COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71068 : HERBERT PALKOVITZ : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : PATRICIA A. HESS, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT FEBRUARY 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 292545 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: STANLEY E. STEIN, ESQ. PATRICIA A. HESS, Pro Se 75 Public Square TODD M. HESS, Pro Se Suite 714 4679 Nottingham Ct. Cleveland, Ohio 44113-2078 Ashland, Kentucky 41101 -2- PATRICIA ANN BLACKMON, P.J.: Defendants-appellants, Patricia and Todd Hess, appeal a decision from the trial court granting summary judgment in favor of plaintiff-appellee, Herbert Palkovitz. The Hesses assign the following two errors for our review: I. DISCOVERY DENIED THROUGH NOT RULING ON DISCOVERY MOTIONS. II. SUMMARY JUDGMENT GRANTED WITHOUT SHOWING NO GENUINE ISSUE OF FACT REMAINS. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On July 19, 1995, Palkovitz filed a complaint against Patricia Hess seeking to recover $20,465.55 as payment for legal services rendered to Hess. In her answer to the complaint, Hess alleged Palkovitz knowingly and intentionally overstated the nature of the services rendered and the time expended for such services. Hess also alleged that the $20,465.55 demand when added to the $25,000 already paid to Palkovitz exceeded the reasonable value of Palkovitz's services. On January 5, 1996, Palkovitz amended his complaint to add Patricia's husband, Todd Hess. Attached to the amended complaint was a copy of a letter written by Todd Hess in which he promised to pay the continuing legal fees of Patricia Hess. On May 1, 1996, Palkovitz filed a motion for summary judgment alleging that the Hesses had not timely challenged the correctness of his bill and -3- that they failed to plead their fraud claim with the requisite specificity. On June 14, 1996, Palkovitz filed a motion for Civ.R. 11 sanctions and for attorneys fees under R.C. 2323.51. Palkovitz alleged the Hesses filed excessive and unnecessary motions in violation of the rules of civil procedure and engaged in conduct designed to harass him. On July 24, 1996, the trial court granted Palkovitz's motion for summary judgment in the amount of $20,465.55 plus interest from January 27, 1994. This appeal followed. The issue raised by the Hesses' first assignment of error is whether they were denied their right to discovery because of the trial court's failure to rule on their discovery motions. The Hesses argue they filed several motions for discovery including requests for production of documents, and requests for information. The Hesses also argue their motions for orders compelling discovery under Civ.R. 37 were never ruled upon by the trial court. They argue the court's failure to rule on the motions denied them the information they needed to develop their defense. The issue raised by the Hesses' second assignment of error is whether the trial court erred in granting summary judgment. In Carpenter v. Columbus Motor Lodge, Inc. (1990), 67 Ohio App.3d 589, 594-595. The court found no reversible error where the trial court granted summary judgment for the defendant despite defendant's failure to fully respond to the interrogatories submitted by the plaintiff. Finding that appellant failed to preserve the issue for appeal, the court noted his failure to refer to the unanswered -4- interrogatories in his response to the motion for summary judgment or to move for a continuance under Civ.R. 56(F), which provides that if a party submits by affidavit sufficient reasons why he cannot present by affidavit facts essential to justify his opposition to a motion for summary judgment, 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. Id.; Civ.R. 56(F). The same result was reached in R & R Plastics, Inc. v. F.E. Myers Co. (1993), 92 Ohio App.3d 789, 797, where the court rejected appellant's argument that the trial court erred by ruling on a summary judgment motion before the plaintiff had sufficient time to complete its discovery depositions. The non-movant who is unable to obtain the evidence and information necessary to support its allegations or oppose summary judgment may seek a continuance pursuant to Civ.R. 56(F) in order to obtain the necessary discovery. (Citations omitted.) 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. Id. at 798. See also Lillback v. Metro. Life Ins. Co. (1994), 94 Ohio App.3d 100, 103; BFI Waste Systems of Ohio v. Garfield Hts. (1994), 94 Ohio App.3d 62, 74 (A party who fails to comply with the provisions of Civ.R. 56(F) waives any error in a trial court's premature ruling on a motion for summary judgment.) In this case, the Hesses failed to seek a continuance in order to obtain additional discovery but opted to ask the trial court to -5- strike Palkovitz's summary judgment motion. The Hesses' first assignment of error is overruled. In their second assignment of error, the Hesses argue the trial court erred in granting summary judgment in favor of Palkovitz because Palkovitz failed to demonstrate there was no genuine issue of material fact. "A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett (1986), 477 U.S. 317, 325. However, once Palkovitz moved for summary judgment, the Hesses had to go beyond the allegations or denials of their pleading and produce affidavits or other information showing a genuine issue of fact remaining for trial. See Civ.R. 56(E). However, the Hesses filed a motion to strike Palkovitz's summary judgment motion. The Hesses repeated their allegations that Palkovitz inflated Patricia Hess' legal expenses for his own monetary gain, that he used fraudulent billing statements to extort money from her, and that he made erroneous statements to the Disciplinary Counsel of the Supreme Court in order to preserve his billing claims against Hess. However, the Hesses included no affidavits or other information in opposition to the summary judgment motion but merely attached letters and copies of previously filed pleadings and documents. In Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 228, the -6- court held that "documents submitted in opposition to a summary judgment motion which are not sworn, certified, or authenticated by affidavit have no evidentiary value and may not be considered by the court in deciding whether a genuine issue of material fact remains for trial." Accordingly, we find that the Hesses failed to go forward with appropriate evidence demonstrating the existence of a genuine issue of fact for trial. The Hesses' second assignment of error is overruled. Judgment affirmed. -7- It is ordered that Appellee recover of Appellants his 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. Exceptions. NAHRA, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .