[Cite as Ohio CAT v. Stoneman, 2015-Ohio-3546.]


                                 IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                  TRUMBULL COUNTY, OHIO


OHIO CAT,                                         :   OPINION

                 Plaintiff-Appellee,              :
                                                      CASE NO. 2014-T-0054
        - vs -                                    :

WILLIAM A. STONEMAN                               :
d.b.a. STONEMAN FARMS,

                 Defendant-Appellant.             :


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2013 CV 2169.

Judgment: Reversed and remanded.


Kevin L. String, 23 North Franklin Street, Suite 11, Chagrin Falls, OH 44022 (For
Plaintiff-Appellee).

T. Robert Bricker, T. Robert Bricker, L.L.C., 106 South Broad Street, Canfield, OH
44406 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, William A. Stoneman, d.b.a. Stoneman Farms, appeals the

judgment of the Trumbull County Court of Common Pleas granting the motion for

summary judgment of appellee, Ohio CAT. For the reasons that follow, we reverse and

remand the judgment of the trial court.
      {¶2}   Appellee filed a complaint against appellant alleging it conducted business

with appellant and sought $64,877.21 on claims of an account stated and unjust

enrichment. Appellant filed an answer.

      {¶3}   On February 26, 2014, appellee filed a motion to compel due to a

complete lack of response to its propounded discovery requests, including requests for

admission, served on January 8, 2014. In its motion to compel, appellee noted that it

had provided appellant with two reminder requests via electronic mail.

      {¶4}   The first status conference was held on March 11, 2014.              At this

conference, appellant advised the court that responses to discovery were almost

complete and would immediately be delivered to appellee’s counsel.

      {¶5}   On March 28, 2014, prior to appellant’s untimely filing of answers to the

request for admissions, appellee moved for summary judgment, arguing that Civ.R. 36

required the request for admissions be deemed admitted. Appellant failed to respond to

the following request for admissions:

             [1.] Admit that Defendant signed Rental Agreement attached hereto
             as Plaintiff’s Exhibit B on or about April 9, 2012.

             [2.] Admit that Defendant rented the equipment from Plaintiff
             represented in Plaintiff’s Exhibit C * * *.

             [3.] Admit that Plaintiff provided all equipment described in
             Plaintiff’s Exhibit C during the dates also set forth on each invoice.

             [4.] Admit Defendant failed to pay in full or partially for any of the
             rented equipment set forth in Plaintiff’s Exhibit C.

             [5.] Admit that Defendant owes Plaintiff for the amounts invoiced in
             Plaintiff’s Exhibit C.

             [6.] Admit Defendant did business with Plaintiff as the proprietor
             Stoneman Farms.




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       {¶6}   The above-referenced “Exhibit C” was not attached to appellee’s motion

for summary judgment. Appellee did, however, attach an affidavit. The affiant’s name

and title, however, are handwritten.       Neither the name nor the title are readily

discernible. The affiant averred the following:

              [B]eing first duly sworn according to law, and upon my personal
              belief deposes and says that STONEMAN FARMS is justly
              indebted to OHIO CAT in the amount of $64,877.21.

              I further swear that there is no set off, credit by payment of return,
              or by law or equity against the aforesaid balance due.

              I further swear that all credits and allowances known to exist have
              heretofore been granted and applied.

              To the best information and belief, OHIO CAT, WILLIAM A.
              STONEMAN is not in the military service at this time.

              The amount now due and payable as taken from the books and
              records of original entry is $64,877.21.

       {¶7}   Appellee argued that based upon such admissions and the attached

affidavit, it was entitled to judgment as a matter of law as no genuine issue as to any

material fact remained. See Civ.R. 56(C).

       {¶8}   Appellant, on May 9, 2014, filed an untitled motion with the trial court. In

the body of the untitled motion, appellant maintains that appellee’s motion for summary

judgment should be denied as appellant completed the discovery and filed the same on

April 3, 2014. Appellant’s counsel claimed that although the discovery responses were

typed, they were inadvertently not forwarded to appellee’s counsel. Appellant’s counsel

also claimed that appellee failed to mitigate its losses and that appellant was a debtor in

a bankruptcy proceeding. Appellant attached a document referred to as his affidavit;

this document, however, was not notarized. Appellant filed a second untitled motion




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with the trial court the same day and attached the now-answered admissions. This

second untitled motion requested the trial court consider the now-answered, albeit

untimely, response to the request for admissions.

       {¶9}   Appellee filed “a reply brief to defendant’s untitled brief in opposition to

summary judgment” and “brief in opposition to defendant’s untitled motion to deem

plaintiff’s discovery answered.” Appellee, for the first time, attached an “Exhibit C,”

which were copies of the 13 monthly lease invoices referred to in appellee’s request for

admissions.       Appellee also attached “Exhibit B,” which was a copy of the rental

agreement between the parties.

       {¶10} The trial court entered judgment against appellant in the amount of

$64,877.21, plus statutory interest. The judgment entry reasoned: “The Court agrees

with the Plaintiff that the Defendant’s purported (undated and un-notarized) ‘affidavit’

and discovery responses were untimely. More importantly, those untimely responses

and ‘affidavit’ do not comply with the requirements of the Ohio Civil Rules of Procedure

and do not rebut Plaintiff’s motion.”

       {¶11} Appellant filed a timely notice of appeal and asserts two assignments of

error. His first assignment of error states:

       {¶12} “The trial court abused its discretion in denying appellants permission to

amend their responses to requests for admission.”

       {¶13} Requests for admission are governed by Civ.R. 36, which provides, in

pertinent part:

              (A) Availability; Procedures for use.

              (1) Each matter of which an admission is requested shall be
              separately set forth. The party to whom the requests for admissions



                                               4
              have been directed shall quote each request for admission
              immediately preceding the corresponding answer or objection. The
              matter is admitted unless, within a period designated in the request,
              * * * 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.

              (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. 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. (Emphasis
              added.)

       {¶14} When a party fails to timely respond to the request for admissions, “the

admissions [become] facts of record which the court must recognize.” Cleveland Trust

Co. v. Willis, 20 Ohio St.3d 66, 67 (1985). It is within the trial court’s discretion whether

it will allow the withdrawal of admissions. Szigeti v. Loss Realty Group, 6th Dist. Lucas

No. L-03-1160, 2004-Ohio-1339, ¶19.         Further, whether to accept the filing of late

responses to requests for admissions is also within the trial court’s discretion. Sandler

v. Gossick, 87 Ohio App.3d 372, 378 (8th Dist.1993) (citations omitted).

       {¶15} At the outset, we recognize that in its brief appellee maintains that

appellant did not properly seek to amend the admissions deemed admitted because a

proper motion was not filed by appellant in the trial court, as required by Civ.R. 36(B).

The Supreme Court of Ohio, however, has recognized that Civ.R. 36(B) neither requires

a written motion to be filed nor specifies when such motion must be filed; “by contesting

the truth of the Civ.R. 36(A) admissions for the purposes of summary judgment, [the

defendant] satisfied the requirement of Civ.R. 36(B) that she move the trial court to



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withdraw or amend these admissions.” Balson v. Dodds, 62 Ohio St.2d 287, 290 fn.2

(1980). The rule, thus, leaves such matters to the discretion of the trial court. Id.

       {¶16} We recognize that appellate districts have responded differently to the

Ohio Supreme Court’s decision in Cleveland Trust Co., which stated:

              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.

Cleveland Trust, supra, at 67.

       {¶17} For example, on appeal, appellant cites Kutscherousky v. Integrated

Communications Solutions, LLC, 5th Dist. Stark No. 2004 CA 00338, 2005-Ohio-4275,

where the Fifth Appellate District found the trial court abused its discretion by not

permitting withdrawal of the admissions when the appellant was nine days late in

answering a request for admissions. The Fifth Appellate District stated the test for

withdrawal or amendment of admissions has two prongs: “[f]irst, the court must look to

whether the ‘presentation of the merits will be subserved’ by allowing the amendment.

Second, the court must address whether the withdrawal will prejudice the party that has

obtained the admissions.” Id. at ¶18. The Kutscherousky Court noted that because

both prongs of the test were satisfied, the trial court erred in granting the appellee’s

motion to deem request for admissions admitted and further erred when it denied the

motion to withdraw said admissions. Id. at ¶18-30.

       {¶18} In Whitehouse v. The Customer is Everything!, Ltd, 11th Dist. Lake No.

2007-L-069, 2007-Ohio-6936, this court discussed the Fifth District’s opinion in

Kutscherousky.      In Whitehouse, this court observed Judge Wise’s dissent in




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Kutscherousky, recognizing that the party seeking withdrawal of the admissions must

set forth “‘compelling circumstances’” in support of the request, as recognized by the

Supreme Court of Ohio.       Id. at ¶30 citing Kutscherousky, supra, at ¶48, (Wise, J.,

concurring in part and dissenting in part). See also Cleveland Trust, supra, at 67. This

requirement is in addition to those set forth in Civ.R. 36(B). Whitehouse, supra, at ¶30.

       {¶19} The Second Appellate District recently released Crespo v. Harvey, 2d

Dist. Montgomery No. 25861, 2014-Ohio-1755.            The Crespo court discussed the

responses of the appellate districts to Willis. The court stated:

              The majority of the districts that have been confronted with the
              issue have determined the movant must demonstrate compelling
              circumstances to withdraw his or her admissions. * * * The Fifth and
              Sixth Districts, however, have determined that the prejudice the
              non-moving party experiences must be weighed against the moving
              party’s compelling circumstances for not responding in time.

Id. at ¶20.

       {¶20} The Second District, in Crespo, discussed both approaches and held “the

only requirements [of Civ.R. 36(B)] are that the withdrawal aid in reaching the merits

and that the non-moving party is not prejudiced by the withdrawal or amendment.” Id. at

¶21.

       {¶21} In discussing Civ.R. 36(B), Judge Fain, in a concurring opinion, observed:

“there will be cases lying somewhere midway between these extremes, in which a

reasonable trial court, exercising its sound discretion, could either sustain or overrule

the motion.” Id. at ¶31 (Fain, J., concurring).

       {¶22} In this case, the trial court’s ruling under the circumstances was inherently

reasonable.    Appellant failed to provide appellee with timely responses to the

propounded requests for admissions despite being reminded two times by opposing



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counsel: appellee first e-mailed counsel and then sent a specific request as to when he

could expect appellant to respond to the request for admissions.           After these two

reminders, appellee filed a motion to compel.         While that was pending, a status

conference was held where appellant notified both opposing counsel and the trial court

that he would provide the answers to the request for admissions but, yet again, failed to

do so. Therefore, appellee filed a motion for summary judgment based upon these

admissions, which was granted by the trial court. This is a case which “falls between

the two extremes” and therefore permits the trial court to exercise its discretion.

       {¶23} We emphasize that the manner and specifics with which a trial court

directs and controls discovery in its civil cases rests within the sound discretion of the

trial court. Unless the trial court has abused its discretion, an appellate court will not

disturb a trial court’s decision in this regard. Under these circumstances, we cannot say

the trial court abused its discretion in deeming the requests admitted.

       {¶24} Appellant’s first assignment of error is without merit.

       {¶25} Appellant’s second assignment of error states:

       {¶26} “The trial court erred in granting summary judgment in favor of appellee.”

       {¶27} In order for a motion for summary judgment to be granted, the moving

party must prove:

              (1) [N]o 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) it appears from the evidence that reasonable minds
              can come to but one conclusion, and viewing such evidence most
              strongly in favor of the nonmoving party, that conclusion is adverse
              to the party against whom the motion for summary judgment is
              made.

Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996) (citation omitted).




                                             8
      {¶28} Summary judgment will be granted if “the pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of facts, if any, * * * show that there is no genuine issue as to any material

fact * * *.” Civ.R. 56(C). Material facts are those that might affect the outcome of the

suit under the governing law of the case. Turner v. Turner, 67 Ohio St.3d 337, 340

(1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      {¶29} If the moving party meets this burden, the nonmoving party must then

provide evidence illustrating a genuine issue of material fact, pursuant to Civ.R. 56(E).

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Civ.R. 56(E) provides:

             When a motion for summary judgment is made and supported as
             provided in this rule, an adverse party may not rest upon the mere
             allegations or denials of the party’s pleadings, but the party’s
             response, by affidavit or as otherwise provided in this rule, must set
             forth specific facts showing that there is a genuine issue for trial. If
             the party does not so respond, summary judgment, if appropriate,
             shall be entered against the party.

Summary judgment is appropriate pursuant to Civ.R. 56(E), if the burden has shifted

and the nonmoving party does not meet this reciprocal burden.

      {¶30} Appellate courts review a trial court’s grant of summary judgment de novo.

Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). “De

novo review means that this court uses the same standard that the trial court should

have used, and we examine the evidence to determine if as a matter of law no genuine

issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383 (8th

Dist.1997), citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 119-120

(1980).




                                            9
       {¶31} To support its motion for summary judgment, appellee attached a copy of

the discovery requests propounded on appellant, including the request for admissions

and the aforementioned affidavit.

       {¶32} With respect to the failure to respond to requests for admissions, the Ohio

Supreme Court has held the failure to respond renders the matter requested

conclusively established for the purpose of the suit. Willis, supra, at 67. “A request for

admission can be used to establish a fact, even if it goes to the heart of the case.” Id.

This court has previously held, “unanswered requests for admissions are a written

admission fulfilling the requirements for summary judgment, pursuant to Civ.R. 56.”

Balli v. Zukowski, 11th Dist. Geauga No. 2004-G-2560, 2004-Ohio-6702, ¶36.

       {¶33} Appellee, in the motion for summary judgment, attached a copy of the

request for admissions, which appellant failed to answer. The unanswered request for

admissions in this case establishes, inter alia, that appellant owes appellee the amount

invoiced in the referenced Exhibit C and that appellant failed to pay in full, or partially,

for any of the rented equipment set forth in the referenced Exhibit C.            Appellee,

however, did not attach Exhibit C, as referenced in the request for admissions, to its

motion for summary judgment. After appellant filed his memorandum in opposition to

appellee’s motion for summary judgment, appellee filed a reply brief attaching Exhibit B,

the rental agreement between the parties, and Exhibit C, 13 pages of monthly invoices.

These monthly invoices, however, establish that appellant owes appellee $60,880 not

$64,877.21 — the amount of the judgment.

       {¶34} Furthermore, the affidavit attached to appellee’s motion for summary

judgment is not consistent with the aggregate of invoices presented as Exhibit C. The




                                            10
affidavit, in a conclusory fashion, avers that appellee is owed the amount of $64,877.21,

as sought in the complaint. As an aside, we note the affiant’s status and relationship to

appellee is not stated. It is not made based on the affiant’s personal knowledge of the

facts, but based upon his “belief” of the facts. The issue is not what the affiant believes,

but what the affiant knows. The affidavit in this case fails to connect the affiant to

appellee, and as a result, it is not clear how the affiant would have any personal

knowledge to the matters attested. Civil Rule 56(E) provides: “Supporting and opposing

affidavits shall be made on personal knowledge, 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.”

       {¶35} Appellee, as the moving party, failed to meet its burden of demonstrating

an absence of genuine issues of material fact.          Appellee put forth contradictory

evidence as to the exact amount owed by appellant; i.e., the request for admissions’

Exhibit C indicates appellant owes appellee $60,880, while the affidavit claims appellant

owes $64,877.21. Because appellee failed to meet its burden as required by Civ.R. 56,

the trial court erred in granting summary judgment in favor of appellee for $64,877.21.

Appellant’s second assignment of error has merit.

       {¶36} The judgment of the Trumbull County Court of Common Pleas is hereby

reversed and remanded for proceedings consistent with the opinion of this court.



COLLEEN MARY O’TOOLE, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.




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