Artie L. Spence v. Liberty Township Trustees
| Decision Date | 15 May 1998 |
| Docket Number | 98-LW-2602,97CA644 |
| Parties | ARTIE L. SPENCE, et al., Plaintiffs-Appellants v. LIBERTY TOWNSHIP TRUSTEES, et al., Defendants-Appellees Case |
| Court | Ohio Court of Appeals |
Gossett & Benintendi, L.L.P., Robert F. Benintendi, Georgetown, Ohio for Appellants.
John R. Haas, Portsmouth, Ohio, for Appellees.
DECISION
This is an appeal from a summary judgment entered by the Common Pleas Court of Adams County, Ohio, in favor of the Liberty Township Trustees (hereinafter referred to as "the trustees"), defendants below and appellees herein, on the claims brought against them by Artie and Judith Spence, plaintiffs below and appellants herein. The following errors are assigned for our review:
The record reveals the following facts pertinent to this appeal. Appellants own approximately 1.6 acres of land along Bloom Drive in Liberty Township, Adams County, Ohio. They moved into a mobile home on the property in 1970 and later, in 1978, acquired a house which they moved onto the premises. Appellants experienced no initial problems with flooding or drainage on the property. In 1989, however, they were having insulation installed when they discovered that there was sewage and standing water a foot deep underneath their home. The source of the problem was ultimately discovered to be a drainage culvert underneath Bloom Drive that was backing up. Appellants contacted the trustees and alerted them to this problem, but nothing was ever done to correct it and the flooding persisted. They contend that water damage over the years has caused the floor and chimney of their home to sink and has resulted in the walls pulling away from the ceiling.
Appellants commenced the action below on January 28, 1993, alleging that the trustees failed to properly maintain, or replace, the culvert underneath Bloom Drive and that they had, wrongfully and maliciously, failed to take any action on the problem despite having been notified on several occasions of water and sewage backing up and damaging appellants' home. Appellants sought relief in the amount of $10,000 in compensatory damages and $10,000 in punitive damages. An amended complaint later raised both of these amounts to $100,000. The trustees filed their answer denying all liability on their claims.
The matter proceeded to a jury trial on July 21, 1994. At the conclusion of appellants' case in chief, the trustees moved for a directed verdict under Civ.R. 50(A) arguing that they were shielded from liability by R.C. 2744.03(A). Appellants objected, however, arguing that immunity is an affirmative defense that was never pled in the trustees' answer and, therefore, was waived. The trustees responded by pointing out that both their answer to the original complaint, as well as their answer to the amended complaint, set forth the defense that appellants had failed "to state a claim upon which relief could be granted." This was sufficient, the trustees argued, to encompass the defense of immunity. The lower court agreed and directed a verdict in their favor.
We reversed that judgment in Spence v. Liberty Twp. Trustees (1996), 109 Ohio App.3d 357 (), and held that "the use of a generic Civ.R. 12(B)(6) defense in a party's answer is . . . insufficient to raise and preserve the affirmative defense of immunity." Id. at 366. It was noted by us that the trustees had neither raised this defense in their responsive pleading(s), as required by Civ.R. 8(C), nor attempted to amend their answer(s) and include the defense, as permitted under Civ.R. 15. Thus, we found that it had been waived. The judgment was reversed and the cause remanded for further proceedings.
On May 9, 1996, the trustees filed a motion for leave to amend their answer so as to raise the defense of statutory immunity under R.C. chapter 2744. Their motion was granted and the amended answer was subsequently filed. The trustees then moved for summary judgment arguing that they were immune from any liability in this case. Appellants filed a memorandum in opposition but did not contest the issue of immunity. Instead, they cited our previous decision in Spence I and contended that such a defense had already been deemed waived by this Court Thus, appellants concluded, the doctrine of res judicata prevented the trustees from raising it any further during the proceedings below. The trial court was not convinced and, on April 9, 1997, entered summary judgment in favor of the trustees. This appeal followed.
Appellants argue in their first assignment of error that the trial court erred in allowing the trustees to amend their answer to include the defense of immunity. They contend that such an amendment not only violated the "law of the case doctrine" and principles of stare decisis but was also improper under Civ.R. 15. We find no merit in any of these contentions. This Court held in Spence I, supra at 366, that the defense of statutory immunity had been waived. However, that holding applied only to the proceedings which had occurred up to that point. Our ruling was never intended, nor should it have been interpreted, as a blanket prohibition against raising that defense in the future. The fact of the matter is that we remanded the case for further proceedings which would have included a new trial. Had the trustees never amended their answer, and then successfully raised the defense of immunity again, such action would have been in violation of our previous decision. That was not what happened below. The trustees amended their answer like any other litigant and, as we pointed out in Spence I this is a perfectly acceptable means by which to raise the defense. In short, the trial court and the trustees were well within the confines of our previous ruling. There was no violation of stare decisis or "the law of the case" doctrine.
We are equally unpersuaded that such an amendment was improper under the Ohio Rules of Civil Procedure. The provisions of Civ.R. 15(A) state inter alia that a party may amend its pleading by leave of court and that such leave shall be freely granted. A decision to grant or deny such leave is ultimately left to the trial court's discretion and its decision on such matters will not be disturbed absent a showing of an abuse of that discretion. Easterling v. Am. Olean Tile Co., Inc. (1991), 75 Ohio App.3d 846, 850; Solowitch v. Bennett (1982), 8 Ohio App.3d 115, 116; Shaw v. Central Oil Asphalt Corp. (1981), 5 Ohio App.3d 42, 46. An abuse of discretion is more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448; Rock v. Cabal (1993), 67 Ohio St.3d 108, 112; Steiner v. Custer (1940), 137 Ohio St. 448 at paragraph two of the syllabus. In order to have an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. We are also admonished that, when applying the abuse of discretion standard, we are not free to merely substitute our judgment for that of the trial court. In re Jane Doe I (1991). 57 Ohio St.3d 135, 138; Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. This is a difficult standard to meet and we are not persuaded that it was met here.
It is true that the action below had been pending for more than three (3) years when the trustees sought leave to amend their answer. However, one-half(1/2) of that time was spent on appeal to this Court in Spence I. The matter was remanded to the trial court on February 13, 1996, and the trustees moved to file an amended answer just a couple of months later. No new trial date had been set yet and appellants still had a number of months before the court ordered cut-off-for discovery. This Court noted in Easterling, supra at 851, that there is no time limit beyond which a Civ.R. 15 motion is considered "untimely" but that there is a certain stage during litigation at which point it becomes increasingly more difficult to justify leave to amend. We are not persuaded that such point was reached in the cause sub judice and thus we find no abuse of discretion in allowing an amended answer to be filed so as to raise the defense of immunity. For these reasons, the first assignment of error is without merit and is overruled.
Appellants argue in their second assignment of error that the lower court erred in entering summary judgment in favor of the trustees. We note at the outset that appellate review of summary judgment is conducted under a de novo standard. Snell v. Salem Ave. Assoc. (1996), 111 Ohio App.3d 23, 30; Yaroma v. Griffiths (1995), 104 Ohio App.3d 545, 551; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. That is to say that we afford no deference whatsoever to the trial court's decision, see Doe v. Adkins (1996), 110 Ohio App.3d 427, 432; Dillon v. Med. Ctr. Hosp. (1993), 98 Ohio App.3d 510, 514 - 515; Shepherd v. United Parcel Serv. (1992), 84 Ohio App.3d 634, 641, and conduct our own independent review to determine if summary judgment was appropriate. Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 377; ...
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