[Cite as Mehman v. Noltemeyer, 2017-Ohio-7416.]
                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Michael J. Mehman,                                :

                Plaintiff-Appellee,               :
                                                           No. 16AP-623
v.                                                :     (C.P.C. No. 15CV-2823)

Columbus Police Officer                           :
Sean Noltemeyer et al.,                               (REGULAR CALENDAR)
                                                  :
                Defendants-Appellants,
                                                  :
John Doe et al.,
                                                  :
                Defendants-Appellees.
                                                  :




                                       D E C I S I O N

                                   Rendered on August 31, 2017


                On brief: Moore & Yaklevich, and W. Jeffrey Moore; Abe
                Bahgat for appellee. Argued: Abe Bahgat.

                On brief: Richard C. Pfeiffer, Jr., City Attorney, and Janet R.
                Hill Arbogast, for appellants. Argued: Janet R. Hill
                Arbogast.

                 APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by defendants-appellants Sean Noltemeyer and Eric
Houser from a decision and entry of the Franklin County Court of Common Pleas denying
their motion for summary judgment.
        {¶ 2} On June 20, 2013, plaintiff-appellee, Michael J. Mehman, filed a complaint
against appellants in Franklin C.P. No. 13CVH-6834. On July 3, 2014, appellants filed a
No. 16AP-623                                                                              2

motion for summary judgment. On July 18, 2014, appellee filed a notice of dismissal
without prejudice, expressing an "intention to re-file this action within one year."
       {¶ 3} On April 1, 2015, appellee filed a complaint against appellants in Franklin
C.P. No. 15CV-2823. The complaint alleged that, on June 20, 2012, appellant Sean
Noltemeyer (individually "Noltemeyer"), a Columbus Police Officer, and appellant Eric
Houser (individually "Houser"), also a Columbus Police Officer, "did engage in willful,
reckless, or malicious conduct, unlawfully used excessive force and assault to seize
[appellee] without a warrant or probable cause, handcuffing him, shoving him into the
back of their cruiser and for no valid reason detaining him for an unreasonable time."
(Compl. at 2-3.) The complaint alleged causes of action for false arrest, illegal search and
seizure/false imprisonment, and malicious prosecution.
       {¶ 4} On January 6, 2016, appellants filed a motion for summary judgment. On
February 17, 2016, appellee filed a memorandum contra the motion.                 Appellants
subsequently filed a reply. On August 4, 2016, the trial court filed a decision and entry
denying appellants' motion for summary judgment.
       {¶ 5} On appeal, appellants set forth the following three assignments of error for
this court's review:
              [I.] The trial court erred when it found Appellants are not
              entitled to immunity from Appellee's claims.

              [II.] The trial court erred when it found that Appellants'
              requests for admissions had not been admitted by Appellee.

              [III.] The trial court erred in withdrawing the admissions.

       {¶ 6} Appellants' assignments of error are interrelated and will be considered
together. Under these assignments of error, appellants contend the trial court erred in
(1) determining they were not entitled to immunity, (2) failing to adjudge their requests
for admissions in the first filed action deemed admitted in the re-filed action, and
(3) withdrawing the admissions.
       {¶ 7} Pursuant to Civ.R. 56, summary judgment is proper when "(1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
non-moving party, reasonable minds can only reach one conclusion which is adverse to
No. 16AP-623                                                                                3

the non-moving party." Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-742, ¶ 16 (8th
Dist.). This court's review of an appeal from summary judgment is de novo. Id.
         {¶ 8} We first address appellants' argument, raised under the second assignment
of error that the trial court erred in finding their requests for admissions applied only to
the first filed action and not the re-filed lawsuit. Appellants note that on January 30,
2014, during the pendency of appellee's first filed action in case No. 13CVH-6834, they
served on appellee's counsel their first set of requests for admissions. Appellants contend
appellee failed to respond to the discovery requests within 28 days, and only responded to
the requests for admissions on April 3, 2014, 63 days after service.
         {¶ 9} In their motion for summary judgment filed in the underlying case,
appellants argued before the trial court that, because appellee failed to timely respond to
the requests for admissions in case No. 13CVH-6834, such admissions should be deemed
admitted for purposes of the re-filed action (case No. 15CV-2823). Appellants further
asserted that such admissions established all the facts essential to this case and, therefore,
constituted sufficient evidence for the trial court to grant summary judgment in their
favor.
         {¶ 10} In denying appellants' motion for summary judgment, the trial court held
that, under the plain language of Civ.R. 36, the requests for admissions could only be used
for purposes of the "then pending" litigation (i.e., case No. 13CVH-6834). Further, noting
that appellants had "not alleged that they have propounded any discovery requests in the
current litigation," the court determined that appellee's "previous responses and/or non-
responses to those requests cannot be used in support of [appellants'] Motion for
Summary Judgment in the current litigation." (Decision & Entry at 5.)
         {¶ 11} Civ.R. 36(A) states in part: "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." Under Ohio law, "when
requests for admissions are served upon a party, that party must timely respond either by
objection or answer," and the "[f]ailure to do so will result in the deemed admission of the
matters requested to be admitted." Farah v. Chatman, 10th Dist. No. 06AP-502, 2007-
Ohio-697, ¶ 9. Further, "[a]ny matter admitted is conclusively established unless the trial
court permits withdrawal or amendment of the admission pursuant to Civ.R. 36(B)." Id.
No. 16AP-623                                                                                    4

       {¶ 12} As indicated, appellee filed a voluntary notice of dismissal without prejudice
in case No. 13CVH-6834. Civ.R. 41(A)(1)(a) states in part: "Subject to the provisions of
Civ.R. 23(E), Civ.R. 23.1, and Civ.R. 66, a plaintiff, without order of court, may dismiss all
claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at
any time before the commencement of trial." Civ.R. 41(A)(1) further provides: "Unless
otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice." This court has previously noted that a voluntary dismissal without prejudice is
"not a disposition of the case on the merits." Climaco, Seminatore, Delligatti &
Hollenbaugh v. Carter, 100 Ohio App.3d 313, 323 (10th Dist.1995) Thus, "[a] dismissal
of an action without prejudice leaves the parties in the same position as if the plaintiff had
not commenced the action." Sexton v. Kidder, Peabody & Co., 8th Dist. No. 74833
(Aug. 24, 1999).
       {¶ 13} Pursuant to Civ.R. 36(A), a party may serve upon any other party a written
request for the admission of the truth of any matter "for purposes of the pending action
only." Civ.R. 36(B), entitled "[e]ffect of admission," states in part: "Any admission made
by a party under this rule is for the purpose of the pending action only and is not an
admission by him for any other purpose nor may it be used against the party in any other
proceeding."
       {¶ 14} As noted, appellants contend the trial court erred in finding that the deemed
admissions applied only to the earlier action and not to the re-filed case. According to
appellants, the trial court's finding that the admissions applied only to the previous action
overlooks the fact that the second case is identical to the first, i.e., that both cases arise out
of the same incident, involve the same parties, and set forth the same claims.
       {¶ 15} On review, we find no error with the trial court's interpretation of Civ.R. 36
in holding that the requests for admissions filed in the first action "could only be used for
the purposes of the then pending litigation." See, e.g., Harrison v. Porsche Plus, 520 A.2d
346, 347 (Me.1987) ("As the first sentence of rule 36(a) implies, the words 'pending
action' mean the action pending at the time of service of a request for admission.").
Appellants contend the trial court cited no case law in support of its determination that
the deemed admissions applied only to the previous action. We note, however, other
jurisdictions have interpreted the language of their state's counterpart to Ohio's version of
Civ.R. 36 in a manner similar to that employed by the trial court in the instant case. See,
No. 16AP-623                                                                                 5

e.g., Fieldcrest Cannon v. Fireman's Fund Ins. Co., 124 N.C.App. 232, 241 (1996)
(rejecting the defendant's argument that its request for admissions, served upon the
plaintiff in earlier action which plaintiff voluntarily dismissed, should be deemed
admitted for purposes of later action; "Rule 36 of the North Caroline Rules of Civil
Procedure, like Federal Rule 36," specifically limits the effect of a deemed admission to
"the pending action only"); Norrell v. Giles, 343 Ark. 504, 506-07 (2001) (where the
appellant was granted a voluntary dismissal without prejudice, "the action in which the
admissions were deemed made was no longer a 'pending action' under Rule 36(b)," and
therefore "the matters that were deemed admitted by Appellant in the first action were of
no effect in the second action").
       {¶ 16} In addition, the courts in Norrell and Fieldcrest Cannon addressed and
rejected analogous arguments raised by appellants in the present action, including claims
that both the first filed case and the re-filed case involve the same parties and claims, and
that the effect of the trial court's ruling is to permit a party to nullify their admissions by
simply filing a voluntary dismissal. See Norrell at 506 (construing language of Civ.R.
36(b) as "a deliberate limitation on the effect of those admissions," and observing that
"the rule does not speak in terms of 'any action involving the same claim' or 'any action
involving the same parties' "); Fieldcrest Cannon at 241 (noting that the legislature, "like
the drafters of the Federal Rules of Civil Procedure, in promulgating section (b) of Rule
36, were cognizant of the necessity to weigh the equities in allowing deemed admissions
which were products of an earlier action to be utilized in a later action," and that they
"recognized the need to sacrifice earlier-obtained, relevant evidence (e.g., deemed
admissions) in later litigation, in order to resolve an action on the true merits").
       {¶ 17} Appellants rely on Jain v. Ehle Morrison Group, Inc., 8th Dist. No. 92522,
2009-Ohio-3471, for the proposition that it is appropriate for a trial court to consider
admissions from a prior case where the plaintiffs voluntarily dismissed that case and then
re-filed the case against the same defendants. On review of that case, however, we agree
with appellee that the facts of Jain are distinguishable from the instant case.
       {¶ 18} In Jain, the plaintiffs initially filed an action against the defendants in 2006,
at which time the defendants served requests for admissions; the plaintiffs did not
respond to discovery requests and later dismissed the action without prejudice. In 2008,
the plaintiffs re-filed their action, and the defendants again served interrogatories and
No. 16AP-623                                                                                6

requests for admissions on the plaintiffs. Further, one of the defendants filed a motion to
dismiss for failure to prosecute noting that the plaintiffs had not responded to the
discovery requests. The defendants subsequently filed a motion for summary judgment;
in support, they filed the unanswered requests for admissions from the first action "which
were substantially the same as the unanswered requests for admissions from this refiled
action." Id. at ¶ 26. The plaintiffs filed a brief in opposition to the defendants' motion for
summary judgment, arguing that the requests for admissions were from the prior action
and, thus, could not be used in the pending matter. The trial court subsequently granted
the defendants' motion for summary judgment.
       {¶ 19} On appeal, the plaintiffs argued that the trial court erred in granting the
defendants' motion for summary judgment as the evidence offered in support of the
motion was filed in the original action. The court in Jain affirmed the judgment of the
trial court, holding in part:
               Plaintiffs correctly note that pursuant to Civ.R. 36, "[a] party
               may serve upon any other party a written request for the
               admission, for purposes of the pending action only," and
               "[a]ny admission made by a party under this rule is for the
               purpose of the pending action only and is not an admission by
               him for any other purpose nor may it be used against the
               party in any other proceeding."

               However, this misses the point of defendants' joint motion for
               summary judgment, which is that substantially the same
               matters were set forth in the request for admissions filed in
               this case as were filed in the first action. This second request
               for admissions was not answered, and is therefore deemed
               admitted.

Id. at ¶ 34-35.

       {¶ 20} As set forth above, the court in Jain noted that the second request for
admissions (i.e., the defendants' request in the re-filed action) "was not answered," and
the court held that such request was "therefore deemed admitted." Id. at ¶ 35. In the
instant case, by contrast, and as observed by the trial court in its summary judgment
decision, appellants "have not alleged that they have propounded any discovery requests
in the current litigation." Accordingly, we do not find Jain to be dispositive of the issues
in this case, and we agree with the trial court's determination that appellee's previous
No. 16AP-623                                                                               7

responses and/or non-responses to requests for admissions, served as part of discovery in
an action which appellee voluntarily dismissed (case No. 13CV-6834), could not be used
in support of summary judgment in the current litigation.
       {¶ 21} Under the first assignment of error, appellants contend the trial court erred
in failing to find they were entitled to statutory immunity from appellee's claims.
Appellants note that Ohio Revised Code Chapter 2744 creates a presumption that political
subdivisions and their law enforcement officers are immune from liability for state court
claims. Appellants maintain, based on the individual affidavits submitted by Noltemeyer
and Houser in support of summary judgment, there is no evidence in the record that they
acted maliciously, in bad faith, or recklessly. Appellants further argue that this court
should not consider appellee's affidavit, attached to his memorandum in opposition to
appellants' motion for summary judgment, based on their assertion that appellee cannot
challenge matters already conclusively established due to his failure to timely respond to
the requests for admissions in case No. 13CVH-6834.
       {¶ 22} In general, "employees of a political subdivision are immune from liability
pursuant to R.C. 2744.03(A)(6) unless the employee's acts or omissions 'were with
malicious purpose, in bad faith, or in a wanton or reckless manner.' " Cook v. Cincinnati,
103 Ohio App.3d 80, 90 (1st Dist.1995). Thus, "a police officer * * * cannot be held
personally liable for acts committed while carrying out his or her official duties unless one
of the exceptions to immunity is established." Id.
       {¶ 23} In the instant case, in addressing appellants' statutory immunity argument,
the trial court held in part:
               Defendants contend that Ohio Revised Code Chapter 2744
               creates a presumption that political subdivisions and their law
               enforcement officers are immune from liability for state court
               claims. However, because one of the exceptions to immunity
               is that the employee's acts were committed with a "malicious
               purpose, in bad faith, or in a wanton or reckless manner" * * *,
               the Court finds that there is a genuine issue of material fact as
               to whether immunity applies in this case.

(Decision & Entry at 9-10.)

       {¶ 24} As noted, appellants' argument that the trial court erred in failing to grant
summary judgment in their favor with respect to the issue of statutory immunity is
No. 16AP-623                                                                                   8

predicated on their claim that the admissions from the previous action are deemed
admitted for purposes of summary judgment in the current litigation. As such, appellants
do not discuss the averments in appellee's affidavit, asserting instead that this court
should not consider that evidentiary material. However, having rejected appellants'
argument as to the effect of the deemed admissions, we find no error with the trial court's
decision denying appellants' motion for summary judgment based on immunity under
R.C. 2744.03(A)(6). Here, construing the evidence on summary judgment most strongly
in favor of the non-moving party, including the averments set forth in the affidavit
submitted by appellee, we agree with the trial court that a genuine issue of material fact
remains as to whether statutory immunity applies.
       {¶ 25} Under their third assignment of error, appellants challenge language in the
trial court's decision that "even if [appellee's] responses in the previous case could be used
in the present action, it is still within this Court's discretion to allow [appellee] to
withdraw or amend his admissions." (Decision & Entry at 5.) In addressing this issue, the
trial court stated that upholding the admissions "would eliminate any presentation of the
merits of the case," and that appellants "would not be prejudiced" by the withdrawal of
appellee's admissions "as there is no current trial date," and as "it was untimely
discovered that this was a re-filed case that needed to be transferred back to the original
judge." (Decision & Entry at 5.)
       {¶ 26} Pursuant to Civ.R. 36(B), a trial court may allow the withdrawal of
admissions. Farah at ¶ 11. Under Ohio law, a trial court may permit a party "to avoid the
conclusive effect" of his or her failure to file timely answers if the "presentation of the
merits would be enhanced" and if the party who obtained the admission "failed to satisfy
the trial court that the withdrawal or amendment of the admissions would prejudice" such
party in maintaining his or her action on the merits. Balson v. Dodds, 62 Ohio St.2d 287,
290 (1980). Such decision "is also within the discretion of the trial court." Farah at ¶ 11.
       {¶ 27} To the extent the trial court, in its summary judgment decision, addresses
the issue of withdrawal or amendment of a party's admission, the court appears to
recognize its discussion is not dispositive based on its determination that the deemed
admissions were not available to appellants in the re-filed action. Specifically, the trial
court concludes its discussion of this issue by noting that, while it "could now allow"
appellee to amend his previous responses to the requests for admissions, it "need not
No. 16AP-623                                                                           9

make this decision because the admissions were part of the first case, not this case." In
light of this court's determination that the trial court did not err in holding that any
deemed admissions in the previous action were not available in the current litigation, we
conclude that the issue raised under appellants' third assignment of error is rendered
moot.
        {¶ 28} Based on the foregoing, appellants' first and second assignments of error
are overruled, the third assignment of error is rendered moot, and the judgment of the
Franklin County Court of Common Pleas is hereby affirmed.
                                                                    Judgment affirmed.

                     LUPER SCHUSTER and HORTON, JJ., concur.

                            _______________________
