[Cite as Hess v. Satink, 2016-Ohio-4684.]


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

GERALD L. HESS, et al.                              C.A. No.     27729

        Appellees

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JOHN DAVID SATINK, et al.                           COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CV-2013-11-5583

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2016



        HENSAL, Presiding Judge.

        {¶1}     Appellant, John David Satink, appeals from the judgments of the Summit County

Court of Common Pleas. For the following reasons, this Court affirms.

                                               I.

        {¶2}     Defendant/Appellant John David Satink purchased commercial real estate (the

“Property”) from Plaintiffs/Appellees Mary Jane and Gerald Hess in September 2003 for

$360,000.00. The Hesses provided seller financing and Mr. Satink executed a promissory note

secured by a mortgage, which was recorded with the Summit County Recorder’s Office.

        {¶3}     The Property consists of two parcels that are subject to the same note and

mortgage. Mr. Satink used the Property to operate his business, Ohio Plastics & Safety Products

Co. According to Mr. Satink, the business began declining in 2012, and by August 2013, he had

lost over $100,000.00.
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       {¶4}    On July 2, 2013, Mr. Satink transferred Parcel No. 23-00769 (the larger of the two

parcels that contained a manufacturing building and warehouse) by quit claim deed to the John

D. Satink Irrevocable Trust. Less than two months later, Mr. Satink sent the Hesses a letter

enclosing his usual monthly payment, but indicated he was “out of money and [lacked] the

ability to make any more payments.”           By Mr. Satink’s own admission, approximately

$195,000.00 remained outstanding on the promissory note at that time.

       {¶5}    True to his word, Mr. Satink made no further payments on the promissory note.

As a result, the Hesses initiated a lawsuit against him and the trustees of the John D. Satink

Irrevocable Trust, asserting the following causes of action: (1) breach of purchase agreement and

promissory note; (2) fraudulent transfer; and (3) foreclosure.

       {¶6}    During the course of discovery, Mr. Satink failed to timely respond to the Hesses’

requests for admissions despite receiving an extension of time within which to respond.

Accordingly, the Hesses moved the trial court to deem the requests admitted under Civil Rule

36(A)(1), which the trial court granted. Relying, in part, on these admissions, the Hesses moved

for summary judgment on all three claims. Mr. Satink opposed their motion and filed his own

motion for partial summary judgment with respect to the Hesses’ fraudulent transfer claim only.

The trial court denied Mr. Satink’s motion for partial summary judgment and granted summary

judgment in favor of the Hesses on all three claims.

       {¶7}    The trial court ordered a damages hearing before the magistrate, who ultimately

awarded the Hesses $9,738.00 in attorney’s fees and $50,000.00 in punitive damages.           In

response, Mr. Satink filed a document captioned, “Defendant Satink’s Reply Brief in Opposition

to Magistrate Decision,” which the trial court struck from the record as being untimely, but also
                                                 3


noted that it failed to comply with the requirements of Civil Rule 53(D)(3)(b)(ii). The trial court

adopted the magistrate’s decision and entered judgment in favor of the Hesses.

       {¶8}    Following the judgment entry in favor of the Hesses, Mr. Satink filed a notice of

appeal and moved the trial court to stay the execution of the judgment, which the trial court

denied. After reviewing the initial filings, this Court dismissed Mr. Satink’s first attempted

appeal for lack of jurisdiction because the trial court did not resolve all of the outstanding issues

concerning the foreclosure claim. Therefore, we held that the trial court’s decision was not a

final, appealable order. The trial court subsequently issued a decree of foreclosure that resolved

the outstanding issues such that this Court now has jurisdiction to consider Mr. Satink’s appeal.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
       BY DEEMING THE APPELLEES’ REQUEST FOR ADMISSIONS
       ADMITTED BY THE APPELLANT.

       {¶9}    In his first assignment of error, Mr. Satink argues that the trial court erred in

deeming the Hesses’ requests for admissions admitted.            Mr. Satink also argues that the

admissions are not dispositive for purposes of summary judgment such that genuine issues of

material fact remained to be litigated.

       {¶10} It is well settled in Ohio that unanswered requests for admissions cause the matter

requested to be conclusively established for the purpose of the suit, and that a motion for

summary judgment may be based on such admitted matters. Cleveland Trust Co. v. Willis, 20

Ohio St.3d 66, 67 (1985); Mgt. Recruiters-Southwest v. Holiday Inn-Denver, 9th Dist. Medina

No. 2582-M, 1997 WL 209137, *2 (Apr. 23, 1997); Klesch v. Reid, 95 Ohio App.3d 664, 675

(8th Dist.1994). As this Court has stated, “a party’s failure to timely respond to request[s] for
                                                4


admissions results in default admissions * * * ‘which the court must recognize.’” Marusa v.

Brunswick, 9th Dist. Medina No. 04CA0038-M, 2005-Ohio-1135, ¶ 20, quoting Willis at 67.

“From a practical standpoint, however, a party typically moves the trial court to ‘deem’ the

matters admitted to bring the issue to the trial court’s attention and to make the default

admissions, which may not have been filed previously with the court, part of the trial court

record.” Id.

       {¶11} Here, the Hesses propounded their first set of requests for admissions on January

28, 2014. During a pretrial on February 25, 2014, Mr. Satink requested additional time to

respond to the outstanding discovery. The Hesses agreed to a two-week extension, making Mr.

Satink’s responses due no later than March 14, 2014. Having received no responses to their

requests for admissions by that time, the Hesses moved the trial court to deem the requests

admitted, which it granted.

       {¶12} More than two months later, and after the Hesses filed their motion for summary

judgment, Mr. Satink moved the trial court for leave to file his responses to the Hesses’ requests

for admissions and for reconsideration of its order deeming them admitted. In his motion, Mr.

Satink argued that “the press of business as an accountant during tax season, complicated by a

serious illness” rendered him unable to timely respond to the Hesses’ requests for admissions.

The trial court denied Mr. Satink’s motion and, through the same order, granted the Hesses’

motion for summary judgment.

       {¶13} On appeal, Mr. Satink asserts that he did not receive communication regarding his

case prior to April 10, 2014, because his attorney “resigned, went on vacation,” and withdrew

from the case. He, therefore, argues that the trial court abused its discretion by failing to allow

him to withdraw his admissions. As previously noted, however, Mr. Satink argued at the trial
                                                   5


court that the press of business and an illness rendered him unable to timely respond to the

requests. Mr. Satink cannot assert a new theory, i.e., that his attorney did not communicate with

him, in support of his position for the first time on appeal. See Cincinnati Equitable Ins. Co. v.

Sorrell, 9th Dist. Lorain No. 05CA008703, 2006-Ohio-1906, ¶ 26 (“It is well established that an

appellant may not assert a new theory for the first time before the appellate court.”). Mr.

Satink’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
       GRANTING APPELLEES’ MOTION FOR SUMMARY JUDGMENT IN
       WHOLE AND DENYING THE APPELLANT’S MOTION FOR PARTIAL
       SUMMARY JUDGMENT BY RULING THAT THE APPELLANT
       FRAUDULENTLY TRANSFERRED REAL ESTATE IN VIOLATION OF
       OHIO REVISED CODE CHAPTER 1336.

       {¶14} In his second assignment of error, Mr. Satink argues that the trial court erred by

granting the Hesses’ motion for summary judgment and denying his motion for partial summary

judgment. He argues that the trial court erred because the Hesses failed to proffer competent,

credible evidence for Civil Rule 56 purposes such that a genuine issue of material fact remained

to be litigated: whether the transfer of Parcel No. 23-00769 to the John D. Satink Irrevocable

Trust was fraudulent.

       {¶15} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). To succeed on a motion for summary judgment, the movant

bears the initial burden of demonstrating that there are no genuine issues of material fact

concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292

(1996). If the movant satisfies this burden, the nonmoving party “must set forth specific facts

showing that there is a genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E).
                                                  6


       {¶16} Revised Code Section 1336.04 provides, in part, that a transfer is fraudulent when

it is made “[w]ith actual intent to hinder, delay, or defraud any creditor[.]” R.C. 1336.04(A)(1).

“In determining actual intent * * *, consideration may be given to all relevant factors, including,

but not limited to * * * [w]hether the debtor was insolvent or became insolvent shortly after the

transfer was made[.]” R.C. 1336.04(B)(9). Additionally, Section 1336.04(A)(2) permits a claim

for constructive fraud when a transfer is made:

       [w]ithout receiving a reasonably equivalent value in exchange for the transfer * *
       *, and if either of the following applies: (a) [t]he debtor was engaged or was about
       to engage in a business or a transaction for which the remaining assets of the
       debtor were unreasonably small in relation to the business or transaction; (b) [t]he
       debtor intended to incur, or believed or reasonably should have believed that the
       debtor would incur, debts beyond the debtor’s ability to pay as they became due.

