COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74122 RAY P. ROBERTSON, ET AL. : ACCELERATED DOCKET : JOURNAL ENTRY Plaintiffs-Appellants : AND : OPINION -vs- : : PER CURIAM ALUMINUM COMPANY OF AMERICA : ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT : SEPTEMBER 3, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from C.P. Court Case No. CV-328394 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Patricia M. Corwin, Esq. Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A. 9th Floor Halle Building 1228 Euclid Avenue Cleveland, Ohio 44115-1891 For defendants-appellees: Michael E. Smith, Esq. Thompson, Hine & Flory 3900 Society Center 127 Public Square Cleveland, Ohio 44114-1216 Julie A. Coletti, Esq. Leboeuf, Lamb, Greene & Macrae 601 Grant Street 7th Floor Pittsburgh, PA 15219-4405 [Attorneys continued] For D.C. Transportation Services, Salvatore J. LoPresti, Esq. Inc.: Willacy & LoPresti 700 Western Reserve Building 1468 West Ninth Street -2- Cleveland, Ohio 44113 For Huskill Chemical Corporation: David Ross, Esq. Michael P. Gilbride, Esq. Reminger & Reminger 113 St. Clair Building Cleveland, Ohio 44114 -3- PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas, and briefs of counsel. Plaintiffs-appellants, Ray Robertson, et al., appeal the decision of the Cuyahoga County Court of Common Pleas which denied both their motion for leave to file an amended complaint and their motion for an extension of time to reply to defendant-appellee's, Hukill Chemical Corp.'s, motion for summary judgment. Plaintiffs- appellants raise two errors for review. For the following reasons, we affirm the decision of the trial court. Ray Robertson, plaintiff-appellant, was employed by DC Transportation Services, Inc. On May 19, 1995, he was transporting a shipment of nitric acid for Hukill Chemical Corp., defendant- appellee ( Hukill ). Unfortunately, Ray Robertson was injured by a back-splash of nitric acid which caused severe burning on his arms, wrists and neck necessitating skin grafts. On January 25, 1997, Ray Robertson and his wife, Norma, plaintiffs-appellants, filed an action in the Cuyahoga County Court of Common Pleas against DC Transportation Services, Inc., Hukill, and Aluminum Company of America ( ALCOA ), defendants-appellees. The complaint contained allegations of intentional tort against DC Transportation Services, Inc. and negligence against Hukill and ALCOA. The pleadings/motions filed by and between the remaining defendants against each other are moot for purposes of this appeal -4- since plaintiffs-appellants voluntarily dismissed D.C. Transportation Services Inc. and ALCOA without prejudice. At the case management conference, the trial court ordered all dispositive motions filed by December 5, 1997 with all opposing briefs being filed by January 5, 1998. The trial was set for February 18, 1998. On December 5, 1997, Hukill filed a motion for summary judgment arguing Ray Robertson was an employee of Hukill and is precluded from bringing a claim for negligence against his employer. On January 2, 1998, plaintiffs-appellants requested and were given an extension of time to respond until February 2, 1998. On January 23, 1998, plaintiffs-appellants filed a motion for leave to file an amended complaint. Moreover, on January 29, 1998, plaintiffs-appellants filed a motion for an extension of time in which to respond to Hukill's motion for summary judgment. Both of these motions were denied and the trial court granted Hukill's unopposed motion for summary judgment on February 9, 1998. Plaintiffs-appellants timely appeal. Since plaintiffs-appellants first and second assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR LEAVE TO AMEND THEIR COMPLAINT. II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FOR EXTENSION OF TIME TO REPLY TO APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiffs-appellants argue the trial court abused its discretion when it denied their motion for leave to amend their -5- complaint since an amendment pursuant to Civ.R. 15(A) should be freely given when it is possible for plaintiffs-appellants to state a claim upon which relief can be given. Moreover, plaintiffs- appellants argue the motion for leave to amend was filed within the time to respond to defendant-appellee's motion for summary judgment. Finally, plaintiffs-appellants argue the trial court's refusal is in stark contrast to the court's handling of other motions to amend which were filed by the other parties. In their second assignment of error, plaintiffs-appellants argue that it was explained to the court that if their motion to amend was granted, it would not need to respond to the motion for summary judgment as it would be moot. Moreover, the request for an extension of time was for only five days. Under these facts and circumstances, the trial court's simultaneous denial of both motions without explanation constitutes an abuse of discretion. We review the decision of the trial court to deny both plaintiffs-appellants' motions under an abuse of discretion standard. See Csejpes v. Cleveland Catholic Diocese (1996), 109 Ohio App.3d 533; Fulwilerv. Schneider (1995), 104 Ohio App.3d 398. The term abuse of discretion connotes more than merely an error of law or judgment; it implies that the court's attitude is unreasonable,arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As the Ohio State Supreme Court has noted: An abuse of discretion involves far more than the difference in *** opinion. The term discretion itself involves the idea of choice, of an exercise of will, of a determination made between competing consideration. In -6- order to have an abuse in reaching such determination, the result must be so grossly violative of fact and logic that it evinces not the exercise of will but the perversity of will, not the exercise of judgment, but the defiance thereof, not the exercise of reason but rather of passion or bias. Huffman v. Hair Surgeon (1985), 19 Ohio St.3d 83, 87, quoting, State v. Jenkins (1984), 15 Ohio St.3d 164, 222. In this case, the trial court ordered all dispositive motions filed by December 5, 1997. The parties were given until January 5, 1998 to respond. Trial was set for February 18, 1998. Again, defendant-appellee's motion for summary judgment was filed December 5, 1997. On January 2, 1998, plaintiffs-appellants requested and were given an extension of time to respond to said motion to February 2, 1998. On January 23, 1998, plaintiffs-appellants filed a motion for leave to file an amended complaint. Moreover, on January 29, 1998, plaintiffs-appellants filed a motion for an extension of time in which to respond to Hukill's motion for summary judgment. Since trial was set to begin on February 18, 1998, plaintiffs- appellants' attempt to amend their complaint (on January 23, 1998) and include a new cause of action could be viewed as prejudicial towards defendant-appellee. See Karat Gold Imports v. United Parcel Service(1989), 62 Ohio App.3d 604. Moreover, plaintiffs-appellants were already given one extension of time in which to respond to summary judgment until February 2, 1998. We recognize that plaintiffs-appellants filed their motion for leave to amend and motion for extension of time in which to respond prior to the February 2, 1998 deadline. However, it is not disputed that -7- plaintiffs-appellants failed to file a brief in opposition to the motion for summary judgment by February 2, 1998. While we might not agree with the trial court's course of action, we cannot hold as a rule of law that it rises to the level of an abuse of discretion. Plaintiffs-appellants' first and second assignments of error are not well taken. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, A.J. KENNETH A. ROCCO, JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .