[Cite as Sourial v. Nationwide Mut. Ins. Co., 2018-Ohio-2528.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Samir Sourial, : 

 Plaintiff-Appellant, : 

 No. 17AP-731 

v. : (C.P.C. No. 16CVH-6024)

Nationwide Mutual Insurance Company, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on June 28, 2018 

 

On brief: Caryn Groedel & Associates, Co., LPA, Matthew S. 

Grimsley, and Caryn M. Groedel, for appellant. 

Argued: Matthew S. Grimsley. 

On brief: Bricker & Eckler LLP, Quintin F. Lindsmith, and 

Ali I. Haque, for appellee. Argued: Ali I. Haque. 

 

APPEAL from the Franklin County Court of Common Pleas 

SADLER, J. 

{¶ 1} Plaintiff-appellant, Samir Sourial, appeals from a judgment of the Franklin 

County Court of Common Pleas in favor of defendant-appellee, Nationwide Mutual 

Insurance Company ("Nationwide"). For the reasons that follow, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} In June 2008, Sourial was employed as an insurance agent for AAA 

Insurance when he was approached by Nationwide with an opportunity to join one of its 

agency programs. Sourial met with Nationwide Sales Manager Brad Bohn who encouraged 

Sourial to participate in Nationwide's Agency Capital Builder ("ACB") program, where he 

would receive training necessary for him to successfully operate a Nationwide Insurance 
No. 17AP-731 2 

Agency. According to Sourial, Bohn told him that when he successfully completed the ACB 

program, Nationwide would sell him an established book of business which would generate 

approximately $350,000 per year in revenue. Sourial left his position with AAA to join 

Nationwide's ACB program. 

{¶ 3} Sourial consistently met the ACB program production requirements as 

measured by Direct Written Premium ("DWP"). Sourial eventually became one of the top 

producing employees in the ACB program for the region and the first to graduate the 

program. On his graduation, Nationwide paid Sourial compensation in the amount of 

$75,000. Sourial intended to purchase a book of business and become a member of 

Nationwide's Replacement Agency Executive ("RAE") program. Sourial claims he 

repeatedly inquired of Bohn and his successor sales manager, Diana Graovac, about an 

available book of business to purchase. According to Sourial, Bohn falsely represented to 

him that no existing book of business was available for purchase and that Sourial would 

have to join the Account Executive ("AE") program, rather than the RAE program. 

{¶ 4} Sourial claims various Nationwide vice presidents and sales managers 

induced him to join the AE program by making false representations regarding his potential 

for success. In Sourial's affidavit filed in connection with his Civ.R. 56(F) motion, Sourial 

claims Nationwide management falsely represented the following: 

[M]isrepresentations about the amount of money I would earn, 

that my pro forma and business plan were legitimate and 

accurate representations of what Nationwide expected my 

agency to earn, that Agency Executive Program agents easily 

meet their production requirements and complete the 

Program, that I would easily meet my Agency Executive 

Program production requirements, that if I acquired an 

existing book of business Nationwide would transfer me into 

the Replacement Agency Executive Program, that I would own 

my book of business and the books of business I acquired, and 

that if I ever left Nationwide, it would offer to purchase my 

book of business and the books of business I acquired. 

(Aug. 30, 2017 Sourial Aff. at ¶ 7.) 

{¶ 5} Sourial executed the AE agreement in June 2010. Prior to signing the 

agreement, Sourial had spent several months reviewing the draft agreement as well as 

developing a pro forma business plan. The AE agreement required Sourial to meet a 
No. 17AP-731 3 

minimum production plan ("MPP"), as measured by DWP.1 The AE agreement also 

contained the following provision: 

It is agreed that no action, suit, proceeding at law or in equity 

shall be brought under this contract unless it is commenced 

and process is served within three years after the cause of 

action for which suit is brought. 

(AE Agreement at ¶ 35.) 

{¶ 6} In addition to the contractual limitations period, the AE agreement contained 

an integration clause as follows: "The terms and conditions contained in this Agreement 

supersede all prior oral or written understandings between Agent and Nationwide and 

constitute the entire agreement between them concerning the subject matter of this 

Agreement." (AE Agreement at ¶ 38.) 

{¶ 7} On April 5, 2011, Sourial executed an amended AE agreement containing the 

following language: "By signing this Amendment, [Sourial] * * * waives all claims that 

he/she has or may have against Nationwide * * * as of the date of his/her execution of this 

Amendment." (Amendment to AE Agreement at 1.) The stated consideration for the 

release was an enhanced bonus schedule as set forth in the amendment. 

{¶ 8} On May 3, 2011, Sourial received a loan from Nationwide Bank, the proceeds 

of which Sourial used to purchase an existing book of business. According to Sourial, 

Graovac subsequently informed him the book of business he purchased was too small to 

allow him to transition into the RAE program, and the renewal DWP from the newly 

purchased book of business could not be counted towards his MPP for purposes of the AE 

program. Sourial claims he was falsely informed that there was not another existing book 

of business available for purchase. 

{¶ 9} In May 2012, Nationwide put Sourial on the production shortfall list because 

he had not met his MPP. According to Sourial, in the subsequent months, Nationwide 

transferred some of his existing book of business to another agent, which caused Sourial to 

fall further behind his MPP. Realizing his contract was subject to cancellation, on 

December 3, 2012, Sourial resigned his position with Nationwide. There is no dispute 

Nationwide subsequently made an early cancellation payment to Sourial of more than 

 

1 The number of policies in force and life sales were also considered. 
No. 17AP-731 4 

$130,000. According to Sourial, however, Nationwide took over his existing book of 

business worth approximately $1,300,000. 

{¶ 10} On June 24, 2016, Sourial filed a complaint alleging the following claims for 

relief against Nationwide: fraudulent inducement in relation to the Career Builder 

Contract; fraudulent inducement in relation to the Executive Contract; intentional 

misrepresentation in relation to the Career Builder Contract and the Executive Contract; 

breach of the Career Builder Contract; breach of the Executive Contract; breach of the 

implied covenant of good faith and fair dealing; promissory estoppel; unjust enrichment; 

national origin based discrimination; and national origin based harassment. 

{¶ 11} On January 10, 2017, the trial court granted Nationwide's motion for 

judgment on the pleadings as to the claims for discrimination based on national origin and 

harassment. In so doing, the trial court noted in its decision that "in relation to all of 

[Sourial's] claims, except that for breach of the Executive Contract, Indiana substantive law 

shall apply. As to procedural law, Ohio law still applies to this matter." (Jan. 10, 2017 

Decision at 3.) No appeal was taken from the trial court decision granting Nationwide's 

motion for judgment on the pleadings. 

{¶ 12} On June 19, 2017, Sourial filed a motion to compel discovery wherein Sourial 

sought, among other things, production of unredacted copies of the following documents: 

New Agent Program Scorecards; Production Shortfall Reports; Program Agent 

Management Reports; and Program Agent Production Status Reports. Sourial claimed the 

information in these documents provided evidentiary support for his fraud claims. On 

July 19, 2017, Sourial filed a motion to vacate the case schedule or, in the alternative, 

enlarge the case schedule 60 days from the date the trial court ruled on Sourial's motion to 

compel. 

