Natl. Collegiate Student Loan Trust 2005-3 v. Demers , 2019 Ohio 1475 ( 2019 )

[Cite as Natl. Collegiate Student Loan Trust 2005-3 v. Demers, 2019-Ohio-1475.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
NATIONAL COLLEGIATE STUDENT :
LOAN TRUST 2005-3 :
: Appellate Case No. 2018-CA-93
Plaintiff-Appellee :
: Trial Court Case No. 2017-CV-227
v. :
: (Civil Appeal from
LEEANN N. DEMERS, aka LEEANN : Common Pleas Court)
N. EVANS, et al. :
:
Defendants-Appellants
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OPINION
Rendered on the 19th day of April, 2019.
...........
MATTHEW L. SCHRADER, Atty. Reg. No. 0074230, 200 Civic Center Drive, Suite 800,
Columbus, Ohio 43215
Attorney for Plaintiff-Appellee
MARC DANN, Atty. Reg. No. 0039425 and EMILY WHITE, Atty. Reg. No. 0085662, P.O.
Box 6031040, Cleveland, Ohio 44103
Attorneys for Defendants-Appellants
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WELBAUM, P.J.
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{¶ 1} Defendants-appellants, Leeann N. Demers, a.k.a. Leeann N. Evans, and
Kevin L. Evans (collectively, “the Evanses”), appeal from a judgment of the Clark County
Court of Common Pleas granting summary judgment in favor of plaintiff-appellee,
National Collegiate Student Loan Trust 2005-3 (“National Collegiate”). In support of their
appeal, the Evanses contend that the trial court’s decision granting summary judgment
was in error because the judgment was based on their failure to respond to National
Collegiate’s request for admissions, which they claim they timely answered. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 20, 2005, Leeann Demers/Evans executed a $25,000 loan with
Citizens Bank of Rhode Island (“Citizens Bank”) to finance her education at Ohio
Dominican University. Kevin Evans co-signed the loan. Shortly after the loan was
executed, Citizens Bank sold the loan to National Collegiate.
{¶ 3} On April 11, 2017, National Collegiate filed a “Complaint for Money” alleging
that the Evanses had defaulted on the loan. In the complaint, National Collegiate
demanded judgment against the Evanses for the total amount due on the loan plus
interest, which totaled $62,829.09.
{¶ 4} On August 24, 2017, after the trial court granted the Evanses a 60-day stay,
the Evanses filed an answer denying the allegations in National Collegiate’s complaint.
Approximately four months later, National Collegiate filed a notice with the trial court
certifying that it had served the Evanses’ trial counsel with a request for admissions and
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other discovery by regular mail on December 20, 2017.
{¶ 5} On June 13, 2018, National Collegiate filed a motion for summary judgment.
In the motion, National Collegiate argued that the Evanses failed to submit answers to its
request for admissions, and by operation of Civ.R. 36, the unanswered requests were
deemed admitted. Based on those admissions, National Collegiate argued that there
was no genuine issue of material fact left for trial and that judgment should be granted in
its favor for the amount requested in the complaint.
{¶ 6} In support of its motion for summary judgment, National Collegiate attached
various supporting documents, including but not limited to: (1) military status affidavits
verifying that neither Leanne nor Kevin Evans was on active military duty; (2) affidavits
verifying the loan at issue and the amount the Evanses owed National Collegiate as a
result of defaulting on the loan; (3) the request for admissions that National Collegiate
allegedly forwarded to defense counsel; and (4) a December 20, 2017 letter that National
Collegiate allegedly sent to defense counsel regarding the request for admissions.
{¶ 7} Both the letter and the request for admissions specified that the Evanses had
28 days to answer and return the request. The request for admissions further advised
that the matters discussed in the request would be deemed admitted unless the Evanses
submitted answers within the aforementioned 28-day period. As part of the request for
admissions, National Collegiate asked the Evanses to admit to executing the loan at issue
and to agreeing to pay interest and late fees as prescribed by the loan. National
Collegiate also asked the Evanses to admit to defaulting on the loan and to owing National
Collegiate $62,829.09 as a result.
{¶ 8} The request for admissions contained a certificate of service certifying that
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National Collegiate mailed the requests to defense counsel on December 20, 2017.
However, National Collegiate did not provide a supporting affidavit that authenticated the
request for admissions as a true and accurate copy of the document sent to the Evanses.
National Collegiate also failed to provide an affidavit averring that the request for
admissions went unanswered. Therefore, National Collegiate’s claim that the Evanses
failed to respond to the request for admissions was merely supported by a bare assertion
in its motion for summary judgment.
{¶ 9} On July 5, 2018, the Evanses filed a response opposing National Collegiate’s
motion for summary judgment. In their response, the Evanses claimed that they had
timely forwarded complete answers to National Collegiate’s request for admissions by
regular mail on January 9, 2018, and by e-mail on January 23, 2018. In support of this
claim, the Evanses attached a copy of the answers they allegedly sent to National
Collegiate and a separately signed verification page. The attached answers were
undated and contained no certificate of service. The signed verification page was dated
by hand, but the date was only partially legible, as it could be read as either the “19 day
of Jan, 2018” or “19 day of Jun, 2018.”
{¶ 10} The Evanses offered no other evidence in support of their claim that they
had timely answered National Collegiate’s request for admissions. Like National
Collegiate, the Evanses did not provide a supporting affidavit that authenticated the copy
of their answers and verification page. The Evanses also did not provide a supporting
affidavit averring that they had timely sent the answers to National Collegiate.
{¶ 11} On July 19, 2018, the trial court granted National Collegiate’s motion for
summary judgment and ordered the Evanses to pay National Collegiate the amount
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requested in the complaint. The Evanses now appeal from the trial court’s judgment,
raising a single assignment of error for review.
Assignment of Error
{¶ 12} The Evanses’ assignment of error is as follows:
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
FAVOR OF APPELLEE.
{¶ 13} Under their assignment of error, the Evanses claim that the trial court’s
granting summary judgment in favor of National Collegiate was in error because it was
based solely on their failure to respond to National Collegiate’s request for admissions.
In support of this claim, the Evanses contend that they had timely answered the request
for admissions and that National Collegiate otherwise failed to present evidence entitling
it to summary judgment.
{¶ 14} “Under Civ.R. 56(C), summary judgment is warranted if (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) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can reach a conclusion only in favor of the moving party.” State
ex rel. Jackson v. Ambrose, 151 Ohio St.3d 536, 2017-Ohio-8784, 90 N.E.3d 922, ¶ 14,
citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Civ.R. 56(C) also provides an inclusive list of materials that the trial court may consider
when ruling on a motion for summary judgment. These materials include “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact[.]” Civ.R. 56(C).
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{¶ 15} “Although Civ. R. 56 does not directly refer to evidentiary exhibits, such
evidence may be considered when it is incorporated by reference into a properly framed
affidavit pursuant to Civ. R. 56(E).” (Citation omitted.) Citibank (South Dakota) N.A. v.
Ogunduyile, 2d Dist. Montgomery No. 21794, 2007-Ohio-5166, ¶ 10. Civ.R. 56(E) states
the requirements for authentication as it relates to summary judgment. Specifically, that
rule provides as follows:
Supporting and opposing affidavits shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. Sworn or certified
copies of all papers or parts of papers referred to in an affidavit shall be
attached to or served with the affidavit.
Civ.R. 56(E).
{¶ 16} “In order to properly incorporate attached evidentiary exhibits, the affidavit
needs merely to state that the attached materials are true copies and reproductions of the
original documents.” Citibank at ¶ 10, citing State ex rel. Corrigan v. Seminatore, 66
Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). “ ‘Absent an objection, a trial court has the
discretion to consider unauthenticated documents when rendering summary judgment.’ ”
Wolfe v. AmeriCheer, Inc., 10th Dist. Franklin No. 11AP-550, 2012-Ohio-941, ¶ 11,
quoting Columbus v. Bahgat, 10th Dist. Franklin No. 10AP-943, 2011-Ohio-3315, ¶ 16;
accord State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 2009-
Ohio-2871, 910 N.E.2d 455, ¶ 17 (holding that courts may consider evidence that does
not comply with Civ.R. 56(C), such as unsworn and unauthenticated documents, if there
is no objection).
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{¶ 17} It is well established that summary judgment may be granted based on a
matter that is admitted through unanswered requests for admissions. Great Seneca Fin.
Corp. v. Lee, 2d Dist. Montgomery No. 21134, 2006-Ohio-2123, ¶ 5; Capital One Bank v.
James, 2d Dist. Montgomery No. 21163, 2006-Ohio-3190, ¶ 4. Civ.R. 36(A)(1) governs
requests for admissions and provides, in pertinent part, as follows:
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Civ.R. 26(B) set forth in the request, that relate
to statements or opinions of fact or of the application of law to fact, including
the genuineness of any documents described in the request. * * *
(1) * * * The matter is admitted unless, within a period designated in
the request, not less than twenty-eight days after service of the request or
within such shorter or longer time as the court may allow, the party to whom
the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by the party or
by the party’s attorney.
{¶ 18} “When a party fails to timely respond to requests for admissions, the
admissions become facts of record that the court must recognize.” Martin v. Martin, 179
Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 13 (2d Dist.), citing Cleveland
Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985). “[A]ny matter admitted
under Civ.R. 36 ‘is conclusively established unless the court on motion permits withdrawal
or amendment of the admission.’ ” Union Sav. Bank v. Litteral, 2d Dist. Montgomery No.
25106, 2012-Ohio-5108, ¶ 12, quoting Civ.R. 36(B).
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{¶ 19} “This court has noted that Civ.R. 36 is ‘self-enforcing’ and that the ‘trial court
has no discretion whether to deem the matters admitted. If the requests are not
answered, they are admitted and conclusively established, and the trial court must
recognize them as so.’ ” Id., quoting Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist.
Montgomery No. 23792, 2010-Ohio-4762, ¶ 41. Because Civ.R. 36 is self-enforcing,
absent a timely answer or objection, a matter is admitted without the necessity of a court
order. Huntington Natl. Bank v. Bywood, Inc., 10th Dist. Franklin No. 16AP-358, 2017-
Ohio-2829, ¶ 13.
{¶ 20} In this case, National Collegiate’s motion for summary judgment was based
exclusively on matters deemed admitted as a result of the Evanses allegedly failing to
timely respond to National Collegiate’s request for admissions. As previously noted,
National Collegiate’s motion for summary judgment included unauthenticated copies of
the request for admissions and the cover letter that National Collegiate allegedly served
on the Evanses. National Collegiate also failed to provide an affidavit averring that its
request for admissions went unanswered, but simply made that assertion in its motion.
However, since the Evanses did not object to the unauthenticated exhibits and
information in National Collegiate’s motion for summary judgment, the trial court had
discretion to consider those items when ruling on the motion. See Wolfe, 10th Dist.
Franklin No. 11AP-550, 2012-Ohio-941, at ¶ 11; State ex rel. Gilmour Realty, Inc., 122
Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, at ¶ 17.
{¶ 21} The Evanses nevertheless contend that the trial court erred in crediting
National Collegiate’s bare, unauthenticated assertion that the Evanses did not respond
to its request for admissions over their own bare assertion that they had timely answered
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the request for admissions. The Evanses maintain that since they provided the same
level of proof as National Collegiate, it was unreasonable for the trial court to credit
National Collegiate’s claim over their claim to the contrary. Therefore, the Evanses
maintain that it was inappropriate for the trial court to deem the information in the request
for admissions admitted and to use those admissions when ruling on National Collegiate’s
motion for summary judgment.
{¶ 22} Typically, an appellate court reviews de novo a trial court’s decision to grant
summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996). However, before summary judgment could be ruled upon in this case, the
trial court first had to determine whether National Collegiate’s request for admissions was
timely answered by the Evanses. See McGuinness v. Smith, 2d Dist. Greene No. 94-
CA-52, 1995 WL 63679, * 3 (Feb. 15, 1995) (when ruling on a motion for summary
judgment in which the defendant relied exclusively on deemed admissions “the trial court
cannot escape making a factual determination [as to] whether [the plaintiff] timely
responded to the request for admissions”).
{¶ 23} The issue of whether the Evanses timely answered National Collegiate’s
request for admissions was a discovery matter that was within the broad discretion of the
trial court. Therefore, we review such a decision for an abuse of discretion. In re D.M.,
140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 9 (“[t]he standard of review of a
trial court’s decision in a discovery matter is whether the court abused its discretion”);
Gerken v. State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, ¶ 16 (4th Dist.)
(applying abuse of discretion standard of review to question of whether plaintiff’s
responses to a request for admissions were timely filed, noting a trial court maintains
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broad discretion in regulating the discovery process); Progressive Cas. Ins. Co. v.
Harrison, 2d Dist. Montgomery No. 21521, 2007-Ohio-579, ¶ 7, 11 (applying abuse of
discretion standard of review to question of whether trial court erred in finding that
defendant failed to answer a request for admissions, noting the decision whether to admit
or exclude evidence lies in the sound discretion of the trial court).
{¶ 24} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(1990). “It is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that
would support that decision.” Id. When applying an abuse of discretion standard, the
appellate court is not free to simply substitute its judgment for that of the trial court. Berk
v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301, 1308 (1990).
{¶ 25} Here, when considering the evidence provided by both parties, it is clear
that the trial court was left with two conflicting, unauthenticated claims as to whether the
Evanses timely responded to National Collegiate’s request for admissions. Despite this,
when considering the unique facts of this case, we do not find that it was unreasonable
for the trial court to find that the Evanses did not timely respond to National Collegiate’s
request for admissions. 1 We reach this conclusion because the Evanses failed to
1
Although the trial court did not make an explicit finding that the Evanses failed to timely
respond to the request for admissions, said finding is implicit in the trial court’s decision
granting National Collegiate’s motion for summary judgment, as the motion was based
solely on matters admitted through the unanswered request for admissions.
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provide the trial court with any evidence of their claim that they sent answers to National
Collegiate via regular mail on January 9, 2018, and via e-mail on January 23, 2018. For
example, the Evanses could have provided a copy of the e-mail allegedly sent to National
Collegiate or some proof of mailing, such as a cover letter, but they did neither.
{¶ 26} Moreover, the answers the Evanses provided to the trial court did not
contain a certificate of service that certified the date and manner of service as required
by Civ.R. 5(B)(4). Although the Evanses included a signed and dated verification page,
the date on the verification page was illegible and subject to two different interpretations.
As previously noted, the date could be read as either the “19 day of Jan, 2018” or “19 day
of Jun, 2018.” When considering these dates, it is significant that National Collegiate’s
motion for summary judgment was filed on June 13, 2018. Given that date, it would be
reasonable for the trial court to assume that the motion for summary judgment prompted
the Evanses to answer the request for admissions and sign the verification page
approximately a week later on June 19, 2018, making the responses untimely.
{¶ 27} Although this court may have decided the matter differently due to the
parties’ failing to authenticate their respective claims, we may not substitute our judgment
for that of the trial court. Berk, 53 Ohio St.3d 161, 559 N.E.2d at 1308. Instead, we are
tasked with determining whether it was unreasonable for the trial court to find that the
Evanses’ responses were untimely based on the evidence presented by the parties.
Under the specific circumstances of this case, we find that the trial court’s decision was
not unreasonable, and thus not an abuse of discretion.
{¶ 28} Because the trial court found that the Evanses’ answers were untimely, it
had no choice but to consider the matters in the request for admissions admitted and
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conclusively established. At no point did the Evanses request the trial court to withdraw
the admissions as permitted by Civ.R. 36(B). Given the nature of the request for
admissions, the Evanses admitted to having a student loan with National Collegiate, being
in default of that loan, and owing National Collegiate $62,829.09. As a result of those
admissions, there was no genuine issue of material fact left for trial. The trial court
therefore properly granted summary judgment in favor of National Collegiate.
{¶ 29} The Evanses’ assignment of error is overruled.
Conclusion
{¶ 30} Having overruled the Evanses’ assignment of error, the judgment of the trial
court is affirmed.
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DONOVAN, J. and TUCKER, J., concur.
Copies sent to:
Matthew L. Schrader
Marc Dann
Emily White
Hon. Richard J. O’Neill