[Cite as Miller v. Munchel, 2011-Ohio-3734.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

JEFF MILLER                                    :

        Plaintiff-Appellant                    :   C.A. CASE NO. 24431

vs.                                            :   T.C. CASE NO. 09CV2647

STEPHANIE MUNCHEL                              :   (Civil Appeal from
                                                    Common Pleas Court)
        Defendant-Appellee                     :

                                      . . . . . . . . .

                                         O P I N I O N

                    Rendered on the 29th day of July, 2011.

                                      . . . . . . . . .

Richard B. Reiling, Atty. Reg. No.0066118, 5045 N. Main Street,
Suite 320D, Dayton, OH 45415
     Attorney for Plaintiff-Appellant

Kevin C. Connell, Atty. Reg. No.0063817, One Dayton Center, 1 S.
Main Street, Suite 1800, Dayton, OH 45402-2017
     Attorney for Defendant-Appellee

                                      . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a summary judgment in an action

between adjoining landowners.

        {¶ 2} On April 1, 2009, Plaintiff, Jeff Miller, filed a
                                                                       2
                                                                       1
complaint      alleging     that   Defendant,   Stephanie   Munchel,

negligently failed to maintain a tree on her property, “causing

the tree to fall on or about September 1, 2008, onto Plaintiff’s

Property causing damage to Plaintiff’s Property in an amount

exceeding Twenty-Five Thousand Dollars ($25,000.00).”           Miller

prayed for compensatory damages and costs.        (Dkt. 1).

       {¶ 3} Munchel failed an answer and jury demand.      Except for

admitting that they are adjoining landowners, she denied the

allegations of Miller’s complaint.       Munchel also pleaded thirteen

affirmative defenses, including assumption of the risk and that

damage to Miller’s property was caused by an act of God.         (Dkt.

9)

       {¶ 4} On March 12, 2010, Munchel filed a motion for summary

judgment.      (Dkt. 28).   Munchel contended that Miller’s right to

maintain an action on his claim for relief had been waived pursuant

to the terms of a release between the parties settling a prior

lawsuit.      Munchel also contended that Miller assumed the risk of

his loss by failing to trim the tree, which he had a right to do.

 Munchel further contended that the damage to Miller’s property

proximately resulted from an act of God, when “a weather storm



          1
           Plaintiff’s Complaint identified Defendant as “Stephanie
     Muchel.” She subsequently averred that her surname is Munchel.
      Defendant’s correct name is used in this opinion.
                                                                   3

known as ‘Hurricane Ike’ came through Dayton, Ohio.”      Id.

      {¶ 5} On January 10, 2011, the trial court granted Defendant

Munchel’s motion for summary judgment, solely on her claim of waiver

and release.   (Dkt. 53).   Miller filed a notice of appeal.

      ASSIGNMENT OF ERROR

      {¶ 6} “THE TRIAL COURT ERRED BY GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT.”

      {¶ 7} Summary judgment may not be granted unless the entire

record demonstrates that there is no genuine issue of material

fact and that the moving party is, on that record, entitled to

judgment as a matter of law.    Civ.R. 56.   The burden of showing

that no genuine issue of material fact exists is on the moving

party.   Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d

64.   All evidence submitted in connection with a motion for summary

judgment must be construed most strongly in favor of the party

against whom the motion is made.    Morris v. First National Bank

& Trust Co. (1970), 21 Ohio St.2d 25.   In reviewing a trial court's

grant of summary judgment, an appellate court must view the facts

in a light most favorable to the party who opposed the motion.

Osborne v. Lyles (1992), 63 Ohio St.3d 326.     Further, the issues

of law involved are reviewed de novo.    Nilavar v. Osborn (1998),

127 Ohio App.3d 1.

      {¶ 8} “A release is a contract that is favored by the law to
                                                                    4

encourage the private resolution of disputes.”     Lewis v. Mathes,

 161 Ohio App.3d 1, 2005-Ohio-1975, ¶14.   “A release may be defined

as the giving up or abandoning of a claim or right to the person

against whom the right is to be enforced or exercised.”      Fabrizio

v. Hendricks (1995), 100 Ohio App.3d 352, 356.     “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.

