Sourial v. Nationwide Mut. Ins. Co. ( 2018 )

[Cite as Sourial v. Nationwide Mut. Ins. Co., 2018-Ohio-2528.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Samir Sourial, :
Plaintiff-Appellant, :
No. 17AP-731
v. : (C.P.C. No. 16CVH-6024)
Nationwide Mutual Insurance Company, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on June 28, 2018
On brief: Caryn Groedel & Associates, Co., LPA, Matthew S.
Grimsley, and Caryn M. Groedel, for appellant.
Argued: Matthew S. Grimsley.
On brief: Bricker & Eckler LLP, Quintin F. Lindsmith, and
Ali I. Haque, for appellee. Argued: Ali I. Haque.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Samir Sourial, appeals from a judgment of the Franklin
County Court of Common Pleas in favor of defendant-appellee, Nationwide Mutual
Insurance Company ("Nationwide"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In June 2008, Sourial was employed as an insurance agent for AAA
Insurance when he was approached by Nationwide with an opportunity to join one of its
agency programs. Sourial met with Nationwide Sales Manager Brad Bohn who encouraged
Sourial to participate in Nationwide's Agency Capital Builder ("ACB") program, where he
would receive training necessary for him to successfully operate a Nationwide Insurance
No. 17AP-731 2
Agency. According to Sourial, Bohn told him that when he successfully completed the ACB
program, Nationwide would sell him an established book of business which would generate
approximately $350,000 per year in revenue. Sourial left his position with AAA to join
Nationwide's ACB program.
{¶ 3} Sourial consistently met the ACB program production requirements as
measured by Direct Written Premium ("DWP"). Sourial eventually became one of the top
producing employees in the ACB program for the region and the first to graduate the
program. On his graduation, Nationwide paid Sourial compensation in the amount of
$75,000. Sourial intended to purchase a book of business and become a member of
Nationwide's Replacement Agency Executive ("RAE") program. Sourial claims he
repeatedly inquired of Bohn and his successor sales manager, Diana Graovac, about an
available book of business to purchase. According to Sourial, Bohn falsely represented to
him that no existing book of business was available for purchase and that Sourial would
have to join the Account Executive ("AE") program, rather than the RAE program.
{¶ 4} Sourial claims various Nationwide vice presidents and sales managers
induced him to join the AE program by making false representations regarding his potential
for success. In Sourial's affidavit filed in connection with his Civ.R. 56(F) motion, Sourial
claims Nationwide management falsely represented the following:
[M]isrepresentations about the amount of money I would earn,
that my pro forma and business plan were legitimate and
accurate representations of what Nationwide expected my
agency to earn, that Agency Executive Program agents easily
meet their production requirements and complete the
Program, that I would easily meet my Agency Executive
Program production requirements, that if I acquired an
existing book of business Nationwide would transfer me into
the Replacement Agency Executive Program, that I would own
my book of business and the books of business I acquired, and
that if I ever left Nationwide, it would offer to purchase my
book of business and the books of business I acquired.
(Aug. 30, 2017 Sourial Aff. at ¶ 7.)
{¶ 5} Sourial executed the AE agreement in June 2010. Prior to signing the
agreement, Sourial had spent several months reviewing the draft agreement as well as
developing a pro forma business plan. The AE agreement required Sourial to meet a
No. 17AP-731 3
minimum production plan ("MPP"), as measured by DWP.1 The AE agreement also
contained the following provision:
It is agreed that no action, suit, proceeding at law or in equity
shall be brought under this contract unless it is commenced
and process is served within three years after the cause of
action for which suit is brought.
(AE Agreement at ¶ 35.)
{¶ 6} In addition to the contractual limitations period, the AE agreement contained
an integration clause as follows: "The terms and conditions contained in this Agreement
supersede all prior oral or written understandings between Agent and Nationwide and
constitute the entire agreement between them concerning the subject matter of this
Agreement." (AE Agreement at ¶ 38.)
{¶ 7} On April 5, 2011, Sourial executed an amended AE agreement containing the
following language: "By signing this Amendment, [Sourial] * * * waives all claims that
he/she has or may have against Nationwide * * * as of the date of his/her execution of this
Amendment." (Amendment to AE Agreement at 1.) The stated consideration for the
release was an enhanced bonus schedule as set forth in the amendment.
{¶ 8} On May 3, 2011, Sourial received a loan from Nationwide Bank, the proceeds
of which Sourial used to purchase an existing book of business. According to Sourial,
Graovac subsequently informed him the book of business he purchased was too small to
allow him to transition into the RAE program, and the renewal DWP from the newly
purchased book of business could not be counted towards his MPP for purposes of the AE
program. Sourial claims he was falsely informed that there was not another existing book
of business available for purchase.
{¶ 9} In May 2012, Nationwide put Sourial on the production shortfall list because
he had not met his MPP. According to Sourial, in the subsequent months, Nationwide
transferred some of his existing book of business to another agent, which caused Sourial to
fall further behind his MPP. Realizing his contract was subject to cancellation, on
December 3, 2012, Sourial resigned his position with Nationwide. There is no dispute
Nationwide subsequently made an early cancellation payment to Sourial of more than
1 The number of policies in force and life sales were also considered.
No. 17AP-731 4
$130,000. According to Sourial, however, Nationwide took over his existing book of
business worth approximately $1,300,000.
{¶ 10} On June 24, 2016, Sourial filed a complaint alleging the following claims for
relief against Nationwide: fraudulent inducement in relation to the Career Builder
Contract; fraudulent inducement in relation to the Executive Contract; intentional
misrepresentation in relation to the Career Builder Contract and the Executive Contract;
breach of the Career Builder Contract; breach of the Executive Contract; breach of the
implied covenant of good faith and fair dealing; promissory estoppel; unjust enrichment;
national origin based discrimination; and national origin based harassment.
{¶ 11} On January 10, 2017, the trial court granted Nationwide's motion for
judgment on the pleadings as to the claims for discrimination based on national origin and
harassment. In so doing, the trial court noted in its decision that "in relation to all of
[Sourial's] claims, except that for breach of the Executive Contract, Indiana substantive law
shall apply. As to procedural law, Ohio law still applies to this matter." (Jan. 10, 2017
Decision at 3.) No appeal was taken from the trial court decision granting Nationwide's
motion for judgment on the pleadings.
{¶ 12} On June 19, 2017, Sourial filed a motion to compel discovery wherein Sourial
sought, among other things, production of unredacted copies of the following documents:
New Agent Program Scorecards; Production Shortfall Reports; Program Agent
Management Reports; and Program Agent Production Status Reports. Sourial claimed the
information in these documents provided evidentiary support for his fraud claims. On
July 19, 2017, Sourial filed a motion to vacate the case schedule or, in the alternative,
enlarge the case schedule 60 days from the date the trial court ruled on Sourial's motion to
compel.
{¶ 13} On July 28, 2017, Nationwide filed a motion for summary judgment as to
Sourial's remaining claims. In support of the motion, Nationwide filed excerpts from the
transcript of Sourial's deposition along with a large number of documents identified as
exhibits therein.2 On August 4, 2017, the trial court issued a decision denying Sourial's
2 Nationwide filed the complete deposition transcript and additional exhibits on August 10, 2017.
No. 17AP-731 5
motion to compel and denying Sourial's motion to enlarge the case schedule. The trial court
decision provides, in relevant part, as follows:
There is not much to say in regards to [Sourial's] motion. In it,
[Sourial] asks the Court to issue an order compelling
[Nationwide] to supplement numerous discovery responses.
After reviewing this matter thoroughly, the Court is not
inclined to grant [Sourial's] request. First, it is clear that
[Nationwide] has rectified many of the issues that [Sourial] had
since the filing of this motion. Second, [Sourial] has stated
inadequate grounds upon which the Court would base an order
compelling discovery. Since this is so, the Court finds
[Sourial's] Motion to Compel to be not well-taken, and is
hereby DENIED.
(Emphasis sic.) (Aug. 4, 2017 Decision at 1.)
{¶ 14} On August 11, 2017, Sourial filed a combined motion to reconsider the trial
court's August 4, 2017 decision denying Sourial's motion to compel and motion for an in
camera inspection of the documents Nationwide had either refused to produce or redacted.
On that same date, Sourial filed a Civ.R. 56(F) motion for a continuance to permit further
discovery essential to Sourial's opposition to Nationwide's motion for summary judgment.
Sourial did not, however, file a response to the motion for summary judgment.
{¶ 15} On September 6, 2017, the trial court denied Sourial's Civ.R. 56(F) motion:
Once again [Sourial] asks the Court for more time due to a
discovery dispute. In this motion, however, [Sourial] asks for
more time due to a discovery dispute that [Sourial] previously
lost. The Court is not going to grant [Sourial] any additional
time to file a response to [Nationwide's] Motion for Summary
Judgment. Due to the fact that [Sourial] has not filed a
response to [Nationwide's] Motion for Summary Judgment
within the time limit prescribed by rule, the Court will rule
upon said motion sans response.
(Sept. 6, 2017 Decision at 2.)
{¶ 16} On September 14, 2017, the trial court issued a decision and judgment entry
granting Nationwide's motion for summary judgment as to Sourial's remaining claims. The
trial court determined Sourial's claims for breach of contract were barred both by the
contractual limitations period and the release. The trial court also determined the existence
of a written agreement containing an integration clause and the release barred Sourial's
No. 17AP-731 6
quasi-contract claims for promissory estoppel and unjust enrichment. Finally, the trial
court found the release barred Sourial's fraud claims. Accordingly, the trial court
determined Nationwide was entitled to a judgment on these claims as a matter of law.
{¶ 17} Sourial timely appealed to this court from the following trial court judgments:
August 4, 2017 decision and entry denying Sourial's motion to compel and motion to vacate
or enlarge the case schedule; September 6, 2017 decision and entry denying Sourial's
motion for reconsideration, request for in camera inspection, and Civ.R. 56(F) motion; and
the judgment entry issued September 14, 2017 granting Nationwide's motion for summary
judgment.
II. ASSIGNMENTS OF ERROR
{¶ 18} Sourial sets forth the following eleven assignments of error:
[1.] The trial court erred and abused its discretion by denying
Sourial's motion to compel in its entirety and effectively
condoning Nationwide's impermissible redaction campaign.
[2.] The trial court abused its discretion by failing to compel
Nationwide to un-redact and produce vital statistical data
reflecting the failure rate of its AE Program agents.
[3.] The trial court erred by failing to compel Nationwide to
Answer Interrogatory 1, which seeks the identity of person(s)
responding to Interrogatories.
[4.] The trial court abused its discretion by failing to compel
Nationwide to respond to Interrogatories seeking information
pertaining to other program agents.
[5.] The trial court abused its discretion by failing to compel
Nationwide to provide information pertaining to similar action
brought against it.
[6.] The trial court abused its discretion in failing to compel
Nationwide to respond to Interrogatories seeking information
pertaining to its decision not to offer Sourial a position in the
RAE Program.
[7.] The trial court abused its discretion by failing to compel
Nationwide to produce compensation and performance-
related documents for Sourial's Sales Managers and VPs.
No. 17AP-731 7
[8.] The trial court abused its discretion by failing to compel
Nationwide to produce discovery pertaining to books of
business that became available in Sourial's district between
January 2010 and December 2012.
[9.] The trial court erred by failing to compel Nationwide to
Answer Interrogatories 26, 27, 28, and 29.
[10.] The trial court abused its discretion in denying Sourial's
motion to vacate or enlarge the case schedule pending its ruling
on Sourial's previously filed motion to compel.
[11.] The trial court abused its discretion in denying Sourial's
Rule 56(F) motion and entering summary judgment in favor of
Nationwide without given [sic] Sourial a full and fair
opportunity to complete discovery and obtain the evidence he
needs to adequately oppose Nationwide's motion for summary
judgment.
III. STANDARD OF REVIEW
{¶ 19} Appellate review of summary judgment is de novo. Gabriel v. Ohio State
Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E.
Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. Pursuant to Civ.R.
56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law." Accordingly, summary judgment is appropriate only under the following
circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving
party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can come to but one conclusion, that
conclusion being adverse to the nonmoving party. Phillips v. Wilkinson, 10th Dist. No.
17AP-231, 2017-Ohio-8505, ¶ 11, citing Byrd at ¶ 6, citing Harless v. Willis Day
Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 20} " '[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
No. 17AP-731 8
of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d 280,
292 (1996). "Once the moving party meets its initial burden, the nonmovant must set forth
specific facts demonstrating a genuine issue for trial." Phillips at ¶ 12, citing Byrd at ¶ 7,
citing Dresher at 293.
IV. LEGAL ANALYSIS
A. Sourial's Eleventh Assignment of Error
{¶ 21} Because we find our resolution of Sourial's eleventh assignment of error is
dispositive of this appeal, we shall consider it first. As noted above, the trial court
determined Sourial's claims for breach of contract were barred both by the contractual
limitations period and the release. The trial court also determined the existence of a written
agreement containing an integration clause and the release barred Sourial's quasi-contract
claims for promissory estoppel and unjust enrichment. Finally, the trial court found the
release barred Sourial's fraud claims. In granting summary judgment for Nationwide, the
trial court determined various contractual defenses asserted by Nationwide barred all
Sourial's claims for relief as a matter of law.
{¶ 22} The parties disagree on whether Sourial's eleventh assignment of error
challenges the granting of summary judgment or merely whether the trial court erred when
it granted summary judgment for Nationwide without providing Sourial with a full and fair
opportunity to conduct discovery. We perceive the eleventh assignment of error to be both.
{¶ 23} Even though Sourial did not respond to Nationwide's motion for summary
judgment, there is no default summary judgment in Ohio. Cook v. Wilson, 165 Ohio App.3d
202, 2006-Ohio-234 (10th Dist.); Owensby v. Fresenius Dialysis Unit, 10th Dist. No.
04AP-1382, 2005-Ohio-6467, ¶ 17; Maust v. Palmer, 94 Ohio App.3d 764, 769 (10th
Dist.1994). An appellate court must proceed to analyze the merits of summary judgment,
de novo, and examine all appropriate evidentiary materials filed by the parties even when
the motion is unchallenged. Owensby at ¶ 17, citing Murphy v. Reynoldsburg, 65 Ohio
St.3d 356 (1992). Therefore, before we analyze the merits of Sourial's appeal from the
denial of his Civ.R. 56(F) motion, we must first consider whether there is evidence in the
record on which it could be reasonably concluded that Sourial's claims survive Nationwide's
contractual defenses. Accordingly, we first address each of Nationwide's defenses on which
it was granted summary judgment by the trial court.
No. 17AP-731 9
1. Breach of Contract
{¶ 24} In Count 4 of his complaint, Sourial alleges that Nationwide materially
breached the ACB agreement by failing to provide Sourial with "training and guidance,
refusing to allow [Sourial] to exercise discretion and independent judgment with respect to
his marketing and sales activity, and prohibiting him from binding certain policies."
(Compl. at ¶ 74.) Sourial's complaint alleges that Nationwide breached the provisions of
the AE agreement in the following manner: failing to make available to its agents reports,
progressive counseling, and other types of services designed to assist agents who are not
meeting the requirements of the administrative MPP; refusing to allow Sourial to exercise
discretion and independent judgment with respect to his marketing and sales activity; and
failing to provide Sourial with training, mentoring, guidance, or support. Sourial's
complaint does not identify the particular provisions of the agreements at issue.
{¶ 25} Both the ACB agreement and the AE agreement executed by the parties
contain the following provision:
Legal Action Under This Agreement. It is agreed that no
action, suit, proceeding at law or equity shall be brought under
this contract unless it is commenced and process is served
within three (3) years after the cause of action for which suit is
brought.
(Emphasis sic.) (ACB Agreement at ¶ 35; AE Agreement at ¶ 35.)
{¶ 26} In Barbee v. Nationwide Mut. Ins. Co., 130 Ohio St.3d 96, 2011-Ohio-4914,
the Supreme Court of Ohio discussed the enforceability of a contractual limitations period
as follows:
"In Ohio, the statutory limitation period for a written contract
is 15 years. R.C. 2305.06. However, the parties to a contract
may validly limit the time for bringing an action on a contract
to a period that is shorter than the general statute of limitations
for a written contract, as long as the shorter period is a
reasonable one." Sarmiento v. Grange Mut. Cas. Co., 106 Ohio
St.3d 403, 2005-Ohio-5410, 835 N.E.2d 692, ¶ 11, citing Miller
v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624,
1994-Ohio-160, 635 N.E.2d 317 and Colvin v. Globe Am. Cas.
Co. (1982), 69 Ohio St.2d 293, 295, 23 O.O.3d 281, 432 N.E.2d
167, overruled on other grounds by Miller. "A contract
provision that reduces the time provided in the statute of
No. 17AP-731 10
limitations must be in words that are clear and unambiguous
to the policyholder." Id., citing Colvin at 296.
Id. at ¶ 23.
{¶ 27} Nationwide relies on Sourial's deposition testimony in support of its
contention that Sourial's claims for breach of the ACB agreement and the AE agreement are
time-barred. Nationwide points to certain admissions made by Sourial during his
deposition testimony to the effect that any wrongful conduct by Nationwide, as alleged in
the complaint, occurred prior to February 2011. Accordingly, Nationwide argues that
Sourial's claims for breach of contract accrued more than five years before he filed his
complaint on June 24, 2016.
{¶ 28} Nationwide's argument notwithstanding, we note there is no dispute in this
case that Sourial completed the ACB program in 2010 and that Nationwide cancelled the
AE agreement in December 2012. Sourial has presented no evidence to support an issue of
fact regarding an ongoing breach by Nationwide of any provision of either the ACB
agreement or the AE agreement. Because Sourial did not file his complaint in this matter
until June 24, 2016, more than three years after Nationwide cancelled the AE agreement,
the contractual limitations period bars Sourial's breach of contract claims as a matter of
law. Accordingly, we hold the trial court did not err when it granted Nationwide's motion
for summary judgment as to the contract claims.
2. Breach of Implied Covenant of Good Faith and Fair Dealing
{¶ 29} In his complaint, Sourial alleges Nationwide violated an implied covenant of
good faith and fair dealing by "engaging in conduct that conferred an undue economic
advantage upon it that was not contemplated by both Nationwide and [Sourial] at the time
of contracting, including: repeatedly lying to [Sourial]; devising unrealistic and
unsustainable production quotas for [Sourial], which Nationwide used to deny [Sourial] his
earned commissions and bonus; manipulating [Sourial's] production reports; intentionally
interfering with [Sourial's] ability to meet production requirements; and co-opting the book
of business [Sourial] had built." (Compl. at ¶ 86.)
{¶ 30} "In addition to a contract's express terms, every contract imposes an implied
duty of good faith and fair dealing in its performance and enforcement." Lucarell v.
Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, ¶ 42, citing Restatement of
No. 17AP-731 11
the Law 2d, Contracts, Section 205 (1981). The Supreme Court has recognized that
" ' "[g]ood faith" is a compact reference to an implied undertaking not to take opportunistic
advantage in a way that could have not been contemplated at the time of drafting, and which
therefore was not resolved explicitly by the parties.' " Ed Schory & Sons, Inc. v. Soc. Natl.
Bank, 75 Ohio St.3d 433, 443 (1996), quoting Kham & Nate's Shoes No. 2, Inc. v. First Bank
of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990).
