Hoover v. Sumlin

• Decision Date: 03 July 1984
• Docket Number: No. 83-895,83-895
• Citation: 465 N.E.2d 377,12 Ohio St.3d 1
• Parties: , 12 O.B.R. 1 HOOVER et al., Appellants, v. SUMLIN; Randolph Township, Appellee, et al.
• Court: Ohio Supreme Court

Page 1

12 Ohio St.3d 1

465 N.E.2d 377, 12 O.B.R. 1

HOOVER et al., Appellants, v. SUMLIN; Randolph Township, Appellee, et al.

No. 83-895.

Supreme Court of Ohio.

July 3, 1984.

Syllabus by the Court

1. A motion for leave to amend a pleading made pursuant to Civ.R. 15(A) should be granted "freely" when justice so requires.

2. The granting of a motion for leave to amend a pleading shall not be disturbed on appeal absent a showing of bad faith, undue delay or undue prejudice to the opposing party.

The issues presented for review herein are narrow and procedural. Only the facts pertinent to the resolution of the issues will be discussed.

On August 12, 1977 the plaintiffs-appellants, Daniel Hoover and Patricia Gibson, sustained injuries when Mr. Hoover drove his van into an unmarked trench on a highway located in Randolph Township, Ohio. Mrs. Hoover was a passenger in the van.

Appellants commenced this lawsuit on May 21, 1979 against Wright Sumlin, alleging the negligent creation and maintenance of a hazard in the roadway. Sumlin filed an answer and, upon Sumlin's subsequent application, the court ordered that Randolph Township be joined as an additional defendant on December 3, 1979. On December 28, 1979, the appellants filed an amended complaint against both Sumlin and Randolph Township. Randolph Township's answer to appellants' amended complaint was filed on January 31, 1980. There was no mention of the defense of the statute of limitations in Randolph Township's answer.

Sumlin filed a third-party complaint against Cincinnati Insurance Company and the appellants filed a second amended complaint on May 5, 1980, to include the insurance company as a defendant. Randolph Township's answer to appellants' second amended complaint again omitted the defense of the statute of limitations.

The case was set for trial on August 24, 1981, but was continued upon the agreement of all parties. On September 1, 1981, Randolph Township filed a motion for leave to amend its answer pursuant to Civ.R. 15(A), which the trial court granted. On September 9, 1981, Randolph Township filed its amended answer which raised, for the first time, the affirmative defense of the statute of limitations. The appellants thereafter filed a motion to strike that affirmative defense from the amended answer. The trial court granted appellants' motion to strike on March 31, 1982.

The court of appeals eventually determined that the trial court erred in granting the appellants' motion to strike and reversed the judgment below.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Bieser, Greer & Landis, David C. Greer and Michael W. Krumholtz, Dayton, for appellants.

Thornburgh, Ferguson, Radabaugh & Weaver, Douglas K. Ferguson and Nancy Thornburgh, Dayton, for appellee.

KOEHLER, Justice.

The issue in this case is whether the affirmative defense of the statute of limitations may be raised by an amendment to an answer made with leave of court, pursuant to Civ.R. 15(A), ¹ where the time for an amendment as a matter of course has passed and there is no agreement of the parties permitting the amendment.

I

Appellants initially focus their argument on the impact of the amendment to Civ.R. 12(H) ² which was effective on July 1, 1983. Before that date, Civ.R. 12(H) provided, with certain exceptions not applicable herein, that:

"A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or if he has made no motion, by responsive pleading or an amendment thereof made as a matter of course under Rule 15(A), * * *."

Appellants argue that the above-quoted version of Civ.R. 12 should govern this appeal because it was the controlling rule at the time of Randolph Township's responsive pleading below and because applying amended Civ.R. 12(H) at this time would "work an injustice" on the appellants. However, Civ.R. 86(1) clearly states that the amendments to the Civil Rules which became effective on July 1, 1983 are to " * * * govern * * * all further proceedings in actions then pending, except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies."

Aside from merely asserting that the application of amended Civ.R. 12(H) will "work an injustice," appellants present no argument as to how such injustice will occur. We can find no reason why we should not apply the amended version of Civ.R. 12(H) and, as the application of the amended rule is certainly "feasible," we must initially conclude that amended Civ.R. 12(H) will apply for purposes of this appeal.

II

The 1983 amendment to Civ.R. 12(H) should serve to alleviate much confusion as to the roles of Civ.R. 8 and 12, respectively, in the course of pleading. Civ.R. 8(C) deals with affirmative defenses and states that, in pleading to a preceding pleading, a party " * * * shall set forth affirmatively * * * the statute of limitations * * *." (Emphasis added.) While the word "shall" indicates the firmness of this pleading requirement, Civ.R. 8 does not state a time period within which an affirmative defense must be pleaded or the effect of failing to plead an affirmative defense. However, it is clear that some sort of concept of "waiver" is embodied in the requirement of Civ.R. 8(C) that a party "shall" raise any affirmative defenses in his answer.

Civ.R. 12(H), as amended, provides solely for the waiver of the defenses listed in Civ.R. 12(B)(1) to (7). Civ.R. 12(H), prior to the 1983 amendments, was amenable to a broader interpretation as it stated that "all defenses" were waived if not raised in a Civ.R. 12 motion, a responsive pleading or in an amendment to a pleading made as a matter of course. The 1983 amendment makes it clear that waiver under Civ.R. 12(H) relates only to the defenses listed therein and no more. Though Civ.R. 12(B) also requires the prompt assertion of defenses, ³ we must look at the role Civ.R. 15 plays in pleading to develop the scope of the doctrine of waiver as it relates to the timeliness of a party's assertion of either a claim or an affirmative defense.

Civ.R. 15(A) tells the litigant how and when to amend "pleadings" and must be read in conjunction with Civ.R. 8(C). Civ.R. 15(A) permits an answer ⁴ to be amended once "as a matter of course" within twenty-eight days after it is served, provided the action has not been placed on the trial calendar. Thereafter, an answer may only be amended with the written consent of the adverse party or after obtaining leave of court. Civ.R. 15(A). The rule also contains the following rather unique provision: "Leave of court shall be freely given when justice so requires." Civ.R. 15(A) in no way discusses or limits what may constitute the subject matter of the amendment.

This court has previously discussed the waiver of affirmative defenses in Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668 , which was obviously decided prior to the 1983 amendment of Civ.R. 12(H). There, we held that:

"Where the bar of the statute of limitations is not presented as a defense either by motion before pleading pursuant to Civ.R. 12(B), or affirmatively in a responsive pleading pursuant to Civ.R. 8(C), or by amendment made under Civ.R. 15, then the defense is waived under Civ.R. 12(H), and a motion raising the defense at trial is not timely made." (Emphasis added.)

We did not, as appellants suggest, limit the manner of raising affirmative defenses to amendments made "as a matter of course" under Civ.R. 15(A). Rather, under Mills, a defense could be raised by any Civ.R. 15 amendment.

We note that the rules applicable herein bear a strong resemblance to their federal counterparts in all substantive ways and in the policies underlying the rules. Federal R.Civ.P. 15 reflects two of the most important policies of the federal rules. See 6 Wright & Miller, Federal Practice and Procedure (1971) 359, Section 471. First, a liberal amendment policy provides the maximum opportunity for each claim to be decided on the merits rather than on procedural deficiencies. Id. Second, the rule reflects the fact that pleadings are assigned the limited role of providing the parties to a lawsuit with notice of the nature of the pleader's claim or defense. Discovery is available to paint a more detailed picture of the facts and issues. Id. at 360. See, also, Foman v. Davis (1962), 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222.

In this respect, we find the language of the court in Bobbitt v. Victorian House, Inc. (N.D.Ill.1982), 532 F.Supp. 734, 736, with regard to Federal R.Civ.P. 15(a), to be particularly appropriate and pragmatic:

"Rule 8(c) requires a party to set forth any affirmative defense in a responsive pleading. Failure to do so may waive the right to present evidence at trial on that defense. * * * In the real world, however, failure to plead an affirmative defense will rarely result in waiver. Affirmative defenses--like complaints--are protected by the direction of Rule 15(a) that courts are to grant leave to amend pleadings freely * * * when justice so requires. Accordingly, failure to advance a defense initially should prevent its later assertion only if that will seriously prejudice the opposing party."

Indeed, even after the trial, Civ.R. 15(B) ⁵ (as well as the language of our holding in Mills, supra ) would permit the amendment of the pleadings to reflect issues which were tried, explicitly or implicitly, with the consent of the parties.

Civ.R. 1(B) states that "[t]hese rules shall be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice." One of the purposes of the Civil Rules is to effect the resolution of cases upon their merits, not on pleading deficiencies. Peterson v. Teodosio (1973), 34 Ohio St.2d...