[Cite as Davis v. Davis,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

JAMES E. DAVIS, III : : Appellate Case No. 26200 Plaintiff-Appellant : : Trial Court Case No. 2013-CV-1866 v. : : ROCHELLE DAVIS, et al. : (Civil Appeal from : (Common Pleas Court) Defendant-Appellee : :

........... OPINION Rendered on the 7th day of November, 2014. ...........

RYAN C. BECK, Atty. Reg. No. 0085592, 131 North Ludlow Street, Suite 1400, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant

STEPHEN M. YEAGER, Atty. Reg. No. 0011841, SUSAN M. SALYER, Atty. Reg. No. 0076623, 205 West Fourth Street, Suite 1280, Cincinnati, Ohio 45202 Attorneys for Defendant-Appellee

ALICIA HOLDEN, 1118 Webb Forest Trail, Lawrenceville, Georgia 30043 Defendant-Appellee-Pro Se

MARGARET SCHUTTE, Atty. Reg. No. 0078968, 200 West Second Street, Suite 200, Dayton, Ohio 45402 Attorney for Defendant-Appellee-U.S. Department of Labor 2

.............

FAIN, J.

{¶ 1} Plaintiff-appellant James E. Davis, III appeals from a summary judgment

rendered in favor of defendant-appellee Rochelle Davis. Mr. Davis contends that the trial

court erred in granting summary judgment and in not granting his motion for a continuance to

conduct additional discovery pursuant to Civ.R. 56(F).

{¶ 2} We conclude that the trial court abused its discretion by failing to grant Mr.

Davis’s request for a continuance to conduct additional discovery. Accordingly, the judgment

of the trial court is Reversed, and this cause is Remanded for further proceedings.

I. Course of the Proceedings

{¶ 3} On March 26, 2013, James E. Davis, III brought this action against Rochelle

Davis, Alicia Holden, and the United States Department of Labor, seeking compensation for

personal injuries sustained by Mr. Davis when he fell on real property located at 1827

Oakridge Avenue in Dayton. After Rochelle Davis filed her answer to the complaint, Mr.

Davis voluntarily dismissed, without prejudice, Holden and the Department of Labor. Dkt.

20, 29.

{¶ 4} On August 8, 2013, the trial court issued its Final Pretrial Order. The trial

court set April 28, 2014 as the deadline to complete all discovery; February 27, 2014 as the

deadline to file motions for summary judgment; and May 28, 2014 as the trial date. The

Pretrial Order also stated that any responses to a motion for summary judgment must be filed 3

within 14 days of the filing of the motion. Dkt. 32.

{¶ 5} On February 21, 2014, Rochelle Davis filed a motion for summary judgment.

Dkt. 49. Mr. Davis filed his response to the motion for summary judgment on March 20, 2014.

Dkt. 50. In his response, Mr. Davis requested additional time to respond to the motion for

summary judgment, explaining that a deposition scheduled for April 25, 2014, was crucial to any

response to the motion for summary judgment.

{¶ 6} On March 21, 2014, the trial court granted Rochelle Davis’s motion for summary

judgment. Dkt. 52. The trial court used an entry prepared by counsel for Rochelle Davis that

simply stated: “This matter came before the Court on the Motion of Defendant Rochelle Davis

for summary judgment. The Court finds said motion well taken and hereby grants same.”

{¶ 7} From this judgment, Mr. Davis appeals.

II. The Trial Court Abused its Discretion by Overruling Mr. Davis’s Request for

Continuance and Additional Discovery Pursuant to Civ.R. 56(F)

{¶ 8} The sole assignment of error states:

THE TRIAL COURT ERRED BY GRANTING

DEFENDANT-APPELLEE’S MOTION FOR SUMMARY JUDGMENT AND

FAILING TO GRANT PLAINTIFF-APPELLANT’S MOTION UNDER CIVIL

RULE 56(F).

{¶ 9} Civ.R. 56(F) provides:

Should it appear from the affidavits of a party opposing the motion for

summary judgment that the party cannot for sufficient reasons stated present by 4

affidavit facts essential to justify the party’s opposition, the court may refuse the

application for judgment or may order a continuance to permit affidavits to be

obtained or discovery to be had or may make such other order as is just.

{¶ 10} The decision whether to grant or deny a continuance is within the sound

discretion of the trial court and should not be reversed on appeal absent an abuse of that

discretion. State v. Unger,

,

(1981). The term “abuse of

discretion” has been defined as a decision that is unreasonable, arbitrary, or unconscionable.

