WFG Natl. Title Ins. Co. v. Meehan , 107 N.E.3d 60 ( 2018 )

[Cite as WFG Natl. Title Ins. Co. v. Meehan, 2018-Ohio-491.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105677
WFG NATIONAL TITLE INSURANCE COMPANY
PLAINTIFF-APPELLEE
vs.
MICHAEL P. MEEHAN, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-836397
BEFORE: E.A. Gallagher, A.J., Keough, J., and Kilbane, J.
RELEASED AND JOURNALIZED: February 8, 2018
ATTORNEY FOR APPELLANT
Michael P. Meehan
3416 West 159th Street, Suite 100
Cleveland, Ohio 44111
ATTORNEYS FOR APPELLEES
FOR WFG NATIONAL TITLE INSURANCE COMPANY
Donald P. McFadden
Freedburg Law Firm
615 Clinton Lane
Highland Heights, Ohio 44143
Monica E. Russell
Critchfield Critchfield & Johnston, L.L.C.
4996 Foote Road
Medina, Ohio 44256
FOR DONALD P. MCFADDEN AND MCFADDEN & FREEBURG CO., L.P.A.
Maia E. Jerin
Alan M. Petrov
Monica A. Sansalone
Gallagher Sharp L.L.P.
1501 Euclid Avenue, Sixth Floor
Bulkley Building
Cleveland, Ohio 44115
FOR JANELL DOWNING
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
Maia E. Jerin
1501 Euclid Avenue, 6th Floor
Cleveland, Ohio 44115
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
Donald McFadden
615 Clinton Lane
Highland Heights, Ohio 441143
FOR 2711 MIDDLEBURG DRIVE, SUITE 113 COLUMBIA, SC 29204
Donald P. McFadden
615 Clinton Lane
Highland Heights, Ohio 44143
Monica E. Russell
4996 Foote Road
Medina, Ohio 44143
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
Maia E. Jerin
1501 Euclid Avenue, 6th Floor
Cleveland, Ohio 44115
FOR CHARLES CAIN
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
FOR JASON MAPP
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
FOR JOE DRUM
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
FOR GENE REBADOW
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
David A. Freeburg
6690 Beta Drive, Suite 320
Mayfield Village, Ohio 44143
FOR STEVE WINKLER
Monica E. Russell
4996 Foote Road
Medina, Ohio 44256
FOR EVERGREEN TITLE SERVICES L.T.D C/O MICHAEL P. MEEHAN
Maia E. Jerin
1501 Euclid Avenue, 6th Floor
Cleveland, Ohio 44115
Anthony J. Amato
9861 Applewood Drive
North Royalton, Ohio 44133
FOR GENMONCHA L.L.C.
Eric M. Allain
28906 Lorain Road, Suite 101
North Olmsted, Ohio 44070
FOR MICHAEL PATRICK MEEHAN
Michael P. Meehan
3416 West 159th Street, Suite 100
Cleveland, Ohio 44111
EILEEN A. GALLAGHER, A.J.:
{¶1} Defendant-appellant Michael Meehan appeals the judgment of the
Cuyahoga County Court of Common Pleas in this civil dispute between a title agent, his
title agency, the insurance company with whom they had a contractual relationship,
various employees of the insurance company and the insurance company’s attorney. For
the following reasons, we affirm.
Facts and Procedural History
{¶2} In February 2012, Meehan, an Ohio attorney and his title agency, Evergreen
Title Services, L.L.C. (“Evergreen”) entered into an agency agreement with WFG
National Title Insurance Company (“WFG”) whereby Evergreen was authorized to sell
insurance products underwritten by WFG.
{¶3} Disputes between Evergreen and WFG over an audit and the remittance of
premiums resulted in a meeting on August 13, 2013, during which WFG asked Meehan to
sign a mutual termination agreement. Meehan refused to sign the agreement and WFG
employees averred that Meehan was informed during the meeting that WFG was
terminating the agency agreement effective September 30, 2013. An email from
Meehan to WFG dated August 21, 2013 acknowledged Meehan’s understanding that he
had until September 30, 2013 to issue closing protection letters (“CPLs”) and policies.
Meehan, however, continued to issue CPLs and policies after that date until he received a
summary termination notice from WFG on October 14, 2014. During this time Meehan
collected insurance premiums related to said CPLs and policies but did not remit them to
WFG. Instead Meehan maintained the premiums in escrow in an IOTA account. WFG
alleged that it learned in October 2014 that Meehan and Evergreen had continued to sell
WFG policies and CPLs without its knowledge after September 30, 2013.
{¶4} WFG filed a complaint against Meehan and Evergreen on November 24,
2014 alleging breach of contract, breach of fiduciary duty, theft, civil conspiracy, a
pattern of corrupt activity in violation of R.C. 2923.32, negligence, fraud and a claim for
accounting.1 WFG also sought to pierce the corporate veil of Evergreen alleging that
Meehan exercised complete control over Evergreen to commit the alleged acts.
{¶5} Meehan filed an answer along with counterclaims against WFG and
third-party complaints against various WFG employees, WFG’s attorney, Donald
McFadden and the law firm of McFadden & Freeburg Co., L.P.A. Meehan raised
claims of defamation, falsification, obstruction of official business, tortious interference
with business relations, breach of contract, civil conspiracy, engaging in a pattern of
corrupt activity, respondeat superior and an action for declaratory judgment. Evergreen
failed to respond to the complaint and default judgment on WFG’s claims against it was
granted on August 4, 2015.
{¶6} WFG filed a motion to dismiss Meehan’s counterclaims and third- party
complaint that the trial court granted, in part, and denied, in part. The trial court
construed Meehan’s third-party complaint as a counterclaim against new parties pursuant
to Civ.R. 13(H). Meehan’s defamation counterclaim was dismissed as to all parties
1
The claims for breach of contract, breach of fiduciary duty and accounting pertained only to
Evergreen.
regarding statements made to the Ohio Department of Insurance (“ODI”) and the
Supreme Court of Ohio’s Office of Disciplinary Counsel (“ODC”). Meehan’s
falsification and obstruction of official business counterclaims were dismissed in their
entirety and his civil conspiracy counterclaim was dismissed in part.
{¶7} WFG’s claims for negligence and fraud/forgery were stricken from the
complaint on WFG’s motion. All remaining claims were resolved on summary
judgment. The trial court granted summary judgment in favor of WFG on its claims for
theft, civil conspiracy, pattern of corrupt activity and piercing the corporate veil against
Meehan. The trial court granted summary judgment in favor of WFG and the WFG
employees named as counterclaim defendants on Meehan’s counterclaims for defamation,
tortious interference with business relations, breach of contract, civil conspiracy,
engaging in a pattern of corrupt activity, respondeat superior and declaratory judgment.
Finally, the trial court granted summary judgment in favor of McFadden and McFadden
& Freeburg Co., L.P.A. on Meehan’s remaining counterclaims against them.
I. The Motion to Dismiss
{¶8} In his first assignment of error, Meehan argues that the trial court erred in
granting, in part, the motion to dismiss a number of his claims against appellees.
{¶9} We begin by noting that Meehan’s argument for reversal under this
assignment of error addresses only his dismissed defamation claims. Meehan has failed
to support his broad assertion that the trial court erred in granting the motion to dismiss as
to any of his other claims with cognizable arguments pertaining to the legal issues raised
in the motion to dismiss or appropriate citations to authority and the record as required by
App.R. 16(A)(7). Therefore, we decline to address the dismissed claims for which
Meehan has failed to offer an argument in support of reversal.
{¶10} A review of the pleadings reveals that Meehan’s defamation claim is very
limited. The only alleged defamatory statement made by WFG and McFadden to ODI and
ODC is that “Meehan stole escrowed funds that belonged to [WG].” Meehan further
explained that the basis for the counterclaim was an admission made to him by McFadden
that McFadden had called state investigators on Meehan.2
{¶11} The parties agree that, in the absence of actual malice, a qualified immunity
exists under R.C. 3905.211 for statements required to be made by insurers or their agents
to the ODI pertaining to the termination of an insurance agent under R.C. 3905.21(A) and
information relating to such terminations. See R.C. 3905.21; R.C. 3905.14(B)(4). The
parties also agree that the provisions of R.C. 3905.211 as to qualified immunity is
applicable to appellees in the present instance. The sole dispute is whether Meehan
complied with the mandates of R.C. 3905.211(B) to defeat the qualified privilege at the
pleading stage.
{¶12} Pursuant to R.C. 3905.211(B) in an action where qualified immunity under
section (A) may apply, “the party bringing the action shall plead specifically in any
2
There is no specific claim that McFadden made any defamatory statements to ODI or ODC
relating to the date of Meehan and Evergreen’s termination.
allegation that division (A) of this section does not apply because the person making the
statement or providing the information did so with malice.” Based on this clear
language it is insufficient to defeat the immunity provided under R.C. 3905.211(A) with a
mere claim of malice. Instead, the complaint must specifically address R.C.
3905.211(A) and assert that it is inapplicable due to such malice.
{¶13} In this instance, Meehan did not use the term malice in his defamation
complaint. This could be excused, however, due to the fact that Meehan specifically
plead language mirroring the definition of malice within the context of qualified privilege
as set forth by the Ohio Supreme Court in Jacobs v. Frank, 60 Ohio St. 3d 111, 573
N.E.2d 609 (1991), paragraph two of the syllabus. See, e.g., Mangelluzzi v. Morley,
8th.Dist, 2015-Ohio-3143, 40 N.E.3d 588. However, Meehan failed to comply with
the plain language of R.C. 3905.211(B) by failing to specifically address R.C.
3905.211(A) in the pleadings and aver that it did not apply in this case. Due to
Meehan’s failure to conform to the strict requirements of R.C. 3905.211(B) we find no
error in the trial court’s dismissal of his defamation claim pertaining to statements made
to the ODI.
{¶14} We similarly find no error in the trial court’s dismissal of Meehan’s
defamation claim pertaining to statements made to ODC alleging the theft of escrow
funds by Meehan. The Ohio Supreme Court established in Hecht v. Levin, 66 Ohio
St.3d 458, 1993-Ohio-110, 613 N.E.2d 585, that a statement made in a “judicial
proceeding enjoys an absolute privilege against a defamation action as long as the
allegedly defamatory statement is reasonably related to the proceeding in which it
appears.” Id. at 460. The court further explained that all matters relating to the discipline
of attorneys are inherently judicial in nature and established the absolute privilege for
reporting attorney misconduct after a careful examination of the relevant competing
concerns. Id. at 461-462. The absolute privilege or “immunity” for statements made in
a judicial proceeding extends to every step in the proceeding, from beginning to end. M.J.
DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d 497, 506, 634 N.E.2d 203 (1994).
{¶15} Meehan’s first assignment of error is overruled.
II. Motions to Compel
{¶16} In his second assignment of error, Meehan argues that the trial court erred in
denying two motions to compel that he filed well after the close of discovery.
{¶17} The record reflects that the trial court set a fact discovery deadline of
October 30, 2015. Two extensions to the deadline were granted extending the discovery
cut off to January 31, 2016. The trial court also set a dispositive motion deadline of
March 18, 2016. 43 days after the discovery deadline had passed and three days prior to
the dispositive motion deadline Meehan filed a motion for extension of discovery. The
trial court denied Meehan’s motion, the appellees and third-party defendants filed
motions for summary judgment and Meehan filed a brief in opposition to summary
judgment. On April 27, 2016, more than 40 days after the summary judgment motions
had been filed and 87 days after the close of discovery, Meehan filed his first motion to
compel discovery. The trial court denied the motion on May 2, 2016 in the same entry
that it granted summary judgment in favor of appellees and the third-party defendants on
many of the outstanding claims. Meehan filed a second motion to compel along with a
motion for relief from judgment on June 21, 2016. The trial court denied Meehan’s
motion on July 7, 2016.
{¶18} It is well established that a trial court enjoys considerable discretion in the
regulation of discovery proceedings. State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55,
295 N.E.2d 659 (1973); Clark Cty. Solid Waste Mgt. Dist. v. Danis Clark Co. Landfill
Co., 109 Ohio App. 3d 19, 38, 671 N.E.2d 1034 (2d Dist. 1996). Furthermore, a judgment
preventing the requesting party from pursuing discovery will not be reversed unless the
ruling causes substantial prejudice. Shaver v. Standard Oil Co., 68 Ohio App. 3d 783,
800, 589 N.E.2d 1348 (1990).
{¶19} We note that Meehan failed to seek discovery relief pursuant to Civ.R. 56(F)
in his brief in opposition to the outstanding motions for summary judgment. If an
opposing party requires additional time to produce facts essential to the opposition
motion, the party may seek a continuance under Civ.R. 56(F). Roush v. Butera, 8th Dist.
Cuyahoga No. 97463, 2012-Ohio-2506, ¶ 36. A party who fails to seek relief under
Civ.R. 56(F) in the trial court fails to preserve the issue on appeal. Id., citing Jackson v.
Walker, 9th Dist. Summit County No. 22996, 2006-Ohio-4351, ¶ 17.
{¶20} Civ.R. 37 motions “filed after a discovery deadline are tardy.” Huntington
Natl. Bank v. Dixon, 8th Dist. Cuyahoga No. 101273, 2015-Ohio-1735, ¶ 24 quoting State
ex rel. Rhodes v. Chillicothe, 4th Dist. Ross No. 12CA3333, 2013-Ohio-1858, ¶ 22;
Steele v. Mara Ents., Inc., 10th Dist. Franklin No. 09AP-102, 2009-Ohio-5716, ¶ 33.
Meehan completely failed to address his noncompliance with the trial court’s discovery
deadlines in his arguments to this court. We cannot say the trial court’s refusal to allow
additional discovery constituted an abuse of discretion and substantially prejudiced
Meehan when he had ample time to file his motions to compel within the time frame the
trial court set for discovery.
{¶21} Meehan’s second assignment of error is overruled.
III. Disqualification of Counsel
{¶22} In his third assignment of error, Meehan argues that the trial court erred in
denying his motion to disqualify attorneys from the law firm of McFadden & Freeburg
Co., L.P.A. from representing WFG and attorneys from the law firm of Gallagher Sharp
from representing McFadden.
{¶23} A trial court has wide discretion in the consideration of a motion to
disqualify counsel. Quiros v. Morales, 8th Dist. Cuyahoga No. 894274, 2007-Ohio-5442,
¶ 14, citing Spivey v. Bender, 77 Ohio App. 3d 17, 601 N.E.2d 56 (6th Dist.1991). When
reviewing a decision of the trial court to disqualify counsel, we apply an abuse of
discretion standard. Id., citing Mentor Lagoons, Inc. v. Teague, 71 Ohio App. 3d 719, 724,
595 N.E.2d 392 (11th Dist.1991). An abuse of discretion implies the court’s attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217,
450 N.E.2d 1140 (1983).
{¶24} Disqualification of an attorney is a drastic measure, which should not be
imposed unless absolutely necessary. It is the burden of the party moving for
disqualification of an attorney to demonstrate that the proposed testimony may be
prejudicial to that attorney’s client and that disqualification is necessary. Mentor Lagoons
at 724. “While motions to disqualify may be legitimate and necessary under certain
circumstances, they ‘“should be viewed with extreme caution for they can be misused as
techniques of harassment.’” Lytle v. Mathew, 8th Dist. Cuyahoga No. 104622,
2017-Ohio-1447, ¶ 13, quoting SST Castings, Inc. v. Amana Appliances, Inc., 250
F. Supp. 2d 863, 865-866 (S.D.Ohio 2002).
{¶25} Meehan first argues that McFadden and the attorneys from his law firm
should have been disqualified due to a conflict of interest. Ohio has adopted the
three-part test for disqualification of counsel due to a conflict of interest set forth in Dana
Corp. v. Blue Cross & Blue Shield Mut., 900 F.2d 882 (6th Cir.1990). The test is as
follows: (1) a past attorney-client relationship must have existed between the party
seeking disqualification and the attorney he or she wishes to disqualify; (2) the subject
matter of the past relationship must have been substantially related to the present case;
and (3) the attorney must have acquired confidential information from the party seeking
disqualification. Wynveen v. Corsaro, 8th Dist. Cuyahoga No. 105538,
2017-Ohio-9170, ¶ 18, citing Stanley v. Bobeck, 8th Dist. Cuyahoga No. 92630,
2009-Ohio-5696, ¶ 13. If a party moving to disqualify an attorney cannot meet the first
prong of the Dana test, that party lacks standing to seek the disqualification. Bobeck at ¶
13.
{¶26} Here, Meehan’s conflict of interest argument fails because he does not
satisfy the first prong of the Dana test and, therefore, lacked standing to move for
McFadden’s disqualification on such grounds.
{¶27} Meehan next argues that attorneys from McFadden & Freeburg Co., L.P.A.
should have been disqualified as necessary witnesses under Prof.Cond.R. 3.7 that
provides:
A lawyer shall not act as an advocate at a trial in which the lawyer is likely
to be a necessary witness unless one or more of the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in
the case;
(3) the disqualification of the lawyer would work substantial hardship on
the client.
{¶28} The official comments to the rule states, in relevant part, that:
[4] (a)(3) recognizes that a balancing is required between the interests of the
client and those of the tribunal and the opposing party. Whether the tribunal
is likely to be misled or the opposing party is likely to suffer prejudice
depends on the nature of the case, the importance and probable tenor of the
lawyer’s testimony, and the probability that the lawyer’s testimony will
conflict with that of other witnesses. Even if there is risk of such prejudice,
in determining whether the lawyer should be disqualified, due regard must
be given to the effect of disqualification on the lawyer’s client.
{¶29} In Gonzalez-Estrada v. Glancy, 8th Dist. Cuyahoga No. 104570,
2017-Ohio-538, ¶ 12, we defined a necessary witness under Prof.Cond.R. 3.7 as one
whose testimony must be admissible and unobtainable through other trial witnesses.
Testimony may be relevant and even highly useful but still not strictly
necessary. A finding of necessity takes into account such factors as the
significance of the matters, weight of the testimony and availability of other
evidence. * * * A party’s mere declaration of an intention to call opposing
counsel as a witness is an insufficient basis for disqualification even if that
counsel could give relevant testimony.
Id., quoting Akron v. Carter, 190 Ohio App. 3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶
19 (9th Dist.).
{¶30} The basis for Meehan’s argument that the attorneys for McFadden &
Freeburg should be disqualified under Prof.Cond.R. 3.7 is that his claims for civil
conspiracy, engaging in a pattern of corrupt activity and respondeat superior against
McFadden survived a motion to dismiss and, therefore, are “prima facie” evidence of
wrongdoing. However, Meehan’s motion completely fails to offer the trial court the
opportunity to examine the relevant testimony of the McFadden & Freeburg attorneys
because he failed to fully explore the matter during the relevant discovery time period.
Meehan complains that the attorneys for McFadden & Freeburg invoked the
attorney-client privilege and the work-product doctrine during discovery. However,
Meehan failed to properly challenge these responses with a timely motion to compel. In
fact, Meehan had still not filed a motion to compel at the time that he moved for the
disqualification of McFadden & Freeburg. Meehan also stated in his motion that he
sought the deposition of McFadden and that McFadden agreed to appear. However,
Meehan failed to pursue the deposition because it would be a “colossal waste of time” in
light of his anticipation that McFadden would invoke the attorney-client privilege and the
work-product doctrine. Again, Meehan failed to properly seek a judicial resolution of
this discovery dispute prior to the close of discovery as set forth by the trial court. No
explanation for this failure is provided.
{¶31} Because Meehan has offered little more than unsupported allegations, his
intent to seek untimely discovery and his intent to call the attorneys for McFadden &
Freeburg at trial, we cannot say that he met his burden before the trial court. We find no
abuse of discretion in this instance.
{¶32} We also note that the trial court was not obligated to hold a hearing on
Meehan’s motion to disqualify or provide findings of fact. Meehan relies upon Kala v.
Aluminum Smelting & Refining Co., Inc., 81 Ohio St. 3d 1, 688 N.E.2d 258 (1998), for
his argument. However, in Majestic Steel Serv. v. DiSabato, 8th Dist. Cuyahoga No.
76540, 1999 Ohio App. LEXIS 4919 (Oct. 21, 1999), we rejected the expansion Meehan
seeks of the hearing requirement in Kala to instances other than the “side-switching”
specifically addressed in that case.
There is nothing in Kala to suggest that an evidentiary hearing is required
on all motions to disqualify counsel[;] [t]he only instance in which the
Supreme Court of Ohio has held that an evidentiary hearing is required is
when ruling on a motion for disqualification of either an individual * * * or
the entire firm * * * when an attorney has left a law firm and joined a firm
representing the opposing party.
Fletcher v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 89279,
2007-Ohio-5338, ¶ 16, quoting Luce v. Alcox, 10th Dist. Franklin No. 04AP-1250,
2005-Ohio-3373, ¶ 6.
{¶33} Meehan’s third assignment of error is overruled.
IV. Withdrawal of Admissions
{¶34} In his fourth assignment of error, Meehan argues that the trial court abused
its discretion in refusing the withdrawal of admissions deemed admitted pursuant to
Civ.R. 36(A)(1).
{¶35} The record reflects that WFG served requests for admissions upon both
Meehan and Evergreen on December 22, 2014. The requests provided a response time
of 28 days in conformance with Civ.R. 36(A)(1). Meehan does not dispute that he failed
to respond to the admissions within the relevant time period. In fact, Meehan admits he
did not respond until 112 days later, on April 13, 2015. Meehan offers no explanation
for his untimely responses.
{¶36} It is well settled in Ohio that in accordance with Civ.R. 36(A), “the matter
set forth in the requests for admissions is deemed admitted if they are not answered within
rule.” Bank of N.Y. v. Jordan, 8th Dist. Cuyahoga No. 88619, 2007-Ohio-4293, ¶ 34,
quoting Beechwoods, Inc. v. Hosfelt, 10th Dist. Franklin No. 79AP-117, 1979 Ohio App.
LEXIS 12493 (Oct. 9, 1979). Thus, where a party fails to timely respond to the request
for admissions, those admissions become fact. Smallwood v. Shiflet, 8th Dist. Cuyahoga
No. 103853, 2016-Ohio-7887, ¶ 18. It is equally settled law that a motion for summary
judgment may be based upon the admitted matter. Jordan. “[W]here a party files a written
request for admission, a failure of the opposing party to timely answer the request
constitutes a conclusive admission pursuant to Civ.R. 56(C) in case of a summary
judgment.” Klesch v. Reid, 95 Ohio App. 3d 664, 674, 643 N.E.2d 571 (8th Dist.1994).
{¶37} A trial court may permit withdrawal or amendment of admissions under
certain circumstances:
Subject to the provisions of Rule 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.
Civ.R. 36(B); Jade Sterling Steel Co. v. Stacey, 8th Dist. Cuyahoga No. 88283,
2007-Ohio-532, ¶ 11.
{¶38} Civ.R. 36(B) does not require a written motion be filed, nor does it provide a
time when a motion must be filed; rather, such matter is left to the discretion of the trial
court. Jade Sterling Steel Co., citing Balson v. Dodds, 62 Ohio St. 2d 287, 291, 405
N.E.2d 293 (1980). Contesting the admissions in a motion for summary judgment
satisfies the requirements of the rule. Id. It is within the trial court’s discretion whether
it will permit or deny the withdrawal or amendment of admissions. Jade Sterling Steel Co.
at ¶ 12. Likewise, it is within the court’s discretion whether to accept the filing of late
responses to a request for admissions. Bayview Loan Servicing, L.L.C. v. St. Cyr, 8th Dist.
Cuyahoga No. 104655, 2017-Ohio-2758, ¶ 12. The clear language of the rule does not
require the trial court to withdraw or amend the admission even if the test for allowing
withdrawal or amendment is shown. Summers v. E. Cleveland, 8th Dist. Cuyahoga No.
98277, 2013-Ohio-1339, ¶ 13.
{¶39} Here, there is no dispute that Meehan blatantly ignored the relevant response
time for the request for admissions, failed to move to withdraw the admissions and has
offered no explanation for his noncompliance with Civ.R. 36. Under these facts we
cannot say that the trial court abused its discretion by failing to sua sponte construe the
arguments in his brief in opposition to summary judgment as a motion to withdraw
admissions and failing to grant the same. See, e.g., U.S. Bank, N.A. v. Koodrich, 8th
Dist. Cuyahoga No. 103802, 2017-Ohio-956, ¶ 20-21 (finding no abuse of discretion
where a trial court refused to grant a motion to withdraw admissions where the moving
party offered no explanation for its failure to comply with discovery deadlines.).
V. Default Judgment Against Evergreen
{¶40} In his fifth assignment of error, Meehan argues that the trial court erred in
granting default judgment against Evergreen. However, the record reflects that
Evergreen did not file a notice of appeal in this instance and is a not a party to the present
appeal. Meehan has cited no authority to establish standing on his part to challenge the
default judgment against Evergreen. Furthermore, even if Evergreen had properly
appealed the default judgment order, the record supports the trial court’s conclusion that
Evergreen failed to file a responsive pleading to the complaint. We find no merit in
Meehan’s argument that he assigned Evergreen’s liability in this dispute to himself and,
therefore, his answer should be construed as an answer on behalf of Evergreen. First,
Meehan fails to cite any authority to support his ability to effectuate such an assignment
and secondly, Meehan’s purported assignment device addresses only Evergreen’s
potential causes of action against third parties and completely omits any mention of
liability.
{¶41} Meehan further argues that the trial court erred in holding him personally
liable for the judgment against Evergreen under the piercing the corporate veil doctrine.
Because this issue was resolved by the trial court on summary judgment we address it
with Meehan’s other summary judgment related arguments below.
{¶42} Meehan’s fifth assignment of error is overruled.
VI. Summary Judgment
{¶43} In his sixth assignment of error, Meehan argues that the trial court erred in
granting summary judgment in favor of appellees.
{¶44} Our review of a trial court’s grant of summary judgment is de novo. Grafton
v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Pursuant
to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of
material fact; (2) the moving party is entitled to judgment as a matter of law; and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to the
nonmoving party, said party being entitled to have the evidence construed most strongly
in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St. 3d 679, 1995-Ohio-286, 653
N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio
St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving for summary judgment
bears the burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St. 3d 280,
1996-Ohio-107, 662 N.E.2d 264.
{¶45} Rather than addressing the propriety of granting summary judgment on any
of the outstanding claims in particular, Meehan argues that five specific questions of
material fact are outstanding and preclude summary judgment in this case. The five
claimed factual disputes are (1) the date the agency agreement between WFG and Meehan
was terminated, (2) whether Meehan breached the agency agreement by failing to notify
WFG of an ODI investigation, (3) whether Meehan stole insurance premiums from WFG,
(4) whether Meehan committed forgery and (5) which party breached the agency
agreement. However, Meehan’s effort to establish the existence of a genuine issue of
material fact is again hamstrung by his failure to comply with the discovery process
below.
{¶46} Civ.R. 36(B) provides:
(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.
{¶47} In this instance, each of the purported genuine issues of material fact
proffered by Meehan were conclusively resolved in favor of the appellees by the
admissions addressed in the fourth assignment of error. An admission that is not
withdrawn or amended cannot be rebutted by contrary testimony or ignored by the trial
court simply because it finds the evidence presented by the party against whom the
admission operates more credible. Smallwood v. Shiflet, 8th Dist. Cuyahoga No.
103853, 2016-Ohio-7887, ¶ 22, citing Am. Auto. Assn. v. AAA Legal Clinic of Jefferson
Crooke, P.C., 930 F.2d 1117, 1120 (5th Cir.1991). Each of the claimed genuine issues
of material fact were precluded by admissions made as a result of Meehan’s failure to
comply with Civ.R. 36(A) and conclusively established in favor of appellees.
{¶48} Finally, Meehan argues that the trial court erred in granting summary
judgment on WFG’s piercing the corporate veil claim. The current test for piercing the
corporate veil in Ohio provides that the corporate form may be disregarded and individual
shareholders held liable for wrongs committed by the corporation when:
(1) control over the corporation by those to be held liable was so complete
that the corporation has no separate mind, will, or existence of its own,
(2) control over the corporation by those to be held liable was exercised in
such a manner as to commit fraud, an illegal act, or a similarly unlawful
conduct or an illegal act against the person seeking to disregard the
corporate entity, and
(3) injury or unjust loss resulted to the plaintiff from such control and
wrong.
Meinert Plumbing v. Warner Indus., 8th Dist. Cuyahoga No. 104817, 2017-Ohio-8863, ¶
43, citing Dombroski v. WellPoint, Inc., 119 Ohio St. 3d 506, 2008-Ohio-4827, 895
N.E.2d 538.
{¶49} Again, Meehan’s arguments that summary judgment was improper are
defeated by his admissions that included that (1) he “exercised control over Evergreen in
a manner which was so complete that Evergreen did not have a separate mind, will or
existence of its own” and (2) he “used control over Evergreen in order to commit theft,
forgery, fraud and other illegal acts against WFG.”
{¶50} Finding no merit to Meehan’s argument that genuine issues of material fact
precluded summary judgment, we overrule his sixth assignment of error.
VII. Civ.R. 60(B) Motion
{¶51} In his final assignment of error, Meehan argues that the trial court erred in
denying his Civ.R. 60(B) motion for relief from judgment without holding an evidentiary
hearing. We review a trial court’s decision to grant or deny a Civ.R. 60(B) motion for an
abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St. 3d 17, 20, 520 N.E.2d 564
(1988).
{¶52} In order to prevail on a Civ.R. 60(B) motion to vacate judgment, the moving
party must demonstrate the following: (1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to relief under one of the grounds
stated in Civ.R. 60(B) that include, inter alia, “mistake, inadvertence, surprise or
excusable neglect,” and “any other reason justifying relief from the judgment”; and (3)
the motion is made within a reasonable time and, where the grounds of relief are Civ.R.
60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was
entered or taken. GTE Automatic Elec. v. ARC Industries, 47 Ohio St. 2d 146, 351 N.E.2d
113 (1976), paragraph two of the syllabus.
{¶53} The moving party “has the burden of proof, [and] must present sufficient
factual information to warrant a hearing on the motion.” Adomeit v. Baltimore, 39 Ohio
App.2d 97, 103, 316 N.E.2d 469 (8th Dist.1974). The evidentiary materials must present
operative facts and not mere general allegations to justify relief. Hornyak v. Brooks, 16
Ohio App. 3d 105, 106, 474 N.E.2d 676 (8th Dist.1984). If the movant has a meritorious
defense, then doubt, if any, should be resolved in favor of the motion to set aside the
judgment so that the case may be decided on its merits. GTE, at paragraph three of the
syllabus.
{¶54} Meehan filed his motion for relief from judgment on June 21, 2016
following the trial court’s grant of summary judgment against him on May 2, 2016.
However, the trial court’s May 2, 2016 journal entry was not a final order under Civ.R.
54(B) because, by its own terms, it did not dispose of all claims against all parties.
Additionally, the journal entry did not contain “no just reason for delay” language
pursuant to Civ.R. 54(B). In fact, this court dismissed a prior appeal in this case on
February 1, 2017 due to the lack of a final appealable order. The trial court had no
authority to grant relief from a nonfinal judgment or order because Civ.R. 60(B), by its
own terms, applies only to a “final judgment, order, or proceeding[.]” See, e.g., Harper
v. Metrohealth Med. Ctr., 8th Dist. Cuyahoga No. 81048, 2002-Ohio-5861, ¶ 5 (finding
that a trial court could not grant relief pursuant to Civ.R. 60(B) where summary judgment
did not dispose of all claims and Civ.R. 54(B) language was not used).
{¶55} Meehan offers no argument addressing the above defect in his Civ.R. 60(B)
motion. We find no abuse of discretion in the trial court’s decision to deny the motion.
{¶56} Meehan’s seventh assignment of error is overruled.
{¶57} The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellants the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Cuyahoga County 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.
_____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR