Lead Opinion
The issue before us is whether defendant herein was sufficiently prejudiced so as to preclude amendment of plaintiffs claim pursuant to Civ. R. 15(B). For the reasons which follow, we hold the amendments in the casе sub judice to be a valid exercise of the trial court’s discretion and thereby affirm the court of apрeals.
The policy behind a court’s discretion to freely allow amendments pursuant to Civ. R. 15 has beеn the subject of several recent opinions by this court. See, e.g., Hall v. Bunn (1984),
In the instant case appellee’s first аmendment was for a complaint of general defamation. Appellee’s second amеndment, and the one allowed on oral motion on the day of trial, involved specific instances of slanderous statements. Evidence adduced to support the former amendment included statements by the appellant that appellee lacked good judgment in dispensing medicine. The еvidence adduced to support the latter amendment included statements that appellеe was a “bitch,” a "f-— whore,” etc. Based upon this court’s prior decision in Bush v. Kelley’s, Inc. (1969),
Appellant’s second contention is that he was prejudiced by the amendmеnt approved on the trial date. According to the record, and without discussion of the ethicаl dilemmas posed by holding the interests of one client paramount to another (see, e.g., Canon 5 оf the Code of Professional Responsibility), appellant herein twice rejected the opportunity for a continuance. Appellant’s counsel’s decision to forego these continuances could not, at the time of trial, be construed as anything except a purely tactical decision.
Appellant had the burden to satisfy the court that the admission of evidence was рrejudicial. See Civ. R. 15(B). The failure to satisfy that burden at the time of trial, or to take advantage of thе offered continuances, was appellant’s failure and not a failure on the part of the trial court. Accordingly, we find no abuse of discretion on the part of the trial court and affirm the judgment of the court of appeals.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from today’s majority opinion in that the trial court abused its discretion by allowing a sеcond 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 wаrrant 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 oсcurrence 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 rеferred to defamatory statements made concerning appellee’s inaccuratе 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 conduсt, 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 appelleе to effectively evade the statute of limitations for slander actions as provided in R.C. 2305.11(A). Appеllee'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 allоwed 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.