Tchankpa v. Ascena Retail Group. Inc. , 2020 Ohio 3291 ( 2020 )

[Cite as Tchankpa v. Ascena Retail Group. Inc., 2020-Ohio-3291.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Kassi Tchankpa, :
Plaintiff-Appellant, : No. 19AP-760
(C.P.C. No. 15CV-10472)
v. :
(ACCELERATED CALENDAR)
Ascena Retail Group, Inc., :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 11, 2020
On brief: DeWitt Law, LLC, and Michael W. DeWitt, for
appellant.
On brief: Littler Mendelson, P.C., Brooke E. Niedecken, and
Benjamin W. Mounts, for appellee.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Kassi Tchankpa, plaintiff-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas, in which the court granted the motion for
summary judgment filed by Ascena Retail Group, Inc., defendant-appellee.
{¶ 2} Appellee is a retailer of apparel, shoes, and accessories. In June 2011,
appellant began working for appellee's subsidiary as a database administrator. On
December 21, 2012, appellant was injured lifting two laptop computers while working for
appellee. In January 2013, appellant started receiving medical treatment which was
initially paid through appellee's health insurance plan.
No. 19AP-760 2
{¶ 3} On May 9, 2013, appellant reported his injury to appellee's human
resources department and the department advised appellant to file a workers'
compensation claim if he believed he received a work-related injury, instead of billing his
medical costs through the health insurance plan. Appellee's health insurance plan
eventually stopped providing coverage for appellant's medical bills after being informed
the injury was part of a potential workers' compensation claim.
{¶ 4} On September 30, 2013, appellant requested reimbursement of his medical
expenses through Ohio Bureau of Workers' Compensation. On October 4, 2013, appellee,
who is a self-insurer for purposes of workers' compensation, denied the claim, citing on
the C-9 request form: "Denied. [C]laim requires further investigation." On October 11,
2013, appellee denied appellant's workers' compensation claim in the FROI-1, First
Report of an Injury, Occupational Disease or Death form ("FROI-1"), checking the box
that indicated "Rejection—The employer rejects the validity of this claim for the reason(s)
listed below." Appellee indicated below: "Delay in reporting; under investigation." On
July 3, 2014, a district hearing officer ("DHO") for the Industrial Commission of Ohio
("commission") allowed appellant's workers' compensation claim for temporary total
disability ("TTD"). On July 15, 2014, appellee filed an appeal of the DHO's order. On
September 18, 2014, a staff hearing officer ("SHO") denied TTD. The commission upheld
the denial of appellant's claim on October 7, 2014. Appellant appealed the commission's
decision but voluntarily dismissed the appeal on June 21, 2016.
{¶ 5} On November 23, 2015, appellant, pro se, filed the present action against
appellee, alleging a claim for intentional tort for bodily injury, pursuant to R.C. 2745.01,
based on appellee's refusal to pay his medical bills and withholding workers'
compensation benefits. On December 18, 2015, appellee filed a motion to dismiss
pursuant to Civ.R. 12(B)(6). On February 19, 2016, the trial court granted appellee's
motion to dismiss. Appellant appealed. In Tchankpa v. Ascena Retail Group., Inc., 10th
Dist. No. 16AP-190, 2016-Ohio-8354, this court reversed the trial court's decision finding
the facts appellant alleged in his complaint were sufficient to support a claim that appellee
acted in bad faith in terminating his medical coverage, knowing it would cause physical
and psychological harm. Thus, we concluded appellant stated a claim for intentional tort
for bodily injury pursuant to R.C. 2745.01.
No. 19AP-760 3
{¶ 6} On remand, the trial court stayed the matter on April 18, 2017 pending the
outcome of appellant's action against appellee in the Southern District of Ohio. On
August 7, 2018, the federal court declined to address appellant's intentional tort claim. On
January 18, 2019, appellant filed a motion to lift the stay which the trial court granted on
March 4, 2019. On June 10, 2019, appellee filed a motion for summary judgment claiming
appellant's action was barred by the two-year statute of limitations in R.C. 2305.10.
{¶ 7} On October 30, 2019, the trial court granted appellee's motion for summary
judgment on the basis that appellant's claim for intentional tort for bodily injury was
barred by the two-year statute of limitations. Appellant appeals the judgment of the trial
court, asserting the following three assignments of error:
[I.] The Common Pleas Court committed reversible error
when it granted Summary Judgment in favor of Ascena on
Tchankpa's viable intentional tort claims based upon the two-
year statute of limitations.
[II.] The Common Pleas Court committed reversible error
when it granted summary judgment in favor of Ascena by
failing to address Mr. Tchankpa's viable bad faith claims
governed by the four-year statute of limitations.
[III.] The Common Pleas Court committed reversible error
when it granted summary judgment in favor of Ascena on
Tchankpa's common-law intentional tort and bad faith claims
filed within the two-year and four-year statutes of limitations.
{¶ 8} All three of appellant's assignments of error alleged the trial court erred
when it granted summary judgment. Summary judgment is appropriate when the moving
party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but
one conclusion when viewing the evidence most strongly in favor of the non-moving
party, and that conclusion is adverse to the non-moving party. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d
158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for
summary judgment is de novo. Hudson at ¶ 29. This means an appellate court conducts
an independent review, without deference to the trial court's determination. Zurz v. 770
No. 19AP-760 4
W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 9} When seeking summary judgment on the ground the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.{¶ 10} Appellant argues in his first assignment of error the trial court erred when it
granted summary judgment to appellee on his intentional tort claims based on the two-
year statute of limitations. The Supreme Court of Ohio has found that the statute of
limitations for claims under R.C. 2745.01 is two years pursuant to R.C. 2305.10. See Funk
v. Rent-All Mart, Inc., 91 Ohio St.3d 78, 81 (2001). R.C. 2305.10 governs the statute of
limitations for personal injuries and provides in relevant part that "an action for bodily
injury * * * shall be brought within two years after the cause of action accrues. [A] cause
of action accrues under this division when the injury or loss to person * * * occurs." R.C.
2305.10(A). It is a long-established rule that a "[s]tatute of limitations commences to run
so soon as the injurious act complained of is perpetrated, although the actual injury is
subsequent." Kerns v. Schoonmaker, 4 Ohio 331 (1831), syllabus.
{¶ 11} One exception to the above rule, however, is the discovery rule. Under that
rule "[w]hen an injury does not manifest itself immediately, the cause of action does not
arise until the plaintiff knows or by the exercise of reasonable diligence should have
known, that he [or she] had been injured by the conduct of the defendant, for purposes of
the statute of limitations." O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 87 (1983),
No. 19AP-760 5
paragraph two of the syllabus. The Supreme Court has held that the exceptions to the
statute of limitations can apply where an " 'unconscionable result' " would be had if a
plaintiff's right to recovery was barred by the statute of limitations before he or she was
even aware of his or her injuries. LGR Realty, Inc. v. Frank & London Ins. Agency, 152
Ohio St.3d 517, 2018-Ohio-334, ¶ 26, quoting Wyler v. Tripi, 25 Ohio St.2d 164, 168
(1971). The discovery rule entails a two-pronged test—i.e., actual knowledge not just that
one has been injured but also that the injury was caused by the conduct of the defendant.
O'Stricker at 90.
{¶ 12} In the present case, the trial court, in its decision granting appellee's motion
for summary judgment, addressed the statute of limitations in two contexts. With regard
to any cause of action based on the actual injury sustained in late December 2012, the trial
court found the statute of limitations for an intentional tort by an employer would have
expired in December 2014, nearly one year before appellant filed his case in November
2015. With regard to a cause of action based on appellee's denial of appellant's benefits,
the trial court found the statute of limitations for an intentional tort by an employer
would have expired on October 11, 2015, because the cause of action accrued on
October 11, 2013, the day appellee issued an affirmative rejection of appellant's workers'
compensation claim, and any actions or denials after that date occurred as a result of the
appellate process.
{¶ 13} In his present appeal, appellant sets forth the following arguments as to why
his claim was not barred by the two-year statute of limitations: (1) the discovery rule
applies here, and appellant did not discover that appellee had denied payments for his
injury and disability medical treatment claim until November 2013, not October 11, 2013,
as the trial court determined, (2) appellee waived the statute of limitations defense as an
affirmative defense because, in its third answer to appellant's February 11, 2019 amended
complaint, it only generally asserted that appellant's claims were barred by the applicable
statute of limitations, and (3) appellee waived the statute of limitations defense as an
affirmative defense because, in its third answer to appellant's February 11, 2019 amended
complaint, appellee only reserved the right to assert the statute of limitations defense and
did not actually assert the defense.
No. 19AP-760 6
{¶ 14} However, in his response in opposition to appellee's motion for summary
judgment in the trial court, appellant failed to raise any of the above arguments he now
asserts. The entirety of appellant's response to the statute of limitations argument was the
following:
It is undisputed that Tchankpa's claims fall under the two-
year statute of limitations contained in R.C. 2745.01. The only
logical time Tchankpa's claims could have arisen is when the
claim was denied. Ascena picks two arbitrary dates as the
date the claim was denied, May 9, 2013, which was the date
Tchankpa first filed the workers' compensation claim after his
May 3rd meeting with Null, and October 11, 2013, the date
that payments were suspended allegedly for lack of medical
records. As noted above, the OIC's letter was dated
November 9, 2013 and gave Ascena 14 days to appeal so the
first date that could be deemed to be a denial of the claim was
the next day, November 24th. As such, November 23, 2015
was within two years. However, Ascena continued to
investigate the claim and request information from
Tchankpa's doctors well into the spring of 2014. If the claim
had been denied, there was no reason to continue the
investigation. As such, November 23, 2015 was well within the
two-year statute of limitation.
(Emphasis sic.)
{¶ 15} Thus, it is apparent appellant never raised his current arguments regarding
the discovery rule and waiver of the statute of limitations defense at the trial court level.
Interestingly, appellant does not specifically raise the above-quoted argument in the
current appeal although it was the sole argument he relied on at the trial court level.
{¶ 16} Insofar as appellant seeks to raise for the first time on appeal the discovery
rule and waiver of the statute of limitations defense, appellant has waived those
arguments. Ordinarily, the doctrine of waiver precludes a litigant from raising an issue for
the first time on appeal. S & P Lebos, Inc. v. Ohio Liquor Control Comm., 163 Ohio
App.3d 827, 2005-Ohio-5424, ¶ 12 (10th Dist.). The waiver rule is tempered somewhat by
the doctrine of plain error. Id. However, in a civil case, the doctrine of plain error will be
applied only in the " 'extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
No. 19AP-760 7
the underlying judicial process itself.' " Id., quoting Goldfuss v. Davidson, 79 Ohio St.3d
116, 122-23 (1997). Here, we find no plain error in the trial court's determination, and
appellant directs us to none.
{¶ 17} To the extent that we can strain appellant's general argument on appeal—
that appellee's October 11, 2013 denial of his claim was not a final, definite, confirmatory,
or affirmative denial but was only conditional because it indicated that the "[C]laim
requires further investigation"—to square with appellant's general contention in the trial
court—that the October 11, 2013 document was not a final denial but only "suspended"
payments due to a lack of medical records—we find no error in the trial court's
determination that the October 11, 2013 document was an affirmative denial that
triggered the running of the statute of limitations. Initially, appellant does not accurately
quote the October 11, 2013 document. It was in the October 4, 2013 C-9 request form that
appellee indicated: "Denied. [C]laim requires further investigation." In the October 11,
2013 FROI-1, appellee checked the box indicating "Rejection—The employer rejects the
validity of this claim for the reason(s) listed below." Below that box, appellee indicated:
"Delay in reporting; under investigation." We agree with the trial court that the denial in
the October 11, 2013 FROI-1 is clear. Appellee explicitly rejected appellant's claim and
stated the reason. Although further proceedings took place after the October 11, 2013
rejection, we agree with the trial court that those proceedings were all appeals of the
original October 11, 2013 denial. Furthermore, the "under investigation" language
included in the October 11, 2013 denial does not in any way diminish the definite and
unreserved rejection language. The rejection clearly informed appellant he was being
denied workers' compensation benefits and commenced the running of the statute of
limitations for any claim based on such denial. For these reasons, we find the trial court
did not commit any error, plain or otherwise, when it granted summary judgment in favor
of appellee on appellant's intentional tort claim based on the two-year statute of
limitations. Appellant's first assignment of error is overruled.
{¶ 18} Appellant argues in his second assignment of error the trial court erred
when it granted summary judgment to appellee by failing to address his bad-faith claim
which he now contends is governed by the four-year statute of limitations found in R.C.
2305.09(D). Appellant claims he raised a bad-faith tort claim based on appellee's failure
No. 19AP-760 8
to process and pay for his injury and disability medical treatment bills as requested after it
unilaterally terminated and transferred his injury and disability medical treatment
coverage from the health insurance carrier, Aetna, to appellee's self-insured workers'
compensation program, thereby causing him to suffer more physical and psychological
harm. Appellant asserts that, in granting summary judgment to appellee, the trial court
disregarded the viability of his bad-faith tort claim, as if his intentional tort claim and
bad-faith claim were the same.
{¶ 19} We find the trial court did not err. We conclude appellant waived his
argument that his bad-faith claim against appellee was subject to a four-year statute of
limitations and invited any error in the trial court's determination that appellant's claims
were subject to a two-year statute of limitations. However, before we address waiver and
invited error, we note that it is debatable whether appellant's "bad-faith" claim, in the
context of this case, is actually an intentional tort claim under R.C. 2745.01 subject to a
two-year statute of limitations. In the majority decision in Tchankpa, although we
concluded that "the complaint filed by Tchankpa clearly alleges that Ascena terminated
Tchankpa's medical coverage under conditions which indicate bad faith and which
indicate knowledge that the termination of the coverage would do physical harm to
Tchankpa,"throughout the decision we only referred to an intentional tort claim under
R.C. 2745.01. Id. at ¶ 17. Nowhere did we say appellant had alleged a common-law bad-
faith claim in his complaint. Indeed, in appellant's complaint, he alleges that his claims
are all governed by R.C. 2745.01. Also, in his December 29, 2015 and January 15, 2016
responses to appellee's motion to dismiss, appellant contends all of his claims are
governed by R.C. 2745.01. In addition, as noted in the dissent in Tchankpa, in White v.
Mt. Carmel Med. Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446 (10th Dist.), this court
addressed the arguments relating to bad faith against a self-insured employer in
administering workers' compensation claims under the asserted intentional tort claim.
See Tchankpa at ¶ 22-23.
{¶ 20} Regardless, whether appellant's bad-faith claim was separate from his
intentional tort claim is a question we need not answer. We can find nowhere in the trial
record where appellant asserted any of his claims were subject to a four-year statute of
limitations. Appellant clearly does not raise this argument in his response in opposition to
No. 19AP-760 9
appellee's motion for summary judgment when he had the opportunity and obligation to
address the issue. The failure to raise an argument in response to a motion for summary
judgment waives the argument for purposes of appellate appeal. Lacey v. Ohio Aud. of
State, 10th Dist. No. 19AP-110, 2019-Ohio-4266, ¶ 13, fn. 1, citing Betz v. Penske Truck
Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 34 (failure to raise
argument in response to motion for summary judgment waives argument on appeal);
Shutway v. Chesapeake Exploration, LLC, 7th Dist. No. 18 BE 0030, 2019-Ohio-1233,
¶ 57, citing Covert v. Koontz, 7th Dist. No. 13 MO 8, 2015-Ohio-228, ¶ 16 (because filings
in response to motion for summary judgment did not raise the argument, it is waived);
Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-709, 2013-
Ohio-2742, ¶ 13 (a party may not change its theory of the case and present new arguments
for the first time on appeal). While it is true that "[a]ppellate courts review summary
judgment decisions de novo[,] * * * the parties are not given a second chance to raise
arguments that they should have raised below." Whitson v. One Stop Rental Tool &
Party, 12th Dist. No. CA2016-03-004, 2017-Ohio-418, ¶ 18. Therefore, because appellant
failed to raise the argument that his "bad-faith" claims were subject to a four-year statute
of limitations, including his response in opposition to appellee's motion for summary
judgment, we find appellant waived such argument for purposes of appeal.
{¶ 21} Furthermore, to the extent that his "bad-faith" claims might be properly
subject to a four-year statute of limitations, appellant has invited any error in the trial
court's determination that his claims were subject to a two-year statute of limitations.
Appellant specifically alleged in his complaint that his claims were subject to a two-year
statute of limitations. Importantly, in his July 8, 2019 response in opposition to
appellee's motion for summary judgment, appellant conceded that his claims were subject
to a two-year statute of limitations, and his entire argument was based on the premise
that a two-year statute of limitations applied. In his response, appellant stated "[i]t is
undisputed that Tchankpa's claims fall under the two-year statute of limitations contained
in R.C. 2745.01." In its July 29, 2019 reply in support of its motion for summary
judgment, appellee pointed out appellant's concession to the trial court: "Plaintiff
concedes that his intentional-tort claims are subject to a two[-]year statute of limitations
under O.R.C. § [2745.01]. See Pl.'s Memo. In Opp., 12-13."
No. 19AP-760 10
{¶ 22} Under the invited-error doctrine, "[a] party will not be permitted to take
advantage of an error which he himself invited or induced." Hal Artz Lincoln-Mercury,
Inc. v. Ford Motor Co., 28 Ohio St.3d 20 (1986). See also De Bourbon v. State Med. Bd.
of Ohio, 10th Dist. No. 17AP-769, 2018-Ohio-4682, ¶ 22 (finding that under the invited-
error doctrine, appellant is not entitled to take advantage of an error that he induced the
trial court to make). A party that makes an admission in a memorandum contra summary
judgment that is consistent with the trial court's determination in granting summary
judgment is precluded by the invited-error doctrine from arguing on appeal that the trial
court committed error in making such determination. Thomas v. Shaevitz, 10th Dist. No.
98AP-1370 (Sept. 16, 1999). In the present case, appellant invited any error in the trial
court's determination that the two-year statute of limitations applied to all of appellant's
claims. For the foregoing reasons, we overrule appellant's second assignment of error.
{¶ 23} Appellant argues in his third assignment of error the trial court erred when
it granted summary judgment to appellee on his common-law intentional tort and bad-
faith claims filed within the two-year and four-year statutes of limitations. In this
assignment of error, appellant claims the trial court erred when it found that, because the
commission terminated his TTD payments in the commission's final order on October 7,
2014, appellee was not required to pay for any TTD compensation prior to the
commission's October 7, 2014 final order. Appellant claims that because appellee waived
the right to appeal the DHO's July 3, 2014 order granting him TTD via a July 30, 2014
waiver, the July 3, 2014 order was a final determination until reversed by the commission
on October 7, 2014 and he was entitled to continuing TTD payments throughout that
period, pursuant to R.C. 4123.511(I), 4123.56(A), and Ohio Adm.Code 4121-3-32(B).
Appellant then contends that his common-law intentional tort and bad-faith claims began
to run on the dates appellee terminated his TTD payments, which were on August 18,
September 3, and 11, 2014.
{¶ 24} Initially, we make three observations. First, our review of the trial court's
decision fails to reveal that the trial court made a determination on any specific claim
regarding non-payment of TTD benefits prior to October 7, 2014 and any associated
application of such a claim to the statute of limitations, as raised here by appellant on
appeal. Second, the SHO specifically indicated in its September 18, 2014 order that it was
No. 19AP-760 11
hearing the matter upon appellee's appeal of the DHO's order, and we find no evidence in
the record that appellant ever raised an objection as to the alleged waiver of appellee's
appeal. Third, the July 30, 2014 "waiver" appellant refers to is an online request by
appellee to continue the SHO hearing on its appeal of the DHO's order. This request
indicates all parties agreed to the continuance and to waive the timeframes contained in
R.C. 4123.511 and any other applicable provisions in the Ohio Revised Code. Appellant
fails to explain how this agreement to continue the SHO hearing constituted a waiver by
appellee of its appeal to the SHO. Thus, the main underlying bases of appellant's current
argument are unfounded.
{¶ 25} Regardless, appellant has waived this argument. Appellant did not allege
any intentional tort claim in his complaint with regard to non-payment of TTD benefits
prior to the October 7, 2014 order. He did not raise this argument in his December 29,
2015 response to appellee's motion to dismiss. We did not mention this claim as a viable
claim in our decision in Tchankpa. It is not until appellant's July 8, 2019 response in
opposition to the motion for summary judgment that appellant first raises this claim.
Raising such a claim for the first time in his response to appellee's motion for summary
judgment is insufficient to thwart a motion for summary judgment.
A plaintiff cannot fulfill her burden under Civ.R. 56 merely by
asserting new claims in response to a properly supported
motion for summary judgment. See White v. Mt. Carmel Med.
Ctr., 150 Ohio App.3d 316, 2002-Ohio-6446, at ¶ 30, 780
N.E.2d 1054 (concluding that, while, plaintiff is not bound to
a particular theory of her case, it is inequitable to permit a
plaintiff to assert new claims in response to a motion for
summary judgment without amending the complaint.). See,
also, Scassa v. Dye, 7th Dist. No. 02CA0779, 2003-Ohio-
3480, at ¶ 25-30. This tactic, if successful, would permit every
nonmoving party-plaintiff to avoid summary judgment by
simply asserting different claims based on different
substantive law with different material facts.
Bradley v. Sprenger Ents., 9th Dist. No. 07CA009238, 2008-Ohio-1988, ¶ 8. See also
Greene v. Whiteside, 181 Ohio App.3d 253, 2009-Ohio-741 (1st Dist.) (a plaintiff cannot
fulfill his burden to show a triable issue of fact by asserting new claims or theories in
response to a properly supported motion for summary judgment); Aronhalt v. Castle,
10th Dist. No. 12AP-196, 2012-Ohio-5666, ¶ 26 (a plaintiff cannot fulfill its Civ.R. 56
No. 19AP-760 12
burden by merely raising new grounds for recovery in response to a properly supported
motion for summary judgment), citing Morris v. Dobbins Nursing Home, 12th Dist. No.
CA2010-12-102, 2011-Ohio-3014, ¶ 29; Bradley; Stadium Lincoln-Mercury, Inc. v.
Heritage Transport, 160 Ohio App.3d 128, 2005-Ohio-1328, ¶ 35 (7th Dist.); and White,
2002-Ohio-6446 at ¶ 30. Holding otherwise would deprive the defendant of fair notice
and an opportunity to respond to the plaintiff's claims. Aronhalt at ¶ 26, citing Karsnak
v. Chess Fin. Corp., 8th Dist. No. 97312, 2012-Ohio-1359, ¶ 48; Stadium Lincoln-
Mercury, Inc. at ¶ 35; and White, 2002-Ohio-6446 at ¶ 30. A plaintiff must respond to a
motion for summary judgment based on the claims already presented rather than
surprise the defendant and court with new theories of recovery. Aronhalt at ¶ 26, citing
Stadium Lincoln-Mercury, Inc. at ¶ 35.
{¶ 26} For these reasons, in the present case, appellant waived this issue by failing
to allege it in his complaint and by first asserting it in his response in opposition to
appellee's motion for summary judgment. Therefore, we overrule appellant's third
assignment of error.
{¶ 27} Accordingly, appellant's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and DORRIAN, J., concur.
____________________