Spies v. Gibson
Decision Date | 16 December 1982 |
Parties | , 8 O.B.R. 285 SPIES, Appellant, v. GIBSON, Appellee. * |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. Although expiration of the period specified by a statute of limitations is an affirmative defense which must be pleaded in accordance with Civ.R. 8(C), leave of a trial court to amend a pleading, in order to include an affirmative defense previously overlooked, will be freely given to permit all the applicable facts and law to be raised in order that the case may be decided on its merits, unless the party opposing the amendment can establish that actual prejudice will be visited upon him by allowance of the amendment.
2. The provision of Civ.R. 12(H), limiting amendments to those made as a matter of course under Civ.R. 15(A), applies only to raising the defenses listed in Civ.R. 12(B); it does not restrict a liberal granting of leave to amend to raise affirmative defenses listed in Civ.R. 8(C).
Schwenker, Cloud & Tudor and David K. Frank, Columbus, for appellant.
Harold E. Gibson, pro se.
On April 10, 1980, plaintiff-appellant, Michael L. Spies, filed his complaint charging defendant-appellee, Harold E. Gibson, an attorney at law, with professional malpractice in failing to properly represent him in the purchase of a moving business. Attached to the complaint was a "Sales Agreement," drafted by defendant and signed by plaintiff and the seller of the business on October 13, 1978, which provided for the closing of the sale and payment by plaintiff on that date and included a provision that "the public utilities license" would be transferred to plaintiff. Plaintiff contends that the seller had no such license and that defendant should have ascertained that fact prior to closing and payment. The complaint included an allegation, later denied in defendant's answer, that an attorney-client relationship existed between plaintiff and defendant "since 1973."
On February 22, 1982, the date set for trial, defendant filed a motion to dismiss on the ground that the one-year statute of limitations had run in October 1979.
The following day, at a hearing conducted by the trial court to consider defendant's efforts to raise the statute of limitations defense, the trial court granted defendant leave to amend his answer, instanter, to include the defense, and then entertained defendant's motion to dismiss.
Defendant said that he drew up the contract for plaintiff and it was signed by the parties on October 13, 1978; that at the closing the seller denied having a PUCO license; and that plaintiff paid him for his services on October 24, 1978 "at which time this particular transaction was terminated." He further said that he later represented plaintiff on a collection matter which was concluded on March 20, 1979, and introduced a "settlement sheet" bearing that date; and that he also represented plaintiff in proceedings to expunge his criminal record, with the judgment entry concluding that matter being filed on April 10, 1979.
An affidavit signed by plaintiff was introduced, which indicated that plaintiff had signed the contract and paid the seller on October 13, 1978; that he learned on October 17 that the seller did not have a PUCO license; and that he contacted defendant about the problem on October 20 and was advised by defendant "that he should try to get along the best he could."
The trial court's judgment entry granting the motion to dismiss includes this language:
Plaintiff raises four assignments of error:
Because the issues they raise are interrelated, the second and third assignments of error will be considered together. A number of provisions of the Rules of Civil Procedure are relevant to our consideration:
* * *"[Civ.R. 8(C).]
To continue reading
Request your trial-
Payton v. Rehberg
...671; Mossa v. W. Credit Union, Inc. (1992), 84 Ohio App.3d 177, 180, 616 N.E.2d 571, 573-574; Spies v. Gibson (1982), 8 Ohio App.3d 213, 216, 8 OBR 285, 287-288, 456 N.E.2d 1284, 1286-1287. Assignments of Error I and II are The judgment is affirmed. Judgment affirmed. O'DONNELL and ROCCO, J......
-
McCabe/Marra Co. v. Dover
...the opposing party results. Blevins v. Sorrell (1990), 68 Ohio App.3d 665, 671-672, 589 N.E.2d 438, 441-442; Spies v. Gibson (1982), 8 Ohio App.3d 213, 8 OBR 285, 456 N.E.2d 1284. Civ.R. 15(B) allows an amendment to the pleadings in order to conform to the evidence. A party may raise as an ......
-
Prough v. Edinger, Inc., 79368
...its entirety. Section 2008 is governed by § 2015, which provides for the liberal granting of amendments. See Spies v. Gibson, 8 Ohio App.3d 213, 456 N.E.2d 1284, 1286-87 (1982). Furthermore, no other section of the pleading code prevents a defendant from amending a pleading to include an af......
-
Myrtle Payton v. Robert J. Rehberg
... ... 8(C). Mills v. Trucking ... Co. (1974), 40 Ohio St.2d 55, 59; Mossa v. W. Credit ... Union, Inc. (1992), 84 Ohio App.3d 177, 180; Spies ... v. Gibson (1982), 8 Ohio App.3d 213, 216 ... Assignments of Error I and II are overruled ... ...