Huffman v. Hair Surgeon, Inc.,

,

(1985).

{¶ 11} The circumstances present in each case should be considered in determining

whether a trial court abuses its discretion in denying a motion for continuance. Countrywide

Home Loans Servicing, L.P. v. Stultz,

,

,

(10th Dist.). The reviewing court must apply a balancing test, weighing the trial court’s

interest in controlling its own docket, including facilitating the efficient dispensation of justice,

versus the potential prejudice to the moving party.

“The trial court must consider the length

of the delay requested; whether previous continuances have been granted; the inconvenience to

the parties, witnesses, attorneys, and the court; whether the request is reasonable or purposeful

and contrived to merely delay the proceedings; and whether the movant contributed to the

circumstances giving rise to the request.”

{¶ 12} On February 14, 2014, the parties came to an agreement to take the deposition of

Yolanda Burch on April 25, 2014. That deposition was within the discovery cutoff date set by

the trial court in its Final Pretrial Order. Rochelle Davis then moved for summary judgment on

February 21, 2014. Pursuant to the Final Pretrial Order, Mr. Davis then had fourteen days to file 5

a response to the motion for summary judgment. Mr. Davis failed to meet this deadline. Mr.

Davis filed his response to the motion for summary judgment on March 20, 2014.

{¶ 13} In his response to the motion for summary judgment, Mr. Davis stated that he

“has not had sufficient time to conduct discovery so he can properly respond to this Motion.”

He asked the trial court to overrule the motion until discovery was completed or to give him until

May 23, 2014 to file a response to the motion. In the memorandum in support of his response to

the motion for summary judgment, Mr. Davis explained that the deposition of Yolanda Burch

was scheduled for April 25, 2014. According to his memorandum:

Burch resided in the property and would have seen the condition of the

porch daily. * * * Mr. Davis reasonably expects Burch will be able to provide

evidence demonstrating the condition of the porch was significantly deteriorating

over the period of time and provide evidence showing Defendant Davis had either

been informed of the poor condition of the porch or that she should have known. *

* * Thus, Mr. Davis will be able to demonstrate that Defendant Davis had notice

of the hazard with Burch’s deposition.

Dkt. 50.

{¶ 14} Mr. Davis also submitted the affidavit of his counsel, Ryan C. Beck, in support of

his response to the motion for summary judgment. Dkt. 51. In the affidavit, Beck explained

that the parties had agreed in February 2014 to take the deposition of Yolanda Burch on April 25,

2014. According to the last two paragraphs of the affidavit:

I have sufficient cause to believe that Yolanda Burch has important

information regarding the condition of the property located at 1827 Oakridge 6

Avenue, Dayton Ohio in 2011, and that this evidence will demonstrate that the

porch at the address was deteriorating and in a hazardous condition, and will

provide evidence showing that Defendant Rochelle Davis has either been

informed of the condition or should have known of the condition.

Because the basis for the Motion for Summary Judgment is founded upon

the allegation that Defendant Rochelle Davis was not aware of the hazardous

condition of the porch, I cannot adequately respond to the motion without the

opportunity to conduct the deposition of Yolanda Burch, who has critical

information regarding these issues.

{¶ 15} The trial court did not address Mr. Davis’s request before granting summary

judgment. As we noted above, a trial court is afforded some discretion in deciding a Civ.R.

56(F) motion for a continuance of a summary judgment hearing. Therefore, we must give that

decision some deference. The extent of that deference is attenuated when there is no indication

that the trial court ever considered the Civ.R. 56(F) motion, as in this case. Moreover, while the

response to the motion for summary judgment was untimely filed, this does not preclude the trial

court from considering the request for additional discovery and a continuance pursuant to Civ.R.

56(F). Indeed, the trial court’s Final Pretrial Order allowed for additional discovery well past the

deadline for summary judgment motions. Furthermore, the request for additional time to

respond to the motion, albeit filed outside the fourteen days provided for a response, was well

before the trial date and the discovery cutoff.

{¶ 16} Balancing the relevant factors, we conclude that the trial court abused its

discretion by effectively overruling Mr. Davis’s request for a continuance to conduct additional 7

discovery when the trial court granted summary judgment to Rochelle Davis. Accordingly, the

sole assignment of error is sustained.

III. Conclusion

{¶ 17} The sole assignment of error having been sustained, the judgment of the trial

court is Reversed, and this cause is remanded for further proceedings consistent with this

opinion.

.............

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Ryan C. Beck Stephen M. Yeager Susan M. Salyer Alicia Holden Margaret Schutte Hon. Frances E. McGee