COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68634 ABC SUPPLY COMPANY : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MIDWEST GROUP INT'L., INC. : : [GILBERT ACEVEDO, : Defendant-Appellant]: : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-269108 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JAMES D. WILSON Walter & Haverfield 1300 Terminal Tower Cleveland, Ohio 44113-2253 For Defendant-Appellant: GILBERT ACEVEDO, Pro Se 381 Briarlake Drive Elyria, Ohio 44035 - 2 - O'DONNELL, J.: Gilbert Acevedo, pro se, appeals the court's $38,405.90 bench trial judgment in favor of ABC Supply Company against Midwest Group International and against him on his personal guaranty of that debt. The record reflects that ABC Supply, a supplier of roofing and siding materials, began furnishing building materials and supplies to Midwest sometime in 1992. Then, on October 7, 1992, Acevedo, as president of Midwest signed a corporate credit application, personally guaranteed payment of the corporate debt owed to ABC, and ABC facilitated Midwest's purchase of a Vacuum Blast machine from LTC America's Inc. to enable Midwest to work on a project at the Old Cedar Estates. At trial, ABC presented evidence of delinquencies owed by Midwest which had been guaranteed by Acevedo. Those delinquencies consisted of $7,412.38 for supply materials, $29,708.60 as the remaining balance on the original $63,222.52 Vacuum Blast machine account, and $1,284.96 paid to Norris Bros. Trucking to replevin the Vacuum Blast machine. Acevedo moved at trial to amend his answer to include a counterclaim for invasion of privacy in connection with removal of the Vacuum Blast machine from Midwest premises, but the court disallowed the pleading as untimely. At the conclusion of the presentation of all the - 3 - evidence, the court entered judgment against Midwest and Acevedo in the sum of $38,405.90 and dismissed all other claims. Acevedo now appeals and raises four assignments of error for our review. Acevedo's first and fourth assignments of error are related and state: I. THE TRIAL COURT ERRED IN RULING AGAINST THE DEFENDANTS IN THAT IT WAS CONTRARY TO LAW AND THE UNIFORM COMMERCIAL CODE. IV. THE TRIAL COURT ERRED IN NOT AFFORDING THE DEFENDANT EQUAL PROTECTION OF THE LAWS. Acevedo contends the trial court erred in ruling for ABC because he has a valid Statute of Frauds defense under the Uniform Commercial Code, and the court's failure to rule in his favor based upon this defense denied him equal protection of the laws. ABC, on the other hand, urges that Acevedo cannot use the Statute of Frauds defense because he has waived it, and because the evidence shows compliance with R.C. 1302.04. The issue then presented for resolution is whether or not the Statute of Frauds defense is available to Acevedo in this case. We begin our analysis with an examination of R.C. 1302.04, commonly referred to as the Statute of Frauds. In relevant part it states: *** a contract for the sale of goods for the price of five hundred dollars or more is not enforceable by way of action or defense unless there is some - 4 - writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought ***. Further, Civ. R. 8(C) relates to affirmative defenses and states in pertinent part: In a pleading to a preceding pleading, a party shall set forth *** statute of frauds *** and any other matter constituting an avoidance or affirmative defense. *** The courts in Ohio have consistently held that the failure to plead an affirmative defense constitutes a waiver of the defense. Houser v. Ohio Historical Society (1980), 62 Ohio St.2d 77. Accordingly, courts have specifically found waiver of a defense where a party failed to plead the Statute of Frauds. See Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689. In this case, the record reveals Acevedo defended on grounds of accounting inaccuracies, and failed to plead the Statute of Frauds in his answer or in any pretrial motions. Acevedo inartfully presented the argument for the first time at trial. This constitutes a waiver of the defense under Houser, supra. Moreover, the evidence presented at trial reflects that Acevedo not only signed a credit application (Exhibit "B") agreeing to guarantee the debt of Midwest, but also signed a corporate security (Exhibit "C"), and U.C.C. Financing statements (Exhibits "D" and "E"). The trial court did not err in denying Acevedo's Statute of Frauds defense because he failed to properly raise it for trial - 5 - court consideration and because the evidence presented suggests compliance with R.C. 1302.04 and, hence, it is not available as a defense in this case. For these reasons we also conclude no denial of equal protection occurred at the trial of this matter. Accordingly, we find no merit to the first and fourth assignments of error and each is overruled. Acevedo's second assignment of error states: THE TRIAL COURTS [sic] FINDINGS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Here, Acevedo