COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59074 ALLAN CARROLL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SPITZER BUICK CO. : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 3, 1991 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 153,372 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: JOSEPH GIBSON, ESQ. ROBERT H. WILLARD, ESQ. GIBSON, HARKINS & BRELO GARY A. GILLETT, ESQ. 75 Public Square Bldg. DENMEAD, BLACKBURN & WILLARD Suite 1300 37 West Broad St., Suite 1150 Cleveland, Ohio 44113 Columbus, Ohio 43215-4189 - 2 - J.F. CORRIGAN, J., Plaintiff Allan Carroll appeals from the order of the trial court which granted summary judgment to defendant Spitzer Buick Co. in Carroll's personal injury action. For the reasons set forth below, we affirm. I. On July 28, 1986, plaintiff tripped and fell after installing a chemical dispenser at Spitzer Buick in Parma. Thereafter, on July 20, 1988, plaintiff commenced this action against defendant, alleging that defendant breached its duty of care owed to him as a business invitee and that this failure proximately caused him to sustain personal injuries. On August 3, 1989, the trial court issued a journal entry which set the matter for a pretrial on February 14, 1990. On October 20, 1989, defendant filed a motion for summary judgment, supported by deposition testimony, in which it asserted, inter alia, that even assuming plaintiff was a business invitee at the time of his fall, it had fully met the duty of care owed to him. In a judgment entry dated December 5, 1989 and received for filing on December 6, 1989, the trial court granted defendant's motion for summary judgment, and indicated that the motion was unopposed by plaintiff. Also on December 5, 1989, plaintiff filed a brief in opposition to this motion. Plaintiff now appeals, raising three assignments of error. - 3 - For the sake of clarity, we shall consider them out of their pre- designated order. II. Plaintiff's second assignment of error states: "THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONSIDERING APPELLEE'S 'DEFENDANT'S MOTION FOR SUMMARY JUDGMENT' AFTER PRETRIAL HAD BEEN SET, WITHOUT PRIOR LEAVE OF COURT." In relevant part, Civ. R. 56 provides: "(A) For Party Seeking Affirmative Relief. *** If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." Thus, if a motion for summary judgment is filed without leave of court after a pretrial has been scheduled, it is vulnerable to a motion by the adverse party to strike it from the files. State v. Licsak (1974), 41 Ohio App. 2d 165, 169; 1 Baldwin's Ohio Civil Practice (1988) 332, Section T 25.04. However, a trial court may consider the motion in the exercise of its discretion. Faulkner v. Mayfield Village (February 11, 1988), Cuyahoga App. 54242, unreported, citing Indermill v. United Savings (1982), 5 Ohio App. 3d 243, 244. Moreover, this court did not find error where a trial court considered a motion for summary judgment which was filed without leave of court after a pretrial was scheduled, and the adverse party did not move to strike the motion, or otherwise object to it. See Oster v. Motorists Mutual Ins. Co. (May 4, 1989), Cuyahoga App. 56420, unreported. - 4 - Applying the foregoing, we hold that the trial court did not abuse its discretion in considering defendant's motion for summary judgment, as plaintiff did not move to strike the motion or otherwise object to it. Plaintiff's second assignment of error is overruled. III. Plaintiff's third assignment of error states: "THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE SPITZER BUICK CO. BASED SOLELY UPON APPELLANT'S FAILURE TO RESPOND IN OPPOSITION TO 'PLAINTIFF'S [SIC] MOTION FOR SUMMARY JUDGEMENT.'" Civ. R. 56 provides in relevant part: "(C) Motion and Proceedings Thereon. The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file opposing affidavits. "(F) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his 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." Local R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division, in turn provided as follows at the time defendant moved for summary judgment: "Unless otherwise ordered by the Court, Motions for Summary Judgment shall be heard on briefs and other materials authorized by Civil Rule 56(C) without oral arguments - 5 - thirty (30) days after service of the Motion upon the opposing party. The adverse party prior to the day of hearing may serve and file opposing affidavits." Pursuant to the foregoing, an adverse party may file his brief in opposition to a motion for summary judgment at any time prior to the date on which the motion is heard. See State v. Licsak, supra; Faulkner v. Mayfield Village, supra; King v. Cleveland Electric Illuminating Co. (December 11, 1988), Cuyahoga App. 51420, unreported. Thus, the brief in opposition may be filed as late as the day before the motion is heard by the court. State v. Licsak, supra. Moreover, where the adverse party does not respond within this time period, and does not seek a continuance pursuant to Civ. R. 56(F), he has not preserved error arising from a claim that the motion was ruled upon prematurely. Cf. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, 87; Tucker v. Webb (1983), 4 Ohio St. 3d 121, 122-123. In this case, the trial court's journal entry which granted defendant's motion for summary judgment is dated by the court "December 5, 1989." Thus, the court "heard" the motion on this date, well over thirty days after the motion was filed. Therefore, in order to be considered timely, plaintiff's brief in opposition should have been filed no later than December 4, 1989. As plaintiff failed to meet this deadline, and failed to seek - 6 - additional time pursuant to Civ. R. 56(F), the trial court properly deemed the motion for summary judgment to be unopposed. Plaintiff's third assignment of error is overruled. IV. Plaintiff's first assignment of error states: "THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SPITZER BUICK CO. WHEN GENUINE ISSUES OF MATERIAL FACT REMAIN IN DISPUTE." Pursuant to Civ. R. 56(E): "*** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Thus, unsupported allegations in the adverse party's pleadings are insufficient to defeat a properly supported motion for summary judgment. Siegler v. Batdorff (1979), 63 Ohio App. 2d 76, 82. As noted in our disposition of plaintiff's third assignment of error, due to the procedural posture of the case, the trial court properly deemed defendant's motion to be unopposed when it heard the motion on December 5, 1989. Substantively, defendant's motion further established, inter alia, that even assuming that plaintiff was a business invitee at the time he fell, he tripped upon a jack which was so obvious and - 7 - apparent that plaintiff was reasonably expected to discover it, and protect himself against it. Therefore, defendant established that it was under no duty to protect plaintiff from the jack pursuant to the Supreme Court's pronouncements in Sidle v. Humphrey (1968), 13 Ohio St. 2d 45, 48. Plaintiff claims, however, that defendant did not demonstrate entitlement to summary judgment because his motion and evidentiary materials fail to address the issue of when the jack was placed in plaintiff's path. This claim is untenable as the deposition testimony of both Gilbert Korka and Miles Boozer established that the jack was already in place and plainly visible when plaintiff arrived in the area. (Korka Depo. at 13; Boozer depo. at 10). Further, plaintiff's deposition testimony did not create a genuine issue of material fact as to this issue as plaintiff's testimony indicates that he did not "know if the jack was there originally," and that he "didn't see the jack when [he] originally got there." (Carroll depo. at 25). Accordingly, defendant did establish entitlement to summary judgment which the unsupported allegations of plaintiff's pleadings could not preclude. Plaintiff's first assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and HARPER, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .