State ex rel. Evans v. Bainbridge Tp. Trustees

• Decision Date: 18 May 1983
• Docket Number: No. 82-823,82-823
• Parties: , 5 O.B.R. 99 The STATE (Township of Bainbridge) ex rel. EVANS et al., Appellees, v. BAINBRIDGE TOWNSHIP TRUSTEES et al.; Shillman, Appellant.
• Court: Ohio Supreme Court

Page 41

5 Ohio St.3d 41

448 N.E.2d 1159, 5 O.B.R. 99

The STATE (Township of Bainbridge) ex rel. EVANS et al., Appellees, v. BAINBRIDGE TOWNSHIP TRUSTEES et al. Shillman, Appellant.

No. 82-823.

Supreme Court of Ohio.

May 18, 1983.

Syllabus by the Court

1. An implied amendment of the pleadings under Civ.R. 15(B) will not be permitted where it results in substantial prejudice to a party. Various factors to be considered in determining whether the parties impliedly consented to litigate an issue include: whether they recognized that an unpleaded issue entered the case; whether the opposing party had a fair opportunity to address the tendered issue or would offer additional evidence if the case were to be tried on a different theory; and, whether the witnesses were subjected to extensive cross-examination on the issue.

2. Under Civ.R. 15(B), implied consent is not established merely because evidence bearing directly on an unpleaded issue was introduced without objection; it must appear that the parties understood the evidence was aimed at the unpleaded issue.

3. Whether an unpleaded issue is tried by implied consent is to be determined by the trial court, whose finding will not be disturbed, absent showing of an abuse of discretion.

Appellees are taxpayers of Bainbridge Township, who instituted the present action in the Court of Common Pleas of Geauga County to enjoin the payment of legal fees to appellant, David B. Shillman, for his professional services concerning several ouster proceedings against two Bainbridge Township officers. ¹ The taxpayers alleged that the resolutions by which the township engaged Shillman were void under R.C. 2921.42(A)(1) and (4) because of a personal interest of one of the trustees ² Shillman was to defend in the litigation. The court of common pleas dismissed the action, finding the resolutions authorizing the expenditures to be valid. Pursuant to that court's favorable ruling, the township clerk paid Shillman $28,642.25 for attorney's fees and expenses.

Thereafter, appellees moved for a new trial and for the first time alleged that the resolutions were void because the township trustees had failed to comply with R.C. 5705.41, which requires a certificate of fund availability to be appended to a township resolution involving the expenditure of township money. The trial court overruled the motion on the grounds that such an issue had neither been pleaded nor considered. Appellees then appealed the trial court's dismissal of their complaint to the Court of Appeals for Geauga County. They did not appeal the trial court's overruling of their motion for a new trial.

The court of appeals reversed, concluding that the resolutions authorizing the expenditures were void for failure to comply with R.C. 5705.41. The court ordered restitution of the funds be made to Bainbridge Township and remanded for a determination of the amount of monies unlawfully paid.

On remand, Shillman attempted to show why the payments at issue were exempt from the certification requirement of R.C. 5705.41, but the court held that such matters were res judicata by reason of the court of appeals decision. The court of common pleas thereupon enjoined further payments pursuant to the resolution and ordered all amounts previously paid to Shillman be restored to the township. ³ The court of appeals affirmed.

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

Gene Henry, Chardon, for appellees.

David B. Shillman, South Euclid, pro se.

J. Melvin Andrews, Eastlake, urging reversal for amici curiae, Carson, Matousek and Neuvirth. ⁴

CLIFFORD F. BROWN, Justice.

Appellant argues that the doctrine of res judicata was applied in the present case so as to deny him an opportunity to raise material matters affecting the resolution of the certification issue. ⁵ However, appellant's inability to address that issue directly results from the court of appeals' prior determination that the certification claim had already been litigated. ⁶ If the certification issue was decided improperly in the first instance, appellant's res judicata argument need not be considered. ⁷

The pivotal question in this litigation therefore becomes whether the certification issue was ever properly before the court of appeals. In order to resolve this matter, it is necessary to determine the applicability of Civ.R. 15(B) to the facts of the present case.

Civ.R. 15(B) provides, in pertinent part:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. * * *."

It is axiomatic that cases are to be decided on the issues actually litigated at trial. Although Civ.R. 15 allows for liberal amendment of the pleadings toward that end, the rule will only apply when, as stated therein, the amendment would "conform to the evidence" and when the issue is tried by either the "express or implied consent of the parties."

In the instant case, appellees proceeded to trial, resting their case upon the claim that one of the trustees had engaged in conduct violative of R.C. 2921.42(A)(1) and (4) and that therefore the resolutions under which Shillman was engaged were void. At no point either before, during, or after the trial did appellees seek to amend their complaint to include a charge that the resolutions were void for failure to comply with R.C. 5705.41. Although testimony relevant to this issue was elicited by one witness, ⁸ counsel for appellees gave no indication that he planned to use such evidence to support a charge that the Shillman resolutions were void under R.C. 5705.41.

This court is not convinced that appellees introduced such testimony in an effort to establish a violation of R.C. 5705.41. Indeed, appellees' reliance on R.C. 5705.41 as grounds for relief appears to be an afterthought. It was not until their motion for a new trial that appellees argued that the "uncontroverted evidence" showed that the township clerk had failed to certify the availability of funds.

In rejecting that argument in its denial of appellee's motion for a new trial, the trial court alluded to Civ.R. 15(B) and specifically stated that it did not consider the certification issue. ⁹ In view of the scant testimony admitted on this issue and the trial court's explicit statement that it did not consider the issue, it can only be concluded that certification was not an issue in the case until the court of appeals rendered its opinion. Any amendment made at that time, therefore, was not one "to conform the pleadings to the proof," but was to inject a new and different issue as to which different and additional evidence would have been relevant. ¹⁰

It can be argued that since appellant did not object to the introduction of the testimony relating to the certification issue, that such issue was tried by his implied consent.

An implied amendment of the pleadings will not be permitted, however, where it results in substantial prejudice to a party. See Head v. Timken Roller Bearing Co. (C.A.6, 1973), 486 F.2d 870; Dozier v. Chupka (S.D.Ohio E.D.1975), 395 F.Supp. 836. See, generally, 6 Wright & Miller, Federal Practice & Procedure (1971), Section 1493 and 3 Moore's Federal Practice (1978), Paragraph 15.13, which interpret Fed.R.Civ.P. 15(b). ¹¹ Various factors to be considered in determining whether the parties impliedly consented to litigate an issue include: whether they recognized that an unpleaded issue entered the case (e.g., Parsons v. Doctors for Emergency Services [D.Del.1979], 81 F.R.D. 660); whether the opposing party had a fair opportunity to address the tendered issue or would offer additional evidence if the case were to be retried on a different theory (e.g., Monod v. Futura, Inc. [C.A.10, 1969], 415 F.2d 1170; Ellis v. Arkansas Louisiana Gas Co. [C.A.10, 1979], 609 F.2d 436); and whether the witnesses were subjected to extensive cross-examination on the issue (e.g., In re Ace Sales Co. [E.D.Mo.E.D.1973], 357 F.Supp. 936).

Under Civ.R. 15(B), implied consent is not established merely because evidence bearing directly on an unpleaded issue is introduced without objection. Rather, it must appear that the parties understood the evidence was aimed at the unpleaded issue. MBI Motor Company, Inc. v. Lotus/East, Inc. (C.A.6, 1974), 506 F.2d 709.

As previously stated, we find nothing in the record from which it can be inferred that any party or the trial court regarded the issue as one then being tried: the issue was first brought to the attention of the trial court in appellees' motion for a new trial; in denying that motion, the trial court specifically stated it did not consider the certification issue, and appellant failed to present any of the testimony and exhibits ultimately offered on remand or any of the arguments and authorities subsequently set forth in this appeal to show the inapplicability of R.C. 5705.41 to his employment. Under the circumstances, appellant cannot realistically be said to have given his implied consent.

In conclusion, we note that the implication of Civ.R. 15(B) is that a trial court may not base its decision upon an issue which was tried inadvertently. Whether an unpleaded issue is tried by implied consent is to be determined by the trial court, whose finding will not be disturbed, absent showing of an abuse of discretion. See Chesapeake & Ohio Railway Co. v. Newman (C.A.6, 1957), 243 F.2d 804. In view of the trial court's explicit explanation that the unpleaded issue of certification was not, in fact, considered, the court of appeals clearly exceeded its authority in reversing the...