# Durig v. Youngstown

> Ohio Supreme Court · October 16, 2025 · 2025 Ohio 4719

URL: https://www.frixlaw.com/law-library/cases/11173977

## Case

- **Court:** Ohio Supreme Court
- **Decided:** October 16, 2025
- **Citations:** 2025 Ohio 4719
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2025-OHIO-4719
DURIG, EXR. OF THE ESTATE OF MORAR, APPELLEE, v. THE CITY OF
YOUNGSTOWN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Durig v. Youngstown, Slip Opinion No. 2025-Ohio-4719.]
Political-subdivision immunity—R.C. Ch. 2744—A party does not preserve a
defense of R.C. Ch. 2744 political-subdivision immunity by a general
assertion that a complaint fails to state a claim upon which relief can be
granted—Civ.R. 15(A)—Unjustified and prejudicial inaction by appellant
supports trial court’s decision to deny appellant leave to amend its answer
under Civ.R. 15(A)—Court of appeals’ judgment affirmed.
(No. 2024-0534—Submitted May 13, 2025—Decided October 16, 2025.)
APPEAL from the Court of Appeals for Mahoning County,
No. 22 MA 0044, 2023-Ohio-4446.
__________________
HAWKINS, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DEWINE, BRUNNER, DETERS, and SHANAHAN, JJ., joined.
SUPREME COURT OF OHIO

HAWKINS, J.
{¶ 1} Civ.R. 8(C) requires that “[i]n pleading to a preceding pleading,” a
party must affirmatively set forth any matter constituting an affirmative defense.
This case presents two questions related to the application of that provision.
{¶ 2} First, does a party preserve a defense of R.C. Ch. 2744 political-
subdivision immunity by raising a defense of “[f]ailure to state a claim upon which
relief can be granted” in its answer? Second, did the trial court in this case abuse
its discretion in denying appellant, the City of Youngstown, leave to amend its
answer to assert a defense of political-subdivision immunity when the city sought
to do so after the discovery and dispositive-motion deadlines had expired and the
matter was set for trial?
{¶ 3} We conclude that the answer to the first question is no: a party does
not preserve a defense of R.C. Ch. 2744 political-subdivision immunity by a general
assertion that a complaint fails to state a claim upon which relief can be granted.
And we conclude that under the circumstances of this case, the trial court did not
abuse its discretion in denying the city leave to amend its answer. The Seventh
District Court of Appeals saw it the same way, so we affirm its judgment.
I. BACKGROUND
{¶ 4} Appellee, Cheryl Durig, executor of the estate of Thomas Morar (“the
estate”), filed a complaint against the city and five “John Doe” employees on June
14, 2019, asserting claims for survivorship, wrongful death, and negligent, reckless,
and/or wanton hiring, retention, training, or supervision. The estate claimed that in
June 2017, Morar was seriously injured when a tree fell on him while he was
lawfully operating a motorcycle on a city street. Morar never recovered from his
injuries and died in April 2019. The estate claimed that the city owned the tree and
surrounding ground at issue and had ignored warnings about the hazardous
condition created by the tree.

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{¶ 5} The city filed an answer on August 2, 2019, denying all allegations of
the estate’s complaint and raising 11 defenses. Among those defenses, the city
contended that the estate’s complaint “fails to state a cause of action upon which
relief can be granted.” The city did not expressly raise political-subdivision
immunity as a defense.
{¶ 6} The first trial-court judge assigned to the case recused himself in
December 2019. Early in 2020, the COVID-19 pandemic hit the Unites States,
disrupting court proceedings in Ohio throughout 2020 and 2021.1 The former chief
justice of this court ultimately assigned a visiting judge to the case on March 3,
2021. The visiting trial-court judge issued an entry on March 19, 2021, setting a
discovery deadline of September 15, 2021, a dispositive-motion deadline of
October 15, 2021, a brief-in-opposition deadline of November 15, 2021, and trial
for January 18, 2022.
{¶ 7} The estate pursued discovery, serving interrogatories and requests for
production of documents on the city, and secured affidavits from (1) a citizen who
averred that before Morar’s accident, he repeatedly warned the city about the tree
at issue; (2) an arborist who examined the tree and presented an expert opinion on
its condition; and (3) one of the estate’s attorneys who obtained copies of Morar’s
medical records and death certificate, among other records. In compliance with the
dispositive-motion deadline, on October 15, 2021, the estate moved for partial
summary judgment on the issues of negligence and proximate cause and attached
the affidavits and other records to its motion.

1. See Executive Order 2020-01D, Declaring a State of Emergency,
https://governor.ohio.gov/media/executive-orders/executive-order-2020-01-d (accessed Sept. 2,
2025) [https://perma.cc/NM99-4TJ2] (Governor Mike DeWine declared a public-health emergency,
effective March 9, 2020, because of the COVID-19 pandemic); Executive Order 2021-08D,
Rescinding Executive Order 2020-01D and Ending the Declared State of Emergency,
https://governor.ohio.gov/media/executive-orders/executive-order-2021-08d (accessed Sept. 2,
2025) [https://perma.cc/N6KA-BB8L] (Governor DeWine rescinded the public-health-emergency
declaration, effective June 18, 2021); In re Disqualification of Fleegle, 2020-Ohio-5636, ¶ 5, 7-8
(describing the impact of the COVID-19 pandemic on Ohio courts).

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{¶ 8} The city failed to timely respond to the estate’s discovery requests or
motion for partial summary judgment. The city moved the trial court for leave to
respond to the estate’s discovery requests and to file a brief in opposition to the
estate’s motion for partial summary judgment, and on December 2, 2021, the court
granted the city’s motion, ordering the city to submit its discovery responses and
brief in opposition by December 17 but stating in its entry that “[n]o further
extensions” would be granted. Mahoning C.P. No. 2019 CV 1225 (Dec. 2, 2021).
The court set the matter for pretrial on January 6, 2022.
{¶ 9} On December 17, 2021, the city filed a memorandum contra to the
estate’s motion for partial summary judgment combined with a motion for summary
judgment. In that filing, the city argued, for the first time, that as a political
subdivision, it is immune from civil liability under R.C. Ch. 2744 and, therefore, is
entitled to summary judgment in its favor.
{¶ 10} The estate moved to strike the portion of the city’s filing that went
beyond a memorandum contra and instead affirmatively moved for summary
judgment. The estate argued that the city’s motion for summary judgment was
untimely, was filed without leave of court since it was untimely, failed to include
supporting Civ.R. 56 summary-judgment evidence, and improperly raised political-
subdivision immunity for the first time. The estate maintained that anticipating and
countering the city’s possible defense of political-subdivision immunity was not
the estate’s responsibility and that for a court to require otherwise would disregard
the possibility that the city might waive the immunity defense. The estate also
noted that it had already pursued discovery and filed a summary-judgment motion
on liability issues.
{¶ 11} After a hearing, the trial court granted the estate’s motion to strike
the city’s motion for summary judgment based on two grounds: (1) the court had
not granted the city leave to file its own motion for summary judgment and (2) the
city had failed to timely raise political-subdivision immunity as an affirmative

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defense. Mahoning C.P. No. 2019 CV 1225 (Jan. 12, 2022). The court then
determined that genuine issues of material fact existed on liability and that the estate
was therefore not entitled to partial summary judgment. Id.
{¶ 12} After obtaining new counsel, the city on March 18, 2022, filed a
motion for leave to amend its answer under Civ.R. 15(A) (governing amended
pleadings) to assert the political-subdivision-immunity defense and a motion to
extend the case-management dates and to continue trial. The trial court overruled
both motions. Mahoning C.P. No. 2019 CV 1225 (Apr. 28, 2022).
{¶ 13} The city appealed, arguing that there was an abuse of discretion by
the trial court in denying the city leave to amend its answer under Civ.R. 15(A) and
raising issues concerning the preservation of that defense and the lack of prejudicial
delay to the estate if the city was granted leave to amend its answer.
{¶ 14} The Seventh District, in a two-to-one decision, overruled the city’s
assignment of error and affirmed the trial court’s judgment. 2023-Ohio-4446, ¶ 32-
33 (7th Dist.). The court of appeals reasoned that there was no abuse of discretion
by the trial court in denying the city leave to amend its answer when (1) the city
waited “two years and nine months” to file its motion for leave to amend its answer,
(2) the case had moved beyond the dispositive-motion timeframe and was set for
trial when the city filed its motion for leave, and (3) case law supported the trial
court’s refusal to find that the city’s asserting the defense of failure to state a claim
upon which relief can be granted in its answer was sufficient to preserve political-
subdivision immunity as an affirmative defense. Id. at ¶ 18, 24-31. The dissenting
judge concluded that the trial court erred and that there was no “undue delay” in
the city’s filing of its motion for leave because, in the judge’s opinion, the immunity
defense was sufficiently preserved in the city’s answer and the delay was caused
by the pandemic and the trial court itself. Id. at ¶ 34-38 (Waite, J., dissenting).
{¶ 15} The city appealed, and this court accepted jurisdiction over the
following two propositions of law:

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Proposition of Law No. I: The defense of political
subdivision immunity pursuant to R.C. Chapter 2744 is sufficiently
raised and preserved where the immunity defense is readily
discernible from the face of the complaint and the defendant’s
answer asserts that the complaint fails to state a claim upon which
relief can be granted.
Proposition of Law No. II: To establish “undue delay”
sufficient to overcome the presumption that pleading amendments
should be liberally granted, the delay must be attributable to the
party seeking the amendment.

See 2024-Ohio-2781.
II. ANALYSIS
{¶ 16} The city’s appeal arises from the trial court’s decision on a motion
for leave to amend a pleading, which is generally reviewed for an abuse of
discretion. See State ex rel. Askew v. Goldhart, 1996-Ohio-448, ¶ 11 (“The grant
or denial of leave to amend a pleading is discretionary and will not be reversed
absent an abuse of discretion.”). However, the city’s propositions of law involve
both questions of the trial court’s discretion and of law. Questions of law necessary
to resolve an appeal are always reviewed de novo. Johnson v. Abdullah, 2021-
Ohio-3304, ¶ 38; see also id. at ¶ 39 (“courts lack the discretion to make errors of
law, particularly when the trial court’s decision goes against the plain language of
a statute or rule”). We resolve each question in the estate’s favor.

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A. Asserting the defense of failure to state a claim upon which relief can be
granted in an answer does not preserve the defense of political-subdivision
immunity
{¶ 17} The city first contends that it sufficiently preserved political-
subdivision immunity as a defense because that defense is apparent from the
estate’s complaint and the city asserted in its answer that the complaint fails to state
a claim upon which relief can be granted. The city argues that political-subdivision
immunity is “unique and particularly suited to be asserted as a failure-to-state-a-
claim” defense because the plaintiff bears the burden to establish that one of the
statutory exceptions to immunity under R.C. Ch. 2744 applies. The city claims that
in these circumstances, political-subdivision immunity acts as an attack on the
sufficiency of the complaint and is therefore “akin to a failure-to-state-a-claim
defense.” But as explained below, political-subdivision immunity under R.C. Ch.
2744 is well established as an affirmative defense and must be specifically asserted
in a timely fashion to avoid waiver.
{¶ 18} Laws controlling political-subdivision tort liability, including
immunity and exceptions to immunity, reside in R.C. Ch. 2744. Under the statutory
scheme, a political subdivision initially carries the burden to establish general
immunity under R.C. Ch. 2744, which then triggers the plaintiff’s burden to prove
that one of the exceptions to immunity applies. See Mullins v. Liberty Twp., 2022-
Ohio-4350, ¶ 45.
{¶ 19} Both burdens, however, are invoked only if the political subdivision
preserved its immunity defense in the first place. This court has long held that
“[s]tatutory immunity, including political-subdivision immunity, is an affirmative
defense, and it is waived if not raised in a timely fashion.” Supportive Solutions,
L.L.C. v. Elec. Classroom of Tomorrow, 2013-Ohio-2410, ¶ 17, citing Turner v.
Cent. Local School Dist., 1999-Ohio-207, ¶ 16; see also State ex rel. Parker Bey v.
Bur. of Sentence Computation, 2022-Ohio-236, ¶ 17 (failure to properly preserve

