Spy v. Arbor Park Phase One Assn. , 2020 Ohio 2944 ( 2020 )


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  •                                                               [Cite as Spy v. Arbor
    Park Phase One Assn., 
    2020-Ohio-2944
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    TYESHA SPY, ET AL.,                             :
    Plaintiffs-Appellants,              :
    No. 108819
    v.                                   :
    ARBOR PARK PHASE ONE                            :
    ASSOC., ET AL.
    :
    Defendants-Appellees.
    JOURNAL ENTRY AND OPINION
    JUDGMENT: REVERSED AND REMANDED
    RELEASED AND JOURNALIZED: May 14, 2020
    Civil Appeal from the Cleveland Municipal Court
    Housing Division
    Case No. 2018-CVH-010944
    Appearances:
    Tyesha Spy, pro se.
    Powers Friedman Linn, PLL, Rachel E. Cohen, Thomas P.
    Owen, and Kyle P. Ripma, Esq., for appellees.
    MARY EILEEN KILBANE, J.:
    Plaintiff-appellant, Tyesha Spy (“Spy”), appeals, pro se, from a
    judgment of the Cleveland Municipal Court, Housing Division, granting summary
    judgment to defendants-appellees, Arbor Park Phase One Assoc. and the Finch
    Group (collectively “Arbor Park”). For the reasons that follow, we reverse and
    remand.
    I.    FACTUAL BACKGROUND
    On July 20, 2018, Spy filed a complaint seeking damages for
    “unlawful eviction, misrepresentation, security deposit cost of moving, unpaid
    reimbursement for utilities, etc.” after Arbor Park had obtained an eviction
    judgment against her in 2017. The complaint included three minor co-plaintiffs who
    were not identified by name. Spy filed and served an amended complaint on
    September 4, 2018.
    On October 5, 2018, Arbor Park had not yet answered the complaint
    and Spy filed a motion for default judgment. The court granted her motion for a
    default hearing on October 12, 2018 and set a default hearing for October 17, 2018.
    One day before the default judgment hearing, Arbor Park filed a motion for leave to
    file an answer instanter. The court granted the motion and deemed Arbor Park’s
    answer filed on October 16, 2018.
    The docket reflects that the court held a hearing on October 19, 2018.
    Spy asserts that all parties were present, but that the court only spoke with Arbor
    Park. She claims she was never called before the court and was simply told that the
    case would proceed to a pretrial on December 10, 2018.
    Arbor Park attempted to serve requests for written admissions of fact
    to Spy on November 13, 2018. The certificate of service indicates that Arbor Park
    sent the requests to Spy by regular mail to her address of record at 3123 East 98th
    Street, Cleveland, OH 44101 (the “Cleveland Address”). Although the certificate of
    service states that Arbor Park also sent an electronic copy to Spy, it does not identify
    an email address for her. Pursuant to Civ.R. 36, had the discovery requests been
    properly served on November 13, 2018, Spy’s responses to the requests would have
    been due on December 11, 2018.
    The parties attended the pretrial hearing on December 10, 2018.
    Arbor Park claims that Spy did not submit responses or request an extension of time
    to respond to the requests for admission at the pretrial. However, Spy claims she
    informed Arbor Park that day that she did not receive the requests for admission
    because she had moved. She also filed a notice of change of address on that date,
    informing the court that her new address was 851 West 39th Street, Ashtabula, OH
    44004 (the “Ashtabula Address”). The notice identified her old address as the
    Cleveland Address where Arbor Park certified it sent the requests for admission.
    Arbor Park moved for leave to file summary judgment and its
    summary judgment motion on January 17, 2019. The certificate of service on the
    motion for summary judgment indicates it was served to Spy by regular mail to 5855
    Washington Avenue, Ashtabula, OH 44004, a different address than the Ashtabula
    Address identified on Spy’s change of address notice. Arbor Park’s motion for
    summary judgment was based on the fact that Spy had not responded to the requests
    for admissions. It argued that the admissions must be deemed admitted and that, if
    admitted, the admissions proved there was no genuine issue of material fact.
    Arbor Park’s motion for summary judgment also included an affidavit
    of Kyle P. Ripma (“Ripma Affidavit”), one of Arbor Park’s attorneys. Mr. Ripma
    averred that hard and electronic copies of Arbor Park’s discovery requests were
    served on November 13, 2018, and that Spy did not request additional time to
    respond to the requests at the December 10, 2018 pretrial hearing or “articulate or
    describe any facts upon which she relies in bringing her claim.”
    On February 1, 2019, the court granted Arbor Park’s motion for
    summary judgment. On February 5, 2019, Spy filed notice that she did not receive
    the motion for summary judgment. The court held a hearing on February 13, 2019
    and ordered Arbor Park to send a copy of its summary judgment motion to Spy at
    her Ashtabula Address. The court also gave Spy until March 13, 2019, to file a
    response to the summary judgment motion.
    Spy filed an opposition to summary judgment on March 15, 2019. On
    March 21, 2019, the court granted Arbor Park’s motion for summary judgment. In
    its judgment entry, the court relied on Arbor Park’s requests for admissions of fact,
    which it deemed admitted. Of note, it deemed Spy to have admitted that she had no
    facts or documentary evidence to support her claim.
    This appeal follows. Spy has asserted the following three assignments
    of error:
    Assignment of Error One
    The trial court has failed to comply with the rule for service of
    documents. The Court has been using its own personal staff to make
    service.
    Assignment of Error Two
    The trial court making the appellee’s request for admission [of] facts on
    the record and the court stating “plaintiff, deem [sic] to have admitted
    that she has no facts or documentary evidence to support her claim
    against the defendant’s [sic].”
    Assignment of Error Three
    The trial court accepting evidence that should have been ruled
    inadmissible and stricken from the record by the trial court.
    For the reasons that follow, we reverse the decision of the trial court.
    II.   LAW AND ANALYSIS
    As a preliminary matter, we note that pro se litigants “are presumed
    to know the law and correct procedure, and are held to the same standards as other
    litigants.” Vannucci v. Schneider, 8th Dist. Cuyahoga No. 104598, 
    2017-Ohio-192
    ,
    ¶ 19, citing Kilroy v. B.H. Lakeshore Co., 
    111 Ohio App.3d 357
    , 363, 
    676 N.E.2d 171
    (8th Dist.1996). A pro se litigant “cannot expect or demand special treatment from
    the judge, who is to sit as impartial arbiter.” 
    Id.,
     quoting Kilroy.
    A.     Assignments of Error One and Three
    Spy first argues that the trial court improperly used court staff to serve
    documents. She specifically contends that the court bailiff and other members of
    the court served various documents in person at her home address. Spy has raised
    this issue of improper service for the first time on appeal.
    In her third assignment of error, Spy appears to argue that Arbor
    Park’s motion for summary judgment and a motion to strike should be stricken from
    the record because the wrong address was listed on each motion’s certificate of
    service after she had filed her change of address notice. Spy did not move to strike
    Arbor Park’s motion for summary judgment or motion to strike below.
    It is well-settled that issues not raised in the trial court may not be
    raised for the first time on appeal. Crenshaw v. Cleveland Law Dept., 8th Dist.
    Cuyahoga No. 108519, 
    2020-Ohio-921
    , ¶ 42 fn.6, citing Shadd v. Cleveland Civ.
    Serv. Comm., 8th Dist. Cuyahoga No. 107603, 
    2019-Ohio-1996
    , ¶ 27 (“Appellants
    cannot raise an issue for the first time on appeal that they did not raise to the trial
    court.”); Scott Fetzer Co. v. Miley, 8th Dist. Cuyahoga No. 108090, 
    2019-Ohio-4578
    ,
    ¶ 41 (“A party cannot raise new issues or arguments for the first time on appeal;
    failure to raise an issue before the trial court results in a waiver of that issue for
    appellate purposes.”); Lycan v. Cleveland, 8th Dist. Cuyahoga Nos. 107700 and
    107737, 
    2019-Ohio-3510
    , ¶ 32-33 (“It is well-established that arguments raised for
    the first time on appeal are generally barred and a reviewing court will not consider
    issues that the appellant failed to raise in the trial court.”), citing Cawley JV, L.L.C.
    v. Wall St. Recycling L.L.C., 
    2015-Ohio-1846
    , 
    35 N.E.3d 30
    , ¶ 17 (8th Dist.).
    As Spy did not raise these issues below, the first and third
    assignments of error are not properly before the court.
    But in regard to the third assignment of error, we note that Spy stated
    in her opposition to summary judgment that the Ripma Affidavit, exhibit No. one to
    Arbor Park’s summary judgment motion, should be stricken. To the extent this was
    sufficient to preserve the issue for appeal and to the extent Spy has raised this issue
    in her third assignment of error, “[o]ur standard of review for a motion to strike is
    an abuse of discretion by the trial court.” Hall v. Rocky River, 8th Dist. Cuyahoga
    No. 107624, 
    2019-Ohio-1997
    , ¶ 30, citing Abernethy v. Abernethy, 8th Dist.
    Cuyahoga No. 81675, 
    2003-Ohio-1528
    , ¶ 7. “An abuse of discretion is more than an
    error of law or judgment; it implies that the trial court acted unreasonably,
    arbitrarily, or unconscionably.” Hall at 
    id.,
     citing Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983).
    Civ.R. 56(E) states:
    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.
    The Ripma Affidavit stated that he was counsel to Arbor Park and had
    personal knowledge of the matters stated therein. Spy has not demonstrated and
    we do not find any abuse of discretion by the trial court in not striking the Ripma
    Affidavit.
    In light of the above, the first and third assignments of error are
    overruled.
    B.     Assignment of Error Two
    Spy argues in her second assignment of error that the trial court
    improperly deemed admitted Arbor Park’s requests for admissions and improperly
    relied on those admissions in granting summary judgment. We agree.
    1.     Standard of Review
    a)    Discovery Matters
    “A trial court’s discovery decisions — including the acceptance of a
    party’s withdrawal of Civ.R. 36(A) admissions — will not be disturbed on appeal
    unless there is an abuse of discretion.” C.S.J. v. S.E.J., 8th Dist. Cuyahoga No.
    108390, 
    2020-Ohio-492
    , ¶ 17, citing Bayview Loan Servicing, L.L.C. v. St. Cyr,
    
    2017-Ohio-2758
    , 
    90 N.E.3d 321
    , ¶ 20, 26 (8th Dist.). A trial court abuses its
    discretion where its decision is unreasonable, arbitrary or unconscionable. Bales v.
    Forest River, Inc., 8th Dist. Cuyahoga No. 107896, 
    2019-Ohio-4160
    , ¶ 21, citing
    Blakemore, 
    5 Ohio St.3d 219
    , 
    450 N.E.2d 1140
    . “A decision is unreasonable if there
    is no sound reasoning process that would support that decision.” Bales v. Forest
    River, Inc., 8th Dist. Cuyahoga No. 107896, 
    2019-Ohio-4160
    , ¶ 21, quoting AAAA
    Ents. Inc. v. River Place Community Urban Redevelopment, 
    50 Ohio St.3d 157
    , 161,
    
    553 N.E.2d 597
     (1990).
    b)    Summary Judgment
    “We review the trial court’s judgment de novo using the same
    standard that the trial court applies under Civ.R. 56(C).” Jackson-Summers v.
    Brooks, 8th Dist. Cuyahoga No. 86522, 
    2006-Ohio-1357
    , ¶ 27, citing Grafton v. Ohio
    Edison Co., 
    77 Ohio St. 3d 102
    , 105, 
    671 N.E.2d 241
     (1996). “Civ.R. 56(C) provides
    that 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) after
    construing the evidence most favorably for the party against whom the motion is
    made, reasonable minds can reach only a conclusion that is adverse to the
    nonmoving party.” 
