COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67921 GENERAL MOTORS ACCEPTANCE CORP. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HERN OLDSMOBILE-GMC TRUCK, INC. : ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT : OF DECISION : SEPT. 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 255633 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANTS-APPELLANTS: Victor M. Javitch, Esq. Edward I. Stillman, Esq. Michael D. Linn, Esq. Charles E. Wagner, Esq. Javitch, Block, Eisen & Miller, Stillman & Bartel Rathbone 1610 Euclid Avenue 601 Rockwell Building, Sixth Cleveland, Ohio 44115 Floor Cleveland, Ohio 44114 -2- HARPER, J.: This is an appeal from a summary judgment entered in favor of plaintiff-appellee, General Motors Acceptance Corporation ("GMAC"), by the Court of Common Pleas of Cuyahoga County on its claims for outstanding balances due on loans. The action followed the purchase of the assets and an automobile dealership franchise from Royal-Oldsmobile-Jax., Inc., owned by Earl N. Miller, Jr., and operated as Royal Oldsmobile-Yugo. A careful review of the record compels affirmance. I. James Hern owned and operated an automobile dealership, Hern Oldsmobile-GMC Truck, Inc. ("Hern-Ohio"), located in Bedford, Ohio beginning in 1964. James Hern and his two sons, Thomas and Lawrence ("the Herns" collectively), spread the word in the industry in 1986 that they wanted to purchase a second automobile dealership. Gordon Page, a broker for the sale of Royal Oldsmobile-Yugo ("Royal-Olds" or "Florida dealership"), a dealership located in Jacksonville, Florida, contacted the Herns in 1988. Thomas and Lawrence Hern traveled to Florida in June or July 1988 to meet with Page and the dealership's owner, Miller. Miller supplied financial statements to Thomas and Lawrence which were analyzed by an accountant hired by the Herns to perform the review. Royal-Olds had been losing money since the time Miller acquired it, and the Herns were aware of this financial state. -3- Miller's only debt with GMAC was a secured loan on the Florida dealership's new car inventory, a.k.a. a "floor plan" loan. Since the value of Miller's inventory equaled the amount owed on the loan, Miller's inventory fully secured the debt to GMAC. A second trip to Florida was made by James and Lawrence Hern in July 1988. In addition to negotiating further with Miller, James and Lawrence inspected the premises of Royal-Olds. The Herns returned to Florida for a third time to continue the negotiations; an agreement to purchase the dealership was reached at this time. No GMAC representative was present during any of the negotiations. The Herns made a fourth trip to Florida and retained J. Michael Lindell to represent them in the purchase of the Florida dealership. James Hern and Miller signed a tentative purchase agreement, which was subject to the approval of the parties' respective counsel, for the purchase of certain assets as well as certain real estate. Lindell then revised and finalized the agreement, the Asset Purchase Agreement ("the agreement"). The agreement provided that the Florida real property, as a condition precedent to the closing of the transaction, would have an appraised minimum value of $2 million. The parties signed the agreement on October 7, 1988. No GMAC representative participated in the creation of the agreement. The Herns and Miller entered into a management agreement on October 17, 1988 whereby the Herns were placed in possession of the Florida dealership. This management agreement identified Lawrence Hern as the manager and operator of the dealership ninety days -4- prior to closing. This position enabled Larry to examine all of the Florida dealership's financial records, operating statements and tax returns. In order to secure funds to complete the purchase, Lawrence submitted a loan package to South Trust Bank ("South Trust") after the October 7, 1988 signing of the agreement. The Herns wanted to assume Miller's existing mortgage on the real property. Key Royal Automotive Group ("Key Royal") was the guarantor of Miller's mortgage, but it was unwilling to guarantee the Herns. South Trust, therefore, rejected the Herns' request to assume Miller's mortgage. The Herns in turn contacted GMAC and General Electric Capital ("GE Capital") for assistance in financing the Florida dealership purchase, as well as the real estate. This was the first time that the Herns approached GMAC regarding the real estate purchase. The family thereafter pursued the real estate loan with GMAC rather than GE Capital because the former offered a lower interest rate. Lawrence, as part of the real estate loan process, submitted an appraisal of the real estate to John Gipp, Branch Manager at GMAC located in Beachwood, Ohio. This May 1, 1987 appraisal set the value of the real estate at $2,550,000 as of April 24, 1987 ("the 1987 appraisal"). It was prepared by George B. Rogers, a Florida real estate appraiser, in connection with Miller's original purchase of the Florida dealership. Gipp forwarded the 1987 appraisal to Charles Ritley in Cleveland, Ohio, for an independent review. This independent -5- review was required because it was provided by the Herns, the borrower, was outdated, and was not MAI certified. Ritley appraised the value of the Florida dealership real estate at between $1.8 million and $2 million ("the Ritley appraisal"). Gipp telephoned James Hern and advised him of Ritley's appraisal. James thanked Gipp and indicated that he was now going to renegotiate the purchase of the Florida dealership with Miller. Gipp next contacted his subordinate, Christopher Corrigan, Credit Supervisor at GMAC Beachwood, Ohio, on November 4, 1988. Gipp instructed Corrigan to notify James Hern in writing that the Herns' $2.15 million real estate loan request was in jeopardy because it exceeded 85% of the Ritley appraisal if the value of $1,800,000 proved correct. Gipp did not pursue the loan after he gave the instruction to Corrigan, but James Hern contacted him and requested that GMAC give the loan "a second look." GMAC thus hired a third appraiser, Walter Lampe, to perform an appraisal on the Florida dealership real estate. Lampe was a Florida appraiser with over twenty years of experience, and numerous appraiser certifications, including the highest appraiser designation (MAI certified). He was also a member of the Florida Society of Real Estate Appraisers. Lampe conducted a standard MAI appraisal over the next several weeks. He physically inspected the Florida dealership real estate, and reviewed all of the relevant state and county records, including those pertaining to comparable land sales and automobile -6- dealership sales. Lampe used three standard methods of valuation, i.e., the market date approach, the income approach, and the cost approach. Lampe ultimately appraised the real estate at $2.15 million. Gipp prepared a dealer loan proposal on the behalf of the Herns based upon Lampe's appraisal. He then submitted the proposal with a proposed amount of $2.15 million or 100% of the appraised value to GMAC in Detroit, Michigan for approval. GMAC conditioned approval of the real estate loan since the proposed loan exceeded GMAC's guideline of loaning a maximum of 85% of the appraised value. GMAC, therefore, requested cross- collateralization agreements, personal guarantees from Jim, Tom and Larry Hern, and their respective spouses, and security interests in the assets of the Hern-Ohio and Florida dealerships. GMAC approved the loan proposal on December 23, 1988 subject to the foregoing conditions. All of the defendants executed the required loan documents pertaining to the Florida dealership on December 27, 1988. The transaction between the Herns and Miller closed on the previous day, December 26, 1988. Lawrence Hern, Lindell, Miller, Miller's attorney, William Brandt, and Miller's accountant, John Bishop, attended the closing. GMAC's local attorney, Harry Mahon, also attended the closing, but his presence was strictly limited to ensuring that the parties properly executed the loan documents. Lawrence Hern and Miller reviewed and signed the closing statements. Lawrence was fully aware of how many automobiles were -7- included in the purchase of the dealership. He was also aware of how much money Miller owed to GMAC on the automobiles, and recognized that the Herns assumed this obligation. Lawrence Hern operated the Florida dealership from December 1988 pursuant to the agreements of the parties. The Herns sold the dealership in August 1990 to another automobile dealer located in Jacksonville. II. The Herns defaulted on their obligations to GMAC in August 1990 notwithstanding GMAC'S grant of moratoriums on principal payments through June 1, 1992. GMAC, as a result, filed a replevin action in the trial court, CV-238662, seeking to recover the automobiles at Hern-Ohio which secured a portion of the amount due GMAC. The parties agreed that GMAC could dispose of the vehicles pursuant to its security interest therein, and the case was voluntarily dismissed thereafter without prejudice. GMAC disposed of the repossessed automobiles at public auction in October 1992. A deficiency, however, existed in the amount of $43,775.33. GMAC demanded payment from the Herns to extinguish the deficiency, together with a demand for payment of all obligations due GMAC. GMAC filed a second action, CV-259834, against defendants- appellants, Hern-Ohio, Hern-Oldsmobile-Yugo, Inc., James E. Hern, Margaret Hern, Thomas Hern, Nancy E. Hern, Lawrence Hern, and Jane Hern to recover the demanded amounts when the Herns failed to pay any amount allegedly due GMAC. -8- GMAC also filed a complaint in foreclosure on real property located in Bedford, Ohio where the Herns operated Hern-Ohio on July 23, 1993, CV-255633. An amended complaint was filed on September 9, 1993, adding Margaret Hern and James Hern as defendants. GMAC alleged that James and Margaret delivered a Promissory Note in principal sum of $1,300,000 to GMAC and were now in default in the 1 amount of $1,140,724. The trial court, Judge Rocker, consolidated CV-259834 and CV-255633 on November 18, 1993. The Herns filed an answer as well as a counterclaim on January 11, 1994. They alleged in their counterclaim that GMAC approached them, Florida residents, in approximately August 1988 regarding the purchase of Royal-Olds. Margaret and James negotiated and then entered into an agreement with Miller to purchase the Florida dealership. According to the counterclaim, a condition for the sale of Royal-Olds to the Herns was that the dealership have an 2 appraised value of $2,000,000. Margaret and James alleged further that Gipp, Branch Manager for GMAC Beachwood, Ohio, ordered an appraisal by Lampe of the 1 One defendant, Mier-Baur Oldsmobile ("Mier"), filed a cross-claim and counterclaim against Margaret and James Hern on issues unrelated to the instant case. The trial court granted a temporary restraining order and then a preliminary injunction in Mier's favor pertaining to the operation of Hern-Ohio. 2 Margaret and James Hern stated that Royal-Olds was encumbered with mortgages exceeding $2,000,000 in August 1988, and Miller was personally liable for the mortgages which were held by South Trust. Miller purportedly purchased the dealership in April 1987 when South Trust held a mortgage note in the amount of $2,156,000. In April 1987, the property had an appraised value of $1,064,000. -9- Florida dealership. Lampe first appraised the dealership at a value of less than $2,000,000. According to the Herns, Gipp then allegedly requested a modification of the appraisal in order "to misrepresent said requisite value." Margaret and James next stated in their counterclaim that Gipp informed them that the appraisal was returned with a value of $2,150,000. Gipp, therefore, notified Margaret and James that all the conditions of the purchase were satisfied, and they could proceed with the purchase of Royal-Olds. Gipp additionally informed them that though GMAC generally provided financing for only 85% of the purchase price, GMAC was willing to provide 100% of the purchase price for Royal-Olds. Margaret and James agreed to complete the purchase of the Florida dealership in December 1988 "based upon assurances from GMAC." Margaret and James thus executed an agreement with GMAC for the financing, endorsed said agreement personally, and permitted Hern-Ohio to be used as collateral. The gist of Margaret's and James' counterclaim is: *** 20. On or about October 1988 and through December 1988, and upon information and belief, GMAC, perpetrated a fraud whereby the said mortgage encumbrances, would be bought by an individual or individuals who possessed viable collateral (like the Ohio dealership), in which a false appraisal would be submitted misrepresenting the value of said Florida dealership in excess of Two Million Dollars ($2,000,000.00). Thus, Seller-Miller would be released from his obligations, GMAC, South Trust Bank and all other lien holders were financially protected because Seller-Miller was replaced by a viable dealership, the Counterclaimants and Ohio dealership. -10- *** 28. On or about October 1988 through December 1988, and before and after, and upon information and belief GMAC and General Motors (by and through unidentified employees as well as John Gipp) and others engaged in a conspiracy to induce the Counterclaimants into a fraudulent transaction, the purchase of aforesaid Florida dealership. 29. At all material times, and upon information and belief, conversations occurred and existed whereby various employees and members of GMAC and General Motors and others knowingly conspired to perpetrate a fraud upon the counterclaimants, whereby the Florida dealership was recommended for purchase, and based upon same recommendations, the Counterclaimants did purchase said Florida dealership. *** The parties commenced discovery in late January 1994. By April 22, 1994, GMAC had filed with the trial court the deposition transcripts of several individuals who were involved in the Ohio and Florida transactions, including Gipp, Bishop, Lawrence Hern, Lampe, and Miller. The trial court held a status conference on April 18, 1994. The court continued the May 23, 1994 trial date and ordered GMAC to file its motion for summary judgment by April 25, 1994. The Herns were ordered to respond to the motion by May 23, 1994. The Herns deposed Robert Padden, a GMAC credit analyst, on May 9, 1994. Padden reviewed the GMAC/Hern loan package in December 1988. On May 23, 1994, the Herns requested an extension of time to file their brief in opposition to GMAC's motion for summary judgment which was filed on the designated date. The Herns advised -11- the trial court that they needed the extension to depose individuals of the GMAC Dealer Loan Committee ("the loan committee") before preparing a brief in opposition. The Herns specifically proposed: [A]s a result of deposition testimony to date, a reasonable inference exists suggesting the need to depose all members of the Dealer Credit Committee. *** Apparent from the discovery to date and in order to properly move in opposition to the Plaintiffs Motion for Summary Judgment it is imperative that further discovery be taken. *** GMAC responded with a brief in opposition to the extension request on May 31, 1994. It first submitted that the parties conducted discovery over the previous five months, and the Herns conducted and/or attended no less than nine depositions. GMAC then noted that the Herns referred to Gipp's deposition testimony wherein the witness failed to recall the exact date of the approval of the loan package by GMAC in support of their claim that this evidenced conspiracy or fraud on behalf of GMAC. However, GMAC asserted that the Herns failed to explain how this lack of memory established fraud or conspiracy to defraud. GMAC thus argued that the Herns simply had no case and should not be allowed to conduct "time-consuming, costly, burdensome" discovery which was not "reasonably calculated to lead to admissible evidence." -12- The trial court, on June 2, 1994, set a trial date of July 13, 1994 on GMAC's claims. Mier's claims were set for trial on August 1, 1994. The Herns filed a motion for continuance of the July 13, 1994 trial date on June 14, 1994. They requested the continuance in order to depose members of the loan committee. GMAC earlier forwarded the current location and status of the members who were on the loan committee when GMAC approved the Herns' loan package. One member was currently living in Japan; a second member was currently living in Michigan; two were retired and living in Michigan; two other members were retired and living in Georgia and Florida; and the final member was deceased. GMAC opposed the Herns' request for a continuance of the July 1994 trial date. Its brief in opposition stated in relevant part: *** This matter was previously scheduled for trial on May 23, 1994. The trial was continued to allow Defendants to respond to Plaintiff's Motion For Summary Judgment, which was filed on April 25, 1994. To date, no response has been filed by Defendants. On June 1, 1994, this Court conducted a status conference at which all parties were present through counsel. At that time, the Court set a discovery cutoff date of June 30, 1994, ordered Defendants to respond to Plaintiff's Motion For Summary Judgment by June 23, 1994, and scheduled the aforesaid trial date. This Court further indicated that no further continuances would be granted. With respect to further discovery, this Court ordered Plaintiffs to obtain the current addresses of the individuals who were members of the Dealer Loan Committee as of December, 1988. The Court further ordered that depositions be conducted of those members of the committee who are currently employed by GMAC and who are located in Detroit, Michigan. -13- Within one (1) week of June 8, 1994, Plaintiff's counsel faxed to Defendants' counsel those addresses. Only one committee member, William Lovejoy, is still an active employee located in Detroit. Pursuant to this Court's order, Plaintiff's counsel indicated to Defendants' counsel that Mr. Lovejoy would be made available for deposition. As of June 13, 1994, Plaintiff's counsel received no response from Defendants' counsel to the June 8, 1994 fax. On June 15, 1994, Plaintiff's counsel telephoned Defendants' counsel to discuss arrangements for Mr. Lovejoy's deposition. Defendants' counsel insisted on arranging the depositions of all members of the committee, including Mr. Durrie, who is currently located in Tokyo, Japan. Defendants' counsel would also like to conduct at least two (2) depositions in Georgia. Plaintiff's counsel is not frustrating Defendants' discovery efforts. On the contrary, Plaintiff has been more than cooperative, while Defendants still have not responded to the document production request made by Plaintiff in February, 1994. Defendants are simply stalling because they have no case. They are seeking time-consuming and costly discovery for the sole purpose of coercing Plaintiff into settlement. These tactics should not [sic] tolerated by this Court. *** (Emphasis sic.) On June 20, 1994, GMAC filed a motion to compel James and Thomas Hern to appear for the taking of their depositions. James and Thomas failed to appear on the scheduled date. The Herns, on June 28, 1994, filed a notice to take Lovejoy's deposition on July 8, 1994. The Herns filed a motion for contempt on June 30, 1994, alleging that GMAC failed to produce loan committee members for deposition. They also requested additional discovery time, and a continuance of the trial date in this motion. -14- GMAC responded with a motion for protective order on the same date. GMAC submitted that the trial court set June 30, 1994 as the discovery cutoff date; therefore the Herns could not take Lovejoy's deposition in July 1994. It furthermore argued that taking Lovejoy's deposition only five days before trial was unreasonable especially when the Herns knew of his identity for at least three weeks, but failed to schedule his deposition in that time period. The Herns next filed a motion and brief in opposition to GMAC's motion for summary judgment on July 6, 1994. Therein, they requested additional time to respond to the motion even though they presented a responsive argument in the brief. On July 7, 1994, the Herns voluntarily dismissed their 3 counterclaims against GMAC. The trial court conducted a pretrial on July 8, 1994. In addition to ruling on certain motions filed by Mier, the trial court granted GMAC's June 20, 1994 motion to compel discovery in part, ordering Thomas and James Hern to appear for deposition on July 11, 1994; overruled GMAC's June 30, 1994 motion for protective order; and ordered Lovejoy to appear for deposition on July 11, 1994. The trial court also overruled the Herns' motion for continuance and ordered that they had until the close of business 3 The Herns filed a case in United States District Court, Northern District of Ohio, on June 30, 1994 against GMAC and General Motors Corporation. The allegations were the same as those contained in the dismissed counterclaim, but the Herns added violations of the Federal RICO Statute. -15- on July 6, 1994 to file their brief in opposition to GMAC's motion 4 for summary judgment. The Herns filed an affidavit of prejudice against the trial court, Judge Rocker, on July 11, 1994. They argued that the trial court which had jurisdiction of the replevin action should have been assigned to the foreclosure/deficiency actions. The trial court, Judge Rocker, granted GMAC's motion for summary judgment on July 15, 1994. On July 25, 1994, the foreclosure/deficiency actions were transferred to the trial court which had jurisdiction of the replevin action. The trial court, Judge Gaughan, then set a pretrial date of August 19, 1994. The trial court subsequently conducted pretrials and issued rulings pertaining to Mier's claims. It issued a judgment entry on 5 August 30, 1994, granting summary judgment in favor of GMAC. The trial court awarded the following amounts to GMAC: 4 The journal entry which contained these rulings was completed on July 5, 1994, but not journalized until July 8, 1994. 5 The trial court prepared an apparently unjournalized entry on August 25, 1995 which states: At the PT of 8-19-94 this Court stated that Judge Rocker's discovery deadline will be enforced. However, any depositions noticed prior to the deadline could proceed after the deadline. Furthermore, at the PT this Court was informed that Pltf.'s Mot. for Summary Judgment was "ripe" for ruling. Defts never requested time to file a supplemental Brief in Opposition. Based upon the Motion and Brief in Opp., GMAC's Mot for Summary Judgment is granted. -16- 6 Count I: $ 43,775.33 Count II: $ 90,620.00 plus annual interest of 10% from August 30, 1990 Count III: $ 207,367.00 plus annual interest of 10% from August 30, 1990 Count IV: $1,140,724.00 plus annual interest of 10% from August 30, 1990 Count V: $1,905,293.00 plus annual interest of 10% from August 30, 1990 The trial court issued a nunc pro tunc entry on September 27, 1994, adding Civ.R. 54(B) "no just reason for delay" language to its August 30, 1994 judgment. 11 The Herns now appeal and assign error as follows: 6 This figure represents the balance remaining when GMAC took possession of Hern-Ohio's new car inventory in the replevin action, CV-238662, and sold the vehicles at a sheriff's sale. 7 The $90,620 represents the remaining balance on a $150,000 note dated October 14, 1988. 8 This figure represents a remaining balance of $207,367 on a $350,000 note dated December 27, 1988. 9 The $1,140,724 is the remaining balance on a $1,300,000 note dated December 27, 1988. 10 The $1,905,293 is the remaining balance on a $2,150,000 note dated December 27, 1988. 11 The Herns meanwhile filed a motion to stay proceedings on September 19, 1994 based upon the pending claims of Mier. The trial court denied this motion. The Herns next filed a motion for leave to plead to Mier's motion for summary judgment which was granted by the trial court. However, the Herns did not file a brief in opposition; the trial court, therefore, granted Mier's motion for summary judgment on September 28, 1994. This judgment was subsequently vacated on October 6, 1994 and the Herns were given additional time to respond to the motion. The trial court ultimately granted summary judgment in favor of Mier and against all defendants on October 13, 1994. Though the Herns filed a notice of appeal from -17- FIRST ASSIGNMENT OF ERROR The trial court erred, to the detriment of the Defendants-Appellants, in granting Plaintiff-Appellee's Motion for Summary Judgment in that there existed genuine issues of material fact on all counts of the Plaintiff's Complaint. SECOND ASSIGNMENT OF ERROR The trial court committed an abuse of discretion by denying a continuance of discovery. III. In their first assignment of error, the Herns attack the trial court's grant of summary judgment in favor of GMAC on its complaint. They submit that they demonstrated genuine issues of material fact regarding their claim that they were the victims of fraud and a conspiracy perpetuated by GMAC. Specifically, the Herns charge that GMAC's fraudulent representations were made solely to induce them into purchasing the Florida dealership, a transaction which ultimately caused the Herns financial ruin: The Defendants claim the notes [see fns. 6-10, supra] were improperly obtained through a pattern of fraudulent activities. In sum, the Defendants contend that General Motors Acceptance Corporation, General Motors Corporation and Key Royal Automotive Group (as well as others) conspired to replace Earl N. Miller, Jr. a/k/a Royal Oldsmobile Jax, Inc., a failing dealership, with another dealer, who possessed significant collateral and net worth, thereby protecting GMAC, GM and Key Royal, who were exposed to significant financial losses upon the inevitable demise of the Miller dealership. The granting of summary judgment is only appropriate if there is no genuine issue as to any material fact, and reasonable minds this ruling on November 7, 1994, App.No. 68121, this court sua sponte dismissed the appeal on May 10, 1995 for lack of a final appealable order. -18- can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 201; Civ.R. 56(C). An order granting summary judgment will, therefore, only be upheld where the record discloses no genuine issue of material fact and the nonmoving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the nonmoving party. Johnson v. New London (1988), 36 Ohio St.3d 60; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The factual dispute must be "material," i.e., the facts involved must have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. Moreover, the issue to be tried must be "genuine," and one which would allow reasonable minds to return a verdict in favor of the nonmoving party. Id., 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211-214. See, also, Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 664. Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 236, 333; see, also, Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 356. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. -19- of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. In the present case, the Herns first assert that they have demonstrated genuine issues of material fact regarding their claim for fraud. A claim for fraud, as is relevant to this case, consists of six elements: (1) a representation; (2) the representation is material to the transaction at hand; (3) it is made falsely with knowledge by the person making the representation that it is false; (4) intent by the person making the represen- tation to induce the other to rely on it; (5) rightful reliance by the other to his detriment; and (6) an injury as a result of the reliance. Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55; see, also, Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69. In the present case, the Herns offered the following "evidence" in support of their claim that they proved the elements of fraud, or at the very least, showed genuine issues of material fact remaining for litigation. First, as to the first element, GMAC's representation was that the Florida dealership with an appraised value of $2,150,000 was a sound business purchase. The Herns submit that the second element, materiality, is present because, according to them, they would not have purchased the Florida dealership without GMAC's assurances that the purchase was a sound business decision. The Herns next allege that reasonable minds could conclude that Lampe's appraisal of $2,150,000 was false, thereby establishing genuine issues of material fact -20- pertaining to the third element of a claim for fraud. They also submit that GMAC possessed special information regarding Miller's financial status, but withheld this information to further portray the Florida dealership purchase as a sound business decision. Finally as to GMAC's false representations, the Herns propose that GMAC falsely assured them about certain credit lines. As to the fourth element, intent, the Herns repeat their allegation that GMAC acted at all times to induce them into purchasing the Florida dealership by making the foregoing false representations. Respecting GMAC and its assurances, the Herns felt justified in relying on the assurances, an act establishing the fifth element necessary for a claim for fraud. Finally, the Herns were financially and professionally injured as a result of the purchase and the eventual financial demise of the Florida dealership and Hern-Ohio, the sixth element of a claim for fraud. As to the Herns' accusation that GMAC conspired with others to fraudulently induce them into purchasing the Florida dealership, a civil conspiracy in Ohio embodies four elements. These elements are: (1) a malicious combination; (2) of two or more persons; (3) injury to person or property; and (4) the existence of an unlawful act independent from the actual conspiracy. Universal Coach, Inc. v. New York City Transit Auth. (1993), 90 Ohio App.3d 284, 292, citing Minarik v. Nagy (1963), 8 Ohio App.2d 194. In order to prevail on a claim of conspiracy to defraud, the asserting party must prove both the elements of conspiracy and fraud. Conspiracy in and of itself does not establish a basis for -21- recovery in a civil action in Ohio. Minarik, 196. Rather, there must be actionable fraud as a result of the conspiracy. Zitiello v. LaRocca (Oct. 8., 1987), Cuyahoga App. No. 52813, unreported. A concealment of the true nature of the transaction is sufficient to demonstrate fraud. Id. The Herns advance that Bishop's deposition testimony related how John Williamson, a member of Key Royal, of which Royal-Olds was a franchise, could "saddle up" to key GMAC personnel. Since Key Royal would have to assume Royal-Olds' financial obligations as a guarantor if Royal-Olds suffered financial problems, and Williamson was such a "buddy" with GMAC personnel, Williamson, GMAC and General Motors conspired to alleviate Key Royal's financial burden by inducing the Herns to personally guarantee the GMAC loan at issue and use Hern-Ohio as collateral as well as in exchange for GMAC's 100% financing of the Florida dealership purchase. This was one of the conspiracies allegedly spawned by GMAC, General Motors, and Key Royal. The other conspiracy was that as a result of the Herns' purchase of Royal-Olds, GMAC would benefit by financing Key Royal in subsequent ventures when Key Royal previously sought and received its financing from South Trust. As stated supra, the Herns cite Bishop's deposition testimony with regard to his observations of the business relationship between a director of Key Royal, John Williamson, and GMAC to support their claims of conspiracy and fraud. They specifically refer to the testimony that Williamson was friendly with people at GMAC. This "friendship" in and of itself fails to establish any -22- element of either fraud or a conspiracy. The fact that Key Royal participated in GM dealerships leads a reasonable mind to conclude that Williamson no doubt was familiar and/or friendly with GMAC personnel. The Herns fail to offer any evidence to suggest that Williamson could have influenced or did influence GMAC's decision to finance the Herns' purchase of the Florida dealership, a requirement necessitated by Wing. The Herns posit further that GMAC somehow effected Lampe's appraisal of the Florida dealership at $2,150,000, and the appraisal is "wholly suspect" thereby creating a genuine issue of fact. However, Lampe denied at deposition that he falsified the appraisal or was ever told by GMAC to set the appraisal at this amount. The Herns offer no evidence to the contrary. Moreover, though Lampe acknowledged that GMAC provided him with information regarding the property, Lampe testified that this "information" was merely initial contact and a legal description of the property. The Herns also suggest that Lampe coincidentally appraised the value of the property at the value which was necessary to close the purchase and protect GMAC, General Motors and Key Royal. This value, therefore, as argued by the Herns, which equaled the price James Hern was willing to pay for the Florida dealership, demonstrates a false representation. However, coincidence does not demonstrate that Lampe's appraisal of the property was false, and the Herns fail to provide any other evidence that the appraisal was false. -23- The Herns next submit that Lampe's appraisal is demonstra- tively false when gauged against the appraisal prepared by Ritley. In other words, the Herns argue the fact that Ritley appraised the property at between $1,800,000 and $2,000,000 shows that Lampe's $2,150,000 appraisal was false. However, the Herns seem to have forgotten that they initially submitted the Rogers appraisal which valued the property at $2,550,000, an appraisal exceeding that of Lampe. Therefore, not only are Ritley's and Lampe's appraisals relatively close in light of the considerable value of the property, a third appraiser who was independently hired by the Herns, placed an ever higher value on the Florida dealership real estate. Considering the Herns' failure to offer any evidence that GMAC influenced the appraisal, or more to the point that the $2,150,000 appraisal was false, they fail to satisfy the requirements of opposing summary judgment motions. The Herns offer no evidentiary support to the contrary as required by Wing beyond unsupported allegations that GMAC somehow influenced Lampe's appraisal. The trial court thus properly granted summary judgment to GMAC on the Herns' claim for conspiracy and fraud, i.e., conspiring to falsely represent the value of the Florida dealership so as to induce the purchase. Since appellants fail to show that GMAC concealed the true nature of the transaction, Zitiello, appellants fail to establish the requisite elements of a claim for fraud, Gaines, and consequently fail to establish the necessary elements of a conspiracy to defraud claim, Minarik. -24- The Herns' first assignment of error is accordingly overruled. IV. The Herns, in their second assignment of error, challenge the trial court's discovery ruling which inhibited the taking of the loan committee members' depositions. The Herns argue that their discovery was unreasonably and unfairly terminated so as to severely hamper a proper brief in opposition to GMAC's motion for summary judgment. A party who finds itself in the position of having to respond to a motion for summary judgment before adequate discovery has been completed, must seek remedy through Civ.R. 56(F). This rule reads as follows: (F) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing a 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. A party opposing a motion for summary judgment invokes Civ.R. 56(F) via a motion supported by an affidavit when the party cannot adequately oppose the motion because he cannot demonstrate sufficient facts to create a material issue. The party thus requests that the court not entertain the motion, or grant a continuance to permit him to marshal the necessary Civ.R. 56(C) evidence to justify opposition to the motion. See, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Benjamin v. Deffet Rentals, Inc. (1981), 66 Ohio St.2d 277, 282; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio -25- App.3d 78, 86-87; see, also, Lillback v. Metro. Life Ins. Co. (1994), 94 Ohio App.3d 100. An appellant who fails to seek relief under Civ.R. 56(F) in the trial court does not preserve his rights under the rules for purposes of appeal. Stegawski, 911. Additionally, a trial court has broad discretion in controlling the discovery process. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, paragraph one of the syllabus; Huebner v. Miles (1993), 92 Ohio App.3d 493, 501. A court, in exercising this discretion, balances the relevancy of the discovery request, the requesting party's need for discovery, and the hardship upon the party from whom the discovery was requested. Huebner, 501. If a trial court refuses a discovery request, the decision will not be reversed on appeal absent a showing of substantial prejudice to the requesting party. Id.; see, also, Shaver v. Std. Oil Co. (1990), 68 Ohio App.3d 783, 799-800. A decision as to whether to grant a continuance is also within the sound discretion of the trial court. See, Harte v. Munobe (1993), 67 Ohio St.3d 3, 9, citing C.P.Sup.R. 7; State ex rel. Buck v. McCabe (1942), 140 Ohio St. 535, paragraph one of the syllabus. In the present case, initially, the Herns or their counsel failed to cite Civ.R. 56(F) in their "MOTION AND BRIEF IN OPPOSITION TO GMAC'S MOTION FOR SUMMARY JUDGMENT" wherein they submit the need for additional discovery prior to filing a brief in opposition. In Tucker v. Webb Corp. (1983), 4 Ohio St.3d 121, the Supreme Court of Ohio stated that though the appellant did not cite Civ.R. 56(F) specifically, he nonetheless asked the trial court for -26- more time for discovery in his initial brief in opposition to the opponent's motion for summary judgment. The Herns' motion, therefore, complies with Civ.R. 56(F) and Tucker. See, also, R & R Plastics, Inc. v. F.E. Myers Co. (1993), 92 Ohio App.3d 789. However, the procedural history of the case and the affidavits of Herns' counsel demonstrate that the trial court did not abuse its discretion when it refused to order a continuance to allow the Herns to depose the loan committee members. The Herns were provided ample time to conduct discovery. Moreover, a summary judgment deadline represents a perfectly reasonable attempt by a trial court to efficiently control its docket. See, Lillback. GMAC proposed that the Herns' position regarding the need to depose the loan committee members before they could adequately respond to the motion for summary judgment was a delaying tactic, and/or fishing expedition and/or an attempt to coerce a settlement. We agree with this proposition especially when depositions of all other involved parties took place prior to the deadline to file a brief in opposition. These parties included the individuals charged with conspiring to alter the appraisal of the Florida dealership, and yet the Herns could not find any material in any of these depositions to effectively challenge GMAC's motion for summary judgment. Under these circumstances, as we stated supra, we find the trial court did not abuse its discretion in not allowing further discovery when the Herns possessed more than enough time to conduct discovery and adequately respond to the motion for summary judgment. Compare, Morris v. Children's -27- Hospital Medical Ctr. (1991), 73 Ohio App.3d 437 (trial court did not abuse its discretion by failing to order a continuance when plaintiffs were afforded ample time to conduct discovery and when plaintiffs' counsel's affidavit did not set forth sufficient reasons for plaintiff's failure to present by affidavit facts essential to justify opposition to summary judgment motion). The Herns' second assignment of error is overruled. Judgment affirmed. -28- It is ordered that appellee recover of appellants its 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 Common Pleas Court 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. DAVID T. MATIA, J., AND TERRENCE O'DONNELL, J., CONCUR PRESIDING JUDGE SARA J. HARPER 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, .