COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72952 WESTERN RESERVE MUTUAL : CASUALTY CO., : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : THOMAS PAYNE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Bedford Municipal Court : Case No. 97-CVE-0714 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: David C. Jack 145 Akron Road Wadsworth, Ohio 44281 For defendant-appellant: Thomas Payne, Pro Se No. A321-721 1580 State Route 56, SW P.O. Box 69 London, Ohio 43140-0069 -2- NAHRA, P.J.: On March 17, 1997, appellee, Western Reserve Mutual Casualty Co., filed a complaint against appellant, Thomas Payne, alleging he negligently or intentionally damaged one of their insured vehicles in the amount of $4,459.86. Appellant had stolen the vehicle and was convicted of the theft. On April 30, 1997, appellee filed a motion for summary judgment. On May 13, 1997, appellant filed a motion for continuance to respond to appellee's summary judgment motion. The motion was denied and appellant ordered to file his response prior to June 2, 1997. Appellant filed his response on June 9, 1997, contemporaneously with his objection to the trial court's failure to allow sufficient time to respond. As a result, appellee's summary judgment motion was granted on June 12, 1997. Appellant maintains that while the vehicle, a 1989 Oldsmobile Calais, was under his control, very limited forms of damage occurred. Specifically, he states by way of affidavit, that as a result of the theft, the doorlock was damaged when he forced entry, the steering column was damaged so that he could start the vehicle, and the vehicle identification number was changed. Further, appellant improved the vehicle when he replaced the standard car stereo with an updated model that included a compact disc. Appellant timely filed his appeal and assigns two errors for our review. I. We will address appellant's second assignment of error first, which states: -3- II. THE TRIAL COURT ERRED BY DENYING DEFENDANT- APPELLANT'S MOTION FOR CONTINUANCE FOR DISCOVERY PURSUANT TO RULE 56(F) OF THE OHIO RULES OF CIVIL PROCEDURE, ALLOWING DEFENDANT-APPELLANT TO ACQUIRE AND SUBMIT EVIDENCE AND AFFIDAVITS REBUTTING PLAINTIFF'S ALLEGATIONS AND EVIDENCE SUBMITTED IN ITS MOTION FOR SUMMARY JUDGMENT. The grant or denial of a Motion for Continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of continuance unless there has been an abuse of discretion. State v. Unger (1981), 69 Ohio St.2d 65, 67. The term `abuse of discretion' connotes more than an error of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. In evaluating a motion for continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. Unger, supra, at 67, 68. In this assignment of error, appellant is arguing that the trial court judge abused his discretion when he denied appellant's motion for a continuance so that he could formulate a proper response to the appellee's motion for summary judgment. Appellant maintains that as a result of this denial, he was unable to properly conduct discovery and, as a consequence, was unable to file his reply to appellee's motion in a timely manner. -4- In appellant's motion for a continuance, he requested an additional 90 days so that he could complete discovery by requesting pertinent documents, and the submission of interrogatories and admissions. This discovery, Payne maintained, would demonstrate that the subject vehicle was damaged by him, but not to the sum claimed by appellee. Appellant further maintains that Western Reserve Mutual sold the vehicle at a level far below market value, $515.00, to his detriment, and it is appellee who should be asked to bear the burden because of its negligence. The motion for continuance, as submitted by appellant, was both reasonable in nature, and thoughtfully presented. Applying the tests from Unger, it is clear that appellant's request for a continuance, his first, would have posed very little inconvenience to appellee and counsel, was reasonable in duration, and based upon legitimate reasons. At the time of these proceedings, appellant was incarcerated for the theft, a circumstance for which he was fully responsible. However, his request for additional time to gather evidence and respond to the summary judgment motion was reasonable and should have been granted. Accordingly, this assignment of error is well taken. II. Appellant's first assignment of error states: I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WHEN THERE EXISTED A GENUINE ISSUE OF MATERIAL FACT AS TO THE LEVEL OF DAMAGES SUSTAINED AND THE LIABILITY FOR THOSE DAMAGES, IN VIOLATION OF ART. I, SECTION 5, 16; AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. -5- As a result of the foregoing, appellant's first assignment of error is rendered moot. See App.R. 12(A)(1)(C) Judgment reversed and remanded. -6- This cause is reversed and remanded for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee 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. JOSEPH J. NAHRA PRESIDING JUDGE McMONAGLE, TIMOTHY E., J., and SWEENEY, JAMES D., J., CONCUR. 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 .