COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68777 PERRY WALKER : : ACCELERATED DOCKET : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : SIMS BROS. BUICK, INC. : OPINION : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-274483. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Perry Walker, Pro se 125 East 156th Street, #908 Cleveland, Ohio 44110 For Defendant-appellee: W. Andrew Hoffman III, Esq. Three Commerce Park Square, #720 23200 Chagrin Boulevard Cleveland, Ohio 44122 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). In this case, plaintiff-appellant Perry Walker, pro se, appeals from the granting of summary judgment pursuant to Civ.R. 56 in favor of defendant-appellee Sims Brothers Buick, Inc.. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on July 28, 1994, plaintiff filed a complaint alleging the following counts: (1) violations of Ohio's Consumers Sales Practices Act (See R.C. 1345.02 and .03); (2) breach of contract; and, (3) intentional infliction of emotional distress. The complaint sought compensatory damages of $2,000,000.00 and punitive damages of $1,000,000.00. With leave of court, the defendant filed its answer on September 27, 1994. On October 14, 1994, the trial court conducted a scheduled case management conference. Plaintiff did not attend this conference and the meeting was continued to November 4, 1994, with notice to the plaintiff that failure to attend would result in dismissal for want of prosecution. On November 4, 1994, plaintiff - 3 - again failed to attend the scheduled conference and the court dismissed the case without prejudice. On November 16, 1994, plaintiff filed a motion for reconsideration of the dismissal. Reconsideration, which was unopposed, was granted and the case was reactivated. On January 25, 1995, the court conducted another case management conference at which time the following order was issued in pertinent part: Settlement conference is sched for 5-15- 95/9:00. All discovery shall be completed on or before 5-15-95. All mtns, dispositive or otherwise must be filed with the court on or before pltf filed 1-25-95, deft response 2-27- 95; defts mtn S.J. 3-8-95, pltf response by 4- 8-95. Also on January 25, 1995, plaintiff filed his motion for partial summary judgment on the issue of liability. Attached to this motion were plaintiff's affidavit and copies of: (1) a purchase order for a used car; (2) a June 24, 1994 notice of a decision in favor of the plaintiff from the Bureau of Workers' Compensation for a lump sum advancement in the amount of $6,070.85; and, (3) a copy of the check from the Bureau of Workers' Compensation made payable to the plaintiff. On February 21, 1995, defendant filed its motion for summary judgment and brief in opposition to plaintiff's motion for partial summary judgment. Attached to this motion were the affidavit of Charles Sims, the president of Sims Buick, and copies of the purchase order and a check in the amount of $100.00 from the - 4 - plaintiff which represented a deposit, was not negotiated by the defendant, and was returned to the plaintiff. On February 22, 1995, plaintiff filed a proof of service of requests for admissions, production of documents and interrogatories on the defendant. On March 10, 1995, plaintiff filed his brief in opposition to defendant's motion for summary judgment and an additional brief in support of partial summary judgment in his favor. On March 21, 1995, the court granted defendant's motion for summary judgment and denied plaintiff's motion for partial summary judgment. Plaintiff filed his notice of appeal from the final order on April 5, 1995. One assignment of error is presented for review. I THE TRIAL JUDGE UNCONSTITUTIONAL (SIC) CONSTRUED AND APPLIED CIV.R. 56 AND DENIED PLAINTIFF-APPELLANT DUE PROCESS UNDER BOTH OHIO AND THE UNITED STATES CONSTITUTIONS. In this assignment appellant argues that there are genuine issues of material fact which preclude the granting of summary judgment in favor of the defendant-appellee. In the alternative, appellant argues that the affidavit of Mr. Sims was not based on personal knowledge and should not have been considered and that appellant was denied an opportunity to conduct meaningful discovery prior to the court's ruling on the summary judgment motion. In addressing this assignment, we note the following language by Judge Krupansky as contained in Wilkerson v. Eaton Corp. (March - 5 - 10, 1994), Cuyahoga App. No. 65812, unreported, 1994 Ohio App. LEXIS 1043: Civ.R. 56(C) specifically provides that before summary judgment may be granted, the court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to only one conclusion, and viewing such evidence most strongly in favor of the non- movant, the conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 (syllabus). The evidentiary materials must be timely filed. Civ.R. 56(C). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollack & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. In the present case, the June 8, 1994 contract to purchase the used automobile provided that the matter was contingent upon the completion of the following: (1) that the Bureau of Workers' Compensation approve a lump-sum advancement in the amount of $6,070.85 on plaintiff's claim with that agency; and, (2) that the sale of the car for a total purchase price of $6,070.85 was valid until June 13,1994, at which time the car would no longer be available. The evidence submitted clearly shows that, while the lump-sum advancement was approved by the Bureau of Workers' Compensation on June 24, 1994, the approval date of that - 6 - advancement was approximately one and one-half weeks past the date of June 13, 1994, when the car would no longer be held for the purchaser. By plaintiff's own statement in his complaint, he did not attempt to make the payment to the car dealer until July 19, 1994, when he received the check for the lump-sum advancement from the Bureau of Workers' Compensation. This failure by the purchaser to perform as required by the terms of the contract rendered the purchase contract void. The resulting failure of defendant to deliver the used car to the plaintiff was not a breach of the contract and not a violation of the Consumer Sales Practices Act in relation to OAC 109:4-3-09(A)(2). The alternative arguments raised by the appellant are equally without merit for the following reasons. First, the allegation that Mr. Sims' affidavit was defective because it was not based on the personal knowledge of the affiant is raised for the first time on appeal. The failure to raise this matter at the trial court level, by way of a motion to strike the offending instrument or by way of an objection raised in a brief in opposition or a reply brief, waives any error in the consideration of the affidavit. Wilkerson v. Eaton Corp., supra. Second, even if the issue of a defective affidavit had been properly preserved for appellate review, we note that the purchase order was authorized by the affiant, Mr. Sims, who signed the purchase order on behalf of the dealership. The allegation, which is unsupported, that Mr. Sims did not have personal knowledge of the transaction is disingenuous. - 7 - Third, the allegation that appellant was somehow deprived of discovery to oppose the defendant's motion for summary judgment is not supported by the record. The deadline for discovery and dispositive motion filings was on the record. Plaintiff-appellant filed no motion for extension of time pursuant to Civ.R. 56(F) to seek further discovery with which to oppose defendant-appellant's motion for summary judgment, raising this issue for the first time on appeal. Having failed to seek such an extension of the discovery deadline, we cannot conclude that the trial court abused its discretion in ruling on the dispositive motions. Assignment overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant 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 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. JAMES D. SWEENEY, P.J. DAVID T. MATIA, J. ANN DYKE, J. 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 journalization, .