[Cite as Harris v. Elin, 2021-Ohio-2174.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
NORMAN W. HARRIS JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 20 CAE 12 0053
JENNIFER I. ELIN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 19 CVH 07 0388
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 28, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIC E. WILLISON MITCHELL M. TALLAN
6548 Glick Road ROBERT J. KIDD
Dublin, Ohio 43017 471 East Broad Street, 19th Floor
Columbus, Ohio 43215-3872
Delaware County, Case No. 20 CAE 12 0053 2
Wise, John, J.
{¶1} Appellant Jennifer Elin appeals from the November 16, 2020 Judgment
Entry by the Delaware County Court of Common Pleas. Appellee is Norman Harris. The
relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On July 11, 2019, Appellee filed a Complaint in Delaware County Court of
Common Pleas alleging that Appellant negligently operated her motor vehicle causing
damage to Appellee’s property in the amount of $11,200, and residual diminution in value
of $11,067. Appellant paid the cost of repairs of $11,200.
{¶3} On August 12, 2019, Appellant filed an answer.
{¶4} On December 6, 2019, the trial court filed a Scheduling Entry. In the
Scheduling Entry, the trial court set the deadline for witness disclosure January 22, 2019,
the deadline for rebuttal witness disclosure February 12, 2020, and the discovery cut-off
May 15, 2020. The trial court scheduled the trial for October 8, 2020.
{¶5} On January 22, 2020, Appellee emailed a list of witnesses to Appellant
which included Jerry Jenkins. Appellant did not disclose any witnesses to Appellee.
{¶6} On July 31, 2020, Appellee filed a Motion for Summary Judgment. Appellee
attached Jenkins’s affidavit and report to the Motion.
{¶7} On August 7, 2020, Appellant filed a Motion for Continuance under Civ.R.
56(F) to depose Jenkins.
{¶8} On September 3, 2020, the trial court denied Appellant’s Motion for
Continuance under Civ.R. 56(F) but provided an extension of time to respond to
Appellee’s Motion for Summary Judgment.
Delaware County, Case No. 20 CAE 12 0053 3
{¶9} On September 14, 2020, Appellant filed a Memorandum Contra to
Appellee’s Motion for Summary Judgment. Appellant attached the affidavit of Andy
Tilton.
{¶10} On September 21, 2020, Appellee filed a Reply Memorandum and a Motion
to Strike the affidavit of Tilton as an untimely disclosed rebuttal witness.
{¶11} On September 25, 2020, Appellant filed a Motion for Leave to Disclose Mr.
Tilton as a rebuttal witness.
{¶12} On November 9, 2020, the trial court denied Appellant’s Motion for Leave
to Disclose a rebuttal witness and granted Appellee’s Motion to Strike Tilton’s affidavit.
{¶13} On November 16, 2020, the trial court granted Appellee’s Motion for
Summary Judgment.
ASSIGNMENT OF ERROR
{¶14} On December 14, 2020, Appellant filed a notice of appeal raising the
following three Assignments of Error:
{¶15} “I. THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE
ERROR WHEN IT GRANTED SUMMARY JUDGMENT ON BEHALF OF THE
APPELLEE FOR A CASE INVOLVING AN INHERENTLY SUBJECTIVE CLAIM FOR
DAMAGES.
{¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S RULE 56(F) MOTION TO CONTINUE HER RESPONSE DEADLINE TO
APPELLEE’S MOTION FOR SUMMARY JUDGMENT SO THAT SHE COULD TAKE
THE DEPOSITION OF APPELLEE’S EXPERT WITNESS JERRY JENKINS, THEREBY
Delaware County, Case No. 20 CAE 12 0053 4
PREJUDICING THE APPELLANT AND DENYING AN OPPORTUNITY TO
DEMONSTRATE JERRY JENKINS’ [SIC] TESTIMONY WAS FLAWED.
{¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
THE APPELLEE’S MOTION TO STRIKE THE AFFIDAVIT OF ANDY TILTON FILED IN
SUPPORT OF APPELLANT’S MEMORANDUM CONTRA THE APPELLEE’S MOTION
FOR SUMMARY JUDGMENT, THEREBY PROHIBITING THE APPELLANT FROM
PROFFERING EVIDENCE CONTRARY TO THE AFFIDAVIT OF JERRY JENKINS
THAT WOULD DEMONSTRATE HIS METHODOLOGY AND CONCLUSIONS WERE
FLAWED AND UNSUPPORTED BY THE EVIDENCE AT ISSUE IN THIS MATTER.”
{¶18} For the purpose of judicial economy, we will address Appellant’s
assignments of error out of order.
II.
{¶19} In Appellant’s Second Assignment of error, Appellant argues that the trial
court erred by denying Appellant’s continuance to take the deposition of Appellee’s
expert witness. We disagree.
Standard of Review
{¶20} “[T]he decision whether to grant a motion for extension of time in order to
conduct further discovery lies within the broad discretion of the trial court and will be
reversed on appeal only for an abuse of discretion.” TPI Asset Mgt., L.L.C. v. Baxter, 5th
Dist. Knox No. 2011CA000007, 2011-Ohio-5584, ¶16. The abuse of discretion standard
is more than an error of judgment; it implies the court ruled arbitrarily, unreasonably, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
Delaware County, Case No. 20 CAE 12 0053 5
{¶21} Civ.R. 56(F) provides:
(F) When Affidavits Unavailable. 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.
{¶22} A party moving for additional time to respond to a motion for summary
judgment must present sufficient reasons to demonstrate a continuance is warranted.
Glimcher v. Reinhorn (1991), 68 Ohio App.3d 131, 138, 587 N.E.2d 462 (10th Dist.1991).
{¶23} Civ.R. 56 (F) also requires a party opposing summary judgment to submit
affidavits with sufficient reasons stating why it cannot present by affidavit facts sufficient
to justify its opposition. “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 the reasons given why it cannot present facts essential to its opposition
of the motion.” Gates Mills Inv. Co. v. Village of Pepper Pike (1978), 59 Ohio App.2d
155, 169, 392 N.E.2d 1316 (8th Dist.1978).
{¶24} In McCord v. Ron Laymon Trucking Co., 5th Dist. Knox No. 04CA000033,
2005-Ohio-4399, ¶12, Appellant moved for additional time to conduct depositions from
knowledgeable witnesses which had not yet been completed. Appellant did not offer
sufficient reasons or citations to facts warranting a continuance. Id. at ¶16.
Delaware County, Case No. 20 CAE 12 0053 6
{¶25} In the case sub judice, Appellee timely disclosed Jenkins to Appellant as an
expert witness on January 22, 2020. The trial court had set the deadline for discovery on
May 15, 2020. On August 7, 2020, over six months after learning of Appellee’s expert
witness and nearly three months after the discover deadline, Appellant filed a Motion for
Continuance under Civ.R. 56 (F) to depose Jenkins. In Appellant’s motion, Appellant
states it only needs the deposition of Jenkins to oppose Appellee’s Motion for Summary
Judgment. Appellant does not provide sufficient reasons or citations to facts as to why
the deposition was not taken by the discovery deadline or why Appellant cannot present
facts essential to her opposition. Accordingly, the trial court did not abuse its discretion
in denying Appellant’s Motion for Continuance under Civ.R. 56 (F) to conduct a
deposition of Jenkins.
{¶26} Appellant’s Second Assignment of Error is overruled.
III.
{¶27} In Appellant’s Third Assignment of Error, Appellant argues the trial court
erred granting Appellee’s motion to strike the affidavit of Appellant’s expert witness, Andy
Tilton. We disagree.
{¶28} The decision to grant or deny a motion to strike an affidavit lies within the
broad discretion of the trial court. Bosky Group, LLC v. Columbus & Ohio River RR. Co.,
5th Dist. Muskingum No. CT2017-0027, 2017-Ohio-8292, ¶42. Again, the abuse of
discretion standard is more than an error of judgment; it implies the court ruled arbitrarily,
unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
Delaware County, Case No. 20 CAE 12 0053 7
{¶29} Civ.R. 37, in pertinent part, states:
(B) Failure to Comply with Order; Sanctions.
