[Cite as Yoder v. Bennett, 2015-Ohio-3752.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

RICHARD YODER, et al.                               C.A. No.        27667

        Appellants

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
KRISTIN BENNETT                                     AKRON MUNICIPAL COURT
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   14 CV 03023

                                 DECISION AND JOURNAL ENTRY

Dated: September 16, 2015



        HENSAL, Presiding Judge.

        {¶1}    Richard Yoder and Tammy Yoder have appealed the Akron Municipal Court’s

decision entering judgment in favor of their daughter Kristin Bennett. For the reasons set forth

below, we affirm.

                                               I.

        {¶2}    The Yoders filed a complaint against Ms. Bennett alleging that she had engaged

in abuse of process by initiating a proceeding in the Summit County Juvenile Court concerning

the Yoders’ custody of Ms. Bennett’s daughter.        Within their complaint, the Yoders also

included a request for admissions. On May 29, 2014, Ms. Bennett filed an answer denying the

allegations in the complaint and her answers to the request for admissions.

        {¶3}    The matter proceeded to a hearing before the magistrate, at which time the

Yoders’ informed the magistrate that Ms. Bennett had never served her answers to their request

for admissions and noted that Ms. Bennett had also not signed a proof of service on the answers
                                                  2


she had filed with the court. Therefore, they argued, the matters were deemed admitted pursuant

to Civil Rule 36(A)(1). The magistrate took the issue under advisement but proceeded with the

hearing since both parties had their witnesses present.

       {¶4}    The magistrate issued a decision in favor of Ms. Bennett, and the Yoders

objected, arguing that the magistrate had improperly disregarded Ms. Bennett’s admissions. The

trial court sustained the Yoders’ objection, determining that Ms. Bennett had failed to comply

with the requirements of Civil Rule 36(A). Nevertheless, the trial court entered judgment in

favor of Ms. Bennett after construing Ms. Bennett’s “act of filing her completed answers to [the

Yoders’] Request for Admissions, appearing at the hearing, and requesting to present contrary

evidence at trial [as] a Motion to Withdraw.”

       {¶5}    The Yoders have appealed, raising six assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY NOT TREATING THE REQUESTS FOR
       AD- (SIC) ATTACHED TO AND SERVED WITH THE COMPLAINT AS
       ADMITTED.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY DECIDING THAT YODERS HAD
       IMPROPERLY SERVED THE REQUESTS FOR ADMISSION WHEN THEY
       PROPERLY FOLLOWED CIVIL RULE 36 AND BENNETT NEVER
       COMPLAINED ABOUT THE METHOD NOR FILED ANY OBJECTION TO
       THESE REQUESTS.

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED DECIDING THAT THE YODERS HAD
       IMPROPERLY SERVED THE REQUESTS FOR ADMISSION WHEN THEY
       PROPERLY FOLLOWED CIV. R. 36 AND BENNETT NEVER
                                                    3


          COMPLAINED ABOUT THE METHOD NOR FILED ANY OBJECTION TO
          THESE REQUESTS.1

          {¶6}   The Yoders argue in their first, fourth, and fifth assignments of error that the trial

court erred when it did not treat the request for admissions as admitted. However, the trial court

did treat the request for admissions as admitted; it just permitted Ms. Bennett to withdraw the

admissions. Accordingly, the Yoders’ first, fourth, and fifth assignments of error are overruled.

                                    ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED WHEN IT MISTOOK THE UNSIGNED,
          UNTIMELY AND PROOF-OF-SERVICE-LACKING FILING BY THE
          APPELLEE, BENNETT, AS A MOTION TO WITHDRAW THE REQUESTS
          FOR ADMISSION.

                                    ASSIGNMENT OF ERROR III

          THE TRIAL COURT ERRED IN ITS FINDING THAT IT COULD IGNORE
          THAT THE REQUESTS FOR ADMISSION SERVED UPON BENNETT WITH
          THE COMPLAINT BECAUSE BENNETT HAD FILED A MOTION TO
          WITHDRAW.

                                    ASSIGNMENT OF ERROR VI

          THE TRIAL COURT ERRED WHEN IT DECIDED THERE WAS NO
          PREJUDICE TO THE YODERS BY NOT GRANTING THEM THE REQUEST
          FOR ADMISSION BEING ADMITTED.

          {¶7}   In the Yoders’ second, third, and sixth assignment of error, they argue that the

trial court erred when it permitted Ms. Bennett to withdraw her admissions. Specifically, they

argue that Ms. Bennett never moved to withdraw her admissions and, therefore, the trial court

essentially operated on its own volition when it withdrew Ms. Bennet’s admissions.

          {¶8}    Pursuant to Civil Rule 36(A), “[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

1
    The Yoders repeat their fourth and fifth assignments of error essentially verbatim in their brief.
                                                4


fact or of the application of law to fact, including the genuineness of any documents described in

the request.”

       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.

Civ.R. 36(A)(1). Nevertheless, “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).    A trial court’s decision

permitting or denying a request to withdraw an admission is reviewed for an abuse of discretion.

L.E. Sommer Kidron, Inc. v. Kohler, 9th Dist. Wayne No. 06CA0044, 2007-Ohio-885, ¶ 46.

Abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}     The Yoders argue that the trial court abused its discretion when it permitted Ms.

Bennett to withdraw her admissions because she had never requested to withdraw them. While

Ms. Bennett did not explicitly request to withdraw her admissions, the trial court interpreted her

“act of filing her completed answers to [the Yoders’] Request for Admissions, appearing at the

hearing, and requesting to present contrary evidence at trial [as] a Motion to Withdraw.”

However, the Yoders argue, former Civil Rule 5(B)(3) prohibited the trial court from considering

the answers filed by Ms. Bennett because Ms. Bennett did not sign a certificate of service for the

answers.

       {¶10} Although the trial court did mention Ms. Bennett’s unsigned response to the

request for admissions, it also noted that Ms. Bennett had appeared at the hearing and requested
                                                5


to present evidence contrary to the admissions. Courts have generally acknowledged that the

challenging of the truth of the admissions may be treated as an implicit motion to withdraw. See,

e.g., Balson v. Dodds, 62 Ohio St.2d 287, 290 (1980), fn. 2 (“[T]he trial court could reasonably

find that, by contesting the truth of the Civ.R. 36(A) admissions for the purposes of summary

judgment, appellee satisfied the requirement of Civ.R. 36(B) that she move the trial court to

withdraw or amend these admissions.”). See also Ohio CAT v. Stoneman, 11th Dist. Trumbull,

2014-Ohio-T-0054, 2015-Ohio-3546, ¶ 15 (citing Balson with approval). Thus, the trial court

could have reasonably determined that a motion to withdraw was before it without considering

the unsigned document filed with the court. In any case, upon review of the trial court’s entry,

we conclude that any reference by the court to the unsigned response to the request for

admissions was harmless error under the circumstances of this case and also conclude that the

trial court did not abuse its discretion in construing Ms. Bennett’s actions as an implicit motion

to withdraw the admissions. See Balson at 290, fn. 2.

       {¶11} The Yoders also argue that the trial court abused its discretion by permitting Ms.

Bennett to withdraw the admissions because the act prejudiced them. Specifically, the Yoders

argue that they were prejudiced because, through the admissions, Ms. Bennett had conceded the

entire case. “As this Court has previously recognized, ‘[w]hile Civ.R. 36(B) emphasizes the

importance of resolving a case on the merits, it also assures each party that justified reliance on

an admission in preparation for trial will not operate to his prejudice.’” Heiland v. Smith, 9th

Dist. Lorain No. 11CA010137, 2013-Ohio-134, ¶ 16, quoting (Internal quotations and citation

omitted in Heiland.) L.E. Sommer Kidron, Inc., 2007-Ohio-885, at ¶ 53. See also Civ.R. 36(B).

However, the Yoders do not argue or suggest that their reliance on the admissions prevented

them from fully presenting their case against Ms. Bennett.
                                                6


       {¶12} Because the magistrate questioned whether she could consider the admissions, the

Yoders went forward with trial. They did not argue before the magistrate that, if the admissions

were not admitted or otherwise withdrawn, they would need additional time to conduct further

discovery or that their discovery had been limited as a result of the admissions, nor do they make

those arguments on appeal.      Furthermore, the Yoders bore the burden of establishing the

prejudice. See Civ.R. 36(B). Under the circumstances, where a full hearing was held and there

was no indication that the Yoders needed additional time for discovery or to otherwise prepare,

we cannot conclude that the trial court abused its discretion when it determined that the Yoders

had not met their burden to establish that they would be prejudiced by the withdrawal of the

admissions. Compare with Heiland at ¶ 14-17 (concluding that the trial court had abused its

discretion in permitting a party to withdraw their admissions and then immediately granting

summary judgment in favor of that party when the opposing party had relied upon the

admissions in his opposition to summary judgment).

       {¶13} Accordingly, the Yoders’ second, third and sixth assignments of error are

overruled.

                                             III.

       {¶14} The Yoders’ assignments of error are overruled, and the judgment of Akron

Municipal Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 7


       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

W. LOVE, II, Attorney at Law, for Appellants.

KRISTIN BENNET, pro se, Appellee.
