Nellas v. Loucas

• Decision Date: 06 September 1972
• Docket Number: No. 13044,13044
• Citation: 156 W.Va. 77,191 S.E.2d 160
• Court: West Virginia Supreme Court
• Parties: Victoria Paparodis NELLAS et al., etc. v. George E. LOUCAS, Deceased, and Emmanuel B. Loucas, as Exec., etc.

Page 160

191 S.E.2d 160

156 W.Va. 77

Victoria Paparodis NELLAS et al., etc. v. George E. LOUCAS, Deceased, and Emmanuel B. Loucas, as Exec., etc.

No. 13044.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1972.

Decided Sept. 6, 1972.

Syllabus by the Court

1. A motion to amend a pleading is addressed to the sund discretion of the trial court and such discretion will not be disturbed on appeal unless there is a showing of abuse of discretion.

2. The statute of limitations is a defense which should be set forth affirmatively pursuant to Rule 8(c), W.Va.R.C.P. or the pleader risks the court's denial to assert that defense in bar at trial.

3. The admission of the defense of statute of limitations absent proper pleading and over the objection of the opposing party rests in the sound discretion of the trial court in accordance with the rules set forth in Rule 15, W.Va.R.C.P.

4. According to Rule 15(b), W.Va.R.C.P. an amendment to a pleading to assert an affirmative defense offered during or after trial over the objection of the opposing party should not be accepted unless (1) it permits the presentation of the merits of the action; (2) the adverse party will not be prejudiced by the sudden assertion of the defense; and (3) the adverse party is given ample opportunity to meet the issue.

5. Although a trial court in its sound discretion and pursuant to Rule 15, W.Va.R.C.P. may permit a pleading amendment asserting the affirmative defense of statute of limitations during or even after trial over the objection of the opposing party, it abuses its discretion and thereby commits error when it does not, in turn, accord the party moved against adequate opportunity to respond with evidence to meet the issue pleaded.

McCamic & McCamic, Jeremy C. McCamic, Wheeling, for appellants.

Goodwin, Mead & Goodwin, Thomas A. Goodwin, Wheeling, for appellee.

HADEN, Judge:

This is an appeal from a final order of the Circuit Court of Hancock County, West Virginia, setting aside a jury verdict and judgment for the plaintiffs below, (hereinafter called the Paparodis heirs). That final order entered May 20, 1970, permitted the appellee, George E. Loucas, (hereinafter called the 'lawyer' or 'defendant'), to amend his answer pursuant to Rule 15(b) of the West Virginia Rules of Civil Procedure, (hereinafter cited as W.Va. R.C.P.), and affirmatively plead the statute of limitations as a complete bar to the action. In the same order, judgment was entered for the lawyer and costs awarded in his favor. During the pendency of this appeal the defendant, George E. Loucas, died and this action has been revived in the name of his executor, Emmanuel B. Loucas.

The case arose when the Paparodis heirs, Ohio residents, sued the lawyer, a West Virginia resident and one of the attorneys handling their deceased father's estate, for either a breach of an employment contract or the tort of malpractice arising from a failure of the lawyer to file a timely federal estate tax return resulting in loss to the estate in form of penalties assessed in addition to tax due. The language of the complaint is vague and less than specific as to whether it sounds in tort or contract.

The Paparodis heirs' decedent died December 13, 1956. The estate's federal tax return was due to be filed on March 13, 1958. It was not filed until sometime subsequent to October 1, 1958. This resulted in a penalty of $5,484.83 being assessed against the estate. About five years later on February 14, 1963, the Paparodis heirs instituted this civil action against the lawyer to recover damages based on allegations that he had agreed to perform for compensation, legal services necessary for the prompt, proper, efficient and judicious handling of the administration of the estate then being undertaken by the Ohio attorney Mauro, as local counsel, and that the defendant breached the agreement in that he failed, omitted and neglected to perform it according to its terms. The lawyer's answer and counterclaim denied a breach of any agreement, denied that he failed, omitted and neglected to perform any of his duties in connection with the estate and asserted a counterclaim for $3,000.00 for services performed. The answer did not raise the defense of statute of limitations.

No significant development occurred in the case until December 30, 1968 when a pretrial order defining issues, stated the Paparodis heirs' contention that the lawyer, as an attorney representing the estate, had failed to file a timely federal estate tax return which resulted in penalties being assessed against the estate, all of which actions the plaintiffs contended were negligence on the part of the lawyer. The defendant lawyer contended he was only assisting Ohio counsel who had complete charge of the estate administration and any failure to file the return was the obligation of the Ohio counsel and not of the defendant who, consequently, denied liability.

Nine months later, on September 29 and 30, 1969, the case was tried. During the trial the issue of the statute of limitations was suggested by Loucas' counsel for the first time at the close of plaintiff's evidence, whereupon counsel for the Paparodis heirs retorted that inasmuch as this issue was not raised by answer, motion to dismiss, or at two pretrial conferences, and was not jurisdictional in nature, it was waived. No action was taken by the trial court.

The record is then silent as to the issue of statute of limitations until the close of defendant's evidence, when the lawyer's counsel sought leave of the court to interpose a plea of statute of limitations by amending and supplementing his answer. The trial court stated that he was of the opinion that the evidence presented sounded in tort, not in contract and that under the Ohio statute of limitations, the action was barred at the time it was filed but, that his ruling, saving exceptions, was to be reserved in view of the juries' presence, until counsel had time to adequately brief the question of the statute of limitations, which the court took to be one of law. Subsequently counsel for defendant raised the defense of the statute of limitations by formal motion for directed verdict and the trial court overruled the motion and took the plea of the statute of limitations under advisement. Judgment in the amount of $5,484.83 was entered on the jury verdict September 30, 1969.

Pursuant to a motion to set aside the jury verdict and enter judgment in favor of the defendant filed October 6, 1969, the trial court entered the order which is the subject of this appeal.

After a successful verdict and judgment for plaintiffs, did the trial court abuse its discretion and thereby commit error: (1) in permitting amendment of defendant's pleading to assert the defense of the statute of limitations, and (2) disposing of the case in favor of the defendant on this ground without the granting of a new trial? This is the question presented for decision and it turns on the parameters of the trial court's discretion and the rules of pleading.

A motion to amend a pleading is addressed to the sound discretion of the trial court and such discretion will not be disturbed on appeal unless there is a showing of abuse of discretion. Perdue v. S. J. Groves and Sons Company, 152 W.Va. 222, 161 S.E.2d 250 (1968); Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726 (1962); Grottendick v. Webber, 132 W.Va. 539, 52 S.E.2d 700 (1949); Dickinson v. Rand, 102 W.Va. 574, 136 S.E. 42 (1926). The allowance of an amendment of a pleading by a trial court is not subject to review on appeal except for abuse of discretion. 3 Moore, Federal Practice, 15.08(4) (2d Ed.1968). This is a general rule!

The statute of limitations is an affirmative defense which, under Rule 8(c), must be pleaded. Harrison v. Thompson, 447 F.2d 459 (5th Cir. 1971); Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 442 F.2d 773 (1971); Eastridge v. Fruehauf Corporation, 52 F.R.D. 129 (D.C.Ky.1971); 5 Wright & Miller, Federal Practice and Procedure, Civil § 1270 (1969) and cases cited therein. This too, is a general rule!

A failure to plead an affirmative defense results in the waiver of that defense and its exclusion from the trial of the case. Skeen v. C and G Corporation, W.Va., 185 S.E.2d 492 (1971); Investors Loan Corporation v. Long, 152 W.Va. 673, 166 S.E.2d 113 (1969); 5 Wright & Miller, Supra, § 1278 and cases cited therein. This is also a general rule recognized by this Court!

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. Rule 15(b), W.Va. R.C.P. Leave granted by the court to amend the pleadings shall be freely given when justice so requires. Rule 15(a), W.Va. R.C.P. Perdue v. S. J. Groves and Sons Company, Supra. These general rules, in the words of the procedure which govern the trial of civil cases in this jurisdiction, appear to be clearly contadictory to the previous two rules set forth immediately above.

In a nutshell, a trial court's discretion to allow a pleading amendment is error on review only when that court goes beyond the leeway granted it by law. The federal cases construing Rule 8(c) of the Federal Rules of Civil Procedure which is identical to Rule 8(c), W.Va. R.C.P., say that the statute of limitations as a bar to an action should only be considered in trial when raised by an 8(c) pleading--an affirmative defense. Otherwise this defense is waived. But Rule 15 indicates that when justice so requires and the merits will be served, any amendment to a pleading, which was seasonable when the action began, shall be permitted. The trial court has permitted an amendment...