Lee v. Omni Netherland Plaza Hotel, Unpublished Decision (2-23-2000) ( 2000 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY.

This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).

Plaintiff-appellant Cindy Lee appeals the summary judgment entered by the trial court in favor of defendant-appellee Omni Netherland Plaza Hotel. In support of her assignment of error, Lee argues that Omni engaged in discrimination and battery.

This argument is not properly before us on appeal because, despite some discussion of discrimination and battery in Lee's responsive memorandum to Omni's motion for summary judgment, such claims were not raised in the pleadings. Further, Lee did not seek to amend her complaint to advance these claims, and the record does not demonstrate that they were before the trial court by express or implied consent of Omni. See Automanage, Inc. v.Beechmont Toyota, Inc. (Sept. 2, 1992), Hamilton App. No. C-910528, unreported.

Therefore, the judgment of the trial court is affirmed.

Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

HILDEBRANDT, P.J., SUNDERMANN and WINKLER, JJ.

To the Clerk:

Enter upon the Journal of the Court on February 23, 2000 per order of the Court _______________________________.

_______________________________________________ Presiding Judge