COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72377 GRACE HOMA ACCELERATED DOCKET JOURNAL ENTRY AND OPINION PER CURIAM Plaintiff-appellant vs. PUMPKIN PATCH SHOPPE FOR KIDS, ET AL. Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 30, 1997 CHARACTER OF PROCEEDINGS: Civil appeal from Court of Common Pleas, Case No. CV-305705 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendants-appellees: JOHN P. NORTON, ESQ. ROBERT J. GERLACK, ESQ. MUSCA & MIRALIA QUANDT, GIFFELS & BUCK 1202 Bond Court Building 800 Leader Building 1300 East 9th Street 526 Superior Avenue, N.E. Cleveland, Ohio 44114 Cleveland, Ohio 44114 TIMOTHY L. KERWIN, ESQ. THOMAS W. WRIGHT, ESQ. DAVIS & YOUNG CO. 1700 Midland Building Cleveland, Ohio 44115 2 PER CURIAM: This cause came to be heard on the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, and the briefs. Plaintiff-appellant Grace Homa appeals from an order granting summary judgment on her slip and fall personal injury claim against defendants-appellees commercial retail store tenant, Pumpkin Patch Shoppe for Kids, Inc. ( Pumpkin Patch ) and landlord, Harris Realty. Homa filed this action after she allegedly fell on a step in a commercial retail store leased to Pumpkin Patch by Harris Realty. Defendants filed answers denying her substantive allegations, raised various affirmative defenses, and filed cross-claims for indemnity and contribution against each other. During the course of the litigation, plaintiff's original trial counsel died unexpectedly. Successor counsel from the same law firm subsequently entered an appearance and was granted an extension of time for discovery. Defendants thereafter filed motions for summary judgment. Pumpkin Patch argued, inter alia, that the condition of the premises was open and obvious and that plaintiff had traversed the step without incident on prior trips to the store. Harris Realty argued that it was not liable as the owner of the premises because it did not possess or control the premises. 3 Plaintiff filed a brief in opposition to the motion of Pumpkin Patch, but did not oppose the motion of Harris Realty. Instead, plaintiff filed a motion requesting a second extension of time to conduct additional discovery before responding to Harris Realty's motion for summary judgment. Without responding to plaintiff's motion for additional time, the trial court granted both motions for summary judgment. Plaintiff timely appeals raising two assignments of error. Plaintiff's first assignment of error follows: THE TRIAL COURT ABUSED ITS DISCRETION, OR IN THE ALTERNATIVE COMMITTED PREJUDICIAL ERROR, BY GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WITHOUT FIRST CONSIDERING AND RULING ON PLAINTIFF'S TIMELY FILED AND PROPERLY SUPPORTED MOTION PURSUANT TO RULE 56(F) WHICH, IF CONSIDERED IN LIGHT OF THE UNUSUAL CIRCUMSTANCES SURROUNDING PLAINTIFF'S COUNSEL AND CASE PREPARATION, SHOULD HAVE BEEN GRANTED. This assignment lacks merit. Plaintiff argues the trial court improperly ignored his second motion for an additional extension of time to oppose summary judgment. The motion was one paragraph in length, supported by a one-half page brief, with a one-sentence affidavit. Plaintiff argues that this motion should have precluded the trial court from granting the pending summary judgment motions of both defendants. Plaintiff's motion was not filed, however, within the thirty-day period for responding to a motion for summary judgment. It was, therefore, not timely filed. A. Pumpkin Patch The record shows, moreover, that plaintiff's belated second motion for additional discovery specifically related only to Harris 4 Realty's motion for summary judgment. By the time of plaintiff's motion and without having requested any additional discovery, plaintiff had already filed a brief in opposition to the motion of Pumpkin Patch. Her motion for continuance expressly stated as follows: Now comes the plaintiff, Grace Homa, by and through undersigned counsel, and pursuant to Rule 56(F)of the Ohio Rules of Civil Procedure, and hereby respectfully requests an order from this court granting a continuance to respond to defendant Harris Realty's Motion for Summary Judgment, on the grounds that an Affidavit from defendant Harris Realty or deposition of defendant Harris Realty must be obtained to support plaintiff's Brief in Opposition to defendant Harris Realty's Motion for Summary Judgment. (Emphasis added.) In other words, contrary to plaintiff's argument on appeal, plaintiff never requested additional time to respond to Pumpkin Patch's motion for summary judgment. Accordingly, the trial court cannot be challenged for failing to grant a motion never made for additional time to respond to the summary judgment motion of Pumpkin Patch. B. Harris Realty The memorandum in support of the motion for additional time to respond to Harris Realty's motion states in its entirety as follows: On January 16, 1997, the plaintiff, Grace Homa through her attorney, deposed the owner of the defendant, Pumpkin Patch Shoppe for Kids, Rosemary Fletcher. During the course of the above-mentioned deposition, facts surfaced as to the construction and design of the premises by defendant, Harris Realty. On February 10, 1997, defendant, Harris Realty, provided plaintiff's counsel with a set of blue prints which were used for the construction of the premises. Based on the review of the blueprints provided by defendant, Harris Realty, plaintiff, Grace Homa, finds it 5 necessary to depose a representative from defendant, Harris Realty, in order to establish their [sic] responsibility in creating the dangerous condition which is the basis of the action. The supporting affidavit of plaintiff's attorney states in its entirety as follows: I, Andrew J. Saluan, being first duly sworn, deposes and states that: 1. All facts and circumstances stated in the foregoing Motion for Continuance to permit affidavits to be obtained or depositions to be taken, are accurate. FURTHER AFFIANT SAYETH NAUGHT. The Franklin County Court of Appeals has held that a trial court did not abuse its discretion by denying a similarly naked, conclusory motion for continuance. Ramsey v. Edgepark, Inc. (1990), 66 Ohio App.3d 99. 104-106. The Ramsey Court, quoting from the opinion of this court in Gates Mills Investment Co. V. Pepper Pike (1978), 59 Ohio App.3d 155, stated in pertinent part as follows: Civ.R. 56(F) requires the opposing party to submit affidavits with sufficient reasons stating why it cannot present by affidavit facts sufficient to justify its opposition. Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment. There must be a factual basis stated and reasons given why it cannot present facts essential to its opposition to the motion. Id. at 105-106. In the case at bar, plaintiff failed to explain what facts surfaced or what in the blueprints suggest a deposition would help to establish any responsibility of Harris Reality. To warrant recovery against Harris Realty, plaintiff was required to establish 6 that Harris Realty had possession or control over the premises at the time of the fall. Plaintiff made no argument or showing how Harris' prior construction on the premises was relevant to whether it had current possession or control of the premises. Such a showing is preliminary to rebut evidence from the lease between Harris Realty and Pumpkin Patch showing that Harris Realty did not have either possession or control over the premises. Because plaintiff has not provided a sufficient factual foundation or even articulated a logical theory, a reviewing court has no basis to conclude that the trial court committed any error or abused its discretion or that its decision resulted in any prejudice. As in Ramsey,we find that plaintiff has failed to show that the trial court abused its discretion by denying the belated motion in this case. Accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error follows: THE UNDERLYING DISPUTE IN THIS CASE IS FACT SPECIFIC AND INCLUDES DISPUTED ISSUES OF MATERIAL FACT WHICH PRECLUDES [SIC] SUMMARY JUDGMENT. This assignment lacks merit. Plaintiff argues the trial court improperly granted summary judgment against her. Her brief on appeal challenges summary judgment for Pumpkin Patch, the commercial tenant, but does not make any argument concerning Harris Realty, the owner of the premises. A. Harris Reality 7 Plaintiff has shown no error in the court granting summary judgment for Harris Realty. It is well established that the owner of the premises where an injury occurred is not liable for an injury on the premises when the owner is not in possession or control of the premises. Simpson v. Big Bear Stores, Co. (1995), 73 Ohio St.3d 130, syllabus. The record in this case, including the written lease submitted by Harris Realty in support of its motion for summary judgment, reveals unambiguously that Harris Realty did not possess or control the premises where plaintiff fell. Plaintiff's assertion that she needed to discover additional information concerning the role that Harris Realty had in constructing the premises prior to the lease is insufficient. On its face, the type of information requested had no tendency to establish that Harris Realty had control or possession over the premises at the time plaintiff fell. B. Pumpkin Patch As to Pumpkin Patch, plaintiff argues that the trial court improperly applied the doctrine of open and obvious dangers in this case. Although she admittedly had been in the store on prior occasions, the last time she was in the store and successfully traversed the step was two to three weeks prior to her injury. Plaintiff argues that in the typical case, the plaintiff is injured while leaving the premises after encountering the open and obvious condition on the same trip. We are unpersuaded by this distinction. In fact, the case cited by plaintiff to support her argument, Shaw v. Central Asphalt 8 Corp. (1981), 5 Ohio App.3d 42, expressly focuses on whether the plaintiff acquired knowledge of an alleged defect by prior use, rather than on the same occasion of the fall. It has long been recognized in slip and fall cases, furthermore, that forgetting about the existence of the allegedly dangerous condition is no excuse to protecting against an open and obvious danger. Orens v. Ricardo's Restaurant (Nov. 14, 1996), Cuyahoga App. No. 70403, unreported at 10, citing Jeswald v. Hutt (1968), 15 Ohio St.2d 224. Accordingly, plaintiff's second assignment of error is overruled. 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 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. TIMOTHY E. McMONAGLE, JUDGE DIANE KARPINSKI, PRESIDING JUDGE KENNETH A. ROCCO, 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 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 .