[Cite as Himes v. Smith, 2012-Ohio-184.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




EMILY D. HIMES                              :    JUDGES:
                                            :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                  :    Hon. Sheila G. Farmer, Jr.
                                            :    Hon. Julie A. Edwards, J.
-vs-                                        :
                                            :
ROBERT D. SMITH, ET AL.                     :    Case No. 2011CA00086
                                            :
        Defendants-Appellants               :    OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common
                                                 Pleas, Case No. 2009CV04793



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT:                                January 17, 2012




APPEARANCES:

For Plaintiff-Appellee                           For Defendants-Appellants

DARRELL W. HOLLAND, JR.                          DEAN W. VAN DRESS
4808 Munson Street, NW                           46 Front Street
Canton, OH 44718                                 Berea, OH 44017
Stark County, Case No. 2011CA00086                                                   2

Farmer, J.

      {¶1}   In 2008, appellant, Robert D. Smith, Jr., and appellee, Emily D. Himes,

attended real estate sales license classes at Hondros College. During the course of the

class, appellee asked appellant if he would be interested in renovating her home as he

operated a construction/rehab business. On July 29, 2008, the parties entered into an

agreement for construction services. The contract was signed at appellee's home, and

appellee gave appellant $5,000.00 to begin renovations.

      {¶2}   On June 16, 2009, appellee filed a complaint in the Canton Municipal

Court against appellant and his business, RDSJR Construction, alleging breach of

contract regarding the work performed, or lack thereof, on her home. On August 19,

2009, appellant filed an answer and counterclaim for money due and owing.

      {¶3}   On November 19, 2009, appellee served appellant with notice that she

was cancelling the contract.

      {¶4}   On December 10, 2009, appellee filed an amended complaint adding

claims under the Consumer Sales Practices Act, the Deceptive Trade Practices Act,

and the Home Solicitation Act as the contract did not include a cancellation notice as

required by law. As a result of this filing, the case was transferred to the Common

Pleas Court on December 15, 2009. On February 16, 2010, appellant filed an answer,

an amended counterclaim, and a request for mediation.         The parties engaged in

mediation, but it was unsuccessful.

      {¶5}   On February 4, 2011, appellee filed a motion for summary judgment, and

requested that the admissions that appellant had failed to answer be deemed admitted.

On February 24, 2011, appellant filed a motion to amend admissions. By judgment
Stark County, Case No. 2011CA00086                                                      3


entry filed March 15, 2011, the trial court denied appellant's request to amend

admissions, and granted appellee's motion for summary judgment on her complaint and

appellant's counterclaim. The trial court awarded appellee a total of $102,750.62 as

against appellant.

         {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

         {¶7}   "THE COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S

MOTION TO MODIFY ADMISSIONS."

                                             II

         {¶8}   "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF APPELLEE BECAUSE THERE ARE ISSUES OF MATERIAL FACTS TO

BE LITIGATED."

                                             I

         {¶9}   Appellant claims the trial court erred in denying his motion to modify his

admissions as he never received appellee's request for admissions because of faulty

delivery. We disagree.

         {¶10} The decision as to whether to permit a modification to admissions rests in

a trial court's sound discretion. Balson v. Dodds (1980), 62 Ohio St.2d 287; Civ.R.

36(B).    In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.
Stark County, Case No. 2011CA00086                                                     4


       {¶11} Civ.R. 36 governs requests for admission.       Subsection (B) states the

following:

       {¶12} "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.    Any admission made by a party under this rule is for the

purpose of the pending action only and is not an admission by the party for any other

purpose nor may it be used against the party in any other proceeding."

       {¶13} As explained by this court in Bush v. Eckman, Licking App. No.

07CA0115, 2008-Ohio-5080, ¶23:

       {¶14} "In making its determination of whether to permit a withdrawal or

amendment of the admissions, the trial court is required to consider the elements of

Civ.R. 36(B). Ohio courts have stylized this consideration into a multi-pronged analysis.

See Kutcscherousky v. Integrated Communications Solutions, LLC, 5th Dist.

No.2004CA00338, 2005-Ohio-4275; RKT Properties, LLC v. City of Northwood, 6th

Dist. No. WD-05-009, 2005-Ohio-4178; Farmers Ins. Of Columbus, Inc. v. Lister, 5th

Dist. No, 2005-CA-29, 2006-Ohio-142; B & T Distributors v. CSK Const., Inc., 6th Dist.

No. L-07-1362, 2008-Ohio-1855. First, there is the overreaching goal that cases should

be resolved on their merits. The court must determine whether the amendment or

withdrawal of the admissions will aid in presenting the merits of the case. Cleveland
Stark County, Case No. 2011CA00086                                                       5

Trust, 20 Ohio St.3d at 67. If the court so determines, the burden then shifts to the

party who obtained the admissions to establish that the withdrawal or amendment will

prejudice the party in maintaining their action. Id.; Balson v. Dodds (1980), 62 Ohio

St.2d 287, 405 N.E.2d 293, paragraph two of the syllabus. 'Against this prejudice, the

court must weigh the "compelling" circumstances that led to the failure to respond to the

request for admissions.' RKT Properties, supra at ¶12, citing Cleveland Trust, supra

and Balson, supra."

      {¶15} As it pertains to unanswered admissions, Civ.R. 36(A) states:

      {¶16} "Each matter of which an admission is requested shall be separately set

forth. The party to whom the requests for admissions 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, not

less than twenty-eight days after service of a printed copy 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. Failure to provide an

electronic copy does not alter the designated period for response, but shall constitute

good cause for the court to order the period enlarged if request therefor is made

pursuant to Rule 6(B) before the expiration of the designated period."

      {¶17} Appellant served appellee with admissions on May 6, 2010.                 See,

Certificate of Service on First Request for Admissions, attached to Plaintiff's February 4,

2011 Motion for Summary Judgment as Exhibit E. Appellant represented himself until

August 3, 2010, well after the June 2010 due date for the admissions. However, in
Stark County, Case No. 2011CA00086                                                        6


proceeding pro se, appellant was no stranger to the court system. He filed an answer,

counterclaim, and several motions while the case was in Municipal Court, and filed

numerous filings after the case was transferred to Common Pleas Court, including a

motion for leave to plead (January 13, 2010), an answer to the complaint (February 17,

2010), a request for mediation (February 17, 2010), a first amended counterclaim

(February 17, 2010), a motion to take appellee's deposition (July 9, 2010), a motion for

temporary restraining order (July 9, 2010), a motion for continuance (July 9, 2010), a

motion to inspect property (July 9, 2010), and a motion for first discovery and

interrogatories (July 9, 2010).

       {¶18} The trial court dealt with appellant's inability to follow the Civil Rules when

it granted appellee's April 8, 2010 motion to compel defendant to serve plaintiff with "all

filings made by the Defendant as of July 15, 2010," including his amended counterclaim,

answer to the amended complaint, request for mediation, and motion for leave. See,

Judgment Entry filed July 16, 2010.

       {¶19} We note the admissions were served upon appellant at his post office box,

the same address used to notify appellant of the mediation for which he appeared, and

the same address appellant used on his own filings.

       {¶20} Upon review, we cannot find the trial court abused its discretion in denying

appellant's request to modify his admissions.

       {¶21} Assignment of Error I is denied.
Stark County, Case No. 2011CA00086                                                      7


                                            II

      {¶22} Appellant claims the trial court erred in granting summary judgment to

appellee because there existed a genuine issue of material fact as to the applicability of

R.C. Chapter R.C. 1345, the Home Solicitation Act. We disagree.

      {¶23} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

      {¶24} "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (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) 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. State

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

      {¶25} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

      {¶26} In his affidavit attached to his February 24, 2011 motion to amend

admissions, appellant averred the original negotiation for the construction job did not

occur at appellee's home; therefore, the Home Solicitation Act does not apply. The
Stark County, Case No. 2011CA00086                                                        8


discussion on the construction job was initiated at Hondros College wherein the parties

attended real estate licensing classes.

         {¶27} As the trial court noted in its judgment entry filed March 15, 2011, its

decision was predicated on appellee's legal arguments and the admissions: "Upon

review of the pleadings and supporting documents, including but not limited to the

Defendant's Admissions, the Court finds that there are no genuine issues of material

fact."

         {¶28} R.C. 1345.21(A) defines a "home solicitation sale" as follows:

         {¶29} " 'Home solicitation sale' means a sale of consumer goods or services in

which the seller or a person acting for the seller engages in a personal solicitation of the

sale at a residence of the buyer, including solicitations in response to or following an

invitation by the buyer, and the buyer's agreement or offer to purchase is there given to

the seller or a person acting for the seller, or in which the buyer's agreement or offer to

purchase is made at a place other than the seller's place of business."

         {¶30} R.C. 1345.21(H) defines "place of business" as "the main office, or a

permanent branch office or permanent local address of a seller."

         {¶31} Included in the admissions, attached to appellee's motion for summary

judgment filed February 4, 2011 as Exhibit E, are the following issues apart from the

breach of contract claim which is not challenged sub judice:

         {¶32} "3. Admit that at all times relevant, Contractor did not have a separate and

distinct 'business establishment' for his construction/rehab business.
Stark County, Case No. 2011CA00086                                                       9


      {¶33} "4. Admit that at all times relevant, Contractor entered into a contract with

Plaintiff at her private residence in Canton, Ohio, a copy of which is attached to the

Plaintiff's Amended Complaint as Exhibit 'A'.

      {¶34} "5. Admit that at all times relevant, Contractor never delivered a Notice of

Cancellation to Plaintiff as required by R.C. 1345.23.

      {¶35} "13. Admit that Defendants committed unfair trade practices and

consumer violations as against Plaintiff in violation of the Consumer Sales Practices Act

and the Deceptive Trade Practices Act.

      {¶36} "14. Admit that as a direct and proximate result of the Defendants acts of

violating the CSPA, the Plaintiff has been damaged in the amount of $12,000.00.

      {¶37} "15. Admit that the Defendants violated the Homes Sales Solicitation Act

('HSSA').

      {¶38} "16. Admit that Defendants still have not complied with the HSSA.

      {¶39} "18. Admit that the Defendants have failed to honor the Plaintiff's Notice of

Cancellation by failing to: a) refund all payments made under the contract; b) notify the

Plaintiff, within 10 business days of receipt of the Notice of Cancellation, whether

Defendants intend to repossess or abandon any shipped or delivered goods; and, c)

inform the Plaintiff orally of her right to cancel. By virtue of these acts, the Defendants

have committed 3 additional HSSA violations, and, vis-à-vis, have caused multiple

independent violations of the CSPA, a remedial statute setting forth cumulative

penalties and damages and awards of fees, including reasonable attorney fees."
Stark County, Case No. 2011CA00086                                                     10


       {¶40} Appellant argues that merely because a contract is signed at the buyer's

home, it is insufficient to establish a home solicitation. Otherwise, R.C. Chapter 1345

would be applicable to any construction change orders.

       {¶41} Although not specifically relied upon in the trial court's decision, we find

Admission Nos. 13 and 15 are not factual admissions, but conclusions of law.

Therefore, they are legal conclusions within the sole purview of the trial court.

       {¶42} Appellee's affidavit, attached to her motion for summary judgment filed

February 4, 2011 as Exhibit G, averred the following:

       {¶43} "4. At all times relevant, Robert Smith did not have a separate and distinct

'business establishment' for his construction/rehab business. He operated his business

from his personal cell phone.

       {¶44} "5. At all times relevant, Robert Smith entered into contracts with me at my

private residence in Canton, Ohio, a copy of which is attached to the Plaintiff's Amended

Complaint as Exhibit 'A'. At that time, I was a single-mom and first-time home buyer. I

was not engaged in any business, vocation, or occupation regarding my transactions

with Robert Smith."

       {¶45} We find the following facts to be undisputed:

       {¶46} 1) Appellant did not have an office or place of business (Admission No. 3;

Appellee's Affidavit).

       {¶47} 2) The parties' initial discussion regarding the construction job occurred at

Hondros College.

       {¶48} 3) The contract for the construction job was signed at appellee's home

(Admission No. 4; Appellee's Affidavit).
Stark County, Case No. 2011CA00086                                                      11


       {¶49} 4) The contract did not conform to the requirements of R.C. Chapter 1345

(Admission No. 5; Appellee's Affidavit).

       {¶50} 5) The damages alleged are admitted as true via Admission Nos. 19 and

21.

       {¶51} 6) Appellant breached the contract (Admission Nos. 7, 8, 9, 10, and 11).

       {¶52} We find these facts were sufficient to establish that appellant did not have

"a place of business" as defined in R.C. 1345.21(H), and the signing of the contract

occurred at appellee's home.

       {¶53} On the undisputed facts, we find appellant was a "seller" under the act, the

contract was a home solicitation contract, and the buyer's right to cancel provision was

not included in the contract.

       {¶54} Based upon the admissions, the damages were unchallenged; therefore

the trial court was correct in granting summary judgment to appellee.

       {¶55} Assignment of Error II is denied.
Stark County, Case No. 2011CA00086                                          12


      {¶56} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                      _s/ Sheila G. Farmer_______________



                                      _s/ William B. Hoffman_____________



                                      _s/ Julie A. Edwards______________

                                                   JUDGES




SGF/sg 1213
[Cite as Himes v. Smith, 2012-Ohio-184.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




EMILY D. HIMES                                :
                                              :
        Plaintiff-Appellee                    :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
ROBERT D. SMITH, ET AL.                       :
                                              :
        Defendants-Appellants                 :        CASE NO. 2011CA00086




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellants.




                                              _s/ Sheila G. Farmer_______________



                                              _s/ William B. Hoffman_____________



                                              _s/ Julie A. Edwards______________

                                                           JUDGES
