Ohio CAT v. Stoneman , 2015 Ohio 3546 ( 2015 )

[Cite as Ohio CAT v. Stoneman, 2015-Ohio-3546.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
OHIO CAT, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-T-0054
- vs - :
WILLIAM A. STONEMAN :
d.b.a. STONEMAN FARMS,
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2013 CV 2169.
Judgment: Reversed and remanded.
Kevin L. String, 23 North Franklin Street, Suite 11, Chagrin Falls, OH 44022 (For
Plaintiff-Appellee).
T. Robert Bricker, T. Robert Bricker, L.L.C., 106 South Broad Street, Canfield, OH
44406 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, William A. Stoneman, d.b.a. Stoneman Farms, appeals the
judgment of the Trumbull County Court of Common Pleas granting the motion for
summary judgment of appellee, Ohio CAT. For the reasons that follow, we reverse and
remand the judgment of the trial court.
{¶2} Appellee filed a complaint against appellant alleging it conducted business
with appellant and sought $64,877.21 on claims of an account stated and unjust
enrichment. Appellant filed an answer.
{¶3} On February 26, 2014, appellee filed a motion to compel due to a
complete lack of response to its propounded discovery requests, including requests for
admission, served on January 8, 2014. In its motion to compel, appellee noted that it
had provided appellant with two reminder requests via electronic mail.
{¶4} The first status conference was held on March 11, 2014. At this
conference, appellant advised the court that responses to discovery were almost
complete and would immediately be delivered to appellee’s counsel.
{¶5} On March 28, 2014, prior to appellant’s untimely filing of answers to the
request for admissions, appellee moved for summary judgment, arguing that Civ.R. 36
required the request for admissions be deemed admitted. Appellant failed to respond to
the following request for admissions:
[1.] Admit that Defendant signed Rental Agreement attached hereto
as Plaintiff’s Exhibit B on or about April 9, 2012.
[2.] Admit that Defendant rented the equipment from Plaintiff
represented in Plaintiff’s Exhibit C * * *.
[3.] Admit that Plaintiff provided all equipment described in
Plaintiff’s Exhibit C during the dates also set forth on each invoice.
[4.] Admit Defendant failed to pay in full or partially for any of the
rented equipment set forth in Plaintiff’s Exhibit C.
[5.] Admit that Defendant owes Plaintiff for the amounts invoiced in
Plaintiff’s Exhibit C.
[6.] Admit Defendant did business with Plaintiff as the proprietor
Stoneman Farms.
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{¶6} The above-referenced “Exhibit C” was not attached to appellee’s motion
for summary judgment. Appellee did, however, attach an affidavit. The affiant’s name
and title, however, are handwritten. Neither the name nor the title are readily
discernible. The affiant averred the following:
[B]eing first duly sworn according to law, and upon my personal
belief deposes and says that STONEMAN FARMS is justly
indebted to OHIO CAT in the amount of $64,877.21.
I further swear that there is no set off, credit by payment of return,
or by law or equity against the aforesaid balance due.
I further swear that all credits and allowances known to exist have
heretofore been granted and applied.
To the best information and belief, OHIO CAT, WILLIAM A.
STONEMAN is not in the military service at this time.
The amount now due and payable as taken from the books and
records of original entry is $64,877.21.
{¶7} Appellee argued that based upon such admissions and the attached
affidavit, it was entitled to judgment as a matter of law as no genuine issue as to any
material fact remained. See Civ.R. 56(C).
{¶8} Appellant, on May 9, 2014, filed an untitled motion with the trial court. In
the body of the untitled motion, appellant maintains that appellee’s motion for summary
judgment should be denied as appellant completed the discovery and filed the same on
April 3, 2014. Appellant’s counsel claimed that although the discovery responses were
typed, they were inadvertently not forwarded to appellee’s counsel. Appellant’s counsel
also claimed that appellee failed to mitigate its losses and that appellant was a debtor in
a bankruptcy proceeding. Appellant attached a document referred to as his affidavit;
this document, however, was not notarized. Appellant filed a second untitled motion
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with the trial court the same day and attached the now-answered admissions. This
second untitled motion requested the trial court consider the now-answered, albeit
untimely, response to the request for admissions.
{¶9} Appellee filed “a reply brief to defendant’s untitled brief in opposition to
summary judgment” and “brief in opposition to defendant’s untitled motion to deem
plaintiff’s discovery answered.” Appellee, for the first time, attached an “Exhibit C,”
which were copies of the 13 monthly lease invoices referred to in appellee’s request for
admissions. Appellee also attached “Exhibit B,” which was a copy of the rental
agreement between the parties.
{¶10} The trial court entered judgment against appellant in the amount of
$64,877.21, plus statutory interest. The judgment entry reasoned: “The Court agrees
with the Plaintiff that the Defendant’s purported (undated and un-notarized) ‘affidavit’
and discovery responses were untimely. More importantly, those untimely responses
and ‘affidavit’ do not comply with the requirements of the Ohio Civil Rules of Procedure
and do not rebut Plaintiff’s motion.”
{¶11} Appellant filed a timely notice of appeal and asserts two assignments of
error. His first assignment of error states:
{¶12} “The trial court abused its discretion in denying appellants permission to
amend their responses to requests for admission.”
{¶13} Requests for admission are governed by Civ.R. 36, which provides, in
pertinent part:
(A) Availability; Procedures for use.
(1) Each matter of which an admission is requested shall be
separately set forth. The party to whom the requests for admissions
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have been directed shall quote each request for admission
immediately preceding the corresponding answer or objection. The
matter is admitted unless, within a period designated in the request,
* * * 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.
(B) Effect of admission.
Any matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of the
admission. Subject to the provisions of Civ.R. 16 governing
modification of a pretrial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails
to satisfy the court that withdrawal or amendment will prejudice the
party in maintaining his action or defense on the merits. (Emphasis
added.)
{¶14} When a party fails to timely respond to the request for admissions, “the
admissions [become] facts of record which the court must recognize.” Cleveland Trust
Co. v. Willis, 20 Ohio St. 3d 66, 67 (1985). It is within the trial court’s discretion whether
it will allow the withdrawal of admissions. Szigeti v. Loss Realty Group, 6th Dist. Lucas
No. L-03-1160, 2004-Ohio-1339, ¶19. Further, whether to accept the filing of late
responses to requests for admissions is also within the trial court’s discretion. Sandler
v. Gossick, 87 Ohio App. 3d 372, 378 (8th Dist.1993) (citations omitted).
{¶15} At the outset, we recognize that in its brief appellee maintains that
appellant did not properly seek to amend the admissions deemed admitted because a
proper motion was not filed by appellant in the trial court, as required by Civ.R. 36(B).
The Supreme Court of Ohio, however, has recognized that Civ.R. 36(B) neither requires
a written motion to be filed nor specifies when such motion must be filed; “by contesting
the truth of the Civ.R. 36(A) admissions for the purposes of summary judgment, [the
defendant] satisfied the requirement of Civ.R. 36(B) that she move the trial court to
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withdraw or amend these admissions.” Balson v. Dodds, 62 Ohio St. 2d 287, 290 fn.2
(1980). The rule, thus, leaves such matters to the discretion of the trial court. Id.
{¶16} We recognize that appellate districts have responded differently to the
Ohio Supreme Court’s decision in Cleveland Trust Co., which stated:
Civ.R. 36 requires that when requests for admissions are filed by a
party, the opposing party must timely respond either by objection or
answer. Failure to respond at all to the requests will result in the
requests becoming admissions. Under compelling circumstances,
the court may allow untimely replies to avoid the admissions.
Cleveland Trust, supra, at 67.
{¶17} For example, on appeal, appellant cites Kutscherousky v. Integrated
Communications Solutions, LLC, 5th Dist. Stark No. 2004 CA 00338, 2005-Ohio-4275,
where the Fifth Appellate District found the trial court abused its discretion by not
permitting withdrawal of the admissions when the appellant was nine days late in
answering a request for admissions. The Fifth Appellate District stated the test for
withdrawal or amendment of admissions has two prongs: “[f]irst, the court must look to
whether the ‘presentation of the merits will be subserved’ by allowing the amendment.
Second, the court must address whether the withdrawal will prejudice the party that has
obtained the admissions.” Id. at ¶18. The Kutscherousky Court noted that because
both prongs of the test were satisfied, the trial court erred in granting the appellee’s
motion to deem request for admissions admitted and further erred when it denied the
motion to withdraw said admissions. Id. at ¶18-30.
{¶18} In Whitehouse v. The Customer is Everything!, Ltd, 11th Dist. Lake No.
2007-L-069, 2007-Ohio-6936, this court discussed the Fifth District’s opinion in
Kutscherousky. In Whitehouse, this court observed Judge Wise’s dissent in
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Kutscherousky, recognizing that the party seeking withdrawal of the admissions must
set forth “‘compelling circumstances’” in support of the request, as recognized by the
Supreme Court of Ohio. Id. at ¶30 citing Kutscherousky, supra, at ¶48, (Wise, J.,
concurring in part and dissenting in part). See also Cleveland Trust, supra, at 67. This
requirement is in addition to those set forth in Civ.R. 36(B). Whitehouse, supra, at ¶30.
{¶19} The Second Appellate District recently released Crespo v. Harvey, 2d
Dist. Montgomery No. 25861, 2014-Ohio-1755. The Crespo court discussed the
responses of the appellate districts to Willis. The court stated:
The majority of the districts that have been confronted with the
issue have determined the movant must demonstrate compelling
circumstances to withdraw his or her admissions. * * * The Fifth and
Sixth Districts, however, have determined that the prejudice the
non-moving party experiences must be weighed against the moving
party’s compelling circumstances for not responding in time.
Id. at ¶20.
{¶20} The Second District, in Crespo, discussed both approaches and held “the
only requirements [of Civ.R. 36(B)] are that the withdrawal aid in reaching the merits
and that the non-moving party is not prejudiced by the withdrawal or amendment.” Id. at
¶21.
{¶21} In discussing Civ.R. 36(B), Judge Fain, in a concurring opinion, observed:
“there will be cases lying somewhere midway between these extremes, in which a
reasonable trial court, exercising its sound discretion, could either sustain or overrule
the motion.” Id. at ¶31 (Fain, J., concurring).
{¶22} In this case, the trial court’s ruling under the circumstances was inherently
reasonable. Appellant failed to provide appellee with timely responses to the
propounded requests for admissions despite being reminded two times by opposing
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counsel: appellee first e-mailed counsel and then sent a specific request as to when he
could expect appellant to respond to the request for admissions. After these two
reminders, appellee filed a motion to compel. While that was pending, a status
conference was held where appellant notified both opposing counsel and the trial court
that he would provide the answers to the request for admissions but, yet again, failed to
do so. Therefore, appellee filed a motion for summary judgment based upon these
admissions, which was granted by the trial court. This is a case which “falls between
the two extremes” and therefore permits the trial court to exercise its discretion.
{¶23} We emphasize that the manner and specifics with which a trial court
directs and controls discovery in its civil cases rests within the sound discretion of the
trial court. Unless the trial court has abused its discretion, an appellate court will not
disturb a trial court’s decision in this regard. Under these circumstances, we cannot say
the trial court abused its discretion in deeming the requests admitted.
{¶24} Appellant’s first assignment of error is without merit.
{¶25} Appellant’s second assignment of error states:
{¶26} “The trial court erred in granting summary judgment in favor of appellee.”
{¶27} In order for a motion for summary judgment to be granted, the moving
party must prove:
(1) [N]o 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) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence most
strongly in favor of the nonmoving party, that conclusion is adverse
to the party against whom the motion for summary judgment is
made.
Mootispaw v. Eckstein, 76 Ohio St. 3d 383, 385 (1996) (citation omitted).
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{¶28} Summary judgment will be granted if “the pleadings, depositions, answers
to interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of facts, if any, * * * show that there is no genuine issue as to any material
fact * * *.” Civ.R. 56(C). Material facts are those that might affect the outcome of the
suit under the governing law of the case. Turner v. Turner, 67 Ohio St. 3d 337, 340
(1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
{¶29} If the moving party meets this burden, the nonmoving party must then
provide evidence illustrating a genuine issue of material fact, pursuant to Civ.R. 56(E).
Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). Civ.R. 56(E) provides:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate,
shall be entered against the party.
Summary judgment is appropriate pursuant to Civ.R. 56(E), if the burden has shifted
and the nonmoving party does not meet this reciprocal burden.
{¶30} Appellate courts review a trial court’s grant of summary judgment de novo.
Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App. 3d 704, 711 (4th Dist.1993). “De
novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence to determine if as a matter of law no genuine
issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App. 3d 378, 383 (8th
Dist.1997), citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St. 2d 116, 119-120
(1980).
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{¶31} To support its motion for summary judgment, appellee attached a copy of
the discovery requests propounded on appellant, including the request for admissions
and the aforementioned affidavit.
{¶32} With respect to the failure to respond to requests for admissions, the Ohio
Supreme Court has held the failure to respond renders the matter requested
conclusively established for the purpose of the suit. Willis, supra, at 67. “A request for
admission can be used to establish a fact, even if it goes to the heart of the case.” Id.
This court has previously held, “unanswered requests for admissions are a written
admission fulfilling the requirements for summary judgment, pursuant to Civ.R. 56.”
Balli v. Zukowski, 11th Dist. Geauga No. 2004-G-2560, 2004-Ohio-6702, ¶36.
{¶33} Appellee, in the motion for summary judgment, attached a copy of the
request for admissions, which appellant failed to answer. The unanswered request for
admissions in this case establishes, inter alia, that appellant owes appellee the amount
invoiced in the referenced Exhibit C and that appellant failed to pay in full, or partially,
for any of the rented equipment set forth in the referenced Exhibit C. Appellee,
however, did not attach Exhibit C, as referenced in the request for admissions, to its
motion for summary judgment. After appellant filed his memorandum in opposition to
appellee’s motion for summary judgment, appellee filed a reply brief attaching Exhibit B,
the rental agreement between the parties, and Exhibit C, 13 pages of monthly invoices.
These monthly invoices, however, establish that appellant owes appellee $60,880 not
$64,877.21 — the amount of the judgment.
{¶34} Furthermore, the affidavit attached to appellee’s motion for summary
judgment is not consistent with the aggregate of invoices presented as Exhibit C. The
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affidavit, in a conclusory fashion, avers that appellee is owed the amount of $64,877.21,
as sought in the complaint. As an aside, we note the affiant’s status and relationship to
appellee is not stated. It is not made based on the affiant’s personal knowledge of the
facts, but based upon his “belief” of the facts. The issue is not what the affiant believes,
but what the affiant knows. The affidavit in this case fails to connect the affiant to
appellee, and as a result, it is not clear how the affiant would have any personal
knowledge to the matters attested. Civil Rule 56(E) provides: “Supporting and opposing
affidavits shall be made on personal knowledge, 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.”
{¶35} Appellee, as the moving party, failed to meet its burden of demonstrating
an absence of genuine issues of material fact. Appellee put forth contradictory
evidence as to the exact amount owed by appellant; i.e., the request for admissions’
Exhibit C indicates appellant owes appellee $60,880, while the affidavit claims appellant
owes $64,877.21. Because appellee failed to meet its burden as required by Civ.R. 56,
the trial court erred in granting summary judgment in favor of appellee for $64,877.21.
Appellant’s second assignment of error has merit.
{¶36} The judgment of the Trumbull County Court of Common Pleas is hereby
reversed and remanded for proceedings consistent with the opinion of this court.
COLLEEN MARY O’TOOLE, J., concurs,
THOMAS R. WRIGHT, J., concurs in judgment only.
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