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Retired Judge Kimbler's Newsletter for  the week of January 8, 2023
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A Short Article on the Effect of Filing an Amended Complaint

Below are paragraphs that I have lifted from a judgment entry grating a motion for summary judgment that I have filed in a case to which I was assigned:

In Ohio appellate courts have held that the filing of an amended complaint has the effect of abandoning a prior filed complaint. See, for example, this quote from a decision of the Court of Appeals for the Ninth Appellate District, Wells Fargo Bank, N.A. v. Russell, (Ninth Dist.), 2017-Ohio-5630 at ¶13: 

“An amended complaint takes the place of the original, which is then totally abandoned." Harris v. Ohio Edison Co., 7th Dist. Mahoning No. 91 C.A. 108, 1992 Ohio App. LEXIS 4085, 1992 WL 188511, *2 (Aug. 3, 1992); Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. Cuyahoga No. 101280, 2015-Ohio-1289, ¶ 21. The summary judgment order and initial foreclosure decree in this case related to the original complaint filed in 2011. After filing the amended complaint, Wells Fargo filed several motions aimed at resolving issues involving the priority of liens on the property. The only journal entries issued by the trial court thereafter were proposed orders that dealt exclusively with the priority of liens. Significantly, however, Wells Fargo never filed a dispositive motion with respect to the amended complaint, and the trial court never issued an order subsequent to the filing of the amended complaint that addressed the claims raised therein.” 

      Courts of Appeals in Ohio have also held that if a plaintiff files an amended complaint which omits a defendant who was named in the original or a prior complaint, the effect of that omission is to have abandoned the claim against such a defendant. See, for example, the following quote from Albrecht v. Franklin Cty. Court of Appeals, (10th Dist.), 2008-Ohio-4008 at ¶15: 

"When a party files an amended complaint under Civ.R. 15(A) and fails to include a party that was named in the original complaint, the omitted party is dropped from the case. S. Ohio Risk Mgmt. v. Michael, 4th Dist. Jackson No. 05CA11, 2005-Ohio-5862, ¶ 8. See also Kowalski v. Phong, 2d Dist. Montgomery No. 27577, 2017-Ohio-9310, ¶ 17 ("As a matter of law, the effect of the [plaintiff] filing their amended complaint, omitting [the originally named party] as a defendant, was to abandon the action as to [him]."). 

I ran the decisions that are quoted above through Decisis ©  which is the legal search engine offered for use to members of the Ohio State Bar Association. The only time that the Wells Fargo Bank, N.A. v Russell has been cited is in another case from the same appellate district. Albrecht v. Franklin Cty. Court of Appeal has never been cited by any other court. 

If you read the quotes above, though, you will find that the writers of those two decisions quoted above cite decisions from four other Ohio appellate districts. In the Wells Fargo decision there are citations to decisions from the Second and Seventh Districts. In the Albrecht decision there are citations to decisions from the Fourth and Eighth Districts. 

Based on the above,  lawyers representing plaintiffs who are filing amended complaints should make sure that all the claims in a prior complaint have been restated. Lawyers representing defendants should make sure that motions that were filed in response to the original complaint are refiled when the amended complaint is served.

Lawyers representing plaintiffs should also consider the possibility that defenses that were not set forth against the original complaint may be made against an amended complaint. 

The above analysis would also apply to lawyers representing parties who have filed or answered counterclaims and cross-claims.

 

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