{¶ 31} " 'Good faith performance or enforcement of a contract emphasizes
faithfulness to an agreed common purpose and consistency with the justified expectations
of the other party.' " Lucarell at ¶ 43, citing Restatement, Section 205, comment a. The
Supreme Court has, however, "rejected the contention that a party breaches the implied
duty of good faith and fair dealing merely by seeking to enforce the contract or by acting as
permitted by its express terms." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44;
Wendy's Internatl., Inc. v. Saverin, 337 Fed.Appx. 471, 477 (6th Cir.2009); 23 Lord,
Williston on Contracts, Section 63:22 (4th Ed.2003). "[T]here is no violation of the implied
duty unless there is a breach of a specific obligation imposed by the contract, such as one
that permits a party to exercise discretion in performing a contractual duty or in rejecting
the other party's performance." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44; 23
Lord, Section 63:22; Restatement, Section 205, comment e. Accordingly, there is no
separate cause of action in Ohio for breach of the implied duty of good faith and fair dealing.
Lucarell at ¶ 47. See also Interstate Gas Supply, Inc. v. Calex Corp., 10th Dist. No. 04AP-
980, 2006-Ohio-638, ¶ 98.
{¶ 32} Because the contractual limitations period bars Sourial's breach of contract
claims as a matter of law and because no violation of the implied duty of good faith and fair
dealing exists absent an actionable breach of a specific obligation imposed by the contract,
we hold the trial court did not err when it determined Nationwide was entitled to judgment
as a matter of law on Sourial's claim for breach of the covenant of good faith and fair dealing.
3. Fraud in the Inducement and Fraudulent Misrepresentation
{¶ 33} Pursuant to the trial court's unappealed judgment issued October 21, 2016,
Sourial's fraud claims are governed by the substantive law of Indiana. Under Indiana law,
the elements of fraud are: (1) a material representation of past or existing facts which (2)
was false, (3) was made with knowledge or reckless ignorance of its falsity, (4) was made
No. 17AP-731 12
with the intent to deceive, (5) was rightfully relied on by the complaining party, and
(6) proximately caused the injury to the complaining party. Tru-Cal, Inc. v. Conrad Kacsik
Instrument Sys., Inc., 905 N.E.2d 40, 44-45 (Ind.Ct.App.2009). "Fraudulent inducement
occurs when a party is induced through fraudulent misrepresentation to enter into a
contract." Lightning Litho, Inc. v. Danka Industries, Inc., 776 N.E.2d 1238, 1241
(Ind.Ct.App.2002). "Under Indiana's discovery rule, a cause of action accrues, and the
statute of limitations begins to run, when the plaintiff knew or, in the exercise of ordinary
diligence, could have discovered that an injury has been sustained as a result of the tortious
act of another." Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind.Ct.App.1996).
"For a cause of action to accrue, it is not necessary that the full extent of the damage be
known or even ascertainable but only that some ascertainable damage has occurred." Id.3
{¶ 34} Under Indiana law, a fraudulent misrepresentation requires a statement of
past or existing material fact on which the party to whom it is made has a right to and does
rely, resulting in his injury. Wisconics Engineering, Inc. v. Fisher, 466 N.E.2d 745(Ind.Ct.App.1984). Accordingly, Indiana law provides that "[f]raud may not be predicated
upon promises to be performed in the future or future events, nor, as a general rule, do
expressions of opinion constitute fraud." (Internal citation omitted.) Id. at 756.
{¶ 35} In Sourial's affidavit submitted in connection with his Civ.R. 56(F) motion,
Sourial claims Nationwide management falsely represented the following:
[T]he amount of money I would earn, that my pro forma and
business plan were legitimate and accurate representations of
what Nationwide expected my agency to earn, that Agency
Executive Program agents easily meet their production
requirements and complete the Program, that I would easily
meet my Agency Executive Program production requirements,
that if I acquired an existing book of business Nationwide
would transfer me into the Replacement Agency Executive
Program, that I would own my book of business and the books
of business I acquired, and that if I ever left Nationwide, it
would offer to purchase my book of business and the books of
business I acquired.
3Similarly, under Ohio law, "[a] cause of action for fraud * * * accrues either when the fraud is discovered, or
[when] in the exercise of reasonable diligence, the fraud should have been discovered." Cundall v. U.S. Bank,
122 Ohio St.3d 188, 2009-Ohio-2523, ¶ 29, citing Investors REIT One v. Jacobs, 46 Ohio St.3d 176 (1989),
paragraph two of the syllabus.
No. 17AP-731 13
(Aug. 30, 2017 Sourial Aff. at ¶ 7.)
{¶ 36} In responding to Nationwide's interrogatory asking Sourial to "[i]dentify and
describe * * * statements made to you by Nationwide * * * that relate to your fraud in the
inducement claim," Sourial answered as follows:
 On several occasions in the Spring of 2010 at the ACB office
on Penalton Pike Road in Indianapolis, Brad Bohn
misrepresented to [Sourial] that no books of business were
available for [Sourial] to acquire;
 On several occasions in the Spring and Summer of 2010 at
the ACB office on Penalton Pike Road in Indianapolis, Brad
Bohn and Diana Graovac misrepresented to [Sourial] that
if he joined the AE Program, Nationwide would allow him
to purchase an existing book of business and transfer into
the RAE Program as soon as a book became available;
 On several occasions in the Spring of 2010 at the ACB office
on Penalton Pike Road in Indianapolis, Brad Bohn and
Dian Graovac misrepresented to [Sourial] that Nationwide
would assign a [field] trainer to train [Sourial's] agency's
staff and provide [Sourial] with the training, guidance, and
support he needed to successfully operate his agency.
 After [Sourial] joined the AE Program, Diana Graovac
repeatedly told [Sourial] during meetings at [Sourial's] AE
Program agency office in Indianapolis, that he could
transition into the RAE Program as soon as he acquired an
existing book of business;
 In approximately November 2010, Diana Graovac met with
[Sourial] at his AE Program agency office in Indianapolis
and told him that a book of business worth more than
$300,000 in total DWP had become available for him to
purchase, and that he if purchased the book and financed
the purchase through Nationwide Bank, he would
transition into the RAE Program; and
 Nationwide concealed from [Sourial] that: the majority of
its AE Program agents were failing; that Nationwide would
retain exclusive ownership of the book that [Sourial]
serviced; that after [Sourial] completed the ACB Program,
that Nationwide would change [Sourial's] production
requirements and interfere with his ability to meet those
requirements; that Nationwide would not apply the
No. 17AP-731 14
premiums and policies from the $300,000 book of business
that [Sourial] acquired towards [Sourial's] AE Program
production requirements; that Nationwide would transfer
policies out of [Sourial's] AE Program book of business; and
that Nationwide would co-opt [Sourial's] book of business
upon cancellation of the AE Program Agreement.
