Joy A. Plank v. James E. Lowe
| Decision Date | 16 July 1986 |
| Docket Number | 86-LW-1813,9602 |
| Parties | Joy A. PLANK, et al., Plaintiffs-Appellants, v. James E. LOWE, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
William F. Clinard, Germantown, for plaintiffs-appellants.
Gordon D. Arnold and Jane M. Lynch of Freund, Freeze & Arnold Dayton, for defendant-appellee.
On August 2, 1984 at approximately 1:00 a.m., Joy Plank met her husband Daniel at the Sip-N-Nip bar located on Troy Street in the City of Dayton. An altercation broke out at the bar so the Planks left and proceeded to cross Troy Street.
While in the process of crossing the street, the pavement under Mrs. Plank's left foot collapsed causing her to pitch forward and fall to her knees. As Mrs. Plank lay in the street attempting to extricate her foot, Mr. Plank tried to get the attention of the driver of a motorcycle who was heading southbound on Troy towards the Planks. Mrs. Plank was unable to free her foot from the crevice in time to avoid being struck by the motorcycle.
Mrs Plank suffered a compound fracture of her left leg which required several surgeries and prolonged outpatient treatment and therapy.
Mrs Plank and her husband filed suit in the Court of Common Pleas, Montgomery County against the driver of the motorcycle, James Lowe, the City of Dayton, the City Commissioners, and Mayor Paul Leonard. Discovery commenced in the action and the court subsequently filed a pre-trial order setting August 30, 1985 as discovery cut-off. A trial date of October 7, 1985 was established.
Defendant City of Dayton was granted leave to file a motion for summary judgment, which was filed on September 17, 1985. Hearing on the motion was set for October 8, 1985.
On October 4, 1985 plaintiffs filed their memorandum in opposition to the defendant's motion for summary judgment with a supporting affidavit attached. Plaintiffs also filed the depositions of Judy Vance, an eyewitness and Kay McDonaugh, an area activist, in support of their memorandum in opposition. Defendant had previously filed the depositions of Joy Plank, Louis Boehman, plaintiffs' accident reconstruction expert and Dr. Keith Miller, plaintiff's physician.
Defendant's motion for summary judgment was granted on October 7, 1985 and plaintiffs filed a notice of appeal. Thereafter, plaintiff-appellants filed a motion in the Second District Court of Appeals to supplement the record to include the deposition of Anthony Lucente, City of Dayton Street Maintenance Supervisor. This court remanded the issue to the trial court for a determination as to what materials were before it, thus constituting the record on appeal.
On remand, the trial court overruled plaintiffs' motion to supplement on the basis that Mr. Lucente's deposition was never properly filed for the court's review. Further, the trial court stated that even if the deposition had been a part of the record, it would not have had any effect on the court's decision to grant the defendant's motion for summary judgment.
The cause is before this court on two assignments of error.
Appellants contend they invoked Civ.R. 56(F) by specifically indicating in their memorandum that summary judgment was premature and could not properly be opposed as certain discovery material were still outstanding. Appellants argue that although the trial court had notice of forthcoming, probative evidence, the court nevertheless proceeded and granted the defendants' motion for summary judgment without considering the evidence. Appellants also argue that three depositions, not before the court, were crucial in that they raised issues of material fact.
Generally, summary judgment should be utilized cautiously so as not to usurp a litigant's right to trial where conflicting facts and inferences are present. Viock v. Stowe-Woodward Co. (1983), 134 Ohio App.3d 7. Where however, no general issues as to any material fact are present, summary judgment may be used to terminate useless and expensive litigation. Petroff v. Commercial Motor Freight Inc., (C.P.1960) 12 Ohio Op.2d 484.
The staff notes to Civ.R. 56(C) emphasize that all supporting and opposing summary judgment documents must be timely filed. In the event depositions are to be used as evidence, Civ.R. 32(A)(1) requires that they be filed one day before trial or hearing.
Pursuant to Civ.R. 56(F) a court may determine that a motion for summary judgment is premature and either grant a continuance or refuse the application for judgment. While Civ.R. 56(F) is made applicable specifically when it appears "from the affidavits of a party opposing the motion" that he cannot for reasons stated present facts essential to justify his opposition to summary judgment, courts frequently find the requisite showing on the record or from arguments before them, to apply subsection (F). See, Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121 (). The sufficiency of the reasons stated, however they may be shown, is ordinarily the court's foremost consideration in the application of Civ.R. 56(F).
A review of the record in the present action indicates that appellants failed to meet the threshold requirement of Civ.R. 56(F) by not presenting sufficient reasons to justify application of the rule. The materials that appellants claim were crucial to the disposition of the summary judgment motion were available for some time before the hearing date. Appellants had sufficient time to develop the evidence sought and to obtain affidavits or file depositions of their own witnesses prior to the summary judgment proceeding.
The parties' briefs depict some confusion with respect to what depositions were actually before the trial court during the summary judgment proceedings. Our review of the official docket and record shows the depositions of Judy Vance and Kay McDonaugh were timely filed on October 4, 1985 and were therefore before the trial court. Additionally, the depositions of Joy Plank, Dr. Keith Miller and Louis Boehman were timely filed by the defendant.
However, the deposition of Anthony Lucente, although transcribed on September 23, 1985, was never filed. Similarly, the deposition of Harvey Arnold and Daniel Plank, though available before October 7, 1985, were also never filed. (See, Plaintiff's motion contra to the City of Dayton's motion for summary judgment). The fact that these materials were available but simply not filed, does not support a claim that there was insufficient opportunity to obtain the materials. Lack of diligence in filing available materials is generally an inadequate reason to justify the application of Civ.R. 56(F). See generally, 47 ALR Fed 206 ().
We note the present case does not involve a situation where discovery was substantially incomplete. See, Tucker v. Webb Corp., supra. The court ordered discovery deadline was August 30, 1985. Furthermore, there was no claim that the facts concerning a central issue were totally within the knowledge of the party moving for summary judgment. See Hartwell v. Volunteers of America (1981), 2 Ohio App.2d 37.
The trial court did not err in failing to either overrule the motion for summary judgment or continue the motion until such time as would allow additional discovery. Appellants' motion failed to state sufficient reasons to justify the application of Civ.R. 56(F). Thus the trial court was free to consider the merits of the motion for summary judgment. Appellants first assignment of error is overruled.
Appellants' second assignment of error states the trial court erred in granting summary judgment to the City of Dayton when material issues of fact remained. Under Civ.R. 56(C) summary judgment shall be granted where no genuine issue as to any material fact exists; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. A reviewing court, upon an appeal from a summary judgment must review the evidence in a light most favorable to the opposing part...
To continue reading
Request your trial