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Homa v. Pumpkin Patch Shoppe For Kids10/30/1997
PER CURIAM
JUDGMENT: AFFIRMED.
This cause came to be heard on the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, and the briefs.
Plaintiff-appellant Grace Homa appeals from an order granting summary judgment on her slip and fall personal injury claim against defendants-appellees commercial retail store tenant, Pumpkin Patch Shoppe for Kids, Inc. ( Pumpkin Patch ) and landlord, Harris Realty.
Homa filed this action after she allegedly fell on a step in a commercial retail store leased to Pumpkin Patch by Harris Realty. Defendants filed answers denying her substantive allegations, raised various affirmative defenses, and filed cross-claims for indemnity and contribution against each other.
During the course of the litigation, plaintiff's original trial counsel died unexpectedly. Successor counsel from the same law firm subsequently entered an appearance and was granted an extension of time for discovery.
Defendants thereafter filed motions for summary judgment. Pumpkin Patch argued, inter alia, that the condition of the premises was open and obvious and that plaintiff had traversed the step without incident on prior trips to the store. Harris Realty argued that it was not liable as the owner of the premises because it did not possess or control the premises.
Plaintiff filed a brief in opposition to the motion of Pumpkin Patch, but did not oppose the motion of Harris Realty. Instead, plaintiff filed a motion requesting a second extension of time to conduct additional discovery before responding to Harris Realty's motion for summary judgment. Without responding to plaintiff's motion for additional time, the trial court granted both motions for summary judgment. Plaintiff timely appeals raising two assignments of error.
Plaintiff's first assignment of error follows:
THE TRIAL COURT ABUSED ITS DISCRETION, OR IN THE ALTERNATIVE COMMITTED PREJUDICIAL ERROR, BY GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WITHOUT FIRST CONSIDERING AND RULING ON PLAINTIFF'S TIMELY FILED AND PROPERLY SUPPORTED MOTION PURSUANT TO RULE 56(F) WHICH, IF CONSIDERED IN LIGHT OF THE UNUSUAL CIRCUMSTANCES SURROUNDING PLAINTIFF'S COUNSEL AND CASE PREPARATION, SHOULD HAVE BEEN GRANTED.
This assignment lacks merit.
Plaintiff argues the trial court improperly ignored his second motion for an additional extension of time to oppose summary judgment. The motion was one paragraph in length, supported by a one-half page brief, with a one-sentence affidavit. Plaintiff argues that this motion should have precluded the trial court from granting the pending summary judgment motions of both defendants. Plaintiff's motion was not filed, however, within the thirty-day period for responding to a motion for summary judgment. It was, therefore, not timely filed.
A. Pumpkin Patch
The record shows, moreover, that plaintiff's belated second motion for additional discovery specifically related only to Harris Realty's motion for summary judgment. By the time of plaintiff's motion and without having requested any additional discovery, plaintiff had already filed a brief in opposition to the motion of Pumpkin Patch. Her motion for continuance expressly stated as follows:
Now comes the plaintiff, Grace Homa, by and through undersigned counsel, and pursuant to Rule 56(F)of the Ohio Rules of Civil Procedure, and hereby respectfully requests an order from this court granting a continuance to respond to defendant Harris Realty's Motion for Summary Judgment, on the grounds that an Affidavit from defendant Harris Real
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