    Id.,
     citing Zivich v. Mentor Soccer Club, Inc., 
    82 Ohio St.3d 367
    ,
    369-370, 
    696 N.E.2d 201
     (1998); Temple v. Wean United, Inc., 
    50 Ohio St.2d 317
    ,
    327, 
    364 N.E.2d 267
     (1977).
    “On a motion for summary judgment, the moving party carries an
    initial burden of identifying specific facts in the record that demonstrate his or her
    entitlement to summary judgment.” Mobley v. James, 8th Dist. Cuyahoga No.
    108470, 
    2020-Ohio-380
    , ¶ 29, citing Dresher v. Burt, 
    75 Ohio St.3d 280
    , 292-293,
    
    662 N.E.2d 264
     (1996). “If the moving party fails to meet this burden, summary
    judgment is not appropriate; if the moving party meets this burden, the nonmoving
    party has the reciprocal burden to point to evidence of specific facts in the record
    demonstrating the existence of a genuine issue of material fact for trial.” 
    Id.,
     citing
    Dresher at 293. “Summary judgment is appropriate if the nonmoving party fails to
    meet this burden.” Id.
    2.     The requests for admission were not properly served
    Spy argues that the trial court erred in deeming Arbor Park’s requests
    for admission admitted due to her failure to respond. We agree and find that the
    trial court abused its discretion in finding the requests automatically admitted
    because Spy was not properly served with the requests for admissions.
    “When a party fails to respond, without justification, to a properly
    served request for admissions, those matters to which the requests were addressed
    will be deemed admitted.” Mannesmann Dematic Corp. v. Material Handling
    Servs., 8th Dist. Cuyahoga No. 76256, 
    1999 Ohio App. LEXIS 6070
    , *9 (Dec. 16,
    1999), citing Civ.R. 36; Cleveland Trust Co. v. Willis, 
    20 Ohio St.3d 66
    , 67, 
    485 N.E.2d 1052
    , 1053-1054 (1985), cert. denied, 
    478 U.S. 1005
    , 
    106 S.Ct. 3295
    , 
    92 L.Ed.2d 710
     (1986). “A presumption of proper service exists when the record
    reflects that the Civil Rules pertaining to service of process have been followed.”
    Jackson-Summers v. Brooks, 8th Dist. Cuyahoga No. 86522, 
    2006-Ohio-1357
    , ¶ 20,
    citing Potter v. Troy, 
    78 Ohio App.3d 372
    , 377, 
    604 N.E.2d 828
     (2d Dist.1992),
    citing Grant v. Ivy, 
    69 Ohio App.2d 40
    , 
    429 N.E.2d 1188
     (10th Dist.1980),
    paragraph one of the syllabus. However, “[t]he presumption may be rebutted by
    sufficient evidence to the contrary.” Jackson-Summers at 
    id.
     We find sufficient
    evidence that Spy did not receive proper service of the requests for admission.
    In Jackson-Summers, we found that a plaintiff who had filed a
    medical malpractice complaint did not sufficiently rebut the presumption of proper
    service of the defendant’s requests for admissions of fact. Id. at ¶ 21-22. The
    certificate of service attached to the requests for admissions demonstrated that
    service was made by regular mail to the plaintiff’s home address. The plaintiff
    claimed she never received the requests, but nothing in the record supported that
    bare assertion. Id. at ¶ 22. We specifically noted that the plaintiff “offered no
    evidence that she was away from her home for any significant period or had changed
    addresses, or any other reason for why she did not receive this filing.” Id. The
    plaintiff also did not claim that she never received a copy of the defendant’s motion
    to deem the requests for admissions admitted. Id. That is not the case here.
    Arbor Park claims that it served its requests for admissions on
    November 13, 2018, by email and regular mail to Spy’s Cleveland Address. Spy
    claims that she never received the requests by email or mail. Unlike in Jackson-
    Summers, the record here supports Spy’s claim.             In particular, the record
    demonstrates that Spy changed addresses on or before December 10, 2018. She not
    only filed an official change of address form with the court on December 10, 2018,
    but also informed Arbor Park in person that day that she had not received any
    discovery requests because she had moved.
    There is no indication that Arbor Park served the requests to Spy at
    her new Ashtabula Address, except that the requests were attached as an exhibit to
    its motion for summary judgment, which Spy incidentally received in mid-February
    2019 through service of the summary judgment motion, which we note was also sent
    to the wrong address initially. Further, the certificate of service does not identify an
    email address for Spy; the record does not reflect an email address for Spy; and Spy
    asserts that she never provided an email address to Arbor Park for electronic service.
    During the pretrial hearing on December 10, 2018, Spy claims that
    Arbor Park told her they sent requests for admission to her on November 13, 2018,
    but that she informed Arbor Park and the court that she did not receive the requests
    for admission because she had moved. As noted, she also filed a change of address
    notice that day, which the docket reflects. There is no question that Arbor Park knew
    by December 10, 2018, that Spy had moved and that she had not received any
    discovery requests. Arbor Park points out that Spy did not request additional time
    to respond to the requests at the December 10, 2018 hearing. However, we would
    not expect Spy to request additional time to respond to discovery requests that were
    not yet properly served.
    Arbor Park also argues that, pursuant to Cleveland Trust Co., 
    20 Ohio St.3d 66
    , 67, 
    485 N.E.2d 1052
     (1985), the requests were properly deemed admitted
    and adopted by the trial court because Spy never sought to amend or withdraw the
    admissions. Id at 67. However, Cleveland Trust did not involve failed service of
    requests for admission like we have here. Moreover, a formal motion to withdraw
    or amend admissions is not necessary to overcome admissions deemed admitted
    due to a failure to respond. C.S.J. v. S.E.J., 8th Dist. Cuyahoga No. 108390, 2020-
    Ohio-492, ¶ 14, citing Balson v. Dodds, 
    62 Ohio St.2d 287
    , 
    405 N.E.2d 293
     (1980).
    Since the record demonstrates that the requests for admission were
    not properly served, we find that the trial court abused its discretion in deeming the
    admissions admitted.       We next examine whether Arbor Park was entitled to
    summary judgment without the facts deemed admitted and find that it was not.
    3.    Summary judgment was not appropriate
    Arbor Park relied on the facts deemed admitted to attempt to meet its
    initial burden under Civ.R. 56(C). The 12 admissions attached to Arbor Park’s
    motion for summary judgment asked Spy to admit, inter alia, that: “There are no
    facts upon which you rely as evidence of or a basis for a claim against the Defendant”
    and “There are no Documents that you intend to utilize as evidence of claims against
    the Defendant.” Arbor Park also requested admissions regarding the validity and
    terms of the rental agreement between Spy and Arbor Park. These admissions go to
    the merits of the issues related to Spy’s claim that Arbor Park unlawfully evicted her.
    In sum, Arbor Park’s motion for summary judgment relied on the
    facts deemed admitted by Spy’s failure to respond to the requests to meet its burden.
    The judgment entry granting summary judgment relied on the same. Based on our
    conclusion that the requests for admission were not properly served and should not
    have been deemed admitted, we find that Arbor Park failed to meet its initial burden
    of “identifying specific facts in the record that demonstrate [its] entitlement to
    summary judgment.” Mobley v. James, 8th Dist. Cuyahoga No. 108470, 2020-
    Ohio-380, ¶ 29 , citing Dresher, 
    75 Ohio St.3d 280
    , 292-293, 
    662 N.E.2d 264
     (1996).
    Accordingly, we find that summary judgment was not appropriate. 
    Id.
    Spy’s second assignment of error is well-taken. We reverse the trial
    court’s granting of summary judgment and remand for proceedings consistent with
    this opinion.
    Judgment reversed and remanded.
    It is ordered that appellant recover from appellees costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    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.
    MARY EILEEN KILBANE, JUDGE
    PATRICIA ANN BLACKMON, P.J., and
    LARRY A. JONES, SR., J., CONCUR