          [Cite as Yakov Re, L.L.C. v. Rhodes, 2014-Ohio-2025.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




YAKOV RE, LLC,                                     :         APPEAL NO. C-130349
                                                             TRIAL NO. A-1206833
FLYNN LAND II, LLC,                                :
                                                                  O P I N I O N.
  and                                              :

JOHN DOES,                                         :

         Plaintiffs-Appellants,                    :

   vs.                                             :

DUSTY RHODES, HAMILTON                             :
COUNTY, OHIO AUDITOR,

         Defendant-Appellee.                       :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 14, 2014



Cohen, Todd, Kite and Stanford, LLC, John L. O’Shea, Jill T. O’Shea, Robert S.
Rubin and Joseph M. Hutson, for Plaintiffs-Appellants,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Pamela J. Sears and
Thomas J. Scheve, Assistant Prosecuting Attorneys, for Defendant-Appellee.



Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}   Plaintiff-appellants Yakov RE, LLC (“Yakov”), and Flynn Land II, LLC

(“Flynn”), appeal the trial court’s judgment dismissing their original class-action

complaint against defendent-appellee Dusty Rhodes, Hamilton County, Ohio Auditor

(“the Auditor”). For the following reasons, we reverse the trial court’s judgment.

       {¶2}   In 2011, Yakov and Flynn each filed a complaint with the Hamilton

County Board of Revision (“the BOR”) challenging the value of their real property as

determined by the Auditor for the tax-lien date of January 1, 2010. In each case, the

BOR reduced the value of the property for the 2010 tax year. But the Auditor did not

carry over the BOR-adjusted value of the property to the following tax year.

Therefore, in August 2012, Yakov and Flynn, on behalf of themselves and others

similarly situated, sued the Auditor alleging that he had, among other things,

unconstitutionally discriminated against them and others by failing to carry over the

BOR-adjusted value of their properties when the Auditor did so for certain other

property owners who had successfully challenged the value of their property for the

tax-lien date of January 1, 2010.

       {¶3}   In September 2012, the Auditor moved to dismiss the complaint for

failing to state a claim upon which relief could be granted and for failing to include

indispensible parties to the action. A hearing on the motion was held on December

17, 2012. On December 31, 2012, Flynn and Yakov filed an amended complaint

adding three additional named plaintiffs, two additional defendants and additional

state-law claims. Eventually, in May 2013, the trial court dismissed the original




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                     OHIO FIRST DISTRICT COURT OF APPEALS



complaint for failure to state a claim upon which relief could be granted. This appeal

followed.

       {¶4}   In their first assignment of error, Yakov and Flynn contend that the

trial court erred by dismissing their original complaint even though an amended

complaint had been filed five months earlier and the Auditor had filed an answer to

that amended complaint. We agree.

       {¶5}   We begin our analysis by determining whether Yakov and Flynn

properly filed an amended complaint. We hold that they did. Former Civ.R. 15(A),

in effect at the time Yakov and Flynn filed their amended complaint, provided that

“[a] party may amend his pleading once as a matter of course at any time before a

responsive pleading is served[;] * * * [o]therwise a party may amend his pleading

only by leave of court or by written consent of the adverse party.” Here, the Auditor

had not filed a responsive pleading prior to Yakov and Flynn amending their

complaint in December 2012. Although the Auditor had filed a motion to dismiss the

original complaint, a “motion to dismiss” is not considered a responsive pleading.

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 549, 605

N.E.2d 378 (1992); Civ.R. 7. Thus, there was a properly amended complaint before

the court.

       {¶6}   It is well settled that an amended pleading supersedes the original

pleading. Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d

928, ¶ 32 (10th Dist.), citing Carlock v. Coleman, 7th Dist. Mahoning No. 89 C.A.

121, 1990 Ohio App. LEXIS 3625 (Aug. 22, 1990) (“ ‘it is hornbook law that an

amended pleading supersedes the original, the later being [treated] thereafter as

nonexistent.’ ”). Thus, at the time the trial court entered its judgment dismissing the




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                       OHIO FIRST DISTRICT COURT OF APPEALS



original complaint, five months after the amended complaint had been filed, the

original complaint was nonexistent. In effect, the judgment was a nullity. The trial

court could have considered the motion to dismiss in light of the amended

complaint, but it did not do so. Therefore, we remand this matter to the trial court to

consider the pleadings actually before it in light of any outstanding motions or new

motions brought by either party.

       {¶7}    The first assignment of error is sustained. Because the resolution of

the first assignment determines this appeal, the remaining four assignments of error

are rendered moot and we decline to address them. Accordingly, we reverse the trial

court’s judgment and remand this cause for further proceedings consistent with this

opinion and the law.

                                               Judgment reversed and cause remanded.



CUNNINGHAM, P.J., and Hendon, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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