       {¶17} Here, it is undisputed that Mr. Satink transferred Parcel No. 23-00769 to the John

D. Satink Irrevocable Trust less than two months before informing the Hesses that he could no

longer make payments on the promissory note because he was “out of money” and his “cash

flow [was] negative.” Further, Mr. Satink’s admissions established that he did not transfer the

property in good faith or for a reasonably equivalent value. See Mgt. Recruiters-Southwest, 1997

WL 209137, at *2 (stating that “[a]n admission by default under Civ.R. 36(A) is deemed a

written admission competent to support a motion for summary judgment.”). In light of this

evidence, we find that the Hesses met their initial burden under Civil Rule 56, thereby shifting

the burden to Mr. Satink to show that a genuine issue of material fact existed.

       {¶18} Rather than dispute the merits of the Hesses’ claim, however, Mr. Satink argued

below that the fraudulent transfer statute “d[id] not apply.” On appeal, in addition to arguing that

the Hesses failed to meet their burden under Civil Rule 56, Mr. Satink attempts to dispute the

merits of the Hesses’ fraudulent transfer claim. Specifically, he argues that, although certain

“badges” of fraud existed, they did not “rise to the level of a fraudulent transfer.” But as this
                                                    7


Court has explained, when a litigant fails to raise an issue in the trial court, the litigant forfeits its

right to raise that issue on appeal. Akron ex rel. Christman-Resch v. Akron, 159 Ohio App.3d

673, 2005-Ohio-715, ¶ 36 (9th Dist.). Because Mr. Satink did not raise this issue below, we

decline to address the merits of his argument.

        {¶19} In light of the foregoing, we hold that the trial court did not err by granting

summary judgment in favor of the Hesses because no genuine issue of material fact remained

regarding their fraudulent transfer claim. Mr. Satink’s second assignment of error is overruled.

                                   ASSIGNMENT OF ERROR III

        THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
        ENTERING A DECREE OF FORECLOSURE AND EXECUTING THEREON
        DESPITE GENUINE ISSUES OF MATERIAL FACT REGARDING
        AFFIRMATIVE DEFENSES AND ARGUMENTS RAISED BY THE
        APPELLANT.

        {¶20} In his third assignment of error, Mr. Satink argues that he “properly raised

[certain affirmative] defenses and issues[,] and submitted competent, credible evidence which, at

the very least, proved the existence of genuine issues of material facts.” Therefore, he argues,

the trial court erred by granting a decree of foreclosure.

        {¶21} We, however, need not address the merits of Mr. Satink’s assignment of error

because the property was sold at a sheriff’s sale back to Mr. Hess, the trial court confirmed the

sale, and the proceeds have been distributed. We have held that “[i]n foreclosure cases, as in all

other civil actions, after the matter has been extinguished through satisfaction of the judgment,

the individual subject matter of the case is no longer under the control of the court and the court

cannot afford relief to the parties to the action.” Bankers Trust Co. of California, N.A. v. Tutin,

9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 16. Accordingly, we dismiss this assignment of

error as moot. Id.
                                                   8


                                   ASSIGNMENT OF ERROR IV

        THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
        IMPOSING PUNITIVE DAMAGES AND SANCTIONS, WHETHER IN
        WHOLE OR IN PART, AGAINST THE APPELLANT.

        {¶22} In his final assignment of error, Mr. Satink argues that the trial court abused its

discretion by awarding the Hesses punitive damages and attorney’s fees. He argues that the

Hesses failed to request such damages and that, assuming the Hesses proved their fraudulent

transfer claim, they were fully compensated through the foreclosure process. In response, the

Hesses argue that Mr. Satink waived this argument because he did not raise it in his document

captioned, “Defendant Satink’s Reply Brief in Opposition to Magistrate Decision,” which the

trial court struck from the record as untimely. Accordingly, they argue that Mr. Satink waived

all but plain error with respect to this issue.

        {¶23} We agree that Mr. Satink has forfeited all but plain error on this issue because he

failed to timely object to the magistrate’s decision.     Civ.R. 53(D)(3)(b)(iv).    Mr. Satink,

however, has not advanced a plain error argument on appeal. See App.R. 16(A)(7). Therefore,

Mr. Satink’s fourth assignment of error is overruled.

                                                  III.

        {¶24} Mr. Satink’s assignments of error are overruled. The judgments of the Summit

County Court of Common Pleas are affirmed.

                                                                             Judgment affirmed.




        There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, 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 Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

SAM THOMAS, III, Attorney at Law, for Appellant.

JAMES M. MCHUGH, Attorney at Law, for Appellees.