(1) For Not Obeying a Discovery Order. If a party or a party’s officer,
director, or managing agent or witness designated under Civ.R. 30(B)(5)
or Civ.R. 31(A) fails to obey an order to provide or permit discovery,
including an order made under Civ.R. 35 or Civ.R. 37(A), the court may
issue further just orders. They may include the following:
***
(c) Striking pleadings in whole or in part;
{¶30} Civ.R. 26(E), in pertinent part, states:
(E) Supplementation of Responses. A party who has responded to
a request for discovery with a response that was complete when made is
under no duty to supplement his response to include information thereafter
acquired, except as follows:
(1) A party is under a duty to seasonably supplement his responses
with respect to any question directly addressed to (a) the identity and
location of person having knowledge of discoverable matters, and (b) the
identity of each person expected to be called as an expert witness at trial
and the subject matter on which he is expected to testify.
{¶31} “Civ.R. 37 permits the exclusion of expert testimony pursuant to a motion in
limine as a sanction for the violation of Civ.R. 26(E)(1)(b).” Jones v. Murphy, 12 Ohio
St.3d 84, 86, 465 N.E.2d 444, 446 (1984).
Delaware County, Case No. 20 CAE 12 0053 8
{¶32} In the case sub judice, Appellee disclosed Jenkins to Appellant as an expert
witness on January 22, 2020, the deadline for disclosing witnesses. The trial court had
set deadlines for disclosure of rebuttal witnesses and discovery for February 12, 2020
and May 15, 2020, respectively. On September 14, 2020, over seven months after the
deadline for disclosing rebuttal witnesses, Appellant attached the affidavit of Tilton to her
Memorandum Contra Appellant’s Motion for Summary Judgment. Appellee filed a Reply
including a Motion to Strike the affidavit of Tilton on September 21, 2020. On November
9, 2020, the trial court granted Appellee’s Motion to Strike as untimely disclosed. The
trial court’s decision to grant Appellee’s Motion to Strike was in accordance with the
Rules of Civil Procedure and not arbitrary, unconscionable, or unreasonable.
{¶33} Based on the foregoing, we find that the trial court did not abuse its
discretion in granting Appellee’s Motion to Strike.
{¶34} Appellant’s Third Assignment of Error is overruled.
I.
{¶35} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred by granting Appellee’s Motion for Summary Judgment. We disagree.
{¶36} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may
grant summary judgment if it determines: (1) no genuine issues as to any material fact
remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and
Delaware County, Case No. 20 CAE 12 0053 9
(3) it appears from the evidence that reasonable minds can come to but one conclusion
and viewing such evidence most strongly in favor of the party against whom the motion
for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).
{¶37} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶38} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party has met this initial burden, the nonmoving party then has
a reciprocal burden of specificity and cannot rest on the allegations or denials in the
pleadings, but must set forth “specific facts” by the means listed in Civ.R.56(C) showing
that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d
798, 801 (1988).
{¶39} In the case sub judice, Appellant admitted that on February 21, 2019, she
negligently operated her vehicle and caused property damage to the Appellee. Appellant
claims the only issue before the court is the amount of damages, if any, which should be
awarded above and beyond the reasonable cost of repairs to account for the diminution
in value of the vehicle. Appellee timely disclosed the name and subject matter of their
expert witness which would testify that the diminution in value would amount to $11,067.
Appellant chose not to timely depose Appellee’s expert witness and chose not to timely
Delaware County, Case No. 20 CAE 12 0053 10
disclose a rebuttal witness of their own. Instead, Appellant chose to rely on mere
allegations that Appellee’s witness was not credible. Thus, the only evidence the trial
court could properly consider was the report of Appellant’s expert witness. Appellant’s
mere allegations fail to meet Appellant’s burden and did not raise any genuine issue of
material fact to preclude summary judgment.
{¶40} Appellant’s First Assignment of Error is overruled.
{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas,
Delaware County, Ohio, is hereby affirmed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/br 0622