{¶ 13} On July 28, 2017, Nationwide filed a motion for summary judgment as to 

Sourial's remaining claims. In support of the motion, Nationwide filed excerpts from the 

transcript of Sourial's deposition along with a large number of documents identified as 

exhibits therein.2 On August 4, 2017, the trial court issued a decision denying Sourial's 

 

2 Nationwide filed the complete deposition transcript and additional exhibits on August 10, 2017. 
No. 17AP-731 5 

motion to compel and denying Sourial's motion to enlarge the case schedule. The trial court 

decision provides, in relevant part, as follows: 

There is not much to say in regards to [Sourial's] motion. In it, 

[Sourial] asks the Court to issue an order compelling 

[Nationwide] to supplement numerous discovery responses. 

After reviewing this matter thoroughly, the Court is not 

inclined to grant [Sourial's] request. First, it is clear that 

[Nationwide] has rectified many of the issues that [Sourial] had 

since the filing of this motion. Second, [Sourial] has stated 

inadequate grounds upon which the Court would base an order 

compelling discovery. Since this is so, the Court finds 

[Sourial's] Motion to Compel to be not well-taken, and is 

hereby DENIED. 

(Emphasis sic.) (Aug. 4, 2017 Decision at 1.) 

{¶ 14} On August 11, 2017, Sourial filed a combined motion to reconsider the trial 

court's August 4, 2017 decision denying Sourial's motion to compel and motion for an in 

camera inspection of the documents Nationwide had either refused to produce or redacted. 

On that same date, Sourial filed a Civ.R. 56(F) motion for a continuance to permit further 

discovery essential to Sourial's opposition to Nationwide's motion for summary judgment. 

Sourial did not, however, file a response to the motion for summary judgment. 

{¶ 15} On September 6, 2017, the trial court denied Sourial's Civ.R. 56(F) motion: 

Once again [Sourial] asks the Court for more time due to a 

discovery dispute. In this motion, however, [Sourial] asks for 

more time due to a discovery dispute that [Sourial] previously 

lost. The Court is not going to grant [Sourial] any additional 

time to file a response to [Nationwide's] Motion for Summary 

Judgment. Due to the fact that [Sourial] has not filed a 

response to [Nationwide's] Motion for Summary Judgment 

within the time limit prescribed by rule, the Court will rule 

upon said motion sans response. 

(Sept. 6, 2017 Decision at 2.) 

{¶ 16} On September 14, 2017, the trial court issued a decision and judgment entry 

granting Nationwide's motion for summary judgment as to Sourial's remaining claims. The 

trial court determined Sourial's claims for breach of contract were barred both by the 

contractual limitations period and the release. The trial court also determined the existence 

of a written agreement containing an integration clause and the release barred Sourial's 
No. 17AP-731 6 

quasi-contract claims for promissory estoppel and unjust enrichment. Finally, the trial 

court found the release barred Sourial's fraud claims. Accordingly, the trial court 

determined Nationwide was entitled to a judgment on these claims as a matter of law. 

{¶ 17} Sourial timely appealed to this court from the following trial court judgments: 

August 4, 2017 decision and entry denying Sourial's motion to compel and motion to vacate 

or enlarge the case schedule; September 6, 2017 decision and entry denying Sourial's 

motion for reconsideration, request for in camera inspection, and Civ.R. 56(F) motion; and 

the judgment entry issued September 14, 2017 granting Nationwide's motion for summary 

judgment. 

II. ASSIGNMENTS OF ERROR 

{¶ 18} Sourial sets forth the following eleven assignments of error: 

[1.] The trial court erred and abused its discretion by denying 

Sourial's motion to compel in its entirety and effectively 

condoning Nationwide's impermissible redaction campaign. 

[2.] The trial court abused its discretion by failing to compel 

Nationwide to un-redact and produce vital statistical data 

reflecting the failure rate of its AE Program agents. 

[3.] The trial court erred by failing to compel Nationwide to 

Answer Interrogatory 1, which seeks the identity of person(s) 

responding to Interrogatories. 

[4.] The trial court abused its discretion by failing to compel 

Nationwide to respond to Interrogatories seeking information 

pertaining to other program agents. 

[5.] The trial court abused its discretion by failing to compel 

Nationwide to provide information pertaining to similar action 

brought against it. 

[6.] The trial court abused its discretion in failing to compel 

Nationwide to respond to Interrogatories seeking information 

pertaining to its decision not to offer Sourial a position in the 

RAE Program. 

[7.] The trial court abused its discretion by failing to compel 

Nationwide to produce compensation and performancerelated documents for Sourial's Sales Managers and VPs. 
No. 17AP-731 7 

[8.] The trial court abused its discretion by failing to compel 

Nationwide to produce discovery pertaining to books of 

business that became available in Sourial's district between 

January 2010 and December 2012. 

[9.] The trial court erred by failing to compel Nationwide to 

Answer Interrogatories 26, 27, 28, and 29. 

[10.] The trial court abused its discretion in denying Sourial's 

motion to vacate or enlarge the case schedule pending its ruling 

on Sourial's previously filed motion to compel. 

[11.] The trial court abused its discretion in denying Sourial's 

Rule 56(F) motion and entering summary judgment in favor of 

Nationwide without given [sic] Sourial a full and fair 

opportunity to complete discovery and obtain the evidence he 

needs to adequately oppose Nationwide's motion for summary 

judgment. 

III. STANDARD OF REVIEW 

{¶ 19} Appellate review of summary judgment is de novo. Gabriel v. Ohio State 

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. 

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. Pursuant to Civ.R. 

56(C), summary judgment "shall be rendered forthwith if the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action, show that there is no genuine 

issue as to any material fact and that the moving party is entitled to judgment as a matter 

of law." Accordingly, summary judgment is appropriate only under the following 

circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving 

party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly 

in favor of the nonmoving party, reasonable minds can come to but one conclusion, that 

conclusion being adverse to the nonmoving party. Phillips v. Wilkinson, 10th Dist. No. 

17AP-231, 2017-Ohio-8505, ¶ 11, citing Byrd at ¶ 6, citing Harless v. Willis Day 

Warehousing Co., 54 Ohio St.2d 64, 66 (1978). 

{¶ 20} " '[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record before the 

trial court which demonstrate the absence of a genuine issue of fact on a material element 
No. 17AP-731 8 

of the nonmoving party's claim.' " Byrd at ¶ 7, quoting Dresher v. Burt, 75 Ohio St.3d 280, 

292 (1996). "Once the moving party meets its initial burden, the nonmovant must set forth 

specific facts demonstrating a genuine issue for trial." Phillips at ¶ 12, citing Byrd at ¶ 7, 

citing Dresher at 293. 

IV. LEGAL ANALYSIS 

A. Sourial's Eleventh Assignment of Error

{¶ 21} Because we find our resolution of Sourial's eleventh assignment of error is 

dispositive of this appeal, we shall consider it first. As noted above, the trial court 

determined Sourial's claims for breach of contract were barred both by the contractual 

limitations period and the release. The trial court also determined the existence of a written 

agreement containing an integration clause and the release barred Sourial's quasi-contract 

claims for promissory estoppel and unjust enrichment. Finally, the trial court found the 

release barred Sourial's fraud claims. In granting summary judgment for Nationwide, the 

trial court determined various contractual defenses asserted by Nationwide barred all 

Sourial's claims for relief as a matter of law. 

{¶ 22} The parties disagree on whether Sourial's eleventh assignment of error 

challenges the granting of summary judgment or merely whether the trial court erred when 

it granted summary judgment for Nationwide without providing Sourial with a full and fair 

opportunity to conduct discovery. We perceive the eleventh assignment of error to be both. 

{¶ 23} Even though Sourial did not respond to Nationwide's motion for summary 

judgment, there is no default summary judgment in Ohio. Cook v. Wilson, 165 Ohio App.3d 

202, 2006-Ohio-234 (10th Dist.); Owensby v. Fresenius Dialysis Unit, 10th Dist. No. 

04AP-1382, 2005-Ohio-6467, ¶ 17; Maust v. Palmer, 94 Ohio App.3d 764, 769 (10th 

Dist.1994). An appellate court must proceed to analyze the merits of summary judgment, 

de novo, and examine all appropriate evidentiary materials filed by the parties even when 

the motion is unchallenged. Owensby at ¶ 17, citing Murphy v. Reynoldsburg, 65 Ohio 

St.3d 356 (1992). Therefore, before we analyze the merits of Sourial's appeal from the 

denial of his Civ.R. 56(F) motion, we must first consider whether there is evidence in the 

record on which it could be reasonably concluded that Sourial's claims survive Nationwide's 

contractual defenses. Accordingly, we first address each of Nationwide's defenses on which 

it was granted summary judgment by the trial court. 
No. 17AP-731 9 

1. Breach of Contract 

{¶ 24} In Count 4 of his complaint, Sourial alleges that Nationwide materially 

breached the ACB agreement by failing to provide Sourial with "training and guidance, 

refusing to allow [Sourial] to exercise discretion and independent judgment with respect to 

his marketing and sales activity, and prohibiting him from binding certain policies." 

(Compl. at ¶ 74.) Sourial's complaint alleges that Nationwide breached the provisions of 

the AE agreement in the following manner: failing to make available to its agents reports, 

progressive counseling, and other types of services designed to assist agents who are not 

meeting the requirements of the administrative MPP; refusing to allow Sourial to exercise 

discretion and independent judgment with respect to his marketing and sales activity; and 

failing to provide Sourial with training, mentoring, guidance, or support. Sourial's 

complaint does not identify the particular provisions of the agreements at issue. 

{¶ 25} Both the ACB agreement and the AE agreement executed by the parties 

contain the following provision: 

Legal Action Under This Agreement. It is agreed that no 

action, suit, proceeding at law or equity shall be brought under 

this contract unless it is commenced and process is served 

within three (3) years after the cause of action for which suit is 

brought. 

(Emphasis sic.) (ACB Agreement at ¶ 35; AE Agreement at ¶ 35.) 

{¶ 26} In Barbee v. Nationwide Mut. Ins. Co., 130 Ohio St.3d 96, 2011-Ohio-4914, 

the Supreme Court of Ohio discussed the enforceability of a contractual limitations period 

as follows: 

"In Ohio, the statutory limitation period for a written contract 

is 15 years. R.C. 2305.06. However, the parties to a contract 

may validly limit the time for bringing an action on a contract 

to a period that is shorter than the general statute of limitations 

for a written contract, as long as the shorter period is a 

reasonable one." Sarmiento v. Grange Mut. Cas. Co., 106 Ohio 

St.3d 403, 2005-Ohio-5410, 835 N.E.2d 692, ¶ 11, citing Miller 

v. Progressive Cas. Ins. Co. (1994), 69 Ohio St.3d 619, 624, 

1994-Ohio-160, 635 N.E.2d 317 and Colvin v. Globe Am. Cas. 

Co. (1982), 69 Ohio St.2d 293, 295, 23 O.O.3d 281, 432 N.E.2d 

167, overruled on other grounds by Miller. "A contract 

provision that reduces the time provided in the statute of 
No. 17AP-731 10 

limitations must be in words that are clear and unambiguous 

to the policyholder." Id., citing Colvin at 296. 

Id. at ¶ 23. 

{¶ 27} Nationwide relies on Sourial's deposition testimony in support of its 

contention that Sourial's claims for breach of the ACB agreement and the AE agreement are 

time-barred. Nationwide points to certain admissions made by Sourial during his 

deposition testimony to the effect that any wrongful conduct by Nationwide, as alleged in 

the complaint, occurred prior to February 2011. Accordingly, Nationwide argues that 

Sourial's claims for breach of contract accrued more than five years before he filed his 

complaint on June 24, 2016. 

{¶ 28} Nationwide's argument notwithstanding, we note there is no dispute in this 

case that Sourial completed the ACB program in 2010 and that Nationwide cancelled the 

AE agreement in December 2012. Sourial has presented no evidence to support an issue of 

fact regarding an ongoing breach by Nationwide of any provision of either the ACB 

agreement or the AE agreement. Because Sourial did not file his complaint in this matter 

until June 24, 2016, more than three years after Nationwide cancelled the AE agreement, 

the contractual limitations period bars Sourial's breach of contract claims as a matter of 

law. Accordingly, we hold the trial court did not err when it granted Nationwide's motion 

for summary judgment as to the contract claims. 

2. Breach of Implied Covenant of Good Faith and Fair Dealing

{¶ 29} In his complaint, Sourial alleges Nationwide violated an implied covenant of 

good faith and fair dealing by "engaging in conduct that conferred an undue economic 

advantage upon it that was not contemplated by both Nationwide and [Sourial] at the time 

of contracting, including: repeatedly lying to [Sourial]; devising unrealistic and 

unsustainable production quotas for [Sourial], which Nationwide used to deny [Sourial] his 

earned commissions and bonus; manipulating [Sourial's] production reports; intentionally 

interfering with [Sourial's] ability to meet production requirements; and co-opting the book 

of business [Sourial] had built." (Compl. at ¶ 86.) 

{¶ 30} "In addition to a contract's express terms, every contract imposes an implied 

duty of good faith and fair dealing in its performance and enforcement." Lucarell v. 

Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, ¶ 42, citing Restatement of 
No. 17AP-731 11 

the Law 2d, Contracts, Section 205 (1981). The Supreme Court has recognized that 

" ' "[g]ood faith" is a compact reference to an implied undertaking not to take opportunistic 

advantage in a way that could have not been contemplated at the time of drafting, and which 

therefore was not resolved explicitly by the parties.' " Ed Schory & Sons, Inc. v. Soc. Natl. 

Bank, 75 Ohio St.3d 433, 443 (1996), quoting Kham & Nate's Shoes No. 2, Inc. v. First Bank 

of Whiting, 908 F.2d 1351, 1357 (7th Cir.1990). 

{¶ 31} " 'Good faith performance or enforcement of a contract emphasizes 

faithfulness to an agreed common purpose and consistency with the justified expectations 

of the other party.' " Lucarell at ¶ 43, citing Restatement, Section 205, comment a. The 

Supreme Court has, however, "rejected the contention that a party breaches the implied 

duty of good faith and fair dealing merely by seeking to enforce the contract or by acting as 

permitted by its express terms." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44; 

Wendy's Internatl., Inc. v. Saverin, 337 Fed.Appx. 471, 477 (6th Cir.2009); 23 Lord, 

Williston on Contracts, Section 63:22 (4th Ed.2003). "[T]here is no violation of the implied 

duty unless there is a breach of a specific obligation imposed by the contract, such as one 

that permits a party to exercise discretion in performing a contractual duty or in rejecting 

the other party's performance." Lucarell at ¶ 43, citing Ed Schory & Sons at 443-44; 23 

Lord, Section 63:22; Restatement, Section 205, comment e. Accordingly, there is no 

separate cause of action in Ohio for breach of the implied duty of good faith and fair dealing. 

Lucarell at ¶ 47. See also Interstate Gas Supply, Inc. v. Calex Corp., 10th Dist. No. 04AP980, 2006-Ohio-638, ¶ 98. 

{¶ 32} Because the contractual limitations period bars Sourial's breach of contract 

claims as a matter of law and because no violation of the implied duty of good faith and fair 

dealing exists absent an actionable breach of a specific obligation imposed by the contract, 

we hold the trial court did not err when it determined Nationwide was entitled to judgment 

as a matter of law on Sourial's claim for breach of the covenant of good faith and fair dealing. 

3. Fraud in the Inducement and Fraudulent Misrepresentation

{¶ 33} Pursuant to the trial court's unappealed judgment issued October 21, 2016, 

Sourial's fraud claims are governed by the substantive law of Indiana. Under Indiana law, 

the elements of fraud are: (1) a material representation of past or existing facts which (2) 

was false, (3) was made with knowledge or reckless ignorance of its falsity, (4) was made 
No. 17AP-731 12 

with the intent to deceive, (5) was rightfully relied on by the complaining party, and 

(6) proximately caused the injury to the complaining party. Tru-Cal, Inc. v. Conrad Kacsik 

Instrument Sys., Inc., 905 N.E.2d 40, 44-45 (Ind.Ct.App.2009). "Fraudulent inducement 

occurs when a party is induced through fraudulent misrepresentation to enter into a 

contract." Lightning Litho, Inc. v. Danka Industries, Inc., 776 N.E.2d 1238, 1241 

(Ind.Ct.App.2002). "Under Indiana's discovery rule, a cause of action accrues, and the 

statute of limitations begins to run, when the plaintiff knew or, in the exercise of ordinary 

diligence, could have discovered that an injury has been sustained as a result of the tortious 

act of another." Doe v. United Methodist Church, 673 N.E.2d 839, 842 (Ind.Ct.App.1996). 

"For a cause of action to accrue, it is not necessary that the full extent of the damage be 

known or even ascertainable but only that some ascertainable damage has occurred." Id.3

{¶ 34} Under Indiana law, a fraudulent misrepresentation requires a statement of 

past or existing material fact on which the party to whom it is made has a right to and does 

rely, resulting in his injury. Wisconics Engineering, Inc. v. Fisher, 466 N.E.2d 745 

(Ind.Ct.App.1984). Accordingly, Indiana law provides that "[f]raud may not be predicated 

upon promises to be performed in the future or future events, nor, as a general rule, do 

expressions of opinion constitute fraud." (Internal citation omitted.) Id. at 756. 

{¶ 35} In Sourial's affidavit submitted in connection with his Civ.R. 56(F) motion, 

Sourial claims Nationwide management falsely represented the following: 

[T]he amount of money I would earn, that my pro forma and 

business plan were legitimate and accurate representations of 

what Nationwide expected my agency to earn, that Agency 

Executive Program agents easily meet their production 

requirements and complete the Program, that I would easily 

meet my Agency Executive Program production requirements, 

that if I acquired an existing book of business Nationwide 

would transfer me into the Replacement Agency Executive 

Program, that I would own my book of business and the books 

of business I acquired, and that if I ever left Nationwide, it 

would offer to purchase my book of business and the books of 

business I acquired. 

 

3 Similarly, under Ohio law, "[a] cause of action for fraud * * * accrues either when the fraud is discovered, or 

[when] in the exercise of reasonable diligence, the fraud should have been discovered." Cundall v. U.S. Bank,

122 Ohio St.3d 188, 2009-Ohio-2523, ¶ 29, citing Investors REIT One v. Jacobs, 46 Ohio St.3d 176 (1989), 

paragraph two of the syllabus. 
No. 17AP-731 13 

(Aug. 30, 2017 Sourial Aff. at ¶ 7.) 

{¶ 36} In responding to Nationwide's interrogatory asking Sourial to "[i]dentify and 

describe * * * statements made to you by Nationwide * * * that relate to your fraud in the 

inducement claim," Sourial answered as follows: 

 On several occasions in the Spring of 2010 at the ACB office 

on Penalton Pike Road in Indianapolis, Brad Bohn 

misrepresented to [Sourial] that no books of business were 

available for [Sourial] to acquire; 

 On several occasions in the Spring and Summer of 2010 at 

the ACB office on Penalton Pike Road in Indianapolis, Brad 

Bohn and Diana Graovac misrepresented to [Sourial] that 

if he joined the AE Program, Nationwide would allow him 

to purchase an existing book of business and transfer into 

the RAE Program as soon as a book became available; 

 On several occasions in the Spring of 2010 at the ACB office 

on Penalton Pike Road in Indianapolis, Brad Bohn and 

Dian Graovac misrepresented to [Sourial] that Nationwide 

would assign a [field] trainer to train [Sourial's] agency's 

staff and provide [Sourial] with the training, guidance, and 

support he needed to successfully operate his agency. 

 After [Sourial] joined the AE Program, Diana Graovac 

repeatedly told [Sourial] during meetings at [Sourial's] AE 

Program agency office in Indianapolis, that he could 

transition into the RAE Program as soon as he acquired an 

existing book of business; 

 In approximately November 2010, Diana Graovac met with 

[Sourial] at his AE Program agency office in Indianapolis 

and told him that a book of business worth more than 

$300,000 in total DWP had become available for him to 

purchase, and that he if purchased the book and financed 

the purchase through Nationwide Bank, he would 

transition into the RAE Program; and 

 Nationwide concealed from [Sourial] that: the majority of 

its AE Program agents were failing; that Nationwide would 

retain exclusive ownership of the book that [Sourial] 

serviced; that after [Sourial] completed the ACB Program, 

that Nationwide would change [Sourial's] production 

requirements and interfere with his ability to meet those 

requirements; that Nationwide would not apply the 
No. 17AP-731 14 

premiums and policies from the $300,000 book of business 

that [Sourial] acquired towards [Sourial's] AE Program 

production requirements; that Nationwide would transfer 

policies out of [Sourial's] AE Program book of business; and 

that Nationwide would co-opt [Sourial's] book of business 

upon cancellation of the AE Program Agreement. 

(Aug. 10, 2017 Pl.'s Answers to Def.'s Interrogs. at 5, 6.) 

{¶ 37} It is evident from Sourial's affidavit that many of the allegedly fraudulent 

representations Sourial claims Nationwide made to him are unsupported promises and 

projections of future potential sales and earnings. For example, statements about the 

amount of money Sourial could earn, the legitimacy and accuracy of his pro forma and 

business plan, that he would easily meet his AE program production requirements, and that 

Nationwide would offer to purchase his book of business and any book of business he had 

acquired when he left Nationwide are predictions about the future, not "a statement of the 

past or even the present."4 Bye v. Nationwide Mut. Ins. Co., 733 F.Supp.2d 805, 819 

(E.D.Mich.2010). As such, they are not actionable under a fraud theory as a matter of law. 

{¶ 38} Nevertheless, to the extent any of Sourial's fraud claims are actionable under 

Indiana law, the amended AE agreement Sourial signed on April 5, 2011 provides "[b]y 

signing this Amendment, [Sourial] waives all claims that he/she has or may have against 

Nationwide * * * as of the date of his/her execution of this Amendment." (Emphasis added.) 

(Amendment to AE Agreement at 1.) The language used by the parties in the amended AE 

agreement is clearly broad enough to cover all the claims raised in Sourial's complaint, 

including any actionable claims of fraud in the inducement and fraudulent 

misrepresentation related to Sourial's initial entrance into the AE program. 

{¶ 39} " '[A] release is a binding agreement between the parties under which at least 

one party to the agreement relinquishes an existing claim or cause of action against another 

 

4 Under the analogous provisions of Ohio law, the Supreme Court in Lucarell concluded as follows: "[A] party 

cannot predicate fraud on predictions or projections relating to future performance; rather, we have long 

recognized that to be actionable, a misrepresentation must involve a matter of fact that relates to the past or 

present. See Block v. Block, 165 Ohio St. 365, 377, 135 N.E.2d 857 (1956); Armstrong v. Karshner, 47 Ohio 

St. 276, 24 N.E. 897 (1890), paragraph one of the syllabus. Thus, a pro forma is 'not * * * an actionable 

representation because it is a prediction about the future, not a statement about the past or even the present.' 

Bye v. Nationwide Mut. Ins. Co., 733 F.Supp.2d 805, 819 (E.D.Mich.2010); see also Rorig v. Thiemann, 

S.D.Ohio No. 1:05CV801, 2007 U.S. Dist. LEXIS 51653, 2007 WL 2071909, *7 (July 17, 2007) ('a proforma by 

definition represents figures based on financial assumptions or projections')." Lucarell at ¶ 63. 
No. 17AP-731 15 

party to the agreement.' " Lucarell at ¶ 55, quoting 29 Lord, Williston on Contracts, Section 

73:1, at 8 (4th Ed.2003). Because a release is a contract, we apply Ohio substantive law to 

this determination pursuant to the trial court's unappealed judgment. "[W]hen a party 

signs and delivers a release, that party relinquishes all claims encompassed within it and 

has no other contractual or other duties to perform." Lucarell at ¶ 56. Absent fraud or 

mutual mistake, broadly worded releases are generally construed to include all prior 

conduct between the parties, even if the scope of such conduct or its damage is unknown to 

the releasor. Thayer v. Diver, 6th Dist. No. L-07-1415, 2009-Ohio-2053, ¶ 54. A release 

obtained by fraud in the factum is void ab initio, while a release obtained by fraud in the 

inducement is merely voidable on proof of fraud. Haller v. Borror Corp., 50 Ohio St.3d 10, 

13 (1990). 

{¶ 40} A release of liability that is procured through fraud in the inducement can be 

contested only after a return or tender of consideration. Id. See also Maust v. Bank One 

Columbus, N.A., 83 Ohio App.3d 103, 108 (10th Dist.1992) (though former employee 

produced evidence to create an issue of fact whether the release he signed as part of a 

separation agreement was procured by the employer's duress, the employee's failure to 

tender back the compensation he received in return for the release barred his tort claims 

against the employer). Sourial does not allege he returned or tendered back to Nationwide 

any bonus compensation he may have earned subsequent to signing the amended AE 

agreement containing the release. Nor has Sourial alleged he returned the $130,000 early 

cancellation payment made to him by Nationwide. 

{¶ 41} In Denlinger v. Columbus, 10th Dist. No. 00AP-315 (Dec. 7, 2000), this court 

set out the general rules of law applicable to a release of claims as follows: 

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, 552 N.E.2d 207. A release is a contract and, as such, the 

overriding consideration in interpreting a release is to ascertain 

the intent of the parties, which intent is presumed to reside in 

the language the parties chose to employ in the agreement. See, 

generally, Whitt v. Hutchison (1975), 43 Ohio St. 2d 53, 330 

N.E.2d 678; Fabrizio v. Hendricks (1995), 100 Ohio App. 3d 

352, 654 N.E.2d 127. A court will not resort to extrinsic 

evidence in its effort to give effect to the parties' intentions 
No. 17AP-731 16 

unless the language in a contract is unclear or ambiguous, or 

where the circumstances surrounding the agreement invest the 

language of the contract with a special meaning. Kelly v. 

Medical Life Ins. Co. (1987), 31 Ohio St. 3d 130, 132, 509 

N.E.2d 411. Further, absent fraud or mutual mistake, broadlyworded releases are generally construed to include all prior 

conduct between the parties, even if the scope of such conduct 

or its damage is unknown to the releasor. See, e.g., Task v. 

National City Bank, 1994 Ohio App. LEXIS 437 (Feb. 10, 

1994), Cuyahoga App. No. 65617, unreported (given broad 

language of the release, it was incumbent upon releasor to 

ascertain, at that time, whether he had any causes of action 

against defendant and, if so, to expressly manifest his intent to 

exclude those claims from the scope of the release); see, 

generally, Whitt, supra. 

{¶ 42} In Denlinger, the plaintiff, a former employee of Columbus Public Schools, 

sought damages from the city of Columbus for breach of contract, defamation, breach of 

privacy, and intentional infliction of emotional distress. The trial court dismissed the 

complaint because the waiver and release provisions of the separation agreement precluded 

plaintiff's claims. 

{¶ 43} On Denlinger's appeal to this court, we noted the broadly worded separation 

agreement provided the former employee waived all claims "arising from or in connection 

with" his employment and resignation with the school. Id. This court determined because 

the former employee's claims unquestionably arose from and/or were connected with his 

employment and/or resignation from employment, the release and waiver provision in the 

contract "clearly and unambiguously" encompassed the allegations in the complaint. Id. 

Accordingly, we affirmed the trial court's dismissal of those claims. 

{¶ 44} Here, as was the case in Denlinger, the language the parties used in the 

amended AE agreement evidences the parties' intent to waive any claims that Sourial "has 

or may have" against Nationwide arising out of Sourial's participation in the ACB and AE 

programs. (Amendment to AE Agreement at 1.) In our view, the language in the instant 

release is broad enough to encompass the tort claims alleged in Sourial's complaint. Thus, 

the language of the release clearly and unambiguously encompasses the allegations in 

Sourial's complaint that comprise Sourial's claims for fraud in the inducement and 

misrepresentation. 
No. 17AP-731 17 

{¶ 45} Releases from liability for future tortious conduct are generally not favored 

by the law and will be narrowly construed. Denlinger, citing Glaspell v. Ohio Edison Co., 

29 Ohio St.3d 44, 46-47 (1987); Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420, 424 

(4th Dist.1997); see also Thompson v. Otterbein College, 10th Dist. No. 95APE08-1009 

(Feb. 6, 1996). For example, it is error for a trial court to grant summary judgment to a 

defendant based on a release of liability where the release did not encompass intentionally 

tortious conduct that took place after plaintiff executed the release. Haller. Here, however, 

Sourial acknowledged in his deposition that the fraudulent conduct alleged in Sourial's 

complaint, and as set out in his answers to Nationwide's interrogatories, occurred prior to 

the date Sourial signed the release in question. During Sourial's deposition, Nationwide's 

counsel asked Sourial about each of the alleged fraudulent inducements or 

misrepresentations identified by Sourial in his answers to Nationwide's interrogatories. 

When counsel had completed his examination regarding the allegations of fraud, the 

following exchange took place: 

Q. Okay. Would it be safe to say that all of these 

representations or concealments all occurred before 2011? 

A. Yes. 

(Sourial Depo., Vol. 1 at 263.) 

{¶ 46} According to Sourial's deposition testimony, Nationwide committed the 

alleged fraudulent conduct at issue before Sourial executed the amended AE agreement 

containing the release. "Whether a release operates upon a certain liability depends entirely 

upon the intention of the parties, which is to be gathered from the language of the release 

and the state of facts then existing." Task v. Natl. City Bank, 8th Dist. No. 65617 (Feb. 10, 

1984), citing Whitt v. Hutchison, 43 Ohio St.2d 53 (1975); Kelly v. Med. Life Ins. Co., 31 

Ohio St.3d 130 (1987), paragraph one of the syllabus; Shifrin v. Forest City Ent., Inc., 64 

Ohio St.3d 635 (1992). "[A]bsent fraud or mutual mistake, broadly-worded releases are 

generally construed to include all prior conduct between the parties, even if the scope of 

such conduct or its damage is unknown to the releasor." Denlinger, citing Task (given 

broad language of the release, it was incumbent on releasor to ascertain, at that time, 
No. 17AP-731 18 

whether he had any causes of action against defendant and, if so, to expressly manifest his 

intent to exclude those claims from the scope of the release). 

{¶ 47} Though Sourial has claimed his assent to the original AE agreement was 

induced by certain misrepresentations, Sourial does not contend the release is voidable due 

to fraud in the procurement of the release. In his reply brief in this court, Sourial argues: 

As Nationwide notes, where a party seeks to rescind a voidable 

release that was procured by fraud in the inducement, he/she 

must return consideration paid in exchange for the release. 

Again, Nationwide misses the mark, as Sourial's underlying 

defense is not that the release is void or voidable, but that the 

release—even if valid—does not encompass non-accrued 

claims of which he was unaware. * * * Even if Nationwide paid

legally sufficient consideration in exchange for the release 

(which it did not), Sourial was not required to return it to 

maintain claims that are not encompassed by the release. 

(Emphasis sic.) (Sourial's Reply Brief at 1-2, fn.1.) 

{¶ 48} Neither does Sourial contend that his assent to the release was the result of a 

mutual mistake of fact nor that he did not realize he was signing a release of claims. 

Accordingly, to the extent Sourial has alleged an actionable claim of fraudulent inducement 

and/or fraudulent misrepresentation against Nationwide based on facts that existed when 

he executed the release, Sourial waived any such claim as a matter of law. 

4. Quasi Contract

{¶ 49} The trial court concluded that the existence of a fully integrated ACB 

agreement and AE agreement barred Sourial's claims for promissory estoppel and unjust 

enrichment as a matter of law. Because these claims are not contractual, we will apply 

Indiana substantive law in our analysis pursuant to the trial court's unappealed prior 

judgment. As a general proposition of Indiana law, "a party is excluded from presenting 

extrinsic evidence of prior or contemporaneous oral agreements offered to vary or 

contradict the terms of a written contract." Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 

161 (Ind.2005), citing Paulson v. Centier Bank, 704 N.E.2d 482, 492 (Ind.Ct.App.1998). 

Under such circumstances, "a written contract is presumed to embody the parties' entire 

agreement." Sees at 161, citing Keystone Square Shopping Ctr. Co. v. Marsh 

Supermarkets, Inc., 459 N.E.2d 420, 422 (Ind.Ct.App.1984). There are, however, 
No. 17AP-731 19 

exceptions to this rule "including a claim that a party was induced through fraudulent 

representation to enter the contract." Sees at 161, citing Circle Ctr. Dev. Co. v. Y/G Indiana, 

L.P., 762 N.E.2d 176, 179 (Ind.Ct.App.2002). Accordingly, to the extent Sourial's contract 

or quasi-contract claims survive the contractual limitations period and integration clause, 

the release would also bar those claims as a matter of law 

{¶ 50} Having determined there are no genuine issues of material fact and, by virtue 

of its contractual defenses, Nationwide is entitled to judgment as a matter of law, we turn 

our attention to Sourial's Civ.R. 56(F) motion. Sourial contends the trial court abused its 

discretion when it denied his Civ.R. 56(F) motion for a continuance. We disagree. 

{¶ 51} In Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, 

¶ 100 (10th Dist.), this court discussed the burden on the moving party as follows: 

Pursuant to Civ.R. 56(F), a party may seek additional time in 

which to develop the facts needed to adequately oppose a 

motion for summary judgment. Hatton v. Interim Health Care 

of Columbus, Inc., 10th Dist. No. 06AP-828, 2007-Ohio-1418, 

¶ 10. The party seeking the Civ.R. 56(F) continuance bears the 

burden of establishing why the party cannot present sufficient 

facts to justify its opposition to a motion for summary 

judgment without a continuance. Perpetual Fed. Sav. Bank v. 

