COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72130 PAUL STANACZYK : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION LEONOR FONTANEZ, ET AL. : : Defendant-appellees : : MARCH 12, 1998 : DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-285310 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: SUSAN M. LAWKO, ESQ. PHILIP A. MARNACHEK, ESQ. LAWKO & LAWKO Suite 2240 55 Public Square 55 Public Square 1250 Illuminating Bldg. Cleveland, OH 44113 Cleveland, OH 44113 JOHN T. McLANDRICH, ESQ. STEPHEN F. DOBSCHA, ESQ. Mazamec, Raskin & Ryder 34305 Solon Road Cleveland, OH 44139 PATTON, J. Plaintiff Paul Stanaczyk filed this action against defendant Integon Insurance Company seeking reimbursement for injuries he -2- suffered after being struck by a car owned by defendant-insured Leonor Fontanez and driven by her husband, defendant-driver Victor Fontanez. Integon filed a motion for summary judgment in which it argued it bore no liability under Leonor Fontanez's insurance policy because the policy contained a specific endorsement excluding Victor as a named insured. Plaintiff disputed the authenticity of Victor's signature and submitted a receipt signed by Victor in an unrelated Cleveland Municipal Court case and Victor's signature on an affidavit as proof of Victor's authentic signature. The court initially denied the motion, finding neither party produced sufficient evidence to show, as a matter of law, they were entitled to summary judgment. The court scheduled the matter for an oral hearing and ordered Integon to produce evidence in support of [the summary judgment] motion and [plaintiff] *** to produce evidence to create factual dispute or otherwise contest granting of the motion. Four days before the scheduled hearing, plaintiff asked the court for a continuance so that he could obtain the report of a handwriting expert. The court denied the motion, held the hearing and entered summary judgment for Integon. Plaintiff subsequently asked the court to reconsider its ruling and submitted the report of an expert who opined that the signature on the declarations page of the Integon policy did not belong to Victor Fontanez. The court denied the motion for reconsideration. This appeal followed. I -3- The first assignment complains that the court abused its discretion by refusing to continue the oral hearing on Integon's motion for summary judgment. Plaintiff maintains he could not ensure the attendance of his handwriting analysis expert or obtain the expert's report in time for the hearing. The decision to grant or deny a continuance rests within the sound discretion of the court, reviewable only for an abuse of that discretion. Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9. Under the circumstances, we find the court abused its discretion by refusing the requested continuance. The court scheduled the oral hearing on the motion for summary judgment for December 12, 1996, giving the parties nearly two months notice. On November 9, 1995, the court conducted a pretrial, but plaintiff did not appear. The court issued a journal entry in which it stated it would hold a hearing on December 12, 1996 to determine whether it should dismiss plaintiff's complaint due to his failure to appear. Plaintiff filed his motion for a continuance on December 8, 1996. It is obvious to us that plaintiff's failure to attend the pretrial did not sit well with the court. However, the court's unhappiness with plaintiff's failure to attend the pretrial should not have been manifest in an arbitrary decision to deny plaintiff the time needed to procure an expert report. This decision was particularly unreasonable since, at the time the court denied the requested continuance, a comparison of signatures was the only hard -4- evidence available to plaintiff to prove that Victor did not sign the endorsement. The first assignment of error is sustained. II The second assignment of error complains the court erred by granting summary judgment because even without his expert report, plaintiff presented sufficient evidence to cast doubt on the authenticity of the signature purporting to exclude Victor Fontanez as a named insured under the Integon policy. R.C. 3937.30(B)(3) provides that a husband or a wife who reside in the same household are named insureds unless one spouse signs an endorsement excluding that spouse from coverage. The parties agree that if Victor Fontanez validly signed the exclusion, Integon would bear no liability under the insurance policy. The only question on appeal concerns the validity of the signature appearing on the exclusion. Civ.R. 56(C) requires us to construe the facts in a light most favorable to the non-moving party. In doing so, we must look to see whether reasonable minds could come to but one conclusion from the evidence, and that conclusion is adverse to plaintiff. Id. Plaintiff submitted three separate examples of Victor's signature, and Victor does not deny that these signatures are his own. These are: (1) the signature on the exclusion, (2) a signature on a return receipt for a Cleveland Municipal Court summons, and (3) a signature appearing on Victor's affidavit filed in support of Integon's reply to plaintiff's opposition to the motion for summary judgment. Two of the signatures, those -5- appearing on the receipt of summons and Victor's affidavit appear very similar. The third signature, that appearing on the exclu- sion, is markedly different. Practically speaking, these signatures constituted the only admissible evidence before the court at the time it ruled on the summary judgment. Both parties rely on facts adduced at the hearing on the motion for summary judgment. Plaintiff cites to Victor's testimony at the hearing that he never signed his name the same way and told a police officer at the scene of the accident that he was insured by Integon. Integon cites Victor's testimony attesting to the authenticity of his signature and his new argument that, even if the signature was not genuine, he nonetheless ratified the signature. No substantive evidence adduced at the hearing can be used to rule on the motion for summary judgment. In Carrabine Constr. Co. v. Chrysler Realty Corp. (1986), 25 Ohio St.3d 222, the syllabus states, [a] court is precluded from considering supplemental oral testimony introduced for the first time at a hearing on a motion for summary judgment under Civ.R. 56. The rationale is apparent -- summary judgment may only be granted if the motion demonstrates the absence of any material issue of fact and, by holding an evidentiary hearing, the court effectively concedes that material issues of fact do exist. We have to speculate to some extent because we have not been provided a complete transcript of the hearing, but our speculation can yield only two results, neither of which is proper. It may be -6- that Victor did not testify under oath and merely addressed the court in a conversational manner. But if that were the case, it would provide no argument for Integon. It would mean that the court relied on unsworn evidence in reaching a decision, something expressly prohibited by Civ.R. 56(C). Underwood v. Allen Correc- tional Inst. (1992), 78 Ohio App.3d 506, 507-508. Likewise, if the court did hear sworn testimony, it would have violated the rule set forth in Carrabine that prohibits the court from considering supplemental oral testimony introduced for the first time at a hearing on a motion for summary judgment. So regardless whether the court heard sworn or unsworn testimony at the hearing, none of that testimony could properly constitute a basis for granting summary judment. This left the court with three pieces of evidence the aforementioned signatures. The court believed neither party to the pending motions for summary judgment produced evidentiary quality documents suitable for consideration under Rule 56(C). We suppose the court found these documents were not suitable because they did not completely resolve the issue of whether Victor in fact made those signatures. Of course, Victor did not deny that he made all three signatures, but their facial dissimilarity could well have left the court thinking that a fundamental issue of credibil- ity arose that should be decided by the trier of fact. Under the circumstances, we cannot say that the court's initial refusal to grant summary judgment was erroneous. Accordingly, we sustain the second assignment. -7- Integon argues, for the first time on appeal, that the authenticity of Victor's signature is no longer an issue since, regardless whether he signed the exclusion or not, he has since ratified the signature and adopted it as his own. We will not address this argument for the first time on appeal. A party may not assert a new legal theory for the first time before the appellate court. AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 32. In any event, issues of material fact exist concerning the scope of any alleged agency relationship and more particularly, who acted as agent for Victor in signing the exclusion. Judgment reversed. -8- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said 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. ANN DYKE, P.J. CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY JUDGE JOHN T. PATTON 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 .