     {¶ 9} “An agreement between a plaintiff and a defendant that

the plaintiff will compromise a claim for relief and release a

defendant from liability upon the defendant’s payment of an amount

of money is a contract, and like all contracts, requires a meeting

of the minds in order to be binding on the parties.”         Garrison

v. Daytonian Hotel (1995), 105 Ohio App.3d 322, 325.         On that

principle, “the intention of the parties governs in interpretation

of releases.”   Whitt v. Hutchison (1975), 43 Ohio St.2d 53, 58.

 “If . . . the language of the release is unqualified and absolute

in its terms, it may fairly be said that a presumption does arise

that the injury has ben fully satisfied . . .”      Id., at p. 57,

citing Adams Express Co. v. Beckwith (1919), 100 Ohio St. 348.

     {¶ 10} There was a previous lawsuit between these parties,

apparently involving the same tree.         In Miller v. Muchel,

Montgomery County Common Pleas Court Case No. 06CV3679, Miller
                                                                       5

alleged that Munchel had negligently breached her duty to maintain

the trees on her property, “causing damage to Plaintiff’s Property

in an amount exceeding Twenty-five Thousand Dollars, all to

Plaintiff’s harm.”      (Dkt. 28, Exhibit B).    No further operative

facts were alleged.     That action was dismissed with prejudice by

the court upon a finding that Miller’s claims for relief against

Munchel “have been settled and compromised to the full satisfaction

of the parties hereto . . .”      (Dkt. 28, Exhibit C).       A copy of

a release signed by Miller on March 24, 2007, is attached to

Munchel’s motion for summary judgment as Exhibit D.        That document

states:

     {¶ 11} “FOR THE SOLE CONSIDERATION of One Thousand Five Hundred

Dollars and No Cents ($1,500.00), the receipt and sufficiency

whereof is hereby acknowledged, and with reference to a claim out

of a dispute between adjoining landowners, wherein Jeffrey Miller

claimed a tree owned by Stephanie Munchel damaged property owned

by Miller at or near 1868 Russet Avenue, Dayton, Ohio, Montgomery

County,   Ohio,   the   undersigned   hereby    releases   and   forever

discharges    Stephanie      Munchel,    her      heirs,     executors,

administrators, agents, insurers (including, but not limited to

Auto-Owners Insurance Company), successors, subsidiaries and

assigns, who might be claimed to be liable, none of whom admit

any liability to the undersigned but all who expressly deny any
                                                                   6

liability, from any and all claims, demands, damages, actions,

caused of action or suits of any kind or nature whatsoever (except

for a claim for declaratory judgment with respect to the partial

rights and obligations, concerning a tree which sits on both

properties) and particularly on account of any injuries, known

or unknown, both to person and property, which have resulted on

may in the future develop.

     {¶ 12} “The undersigned also specifically release, acquit,

discharge, and agree to hold harmless Stephanie Munchel, her

employees, agents, representatives, trustees, successors, and

assigns of and from the claim described above asserted in Montgomery

County Common Pleas Court Case No. 2006-CV-3679.

     {¶ 13} “This is a full and final release and satisfaction of

all claims described above of the undersigned given in good faith,

and discharging the party or parties released from all claims of

liability for negligence and intended to discharge the party or

parties released from any liability for contribution to any other

alleged tortfeasor.

     {¶ 14} “EACH PERSON SIGNING THIS AFFIDAVIT AND PARTIAL RELEASE

HAS READ IT AND FULLY UNDERSTANDS IT.”

     {¶ 15} Miller was deposed on February 17, 2010.      He stated

that the action he filed against Munchel in 2006 was on a claim

for damage to the concrete floor of his garage caused by roots
                                                                   7

from a tree on Munchel’s property that grew up through the floor.

 The present action was on a claim for damage to his house, garage,

and a rear fence caused by branches that fell from the same tree,

and perhaps another.    Miller has since had the garage torn down

due to the extent of the damage to the garage.

     {¶ 16} The trial court granted Munchel’s motion for summary

judgment solely on the basis of the terms of the release document

that Miller signed.    The court wrote:

     {¶ 17} “In the instant case, the language of the release

agreement shows the intent of the parties was that it operate to

settle the claims in the 2006 case as well as any other damages

caused by the tree in the future.     Specifically, the agreement

states the Miller releases and forever discharges Munchel on

account of any injuries, known, or unknown, both to person and

property, which have resulted or may in the future develop.

Further, the release goes on to state that the Miller also

specifically releases Munchel from the claim asserted in the 2006

case.   Therefore, this Court finds that there are no genuine issues

of material fact as to whether the release agreement included future

damage caused by the tree.”    (Dkt. 53, p. 6).

     {¶ 18} Release and waiver are among the defenses identified

by Civ.R. 8(C) which must be affirmatively pleaded.      Failure to

plead an affirmative defense to a claim in a pleading responsive
                                                                    8

to a prior pleading setting forth the claim waives the defense.

 Taylor v. Merida Huron Hospital of Cleveland Clinic Health System

(2000), 142 Ohio App.3d 155.      Affirmative defenses cannot be

asserted for the first time in a motion for summary judgment.

Carmen v. Link (1997), 119 Ohio App.3d 244.

     {¶ 19} The defenses of release and waiver which Munchel’s motion

for summary judgment asserted were not pleaded affirmatively in

the answer to Miller’s complaint that Munchel filed.      Miller did

not object to that defect or move to strike Munchel’s motion for

summary judgment, to the extent that the motion asserted release

and waiver.   Therefore, any error the court committed in granting

the motion absent a pleading of those defenses is waived.     Cooper

v. Dayton (1997), 120 Oho App. 34.

     {¶ 20} The point in dispute that Munchel’s motion for summary

judgment presented is whether, by the terms of the release he

signed, Miller had waived his right to commence an action on the

claims for relief which his present action involves.       The court

could not grant Munchel’s motion as it did unless it appears from

pleadings that were filed and the terms of the release that

reasonable minds can come to but one conclusion and that conclusion

is adverse to Miller, his being entitled to have the release

construed most strongly in his favor.     Civ.R. 56(C).

     {¶ 21} The release that Miller signed on March 27, 2007, states
                                                                    9

that Miller “hereby releases and forever discharges, Stephanie

Munchel . . . from any and all claims, demands, damages, actions

. . . or suits of any kind or nature whatsoever . . . on account

of any injuries, known or unknown, both to person and property,

which have resulted or may in the future develop.”     That promise

is made “with reference to a claim out of a dispute between adjoining

landowners wherein Jeffrey Miller claimed a tree owned by Stephanie

Munchel damaged property owned by Miller . . .”    The release also

specifically applies to “the claim described above asserted in

Montgomery County Common Pleas Court Case No. 2006-CV-3679.”     The

complaint that Miller filed in the present action sets out claims

for relief arising from damage to his property that allegedly

occurred on September 14, 2008, when a tree growing on Munchel’s

property fell onto Miller’s property.

     {¶ 22} The language of the release is unqualified and absolute

with respect to the claims encompassed within the 2006 action.

Further, the release waives Miller’s right to commence an action

on any injuries which in the future result from those same claims.

 However, reasonable minds could find that the claims on which

the present action was commenced are not claims encompassed within

the 2006 action, because they allegedly arose from events that

occurred thereafter, on September 14, 2008.     On that basis, even

though the claims in the present and prior actions concern damage
                                                                   10

allegedly caused by the same trees, and to the same property,

Miller’s right to maintain an action for the damage that occurred

in 2008 was not waived by the terms of his 2007 release because

they do not involve the same claims on which Miller released Munchel

from liability.     The trial court erred when it granted summary

judgment for Munchel on her defenses of release and waiver.

     {¶ 23} The assignment of error is sustained.   The judgment from

which the appeal is taken will be reversed and the cause remanded

for further proceedings consistent with this opinion.




FAIN, J. And DONOVAN, J., concur.




Copies mailed to:

Richard B. Reiling, Esq.
Kevin C. Connell, Esq.
Hon. Barbara P. Gorman
