[Cite as Kingston Care Ctr. of Perrysburg v. Carstensen, 2020-Ohio-1238.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


Kingston Care Center of Perrysburg                         Court of Appeals No. WD-18-084

        Appellee                                           Trial Court No. CVF 1701213

v.

Robert Carstensen, et al.                                  DECISION AND JUDGMENT

        Appellees                                          Decided: March 31, 2020

                                                 *****

        Stephen E. Cottrell, for appellant.

        David S. Brown, for appellees.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a June 10, 2019 collection judgment of the

Perrysburg Municipal Court, granting appellee judgment against appellants in an amount

of $4,020, plus accrued interest of $1,333.53, as well as costs and attorneys’ fees, with

the total judgment equaling $13,814.03.
       {¶ 2} This collection judgment arises from appellants’ unpaid expenses incurred

for skilled nursing services, supplies, and related costs during Robert Carstensen’s 2016

inpatient stay at the Kingston Care Center of Perrysburg medical treatment facility. For

the reasons set forth below, this court affirms the judgment of the trial court.

       {¶ 3} Appellants, Robert and Carol Carstensen, set forth the following four

assignments of error:

              I. Trial court erred in allowing appellee to abuse [the] discovery

       process.

              II. Trial court erred in awarding attorney[s’] fees pursuant to a

       contract that is against public policy.

              III. Trial court erred in granting interest above that permitted by

       law.

              IV. Trial court’s decision is against the manifest weight of the

       evidence.

       {¶ 4} The following undisputed facts are relevant to this appeal. On November

14, 2016, appellant Robert Carstensen executed an admission agreement with appellee to

be housed on an inpatient basis in appellee’s skilled nursing facility located in

Perrysburg, Ohio. Carstensen’s stay in the facility was necessitated after appellant

underwent a laminectomy, a form of orthopedic surgery, to address ambulatory issues.

       {¶ 5} On January 10, 2017, appellant was discharged from appellee’s facility,

following approximately seven weeks of inpatient residency and treatment. This case




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centers upon Carstensen’s refusal to pay the $4,020 balance owed to appellee for services

rendered.

       {¶ 6} Appellant’s legal obligation to pay appellee for monies owed, but not paid to

appellee by Medicare or a secondary insurer source on appellant’s behalf, was

contractually established in the written admission agreement executed by appellant.

       {¶ 7} As a Medicare patient, the admission agreement language pertinent to this

case states in pertinent part, “You are required to pay Kingston at the private-pay rate for

all charges incurred by the Resident in the event that Medicare coverage is denied or if

the Resident’s eligibility for Medicare coverage expires.”

       {¶ 8} Medicare did not cover expenses of $4,020 of the total amount incurred

during Carstensen’s final ten-day stay at Kingston as appellant himself elected to extend

his stay the additional ten days. Appellants refused to pay the balance owed and the

instant case ensued.

       {¶ 9} On September 18, 2017, appellee filed a collection complaint against

appellants for the monies owed. On February 27, 2018, appellee served appellants with

standard written discovery requests. The record reflects that the discovery requests were

unremarkable and within the limits set forth in the rules of civil procedure.

       {¶ 10} After initially filing a pro se answer to the collection complaint, appellants

retained legal counsel and filed a motion for a protective order regarding the outstanding

discovery requests.




3.
       {¶ 11} On July 30, 2018, the trial court denied appellants’ request for a protective

order. Appellants nevertheless continued to refuse to furnish answers to the discovery

requests.

       {¶ 12} On September 5, 2018, the day before trial, given the discovery impasse

triggered by appellants in this collection case, appellee filed a notice of admissions for

trial purposes as the requests were not objected to, or answered, by appellants or their

counsel. The requests for admissions were deemed admitted.

       {¶ 13} The record reflects that the admissions were straightforward and not

burdensome, including items such as noting that Robert Carstensen’s stay at the facility

was voluntary, that medically necessary services and supplies were provided, that the

charges were not questioned or challenged prior to this litigation, and that the parties

were married to one another at the time the expenses were incurred.

       {¶ 14} On September 6, 2018, the matter proceeded to a bench trial. The

transcripts of the trial clearly reflect that appellants focused their claim at not owing the

monies in dispute upon misleading allegations that appellee failed to provide a medically

necessary lift chair to appellant upon discharge.

       {¶ 15} Conversely, the record of evidence contrarily reflects that when the original

vendor for the lift chair was unable to provide it in a timely manner, it was appellants

themselves who refused to secure the lift chair through an alternative provider furnished

by appellee.

       {¶ 16} The record shows that appellants declined to obtain the needed equipment

through the backup source provided and, instead, elected to voluntarily extend Robert


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Carstensen’s stay in the facility for an additional ten days. It is the costs incurred during

the voluntary extended stay that Medicare declined to cover.

       {¶ 17} On September 6, 2018, the trial court granted a collection judgment in

favor of appellee in the amount of $4,020, plus accrued interest of $1,333.53, and

attorneys’ fees. This appeal ensued.

       {¶ 18} For clarity, we note that appellants’ brief in support of this appeal is

conclusory and conspicuous in the absence of supporting legal authority.

       {¶ 19} In the first assignment of error, appellants asserts that the trial court

permitted appellee to abuse the discovery process, and thereby also abused its discretion.

We do not concur.

       {¶ 20} While appellants generically complain that appellee’s counsel, “[C]ertainly

knew that such discovery would be so burdensome on these people that they simply could

not afford to respond and would likely give up,” the record reflects that appellants never

attempted to cooperate in discovery and obtained private counsel in an effort to block the

discovery process.

