stating that court will not reverse decision regarding Civ.R. 15(B) motion to amend “in the absence of ‘gross abuse’”
How later courts described this case
- stating that court will not reverse decision regarding Civ.R. 15(B) motion to amend “in the absence of ‘gross abuse’”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. I dissent from today’s majority opinion in that the trial court abused its discretion by allowing a second amendment to the complaint on the morning of the trial. In my view, the nature of the latter amendment was not similar enough to appellee’s complaint and first amendment thereto as to warrant a relation back to the pending suit under the appropriate procedural rule.
In addressing the relation back of amendments, Civ. R. 15(C) states in pertinent part:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. * * *”
The inquiry pursuant to Civ. R. 15(C) should focus on whether the allegations within the original pleading give sufficient notice of the claim sought to be included by the amendment. Here, the first amended complaint gave little, if any, notice as to the cause of action for slander contained in the second amended complaint.
The first amended complaint referred to defamatory statements made concerning appellee’s inaccurate bookkeeping and improper dispensing of medicine. The complaint alleged that these statements took place prior to June 5, 1981. The second amended complaint alleged slander which, from all indications in the record, occurred after June 5, 1981. When Civ. R. 15(C) speaks of conduct, transaction, or occurrence, it certainly does not refer to a series of dissimilar events which continued for a series of months.
Furthermore, the trial court has allowed appellee to effectively evade the statute of limitations for slander actions as provided in R.C. 2305.11(A). Appellee's cause of action for slander would have been precluded by the limitations period had the trial court not permitted its relation back to the pending lawsuit. Appellee was allowed to file a lawsuit and then use it as a basis for asserting another cause of action which was totally distinct from the pending suit and would have otherwise been barred by the statute of limitations. I cannot encourage such practice.
Accordingly, I dissent.