[Cite as Blair v. Minnick, 2016-Ohio-7212.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

SUZANNE BLAIR                                          C.A. No.   28089

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ROGER MINNICK                                          COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellee                                       CASE No.   2014-CV-163

                                 DECISION AND JOURNAL ENTRY

Dated: October 5, 2016



        WHITMORE, Judge.

        {¶1}     Appellant, Suzanne Blair, appeals from the December 23, 2015 judgment of the

Summit County Court of Common Pleas, Probate Division. This Court affirms.

                                                  I

        {¶2}     This matter arises out of a dispute between siblings, Ms. Blair and Roger

Minnick, over two parcels of real property in Pennsylvania (“PA property”). Guy and Gloria

Minnick, the parties’ now deceased parents, owned the PA property and transferred it into the

family trust. On November 10, 2014, Ms. Blair filed a complaint for declaratory judgment and

an application for an injunction against Mr. Minnick, both as executor of the estate of Ms.

Minnick and successor trustee of the Guy and Gloria Minnick Trust UTD. In her complaint, Ms.

Blair sought (1) declaratory judgment that she was the rightful beneficiary of the PA property,

and (2) an injunction preventing Mr. Minnick from transferring the PA property to anyone, other

than herself, during the pendency of the litigation.
                                                  2


       {¶3}    On November 19, 2014, Mr. Minnick filed a motion to dismiss, and on April 16,

2015, Ms. Blair filed an amended complaint. In her amended complaint, Ms. Blair added a third

cause of action for breach of fiduciary duty. Further, as of August 2015, Ms. Blair became the

owner of the PA property. In its December 23, 2015 order, the trial court found Ms. Blair’s

original complaint moot, and refused to consider her amended complaint due to noncompliance

with Civ.R. 15(A).     Specifically, the trial court stated that Ms. Blair improperly filed the

amended complaint without first obtaining Mr. Minnick’s consent or leave of court.

       {¶4}    Ms. Blair now appeals, raising one assignment of error.

                                                  II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED BY EFFECTIVELY DISMISSING [MS.]
       BLAIR’S AMENDED COMPLAINT WHEN THE COURT STATED, IN AN
       ORDER DENYING A MOTION TO COMPEL, THAT THE AMENDED
       COMPLAINT WAS NOT FILED IN COMPLIANCE WITH CIV.R. 15(A).

       {¶5}    In her sole assignment of error, Ms. Blair argues that the trial court erred in

dismissing her amended complaint because it was not filed in compliance with Civ.R. 15(A).

Specifically, Ms. Blair argues that, pursuant to Civ.R. 15(A), she had an absolute right to amend

her complaint at any time prior to a responsive pleading being filed.

       {¶6}    Civ.R. 15(A)1 states, in relevant part, that:




1
  We note that Civ.R.15(A) was amended effective July 1, 2013, “to allow amendment without
leave of court of a complaint, or other pleading requiring a responsive pleading, for a period of
28 days after the service of a responsive pleading or motion. Under the prior rule, amendment
without leave of court was limited to pleadings not requiring a response or to which a required
response had not been served.” (Emphasis added.) 2013 Staff Note, Civ.R. 15(A). It appears that
Ms. Blair incorrectly based her argument on the prior version of Civ.R. 15(A).
                                               3


       A party may amend its pleading once as a matter of course within twenty-eight
       days after serving it or, if the pleading is one to which a responsive pleading is
       required within twenty-eight days after service of a responsive pleading or
       twenty-eight days after service of a motion under Civ.R. 12(B), (E), or (F),
       whichever is earlier. In all other cases, a party may amend its pleading only with
       the opposing party’s written consent or the court’s leave. The court shall freely
       give leave when justice so requires. * * *

(Emphasis added.)

       {¶7}   Here, the record indicates that Ms. Blair filed her complaint on November 10,

2014. The complaint was properly served upon Mr. Minnick on November 17, 2014. Mr.

Minnick then filed a motion to dismiss2 on November 19, 2014, which started the twenty-eight

day clock for Ms. Blair to amend her complaint without Mr. Minnick’s consent or leave of court.

However, the record clearly indicates that Ms. Blair filed her amended complaint on April 16,

2015, well after the twenty-eight days allotted in Civ.R. 15(A). As such, the trial court did not

err in dismissing Ms. Blair’s amended complaint for noncompliance with Civ.R. 15(A).

       {¶8}   Ms. Blair’s sole assignment of error is overruled.

                                               III

       {¶9}    Ms. Blair’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas, Probate Division, is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.




2
  Although not specifically labeled as a Civ.R. 12(B) motion, Mr. Minnick’s motion to dismiss
raises the issues of lack of jurisdiction and improper venue, which correspond with Civ.R.
12(B)(1) and (3).
                                                 4


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MARK PIROZZI and MAURA A. MCCAUGHEY, Attorneys at Law, for Appellant.

COLIN G. MEEKER, Attorney at Law, for Appellee.
