No. 94CA581. | Ohio Ct. App. | Feb 13, 1996
This is an appeal from a judgment entered by the Adams County Court of Common Pleas, upon a Civ.R. 50 motion for directed verdict, in favor of the Liberty Township Trustees ("the trustees"), defendants below and appellees herein, on the claims brought against them by Artie and Judith Spence, plaintiffs below and appellants herein. The following error is assigned for our review:
"The trial court erred to the prejudice of plaintiffs-appellants Artie L. Spence and Judith Spence by granting a directed verdict in favor of defendant Liberty Township Trustees on the basis of the affirmative defense of sovereign immunity, when that defense was not affirmatively pled at any time."
The record reveals the following facts pertinent to this appeal. Appellants own approximately 1.6 acres of land along Bloom Drive in Liberty Township, Adams County, Ohio. They moved into a mobile home on the property in 1970 and later, in 1978, acquired a house which they had moved onto the premises. Appellants experienced no initial problems with flooding or drainage on the premises. In 1989, however, appellants were having insulation installed when they discovered that there was sewage and standing water a foot deep underneath their home. The source of the problem was ultimately discovered to be a drainage culvert underneath Bloom Drive that was backing up. Appellants contacted the township trustees and alerted them to this problem, but nothing was ever done to correct it and the flooding persisted. Appellants contend that water damage over *359 the years has caused the floor and chimney of their home to sink and has resulted in the walls pulling away from the top ceiling.
Appellants commenced the action below on January 28, 1993, alleging that the trustees had failed to properly maintain, or replace, the culvert underneath Bloom Drive and that they had, wrongfully and maliciously, failed to take any action on the problem despite having been notified on several occasions of the water and sewage backing up and damaging appellants' home. Appellants sought relief in the amount of $10,000 in compensatory damages and $10,000 in punitive damages. An amended complaint later raised both of these amounts to $100,000. The trustees filed their answer denying all liability on appellants' claims.
The matter proceeded to a jury trial on July 21, 1994. At the conclusion of appellants' case in chief, the trustees moved for a directed verdict under Civ.R. 50(A), arguing that they were shielded from liability by R.C.
We begin our analysis in this case by narrowing down the precise issues posited for review herein. The provisions of R.C.
"In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for * * * loss to * * * property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
"* * *
"(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
"* * *
"(5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion *360 in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner."
There is no dispute among the parties that the provisions of this statute would, ordinarily, render the trustees immune from liability with respect to their actions, or inactions, regarding the backed-up culvert under Bloom Drive.1 There is also no dispute that the trustees never expressly asserted this statutory defense in either of their two answers filed below. Immunity is generally regarded as an "affirmative defense," which must be expressly pled pursuant to Civ.R. 8(C) or it is waived.2 The precise issue posited for our review, therefore, is whether the trustees waived an "immunity" defense by failing to plead it in their answer(s). A resolution of this issue requires us to determine the underlying question of whether the affirmative pleading of a Civ.R. 12(B)(6) defense (of "failure to state a claim upon which relief can be granted") is sufficient to encompass an immunity defense so as to prevent its waiver.
We note at the outset that this is not a particularly novel issue. There are several reported and unreported cases where a governmental entity has neglected *361
to plead "immunity" in an action against it despite the fairly obvious availability of that defense. Indeed, this issue has even come up in the context of other affirmative defenses which a party fails to expressly plead but then argues is encompassed within the defense of "failure to state a claim." The courts which have addressed this issue appear to be divided in their treatment of this problem. Some courts have held that a Civ.R. 12(B)(6) defense in a party's answer is insufficient to raise another, separate, affirmative defense and, thus, the failure to expressly plead the other affirmative defense will amount to a waiver thereof. See, e.g., Cooper v. Grace Baptist Church
(1992),
We decline to follow the Goad and Enghauser Mfg. Co. cases because, in our estimation, they are based on an erroneous reading of an Ohio Supreme Court decision which dealt with an analogous problem. The plaintiffs in Mills v. WhitehouseTrucking Co. (1974),
"Where the bar of the statute of limitations is not presented as a defense either by motion before pleading pursuant to Civ.R. 12(B), or affirmatively in a responsive pleading pursuant to Civ.R. 8(C), or by amendment made under Civ.R. 15, then the defense is waived * * *."
The holding in Mills makes clear that there are only three ways by which to properly raise an affirmative defense. These include (1) setting forth the defense in a prepleading motion pursuant to Civ.R. 12(B), or (2) affirmatively setting forth the defense in a responsive pleading pursuant to Civ.R. 8(C), or (3) amending one's responsive pleading pursuant to Civ.R. 15 so as to include such defense. A failure to raise an affirmative defense by any of these three methods will result in a waiver of that defense.
The Supreme Court was also 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. The court reasoned as follows:
"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. The purpose behind the allowance of a Civ.R. 12(B) motion to dismiss based upon the statute of limitations is to avoid the unnecessary delay involved in raising the bar of the statute in a responsive pleading when it is clear on the face of the complaint that the cause of action is barred. The allowance of a Civ.R. 12(B) motion serves merely as a method for expeditiously raising the statute of limitations defense."
An affirmative defense may thus be raised in a Civ.R. 12(B) motion, but only if (1) that motion is filed before a responsive pleading, and (2) it is clear on the face of the complaint that the affirmative defense is available. Otherwise, the defense must be set forth in a responsive pleading pursuant to Civ.R. 8(C) or in an amended responsive pleading pursuant to Civ.R. 15. The Supreme Court noted that the oral Civ.R. 12(B) motion to dismiss made at the time of trial in Mills was not timely (i.e., made before the filing of a responsive pleading) and thus deemed that the defense had been waived.4 *363
The Warren County Court of Appeals relied on Mills as the guiding precedent for its decision in Enghauser Mfg. Co.,supra. That case involved negligence, nuisance and trespass claims brought against the city of Lebanon, Ohio. The city filed several Civ.R. 12(B)(6) motions to dismiss the action asserting that the complaint failed to state a claim upon which relief could be granted. However, the city never affirmatively raised the issue of sovereign immunity in either of the two motions to dismiss or in a responsive pleading. A jury verdict was returned in favor of the plaintiff awarding $91,000 in damages against the city. Only then, in a motion for judgment notwithstanding the verdict, did the city of Lebanon raise the defense of sovereign immunity. The trial court ruled that the doctrine of sovereign immunity insulated the city from any liability for damages (although the city was ordered to abate the nuisance).
The court of appeals affirmed that decision, holding that the city was immune from liability. In so doing, the court cited the syllabus in Mills and noted that an affirmative defense can be raised in a Civ.R. 12(B)(6) motion and preserved from waiver so long as the complaint shows the availability of that defense on its face. The court then turned to the question of whether "the defense of sovereign immunity was applicable on the face of the complaint * * *." That question was resolved in the affirmative and, therefore, the lower court's entry of judgment notwithstanding the verdict was affirmed.
The problem with the decision in Enghauser Mfg. Co. is that neither of the two Civ.R. 12(B)(6) motions ever specifically raised the defense of sovereign immunity. Indeed, the court of appeals noted that "the words `sovereign immunity' were not interjected into this cause sub judice by the City of Lebanon until after the jury returned a verdict * * *." The court nevertheless held that the filing of the two Civ.R. 12(B)(6) motions was sufficient to invoke the defense, provided that its applicability was shown on the face of the complaint. With all due respect to our colleagues on that court, we disagree with its interpretation of the Mills case. The Supreme Court, as noted previously, expressly ruled that "[t]he allowance of a Civ.R. 12(B) motion serves merely as a method for expeditiouslyraising the * * * defense." (Emphasis added.) Mills, supra,
The Enghauser Mfg. Co. case was cited by the Cuyahoga County Court of Appeals as the impetus for its decision in Goad,supra. This was a negligence action brought against a county board of commissioners and a county sheriff by an individual who alleged he had incurred injury while dining in the county jail cafeteria. The defendants answered and denied liability as well as asserting the affirmative defense of failure to state a claim upon which relief could be granted. A motion for summary judgment was subsequently filed by defendants and raised, for the first time, the issue of sovereign immunity as set forth in R.C. Chapter 2744. The trial court sustained defendants' motion on the basis of that belated immunity defense and that judgment was later affirmed by the court of appeals.
