[Cite as Davis v. Davis , 2014-Ohio-4957.]

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 : :

. . . . . . . . . . . O P I N I O N Rendered on the 7th da y of November, 2014.

. . . . . . . . . . . RYAN C. BECK, Atty. Reg. No. 0085592, 131 No rth 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

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

FAIN, J. {¶ 1} Plaintiff-appellant James E. Davis, III appeals from a summary judgment rendered in favor of defendant-a ppellee Rochelle Davis. Mr. Da vis contends that the trial court erred in granting summary judgment and in not granting his motion for a continuance to conduct additional di scovery 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 continuan ce 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 wh en he fell on real property located at 1827 Oakridge Avenue in Dayton. Af ter Rochelle Davis filed her an swer to the complaint, Mr. Davis voluntarily dismissed, wit hout 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 comp lete all discovery; Fe bruary 27, 2014 as the deadline to file motions for summary judgme nt; and May 28, 2014 as the trial date. The Pretrial Order also stat ed that any responses to a motion fo r summary judgment must be filed 3

 within 14 days of the filing of the motion. Dkt. 32. {¶ 5} On February 21, 2014, Rochelle Davis f iled a motion for summary judgment. Dkt. 49. Mr. Davis filed his response to th e motion for summary judgment on March 20, 2014. Dkt. 50. In his response, Mr. Davis request ed 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 grante d Rochelle Davis’s motion for summary judgment. Dkt. 52. The trial court used an entr y prepared by counsel for Rochelle Davis that simply stated: “This matter came before the C ourt on the Motion of Defe ndant Rochelle Davis for summary judgment. The Court finds said motion well taken and he reby 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 Disc overy 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 fo r sufficient reasons stated present by 4

 affidavit facts essen tial to justify the party’s oppos ition, 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 de ny 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 , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). The term “abuse of discretion” has been defined as a decision that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc. , 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). {¶ 11} The circumstances presen t in each case should be considered in determining whether a trial court abuses its discreti on in denying a motion for continuance. Countrywide Home Loans Servicing, L.P. v. Stultz , 161 Ohio App.3d 829, 2005-Ohio-3282, 832 N.E.2d 125, ¶ 14 (10th Dist.). The reviewing court must appl y 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. Id. “The trial court must consider the length of the delay requested; whether pr evious continuances have been granted; the inconvenience to the parties, witnesses, attorneys, and the cour t; whether the request is reasonable or purposeful and contrived to merely delay the proceedings ; and whether the movant contributed to the circumstances giving ri se to the request.” Id. {¶ 12} On February 14, 2014, the parties came to an agreement to take the deposition of Yolanda Burch on April 25, 2014. That deposition wa s 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 Or der, 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 prope rly 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 ex plained that the deposition of Yolanda Burch was scheduled for April 25, 2014. According to his memorandum: Burch resided in the property and w ould 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 th e 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 th is evidence will demonstrate that the porch at the address was deteriorating and in a ha zardous condition, and will provide evidence showing that Defendant Rochelle Davis has either been informed of the condition or s hould have known of the condition. Because the basis for the Motion for Summary Judgment is founded upon the allegation that Defenda nt Rochelle Davis was not aware of the hazardous condition of the porch, I ca nnot 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 judgme nt hearing. Therefore, we must give that decision some deference. The ex tent of that deference is atte nuated 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 f ourteen days provided for a response, was well before the trial date a nd the discovery cutoff. {¶ 16} Balancing the relevant factors, we conclude that the trial court abused its discretion by effectively overrulin g Mr. Davis’s request for a c ontinuance 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 b een sustained, the judgment of the trial court is Reversed, and this cause is remanded for further proceedings consistent with this opinion.

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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