Solowitch v. Bennett

• Decision Date: 16 December 1982
• Citation: 456 N.E.2d 562,8 Ohio App.3d 115,8 OBR 169
• Parties: , 8 O.B.R. 169 SOLOWITCH et al., Appellants, v. BENNETT, Appellee. *
• Court: Ohio Court of Appeals

Page 115

8 Ohio App.3d 115

456 N.E.2d 562, 8 O.B.R. 169

SOLOWITCH et al., Appellants, v. BENNETT, Appellee. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 16, 1982.

Syllabus by the Court

1. In seeking leave to amend a complaint, there must be at least a prima facie showing that the movant can marshal support for the new matters sought to be pleaded, and that the amendment is not simply a delaying tactic, nor one which would cause prejudice to the defendant.

2. A deputy registrar of motor vehicles is a state officer or employee.

3. A deputy registrar has no statutory authority to give an examination to an applicant for timely renewal of a license and hence has no duty in this respect, the breach of which could constitute "negligent performance."

Eric S. Solowitch and Ruth F. Solowitch, pro se.

William J. Brown, Atty. Gen., Susan C. Hayest, Asst. Atty. Gen., and David Harbarger, Cleveland, for appellee.

PRYATEL, Chief Judge.

Plaintiffs-appellants, Eric S. and Ruth F. Solowitch, instituted this suit against defendant-appellee, Robert T. Bennett, Deputy Registrar of the Ohio Bureau of Motor Vehicles, on February 20, 1981. The complaint alleged that defendant's negligence in issuing an operator's license to Elizabeth C. Beatty when she was nearly eighty years of age without requiring her to undergo a driver's examination was the proximate cause of a head-on collision in which plaintiff Eric was injured when struck by an automobile driven by Beatty. Plaintiff Eric sought $50,000 compensatory and $50,000 punitive damages, and plaintiff Ruth, $10,000 for loss of consortium.

Defendant answered, admitting that he had issued an operator's license to Beatty, but denying all other allegations. Defendant then moved to dismiss the complaint, contending that the court of common pleas lacked jurisdiction over the suit on the grounds that the Court of Claims had exclusive jurisdiction over these claims as they are, in effect, claims against the state.

Plaintiffs opposed this motion, contending that a deputy registrar is an independent contractor rather than an employee or officer of the state and that, in any case, a deputy registrar is not synonymous with the state.

Plaintiffs also moved for leave to file an amended complaint, in which they would allege (1) that defendant acted outside the scope of his employment in waiving examination of Beatty prior to renewing her license; and (2) that defendant acted "in a wanton and reckless manner."

The court, without acting upon the motion for leave to amend plaintiffs' complaint, granted defendant's motion to dismiss on November 23, 1981.

From that adverse judgment, appellants now take this appeal, citing two assignments of error.

Assignment of Error No. I

"I. The trial court erred and abused its discretion in not granting plaintiff- appellant's [sic ] motion for leave to file amended complaint."

Appellants maintain that since leave to amend a complaint "shall be freely given when justice so requires" (Civ.R. 15[A] ), the court erred in not ruling upon their motion by which they would have been able to state a claim not subject to dismissal for lack of jurisdiction.

Appellants rely on Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113 , which holds that leave to amend should be freely given where an amended complaint will set forth a claim upon which relief can be granted.

Civ.R. 15(A) provides:

"Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. * * * "

As the rule states, once an answer to a complaint is served (as in the instant case), a party may amend his complaint only with leave of court, which grant of leave is discretionary. Thus, a motion for leave to amend a complaint is commended to the court's sound discretion, subject to review on appeal. State, ex rel. Wargo, v. Price (1978), 56 Ohio St.2d 65, 66, 381 N.E.2d 943 . Its denial will not be disturbed on appeal without an affirmative showing of an abuse of discretion. Dept. of Taxation v. Cemetery Management Service Co. (1981), 2 Ohio App.3d 115, at 117, 440 N.E.2d 1222; Crawford v. Bohannon (1959), 110 Ohio App. 71, 168 N.E.2d 431 . See, also, Cebulek v. Tisone (App.1938), 28 Ohio Law Abs. 166, and Colarik v. Young (App.1962), 91 Ohio Law Abs. 227, 192 N.E.2d 71 .

Since this rule is to be liberally construed in favor of the movant in order to save his cause of action as the court noted in Peterson, supra, the grant of leave to amend should not be withheld without "good reason":

"Although the grant or denial of leave to amend a pleading is discretionary, where it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted, and it is tendered timely and in good faith and no reason is apparent or disclosed for denying leave, the denial of leave to file such amended complaint is an abuse of discretion. We observe no good reason why leave should have been denied in this case, and therefore hold that the overruling of the motion for leave to amend constituted prejudicial error." Id. 34 Ohio St.2d at 175, 297 N.E.2d 113.

In Peterson, we note that the original complaint was statutorily barred for failure to plead the date of the discovery of the fraudulent misrepresentation, which omission the amended complaint sought to rectify.

In the instant case, unlike in Peterson, supra, appellants were not seeking to remedy an apparent oversight or omission in the original complaint, but instead to set forth a cause of action for which appellee would be unable to invoke the protection of R.C. 9.86 (governing the defense of immunity of public employees from civil liability). Hence, the language of the amended complaint alleging that appellee was acting outside the scope of his employment, and in a "wanton and reckless manner," conforms to the wording of the exception to official immunity in R.C. 9.86. ¹

Expanding upon the requirement (noted in Peterson, supra) that leave to amend be sought in "good faith," the court in Billy Baxter Inc. v. Coca-Cola Co. (S.D.N.Y.1969), 47 F.R.D. 345, affirmed (C.A.2, 1970), 431 F.2d 183, certiorari denied (1971), 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826, held that there must be at least a prima facie showing that the movant can marshal support for the new matters sought to be pleaded, and that the amendment is not simply a delaying tactic, nor one which would cause prejudice to the defendant.

In our case, we note that appellants presented no operative facts in support of their new allegations that appellee's conduct in renewing an operator's license without prior examination was either "wanton" or "reckless" or "manifestly outside the scope of his * * * official responsibilities."

In the absence of a showing of good faith on appellants' part in seeking leave to amend their complaint, we hold that the trial court did not abuse its discretion in failing to act upon appellants' motion to amend before granting appellee's motion to dismiss, there being no disclosed basis to support their new allegations. Furthermore, if leave had been granted, prejudice to appellee would have resulted.

Assignment of Error No. I is hereby overruled.

Assignment of Error No. II

"II. The trial court erred in granting defendant-appellee's motion to dismiss for lack of jurisdiction of the trial court when the jurisdiction of the trial court had been properly alleged."

Appellants argue that the court erred in dismissing their complaint against "Robert T. Bennett, Deputy Registrar" since in effect this was not a suit against the state, and since, moreover, a deputy registrar is an independent contractor, not a public official or employee. ²

The Registrar of Motor Vehicles is empowered to appoint such deputies as he requires to carry forth his duties in R.C. 4501.02, which provides, in part:

"The registrar shall administer the laws of the state relative to the registration of and certificates of title for motor vehicles and the licensing of motor vehicle dealers, distributors, and salesmen. He may, with the approval of the director of highway safety, adopt and promulgate such forms * * * as are necessary to carry out all laws he is required to administer. He may, with the approval of the director, appoint such number of assistants, deputies, clerks, stenographers, and other employees as are necessary to carry out such laws." ³ (Emphasis added.)

The duties of the deputy registrar are also prescribed by statute, notably in R.C. 4503.03 ⁴ and 4507.01, ⁵ as is the method of compensation of a deputy registrar for his services. ⁶ Because the registrar contracts for the services of a deputy registrar, appellants have argued that a deputy registrar is an independent contractor instead of a state employee. This conclusion is contrary to the opinion of the Attorney General to the effect that:

"Deputy registrars have long been recognized to be state officers who are authorized to exercise some of the sovereign powers which have been committed by statute, to the Registrar." 1975 Ohio Atty.Gen.Ops. No. 75-023, at 2-92.

The Attorney General based his opinion in part on statutory authority and in part on the criteria for determining whether a position is a public office as set...