Kidd v. Center Point Plaza6/17/1999
w, we find the trial court did not err in granting summary judgment to appellees.
Assignments of Error I and IV are denied.
II., III.
Appellant claims the trial court erred in granting summary judgment to appellees because discovery had not been completed. Appellant further claims the trial court erred in requiring her counsel to file an affidavit pursuant to Civ.R. 56(F). We disagree. When appellant filed her response to appellees' motion for summary judgment, she averred that discovery had not been completed and there remained outstanding answers to interrogatories. Civ.R. 56(F) states as follows: 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 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.
Beyond appellant's failure to file the affidavit is even a more troublesome issue. The complaint was filed on December 30, 1996. On January 17, 1997 and January 27, 1997, appellees served appellant with interrogatories and a request for production of documents. On May 12, 1997, appellees filed a motion to compel the requested discovery. By order filed July 7, 1997, the trial court granted the motion and awarded attorney fees. By notice filed November 7, 1997, the matter was set for mediation during settlement week, December 17, 1997. The mediator's report filed December 18, 1997 contained a notation that discovery was not complete. By notice filed March 13, 1998, the matter was set for trial for September 29-30, 1998. On March 18, 1998, appellees filed a motion for dismissal and for sanctions for appellant's failure to respond to appellees' discovery requests and failure to comply with the trial court's July 7, 1997 order. By memorandum of decision filed April 23, 1998 and entry filed May 8, 1998, the trial court denied appellees' motion to dismiss but awarded appellees attorney fees on the discovery issue. By notice filed June 1, 1998, a new trial date was set for October 20-21, 1998.
Thereafter, a motion deadline was set for June 19, 1998 with the trial date continued to October 27-28, 1998. See, Agreed Entry and Notice, both filed June 12, 1998. Appellees' motion for summary judgment was filed on June 19, 1998. Thereafter, appellant propounded interrogatories to appellees which were not due until July 31, 1998. See, Plaintiff's Memorandum in Opposition filed July 20, 1998. The summary judgment schedule was appellant's response due July 20, 1998, appellees' reply due July 27, 1998 and hearing July 31, 1998. All counsel signed and assented to this schedule. See, Agreed Entry filed July 7, 1998. Appellees answered the interrogatories and attached the answers to their July 27, 1998 reply brief as Exhibit 1. The answers on the critical issues of causation for the slippery surface contained the same information as in Mr. Stuckey's affidavit filed with the June 19, 1998 motion for summary judgment. We find appellant's case had much further to go than just the interrogatories propounded some fifteen months from the filing of the complaint. Based upon the procedural history of this case, Civ.R. 56(F) and the lapse of time since the filing of the complaint, we concur with the trial court's decision. Assignments of Error II and II are denied.
The judgment of the Court of Common Pleas of Fairfield County, Ohio is hereby affirmed.
By Farmer, J. Gwin, P.J. and Edwards, J. concur.
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