Spy v. Arbor Park Phase One Assn.

[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