[Cite as Natl. Collegiate Student Loan Trust 2005-3 v. Demers, 2019-Ohio-1475.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 NATIONAL COLLEGIATE STUDENT                          :
 LOAN TRUST 2005-3                                    :
                                                      :     Appellate Case No. 2018-CA-93
         Plaintiff-Appellee                           :
                                                      :     Trial Court Case No. 2017-CV-227
 v.                                                   :
                                                      :     (Civil Appeal from
 LEEANN N. DEMERS, aka LEEANN                         :     Common Pleas Court)
 N. EVANS, et al.                                     :
                                                      :
         Defendants-Appellants


                                              ...........

                                              OPINION

                             Rendered on the 19th day of April, 2019.

                                              ...........

MATTHEW L. SCHRADER, Atty. Reg. No. 0074230, 200 Civic Center Drive, Suite 800,
Columbus, Ohio 43215
     Attorney for Plaintiff-Appellee

MARC DANN, Atty. Reg. No. 0039425 and EMILY WHITE, Atty. Reg. No. 0085662, P.O.
Box 6031040, Cleveland, Ohio 44103
      Attorneys for Defendants-Appellants

                                             .............



WELBAUM, P.J.
                                                                                       -2-




       {¶ 1} Defendants-appellants, Leeann N. Demers, a.k.a. Leeann N. Evans, and

Kevin L. Evans (collectively, “the Evanses”), appeal from a judgment of the Clark County

Court of Common Pleas granting summary judgment in favor of plaintiff-appellee,

National Collegiate Student Loan Trust 2005-3 (“National Collegiate”). In support of their

appeal, the Evanses contend that the trial court’s decision granting summary judgment

was in error because the judgment was based on their failure to respond to National

Collegiate’s request for admissions, which they claim they timely answered. For the

reasons outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On July 20, 2005, Leeann Demers/Evans executed a $25,000 loan with

Citizens Bank of Rhode Island (“Citizens Bank”) to finance her education at Ohio

Dominican University.    Kevin Evans co-signed the loan. Shortly after the loan was

executed, Citizens Bank sold the loan to National Collegiate.

       {¶ 3} On April 11, 2017, National Collegiate filed a “Complaint for Money” alleging

that the Evanses had defaulted on the loan.        In the complaint, National Collegiate

demanded judgment against the Evanses for the total amount due on the loan plus

interest, which totaled $62,829.09.

       {¶ 4} On August 24, 2017, after the trial court granted the Evanses a 60-day stay,

the Evanses filed an answer denying the allegations in National Collegiate’s complaint.

Approximately four months later, National Collegiate filed a notice with the trial court

certifying that it had served the Evanses’ trial counsel with a request for admissions and
                                                                                        -3-


other discovery by regular mail on December 20, 2017.

       {¶ 5} On June 13, 2018, National Collegiate filed a motion for summary judgment.

In the motion, National Collegiate argued that the Evanses failed to submit answers to its

request for admissions, and by operation of Civ.R. 36, the unanswered requests were

deemed admitted. Based on those admissions, National Collegiate argued that there

was no genuine issue of material fact left for trial and that judgment should be granted in

its favor for the amount requested in the complaint.

       {¶ 6} In support of its motion for summary judgment, National Collegiate attached

various supporting documents, including but not limited to: (1) military status affidavits

verifying that neither Leanne nor Kevin Evans was on active military duty; (2) affidavits

verifying the loan at issue and the amount the Evanses owed National Collegiate as a

result of defaulting on the loan; (3) the request for admissions that National Collegiate

allegedly forwarded to defense counsel; and (4) a December 20, 2017 letter that National

Collegiate allegedly sent to defense counsel regarding the request for admissions.

       {¶ 7} Both the letter and the request for admissions specified that the Evanses had

28 days to answer and return the request. The request for admissions further advised

that the matters discussed in the request would be deemed admitted unless the Evanses

submitted answers within the aforementioned 28-day period. As part of the request for

admissions, National Collegiate asked the Evanses to admit to executing the loan at issue

and to agreeing to pay interest and late fees as prescribed by the loan.          National

Collegiate also asked the Evanses to admit to defaulting on the loan and to owing National

Collegiate $62,829.09 as a result.

       {¶ 8} The request for admissions contained a certificate of service certifying that
                                                                                        -4-


National Collegiate mailed the requests to defense counsel on December 20, 2017.

