 [Cite as Crespo v. Harvey, 2014-Ohio-1755.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

 ANGELA CRESPO

         Plaintiff-Appellant

 v.

 RANDAL A. HARVEY, ESQ., et al.

         Defendant-Appellee


 Appellate Case No. 25861

 Trial Court Case No. 2011-CV-1701

 (Civil Appeal from
 (Common Pleas Court)
                                                ...........

                                                OPINION

                               Rendered on the 25th day of April, 2014.

                                                ...........

ALFRED SCHNEBLE, Atty. Reg. No. 30741, 11 West Monument Avenue, Suite 402, Dayton,
Ohio 45402
       Attorney for Plaintiff-Appellant

NEIL FREUND, Atty. Reg. No. 12183, SHANNON BOCKELMAN, Atty. Reg. No. 82590, 1
South Main Street, Suite 1800, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee

                                               .............

WRIGHT, J.
                                                                                        2



          {¶ 1} Appellant, Angela Crespo, appeals from the judgment of the Montgomery

County Court of Common Pleas granting summary judgment in favor of Appellees Randal A.

Harvey and Randal A. Harvey, Co. LPA. 1 At issue is whether the trial court abused its

discretion in not allowing Crespo to withdraw various Civ.R. 36 admissions to requests that

went unanswered. For the reasons that follow, we reverse and remand.

          {¶ 2} The facts of this case have been discussed in a previous opinion issued by the

court.     See Crespo v. Harvey, 2d Dist. Montgomery No. 25236, 2012-Ohio-5312.

Nevertheless, pertinent to the issue of this appeal is the following. In 2009, Crespo financed

a purchase of a home in part with a loan from her mother. Crespo granted a mortgage to her

mother which was recorded. Shortly thereafter, Crespo met with Harvey to inquire about

filing for Chapter 7 bankruptcy. According to Crespo, she told Harvey that if she filed for

bankruptcy her number one priority was to keep the house. Shortly after the meeting, Crespo

filed a petition for bankruptcy listing her house as an asset. Because her mortgage to her

mother was less than a year old, the bankruptcy court treated it as a voidable preferential

transfer of property. The trustee in bankruptcy ultimately sold Crespo’s home to satisfy her

debts.

          {¶ 3} Crespo then instituted the present malpractice action against Harvey alleging

that he did not explain preferential avoidances to her when she petitioned for bankruptcy.

Because of this alleged negligent conduct, Crespo claimed she suffered damages namely in the

loss of equity in her house and other various associated expenses with moving. Harvey



 1
     For ease of reference we will simply refer to both appellees as Harvey.
                                                                                         3
moved for summary judgment asserting that Crespo’s damages were speculative. The trial

court granted summary judgment; however, this court reversed finding that Crespo’s damages

associated with moving were not speculative.

        {¶ 4} On May 1, 2013, Harvey served a request for admissions on Crespo’s attorney.

The request for admissions asked Crespo to admit that: (1) she was not able to calculate an

exact figure for the damages, (2) the reason she was not able to calculate her damages is

because those damages are too speculative, (3) she suffered no economic damages in relation

to her move from her house over and above the amount of the statutory exemption she

received in her bankruptcy case and the amount of debt which was discharged by the

bankruptcy court, (4) appellees’ actions were not the        proximate cause of her alleged

relocation expenses from her move, and (5) Harvey did not breach any applicable standard of

care relative to the handling of her bankruptcy filing. Crespo did not respond within the 28

days as required by Civ.R. 36(A) and therefore the requests for admissions became

conclusively established as fact. Harvey moved for summary judgment based on the facts

from the admissions. On June 11, 2013, Crespo filed a motion for leave to respond to the

request for admissions out of time. According to Crespo, she had been closing a deal on a

new house and moving into it during the 28-day window to respond to the admissions. 2

Crespo claimed the “onerous task of relocating” resulted in Crespo having all of her

documents, including the discovery request at issue, “in transit” at some point during the

28-day window. The trial court denied Crespo’s motion to answer the discovery request later,




 2
   According to Crespo, she closed on the house on May 16, 2013 and obtained possession May 31,
 2013.
                                                                                           4
and on the basis of the admissions, the trial court granted summary judgment for Harvey.

This appeal followed.

          {¶ 5} As her sole assignment of error, Crespo alleges that:

         The trial court erred by granting appellees summary judgment based on deemed

         admissions and denying appellant’s motion for leave to file her answers to

         admissions out of time. Because her untimely answers would have subserved

         the presentation of the merits of her case, she provided a compelling or

         substantial reason for her noncompliance.       Appellees failed to offer any

         evidence that granting Appellant’s motion would prejudice them in maintaining

         their defense on the merits.

          {¶ 6} We review a grant of summary judgment de novo, which means "we apply the

standards used by the trial court." Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748

N.E. 2d 116 (2d Dist. 2000). Summary judgment is appropriate when a trial court correctly

finds:

“(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled

to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion,

and that conclusion is adverse to the party against whom the motion for summary judgment is

made, who is entitled to have the evidence construed most strongly in his favor." Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E. 2d 46 (1978). In a legal

malpractice action, such as this one, the plaintiff bears the burden of demonstrating “(1) an

attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages

proximately caused by the breach.” Vahila v. Hall, 77 Ohio St. 3d 421, 424, 674 N.E. 2d
                                                                                          5
1164 (1997) (quotation omitted).

       {¶ 7} As a preliminary matter, Crespo alleges that her admissions should be weighed

against other evidence in the record. In general, admissions are statements that are weighed

against all other evidence.    “Whereas stipulations remove an issue from the litigation,

evidentiary admissions must still be weighed against contradictory statements and can be

explained away by a party.” McLeod v. McLeod, 11th Dist. Ashtabula No. 2012-A-0030,

2013-Ohio-4546, ¶ 32. However, Civ.R. 36 admissions are an exception to this general rule.

Per Civ.R. 36(B), “[a]ny matter admitted under this rule is conclusively established unless the

court on motion permits withdrawal or amendment of the admission.”                  The word

“conclusively” establishes that evidence may not be used to contradict an admission made

pursuant to Civ.R. 36.     See also Fed.R. Civ.P. 36, advisory committee notes on 1970

amendment (“The new provisions give an admission a conclusively binding effect, for

purposes only of the pending action, unless the admission is withdrawn or amended.”).

Therefore, if the trial court did not abuse its discretion regarding the motion to withdraw the

admission, the judgment of the trial court must be affirmed.

       {¶ 8} Under Civ.R. 36(B):

       Subject to the provisions of Rule 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.

       {¶ 9} Motions to withdraw admissions are reviewed for an abuse of discretion.
                                                                                          6
Snyder v. Ford Motor Co., 3d Dist. Allen No. 1-05-41, 2005-Ohio-6415, ¶ 14. An abuse of

discretion is defined as the “failure to exercise sound, reasonable, and legal decision-making.”

 State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62. “When a pure issue

of law is involved in appellate review, the mere fact that the reviewing court would decide the

issue differently is enough to find error[.] . . . By contrast, where the issue on review has

been confided to the discretion of the trial court, the mere fact that the reviewing court would

have reached a different result is not enough, without more, to find error.” Id. ¶ 67 (footnote

omitted).

       {¶ 10} There is a two-prong test for determining whether a trial court may allow a

withdrawal or an amendment to a previous admission. Under the first prong, the party

seeking to amend or withdraw the admission must show that doing so would aid in presenting

the merits of the case. Kutscherousky v. Integrated Communs. Solutions, LLC, 5th Dist. Stark

No. 2004 CA 00338, 2005-Ohio-4275, ¶ 19. Once that prong is met, the responding party

must show that prejudice would result if the admissions were withdrawn or amended. Balson

v. Dodds, 62 Ohio St. 2d 287, 405 N.E.2d 293 (1980), paragraph two of the syllabus.

Additionally, we have adopted the rule that there must be compelling circumstances to excuse

the movant’s reason for not timely responding to the requested admissions. Bd. of County

Commrs v. Stewart, 2d Dist. Clark No. 09-CA-104, 2010-Ohio-5290, ¶ 34. Though we have

not previously defined or detailed what constitutes compelling circumstances, in Stewart, we

concluded that the “lack of evidentiary materials submitted in connection with the response to

summary judgment, and the lack of any real excuse for failing to file timely responses to the

request for admissions” was insufficient to constitute compelling circumstances Id., ¶ 36.
                                                                                            7

       {¶ 11} We first note that Civ.R. 36(B) is based on its federal equivalent as to whether

an admission can be withdrawn. See Conlon v. United States, 474 F.3d 616, 621 (9th Cir.

2007). Under the federal test, the first prong is satisfied “when upholding the admissions

would practically eliminate any presentation of the merits of the case.” Hadley v. United

States, 45 F.3d 1345, 1348 (9th Cir. 1994); see also Kutscherousky, 2005-Ohio-4275, ¶ 19.

In the case at bar, the first prong of the test is clearly satisfied. Crespo’s admissions literally

remove elements of her malpractice action from consideration, as shown by the motion for

summary judgment.

       {¶ 12} We next consider whether Harvey will be prejudiced if the objections are

permitted to be withdrawn. Harvey points to two possible means of prejudice. First, he

contends that his motion for summary judgment relied upon the admissions and secondly, he

contends that he has been unable to acquire calculable damages from Crespo. The first

argument can be dispensed with easily. Preparing a motion for summary judgment on which

the admissions are based is generally not seen as prejudice within the meaning of Civ.R.

36(B). State ex rel. Davila v. City of Bucyrus, 194 Ohio App. 3d 325, 2011-Ohio-1731, 956

N.E. 2d 332, ¶ 30 (3d Dist.). Rather Civ.R. 36(B) prejudice “ ‘relates to the difficulty a party

may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the

sudden need to obtain evidence’ with respect to the questions previously deemed admitted.”

Hadley, 45 F.3d, at 1348.

       {¶ 13} We are also not persuaded by Harvey’s damages argument. The Civil Rules of

Procedure provide an avenue for settling discovery disputes with obstructionist parties. See

Civ.R. 37. Furthermore, the amended final pretrial order in this case states that trial was not
                                                                                         8
supposed to start until March of 2014, leaving ample time for discovery sanctions to give

Harvey the relief he seeks. As Harvey has not attempted to settle the discovery dispute

through Civ.R. 37, we fail to see how he has been prejudiced by Crespo’s alleged

stonewalling.

       {¶ 14} The final issue is whether there were compelling circumstances. Moving

during the course of litigation could be a compelling circumstance as the documents needed to

answer the request may not be available to party. On the other hand, based on this particular

request for admissions, her complaint, the various depositions, and a previous judgment by

this court, Crespo should have been able to deny the admissions without referring to any

documents. Her claims that she had to search through her documents to determine her

answer to the complaint are plainly insincere. At the very least, her attorney could have filed

a request for an extension of time to reply. Cleveland Trust Co. v. Willis, 20 Ohio St. 3d 66,

68, 485 N.E.2d 1052 (1985). Accordingly, it is difficult to see how Crespo did not have a

moment within the 28-day window to respond or request an extension.

       {¶ 15} Nevertheless, we now conclude that our previous holding requiring compelling

circumstances to withdraw deemed admissions was misplaced. We make this conclusion for

the following reasons.

       {¶ 16} First, there is no textual basis for requiring the movant to provide compelling

circumstances for why he or she failed to meet the deadline within Civ.R. 36 to withdraw the

admission. The lack of a textual basis in Civ.R. 36(B) for the compelling circumstance

requirement should in itself suggest a new approach to the issue.
                                                                                           9

       {¶ 17} Second, Cleveland Trust Co. v. Willis, 20 Ohio St. 3d 66, 485 N.E.2d 1052

(1985) does not require a movant to demonstrate compelling circumstances. The compelling

circumstance prong arises from the following paragraph in Willis:

       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. Id. at 67.

       {¶ 18} The quoted passage does not indicate what the trial court may do in instances

where there were not compelling circumstances, nor does the Supreme Court define what

constitutes compelling circumstances. Furthermore, the analysis used in Willis suggests that

the passage should be treated as dicta. In Willis, similarly to our case, the plaintiff-appellant

missed the deadline to respond to admissions; as a result, the trial court determined that the

matters sought to be admitted were conclusively established. Id. at 66. In affirming, the

Ohio Supreme Court noted that appellant’s alleged illness did not provide a compelling

justification for missing the deadline. Id. at 68. However, the court also focused on the

prejudice appellee would endure if the appellant’s admissions were withdrawn. Id. at 68.

Specifically, the response to the request for admissions came on the first day of trial and

therefore would have clearly prejudiced appellee’s strategy.         Id.   The court’s opinion

therefore was based on the prejudice the appellee would endure that justified affirming the

lower court.
                                                                                        10

           {¶ 19} Third, federal courts applying Fed.R.Civ.P. 36, which for our purposes is

identical to Civ.R. 36, generally do not take into consideration compelling circumstances.

See, e.g., Conlon v. United States, 474 F.3d 616, 622 (9th Cir.2007) (“The rule is not to be

used in an effort to ‘harass the other side’ or in the hope that a party’s adversary will simply

concede essential elements.”), quoting Perez v. Miami-Dade County, 297 F.3d 1255, 1268

(11th Cir.2002); Durability Inc. v. Sovereign Life Ins. Co., 212 F.3d 551, 556 (10th Cir.2000)

(“The court’s focus must be on the effect upon the litigation and prejudice to the resisting

party rather than. . . on the moving party’s excuses for an erroneous admission.”) (citing 10A

Federal Procedure L.Ed. § 26.500 (1988) (internal mark omitted)); Siguel v. Allstate Life Ins.

Co., 48 F.3d 1211 (1st Cir. 1995), 1995 WL 98240, at *4 (unpublished opinion) (“Contrary to

Siguel’s assertion, the focus under Rule 36(b) is not on the moving party’s explanations for its

non-compliance (sic) with the Rule. . . .Thus, Allstate is not required to show excusable

neglect.”), citing FDIC v. Prusia, 18 F.3d 637,640 (8th Cir.1994); Edeh v. Equifax Info.

Servs., LLC, 295 F.R.D. 219, 227 (D. Minn. 2013) (concluding lack of good cause for failing

to meet deadline to respond to admissions, while probative, should not be the dispositive

factor).

           {¶ 20} The district courts of appeals have had two responses to Willis. 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. See Garrick v.

Greater Cleveland Reg. Trans. Auth., 8th Dist. Cuyahoga No. 99547, 2013-Ohio-5029, ¶ 14:

Whitehouse v. Customer Is Everything! Ltd., 11th Dist. Lake No. 2007-L-069,

2007-Ohio-6963, ¶ 34; Farah v. Chatman, 10th Dist. Franklin No. 06AP-502, 2007-Ohio-697,
                                                                                        11
¶ 11-13; Natl. City Bank v. Moore, 9th Dist. Summit No. 19465, 2000 WL 235529 (March 1,

2000).    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

circumstance for not responding in time. Himes v. Smith, 5th Dist. Stark No. 2011 CA

00086, 2012-Ohio-184, ¶ 14; RKT Props., LLC v. City of Northwood, 162 Ohio App.3d 590,

2005-Ohio-4178, 834 N.E.2d 393, ¶ 12 (6th Dist.); but see Kutscherousky, supra at ¶ 21-29

(ignoring compelling circumstances completely).           As explained in Himes, this approach

balances the interest in allowing parties to rely on admissions while protecting the interest of

having cases decided on the merits. Himes, supra.

         {¶ 21} We disagree with both approaches. Simply, Civ.R. 36(B) itself does not make

compelling circumstances an issue. Rather, the only requirements are that the withdrawal aid

in reaching the merits and that the non-moving party is not prejudiced by the withdrawal or

amendment.

         {¶ 22} Accordingly, the sole assignment of error has merit.

         {¶ 23} For the reasons discussed above, the judgment of the Montgomery County

Court of Common Pleas is hereby reversed and remanded for further proceedings.

                                            ...........



FROELICH, P.J., concurring:

         {¶ 24} The relevant time line in this case is:

         In summary:

         March 18, 2013         Previous trial date continued and May 16 set for scheduling
                                                                                      12
                             conference

       May 1, 2013           Requests for Admissions served on Plaintiff

       May 16, 2013 Scheduling Conference setting December 13 as the last date for

                             summary judgment motions and trial for March 13

       May 29, 2013 Plaintiff’s Responses to Requests Due

       June 6, 2013 Defendants’ Motion for Summary Judgment relying on unresponded-to

                             Requests for Admissions

       June 11, 2013 Plaintiff’s Request for Additional Ten (10) Days

       June 14, 2013 Defendants’ Opposition Memo

       July 1, 2013          Trial Court’s denial of June 11 Motion

       July 31, 2013 Decision granting Motion for Summary Judgment

       March 13, 2014        Scheduled trial date



       {¶ 25} The Requests for Admissions were filed May 1 and the Motion for Summary

Judgment (based on the deemed admissions) was filed June 6; in the interim, the court had

convened a pretrial and scheduled trial for March 13, 2014. The plaintiff filed its request on

June 11, less than two weeks after Responses were due, less than a week after defendants’

Motion for Summary Judgment, and nine months before the scheduled trial.