suggests that because Meg Chura, an ABC witness could not testify as to the validity of certain invoices, an inference is created as to the accuracy, or authenticity of the invoices and here the court should have found ABC overbilled Midwest and, therefore, the verdict is against the manifest weight of the evidence. ABC urges it presented a comprehensive summary of Midwest accounts, and the court properly based its verdict on the evidence presented at trial and it argues the trial court properly determined the case because Acevedo presented no evidence at all to the court. The issue is whether the verdict is against the manifest weight of the evidence. In order to decide this issue, we must review the law on manifest weight of the evidence. In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, the Ohio Supreme Court explained, "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not - 6 - be reversed by a reviewing court as being against the manifest weight of the evidence." (Citations omitted.) Here, the transcript testimony and the exhibits support the claimed $38,405.90 ABC seeks to recover. However, the evidence details the composition of that sum, $29,708.60 of which is the remaining balance on the Vacuum Blast machine (Tr. 12), and another component is $1,284.96 for Norris Brothers Company which removed part of the machine from Acevedo's possession. (Tr. 13). Here, the court predicated its judgment upon the evidence presented as to the amount of Acevedo's delinquency including the amount ABC spent to remove the collateral. During the oral argument of this case, counsel for appellee represented to the court that since the date of the trial court's judgment, the Vacuum Blast machine had been sold for $5500 at private sale with notice to Acevedo and that this sum would be a credit on the outstanding balance Acevedo owes ABC. From our review of the evidence presented to the trial court by ABC and the lack of evidence offered by Acevedo, we cannot conclude the judgment of the trial court is against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. In his third assignment of error, Acevedo claims: THE TRIAL COURT ERRED WHEN IT DISMISSED THE DEFENDANT'S MOTION FOR A LEAVE TO PLEA (sic), AND TO AMEND HIS ANSWER TO INCLUDE COUNTERCLAIMS. - 7 - Acevedo contends the court should have permitted him to amend his pleadings to include a counterclaim which he refers to as cross-claims against ABC because Acevedo argues ABC's actions in searching for the collateral on his employer's property constituted a deprivation of privacy. ABC counters this argument by urging that the court properly denied the motion because it was untimely filed and appeared to be a delay tactic. The issue we are to consider then concerns the propriety of the court's action in dismissing the motion for leave to plead. Civ. R. 15 relates to amended and supplemental pleadings and states: (A) A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. *** Generally, the denial of leave to amend a pleading is discretionary with the trial court. DiPaolo v. DeVictor (1988), 51 Ohio App.3d 166. In Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120 at 121-122, the Ohio Supreme Court explained: The language of Civ. R. 15(A) favors a liberal policy when the trial judge is confronted with a motion to amend a pleading beyond the time limit when such amendments are automatically allowed. - 8 - "*** Leave of court shall be freely given when justice so requires ***," the rule states. This court's role is too determine whether the trial judge's decision was an abuse of discretion, not whether it was the same decision we might have made. (Citation omitted.) "The standard for 'abuse of discretion' is readily defined as more than an error of law or of judgment, but implies an attitude on the part of the trial court that is unreasonable, arbitrary or unconscionable." Ruwe v. Board of Township Trustees (1987), 29 Ohio St.3d 59 at 61. In Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, paragraph six of the syllabus, the Ohio Supreme Court held: It is an abuse of discretion for a court to deny a motion, timely filed, seeking leave to file an amended complaint, where it is possible that plaintiff may state a claim upon which relief may be granted and no reason otherwise justifying denial of the motion is disclosed. In this case, the trial court denied Acevedo's motion to amend his answer to include counterclaims because he filed the motion only seven days before trial. The untimeliness of the filing is a legitimate reason for a court to deny leave, and we cannot conclude the trial court displayed an arbitrary, unreasonable, or unconscionable attitude in denying the motion. Therefore, this assignment of error is overruled. The judgment of the trial court is affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and PATRICIA BLACKMON, J., CONCUR JUDGE TERRENCE O'DONNELL 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- .