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Bozeman v. Wendy's International8/21/2001
ffidavit facts which are sufficient to justify his opposition[,] he may seek a continuance or deferral of the court's action on the motion by filing affidavits which must state sufficient reasons why he cannot then present by affidavit facts essential to justify his opposition to the motion and why or how the continuance, deferral of action, or discovery would permit him to obtain such facts. Civ.R. 56(F)."
The court further recognized:
" * Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment. There must be a factual basis stated and reasons given why it cannot present facts essential to its opposition to the motion. * Id. at 169 *.
As the court recognized, the burden is upon the party seeking to defer the court's action on a motion for summary judgment to demonstrate that a continuance is warranted. [Emphasis added.]
Pursuant to a single-sentence "decision and entry," the trial court disposed of appellant's motion to compel as "moot" after the court had granted Wendy's motion for summary judgment. Given our disposition below of the remaining assignments of error, we deem it "just," within the meaning of Civ.R. 56(F), to order the trial court to revisit the motion to compel, given the clear import of the necessity to appellant to attempt to prove his case. Appellant's motion set forth his "factual basis," and cited Civ.R. 37. In addition, appellant, in one of his numerous attempts to access critical information, informed the court that, due to his present incarceration, "prison rules and access to notary services was and remains a key issue in failure to submit a timely filed affidavit." While counsel for Wendy's responds that, in essence, it was not Wendy's fault or problem that appellant "chose" to file his action while he was incarcerated, we make the rather obvious, important observation that appellant's incarceration does not toll the applicable statute of limitations.
Civ.R. 37 governs motions for orders compelling discovery, and includes as potential grounds "evasive or incomplete answers." Civ.R. 37(A)(3). Appellant cited the rule, but the trial court failed to explain its rationale underlying its apparent conclusion that appellant's discovery requests were without merit.
While we do agree with defense counsel's assertion that the record reveals that some of the information sought by appellant appears to involve matters irrelevant to negligence issues and/or the lone-named defendant, i.e., information regarding the manufacturer of the soap dispenser, we are not prepared to summarily reject appellant's argument that the trial court should have addressed his discovery problems prior to ruling on the summary judgment motion. Given the circumstances of this case, the trial court erred in summarily overruling appellant's motion on grounds that it was "moot" after granting summary judgment.
The first assignment of error is sustained.
We turn now to those assignments of error challenging the trial court's treatment of the "evidence" appellant was able to present at the time his motion to compel discovery was pending. Specifically, to the extent each is implicated in this "category," we address assignments of error seven, eight, and ten. Unfortunately, appellant poses only "issues," without specific argument or authority in support.
Assignments of error seven and eight take issue with the trial court's disposition of "plaintiff's documentary evidence" appended as "exhibits" to, inter alia, his response to the motion for summary judgment. These d
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