Donald Easterling v. American Olean Tile Co., Inc., 91-LW-0573

• Decision Date: 28 August 1991
• Docket Number: 1975,91-LW-0573
• Parties: DONALD EASTERLING, et al., Plaintiffs-Appellants v. AMERICAN OLEAN TILE CO., INC., Defendant-Appellee Case
• Court: Ohio Court of Appeals

DONALD EASTERLING, et al Plaintiffs-Appellants v. AMERICAN OLEAN TILE CO., INC. Defendant-Appellee

No. 1975

91-LW-0573 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

August 28, 1991

Moore Wolfe & Bentley, Lloyd E. Moore, Ironton, Ohio, for Appellants.

Klein, Smith & Klein, Thomas L. Klein, Ironton, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

Stephenson P.J.

This is an appeal from several judgments entered by the Lawrence County Court of Common Pleas which overruled a motion to allow an amended complaint to be filed by Donald and Melinda Easterling, plaintiffs below and appellants herein, and also granted summary judgment on appellants' original complaint to American Olean Tile Co., Inc. (hereinafter referred to as "OLTC"), defendant below and appellee herein. From these judgments, appellants assign the following errors:

"I. WHEN THE PLAINTIFFS FILED A MOTION FOR PERMISSION TO FILE AN AMENDED COMPLAINT CONTAINING THE ADDITIONAL ALLEGATION THAT THE ACTS OF THE DEFENDANT LEADING TO THE DAMAGES OF THE PLAINTIFFS WERE THE RESULT OF THE DEFENDANT'S WILLFUL AND WANTON ACTS, IT IS ERROR FOR THE TRIAL COURT TO OVERRULE SAID MOTION AND GRANT SUMMARY JUDGMENT ON BEHALF OF SAID DEFENDANT.

II. WHEN THE COMPLAINT OF THE PLAINTIFFS ALLEGES THAT AT THE TIME OF THE ACCIDENT IN QUESTION THE PLAINTIFF DONALD EASTERLING WAS USING DEFENDANT'S STRIP MINING PROPERTY (WHICH WAS NOT HELD OPEN FOR PUBLIC USE) TO OPERATE AN ALL-TERRAIN VEHICLE, THAT THE DEFENDANT HAD PRIOR KNOWLEDGE OF SUCH USE OF SAID PROPERTY BY ALL-TERRAIN VEHICLES, THAT THE DEFENDANT CAUSED CHANGES IN THE TERRAIN OF SAID PROPERTY WHICH CHANGED A SLOPE TO A NEAR VERTICAL DROP (THE DROP WHICH CAUSED THE INJURIES AND DAMAGES OF THE PLAINTIFFS), THAT SAID DEFENDANT HAD FAILED TO COMPLY WITH OHIO REVISED CODE SEC. 4153.32 IN THAT SAID DEFENDANT HAD FAILED TO FENCE OFF SAID AREA AND HAD FAILED TO POST DANGER SIGNAL BOARDS AND HAD FAILED TO DEFINE THE BOUNDARIES OF SAID AREA AS REQUIRED BY 1501:13-2-07 OF THE DIVISION OF RECLAMATION OF THE STATE OF OHIO, AND WHEN THE DEFENDANT'S AGENT ADMITTED IN HIS DEPOSITION THE FOREGOING ALLEGATIONS AND FURTHER STATED THAT IT HAD BEEN APPROXIMATELY A YEAR SINCE "NO TRESPASSING SIGNS" HAD BEEN VANDALIZED AND THAT THEY HAD NOT BEEN REPLACED, AND WHEN THE PLAINTIFFS HAD MOVED TO AMEND THEIR COMPLAINT ALLEGING THAT THE ACTS OF THE DEFENDANT WERE WILLFUL AND WANTON, IT IS ERROR FOR THE TRIAL COURT TO DENY PLAINTIFFS PERMISSION TO AMEND THEIR COMPLAINT AND ERROR FOR THE COURT TO GRANT SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT ON THE ISSUE OF LIABILITY."

A short summary of the facto pertinent to this appeal is as follows. On July 15, 1988, appellant, Donald Easterling, was driving a recreational vehicle over property owned and operated as a strip mine by OLTC in Lawrence County, Ohio. It would appear from the record that Mr. Easterling had, similarly, driven his recreational vehicle over the same route on the previous July 4th and that this property was popular among those people using recreational and all terrain vehicles. Although OLTC was aware of such use and was concerned about it, there had been no determination of any practical way to end it.

While operating his vehicle on July 15th, Mr. Easterling drove over a vertical drop off created when a portion of a large mound of stockpiled clay had been removed. It would appear uncontroverted that this vertical drop off was created sometime between July 4-15, 1988, and that there were no signs posted to alert potential recreational users to a change in the terrain. As a result of driving over the drop off, Mr. Easterling sustained injury and property damage.

Appellants commenced the action below on February 13, 1989, alleging that OLTC was negligent in that it failed to use reasonable care to avoid the accident. OLTC answered denying all liability and raising the defenses of contributory negligence and assumption of the risk.

On June 21, 1990, OLTC moved for summary judgment arguing that Mr. Easterling was a trespasser at the strip mine and, therefore, it owed him no other duty than to refrain from any willful or wanton misconduct which could injure him. It further argued that Mr. Easterling had the ability to observe the area over which he intended to trespass and, thus, should have taken due care for his own safety. Appellants filed their memorandum contra summary judgment arguing, in substance, that OLTC's liability was a genuine issue of material fact to be determined by the trier of fact.

On August 31, 1990, a referee's report was entered recommending that summary judgment be granted on the basis that OLTC had only a duty to refrain from willful or wanton misconduct and that none had been demonstrated on their part. On September 16, 1990, appellants filed a motion to amend their complaint. A copy of the proposed amended complaint was attached to the motion and reveals that appellants were changing the allegations in their complaint to aver that the injuries were caused by OLTC's willful and wanton acts rather than by negligence.

On November 1, 1990, the court below issued its decisions overruling the motion to amend the complaint and granting the motion for summary judgment. Judgments to this effect were filed on November 7, 1990, and this appeal followed.

Appellants' first assignment of error is directed toward the trial court's judgment denying them leave to file their amended complaint. Initially, we note that although Civ. R. 15(A) provides that leave to amend a pleading should be freely given when justice so requires, the ultimate decision to grant such leave is 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. Solowitch v. Bennett (1982), 8 Ohio App. 3d 115, 116; Shaw v. Central Oil Asphalt Corp. (1981), 5 Ohio App. 3d 42, 46; Dept. of Taxation v. Cemetery Management Service Co. (1981), 2 Ohio App. 3d 115, 117. An abuse of discretion connotes more than an error of law or judgment, it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Const., Inc. v. Fremont (1990), 50 Ohio St. 3d 19, 22. Appellants argue that the court below abused its discretion in not allowing them to amend their complaint. We disagree.

As support for their argument, appellants rely on the Supreme Court's holding in Peterson v. Teodosio (1973), 34 Ohio St. 2d 161 at paragraph six of the syllabus wherein that court held as follows:

"It is an abuse of discretion for a court to deny a motion, timely filed, seeking leave to file an amended complaint, where it is possible that plaintiff may state a claim upon which relief may be granted and no reason otherwise justifying denial of the motion is disclosed."

More recently, however, the Supreme Court has cautioned that reliance on the Peterson holding is inappropriate when, among other things, the motion to amend was not timely filed. Wilmington Steel Products. Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St. 3d 120, 122. Also see DiPaulo v. DeVictor (1988), 51 Ohio App. 3d 166, 170 (a motion to amend under Civ. R. 15(A) must be filed in a timely manner). Moreover, the court has held that "[w]here a plaintiff fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion to deny a motion to amend the pleading." Wilmington Steel Products. Inc., supra at the syllabus. In reviewing the record before us, we are persuaded neither that the motion to amend was timely filed nor that appellants made a prima facie showing of support for the new matters sought to be pleaded.

As stated previously, appellants filed their motion for leave to amend their complaint on September 16, 1990. This is nearly three months after OLTC moved for summary judgment and more than two weeks subsequent to the referee's report recommending that the motion be granted. In their brief, appellants argue that they sought to amend their complaint as a result of information uncovered during the deposition of OLTC's agent, Hervey Howell. However, Mr. Howell's deposition was taken on April 26, 1990, and appellant's did not submit their proposed amended complaint for almost five more months. By the time appellants did seek leave to amend their complaint, there was (approximately) only two weeks left before the first scheduled trial date.

While there does not appear to be any Set time limit beyond which a motion to amend would be deemed untimely, the Supreme Court has held that such motions filed eleven and seven days before trial are "patently" untimely. Wilmington Steel Products. Inc., supra at 123. Furthermore, decisions by the appellate courts of this state tend to indicate that there is a certain stage in litigation beyond which it becomes increasingly more difficult to find an abuse of discretion in the denial of a motion to amend. See e.g. DiPaolo, supra at 170 (no abuse of discretion when the proposed amendment is sought after trial has been set and nine months after the complaint was originally filed); Meadors v. Zaring Co. (1987), 38 Ohio App. 3d of discretion in denying motion to amend complaint to assert a new negligence claim when discovery had been completed and summary judgment had been orally granted, but not yet journalized); also see Somermeier v. First Natl. Bank (1968), 17 Ohio App. 2d 136, 139 (a pre-rules case where no abuse of discretion was found in denying leave to file an amended pleading tendered during a hearing on a summary judgment motion).

Similarly, we are not persuaded that the motion to amend was timely filed below. Appellants had taken the information upon which they based their proposed amended complaint nearly...