Durig v. Youngstown ( 2023 )

[Cite as Durig v. Youngstown, 2023-Ohio-4446.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
CHERYL DURIG, EXECUTOR OF THE ESTATE OF
THOMAS MORAR, DECEASED,
Plaintiff-Appellee,
v.
CITY OF YOUNGSTOWN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0044
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 19 CV 1225
BEFORE:
Mark A. Hanni, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Ilan Wexler and Atty. David M. Moore, Anzellotti, Sperling, Pazol & Small Co., L.P.A.,
21 N. Wickliffe Circle, Youngstown, Ohio 44515, for Plaintiff-Appellee and
Atty. Emily K. Anglewicz, Atty. Megan M. Millich, Atty. Jessica L. Sanderson, Roetzel &
Andress, LPA, 222 South Main Street, Suite 400, Akron, Ohio 44308 and Atty. Diana
M. Feitl, Roetzel & Andress, LPA, 1375 East Ninth Street, One Cleveland Center, 10 th
Floor, Cleveland, Ohio 44114, for Defendant-Appellant.
Dated: December 7, 2023
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HANNI, J.
{¶1} Defendant-Appellant, the City of Youngstown (the City), appeals from a
Mahoning County Common Pleas Court judgment denying its motion to amend its answer
to a complaint filed by Plaintiff-Appellee, Cheryl Durig, Executor of the Estate of Thomas
Morar, Deceased (the Estate).
{¶2} On June 17, 2017, Thomas Morar was driving a motorcycle in Youngstown
when a tree fell on him. Morar never recovered and died on April 2, 2019.
{¶3} On June 14, 2019, the Estate filed a complaint against the City for
survivorship; wrongful death; and negligent, reckless, and/or wanton hiring, retention,
training, or supervision. The Estate asserted the tree and the ground it was rooted in
were owned by the City. The City filed an answer on August 2, 2019, raising 14 affirmative
defenses and stating that it reserved the right to amend its answer and assert additional
defenses in the event discovery warranted them.
{¶4} The trial court set a dispositive motion deadline of October 15, 2021, a
response deadline of November 15, 2021, and set trial for January 18, 2022. The Estate
filed a motion for partial summary judgment on October 15, 2021, seeking summary
judgment on the issues of negligence and proximate cause. At a December 2, 2021 final
pretrial, the trial court granted the City leave to file a response in opposition to the Estate’s
motion for partial summary judgment.
{¶5} The City then filed a memorandum contra to the Estate’s motion and filed
its own motion for summary judgment. In this motion, the City argued that it was entitled
to summary judgment based on the affirmative defense of political subdivision immunity.
The Estate moved to strike the City’s motion arguing, in part, that the City was just now
raising the affirmative defense of political subdivision immunity for the first time.
{¶6} The trial court held a hearing on January 12, 2022 on the parties’ motions.
The court entered judgment that day, stating that while it had granted the City leave to file
a response in opposition to the Estate’s motion for partial summary judgment, it had not
granted the City leave to file its own motion for summary judgment. Additionally, the court
stated that political subdivision immunity is an affirmative defense, which the City should
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have raised preliminarily. Therefore, the trial court granted the Estate’s motion to strike.
Finding genuine issues of material fact existed as to liability, the court also overruled the
Estate’s partial motion for summary judgment.
{¶7} On March 18, 2022, the City, now represented by new counsel, filed a
motion for leave to amend its answer to assert the affirmative defense of political
subdivision immunity. The City simultaneously filed a motion to extend case management
dates and continue the trial, which the trial court overruled.
{¶8} On April 20, 2022, the trial court held a hearing on the City’s motion for leave
to amend its answer to assert the affirmative defense of political subdivision immunity
where it heard from counsel for both parties. The court subsequently overruled the City’s
motion on April 28, 2022.
{¶9} The City filed a timely notice of appeal on May 6, 2022. It also filed a motion
for stay pending this appeal, which the trial court granted. Appellant now raises a single
assignment of error.
{¶10} Initially, we should point out that a trial court's decision denying a defendant
leave to assert the defense of political-subdivision immunity via an amended answer is a
final, appealable order because it denies that political subdivision the benefit of the
alleged immunity pursuant to R.C. 2744.02(C). Supportive Solutions, L.L.C. v. Electronic
Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 1.
{¶11} The City’s sole assignment of error states:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
DENYING THE CITY’S MOTION TO AMEND ITS ANSWER UNDER
CIV.R. 15(A) TO ASSERT THE DEFENSE OF POLITICAL SUBDIVISION
IMMUNITY.
{¶12} The City argues the trial court abused its discretion in finding that the City
waived the defense of political subdivision immunity. The City claims that because the
face of the Estate’s complaint reveals that it is entitled to raise immunity, and because it
stated in its answer that the complaint failed to state a claim upon which relief can be
granted, it adequately raised and preserved the defense of immunity. Next, the City
argues that pursuant to Civ.R. 15(A), leave to amend an answer is to be “freely given”
Case No. 22 MA 0044
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where it will not cause undue delay or prejudice to the opposing party. It goes on to argue
that the Estate was put on notice of the fact that immunity was an issue because it sued
a political subdivision for tort damages and the City stated in its answer that the complaint
failed to state a claim upon which relief could be granted. Finally, the City asserts that
the trial court should have granted its leave to amend its complaint because political
subdivision immunity is the desirable public policy of Ohio. The City contends it should
be given the opportunity, on behalf of the taxpayers, to at least make its immunity
argument.
{¶13} An appellate court reviews a trial court’s decision on whether to grant or
deny a motion to amend for abuse of discretion. Netherlands Ins. Co. v. BSHM Architects,
Inc., 2018-Ohio-3736, 111 N.E.3d 1229, ¶ 52 (7th Dist.), citing Turner v. Cent. Local
School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999). An abuse of discretion
connotes more than an error of judgment; it implies that the trial court's attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶14} Pursuant to Civ.R. 15(A), a party may amend its pleading only with the
opposing party's written consent or the court's leave. The trial court “shall freely give leave
when justice so requires.” Civ.R. 15(A). “While the rule allows for liberal amendment,
motions to amend pleadings pursuant to Civ.R. 15(A) should be refused if there is a
showing of bad faith, undue delay, or undue prejudice to the opposing party.” Turner, 85
Ohio St.3d at 99, citing Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465 N.E.2d 377 (1984).
{¶15} In this case, the City sought leave to amend its answer to include the
affirmative defense of political subdivision immunity. Statutory immunity is an affirmative
defense which, if not raised in a timely fashion, is waived. Turner, 85 Ohio St.3d at 97,
citing State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d 446 (1994);
Civ.R. 8(C); Civ.R. 12(H).
{¶16} Here, the Estate filed its complaint on June 14, 2019. The City filed its
answer on August 2, 2019. The trial court set a dispositive motion deadline of October
15, 2021, a response deadline of November 15, 2021, and set trial for January 18, 2022.
The Estate filed a motion for partial summary judgment on October 15, 2021. At the
December 2, 2021 final pretrial, the trial court granted the City leave to file a response in
Case No. 22 MA 0044
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opposition to the Estate’s motion for partial summary judgment. On December 17, 2021
the City filed a memorandum contra to the Estate’s motion and included its own motion
for summary judgment, where it argued for the first time that it was entitled to summary
judgment based on the affirmative defense of political subdivision immunity.
{¶17} The trial court held a hearing on January 12, 2022 on the parties’ motions.
It entered judgment that day, stating that while it had granted the City leave to file an
opposition to the Estate’s motion for partial summary judgment, it had not granted the City
leave to file its own summary judgment motion and stating the City should have raised
the affirmative defense preliminarily. Therefore, the trial court granted the Estate’s motion
to strike. It was not until March 18, 2022 that the City filed a motion for leave to amend
its answer to assert the affirmative defense of political subdivision immunity.
{¶18} The City waited two years and nine months to file its motion for leave to
amend. By that time, the case had moved well-past the dispositive motion stage and was
set for trial.
{¶19} In support of its position, the City relies on cases from the Eighth and Twelfth
Districts.
{¶20} In Enghauser Mfg. Co. v. City of Lebanon, 12th Dist. Warren No. 474, 1982
WL 6081 (Mar. 31, 1982), Enghauser filed a negligence complaint against the City of
Lebanon. Lebanon filed a motion to dismiss the complaint based upon an alleged failure
to state a claim upon which relief could be granted, which the trial court overruled. The
matter proceeded to trial and a verdict was rendered against Lebanon. Lebanon filed a
motion for judgment notwithstanding the verdict and for a new trial asserting sovereign
immunity (a.k.a. political subdivision immunity) for the first time. The trial court found that
the doctrine of sovereign immunity prevailed so that Lebanon was not liable for the
damages. Enghauser appealed.
{¶21} On appeal, Enghauser argued Lebanon failed to timely raise the affirmative
defense. The Twelfth District acknowledged that the words “sovereign immunity” were
not interjected into the case until after the jury returned a verdict. But it pointed out that
Lebanon presented the defense of failure to state a claim upon which relief could be
granted pursuant to Civ. R. 12(B)(6) in its answer. The court then noted that the complaint
contained allegations of damages stemming from the improvement of streets and the
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erection of bridges. It went on to reason that inasmuch as the complaint contained
conclusive evidence that the action was barred by sovereign immunity, the defense
raising the issue of failure to state a claim was sufficient to raise the affirmative defense
of sovereign immunity. Thus, the court concluded the issue of immunity was not raised
for the first time on the motion for judgment notwithstanding the verdict and affirmed the
trial court’s judgment.
{¶22} And in Goad v. Cuyahoga Cty. Bd. of Commrs., 79 Ohio App.3d 521, 607
N.E.2d 878 (8th Dist.1992), Goad filed a complaint against the county sheriff and county
board of commissions (collectively “the county”) seeking damages for injuries he suffered
while eating in the cafeteria at the county jail. The county answered, denying any
negligence and asserting the affirmative defense that the complaint failed to state a claim
upon which relief could be granted. The county moved for summary judgment arguing,
for the first time, that Goad's claim was barred by the doctrine of sovereign immunity.
Goad responded, arguing that the defense of sovereign immunity had been waived by
the county’s failure to raise it in its answer. The trial court granted summary judgment in
favor of the county. Goad appealed.
{¶23} Relying on Enghauser, the appellate court determined that sovereign
immunity could, at times, be readily discerned from the face of the complaint. Id. at 524.
It noted that in this case, the complaint (1) named the county commissioners and the
sheriff as defendants; (2) alleged negligence in the county's operation of the food services
at the county jail; and (3) alleged that Goad’s injury arose while he was a prisoner at the
jail. Id. The court then concluded that because the complaint itself bore conclusive
evidence that the action was barred by sovereign immunity, the affirmative defense of
failure to state a claim upon which relief can be granted was sufficient to raise the
affirmative defense of sovereign immunity. Id. Therefore, the court reasoned the issue
of sovereign immunity was not raised for the first time in the summary judgment motion.
Id.
{¶24} Other cases have reached different results, however. For example, the trial
court in this case relied on Turner, 85 Ohio St.3d 95. In that case, the Turners sued
Central School District for negligently causing the death of their child. The Ohio Supreme
Court noted that Central, as a school district, had the right to rely on political subdivision
Case No. 22 MA 0044
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immunity. Id. at 98. It noted that a properly-pleaded answer should have included the
immunity defense, but Central had failed to so plead. Id. The Court pointed out that if
Central intended to rely on immunity, it had the responsibility to assert it in a timely
fashion. Id. The Court stated that it was “perfectly reasonable” for the Turners to assume
that in the absence of Central's failure to assert this defense, and its failure to argue this
issue in its first motion for summary judgment, it intended to waive the defense. Id.
{¶25} Noting that the trial court allowed Central to amend its answer to assert
immunity after its first summary judgment motion was denied, the Court acknowledged
that Civ.R. 15(A) provides that a party may amend its pleading by leave of court and that
such leave “shall be freely granted when justice so requires.” Id. at 99. But the Court
cautioned that while the rule allows for liberal amendment, motions to amend pleadings
pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith, undue delay,
or undue prejudice to the opposing party. Id. The Court pointed out that Central filed its
motion to amend after a trial date was set and two years and ten months after the litigation
had commenced. Id. The Court found that the trial court abused its discretion in allowing
this prejudicial and untimely filing. Id.
{¶26} In finding an abuse of discretion in allowing Central to amend its answer,
the Court reasoned:
Appellants were forced to expend time, resources, and money to oppose
the first motion for summary judgment, which was appealed all the way up
to this court (although we declined jurisdiction in the first appeal). Then, after
all experts were in place and discovery was complete, Central was
permitted to amend its answer and file a second summary judgment motion
to assert and argue an obvious defense, which most likely would have
terminated the litigation in the first instance, or at the very least, would have
narrowed the issues remaining for resolution. Moreover, we are particularly
troubled by the fact that Central's motion did not give a rationale for its
failure to properly assert this affirmative defense in its answer to its original
complaint or for its failure to do so in the ensuing two years and ten months.
Thus, in the absence of any explanation, we find that Central should have
attempted to amend its answer to include the immunity defense prior to its
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initial motion for summary judgment, rather than in piecemeal motions which
served no purpose but to delay the trial of this matter. Because of Central's
failure to do so, we find that appellants were unnecessarily forced through
the appellate system on two separate occasions.
Under these facts, we determine that the trial court abused its discretion in
granting the motion to amend. Therefore, we find that Central has waived
its statutory immunity defense, and hold that R.C. Chapter 2744 has no
application to this case.
Id. at 99-100.
{¶27} And in Spence v. Liberty Twp. Trustees, 109 Ohio App.3d 357, 672 N.E.2d
213 (4th Dist.1996), the Spences filed a complaint against the township trustees alleging
the trustees had failed to properly maintain or replace a culvert and had wrongfully and
maliciously failed to take any action on the problem despite notice on several occasions
of the water and sewage backing up and damaging the Spences’ home. The trustees
filed an answer denying the allegations. The matter proceeded to trial where the trustees
moved for a directed verdict, arguing that they were shielded from liability by political
subdivision immunity. The Spences objected arguing the trustees never pleaded
immunity in their answer. The trustees responded by pointing out that their answer set
forth the defense that the Spences had failed to state a claim upon which relief could be
granted. The trial court granted the trustees’ motion for directed verdict. The Spences
appealed.
{¶28} The Fourth District initially noted that immunity is an “affirmative defense,”
which generally must be expressly pleaded pursuant to Civ.R. 8(C) or it is waived. Id. at
360. It went on to state that it declined to follow Goad and Enghauser because those
cases were based on an erroneous reading of Mills v. Whitehouse Trucking Co., 40 Ohio
St.2d 55, 320 N.E.2d 668 (1974). Id. at 361. The court noted that in Mills, the Ohio
Supreme Court made clear there are only three ways to properly raise an affirmative
defense: (1) setting forth the defense in a pre-pleading motion; (2) affirmatively setting
forth the defense in a responsive pleading; or (3) amending one's responsive pleading
pursuant to Civ.R. 15 to include the defense. Id. at 362. It further pointed out that the
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Supreme Court was unpersuaded that an affirmative defense that was not raised by any
of these three methods could be read into a Civ.R. 12(B)(6) defense of failure to state a
claim upon which relief could be granted. Id.
{¶29} The Fourth District, in stating its disapproval of the Twelfth District’s decision
reasoned:
Carried to its logical conclusion, the holding in Enghauser Mfg. Co. would
turn the whole concept of waiver (for failure to raise a defense) on its ear.
All a party would have to do to preserve any affirmative defense is file a
generic Civ.R. 12(B)(6) motion to dismiss. That party need not worry about
raising, and preserving, any one particular defense therein because the
courts would merely look to see which defenses were applicable on the face
of the complaint. This is not practical and is clearly not what the Supreme
Court envisioned in Mills. A party may certainly raise an affirmative defense
in a Civ.R. 12(B)(6) motion to dismiss where the defense is clearly shown
on the face of the complaint. However, that party must at least make an
actual reference to the affirmative defense being raised and relied upon so
as to alert the trial court and other parties to that fact as well as to preserve
the availability of the defense itself.
Id. at 364.
{¶30} Finally, in Mitchel v. Borton, 70 Ohio App.3d 141, 145, 590 N.E.2d 832 (6th
Dist.1990), the Sixth District held that pleading the defense of failure to state a claim was
not sufficient to impliedly raise the defense of immunity.
{¶31} Our standard of review here is whether the trial court acted arbitrarily,
unreasonably, or unconscionably in denying the City leave to amend its answer. Nothing
in the trial court’s reasoning indicates that it acted in such a manner. While there may be
some limited case law in support of the City’s position, there is also case law, including
from the Ohio Supreme Court, to support the trial court’s decision. Given the
circumstances of this case, including the two years and nine months’ time period between
the filing of the answer and the motion for leave to amend, we cannot conclude that the
Case No. 22 MA 0044
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trial court abused its discretion in denying the City’s motion for leave to amend its answer
to include the affirmative defense of political subdivision immunity.
{¶32} Accordingly, the City’s sole assignment of error is without merit and is
overruled.
{¶33} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., dissents with dissenting opinion.
D’Apolito, P.J., concurs.
Case No. 22 MA 0044
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Waite, J., dissenting.
{¶34} Appellant City of Youngstown filed this appeal seeking an order for the trial
court to recognize that the city was permitted to rely on the affirmative defense of
governmental immunity. The trial court and majority opinion rely primarily on Turner v.
Cent. Local School Dist., 85 Ohio St.3d 95, 99, 706 N.E.2d 1261 (1999), for the
proposition that a motion to amend a pleading should not be granted if there was undue
delay in filing the motion. Based on this record, however, it is apparent that there were
several reasons the trial court erred and there was no undue delay in this case. First, the
immunity defense was sufficiently preserved in Appellant’s answer to the complaint.
Second, approximately one year and three months of the delay in this case was clearly
caused by the trial court itself. Third, the delay in this case must be viewed recognizing
that any additional delay is to be attributed to the COVID-19 pandemic, which arose not
long after this case was initiated. For these reasons, I dissent from the majority Opinion
and would reverse and remand the case to allow Appellant to proceed with its immunity
defense.
{¶35} Although the majority cites two cases recognizing that an immunity defense
is preserved when the defendant raises the defense of failure to state a claim in its answer
and when it is obvious on the face of the complaint that immunity applies, it completely
ignores this law and these cases in its analysis. Goad v. Cuyahoga Cty. Bd. of Commrs.,
79 Ohio App.3d 521, 523, 607 N.E.2d 878 (8th Dist.1992); Enghauser Mfg. Co. v.
Lebanon, Warren App. No. 474, 1982 WL 6081 (Mar. 31, 1982). The majority cites Turner
for the proposition that a party cannot amend its complaint if there is undue delay in filing
the motion to amend. However, Turner did not discuss or resolve the issue of whether
the immunity defense is contained within a defense of failure to state a claim. The Eighth
District Court of Appeals continues to rely on Goad as precedent, and I would apply it
here. See McKee v. Univ. Circle, Inc., 8th Dist. Cuyahoga No. 102068, 2015-Ohio-2953,
¶ 34. It is apparent that political subdivisions have immunity to suit in several situations.
This law is not new. Appellee cannot claim surprise that this defense would be raised,
and that for this reason Appellant would assert that she has failed to state a valid claim in
this matter. Based on Goad and similar cases, I conclude that the trial court erred by
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requiring Appellant to amend its answer at all, only to then rule that the motion to amend
was untimely.
{¶36} Further, even if Turner is applicable, the majority applies it improperly.
Turner stands for the principle that the affirmative defense of statutory immunity is waived
if there is undue delay in raising the defense. It is glaringly obvious from the trial court
record in this matter that the vast majority of the delay in this case was not caused by
Appellant. In fact, nothing occurred in this case from December 11, 2019 (when the
original trial court judge recused himself), until a visiting judge was assigned on March 3,
2021. It was only after this new judge was assigned that a scheduling journal entry was
filed. The time period between December 11, 2019, and March 3, 2021, cannot have
been held against Appellant in its quest to amend its answer should amendment be
required.
{¶37} Most glaringly, there has been no mention by the majority that the delay in
this case occurred during the heart of the COVID-19 pandemic. Neither the trial court nor
the majority even attempt to address the issue of what constitutes timely filing of motion
to amend a pleading during a global pandemic. This case was initiated in the months
prior to the start of the COVID-19 pandemic and continued through the worst parts of this
pandemic in 2020 and 2021. It is abundantly apparent that unprecedented actions were
taken by governmental entities throughout the world and certainly throughout the nation,
including in Ohio. The Governor of Ohio declared a state of emergency in March of 2020
that effectively shut down the state. Personal movement was strictly limited, businesses
were shut down, and even governmental activity was extremely restricted except for
actions that were absolutely necessary. The Ohio Supreme Court issued a tolling order
on March 27, 2020, extending nearly all court deadlines including the unheard-of step of
tolling the jurisdictional deadline for filing a notice of appeal until the end of the pandemic.
The state of emergency in Ohio did not end until June 18, 2021, and only recently has
the federal government declared that the COVID-19 pandemic has come to an end. It is
in this context we must analyze Appellant's filing of a motion to amend its pleading, and
within this context, it should have been freely and liberally granted.
{¶38} Because this appeal hinges on the timeliness of the Appellant's motion to
amend its answer, and in light of the fact that Appellant actually preserved the immunity
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defense in its answer to the complaint based on relevant law, I disagree with the majority
Opinion and would reverse the trial court judgment so that Appellant is able to properly
argue the immunity defense. For all these reasons, I dissent from the majority Opinion.
Case No. 22 MA 0044
[Cite as Durig v. Youngstown, 2023-Ohio-4446.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the
Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.