COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71890 WILLIAM PARENTE : ACCELERATED CASE : Plaintiff-Appellant : JOURNAL ENTRY -vs- : AND : OPINION EMBASSY SUITES, INC., ET AL. : : PER CURIAM Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-301687 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BARTLEY J. TROY (#0031600) 750 COURTHOUSE SQUARE 310 W. LAKESIDE AVE. CLEVELAND, OHIO 44113 KEITH M. MINKIN (#0034036) 1850 ILLUMINATING BUILDING 55 PUBLIC SQUARE CLEVELAND, OHIO 44113 For Defendants-Appellees: ANDREW M. WARGO (#0058464) MICHAEL A. POHL (#0033911) STEPHANIE JERLSTROM (#Z00010860) REID, BERRY, AND STANARD 1300 ILLUMINATING BUILDING 55 PUBLIC SQUARE CLEVELAND, OHIO 44113-1901 SPELLACY, J.: 2 Plaintiff-appellant William Parente ( appellant ) appeals from the grant of summary judgment in favor of defendant-appellee Embassy Suites, Inc. Appellant sought to recover for injuries he allegedly received when he fell in the parking lot of an Embassy Suites Hotel in Columbus. Appellant assigns the following error for review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On January 16, 1996, appellant filed a complaint in which he brought a cause of action for negligence against Embassy Suites. Appellant filed an amended complaint on January 29, 1996. Appellant alleged Embassy Suites was the owner and operator of the Embassy Suites Hotel located in Columbus at which appellant was injured when he slipped and fell on ice in the hotel's parking lot. In its answer, Embassy Suites denied that it owned or operated the hotel in question and, therefore, was absolved of liability. A pretrial hearing was held on June 24, 1996. The trial court set the discovery cut-off date for September 24, 1996, and ordered that dispositive motions were due on October 24, 1996. The trial date was set for January 13, 1997. On October 22, 1996, Embassy Suites filed a motion for summary judgment on the basis that it did not own or operate the hotel at which appellant was injured. Embassy Suites averred it owed no duty to appellant and was entitled to summary judgment. Embassy Suites appended the 3 affidavit of its then general counsel, M. Ronald Halpern, to its motion in which Halpern stated Embassy Suites was a party to a license agreement with the owner of the hotel, Connecticut General Life Insurance Company. Halpern averred that licensee Connecticut General did not need the consent of Embassy Suites when managing its daily business affairs or when establishing or controlling its security requirements at the hotel. The license agreement expressly stated that no agency relationship existed between the two parties. Neither Embassy Suites nor Connecticut General could bind or obligate the other. Embassy Suites attached a copy of the license agreement to its motion for summary judgment. On November 8, 1996, appellant filed a motion for leave to file an amended complaint and to add party defendant instanter. Appellant sought to add Connecticut General as a party defendant. Appellant added a claim that Embassy Suites was the principal in the Columbus Embassy Suites hotel as a principal-agent relationship existed between Embassy Suites and Connecticut General. Appellant stated Embassy Suites was liable for the actions of its agent. On November 15, 1996, appellant filed his brief in opposition to Embassy Suites' motion for summary judgment. In his brief, appellant argued summary judgment was inappropriate because whether or not an agency relationship existed between Embassy Suites and Connecticut General was a disputed material fact. The only evidence attached to appellant's brief was a copy of the license agreement. Appellant never conducted any discovery in the case. At this point, the discovery cutoff date had passed. 4 The trial court denied appellant's motion for leave to file an amended complaint and granted Embassy Suites' motion for summary judgment. Appellant appeals from that order. II. In his assignment of error, appellant contends the trial court erred in granting Embassy Suites' motion for summary judgment. Appellant asserts that the central question of fact in the instant case is whether a principal-agent relationship exists between Embassy Suites and Connecticut General. Appellant relies on the license agreement between those parties to support his argument that Embassy Suites asserted sufficient control over Connecticut General to create an agency relationship. Appellant also argues that the trial court abused its discretion by not granting appellant's motion for leave to file amended complaint. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Ohio Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to 5 reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. V. Catrett (1986), 477 U.S. 317, 322. The issue regarding appellant's motion for leave to file an amended complaint will be addressed first. Appellant argues that the existence of the license agreement was solely within the knowledge of Embassy Suites and that the denial of ownership in a responsive pleading is sufficient grounds for permitting appellant to amend his complaint. Appellant cites to Civ.R. 15(C) to support his contention that leave to amend his complaint should have been granted. Appellant sought to add an additional party, Connecticut General, to the action. This is not the correct provision of Civ.R. 15 to apply to the instant case. Civ.R. 15(C) applies to the substitution of a proper party for one previously misidentified in the original complaint. Kraly v. Vannewkirk (1994), 69 Ohio St.3d 627. Civ.R. 15(C) may be employed to substitute a party named in the amended pleading for a party named in the original pleading to permit the amended pleading to relate back to the date of the original pleading, provided the requirements of the rule are otherwise satisfied. (Cecil v. Cottrill [1993], 67 Ohio St.3d 367, 618 N.E.2d 133, approved and followed.) However, the rule may not be employed to assert a claim against an additional party while retaining a party against whom a claim was asserted in the original pleading. 6 Id., paragraph one of the syllabus. Appellant sought to add an additional party, Connecticut General, while retaining a party named in the original pleading, Embassy Suites. Therefore, Civ.R. 15(C) is not applicable in the instant case, rather, Civ.R. 15(A) must be applied. A trial court's ruling on a motion to amend a complaint is reviewed under an abuse of discretion standard. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. An abuse of discretion involves more than an error of judgment but connotes that the trial court's attitude was unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506. Civ.R. 15(A) provides that, once a responsive pleading is made, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court is to be freely given when justice so requires. A trial court may abuse its discretion by denying leave to amend a pleading where it is possible that, in the amended complaint, the plaintiff may set forth a claim upon which relief can be granted. The amended complaint must be timely and in good faith. Peterson v. Teodosio (1973), 34 Ohio St.2d 161. Factors to consider include whether actual prejudice to the opposing party will or is likely to occur and the timeliness of the proposed motion. Frayer Seed, Inc. v. Century 21 Fertilizer & Farm Chemicals, Inc. (1988), 51 Ohio App.3d 158. A trial court need not permit an amendment to a pleading 7 where a plaintiff fails to make a prima facie showing of support for the new matters sought to be pleaded. Wilmington Steel, supra, syllabus. In DiPaolo v. DeVictor (1988), 51 Ohio App.3d 166, the court held that the plaintiffs' motion to amend their complaint was not timely as it was filed nearly nine months after the original complaint was filed and after trial had been scheduled. In Wilmington Steel, supra, the plaintiff filed two motions to amend its complaint. The first motion was filed eleven days before the trial date and asserted a new contract claim. The second motion was filed four days later and presented a principal-agent claim. The court found that the motions to amend were not timely filed. In the instant case, Embassy Suites raised the defense of nonownership of the property in its answer to appellant's complaint. Appellant was aware that this was an issue from that point in the proceedings. Apparently, appellant never attempted to inquire as to the identity of the owner or what relationship Embassy Suites may have with the owner of the property. The license agreement would have been easily discoverable had appellant bothered to conduct any discovery. Instead, appellant waited until after the period for discovery had passed before presenting his claim against Connecticut General and in asserting his principal- agency cause of action against Embassy Suites. The motion for leave to amend was not filed until two months before the scheduled trial date. The motion for leave to amend was not timely filed. 8 The trial court did not abuse its discretion by refusing to grant the motion. Appellant's cause of action regarding the principal-agency claim against Embassy Suites and his claim against Connecticut General was set forth in the second amended complaint. That pleading was not properly before the trial court once leave to amend was denied. Appellant's first amended complaint only states a claim of negligence against Embassy Suites as the owner and operator of the hotel where appellant allegedly was injured. Appellant could not oppose Embassy Suites' motion for summary judgment by raising arguments which were, in essence, new and separate causes of action. Embassy Suites' defense of nonownership was raised in its answer. Appellant could not counter that same defense presented in a motion for summary judgment with another theory of liability against Embassy Suites. Appellant was foreclosed from presenting his agency claim against Embassy Suites in his brief in opposition to the motion for summary judgment because that claim was not brought in the complaint against Embassy Suites. Any argument on that same issue must be disregarded by this court because the issue was not properly before the trial court. Appellant supported his brief in opposition only with a copy of the license agreement between Embassy Suites and Connecticut General. There was no evidence in support of his negligence claim against Embassy Suites nor was the issue addressed in his brief except as it related to his agency argument. Actually, the brief 9 only argues the issue of the agency relationship between Connecticut General and Embassy Suites. Because appellant presented no argument or evidence in opposition to Embassy Suites' motion for summary judgment, the trial court correctly granted summary judgment for Embassy Suites. Appellant's assignment of error is overruled. Judgment affirmed. 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 Common Pleas Court to carry this judgment into execution. 10 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN T. PATTON, PRESIDING JUDGE LEO M. SPELLACY, JUDGE ROBERT E. HOLMES, JUDGE* (*Robert E. Holmes, Retired Justice Of the Ohio Supreme Court, Sitting by Assignment. N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .