[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
