case. The complaint identified Gary Potter as the
defendant. Matthew Potter is a separate, distinct person
from Gary Potter. This case accordingly is one “where the
plaintiff sue[d] a person or entity other than the one whose
conduct allegedly harmed the plaintiff” and an amendment
to substitute the correct defendant for the wrong one would
“chang[e] the party against whom the claim is asserted.”
Worthington, 

. Were there any doubt about
the matter, our decision in Hamilton resolves it. In that
case, we held that an amendment to substitute the correct
defendant (the father) for the named defendant (his son) in
an automobile accident case “chang[ed]” the party against
whom the claim was asserted and would relate back only if
all three conditions set out in ORCP 23 C were satisfied. 

. So too here.10
         Plaintiff, however, advances three arguments why
this case differs from Hamilton and instead resembles
Harmon, 

. First, she notes that the caption in the amended complaint identified the defendant as
“Gary Potter aka Matthew Donald Potter.” Gary Potter and

of limitations that the action had been instituted. Third, for the reasons stated
in Mitchell, the registrant reasonably should have known that, “but for a mistake
concerning the identity of the proper party, the action would have been brought
against [the registrant].” ORCP 23 C. It turns out that whether the amendment
changed the party or not made no difference in the result.
     9
        In Vergara, the plaintiff brought an employment claim against “Komal
Patel, an individual, dba University Inn & Suites.” 

. University
Inn & Suites was the entity’s assumed business name, but Patel was not the
registrant. 

 Rather, two companies, Jay Maharaj, Inc., and its successor company, Alko 100 LLC, were the registrants. 

 Patel was the registered agent
for both companies; she was also one of two shareholders in Jay Maharaj, Inc.,
and the managing member of Alko 100 LLC. 

 If the plaintiff had named only
University Inn & Suites as the defendant, the case would have been essentially
identical to Mitchell. We explained that naming Patel as the registrant did not
change the calculus in light of the close connection that she had with the two
corporate registrants. 

.
     10
        In Hamilton, as in this case, the complaint was filed within the statute of
limitations and the amended complaint naming the correct defendant was served
within the 60-day grace period after the statute of limitations had run. 

. For that reason, the second condition in ORCP 23 C was not satisfied
in that case or this one.
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Matthew Potter, however, are not two names for a single
defendant. Cf. Mitchell, 

 (the assumed business name, in context, reasonably identified the registrant as
the defendant); Harmon, 

 (Interlake, Inc.,
in context, reasonably identified The Interlake Corporation
as the defendant). Rather, Gary Potter and Matthew Potter
are separate, distinct persons. In that context, stating that
the named defendant (Gary Potter) was also known as
Matthew Potter did not convert an action against Gary into
an action against Matthew. Herman v. Valley Ins. Co., 

, 

 (1996).11 Rather, the amended
caption identified, incorrectly, an alias by which the only
defendant that the complaint named (Gary Potter) supposedly was known.
         Second, plaintiff argues that this case is similar to
Harmon because she served the summons and amended complaint on the correct defendant (Matthew) within the 60-day
grace period, as the plaintiff did in Harmon. In Harmon,
however, “the summons correctly stated [the] defendant’s
name [The Interlake Corporation] and was properly served
on [the correct] defendant within the 60-day period allowed
for service of summons.” 

. We relied on
those facts, along with others, in concluding that the variation between the name Interlake, Inc. and The Interlake
Corporation was not material and that the complaint identified the correct defendant but misstated its name in a minor
respect. 

         In this case, by contrast, the summons did not identify the correct defendant (Matthew); rather, it continued to

    11
       In Herman, the plaintiff filed an action against “J.R. Price and Associates,
Inc., dba Valley Insurance Company” which was a La Grande corporation. 

. The plaintiff should have sued Valley Insurance Company, a
separate, unrelated Albany corporation, as the defendant. 

. The
plaintiff filed the complaint within the statute of limitations and properly served
an amended complaint naming the correct defendant (the Albany corporation)
within the 60-day grace period but outside the statute of limitations. 

.
Even though the original complaint stated that J. R. Price was doing business
as Valley Insurance Company, the fact that the La Grande and Albany corporations were separate, distinct entities meant that an amendment substituting
the Albany corporation for the La Grande corporation changed the party against
whom the claim was asserted and would relate back to the original complaint
only if all three conditions set out in ORCP 23 C were met. See 

 (so
holding).
212                                                          Lemus v. Potter

identify the wrong defendant (Gary). Moreover, although the
amended complaint and summons were served on Matthew
rather than Gary, that event was fortuitous because, as the
certificate of service reveals, plaintiff mistook Matthew’s
address for Gary’s. Unlike Harmon, where the correct information set out in the summons provided evidence that the
complaint had identified but misnamed the correct defendant, the incorrect information set out in the summons and
certificate of service in this case cuts in the other direction.
         Finally, plaintiff appears to argue that Matthew
should have known that the claim against Gary was really
meant to be a claim against him. Plaintiff’s argument
proves too much.12 If that were the test, then our decisions
in Hamilton and Herman should have come out differently.
In Hamilton, the father presumably should have known
that the plaintiff meant to sue him, not his son. Similarly,
in Herman, the Albany corporation should have known that
the plaintiff meant to sue it rather than the La Grande corporation. That is particularly true since the Albany corporation had been negotiating for some time with the plaintiff
before she filed her action against the La Grande corporation. See Herman, 

. In those cases, and
this one, the person whom the plaintiff sued was a separate,
distinct entity from the person whom the plaintiff should
have sued. In those circumstances, we have declined to look
at the acts that gave rise to the plaintiff’s cause of action
in determining whether the complaint identified the correct
defendant.
         It is true that, in determining whether a variation in the defendant’s name was material, we have looked
to whether the “allegations [in the] complaint correctly
described [the] defendant’s business and its relationship
with [the] plaintiff’s employer.” Harmon, 

 (determining that the complaint and summons, read
together, correctly identified “The Interlake Corporation”
rather than “Interlake, Inc.,” as the defendant). Similarly,
    12
       Indeed, the test that plaintiff urges us to use is one of the conditions that
an amendment “changing the party against whom a claim is asserted” must meet
under ORCP 23 C to relate back to an earlier complaint. It is not a stand-alone
test for determining, in the first instance, when an amendment changes the
party against whom a claim is asserted.
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we have asked whether the allegations in the complaint
described the plaintiff’s employer when the plaintiff brought
an employment action against an entity’s assumed business
name rather than the registrant. Vergara, 

 (explaining that, in light of the allegations describing
the defendant’s relationship to the plaintiff, the “operative words” in the complaint were “dba University Inns &
Suites”).
          However, in those cases, the name used in the complaint reasonably could identify the correct defendant either
because it was substantially similar to the correct defendant’s name or because it was the name by which the business was popularly known. And we looked to the attributes
of the defendant alleged in the complaint (the description
of the defendant’s business or the defendant’s relationship
to the plaintiff) to confirm whether the complaint identified
the correct defendant but misnamed it. We accordingly agree
with the trial court that allowing plaintiff to file a second
amended complaint substituting Matthew Donald Potter for
Gary Potter would change the party against whom plaintiff’s negligence claim was asserted.
         Having resolved what plaintiff views as the pivotal
issue in this case, we turn to the three rulings she assigns
as error. First, the trial court did not abuse its discretion in
denying plaintiff’s motion to amend her complaint. As the
trial court correctly recognized, if it allowed the amendment,
the resulting claim against Matthew would be untimely.
         Second, the trial court did not err in granting
defendant’s motion for a directed verdict on the pleadings.
Although plaintiff argues that the court’s directed verdict
ruling is at odds with its earlier summary judgment order,
we conclude that the summary judgment order stands for
less than plaintiff perceives. The issue before the court on
summary judgment was narrow. Defendant Gary Potter
had moved for summary judgment because there was no evidence that he had been involved in the accident and because
he had not been properly served. At that point, plaintiff had
not moved for leave to amend her complaint to add Matthew
as a defendant, nor had plaintiff filed a cross-motion for
summary judgment regarding Matthew. Given the limited
214                                                      Lemus v. Potter

issues before the court on summary judgment, we conclude
that the court’s summary judgment order is best understood
as granting defendant’s motion as to Gary Potter while
declining to rule one way or another on Matthew Potter. The
order, in effect, left the door open for plaintiff to move later
to substitute Matthew as a defendant, which she eventually
did. Properly viewed, the court’s summary judgment ruling
is not inconsistent with its later directed verdict ruling.13
         Finally, plaintiff argues that the trial court abused
its discretion in dismissing her complaint with prejudice.
However, for all the record reveals, plaintiff’s only claim is
against Matthew Potter, and that claim is untimely for the
reasons stated above. Because plaintiff has identified no
valid basis for reversing the court’s rulings, we affirm its
judgment.
           Affirmed.




    13
       To the extent that our interpretation of the trial court’s summary judgment order is incorrect, the summary judgment order is inconsistent with our
decision that plaintiff’s claim against Matthew was untimely. In that respect,
defendant’s cross-assignment of error is well taken.