(Aug. 10, 2017 Pl.'s Answers to Def.'s Interrogs. at 5, 6.)
{¶ 37} It is evident from Sourial's affidavit that many of the allegedly fraudulent
representations Sourial claims Nationwide made to him are unsupported promises and
projections of future potential sales and earnings. For example, statements about the
amount of money Sourial could earn, the legitimacy and accuracy of his pro forma and
business plan, that he would easily meet his AE program production requirements, and that
Nationwide would offer to purchase his book of business and any book of business he had
acquired when he left Nationwide are predictions about the future, not "a statement of the
past or even the present."4 Bye v. Nationwide Mut. Ins. Co., 733 F.Supp.2d 805, 819
(E.D.Mich.2010). As such, they are not actionable under a fraud theory as a matter of law.
{¶ 38} Nevertheless, to the extent any of Sourial's fraud claims are actionable under
Indiana law, the amended AE agreement Sourial signed on April 5, 2011 provides "[b]y
signing this Amendment, [Sourial] waives all claims that he/she has or may have against
Nationwide * * * as of the date of his/her execution of this Amendment." (Emphasis added.)
(Amendment to AE Agreement at 1.) The language used by the parties in the amended AE
agreement is clearly broad enough to cover all the claims raised in Sourial's complaint,
including any actionable claims of fraud in the inducement and fraudulent
misrepresentation related to Sourial's initial entrance into the AE program.
{¶ 39} " '[A] release is a binding agreement between the parties under which at least
one party to the agreement relinquishes an existing claim or cause of action against another
4 Under the analogous provisions of Ohio law, the Supreme Court in Lucarell concluded as follows: "[A] party
cannot predicate fraud on predictions or projections relating to future performance; rather, we have long
recognized that to be actionable, a misrepresentation must involve a matter of fact that relates to the past or
present. See Block v. Block, 165 Ohio St. 365, 377, 135 N.E.2d 857 (1956); Armstrong v. Karshner, 47 Ohio
St. 276, 24 N.E. 897 (1890), paragraph one of the syllabus. Thus, a pro forma is 'not * * * an actionable
representation because it is a prediction about the future, not a statement about the past or even the present.'
Bye v. Nationwide Mut. Ins. Co., 733 F.Supp.2d 805, 819 (E.D.Mich.2010); see also Rorig v. Thiemann,
S.D.Ohio No. 1:05CV801, 2007 U.S. Dist. LEXIS 51653, 2007 WL 2071909, *7 (July 17, 2007) ('a proforma by
definition represents figures based on financial assumptions or projections')." Lucarell at ¶ 63.
No. 17AP-731 15
party to the agreement.' " Lucarell at ¶ 55, quoting 29 Lord, Williston on Contracts, Section
73:1, at 8 (4th Ed.2003). Because a release is a contract, we apply Ohio substantive law to
this determination pursuant to the trial court's unappealed judgment. "[W]hen a party
signs and delivers a release, that party relinquishes all claims encompassed within it and
has no other contractual or other duties to perform." Lucarell at ¶ 56. Absent fraud or
mutual mistake, broadly worded releases are generally construed to include all prior
conduct between the parties, even if the scope of such conduct or its damage is unknown to
the releasor. Thayer v. Diver, 6th Dist. No. L-07-1415, 2009-Ohio-2053, ¶ 54. A release
obtained by fraud in the factum is void ab initio, while a release obtained by fraud in the
inducement is merely voidable on proof of fraud. Haller v. Borror Corp., 50 Ohio St.3d 10,
13 (1990).
{¶ 40} A release of liability that is procured through fraud in the inducement can be
contested only after a return or tender of consideration. Id. See also Maust v. Bank One
Columbus, N.A., 83 Ohio App.3d 103, 108 (10th Dist.1992) (though former employee
produced evidence to create an issue of fact whether the release he signed as part of a
separation agreement was procured by the employer's duress, the employee's failure to
tender back the compensation he received in return for the release barred his tort claims
against the employer). Sourial does not allege he returned or tendered back to Nationwide
any bonus compensation he may have earned subsequent to signing the amended AE
agreement containing the release. Nor has Sourial alleged he returned the $130,000 early
cancellation payment made to him by Nationwide.
{¶ 41} In Denlinger v. Columbus, 10th Dist. No. 00AP-315 (Dec. 7, 2000), this court
set out the general rules of law applicable to a release of claims as follows:
A release of a cause of action for damages is ordinarily an
absolute bar to a later action on any claim encompassed within
the release. Haller v. Borror Corp. (1990), 50 Ohio St. 3d 10,
13, 552 N.E.2d 207. A release is a contract and, as such, the
overriding consideration in interpreting a release is to ascertain
the intent of the parties, which intent is presumed to reside in
the language the parties chose to employ in the agreement. See,
generally, Whitt v. Hutchison (1975), 43 Ohio St. 2d 53, 330
N.E.2d 678; Fabrizio v. Hendricks (1995), 100 Ohio App. 3d
352, 654 N.E.2d 127. A court will not resort to extrinsic
evidence in its effort to give effect to the parties' intentions
No. 17AP-731 16
unless the language in a contract is unclear or ambiguous, or
where the circumstances surrounding the agreement invest the
language of the contract with a special meaning. Kelly v.
Medical Life Ins. Co. (1987), 31 Ohio St. 3d 130, 132, 509
N.E.2d 411. Further, absent fraud or mutual mistake, broadly-
worded releases are generally construed to include all prior
conduct between the parties, even if the scope of such conduct
or its damage is unknown to the releasor. See, e.g., Task v.
National City Bank, 1994 Ohio App. LEXIS 437 (Feb. 10,
1994), Cuyahoga App. No. 65617, unreported (given broad
language of the release, it was incumbent upon releasor to
ascertain, at that time, whether he had any causes of action
against defendant and, if so, to expressly manifest his intent to
exclude those claims from the scope of the release); see,
generally, Whitt, supra.
{¶ 42} In Denlinger, the plaintiff, a former employee of Columbus Public Schools,
sought damages from the city of Columbus for breach of contract, defamation, breach of
privacy, and intentional infliction of emotional distress. The trial court dismissed the
complaint because the waiver and release provisions of the separation agreement precluded
plaintiff's claims.
{¶ 43} On Denlinger's appeal to this court, we noted the broadly worded separation
agreement provided the former employee waived all claims "arising from or in connection
with" his employment and resignation with the school. Id. This court determined because
the former employee's claims unquestionably arose from and/or were connected with his
employment and/or resignation from employment, the release and waiver provision in the
contract "clearly and unambiguously" encompassed the allegations in the complaint. Id.
Accordingly, we affirmed the trial court's dismissal of those claims.
{¶ 44} Here, as was the case in Denlinger, the language the parties used in the
amended AE agreement evidences the parties' intent to waive any claims that Sourial "has
or may have" against Nationwide arising out of Sourial's participation in the ACB and AE
programs. (Amendment to AE Agreement at 1.) In our view, the language in the instant
release is broad enough to encompass the tort claims alleged in Sourial's complaint. Thus,
the language of the release clearly and unambiguously encompasses the allegations in
Sourial's complaint that comprise Sourial's claims for fraud in the inducement and
misrepresentation.
No. 17AP-731 17
{¶ 45} Releases from liability for future tortious conduct are generally not favored
by the law and will be narrowly construed. Denlinger, citing Glaspell v. Ohio Edison Co.,
29 Ohio St.3d 44, 46-47 (1987); Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420, 424
(4th Dist.1997); see also Thompson v. Otterbein College, 10th Dist. No. 95APE08-1009
(Feb. 6, 1996). For example, it is error for a trial court to grant summary judgment to a
defendant based on a release of liability where the release did not encompass intentionally
tortious conduct that took place after plaintiff executed the release. Haller. Here, however,
Sourial acknowledged in his deposition that the fraudulent conduct alleged in Sourial's
complaint, and as set out in his answers to Nationwide's interrogatories, occurred prior to
the date Sourial signed the release in question. During Sourial's deposition, Nationwide's
counsel asked Sourial about each of the alleged fraudulent inducements or
misrepresentations identified by Sourial in his answers to Nationwide's interrogatories.
When counsel had completed his examination regarding the allegations of fraud, the
following exchange took place:
Q. Okay. Would it be safe to say that all of these
representations or concealments all occurred before 2011?
A. Yes.
(Sourial Depo., Vol. 1 at 263.)
{¶ 46} According to Sourial's deposition testimony, Nationwide committed the
alleged fraudulent conduct at issue before Sourial executed the amended AE agreement
containing the release. "Whether a release operates upon a certain liability depends entirely
upon the intention of the parties, which is to be gathered from the language of the release
and the state of facts then existing." Task v. Natl. City Bank, 8th Dist. No. 65617 (Feb. 10,
1984), citing Whitt v. Hutchison, 43 Ohio St.2d 53 (1975); Kelly v. Med. Life Ins. Co., 31
Ohio St.3d 130 (1987), paragraph one of the syllabus; Shifrin v. Forest City Ent., Inc., 64
Ohio St.3d 635 (1992). "[A]bsent fraud or mutual mistake, broadly-worded releases are
generally construed to include all prior conduct between the parties, even if the scope of
such conduct or its damage is unknown to the releasor." Denlinger, citing Task (given
broad language of the release, it was incumbent on releasor to ascertain, at that time,
No. 17AP-731 18
whether he had any causes of action against defendant and, if so, to expressly manifest his
intent to exclude those claims from the scope of the release).
{¶ 47} Though Sourial has claimed his assent to the original AE agreement was
induced by certain misrepresentations, Sourial does not contend the release is voidable due
to fraud in the procurement of the release. In his reply brief in this court, Sourial argues:
As Nationwide notes, where a party seeks to rescind a voidable
release that was procured by fraud in the inducement, he/she
must return consideration paid in exchange for the release.
Again, Nationwide misses the mark, as Sourial's underlying
defense is not that the release is void or voidable, but that the
release—even if valid—does not encompass non-accrued
claims of which he was unaware. * * * Even if Nationwide paid
legally sufficient consideration in exchange for the release
(which it did not), Sourial was not required to return it to
maintain claims that are not encompassed by the release.
(Emphasis sic.) (Sourial's Reply Brief at 1-2, fn.1.)
{¶ 48} Neither does Sourial contend that his assent to the release was the result of a
mutual mistake of fact nor that he did not realize he was signing a release of claims.
Accordingly, to the extent Sourial has alleged an actionable claim of fraudulent inducement
and/or fraudulent misrepresentation against Nationwide based on facts that existed when
he executed the release, Sourial waived any such claim as a matter of law.
4. Quasi Contract
{¶ 49} The trial court concluded that the existence of a fully integrated ACB
agreement and AE agreement barred Sourial's claims for promissory estoppel and unjust
enrichment as a matter of law. Because these claims are not contractual, we will apply
Indiana substantive law in our analysis pursuant to the trial court's unappealed prior
judgment. As a general proposition of Indiana law, "a party is excluded from presenting
extrinsic evidence of prior or contemporaneous oral agreements offered to vary or
contradict the terms of a written contract." Sees v. Bank One, Ind., N.A., 839 N.E.2d 154,
161 (Ind.2005), citing Paulson v. Centier Bank, 704 N.E.2d 482, 492 (Ind.Ct.App.1998).
Under such circumstances, "a written contract is presumed to embody the parties' entire
agreement." Sees at 161, citing Keystone Square Shopping Ctr. Co. v. Marsh
Supermarkets, Inc., 459 N.E.2d 420, 422 (Ind.Ct.App.1984). There are, however,
No. 17AP-731 19
exceptions to this rule "including a claim that a party was induced through fraudulent
representation to enter the contract." Sees at 161, citing Circle Ctr. Dev. Co. v. Y/G Indiana,
L.P., 762 N.E.2d 176, 179 (Ind.Ct.App.2002). Accordingly, to the extent Sourial's contract
or quasi-contract claims survive the contractual limitations period and integration clause,
the release would also bar those claims as a matter of law
{¶ 50} Having determined there are no genuine issues of material fact and, by virtue
of its contractual defenses, Nationwide is entitled to judgment as a matter of law, we turn
our attention to Sourial's Civ.R. 56(F) motion. Sourial contends the trial court abused its
discretion when it denied his Civ.R. 56(F) motion for a continuance. We disagree.
{¶ 51} In Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601,
¶ 100 (10th Dist.), this court discussed the burden on the moving party as follows:
Pursuant to Civ.R. 56(F), a party may seek additional time in
which to develop the facts needed to adequately oppose a
motion for summary judgment. Hatton v. Interim Health Care
of Columbus, Inc., 10th Dist. No. 06AP-828, 2007-Ohio-1418,
¶ 10. The party seeking the Civ.R. 56(F) continuance bears the
burden of establishing why the party cannot present sufficient
facts to justify its opposition to a motion for summary
judgment without a continuance. Perpetual Fed. Sav. Bank v.
TDS2 Prop. Mgt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio-
6774, ¶ 13; Waverly City School Dist. Bd. of Edn. v. Triad
Architects, Inc., 10th Dist. No. 08AP-329, 2008-Ohio-6917,
¶ 17. The moving party cannot meet this burden with mere
allegations; rather, the moving party must aver in an affidavit
a particularized factual basis that explains why further
discovery is necessary. Morantz v. Ortiz, 10th Dist. No. 07AP-
597, 2008-Ohio-1046, ¶ 22; Hahn v. Groveport, 10th Dist. No.
07AP-27, 2007-Ohio-5559, ¶ 30. Absent an abuse of discretion,
an appellate court will not reverse a trial court's ruling on a
Civ.R. 56(F) motion. State ex rel. Sawyer v. Cuyahoga Cty.
Dept. of Children and Family Servs., 110 Ohio St.3d 343,
2006-Ohio-4574, ¶ 9, 853 N.E.2d 657.
{¶ 52} The trial court, in denying Sourial's Civ.R. 56(F) motion, determined Sourial
failed to meet his burden. We agree with the trial court's analysis.
{¶ 53} In support of his Civ.R. 56(F) motion, Sourial presented the affidavit of his
trial counsel, Matthew S. Grimsley, in addition to his own affidavit. Sourial's trial counsel
averred, in relevant part, as follows:
No. 17AP-731 20
Nationwide argues that [Sourial] released most of his claims by
executing an AE Agreement Amendment on April 6, 2011.
[Sourial] intends to rebut this argument in part by establishing
that the purported release is unenforceable because it was
procured by fraud, that Nationwide concealed information
from [Sourial] pertaining to the failure of the AE Program, and
that [Sourial's] claims otherwise accrued after April 6, 2011.
(Aug. 11, 2017 Grimsley Aff. at ¶ 12.)
{¶ 54} Sourial first claims further discovery is needed to establish his fraud claims
that accrued after he signed the release. Sourial argues, under Ohio law, a party cannot
release fraud claims that have not yet accrued when the release is executed. We disagree.
As previously stated, the operative language of the release encompasses any claims Sourial
"has or may have" against Nationwide. (Amendment to AE Agreement at 1.) This court has
previously stated that "absent fraud or mutual mistake, broadly-worded releases are
generally construed to include all prior conduct between the parties, even if the scope of
such conduct or its damage is unknown to the releasor." McBroom v. Safford, 10th Dist.
No. 11AP-885, 2012-Ohio-1919, ¶ 12, citing Task (given broad language of the release, it was
incumbent on releasor to ascertain, at that time, whether he had any causes of action
against defendant and, if so, to expressly manifest his intent to exclude those claims from
the scope of the release).
{¶ 55} The cases cited by Sourial expressing an opposing view arise primarily under
federal laws, which we decline to apply in this case. See, e.g., Callen v. Pennsylvania RR.
Co., 332 U.S. 625 (1948) (case decided under the Federal Employees Liability Act, which
provides at 45 USCS 55 that "[a]ny contract, * * * the purpose or intent of which shall be to
enable any common carrier to exempt itself from any liability created by this act * * * shall
to that extent be void"); Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 267 (6th Cir.1988)
(case decided under the federal copyright laws); Anderson v. A.C. & S. Inc., 154 Ohio
App.3d 393, 2003-Ohio-4943 (8th Dist.) (case decided under the Federal Employees
Liability Act); Isroff v. Westhall Co., 9th Dist. No. 14184 (Feb. 21, 1990) (citing Forry case
decided under federal copyright laws); Babbitt v. Norfolk & W. Ry. Co., 104 F.3d 89, 92
(6th Cir.1997) (case decided under Federal Employees Liability Act). Under the
circumstance, we cannot say the trial court abused its discretion by refusing to allow Sourial
No. 17AP-731 21
to conduct additional discovery to establish his fraud claims that had not yet accrued when
he executed the release and where it is clear that such evidence would not have provided a
defense to the release. Moreover, Sourial's Civ.R. 56(F) motion fails to explain why he could
not present sufficient facts through other forms of discovery to establish when his fraud
claims accrued without the need for a continuance.
{¶ 56} Sourial next contends additional discovery is necessary to establish that the
release was procured by fraud. Sourial's affidavits in support of his Civ.R. 56(F) motion do
not, however, aver a particularized factual basis for the trial court to determine that such
evidence can be found in the Nationwide records Sourial seeks, nor does his motion explain
why he is unable to present such facts without a continuance. Moreover, as previously
noted, Sourial makes clear in his reply brief in this court that he is not endeavoring to avoid
the release on the grounds it was procured by fraud.
{¶ 57} Sourial, as the moving party, must aver in an affidavit a particularized factual
basis that explains why further discovery is necessary. Morantz v. Ortiz, 10th Dist. No.
07AP-597, 2008-Ohio-1046, ¶ 22; Hahn v. Groveport, 10th Dist. No. 07AP-27, 2007-Ohio-
5559, ¶ 30. A party moving the trial court for a Civ.R. 56(F) continuance cannot meet his
burden with mere allegations. Ryan at ¶ 100, citing Morantz at ¶ 22; Hahn at ¶ 30. Here,
Sourial seeks a continuance of the trial court's ruling on Nationwide's motion for summary
judgment in order to obtain discovery that the trial court has previously denied him. In our
view, it was incumbent on Sourial to provide the trial court with a stated, particularized
factual basis on which the trial court could conclude that further discovery would yield
evidence that would negate the impact of the release. Sourial failed to do so.
{¶ 58} "As the provisions of Civ.R. 56(F) are discretionary, we review the trial court's
determination for an abuse of discretion." Libertarian Party of Ohio v. Husted, 10th Dist.
No. 16AP-496, 2017-Ohio-7737, ¶ 76, citing Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgt.,
LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774, ¶ 11. "An abuse of discretion occurs when
a court's judgment is unreasonable, arbitrary or unconscionable." Husted at ¶ 76, citing
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In this case, Sourial failed to
properly support his Civ.R. 56(F) motion. Accordingly, we hold the trial court did not abuse
its discretion in denying Sourial's Civ.R. 56(F) motion.
No. 17AP-731 22
{¶ 59} Pursuant to Civ.R. 56(E), "[w]hen a motion for summary judgment is made
and supported as provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's response, by affidavit or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be
entered against the party." Sourial did not respond to the motion as required by Civ.R.
56(E). For the reasons stated above, we have determined Nationwide's properly supported
motion for summary judgment demonstrates the absence of a genuine issue of material fact
for trial. Accordingly, the trial court did not abuse its discretion in denying Sourial's Civ.R.
56(F) motion. Sourial's eleventh assignment of error is overruled.