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an affirmative defense that Civ.R. 8(C) requires to be set forth in an answer or other
responsive pleading will result in waiver of that defense).
{¶ 20} Because R.C. Ch. 2744 immunity holds the possibility of a complete
defense, a political subdivision must raise R.C. Ch. 2744 immunity in its first
responsive pleading under Civ.R. 8(C). See Turner at ¶ 16. In Turner, we
explained that “as a matter of course, a properly pleaded answer should . . .
include[] the statutory-immunity defense . . . because, in most cases, the [Political
Subdivision Tort Liability] Act could provide a complete defense.” Id.
{¶ 21} In addition to raising the defense of political-subdivision immunity
in an answer, a political subdivision may raise the defense by motion under
Civ.R.12(B) or through a properly filed amended pleading under Civ.R. 15. See
Supportive Solutions at ¶ 19, quoting State ex rel. Plain Dealer Publishing Co. v.
Cleveland, 75 Ohio St.3d 31, 33 (1996) (“An affirmative defense is not deemed
waived when the defendant raises the defense ‘by motion before pleading pursuant
to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by
amendment under Civ.R. 15.’” [Emphasis deleted.]).
{¶ 22} In this case, the city contends that it raised political-subdivision
immunity “affirmatively in a responsive pleading under Civ.R. 8(C),” Plain Dealer
Publishing at 33—by asserting in its answer that the estate’s complaint “fails to
state a cause of action upon which relief can be granted.” The city’s position
conflicts both with the Ohio Rules of Civil Procedure and the meaning of an
“affirmative defense.”
{¶ 23} Under the Civil Rules, a defendant is generally obligated to assert
“[e]very defense” in a responsive pleading in “plain terms”; moreover, specific to
this case, a defendant must set forth an “affirmative defense,” as the label implies,
“affirmatively.” Civ.R. 8(B) (“A party shall state in short and plain terms the
party’s defenses to each claim asserted . . . .”); Civ.R. 8(C) (when “any . . . matter
constituting an avoidance or affirmative defense” is involved, a party must “set

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forth” that defense “affirmatively” in the responsive pleading); Civ.R. 10(B) (“each
defense” must be stated separately “whenever a separation facilitates the clear
presentation of the matters set forth”); Civ.R. 12(B) (the party opposing a complaint
is tasked with asserting “[e]very defense” in a responsive pleading except for
certain defenses that may, at the option of the pleader, be made by motion). By
asserting that the estate’s complaint “fails to state a cause of action upon which
relief can be granted,” the city neither states the political-subdivision-immunity
defense in “plain terms” nor “affirmatively” describes that defense.
{¶ 24} This court arrived at a similar conclusion in Mills v. Whitehouse
Trucking Co., 40 Ohio St.2d 55, 58 (1974), when it held that asserting that a
complaint “fails to state a claim upon which relief can be granted” “clearly fails to
allege affirmatively the bar of the statute of limitations to the present action nor
does it formulate in a simple, concise, and direct manner the issue to be resolved
by the trial court.” As summarized by the First District Court of Appeals, “it is
acceptable to make fair interpolations of more specific defenses that might naturally
be included in an asserted defense” but “it is not acceptable to extrapolate from an
asserted affirmative defense something that is simply not stated in the pleadings.”
Brown v. Lincoln Hts., 2011-Ohio-3551, ¶ 11 (1st Dist.).
{¶ 25} The city’s position also contradicts the definition of an “affirmative
defense.” An affirmative defense is “[a] defendant’s assertion of facts and
arguments that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations
in the complaint are true.” Black’s Law Dictionary (12th Ed. 2024). This court has
similarly explained that “[a]n affirmative defense is one that ‘assumes
establishment of a prima facie case.’” Parker Bey, 2022-Ohio-236, at ¶ 18, quoting
Gallagher v. Cleveland Browns Football Co., 1996-Ohio-320, ¶ 17, fn. 3. In other
words, an affirmative defense “admits that the plaintiff has a claim but asserts some
legal reason why the plaintiff cannot have any recovery on that claim.” (Cleaned
up.) Smith v. Ohio State Univ., 2024-Ohio-764, ¶ 19. “By contrast, a defense that

