For Plaintiff-Appellant: David A. Van Gaasbeek, 200 National City Bank Bldg., Canton, Ohio 44702.

For Defendant-Appellee: Gust Callas, G. Randall Ayers, Black, McCuskey, Souers & Arbaugh, 100 United Bank Plaza, 220 Market Avenue South, Canton, Ohio 44702. Jeffrey L. Madoff, Matkov, Salzman, Madoff & Gunn, Suite 1500, 100 West Monroe Street, Chicago, Illinois 60603-1906.

SMART, P.J.

This is an appeal from a summary judgment of the Court of Common Pleas of Stark County, Ohio, that held that this action brought by plaintiff-appellant William Wachunas (appellant) was barred by the statute of limitations.

Appellant assigns two errors to the trial court:

THE TRIAL COURT ERRED BY SUSTAINING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE STATUTE OF LIMITATIONS FOR AN ACTION BROUGHT PURSUANT TO OHIO REVISED CODE SECTION 4112.99 IS SIX YEARS AND NOT SIX MONTHS.

THE TRIAL COURT ERRED BY NOT ALLOWING APPELLANT TO AMEND HIS COMPLAINT TO REFLECT OHIO REVISED CODE SECTION 4112.99 AS THE BASIS OF HIS ACTION.

Appellant's statement pursuant to Loc.App.R. 4(D) states that the facts are not in dispute, but that the trial court was incorrect as a matter of law.

The record indicates that appellant filed the complaint on June 2, 1992, against defendant-appellee MacMillan/McGraw Hill Co., Inc. (appellee) alleging age discrimination in its layoff of May 31, 1990. Appellant alleged that appellee informed him that the layoff was because of a reduction in force with all sales representatives in the state of Ohio. Appellant alleged in his complaint, however, that he was not given the option to relocate in a different area or to another state. Thereafter, appellant allegedly discovered that other younger sales representatives in the state of Ohio were given the option of relocating to a different area in Ohio or to another state.

Appellant alleges that at the time of the layoff, appellee had six sales representatives in the state of Ohio. Appellant alleges that he is the oldest one in age and had the longest seniority. He also alleges he was the only one laid off. He asserts that he was physically and mentally able to perform the job, and that he was replaced by a younger man.

In his original complaint of June 2, 1992, appellant states that his action is brought pursuant to R.C. 4112.02(A) and (N). Thereafter, appellant attempted to amend his complaint to bring this action alternatively pursuant to R.C. 4112.99. The issue of the amendment is treated infra II.

R.C. 4112.02(N) states in pertinent part:

An aggrieved individual may enforce his rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within 180 days after the alleged unlawful practice occurred, in any court of competent jurisdiction for any legal or equitable relief that will effectuate his rights. . . .

Based upon the above, it was not error for the trial court to dismiss the original complaint because it was barred by the statute of limitations.

The first assignment of error is overruled.

The record indicates that appellee's motion to dismiss or in the alternative for summary judgment was filed on June 30, 1992. On July 2, 1992, the trial court filed a notice that it would hear argument on the summary judgment on July 24, 1992. On August 3, 1992, plaintiff moved to amend his complaint to state that it was brought pursuant to R.C. 4112.99. The trial court refused to permit appellant to amend his complaint.

Civ. R. 15(A) states in pertinent part:

(A) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires.

Although the rule directs that leave of court be liberally granted, nevertheless it is not given automatically. Here, the motion to amend the complaint was some five weeks after the motion for summary judgment, and ten days after the hearing on the motion for summary judgment. The theory of recovery had not changed, and certainly the statutory authority for a dismissal under R.C. 4112.02(N) was available to appellant when the original complaint was drafted.

The Supreme Court has determined that our standard of review is to determine whether the trial judge's decision was an abuse of discretion, Wilmington Steel Products, Inc. v. CEI Co. (1991), 60 Ohio St.3d 120 at 122, 573 N.E.2d 622. In Wilmington Steel Products, the Supreme Court stressed the need for motions to amend be timely filed, id. citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113.

Based upon the foregoing, this court cannot substitute its judgment for that of the trial court, and for this reason we hold that the trial court did not abuse its discretion in overruling the motion to amend. For this reason we do not reach the issue of what the applicable statute of limitations for R.C. 4112.99 is.

The second assignment of error is overruled.

For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Smart, P.J.

Gwin, J. and Hoffman, J. concur.

JUDGMENT ENTRY

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.