Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DSS Services, LLC v. Eitel's Towing, LLC

Court of Appeals of Ohio, Tenth District

August 6, 2019

DSS Services, LLC, Plaintiff-Appellee,
v.
Eitel's Towing, LLC, Defendant-Appellee, Pleasant Township Fire Department et al., Defendants-Appellants,

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 17CV-10621)

         On brief:

          Florey Todd, Ltd., Adam F Florey, and Adam R. Todd, for appellee DSS Services, LLC.

          Reminger Co., L.PA., and Patrick Kasson, for appellants.

         Argued:

          Adam F Florey.

          Patrick Kasson.

          DECISION

          KLATT, P. J.

         {¶ 1} Defendants-appellants, Pleasant Township and the Pleasant Township Fire Department (collectively "Pleasant Township" or "the township"), appeal a judgment of the Franklin County Court of Common Pleas that denied the township's motion for judgment on the pleadings. For the following reasons, we affirm that judgment in part and reverse it in part.

         {¶ 2} On October 31, 2017, plaintiff-appellee, DSS Services, LLC, attempted to deliver a load of gravel to a private residence located in Pleasant Township. During the delivery, DSS' dump truck overturned. The Pleasant Township Fire Department responded to the accident scene and oversaw the containment of fluids leaking from the truck. The Fire Department then authorized defendant, Eitel's Towing, LCC, to right the overturned truck, despite DSS' request that a different towing company handle the job. The process Eitel's used to right DSS' truck caused significant damage to the truck. After hauling the truck into an upright position, Eitel's refused to release the truck to DSS and, instead, towed it to Eitel's lot. DSS subsequently requested the truck's return, but Eitel's refused to turn over the truck unless DSS paid it for towing and storage services.[1]

         {¶ 3} On December 1, 2017, DSS filed suit against Pleasant Township and Eitel's, asserting claims for negligence and conversion.[2] Pleasant Township answered the complaint and moved for judgment on the pleadings pursuant to Civ.R. 12(C). In its motion, Pleasant Township asserted that it was immune from DSS' claims under R.C. Chapter 2744, the Political Subdivision Tort Liability Act. In response, DSS argued that two statutory exceptions, R.C. 2744.02(B)(2) and (5), stripped Pleasant Township of political-subdivision immunity.

         {¶ 4} In a decision and entry dated July 5, 2018, the trial court denied Pleasant Township's motion for judgment on the pleadings. Pleasant Township now appeals from that judgment, and it assigns the following error:

The trial court erred when it denied Pleasant Township's Motion for Judgment on the Pleadings asserting political[-]subdivision immunity because Pleasant Township, as a political subdivision engaged in the governmental function of providing fire services or protection, is entitled to immunity, and no exception applies to remove that immunity.

         {¶ 5} Initially, we must address whether this appeal is moot, which requires further examination of the procedural history of this case. When confronted with Pleasant Township's motion for judgment on the pleadings, DSS filed both a memorandum in opposition and a motion for leave to file an amended complaint instanter. The proposed amended complaint, which DSS attached to its motion, included additional factual allegations to strengthen DSS' assertion that political-subdivision immunity did not preclude its claims against Pleasant Township. According to DSS, the July 5, 2018 decision and entry that ruled on Pleasant Township's motion for judgment on the pleadings also ruled on DSS' motion for leave to file the amended complaint instanter. DSS contends that in addition to denying Pleasant Township a judgment on the pleadings, the trial court also granted DSS leave to file its amended complaint.

         {¶ 6} An amended complaint supplants the original complaint, so the allegations in an amended complaint supersede those in the original complaint. Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, ¶ 32 (10th Dist.); S. Ohio Risk Mgt. v. Michael, 4th Dist. No. 05CA11, 2005-Ohio-5862, ¶ 8. Thus, DSS argues, when the trial court granted it leave to file the amended complaint instanter, the trial court rendered moot the ruling on the motion for judgment on the pleadings because that ruling was based on the allegations contained in the original, defunct complaint.

         {¶ 7} DSS' argument rests on an incorrect premise. The trial court did not grant DSS leave to file its amended complaint in the July 5, 2018 decision and entry. That judgment only ruled on the motions for judgment on the pleadings filed by Pleasant Township and Eitel's.[3] An administrative addendum to the judgment, intended to assist the clerk in managing the docket, indicated that the judgment granted DSS' motion for leave. A review of the contents of the judgment, however, reveals that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.