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prevents a plaintiff . . . from even establishing a prima facie case is not an
affirmative defense.” Parker Bey at ¶ 18. Political-subdivision immunity fits the
former category as an affirmative defense: if viable, political-subdivision immunity
is a complete defense that renders the plaintiff’s ability to establish a prima facie
case irrelevant. See Turner, 1999-Ohio-207, at ¶ 16.
{¶ 26} To sidestep the Civil Rules and the definition of an affirmative
defense, the city maintains in its merit brief that political-subdivision immunity
“can function as a failure-to-state-a-claim defense.” (Emphasis in original.) In
support of its position, the city asks this court to follow Goad v. Cuyahoga Cty. Bd.
of Commrs., 79 Ohio App.3d 521 (8th Dist. 1992), and Enghauser Mfg. Co. v.
Lebanon, 1982 WL 6081 (12th Dist. Mar. 31, 1982), rev'd on other grounds by
Enghauser Mfg. Co. v. Eriksson Eng., Ltd., 6 Ohio St.3d 31 (1983), and relies
heavily on Main v. Lima, 2015-Ohio-2572, ¶ 14 (3d Dist.).
{¶ 27} These cases do not persuade us to treat political-subdivision
immunity differently from other affirmative defenses. The Eighth District Court of
Appeals in Goad and the Twelfth District Court of Appeals in Enghauser held that
by raising the defense of failure to state a claim upon which relief can be granted,
the defendants sufficiently preserved the affirmative defense of political-
subdivision immunity “[i]nasmuch as the complaint itself bore conclusive evidence
that the action was barred by sovereign immunity,” Goad at 524 (the defendants
raised failure to state a claim in their answer); Enghauser at *4 (the defendant raised
failure to state a claim in its Civ.R. 12(B)(6) motion to dismiss). To arrive at this
determination, both cases relied on Mills, 40 Ohio St.2d 55. This court’s reasoning
in Mills, however, does not support the conclusions reached by the appellate courts
in Goad and Enghauser.
{¶ 28} In Mills, the defendant raised the defense of failure to state a claim
upon which relief can be granted in its answer to the complaint and later moved
under Civ.R. 12(B)(6) to dismiss the case based on a statute-of-limitations defense.

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As previously discussed, in evaluating whether the affirmative defense of statute of
limitations was preserved, this court preliminarily determined that the defendant
“clearly” failed to raise the statute-of-limitations defense in its answer under Civ.R.
8(C) when it raised the defense of failure to state a claim upon which relief can be
granted, Mills at 58.
{¶ 29} We held that the statute-of-limitations affirmative defense could be
preserved in a motion to dismiss under Civ.R. 12(B)(6). Id. at 59-60. However,
the reasoning of this determination was not premised on that defense transforming
into a challenge to the merits of the claim. See id. (“A clear distinction exists in the
Civil Rules between the affirmative defense of the bar of the statute of limitations
pursuant to Civ.R. 8(C), and a Civ.R. 12(B)(6) defense.”). Instead, the purpose
behind permitting a timely filed Civ.R. 12(B)(6) motion to dismiss to serve as a
vehicle to raise the statute-of-limitations affirmative defense was, in this court’s
view, to avoid “unnecessary delay.” Id. at 60. We explained:

The allowance of a Civ.R. 12(B) motion serves merely as a method
for expeditiously raising the statute of limitations defense. If the bar
of the statute is not raised either by motion before pleading or
affirmatively in a responsive pleading, or by amendment made
under Civ.R. 15, then the defense is waived under Civ.R. 12(H), as
are all other affirmative defenses which a party may present.

Id. We noted that to hold otherwise would “contravene the intent of the Ohio Civil
Rules to expedite the formulation of issues prior to trial” and would improperly
place the burden of affirmatively pleading compliance with the statute of limitations
on the plaintiff. Id.; see also Main, 2015-Ohio-2572, at ¶ 13 (3d Dist.) (a plaintiff
is not required to anticipate and negate defenses in the complaint).