TDS2 Prop. Mgt., LLC, 10th Dist. No. 09AP-285, 2009-Ohio6774, ¶ 13; Waverly City School Dist. Bd. of Edn. v. Triad 

Architects, Inc., 10th Dist. No. 08AP-329, 2008-Ohio-6917, 

¶ 17. The moving party cannot meet this burden with mere 

allegations; rather, the moving party must aver in an affidavit 

a particularized factual basis that explains why further 

discovery is necessary. Morantz v. Ortiz, 10th Dist. No. 07AP597, 2008-Ohio-1046, ¶ 22; Hahn v. Groveport, 10th Dist. No. 

07AP-27, 2007-Ohio-5559, ¶ 30. Absent an abuse of discretion, 

an appellate court will not reverse a trial court's ruling on a 

Civ.R. 56(F) motion. State ex rel. Sawyer v. Cuyahoga Cty. 

Dept. of Children and Family Servs., 110 Ohio St.3d 343, 

2006-Ohio-4574, ¶ 9, 853 N.E.2d 657. 

{¶ 52} The trial court, in denying Sourial's Civ.R. 56(F) motion, determined Sourial 

failed to meet his burden. We agree with the trial court's analysis. 

{¶ 53} In support of his Civ.R. 56(F) motion, Sourial presented the affidavit of his 

trial counsel, Matthew S. Grimsley, in addition to his own affidavit. Sourial's trial counsel 

averred, in relevant part, as follows: 
No. 17AP-731 20 

Nationwide argues that [Sourial] released most of his claims by 

executing an AE Agreement Amendment on April 6, 2011. 

[Sourial] intends to rebut this argument in part by establishing 

that the purported release is unenforceable because it was 

procured by fraud, that Nationwide concealed information 

from [Sourial] pertaining to the failure of the AE Program, and 

that [Sourial's] claims otherwise accrued after April 6, 2011. 

(Aug. 11, 2017 Grimsley Aff. at ¶ 12.) 

{¶ 54} Sourial first claims further discovery is needed to establish his fraud claims 

that accrued after he signed the release. Sourial argues, under Ohio law, a party cannot 

release fraud claims that have not yet accrued when the release is executed. We disagree. 

As previously stated, the operative language of the release encompasses any claims Sourial 

"has or may have" against Nationwide. (Amendment to AE Agreement at 1.) This court has 

previously stated that "absent fraud or mutual mistake, broadly-worded releases are 

generally construed to include all prior conduct between the parties, even if the scope of 

such conduct or its damage is unknown to the releasor." McBroom v. Safford, 10th Dist. 

No. 11AP-885, 2012-Ohio-1919, ¶ 12, citing Task (given broad language of the release, it was 

incumbent on releasor to ascertain, at that time, whether he had any causes of action 

against defendant and, if so, to expressly manifest his intent to exclude those claims from 

the scope of the release). 

{¶ 55} The cases cited by Sourial expressing an opposing view arise primarily under 

federal laws, which we decline to apply in this case. See, e.g., Callen v. Pennsylvania RR. 

Co., 332 U.S. 625 (1948) (case decided under the Federal Employees Liability Act, which 

provides at 45 USCS 55 that "[a]ny contract, * * * the purpose or intent of which shall be to 

enable any common carrier to exempt itself from any liability created by this act * * * shall 

to that extent be void"); Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 267 (6th Cir.1988) 

(case decided under the federal copyright laws); Anderson v. A.C. & S. Inc., 154 Ohio 

App.3d 393, 2003-Ohio-4943 (8th Dist.) (case decided under the Federal Employees 

Liability Act); Isroff v. Westhall Co., 9th Dist. No. 14184 (Feb. 21, 1990) (citing Forry case 

decided under federal copyright laws); Babbitt v. Norfolk & W. Ry. Co., 104 F.3d 89, 92 

(6th Cir.1997) (case decided under Federal Employees Liability Act). Under the 

circumstance, we cannot say the trial court abused its discretion by refusing to allow Sourial 
No. 17AP-731 21 

to conduct additional discovery to establish his fraud claims that had not yet accrued when 

he executed the release and where it is clear that such evidence would not have provided a 

defense to the release. Moreover, Sourial's Civ.R. 56(F) motion fails to explain why he could 

not present sufficient facts through other forms of discovery to establish when his fraud 

claims accrued without the need for a continuance. 

{¶ 56} Sourial next contends additional discovery is necessary to establish that the 

release was procured by fraud. Sourial's affidavits in support of his Civ.R. 56(F) motion do 

not, however, aver a particularized factual basis for the trial court to determine that such 

evidence can be found in the Nationwide records Sourial seeks, nor does his motion explain 

why he is unable to present such facts without a continuance. Moreover, as previously 

noted, Sourial makes clear in his reply brief in this court that he is not endeavoring to avoid 

the release on the grounds it was procured by fraud. 

{¶ 57} Sourial, as the moving party, must aver in an affidavit a particularized factual 

basis that explains why further discovery is necessary. Morantz v. Ortiz, 10th Dist. No. 

07AP-597, 2008-Ohio-1046, ¶ 22; Hahn v. Groveport, 10th Dist. No. 07AP-27, 2007-Ohio5559, ¶ 30. A party moving the trial court for a Civ.R. 56(F) continuance cannot meet his 

burden with mere allegations. Ryan at ¶ 100, citing Morantz at ¶ 22; Hahn at ¶ 30. Here, 

Sourial seeks a continuance of the trial court's ruling on Nationwide's motion for summary 

judgment in order to obtain discovery that the trial court has previously denied him. In our 

view, it was incumbent on Sourial to provide the trial court with a stated, particularized 

factual basis on which the trial court could conclude that further discovery would yield 

evidence that would negate the impact of the release. Sourial failed to do so. 

{¶ 58} "As the provisions of Civ.R. 56(F) are discretionary, we review the trial court's 

determination for an abuse of discretion." Libertarian Party of Ohio v. Husted, 10th Dist. 

No. 16AP-496, 2017-Ohio-7737, ¶ 76, citing Perpetual Fed. Sav. Bank v. TDS2 Prop. Mgt., 

LLC, 10th Dist. No. 09AP-285, 2009-Ohio-6774, ¶ 11. "An abuse of discretion occurs when 

a court's judgment is unreasonable, arbitrary or unconscionable." Husted at ¶ 76, citing 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). In this case, Sourial failed to 

properly support his Civ.R. 56(F) motion. Accordingly, we hold the trial court did not abuse 

its discretion in denying Sourial's Civ.R. 56(F) motion. 
No. 17AP-731 22 

{¶ 59} Pursuant to Civ.R. 56(E), "[w]hen a motion for summary judgment is made 

and supported as provided in this rule, an adverse party may not rest upon the mere 

allegations or denials of the party's pleadings, but the party's response, by affidavit or as 

otherwise provided in this rule, must set forth specific facts showing that there is a genuine 

issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be 

entered against the party." Sourial did not respond to the motion as required by Civ.R. 

56(E). For the reasons stated above, we have determined Nationwide's properly supported 

motion for summary judgment demonstrates the absence of a genuine issue of material fact 

for trial. Accordingly, the trial court did not abuse its discretion in denying Sourial's Civ.R. 

56(F) motion. Sourial's eleventh assignment of error is overruled. 

B. Sourial's Assignments of Error One Through Nine

{¶ 60} In assignments of error one through nine, Sourial challenges various aspects 

of the trial court's rulings on his motion to compel discovery, Sourial's motion for 

reconsideration of that decision, and Sourial's motion for an in camera inspection of 

documents. Having determined the trial court did not err by granting summary judgment 

for Sourial because Sourial's claims against Nationwide were barred as a matter of law, 

either by the contractual limitations period, the integration clause and/or the release, we 

find Sourial's assignments of error one through nine do not allege reversible error because 

the discovery Sourial sought to compel would not have produced evidence negating the 

contractual defenses asserted by Nationwide. 

{¶ 61} By way of explanation, in Sourial's first, second, fourth, and seventh 

assignments of error, Sourial contends the trial court abused its discretion when it failed to 

compel Nationwide to produce unredacted records documenting the performance of other 

agents in the AE program and any incentives provided to Nationwide managers and vice 

presidents for recruiting new agents into the program. Sourial asserts these records 

provide necessary support for his fraud claims.5 Even if it were assumed the Nationwide 

records sought by Sourial contained the evidence Sourial claims, the release encompassed 

all claims based on facts that existed before he signed the release. Pursuant to App.R. 

 

5As we noted in overruling Sourial's eleventh assignment of error, Sourial has failed to produce any evidence 

to support a finding that a majority of agents were failing. Accordingly, his claim that Nationwide records 

contain such information is pure speculation. 
No. 17AP-731 23 

12(A)(1)(c), a court of appeals need not decide an assignment of error if it is "made moot by 

a ruling on another assignment of error." See Smith v. Barclay, 10th Dist. No. 11AP-798, 

2012-Ohio-5086 (because a client's legal malpractice claim was barred by the statute of 

limitations, the client's remaining assignment of error alleging the trial court erred in 

permitting attorney to withdraw certain admission was rendered moot); Aladdins Lights, 

Inc. v. Eye Lighting Internatl., 9th Dist. No. 28182, 2017-Ohio-7229 (court of appeals 

ruling that the trial court did not err when it granted summary judgment to the appellee on 

the issue of standing rendered moot the appellant's assignment of error challenging the 

trial court's denial of its motion to compel discovery); Chambers v. Melling, Harding, 

Schuman & Montello, 8th Dist. No. 85045, 2005-Ohio-2456 (where the court of appeals 

determines the trial should have granted summary judgment in favor of the appellee 

because the appellant's complaint was untimely filed, the appellant's remaining assignment 

of error challenging the trial court's decision to issue a protective order to a third-party 

witness is moot); Doe v. Rupp, 8th Dist. No. 71938 (Jan. 29, 1998) (where summary 

judgment for defendant based on the running of the statute of limitations is affirmed on 

appeal, plaintiff's assignments of error challenging the trial court's ruling on plaintiff's 

motions to compel discovery is moot as the discovery sought did not relate to plaintiff's 

tolling argument); Zellmer & Gruber v. George, 8th Dist. No. 68674 (Feb. 8, 1996) (because 

the trial court properly entered default judgment for defendant, plaintiff's assignments of 

error regarding discovery rulings are moot); Morgan v. Ohio State Univ. College of 

Dentistry, 10th Dist. No. 13AP-287, 2014-Ohio-1846, ¶ 38 (in appellant's medical 

malpractice action, appellant's assignments of error challenging the trial court's findings of 

fact as to appellee's breach of standard of care were rendered moot by the ruling on a 

separate assignment of error that the trial court properly determined that the appellant 

failed to present evidence of proximate cause). 

{¶ 62} Here, because the trial court granted summary judgment in favor of 

Nationwide on the strength of the release and not the absence of evidence to support 

Sourial's fraud claims, and because we have overruled Sourial's eleventh assignment of 

error challenging the trial court's ruling, any trial court error in failing to compel discovery 

as alleged in Sourial's first, second, fourth, and seventh assignments of error would not 

change the outcome of this appeal. Consequently, our ruling on Sourial's eleventh 
No. 17AP-731 24 

assignment of error renders moot Sourial's first, second, fourth, and seventh assignments 

of error pertaining to discovery issues. 

{¶ 63} Similarly, in Sourial's sixth and eighth assignments of error, Sourial alleges 

the trial court abused its discretion in failing to compel Nationwide to respond to 

interrogatories seeking information about the RAE program and existing books of business 

available for purchase during Sourial's tenure as an agent in the AE program. Again, even 

if we were to conclude the Nationwide records sought by Sourial possibly contain evidence 

to support Sourial's fraud claims, such evidence is not probative of Sourial's allegation that 

the subsequent release does not encompass those claims. Accordingly, our ruling on 

Sourial's eleventh assignment of error renders moot Sourial's sixth and eighth assignments 

of error pertaining to discovery issues. 

{¶ 64} In Sourial's ninth assignment of error, he contends the trial court erred by 

failing to compel Nationwide to answer Interrogatories 26, 27, 28, and 29. According to 

Sourial, Nationwide objected to these interrogatories because he had exceeded the total 

number of interrogatories permitted by Civ.R. 33. Though Sourial argues that Nationwide's 

objection is erroneous and that the trial court abused its discretion by denying Sourial's 

motion to compel, Sourial's brief to this court does not does explain how he was prejudiced 

by the trial court's failure to compel a response by Nationwide. Accordingly, our ruling on 

Sourial's eleventh assignment of error renders moot Sourial's ninth assignment of error 

relating to his motion to compel certain interrogatory responses. 

{¶ 65} In Sourial's third assignment of error, he alleges the trial court erred by failing 

to compel Nationwide to reveal the identity of the person(s) who responded to his 

interrogatories, and in Sourial's fifth assignment of error, he alleges the trial court erred by 

failing to compel Nationwide to provide information pertaining to similar actions brought 

against it. Sourial has not explained how this discovery would produce evidence in support 

of his contention that the release does not encompass his fraud claims. Accordingly, we 

find that our ruling on Sourial's eleventh assignment of error renders moot Sourial's third 

and fifth assignments of error pertaining to discovery issues. 

C. Sourial's Tenth Assignment of Error

{¶ 66} In Sourial's tenth assignment of error, he argues the trial court abused its 

discretion in denying his motion to vacate or enlarge the case schedule pending a ruling on 
No. 17AP-731 25 

his motion to compel. As we noted in ruling on Sourial's eleventh assignment of error, 

Sourial waived all of his claims when he executed the release. As a result, the additional 

time Sourial requested in order to obtain discovery would not have yielded evidence to 

support a triable issue of fact. Our ruling on Sourial's eleventh assignment of error, 

therefore, renders moot the alleged trial court error raised in Sourial's tenth assignment of 

error. 

V. CONCLUSION 

{¶ 67} Having overruled Sourial's eleventh assignment of error, and having 

determined Sourial's remaining assignments of error are moot, we affirm the judgment of 

the Franklin County Court of Common Pleas. 

Judgment affirmed.

BRUNNER and HORTON, JJ., concur. 

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