       {¶ 26} The Civil Rules are to “be construed and applied to effect just results by

eliminating delay, unnecessary expense and all other impediments to the expeditious

administration of justice.” Civ.R. 1(B). Requests for Admissions when expertly drafted in,

allowable, conclusory form can terminate the litigation. Admissions are not compelled to be
                                                                                       13
final and not subject to withdrawal or amendment if a tardy response is the result of nominal

negligence, without any resulting prejudice, and not part of a “pattern of neglect

or obstructionism” or a “conscious effort to ignore the request. . . .” See, e.g., Builders

Services, Inc. v. Habitat Condominium Owners Ass’n, 2d Dist. Montgomery No. 17247, 1999

WL 22606, *6 (Jan. 22, 1999), (internal citations omitted).

        {¶ 27} The deemed-admitted consequence is not a “gotcha” for the minimally

                                                                                          -13-

dilatory when it resolves the litigation in a manner completely prejudicial to one side without

any prejudice to the other. I would not eliminate the compelling circumstance consideration,

but rather find that it must be interpreted in this context.



                                             .........



FAIN, J., concurring:

        {¶ 28} I agree with Judge Wright, in his opinion for the court, that “compelling”

circumstances, in the sense of circumstances presenting an unusually forceful justification for

a party’s failure to have timely responded to a request for admissions, is not a requirement of

Civ.R. 36(B) for sustaining a motion to modify or withdraw deemed admissions.              The

opinions using the word “compelling,” sometimes equated with “substantial,” appear merely

to have used the word in connection with the circumstances proffered, either affirmatively or

negatively, without indicating that the “compellingness” of the circumstances is the sine qua

non for permitting the modification or withdrawal of deemed admissions.
                                                                                            14

         {¶ 29} Civ.R. 36(B) imposes two prerequisites for a trial court order modifying or

 withdrawing deemed admissions: (1) the modification or withdrawal must aid in presenting

 the merits of the case; and (2) the responding party must have failed to satisfy the court that it

 would be prejudiced in maintaining the action or the defense of the action if the deemed

 admissions were modified or withdrawn. If these two prerequisites are satisfied, then, and

 only then, the trial court may permit the modification or withdrawal of the deemed

 admissions; i.e., it has the discretion to do so.

       {¶ 30} Once the prerequisites have been satisfied, and the trial court has discretion, the

sound exercise of that discretion requires a consideration of the culpability of the negligent

party (in having failed to respond timely to the request for admissions) in comparison with the

inconvenience to the trial court and to the adverse party or parties if the deemed admissions are

modified or withdrawn. If the culpability of the negligent party is great, perhaps because the

party has demonstrated a pattern of indifference to discovery and to orders of the court, and the

inconvenience to the trial court and to the adverse parties is great, perhaps because the trial date

is imminent and the adverse parties and the trial court have prepared for trial, then the sound

exercise of discretion would lead a reasonable trial court to overrule a motion to modify or

withdraw deemed admissions. Conversely, if both the culpability of the negligent party and the

inconvenience to the trial court and the adverse parties are slight, then the sound exercise of

discretion would lead a reasonable trial court to sustain the motion.

         {¶ 31}    Obviously, 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. But the case before us appears to me to lie near the extremes of slight
                                                                                        15
negligence and slight inconvenience. The plaintiff filed her request for additional time to

respond less than two weeks after her response was due, and her proffered reason, that she was

in the throes of moving, will strike a chord with anyone who has gone through the process of

moving a residence. Furthermore, the plaintiff filed her request six months before the cutoff

date set by the court for summary judgment motions (although the defendant had filed a

motion for summary judgment, based upon the opportunity presented by the deemed

admissions, just five days earlier), and nine months before the scheduled trial date.

       {¶ 32} In the circumstances of this case, I conclude that the sound exercise of the trial

court’s discretion requires the sustaining of Crespo’s motion to withdraw her deemed

admissions. Therefore, I concur.


(Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).




Copies mailed to:

Alfred Schneble
Neil Freund
Shannon Bockelman
Hon. Dennis J. Adkins
