[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 
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complaint alleging that Defendant, Stephanie Munchel, 1

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 
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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 
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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 
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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 
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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 
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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 
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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 
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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