       {¶ 21} In addition, the record contains no objective evidence, and appellants cite

none, in support of the notion that the discovery requests issued to appellants were

unduly burdensome or in any way improper.

       {¶ 22} The essence of appellants’ first assignment of error appears to be centered

upon the trial court having ultimately deemed as accepted, for trial purposes, appellee’s

notice of admissions based upon appellants’ refusal to furnish answers or objections to

properly submitted requests for admissions.


5.
       {¶ 23} As established by Civ.R. 36(A)(1), with respect to requests for admissions

in civil litigation, “The matter is [deemed] admitted unless, within a period designated in

the request, not less than twenty-eight days after service * * * the party to whom the

request is directed serves upon the party requesting the admission a written answer or

objection.”

       {¶ 24} As applied to the instant case, the record shows that the requests for

admissions were served upon appellants on or about February 27, 2018. The record

further reflects that appellants continuously refused to answer or object, even after the

trial court’s denial of the motion for a protective order. The refusal to cooperate in

discovery continued right up to the September 6, 2018 trial, approximately five months

after the Civ.R. 36(A)(1) deadline for answering or objecting had expired.

       {¶ 25} Accordingly, the trial court properly deemed the matters to be admitted by

appellants by operation of law pursuant to Civ.R. 36(A)(1). The record reflects no abuse

of discretion by the trial court in connection to discovery. We find appellants’ first

assignment of error not well-taken.

       {¶ 26} In appellants’ second assignment of error, appellants summarily conclude

that the trial court erred in awarding attorneys’ fees, while simultaneously conceding that

the admissions agreement executed by Robert Carstensen, explicitly provided for the

granting of attorneys’ fees.

       {¶ 27} Nevertheless, appellants summarily conclude that awarding the fees is,

“patently against public policy.” Again, no legal authority in support of this position was

furnished by appellants.


6.
       {¶ 28} Appellants generically maintain that the patient admission agreement,

“encourages unscrupulous attorneys to pursue frivolous discovery to accumulate

enormous fees in small cases.” Again, the record is devoid of evidence of discovery

abuses, as pertains to appellee.

       {¶ 29} It is well-established that, “When considering an award of attorney fees,

Ohio follows the American Rule * * * [A]ttorney fees may be allowed if: (1) a statute

creates a duty; (2) an enforceable contract provision provides for an award of attorney

fees; or (3) the losing party has acted in bad faith.” (Emphasis added). Wilson Concrete

Products, Inc. v. Baughman, 2d Dist. Montgomery No. 20069, 2004-Ohio-4696, at ¶ 8.

       {¶ 30} As applied to the instant case, the award of attorney fees is proper as it

clearly falls within the second exception to the American Rule. Appellants have

furnished no evidence of unenforceability of the admission agreement. We find

appellants’ second assignment of error not well-taken.

       {¶ 31} In the third assignment of error, appellants contend that the interest

awarded in the subject judgment was an abuse of discretion. We do not concur.

       {¶ 32} In support of the third assignment, appellants place mistaken reliance upon

R.C. 1343.01(A). Appellants assert that the 8 percent interest rate cap set forth in R.C.

1343.01(A) applies to the instant case, thereby rendering the 18 percent rate in the subject

contract unlawful. Appellants’ position is not based upon the correct statutory provision

and is, therefore, misguided.




7.
       {¶ 33} We note that the application of R.C. 1343.01(A) is expressly restricted to

bonds, bills, promissory notes, or similar loan installment contracts. By contrast, the

document at issue in this case is a nursing care facility admission agreement.

       {¶ 34} R.C. 1343.03(A) governs this case. R.C. 1343.03(A) establishes that in

cases involving instruments such as the patient admission agreement in the instant case,

the applicable interest rate may be either the, “[R]ate per annum determined pursuant to

section 5703.47 of the Revised Code, unless a written contract provides a different rate of

interest in relation to the money that becomes due and payable, in which case the creditor

is entitled to interest at the rate provided in that contract.”

       {¶ 35} We find that the interest rate provision reflected in the subject admission

agreement comports with R.C. 1343.03(A) and is not unlawful. Wherefore, we find

appellants’ third assignment of error not well-taken.

       {¶ 36} In appellants’ fourth assignment of error, appellants maintain that the trial

court judgment was against the manifest weight of the evidence. We do not concur.

       {¶ 37} Appellants provide no legal authority or analysis in support of the fourth

assignment of error. Rather, appellants unilaterally, subjectively conclude, “Beginning

with the obvious abuse of discretion by appellee, continuing to the failure of the trial

court to allow appellants to present their defense and finally with the trial court awarding

outrageous attorney fees * * * the decision cannot stand.”

       {¶ 38} With respect to manifest weight of the evidence assertions on appeal, it is

well-established that, “[J]udgments supported by some competent, credible evidence




8.
going to all the essential elements of the case will not be reversed by the reviewing

court.” Krzystan v. Bauer, 6th Dist. Ottawa No. OT-15-039, 2017-Ohio-858, ¶ 12.

       {¶ 39} The record reflects that the subject charges, interest, and attorney fees, all

comport with the patient admission agreement executed by appellant. The record is

devoid of any evidence of impropriety or illegality in connection to any portion of the

collection judgment rendered against appellants, or the admission agreement from which

the judgment arises. We find appellant’s fourth assignment of error not well-taken.

       {¶ 40} On consideration whereof, the judgment of the Perrysburg Municipal Court

is hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.



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