[Cite as FIA Card Servs. v. Marshall, 2010-Ohio-4244.]




                             STATE OF OHIO, CARROLL COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


FIA CARD SERVICES, N.A. fka                       )
MBNA AMERICA BANK, N.A.,                          )
                                                  )         CASE NO.     10 CA 864
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS. -                                   )         OPINION
                                                  )
JON MARSHALL, DO,                                 )
                                                  )
        DEFENDANT-APPELLANT.                      )


CHARACTER OF PROCEEDINGS:                                Civil Appeal from Common Pleas Court,
                                                         Case No. 09CVH25886.


JUDGMENT:                                                Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                                  Attorney James Oh
                                                         Attorney William McCann
                                                         1100 Superior Avenue, 19th Floor
                                                         Cleveland, Ohio 44114-2531


For Defendant-Appellant:                                 Attorney Michael Hiener
                                                         P.O. Box 1
                                                         Jefferson, Ohio 44047


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                         Dated: September 7, 2010
VUKOVICH, P.J.

       ¶{1}     Defendant-appellant Jon Marshall, DO, appeals the decision of the
Carroll County Common Pleas Court granting summary judgment to plaintiff-appellee
FIA Card Services, N.A and denying his motion asking the court to reconsider its prior
order that found FIA’s request for admissions to be admitted. Marshall admits that he
did not timely respond to FIA’s request. However, he argues that since he never
received notice of the trial court’s order granting him a thirty day extension to respond,
the trial court should have granted his motion to withdraw the admissions
notwithstanding the fact that he did not respond to the request for admissions within
the time period extended by the trial court. Following that logic, he contends that the
grant of summary judgment based on the admissions should not have been granted.
FIA disagrees arguing that pursuant to Civ.R. 36(A) the admissions were proper and
that it was Marshall’s obligation to check with the clerk to determine if his request for
an extension had been granted. We find that when a party is faced with a procedural
time limitation and requests an extension of that time from the court, that party must
either assure themselves that the extension was granted, or file a response within the
applicable time limitation. Here, Marshall did neither. Accordingly, we cannot find that
the trial court’s decision to grant the motion for summary judgment and deny the
request to withdraw the admissions was in error. For the reasons stated below, the
judgment of the trial court is affirmed.
                                   STATEMENT OF CASE
       ¶{2}     FIA filed a complaint against Marshall for money owed on a credit card
issued by FIA.      04/13/09 Complaint.    Marshall answered denying all claims.        On
August 12, 2009, FIA filed a “Notice of Service of Plaintiff’s First Set of Interrogatories,
Requests for Production of Documents and Requests for Admissions” indicating that
the requests were served on Marshall on August 10, 2009. Responses were due
twenty-eight days thereafter, on September 7, 2009. Approximately a week after the
deadline for responses had passed, Marshall requested a thirty day extension to file
responses.      09/15/09 Motion.    The trial court granted the motion that same day.
09/15/09 J.E.
          ¶{3}   Marshall did not respond by the due date of October 15, 2009, and thus,
on October 21, 2009, FIA filed a motion requesting the trial court to deem the
admissions admitted pursuant to Civ.R. 36(A). FIA also filed a motion for summary
judgment that same day based on the admissions.
          ¶{4}   The trial court granted FIA’s request to deem the admissions admitted on
October 26, 2009. The following were admitted:
          ¶{5}   “14. Admit that you used the credit card which is the subject of this
action.
          ¶{6}   “16. Admit that you made an application for the account which is the
subject of this action.
          ¶{7}   “20. Admit that you received periodic statements of your account with
Plaintiff.
          ¶{8}   “22. Admit that the balance due and owing on the account which is the
subject of this action is the amount set forth in Plaintiff’s Compliant.
          ¶{9}   “24. Admit that the payments required by the credit card agreement
were not made in a timely manner.
          ¶{10} “26. Admit that Plaintiff properly accelerated the time for payment of the
entire balance due and owing on the account which is the subject matter of this action.
          ¶{11} “42. Admit that you did not have credit insurance on the account which
is the subject of this action.” FIA’s First Set of Interrogatories, Requests for Production
of Documents and Request for Admissions attached to FIA’s 10/21/09 Motion to Deem
Admissions Admitted.
          ¶{12} The trial court, on that same date, also scheduled a hearing for
November 23, 2009 for the summary judgment motion.
          ¶{13} On November 9, 2009, Marshall filed a motion requesting that the trial
court extend the time to respond to FIA’s request for discovery, to reconsider its ruling
that the admissions were deemed admitted, and also asked the court to stay its
consideration of the summary judgment motion until the discovery issues were
resolved. In the motion, Marshall claimed that he never received notice of the trial
court’s September 15, 2009 order granting him an additional thirty days to respond to
discovery. He claimed that in addition to not receiving that order he had not received
other orders from the court. FIA filed a motion in opposition to the above motion
contending that the court was not required to provide notice to Marshall of the thirty
day extension and that it is the general duty of the party to check the docket to keep
himself current on the status of the case.
       ¶{14} Marshall additionally filed a motion in opposition to the motion for
summary judgment. In that motion he once again argued that the summary judgment
decision should be stayed until the discovery issues were resolved. Attached to the
motion is an envelope that Marshall contended contained the October 26, 2009 notice
of the November 23, 2009 summary judgment hearing, which he claimed he did not
receive until November 16, 2009. The envelope shows a postmark date of November
12, 2009. He asserted in the motion that this envelope demonstrates his lateness in
receiving orders and the difficulty he has had in receiving orders from the trial court.
       ¶{15} On December 8, 2009 the trial court issued two orders.              It denied
Marshall’s motion for extension, motion to reconsider, and motion to stay; and it
granted FIA’s motion for summary judgment and ordered Marshall to pay $39,226.84
plus interest at the statutory rate to FIA. Marshall timely appealed.
                                ASSIGNMENT OF ERROR
       ¶{16} “THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE’S
MOTION FOR SUMMARY JUDGMENT.”
       ¶{17} Although the assignment of error speaks of summary judgment, the
focus of the arguments are not on whether there was a genuine issue of material fact
and/or whether the party was entitled to judgment as a matter of law, rather the focus
is on the admissions.
       ¶{18} The Ohio Supreme Court, in discussing Civ.R. 36 (the rule for
admissions), has stated that:
       ¶{19} “Civ.R. 36 requires that when requests for admissions are filed by a
party, the opposing party must timely respond either by objection or answer. Failure to
respond at all to the requests will result in the requests becoming admissions. Under
compelling circumstances, the court may allow untimely replies to avoid the
admissions. * * * A request for admission can be used to establish a fact, even if it
goes to the heart of the case. This is in accord with the purpose of the request to
admit-to resolve potentially disputed issues and thus to expedite the trial.” Cleveland
Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67.
       ¶{20} Here, Marshall failed to timely respond to the request for admissions
after he had sought and received an extension of time to respond. Therefore, clearly
under Civ.R. 36, the trial court was permitted to deem the admissions admitted.
       ¶{21} Marshall attempted to move for relief from the conclusive effect of the
failure to respond to the request for admissions pursuant to Civ.R. 36(B) by filing a
motion for reconsideration and another extension to file responses. See Mannesmann
Dematic Corp. v. Material Handling Services, Inc. (Dec. 16, 1999), 8th Dist. No. 76256.
       ¶{22} Civ.R. 36(B) discusses when withdrawal or amendment is permitted:
       ¶{23} “Any matter admitted under this rule is conclusively established unless
the court on motion permits withdrawal or amendment of the admission. Subject to the
provisions of Civ.R. 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.”
       ¶{24} The decision to grant or deny a motion to withdraw and/or amend an
admission is within the discretion of the trial court.   J.P. Morgan Chase Bank v.
Macejko, 7th Dist. Nos. 07MA148 and 08MA242, 2010-Ohio-3152, ¶20. 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. Id. at ¶22.
       ¶{25} In J.P. Morgan, we found that the trial court did not abuse its discretion
when it denied the request to amend the admissions. Appellants did not respond to
the admissions.    Seven months after they were due, Chase moved for summary
judgment. Appellants still made no attempt at that point to respond to the request for
admissions. Months later, the magistrate awarded summary judgment to Chase, and
appellants still did not respond to the request for admissions. It was not until about a
month after that award (almost a year after the admissions were due) that appellants
attempted to amend the admissions. Id. at ¶23. While we recognized the importance
of having an action decided on the merits, we stated that given the facts, “Appellants’
failure to timely respond to Chase’s request was without justification and showed a
lack of diligence.”   Id. at ¶24.   Consequently, we found that it would have been
prejudicial to Chase to allow the amendment. Id.
       ¶{26} Here, we do not have the extended period of time that was present in
J.P. Morgan. Within a month of when the responses to admissions were due, FIA
moved for the admissions to be admitted, which was granted; moved for summary
judgment, and Marshall filed a motion asking the court to reconsider its prior decision
to admit the admissions due to a lack of response. However, the record reflects that
Marshall was consistently untimely in his filings. It took Marshall 64 days to answer
the complaint. His responses to interrogatories were due September 7, 2009, yet, he
did not request a thirty day extension of time until September 15, 2009.
       ¶{27} Marshall attempts to justify the timeliness problems by contending that
he was never served with the trial court’s decision granting his September 15, 2009
motion for a thirty day extension of time to respond to discovery. He also indicates
that he was having trouble receiving trial court orders and offers an envelope that the
October 26, 2009 notice of hearing was allegedly sent in, which was postmarked
November 12, 2009.
       ¶{28} However, this justification does not warrant a finding that the trial court
abused its discretion in failing to allow Marshall to withdraw the admissions.      FIA
points this court to case law that has held that “[a] party has a general duty to check
the docket and to keep himself current regarding the status of the case.” Landspan
Corp. v. Curtis, 8th Dist. No. 91664, 2008-Ohio-6292, ¶14 (used in the context of
discussing Civ.R. 6(B)); State v. Vernon, 11th Dist. No.2006-L-146, 2007-Ohio-3376,
¶23 (used in the context of information on the release of an applicable Ohio Supreme
Court decision). The Eighth Appellate District, in holding as such, typically makes that
statement after stating:
       ¶{29} “Notice shall be deemed to have been provided once the clerk has
served notice of the entry and made the appropriate notation on the docket. Hence, it
is not the receipt of the notice that is controlling but whether a party would have been
able to discover the court's order in the course of that party's duty to check the
docket.” Grabowski v. Allstate Ins. Co., 8th Dist. No. 88383, 2007-Ohio-2765, ¶22.
See, also, Bank of New York v. Jordan, 8th Dist. No. 88619, 2007-Ohio-4293, ¶28;
Automated Solutions Corp. v. Paragon Data Sys., Inc., 167 Ohio App.3d 685, 2006-
Ohio-3492, ¶59-60 citing State Farm Mut. Auto. Ins. Co. v. Peller (1989), 63 Ohio
App.3d 357, 359-360 (discussing due process and notification of trial date).
      ¶{30} While the docket shows that the judgment entry granting the motion for
extension of time was filed, it does not contain any notation that it was served on the
parties. Likewise, the judgment entry does not contain a notation to serve the parties
or an indication from the clerk that the judgment was sent to the parties. That said,
there is no requirement that the judgment entry granting the extension was required to
contain a notation to serve the parties. Civ.R. 58(B) does provide that the court shall
endorse a direction to the clerk to serve all parties and that the clerk is required to
serve the parties in compliance with Civ.R. 5(B) within three days of entering the
judgment on the journal. However, that rule applies to “Judgments” from which an
appeal lies as provided in section R.C. 2505.02. Civ.R. 54(A); Civ.R. 58(A). While an
appeal lies from the summary judgment ruling, it does not lie from the grant or denial
of a motion to extend the time limits to respond to a request for admissions.
Furthermore, as the docket shows the trial court’s grant of an extension, “the party
would have been able to discover the court's order in the course of that party's duty to
check the docket.” Grabowski, supra, at ¶22.
      ¶{31} Considering all the above, we cannot find that the trial court abused its
discretion in denying the request to withdraw the admissions. As stated above, even if
the party can show that the test in Civ.R. 36 for allowing an amendment or withdrawal
is shown, the court is not required to permit the withdrawal. J.P. Morgan, supra, at
¶22. While we recognize that it is a “basic tenet of Ohio jurisprudence that cases
should be decided on their merits,” the facts of this case do not support the conclusion
that withdrawal was warranted. Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3 (stating
the basic tenet). A number of Marshall’s filings were late. Furthermore, because he
was waiting on a ruling on his own motion for an extension to respond to discovery,
Marshall’s duty to check the docket for the progress of his case was crucial to his
case. He should have either called to check the status of the extension motion or filed
his responses within the time requested. The effect of not timely filing responses to
the request for admissions effectively defeats any attempt to defend the case; the
admissions quoted above establish each element of the cause of action. Hence, the
trial court’s denial of the request for an extension or the trial court’s failure to rule on a
motion, which would mean that the motion was overruled, substantially affects his
case. As such, given the situation, we find that there was a lack of due diligence on
the part of Marshall and no sufficient justification. See, J.P. Morgan, supra. The sole
assignment of error is without merit.
       ¶{32} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, J., concurs.
DeGenaro, J., concurs.
