COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61179 GLOWCORE CORPORATION : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD J. MARTHALLER, d.b.a. : et al : : Defendant/Third Party : Plaintiff-appellant : : vs. : : LUTHERAN HOUSING CORPORATION : : New Third Party : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1991 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 177,249 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: PETER A. HESSLER JAMES C. DeVRIES Attorneys at Law 6100 Rockside Woods Boulevard Suite 345 Cleveland, Ohio 44131 (Cont.) - 1 - For defendant/third party THOMAS F. SHEEHAN plaintiff-appellant: Attorney at Law 1648 Hanna Building Cleveland, Ohio 44115-2001 For new third party KIRK STEWART defendant-appellee: Attorney at Law 1700 Standard Building Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: Defendant/third-party plaintiff, Ronald J. Marthaller (here- inafter "appellant"), timely appeals from the decision of the common pleas court which rendered judgment in favor of plaintiff- appellee, Glowcore Corporation (hereinafter "Glowcore"), and in favor of third-party defendant/counterclaimant-appellee Lutheran Housing Corporation (hereinafter "Lutheran"). For the reasons set forth below, we affirm. Glowcore brought suit against appellant alleging breach of contract, breach of trust agreement to hold proceeds on sale and on an account. Generally, Glowcore alleged that appellant failed to pay for certain goods purchased pursuant to a dealer wholesale financing agreement. Glowcore demanded judgment in the amount of $10,613.44. Appellant filed a timely answer, counter-claim, and third-party complaint against Lutheran (mistakenly referred to as a cross-claim). Appellant's counter-claim alleged breach of contract, breach of an implied warranty for a particular purpose, and breach of an implied warranty of merchantability. Appellant generally alleged that Glowcore failed to provide engineering assistance pursuant to the above agreement in the installation of certain equipment at a construction job site which appellant was - 2 - performing for Lutheran. Appellant further alleged that the equipment (fin tube radiators) sold was in breach of the above- mentioned implied warranties. Appellant's third-party complaint against Lutheran alleged breach of contract. Generally, appel- lant alleged that Lutheran unjustifiably terminated an agreement wherein appellant was to install a heating system on property which Lutheran owned. Finally, Lutheran filed a timely answer and counter-claim against appellant. Lutheran alleged that appellant breached the contract to install a heating system on Lutheran's property despite being partially paid for such work. Lutheran further alleged that appellant negligently installed insufficient equipment (i.e., the fin tube radiators), thereby incurring Lutheran additional expenses in tearing out the insuf- ficient equipment. Lutheran sought damages in the amount of $16,122.35, the cost of completing the original contract, and $27,000, the cost of removing the insufficient equipment. After a bench trial, in which appellant failed to appear, the trial court found in favor of Glowcore and rendered judgment against appellant in the amount of $10,613.44. The trial court further found in favor of Lutheran on its counter-claim and rendered judgment against appellant in the amount of $26,422.59. Appellant timely appeals, raising three assignment of error for our review. - 3 - Appellant's first and second assignments of error raise similar questions of law and fact; thus, they will be considered jointly. They state: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT/APPELLANTS (SIC.) REQUEST FOR A ONE WEEK CONTINUANCE TO DEPOSE A PREVIOUSLY NOTICED WITNESS WHOM PLAINTIFF/APPELLEE WAS UNABLE TO PRODUCE FOR PRE-TRIAL DISCOVERY BUT WHOM PLAIN- TIFF/APPELLEE INTENDED TO CALL AT TRIAL AND LISTED ON HIS WITNESS LIST. II.THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT/APPELLANTS (SIC.) REQUEST FOR A ONE WEEK CONTINUANCE IN THAT DEFENDANT/APPELLANT WAS OUT OF THE COUNTRY AND WOULD BE RETURNING ON DECEM- BER 16. Appellant contends the trial court abused its discretion in denying his motion for a continuance (styled "Motion for Change of Trial Date"). Appellant cites two reasons why a continuance of trial was appropriate. First, appellant argues he was sche- duled to be out of the country on the date of trial. Appellant cites a miscommunication between himself and his counsel as to his availability for trial in December. Second, appellant con- tends he was unable to depose a key witness who appeared on Glowcore's witness list. Appellant argues he attempted to depose said witness, a former employee of Glowcore, but was not provided with a current address by Glowcore. For these reasons, appellant contends the trial court abused its discretion in denying his motion for a continuance. Appellant's argument lacks merit. - 4 - It is well settled that continuances are a matter of judi- cial discretion. The granting or refusing of a motion for a continuance rests within the sound discretion of the trial court. Kidd v. Cincinnati Transit Co. (1970), 24 Ohio App. 2d 101; Smith v. Klein (1985), 23 Ohio App. 3d 146. An appellate court will not interfere with the exercise of such discretion unless it appears that an abuse of discretion has prejudiced a party. Id. In the present case, counsel for appellant apparently sent a "Notice to Take Deposition" to Glowcore's attorney, stating his intention to "take the deposition of plaintiff's representative, Bob Jakubs, ***." Subsequently, counsel for Glowcore sent a letter to appellant's counsel stating that the previous notice of deposition "will not be honored by Mr. Jakubs." Said letter further notified appellant's counsel that Jakubs no longer worked for Glowcore and that Glowcore "has no reason to maintain current addresses on past employees." Therefore, the note con- cluded, Glowcore "has no legal power to produce the witness." The record is thereafter void of any effort by appellant's counsel to obtain Jakubs' residence. Furthermore, the record is void of any evidence that appellant's counsel engaged in any discovery whatsoever. Finally, it was not until appellant's counsel received Glowcore's witness list, which contained Jakubs' name, that appellant filed the instant motion to continue trial. Thus, it appears that appellant made no further effort to obtain - 5 - the deposition of Jakubs despite his claim that Jakubs was essential to his defense. Appellant contends he was unable to obtain Jakubs' address and that Glowcore, upon learning of Jakubs' address, was under a duty to supplement its response to a request for discovery con- cerning Jakubs' whereabouts. Civ. R. 26(E)(1) provides in perti- nent part that a party is under a duty to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters. However, the present case is void of any requests for discovery regarding the identity and location of any person having know- ledge of discoverable matters. Appellant did not depose any persons, submit any written interrogatories, request the produc- tion of documents, or request any admissions concerning the location of persons having knowledge of discoverable matters. Instead, appellant merely sent a "notice to take deposition" of Bob Jakubs to Glowcore's counsel. Further, pursuant to Civ. R. 30(B)(5), Glowcore had no power to compel Jakubs to attend said deposition in that Jakubs was no longer employed by Glowcore. Finally, it is somewhat noteworthy that Glowcore never called Jakubs as a witness. Therefore, the trial court did not abuse its discretion in denying appellant's motion for continuance of trial in light of appellant's non-existent efforts to obtain discovery before said motion. - 6 - Appellant further argues the trial court abused its discre- tion in denying his motion because appellant would be out of the country on the date of trial. However, to constitute a suffi- cient ground for a continuance because of the absence of a party, it must appear that the absence is unavoidable, and not volun- tary; that his presence at trial is necessary; that the applica- tion is made in good faith; and that he probably will be able to attend court at some reasonable future time. State, ex rel. Buck, v. McCabe (1942), 140 Ohio St. 535. In the present case, it does not appear that appellant's absence was unavoidable and not voluntary. Appellant's motion for change of trial date merely suggests that appellant's absence is the result of some miscommunication between himself and his trial counsel. The record is totally void of any evidence sug- gesting appellant's absence was unavoidable and not voluntary. Further, the record reveals that the scheduled date of trial was first set for December 11, 1988 at a case management conference held on June 28, 1988. Thereafter, a pretrial was held on Novem- ber 20, 1988, where the December 11th trial date was confirmed. However, it was not until December 4, 1990 that appellant filed his "motion for change of trial date." Said motion was denied December 7, 1990 and recorded in a journal entry. Therefore, the trial court did not abuse its discretion in denying appellant's motion for continuance, appellant having - 7 - failed to demonstrate his absence was unavoidable and not volun- tary. Appellant's first and second assignments of error are over- ruled. Appellant's final assignment of error is as follows: THE TRIAL COURT COMMITTED ERROR IN IMPROPERLY EXCLUDING EVIDENCE FAVORABLE TO DEFENDANT AND READ FROM DEFENDANT'S DEPOSITION AND ADVERSE- LY AFFECTED A SUBSTANTIAL RIGHT OF THE DEFENDANT TO GIVE TESTIMONY. Appellant contends the trial court erred in excluding tes- timony read from appellant's deposition. Appellant contends the following exchange was improperly excluded by the trial court: Q. What is your specific complaint about the circulation? A. They would not do the job and the people who did -- corrected my work put in much larger pumps and I happened to stop over while they were doing that, just to see what was going on, and I said, "what happened to the pumps?" (Tr. 54). Appellant proceeds to argue as if the trial court excluded the above language as inadmissible hearsay. However, appellee points out that the excluded testimony was not the above quoted statement, but rather the response to appellant's question, "What happened to the pumps?" Evid. R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hear- ing, offered in evidence to prove the truth of the matter asser- ted." Evid. R. 802 provides that hearsay evidence is not - 8 - admissible unless otherwise permitted by law. Evid. R. 803 and 804 provide exceptions to the hearsay rule depending upon the availability of the declarant. However, appellant does not argue that any of these exceptions should apply and, indeed, a review of these exceptions reveals that none does. Rather, appellant argues that the statement is not hearsay as defined by Evid. R. 801(C). This argument misses the point in that appellee did not object to appellant's statement concerning the pumps but, rather, appellee objected to appellant's testimony concerning any reply to the question, "What happened to the pumps?" Appellant's testimony regarding any reply to his question clearly constitutes "a statement, other than one made by the declarant while testifying at trial of hearing, offered in evi- dence to prove the truth of the matter asserted." As such, it was correctly excluded as inadmissible hearsay pursuant to Evid. R. 802. Therefore, appellant's third assignment of error is over- ruled. Judgment affirmed. - 9 - It is ordered that appellees 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 Cuyahoga County 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. SPELLACY, J. BLACKMON, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY 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. .