COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59484 ZEKI I. OMAR : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ARROW INTERNATIONAL, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 21, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 151,578 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: JOHN P. LUTSECK Attorney at Law 14 East Monroe Bedford, OH 44146 For defendant-appellee: MARK I. WALLACH JOHN P. SUSANY Attorneys at Law 1800 Society Building Cleveland, OH 44114 - 2 - FRANCIS E. SWEENEY, J.: Plaintiff-appellant, Zeki I. Omar, timely appeals from the judgment of the common pleas court which granted the motion for summary judgment filed by defendant-appellee, Arrow Interna- tional, Inc. For the reasons set forth below, we affirm. Appellant's amended complaint sought recision of an alleged business opportunity plan, damages and attorney's fees pursuant to Chapter 1334 of the Ohio Revised Code. Appellee timely answered and thereafter filed its motion for summary judgment, arguing it was exempt from Chapter 1334, the Business Opportunity Plan statute, pursuant to R.C. 1334.12(L). Pursuant to R.C. 1334.12(L), Chapter 1334 of the revised code does not apply to: (L) A seller who has both of the following: (1)(a) A net worth on a consolidated basis, according to its most recent audited finan- cial statement, of not less than five million dollars; (b) A net worth, according to its most recent audited financial statement, of not less than one million dollars and the seller is at least eighty per cent owned by a cor- poration which has a net worth on a consoli- dated basis, according to its most recent audited financial statement, of not less than five million dollars; (2) Had at least twenty-five purchasers conducting business at all times during the - 2 - five-year period immediately preceding the sale or lease of the business opportunity plan, or has conducted the business which is the subject of the business opportunity plan continuously for not less than five years preceding the sale or lease of the business opportunity plan. The only evidentiary material submitted by either side with respect to appellee's motion for summary judgment was an affi- davit of John E. Gallagher, vice president of Arrow Interna- tional, which states: 4. Arrow has a net worth on a consolidated basis, according to its most recent audited financial statement dated December 31, 1987, of greater than Five Million Dollars ($5,000.000). 5. Arrow has conducted the business, which is the subject of the alleged business oppor- tunity plan, continuously since its incor- poration on October 23, 1967, including dur- ing the five years preceding the alleged sale of such business opportunity plan to Plaintiff. 6. During the five-year period immediately preceding Arrow's alleged sale of a business opportunity plan to Plaintiff, Arrow had at least twenty-five purchasers who purchased goods that were identical to those purchased by Plaintiff from Arrow. Based upon the above evidence, the trial court granted appellee's motion. Appellant timely appeals, raising the follow- ing sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Appellant contends the trial court erred in granting appel- lee's motion because the affidavit of John E. Gallagher did not - 3 - come attached with the referenced audited financial statement. Additionally, appellant argues the trial court erred because appellee never addressed appellant's claims sounding in common law fraud and breach of fiduciary duty. These arguments lack merit. Civ. R. 56(E) provides in pertinent part that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. How- ever, if appellant disputes the trial court's consideration of Mr. Gallagher's affidavit and/or reference to the audited finan- cial statement, he should have filed a timely motion to strike or otherwise objected. Having failed to move to strike any refer- ence to the audited financial statement or otherwise object thereto, appellant waived any such objection on appeal. See, Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, paragraph one of court's syllabus. Thus, the court could have properly considered Gallagher's reference to the audited financial statement. Therefore, in the present case, the trial court did not err in granting appellee's motion for summary judgment. Gallagher's uncontroverted affidavit establishes that appellee is exempt from R.C. Chapter 1334, the Business Opportunity Plan statute, pursu- ant to R.C. 1334.12(L). Appellant further argues that appellee's motion for summary judgment was improvidently granted in that appellee failed to - 4 - address appellant's claims sounding in common law fraud and breach of fiduciary duty. However, a review of the pleadings reveals that appellant failed to even attempt to raise a claim sounding in common law fraud or breach of fiduciary duty. Appel- lant's initial complaint, styled "Complaint for Recision, Damages and Attorney's Fees," contains one passing reference to fraud and no references to breach of fiduciary duty. Furthermore, appel- lant's amended complaint is even more precise as to appellant's theory of recovery. Again, appellant's amended complaint, styled "Amended Complaint for Recision, Damages and Attorney's Fees Pursuant to Ohio Revised Code Chapter 1334," contains one passing reference to fraud and no reference to breach of fiduciary duty. Rather, appellant's amended complaint contains numerous refer- ences to R.C. Chapter 1334, and his prayer for relief seeks "an order finding that the business venture entered into . . . was subject to the Ohio Business Opportunity Plans (Ohio Revised Code Chapter 1334); (sic.) *** recision of the business opportunity plan . . .; *** judgment . . . in the amoount (sic.) of $125,000.00; *** an additional $250,000.00 damages . . . pursuant to Ohio Revised Code 1334.09(A); *** (and) . . . attorney's fees . . . pursuant to Ohio Revised Code Section 1334.09(A) . . .." Finally, appellant's first reference in the pleadings to common law fraud is contained in his brief in opposition to appellant's motion for summary judgment, and his first reference to breach of fiduciary duty is before this court on appeal. - 5 - Even considering the liberal pleading policy of the Civ. R. 8(F), and notwithstanding Civ. R. 9(B), appellant failed to raise any claim whatsoever based on common law fraud or breach of fiduiary duty. Thus, appellee's motion for summary judgment need not have addressed claims for relief not raised in appel- lant's complaint, i.e., common law fraud or breach of fiduciary duty. Therefore, the trial court did not err in granting appel- lee's motion for summary judgment. Judgment affirmed. - 6 - 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 Court of Common Pleas 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. DAVID T. MATIA, P.J. BLACKMON, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .