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Satterfield v. St. Elizabeth Health Center2/17/2005
st appellees was one of implied indemnification, which was contained in the original cross-claim. The contractual indemnification claim in the amended cross-claim was premised upon an agreement between appellant and CCF, to which appellees were not parties.
{ } The grant or denial of a motion to amend a pleading is within the trial court's discretion. Turner v. Cent. Local School Dist. (1999), 85 Ohio St.3d 95, 99, 706 N.E.2d 1261. Thus, we may reverse such a decision only if the trial court abuses that discretion. An abuse of discretion is more than an error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. " here it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief can be granted, and it is tendered timely and in good faith and no reason is apparent or disclosed for denying leave, the denial of leave to file such amended complaint is an abuse of discretion." Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 297 N.E.2d 113.
{ } Civ.R. 15(A) governs the amendment of pleadings and provides:
{ } "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fourteen days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders."
{ } The trial court did not abuse its discretion in denying appellant's motion to amend. Appellant's motion was untimely. Appellant entered into its high-low agreement on July 7, 2003. It did not file its motion to amend until October 2, 2003. Had appellant believed that entering into the agreement required it to change the wording in its cross-claim, it should not have taken three months to do so. Instead, appellant waited to amend its cross-claim until after both appellees and CCF had filed their motions for summary judgment. Appellees and CCF pointed out in their motions the shortcomings of appellant's cross-claim. It seems that appellant sought to amend its cross-claim in an attempt to avoid summary judgment.
{ } Furthermore, the trial was set for August 25, 2003. The trial was set to go forward based on appellant's original cross-claim. Had CCF and appellees not filed motions for leave to file summary judgment motions on the eve of trial, the case would have proceeded on appellant's original cross-claim. Up to the day before trial, appellant had not filed a motion to amend. Again, this fact points to the untimeliness of appellant's motion.
{ } For these reasons, we cannot conclude that the trial court abused its discretion in denying appellant's motion to amend its cross-claim. Thus, appellant's second assignment of error is without merit.
{ } Accordingly, the trial court's judgment is hereby affirmed.
Judgment affirmed.
VUKOVICH AND WAITE, JJ., concur.
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