B. Sourial's Assignments of Error One Through Nine
{¶ 60} In assignments of error one through nine, Sourial challenges various aspects
of the trial court's rulings on his motion to compel discovery, Sourial's motion for
reconsideration of that decision, and Sourial's motion for an in camera inspection of
documents. Having determined the trial court did not err by granting summary judgment
for Sourial because Sourial's claims against Nationwide were barred as a matter of law,
either by the contractual limitations period, the integration clause and/or the release, we
find Sourial's assignments of error one through nine do not allege reversible error because
the discovery Sourial sought to compel would not have produced evidence negating the
contractual defenses asserted by Nationwide.
{¶ 61} By way of explanation, in Sourial's first, second, fourth, and seventh
assignments of error, Sourial contends the trial court abused its discretion when it failed to
compel Nationwide to produce unredacted records documenting the performance of other
agents in the AE program and any incentives provided to Nationwide managers and vice
presidents for recruiting new agents into the program. Sourial asserts these records
provide necessary support for his fraud claims.5 Even if it were assumed the Nationwide
records sought by Sourial contained the evidence Sourial claims, the release encompassed
all claims based on facts that existed before he signed the release. Pursuant to App.R.
5As we noted in overruling Sourial's eleventh assignment of error, Sourial has failed to produce any evidence
to support a finding that a majority of agents were failing. Accordingly, his claim that Nationwide records
contain such information is pure speculation.
No. 17AP-731 23
12(A)(1)(c), a court of appeals need not decide an assignment of error if it is "made moot by
a ruling on another assignment of error." See Smith v. Barclay, 10th Dist. No. 11AP-798,
2012-Ohio-5086 (because a client's legal malpractice claim was barred by the statute of
limitations, the client's remaining assignment of error alleging the trial court erred in
permitting attorney to withdraw certain admission was rendered moot); Aladdins Lights,
Inc. v. Eye Lighting Internatl., 9th Dist. No. 28182, 2017-Ohio-7229 (court of appeals
ruling that the trial court did not err when it granted summary judgment to the appellee on
the issue of standing rendered moot the appellant's assignment of error challenging the
trial court's denial of its motion to compel discovery); Chambers v. Melling, Harding,
Schuman & Montello, 8th Dist. No. 85045, 2005-Ohio-2456 (where the court of appeals
determines the trial should have granted summary judgment in favor of the appellee
because the appellant's complaint was untimely filed, the appellant's remaining assignment
of error challenging the trial court's decision to issue a protective order to a third-party
witness is moot); Doe v. Rupp, 8th Dist. No. 71938 (Jan. 29, 1998) (where summary
judgment for defendant based on the running of the statute of limitations is affirmed on
appeal, plaintiff's assignments of error challenging the trial court's ruling on plaintiff's
motions to compel discovery is moot as the discovery sought did not relate to plaintiff's
tolling argument); Zellmer & Gruber v. George, 8th Dist. No. 68674 (Feb. 8, 1996) (because
the trial court properly entered default judgment for defendant, plaintiff's assignments of
error regarding discovery rulings are moot); Morgan v. Ohio State Univ. College of
Dentistry, 10th Dist. No. 13AP-287, 2014-Ohio-1846, ¶ 38 (in appellant's medical
malpractice action, appellant's assignments of error challenging the trial court's findings of
fact as to appellee's breach of standard of care were rendered moot by the ruling on a
separate assignment of error that the trial court properly determined that the appellant
failed to present evidence of proximate cause).
{¶ 62} Here, because the trial court granted summary judgment in favor of
Nationwide on the strength of the release and not the absence of evidence to support
Sourial's fraud claims, and because we have overruled Sourial's eleventh assignment of
error challenging the trial court's ruling, any trial court error in failing to compel discovery
as alleged in Sourial's first, second, fourth, and seventh assignments of error would not
change the outcome of this appeal. Consequently, our ruling on Sourial's eleventh
No. 17AP-731 24
assignment of error renders moot Sourial's first, second, fourth, and seventh assignments
of error pertaining to discovery issues.
{¶ 63} Similarly, in Sourial's sixth and eighth assignments of error, Sourial alleges
the trial court abused its discretion in failing to compel Nationwide to respond to
interrogatories seeking information about the RAE program and existing books of business
available for purchase during Sourial's tenure as an agent in the AE program. Again, even
if we were to conclude the Nationwide records sought by Sourial possibly contain evidence
to support Sourial's fraud claims, such evidence is not probative of Sourial's allegation that
the subsequent release does not encompass those claims. Accordingly, our ruling on
Sourial's eleventh assignment of error renders moot Sourial's sixth and eighth assignments
of error pertaining to discovery issues.
{¶ 64} In Sourial's ninth assignment of error, he contends the trial court erred by
failing to compel Nationwide to answer Interrogatories 26, 27, 28, and 29. According to
Sourial, Nationwide objected to these interrogatories because he had exceeded the total
number of interrogatories permitted by Civ.R. 33. Though Sourial argues that Nationwide's
objection is erroneous and that the trial court abused its discretion by denying Sourial's
motion to compel, Sourial's brief to this court does not does explain how he was prejudiced
by the trial court's failure to compel a response by Nationwide. Accordingly, our ruling on
Sourial's eleventh assignment of error renders moot Sourial's ninth assignment of error
relating to his motion to compel certain interrogatory responses.
{¶ 65} In Sourial's third assignment of error, he alleges the trial court erred by failing
to compel Nationwide to reveal the identity of the person(s) who responded to his
interrogatories, and in Sourial's fifth assignment of error, he alleges the trial court erred by
failing to compel Nationwide to provide information pertaining to similar actions brought
against it. Sourial has not explained how this discovery would produce evidence in support
of his contention that the release does not encompass his fraud claims. Accordingly, we
find that our ruling on Sourial's eleventh assignment of error renders moot Sourial's third
and fifth assignments of error pertaining to discovery issues.
C. Sourial's Tenth Assignment of Error
{¶ 66} In Sourial's tenth assignment of error, he argues the trial court abused its
discretion in denying his motion to vacate or enlarge the case schedule pending a ruling on
No. 17AP-731 25
his motion to compel. As we noted in ruling on Sourial's eleventh assignment of error,
Sourial waived all of his claims when he executed the release. As a result, the additional
time Sourial requested in order to obtain discovery would not have yielded evidence to
support a triable issue of fact. Our ruling on Sourial's eleventh assignment of error,
therefore, renders moot the alleged trial court error raised in Sourial's tenth assignment of
error.
V. CONCLUSION
{¶ 67} Having overruled Sourial's eleventh assignment of error, and having
determined Sourial's remaining assignments of error are moot, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
BRUNNER and HORTON, JJ., concur.
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