Our colleagues on that court cited both Mills andEnghauser Mfg. Co. in rendering their decision. The court correctly noted that, under Mills, a party could raise an affirmative defense by means of a Civ.R. 12(B)(6) motion, provided that the applicability of that defense was clearly shown on the face of the complaint. A motion to dismiss had never been filed by the defendants in Goad, however and, thus, theMills case provided little in the way of authoritative support for affirming summary judgment. In order to make up for this procedural discrepancy, the Cuyahoga County Court of Appeals turned to the Enghauser Mfg. Co. case, which they analyzed as follows:
"In Enghauser Mfg. Co. v. Lebanon * * * the defendant failed to raise sovereign immunity in its answer, but did assert the affirmative defense of failure to state a claim upon which relief can be granted. The Twelfth District Court of Appeals found that the defendant's affirmative defense was sufficient to properly raise the defense of sovereign immunity because the complaint itself bore *365
conclusive evidence that the action was barred by sovereign immunity." Goad,
With all due respect to our colleagues on the Cuyahoga County Court of Appeals, this analysis of Enghauser Mfg. Co. is obviously incorrect. The court in Enghauser Mfg. Co. makes no mention whatsoever of an answer being filed by defendants therein, and it certainly makes no mention of a Civ.R. 12(B)(6) affirmative defense being set forth in such an answer. Rather, the defendants therein filed a motion to dismiss under Civ.R. 12(B) which raised the defense of failure to state a claim. It was, in fact, made quite clear by the court in Enghauser Mfg.Co. that the case turned on the point that such a motion had previously been filed. Enghauser Mfg. Co. simply does not stand for the proposition that the defense of "failure to state a claim upon which relief can be granted" inserted into an answer is sufficient to raise any other affirmative defense the applicability of which is clearly shown on the face of the complaint. As discussed previously, the Ohio Supreme Court has ruled that the only methods by which an affirmative defense can be raised is (1) through a prepleading Civ.R. 12(B) motion to dismiss, (2) by expressly setting forth that defense in a responsive pleading pursuant to Civ.R. 8(C), or (3) by amending the responsive pleading pursuant to Civ.R. 15 so as to expressly include that affirmative defense. See Mills, supra, at syllabus.
The Cuyahoga County Court of Appeals in Goad, nevertheless, came to the conclusion that the affirmative defense of failure to state a claim, as set forth in the defendants' answer therein, was sufficient to properly raise the affirmative defense of immunity. We disagree. That court, in effect, has reached the very same erroneous conclusion as this court did some two decades ago when the Mills case was before us for appellate review. The Supreme Court later rejected that conclusion when it reviewed the Mills case and, likewise, we reject it now.
In the cause sub judice, the judgment entered below does not indicate the reasoning of the trial court in directing a verdict in favor of appellees. However, the trial transcript clearly reveals that the Civ.R. 50(A) motion was based on the defense of statutory immunity provided under R.C.
The decision in Goad, as discussed previously, is incorrect. An affirmative defense may be raised only by (1) expressly using that defense as part of a prepleading Civ.R. 12(B) motion to dismiss, (2) expressly setting forth that defense in a responsive pleading pursuant to Civ.R. 8(C), or (3) by amending one's responsive pleading pursuant to Civ.R. 15 so as to include that defense. Mills, supra, at syllabus. A failure to utilize any of these three methods for raising an affirmative defense will result in a waiver thereof. Id. As correctly noted by the Lucas County Court of Appeals in Mitchel,
Appellants' assignment of error is, for these reasons, sustained. The judgment of the trial court is reversed and the cause is remanded for further proceedings.
Judgment reversed and cause remanded.
HARSHA, J., concurs.
KLINE, J., dissents.