However, National Collegiate did not provide a supporting affidavit that authenticated the

request for admissions as a true and accurate copy of the document sent to the Evanses.

National Collegiate also failed to provide an affidavit averring that the request for

admissions went unanswered. Therefore, National Collegiate’s claim that the Evanses

failed to respond to the request for admissions was merely supported by a bare assertion

in its motion for summary judgment.

       {¶ 9} On July 5, 2018, the Evanses filed a response opposing National Collegiate’s

motion for summary judgment. In their response, the Evanses claimed that they had

timely forwarded complete answers to National Collegiate’s request for admissions by

regular mail on January 9, 2018, and by e-mail on January 23, 2018. In support of this

claim, the Evanses attached a copy of the answers they allegedly sent to National

Collegiate and a separately signed verification page.       The attached answers were

undated and contained no certificate of service. The signed verification page was dated

by hand, but the date was only partially legible, as it could be read as either the “19 day

of Jan, 2018” or “19 day of Jun, 2018.”

       {¶ 10} The Evanses offered no other evidence in support of their claim that they

had timely answered National Collegiate’s request for admissions.           Like National

Collegiate, the Evanses did not provide a supporting affidavit that authenticated the copy

of their answers and verification page. The Evanses also did not provide a supporting

affidavit averring that they had timely sent the answers to National Collegiate.

       {¶ 11} On July 19, 2018, the trial court granted National Collegiate’s motion for

summary judgment and ordered the Evanses to pay National Collegiate the amount
                                                                                          -5-


requested in the complaint. The Evanses now appeal from the trial court’s judgment,

raising a single assignment of error for review.



                                  Assignment of Error

       {¶ 12} The Evanses’ assignment of error is as follows:

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN

       FAVOR OF APPELLEE.

       {¶ 13} Under their assignment of error, the Evanses claim that the trial court’s

granting summary judgment in favor of National Collegiate was in error because it was

based solely on their failure to respond to National Collegiate’s request for admissions.

In support of this claim, the Evanses contend that they had timely answered the request

for admissions and that National Collegiate otherwise failed to present evidence entitling

it to summary judgment.

       {¶ 14} “Under Civ.R. 56(C), summary judgment is warranted if (1) no genuine issue

as to any material fact remains to be litigated, (2) the moving party is entitled to judgment

as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can reach a conclusion only in favor of the moving party.” State

ex rel. Jackson v. Ambrose, 151 Ohio St.3d 536, 2017-Ohio-8784, 90 N.E.3d 922, ¶ 14,

citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

Civ.R. 56(C) also provides an inclusive list of materials that the trial court may consider

when ruling on a motion for summary judgment. These materials include “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact[.]” Civ.R. 56(C).
                                                                                         -6-


       {¶ 15} “Although Civ. R. 56 does not directly refer to evidentiary exhibits, such

evidence may be considered when it is incorporated by reference into a properly framed

affidavit pursuant to Civ. R. 56(E).” (Citation omitted.) Citibank (South Dakota) N.A. v.

Ogunduyile, 2d Dist. Montgomery No. 21794, 2007-Ohio-5166, ¶ 10. Civ.R. 56(E) states

the requirements for authentication as it relates to summary judgment. Specifically, that

rule provides as follows:

       Supporting and opposing affidavits 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. Sworn or certified

       copies of all papers or parts of papers referred to in an affidavit shall be

       attached to or served with the affidavit.

Civ.R. 56(E).

       {¶ 16} “In order to properly incorporate attached evidentiary exhibits, the affidavit

needs merely to state that the attached materials are true copies and reproductions of the

original documents.” Citibank at ¶ 10, citing State ex rel. Corrigan v. Seminatore, 66

Ohio St.2d 459, 467, 423 N.E.2d 105 (1981). “ ‘Absent an objection, a trial court has the

discretion to consider unauthenticated documents when rendering summary judgment.’ ”

Wolfe v. AmeriCheer, Inc., 10th Dist. Franklin No. 11AP-550, 2012-Ohio-941, ¶ 11,

quoting Columbus v. Bahgat, 10th Dist. Franklin No. 10AP-943, 2011-Ohio-3315, ¶ 16;

accord State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 2009-

Ohio-2871, 910 N.E.2d 455, ¶ 17 (holding that courts may consider evidence that does

not comply with Civ.R. 56(C), such as unsworn and unauthenticated documents, if there

is no objection).
                                                                                          -7-


      {¶ 17} It is well established that summary judgment may be granted based on a

matter that is admitted through unanswered requests for admissions. Great Seneca Fin.