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{¶ 30} As a result, Mills not only fails to advance the city’s view but serves
as authority for the estate’s view. See Spence v. Liberty Twp. Trustees, 109 Ohio
App.3d 357, 363-364 (4th Dist. 1996) (reading Mills to “clearly” envision that the
defendant “make an actual reference to the affirmative defense” and noting that to
hold otherwise would rearrange the concept of waiver and essentially rely on the
courts to “look to see which defenses were applicable on the face of the
complaint”). Because Goad and Enghauser are based on an inaccurate reading of
Mills, we decline to follow them.
{¶ 31} Main likewise fails to tip the scale in the city’s favor. In Main, the
City of Lima properly preserved the political-subdivision immunity defense in its
Civ.R 12(B)(6) motion to dismiss that it filed in response to the complaint and
cross-claim filed against it. See Main at ¶ 4. The ensuing appeal did not concern
waiver but instead involved the plaintiffs’ contention that an exception to the
immunity statute applied to prevent dismissal of the action. Id. at ¶ 1, 10. Main is
therefore not persuasive on the issue of waiver in this case.
{¶ 32} Finally, the city argues that its assertion in its answer that the estate’s
complaint “fails to state a cause of action upon which relief can be granted” was
sufficient to preserve political-subdivision immunity as a defense because that
defense is “readily discernible from the face of [the estate’s] complaint” since, in
the city’s view, the allegations of the complaint show that an exception to immunity
under R.C. Ch. 2744 does not apply.
{¶ 33} Whether the political-subdivision-immunity defense is obvious on
the face of the estate’s complaint does not relieve the city from its duty to raise that
defense and instead underscores the city’s oversight in failing to do so promptly in
a clear, affirmative manner under Civ.R. 8(C). If the allegations of the complaint
implicate R.C. Ch. 2744 immunity of a political-subdivision defendant, the political
subdivision must expressly raise that defense by a prepleading motion under Civ.R.
12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment

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under Civ.R. 15. Supportive Solutions, 2013-Ohio-2410, at ¶ 19. If the political
subdivision fails to take one of these such actions, it has waived R.C. Ch. 2744
immunity. See id.
{¶ 34} In this case, the city has not demonstrated a legal basis or compelling
reason to splinter established pleading requirements to accommodate a special rule
in order to permit the defense of failure to state a claim upon which relief can be
granted to stand for the political-subdivision-immunity defense. Regardless of how
clearly the allegations of a complaint point to R.C. Ch. 2744 immunity, asserting
the defense of failure to state a claim upon which relief can be granted in an answer
does not preserve political-subdivision immunity as a defense. We reject the city’s
first proposition of law.
B. Unjustified and prejudicial inaction by the city supports the trial court’s
decision to deny the city leave to amend its answer under Civ.R. 15(A)
{¶ 35} In its second proposition of law, the city challenges the trial court’s
ruling on its motion for leave to amend its answer under Civ.R. 15(A) to assert the
political-subdivision-immunity defense. Civ.R. 15(A) is a proper vehicle to raise
an affirmative defense to avoid waiver. See Supportive Solutions at ¶ 19. When a
defendant fails to amend an answer as a matter of course within 28 days after it is
served, Civ.R. 15(A) provides that courts “shall freely give leave” to amend the
answer “when justice so requires.”
{¶ 36} This court has determined that the “‘language of Civ.R. 15(A) favors
a liberal amendment policy and a motion for leave to amend should be granted
absent a finding of bad faith, undue delay or undue prejudice to the opposing
party.’” State ex rel. Vindicator Printing Co. v. Wolff, 2012-Ohio-3328, ¶ 17,
quoting Hoover v. Sumlin, 12 Ohio St.3d 1, 6 (1984). Establishing the justification
for the delay ultimately falls on the movant: when the trial court denies leave to
amend, it is the movant’s burden on appeal of the trial court’s decision to

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“affirmatively identify” how the trial court abused its discretion in this regard.
Darby v. A-Best Prods. Co., 2004-Ohio-3720, ¶ 21.
{¶ 37} We find no abuse of discretion by the trial court in denying the city’s
motion for leave to amend its answer. The city essentially contends that the lower
courts failed to properly credit periods of inaction caused by the assignment of a
visiting judge and interruptions related to the COVID-19 pandemic. The record
does show that the case was delayed because of the recusal of the first trial-court
judge and assignment of the visiting trial-court judge and that part of that delay
coincided with the COVID-19 pandemic. Nevertheless, even if those periods are
discounted, the record still shows that a substantial part of the delay was attributable
to the city. Moreover, none of the events that delayed the proceedings prevented
the city from asserting a defense of political subdivision immunity or moving more
promptly to amend its answer.
{¶ 38} Specific to this case, a trial court may reasonably find a movant’s
unjustified and prejudicial inaction as grounds to deny the movant leave to amend
a pleading under Civ.R. 15(A) when the movant had sufficient information to raise
the subject of the proposed amendment before the opposing party expended time
and resources responding to timely raised issues. See Turner, 1999-Ohio-207, at
¶ 16-21 (trial court abused its discretion in granting a motion for leave to amend a
pleading under Civ.R. 15(A) when the movant failed to justify its failure to timely
raise an “obvious” affirmative defense in its answer to the complaint or at least
before the plaintiffs expended time and resources opposing the movant’s motion
for summary judgment); Jontony v. Colegrove, 2012-Ohio-5846, ¶ 21, 29 (8th
Dist.) (trial court did not abuse its discretion in denying the City of Strongsville
leave to amend its answer under Civ.R. 15(A) when the affirmative defense of
immunity was “an obvious defense” from the face of the complaint, yet the City of
Strongsville failed to assert that defense on its own behalf); Schweizer, 108 Ohio
App.3d at 545-546 (trial court did not abuse its discretion in denying the plaintiff

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leave under Civ.R. 15(A) to amend his complaint when the newly asserted theory
was available at the onset of the litigation); Leo v. Burge Wrecking, L.L.C., 2017-
Ohio-2690, ¶ 13-15 (6th Dist.) (trial court did not abuse its discretion in concluding
that movant’s unjustified delay supported denying leave to amend his complaint
under Civ.R. 15(A) when movant knew or should have known about the subject of
the amendment long before he filed his motion for leave to amend).
{¶ 39} Similar to the political subdivision at issue in Turner, in this case,
the city “clearly had the right to rely upon the immunity provisions found in [R.C.
Ch. 2744]” and, therefore, “as a matter of course, a properly pleaded answer should
have included the statutory-immunity defense,” Turner at ¶ 16. In these
circumstances, the city “should have attempted to amend its answer to include the
immunity defense prior to its initial motion for summary judgment,” id. at ¶ 20; see
also Musil v. Gerken Materials, Inc., 2020-Ohio-3548, ¶ 26 (6th Dist.) (stating that
a party’s attempt to amend a pleading in response to a summary-judgment motion
suggests prejudice and remarking that a party should not be permitted to wait to
augment its pleadings in response to a summary-judgment motion).
{¶ 40} Instead, the city sought leave under Civ.R. 15(A) to amend its answer
to raise the political-subdivision-immunity defense after the discovery and
dispositive-motion deadlines had expired and the matter was set for trial. At that
point, the estate had expended time and resources to conduct discovery and move
for summary judgment based on properly raised issues. The city’s obtaining new
counsel and unsuccessfully attempting to raise political-subdivision immunity for
the first time in an untimely and unauthorized motion for summary judgment are
not sufficient reasons to justify the city’s delay in seeking leave to amend its answer.
{¶ 41} On this record, the unjustified and prejudicial delay occurring after
the court- and pandemic-related events can reasonably be attributed to the city. The
city had an obligation to raise the affirmative defense of political-subdivision
immunity in a prompt manner to minimize the impact to the estate, see Turner,

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SUPREME COURT OF OHIO

1999-Ohio-207, at ¶ 16, 20, and it failed to do so. Because the trial court had a
reasonable basis to deny the city leave to amend its answer under Civ.R. 15(A) to
raise the political-subdivision-immunity defense, we agree with the Seventh
District that the trial court did not abuse its discretion in this regard. The city’s
argument to the contrary lacks merit.
III. CONCLUSION
{¶ 42} The city failed to preserve the affirmative defense of political-
subdivision immunity under R.C. Ch. 2744 when it asserted in its answer that the
estate’s complaint “fails to state a cause of action upon which relief can be granted.”
And because of the city’s unjustified and prejudicial delay in filing its motion for
leave to amend its answer under Civ.R. 15(A), there was no abuse of discretion by
the trial court in denying the city leave to amend its answer. We accordingly affirm
the judgment of the Seventh District Court of Appeals.
Judgment affirmed.
__________________
Anzellotti, Sperling, Pazol & Small Co., L.P.A., Ilan Wexler, and David M.
Moore; and Giorgianni Law, L.L.C., and Paul Giorgianni, for appellee.
Roetzel & Andress, L.P.A., Emily K. Anglewicz, Megan M. Millich, and
Jessica L. Sanderson, for appellant.
__________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11173977. Public record. Not legal advice.