Corp. v. Lee, 2d Dist. Montgomery No. 21134, 2006-Ohio-2123, ¶ 5; Capital One Bank v.

James, 2d Dist. Montgomery No. 21163, 2006-Ohio-3190, ¶ 4. Civ.R. 36(A)(1) governs

requests for admissions and provides, in pertinent part, as follows:

             A party may serve upon any other party a written request for the

      admission, for purposes of the pending action only, of the truth of any

      matters within the scope of Civ.R. 26(B) set forth in the request, that relate

      to statements or opinions of fact or of the application of law to fact, including

      the genuineness of any documents described in the request. * * *

             (1) * * * The matter is admitted unless, within a period designated in

      the request, not less than twenty-eight days after service of the request or

      within such shorter or longer time as the court may allow, the party to whom

      the request is directed serves upon the party requesting the admission a

      written answer or objection addressed to the matter, signed by the party or

      by the party’s attorney.

      {¶ 18} “When a party fails to timely respond to requests for admissions, the

admissions become facts of record that the court must recognize.” Martin v. Martin, 179

Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 13 (2d Dist.), citing Cleveland

Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985). “[A]ny matter admitted

under Civ.R. 36 ‘is conclusively established unless the court on motion permits withdrawal

or amendment of the admission.’ ” Union Sav. Bank v. Litteral, 2d Dist. Montgomery No.

25106, 2012-Ohio-5108, ¶ 12, quoting Civ.R. 36(B).
                                                                                            -8-


      {¶ 19} “This court has noted that Civ.R. 36 is ‘self-enforcing’ and that the ‘trial court

has no discretion whether to deem the matters admitted.             If the requests are not

answered, they are admitted and conclusively established, and the trial court must

recognize them as so.’ ” Id., quoting Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist.

Montgomery No. 23792, 2010-Ohio-4762, ¶ 41. Because Civ.R. 36 is self-enforcing,

absent a timely answer or objection, a matter is admitted without the necessity of a court

order. Huntington Natl. Bank v. Bywood, Inc., 10th Dist. Franklin No. 16AP-358, 2017-

Ohio-2829, ¶ 13.

      {¶ 20} In this case, National Collegiate’s motion for summary judgment was based

exclusively on matters deemed admitted as a result of the Evanses allegedly failing to

timely respond to National Collegiate’s request for admissions. As previously noted,

National Collegiate’s motion for summary judgment included unauthenticated copies of

the request for admissions and the cover letter that National Collegiate allegedly served

on the Evanses. National Collegiate also failed to provide an affidavit averring that its

request for admissions went unanswered, but simply made that assertion in its motion.

However, since the Evanses did not object to the unauthenticated exhibits and

information in National Collegiate’s motion for summary judgment, the trial court had

discretion to consider those items when ruling on the motion. See Wolfe, 10th Dist.

Franklin No. 11AP-550, 2012-Ohio-941, at ¶ 11; State ex rel. Gilmour Realty, Inc., 122

Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, at ¶ 17.

      {¶ 21} The Evanses nevertheless contend that the trial court erred in crediting

National Collegiate’s bare, unauthenticated assertion that the Evanses did not respond

to its request for admissions over their own bare assertion that they had timely answered
                                                                                          -9-


the request for admissions. The Evanses maintain that since they provided the same

level of proof as National Collegiate, it was unreasonable for the trial court to credit

National Collegiate’s claim over their claim to the contrary. Therefore, the Evanses

maintain that it was inappropriate for the trial court to deem the information in the request

for admissions admitted and to use those admissions when ruling on National Collegiate’s

motion for summary judgment.

       {¶ 22} Typically, an appellate court reviews de novo a trial court’s decision to grant

summary judgment. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d

241 (1996). However, before summary judgment could be ruled upon in this case, the

trial court first had to determine whether National Collegiate’s request for admissions was

timely answered by the Evanses. See McGuinness v. Smith, 2d Dist. Greene No. 94-

CA-52, 1995 WL 63679, * 3 (Feb. 15, 1995) (when ruling on a motion for summary

judgment in which the defendant relied exclusively on deemed admissions “the trial court

cannot escape making a factual determination [as to] whether [the plaintiff] timely

responded to the request for admissions”).

       {¶ 23} The issue of whether the Evanses timely answered National Collegiate’s

request for admissions was a discovery matter that was within the broad discretion of the

trial court. Therefore, we review such a decision for an abuse of discretion. In re D.M.,

140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 9 (“[t]he standard of review of a

trial court’s decision in a discovery matter is whether the court abused its discretion”);

Gerken v. State Auto Ins. Co. of Ohio, 2014-Ohio-4428, 20 N.E.3d 1031, ¶ 16 (4th Dist.)

(applying abuse of discretion standard of review to question of whether plaintiff’s

responses to a request for admissions were timely filed, noting a trial court maintains
                                                                                           -10-

broad discretion in regulating the discovery process); Progressive Cas. Ins. Co. v.

Harrison, 2d Dist. Montgomery No. 21521, 2007-Ohio-579, ¶ 7, 11 (applying abuse of

discretion standard of review to question of whether trial court erred in finding that

defendant failed to answer a request for admissions, noting the decision whether to admit

or exclude evidence lies in the sound discretion of the trial court).

       {¶ 24} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). “It is to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are unconscionable or

arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning process that

would support that decision.” Id. When applying an abuse of discretion standard, the

appellate court is not free to simply substitute its judgment for that of the trial court. Berk

v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301, 1308 (1990).

       {¶ 25} Here, when considering the evidence provided by both parties, it is clear

that the trial court was left with two conflicting, unauthenticated claims as to whether the

Evanses timely responded to National Collegiate’s request for admissions. Despite this,

when considering the unique facts of this case, we do not find that it was unreasonable

for the trial court to find that the Evanses did not timely respond to National Collegiate’s

request for admissions. 1     We reach this conclusion because the Evanses failed to



1
  Although the trial court did not make an explicit finding that the Evanses failed to timely
respond to the request for admissions, said finding is implicit in the trial court’s decision
granting National Collegiate’s motion for summary judgment, as the motion was based
solely on matters admitted through the unanswered request for admissions.
                                                                                         -11-


provide the trial court with any evidence of their claim that they sent answers to National

Collegiate via regular mail on January 9, 2018, and via e-mail on January 23, 2018. For

example, the Evanses could have provided a copy of the e-mail allegedly sent to National

Collegiate or some proof of mailing, such as a cover letter, but they did neither.

       {¶ 26} Moreover, the answers the Evanses provided to the trial court did not

contain a certificate of service that certified the date and manner of service as required

by Civ.R. 5(B)(4). Although the Evanses included a signed and dated verification page,

the date on the verification page was illegible and subject to two different interpretations.

As previously noted, the date could be read as either the “19 day of Jan, 2018” or “19 day

of Jun, 2018.” When considering these dates, it is significant that National Collegiate’s

motion for summary judgment was filed on June 13, 2018. Given that date, it would be

reasonable for the trial court to assume that the motion for summary judgment prompted

the Evanses to answer the request for admissions and sign the verification page

approximately a week later on June 19, 2018, making the responses untimely.

       {¶ 27} Although this court may have decided the matter differently due to the

parties’ failing to authenticate their respective claims, we may not substitute our judgment

for that of the trial court. Berk, 53 Ohio St.3d 161, 559 N.E.2d at 1308. Instead, we are

tasked with determining whether it was unreasonable for the trial court to find that the

Evanses’ responses were untimely based on the evidence presented by the parties.

Under the specific circumstances of this case, we find that the trial court’s decision was

not unreasonable, and thus not an abuse of discretion.

       {¶ 28} Because the trial court found that the Evanses’ answers were untimely, it

had no choice but to consider the matters in the request for admissions admitted and
                                                                                       -12-


conclusively established. At no point did the Evanses request the trial court to withdraw

the admissions as permitted by Civ.R. 36(B).       Given the nature of the request for

admissions, the Evanses admitted to having a student loan with National Collegiate, being

in default of that loan, and owing National Collegiate $62,829.09. As a result of those

admissions, there was no genuine issue of material fact left for trial. The trial court

therefore properly granted summary judgment in favor of National Collegiate.

       {¶ 29} The Evanses’ assignment of error is overruled.



                                      Conclusion

       {¶ 30} Having overruled the Evanses’ assignment of error, the judgment of the trial

court is affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.



Copies sent to:

Matthew L. Schrader
Marc Dann
Emily White
Hon. Richard J. O’Neill
