[Cite as Heiland v. Smith , 2013-Ohio-134.]

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

ERIC HEILAND Appellant

v. TIMOTHY SMITH, et al. Appellees C.A. No. 11CA010137

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CV168480

DECISION AND JOURNAL ENTRY Dated: January 22, 2013

BELFANCE, Judge. {¶1} Eric Heiland appeals the trial court’s award of summary judgment. For the reasons set forth below, we affirm in part and reverse in part.

I. {¶2} Mr. Heiland retained Timothy Smith to represent him in his divorce proceedings. It is undisputed that communication problems pl agued the attorney-client relationship, though neither party agrees who was responsible for the problems. Mr. Heil and filed a complaint alleging that Mr. Smith had committed malpractice while representing him. He also named Mr. Smith’s law firm, Smith and Smith Attorneys, as a co-defendant. {¶3} Issues arose during the discovery process, leading to the defendants filing a motion to compel discovery, which the trial court granted. Despite this order, however, Mr. Heiland failed to respond to the defendants’ requ ests for discovery, and the defendants filed a motion to dismiss the case. The trial court granted the motion in part, ordering Mr. Heiland to2

pay the defendants’ attorney fees, but the court denied the defendants’ request to dismiss the

case. {¶4} On March 2, 2011, prior to de fendants filing their motion to dismiss, Mr. Heiland served the defendants with a request for admissi ons to be answered by March 30, 2011. In that request, Mr. Heiland asked Mr. Smith to admit that he breached the applicable standard of care. However, the defendants did not timely respond to Mr. Heiland’s reques t, although responses were submitted after the response deadline. {¶5} The defendants moved for summary judgme nt on August 31, 2011, and attached

an affidavit from Mr. Smith to their motion. In his affidavit, Mr. Smith averred that his conduct during his time representing Mr. Heiland did not fall beneath the standard of care. The defendants argued that summary judgment was proper because Mr. Heila nd had failed to obtain an expert opinion supporting his claim that Mr. S mith’s actions had fallen beneath the standard of care. Mr. Heiland filed a response to the de fendants’ motion for summary judgment, arguing that an expert opinion was unnecessary in light of Mr. Smith’s admission that he breached the

standard of care. {¶6} The defendants subsequently filed a re ply brief in support of their motion for summary judgment and a motion to withdraw or amend their admissions. Mr. Heiland opposed the defendants’ motion, arguing that granting th e defendants’ motion w ould prejudice him given that discovery was closed and a motion for summary judgment was pending. The trial court granted the defendants’ motion to amend the answers and ordered that it would “accept3

Defendants’ Answers to Plaintiff’s Request fo r Admissions as timely produced.” It also immediately granted the defendants’ motion for summary judgment. 1 {¶7} Mr. Heiland has appealed, rais ing three assignments of error for our review. For ease of discussion, we have consolidated hi s first and second assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN APPLYING THE STANDARD OF REVIEWFOR SUMMARY JUDGMENT TO THE PREJUDICE OF THE PLAINTIFFAPPELLANT. ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANTS’ MOTION TO MODIFY, WITHDRAW[] AND/OR AMEND THEIR ANSWERS OVER PLAINTIFF’S OBJECTIONS AND IN ACCEPTING DEFENDANTS’ ANSWERS TO PLAINTIFF’S REQUEST FOR ADMISSIONS AS TIMELY PRODUCED[] OVER PLAINTIFF’S OBJECTIONS, EVIDENCE, AND WITHOUT ALLOWING PLAINTIFF TO PROVIDE FURTHER EVIDENCE, TO PLAINTIFF’S SUBSTANTIAL PREJUDICE AND AGAINST SUBSTANTIAL JUSTICE AND PLAINTIFF’S DUE PROCESS RIGHTS. {¶8} In Mr. Heiland’s first assignment of error, he argues that the trial court erred in awarding summary judgment to the defendants. In his second assignment of error, he argues that it was an abuse of discretion for the trial court to accept the untimely answers to his requests for

admissions. {¶9} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. , 77 Ohio St.3d 102, 105 (1996). “We apply th e same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving

1 The journal entries granting the defendants’ motions to amend and summary judgment were both filed at 3:00 p.m. on November 22, 2011.4

any doubt in favor of the non-moving party.” Garner v. Robart , 9th Dist. No. 25427, 2011– Ohio–1519, ¶ 8. {¶10} Pursuant to Civ.R. 56(C), summary judgment is appropriate when: (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 party against whom the motion for summary judgment is made, that conc lusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). To succeed on a summary judgment motion, the movant bears the initial burde n of demonstrating that there are no genuine

issues of material fact co ncerning an essential element of the opponent’s case. Dresher v. Burt , 75 Ohio St.3d 280, 292 (1996). If the movant satis fies 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). {¶11} To prevail on a claim of legal malpractice, a plaintiff must demonstrate “(1) an attorney-client relationship giving rise to a duty; (2) a breach of that duty; (3) the attorney’s failure to conform to the standard required by law; and (4) a causal connection between the conduct complained of and the re sulting damage.” (Internal quot ations and cita tion omitted.)

Yates v. Barilla , 9th Dist. No. 11CA010055, 2012-Ohio-3876, ¶ 8. “The attorney’s duty is to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, and to be ordinarily and reasonably diligent, careful, and prudent[.]” (Internal quota tions and citation omitted.) Id . “[I]n an action for legal malpractice, one must set forth expert testimony to establish an attorney’s alleged malpractice or breach of duty and care, unless the breach is so obvious that it can be determined by the court or is within the ordinary knowledge and experience of laymen.” (Internal quotations and citation omitted.)5

Id . “Furthermore, an affidavit from the acting atto rney is a legally sufficient basis upon which to grant a motion for summary judgment in a legal malpractice action absent any opposing affidavit of a qualified expert witness for the plaintiff. ” (Internal quotations and citation omitted.) Id

. {¶12} The defendants submitted the affidavit of Mr. Smith with their motion for summary judgment. In his affidavit, Mr. Smith averred that he was a practicing attorney. He

also averred that he met the standard of car e for an attorney and that he conducted his representation of Mr. Heiland with the appropriate diligence and skill. Thus, the defendants met their initial burden to demonstrate that there was no material dispute of fact as to Mr. Smith’s alleged breach of his duty of care. {¶13} In turn, Mr. Heiland met his reciprocal burden, by pointing to his request for

admission that Mr. Smith’s “conduct fell below the good standard of care required to breach his duty of care to his client [Mr. Heiland], proximately causing [Mr. Heiland] actual damages.” It is undisputed that Mr. Smith failed to timely respond to Mr. Heiland’s request for admissions, and, thus, at the time appellees filed thei r motion for summary judgment, Mr. Smith had essentially admitted that he committed malpractice. See Civ.R. 36(A)(1) (A “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 objec tion addressed to the matter * * *.” ). See also Civ.R. 36(B) and L.E. Sommer Kidron, Inc. v. Kohler , 9th Dist. No. 06CA0044, 2007-Ohio-885, ¶ 45, citing Cleveland Trust Co. v. Willis , 20 Ohio St.3d 66, 67 (1985) (“It is well settled in Ohio that unans wered requests for admissions cause the matter requested to be conclusively established for the purpose of the suit * * *.”). Accordingly, this

admission would suffice to create a material dis pute of fact and make an award of summary judgment to the appellees inappropriate.6

{¶14} However, the defendants moved to amend Mr. Smith’s admissions after Mr. Heiland had filed his response to their motion for summary judgment, and th e trial court granted their request, removing Mr. Heiland’ s basis for demonstrating a disput e of material fact. It then simultaneously granted appellees’ motion for summ ary judgment without allowing Mr. Heiland a reasonable period of time to secure an expert to opine that Mr. Smith committed malpractice. While a court may allow a party to withdraw or amend their admissions, see Civ.R. 36(B), we agree that, under these circumstances, the trial co urt erred in allowing the amendment and then immediately awarding summary judgment. 2 {¶15} However, the appellees argue that we s hould affirm the trial court’s decision

because Mr. Heiland never raised the untimeliness of the response to the request for admission prior to summary judgment. However, Mr. Heiland did not have to object to the timeliness of the defendants’ response to his request for admissions; under Civ.R. 36(A)(1), they were automatically admitted. See Marusa v. Brunswick , 9th Dist. No. 04CA0038-M, 2005-Ohio1135, ¶ 20. It was up to the defendants to move to withdraw or amend their responses, which they did not do until after Mr. Heiland had f iled his response to their motion for summary judgment approximately six months later. {¶16} The appellees also argue that Mr. Heiland had no right to rely on the admissions given that they responded to the request at most six days after they were due. In support, they point to Kutscherousky v. Integrated Communications Solutions, LLC , 5th Dist. No. 2004 CA 00338, 2005-Ohio-4275. However, Kutscherousky is not analogous given that “the time frame for discovery had not expired and was not close to expiring; there was no response to the motion

2 We express no opinion as to the propriet y of the trial court allowing the amendment under Civ.R. 36(B) as a general matter, but addre ss Mr. Heiland’s argument that it was error to do so in the context of ruling on the appellees’ summary judgment motion.7

for summary judgment or any other action on the part of appellee in reliance upon the requests for admissions[.]” See id . at ¶ 23. By contrast, in this case, discovery had been closed for

months when the trial court allowed the defendants to amend Mr. Smith’s admissions. Furthermore, Mr. Heiland had relied on the admi ssions in opposing summary judgment. 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 opera te to his prejudice.” (Internal quotations and c itation omitted.) L.E. Sommer Kidron, Inc. , 2007-Ohio-885, at ¶ 53. “As [Mr. Heiland] followed the applicable civil rules, [he was] justified in relying upon [the defendants’] admi ssion and should not be prejudiced by that reliance.” Id

. {¶17} The trial court’s decision to grant the defendants’ motion to amend their admissions after Mr. Heiland had opposed summary judgment in reliance on the admissions was unreasonable, and its simultaneous award of summary judgment based upon the amended admissions was improper. Accordingly, Mr. Heil and’s first and second assignments of error are

sustained.

ASSIGNMENT OF ERROR III

THE FRAUDS PERPETRATED BY DEFENDANTS AND DEFENDANTS’ COUNSEL HAVE SO CORRUPTED THE PLAINTIFF’S LEGAL A DUE PROCESS RIGHTS, SERIOUSLY PREJUDICING APPELLANT-PLAINTIFF, THAT THE TRIAL COURT ERRED IN DETERMINING GRANTING SUMMARY JUDGMENT AS A MATTER OF LAW, DAMAGING THE JUDGMENT AND JURISDICTION OF THE COURT. {¶18} In Mr. Heiland’s third assignment of error, he argues that the trial court erred when it awarded summary judgment to the de fendants because the defendants had committed fraud. In light of our resolution of his first two as signments of error, this argument is moot, and, therefore, we decline to address it. See App.R. 12(A)(1)(c). Mr. Heiland also argues8

“Defendants’ Admissions should continue to be deemed admitted and summary judgment granted for [him.]” However, Mr. Heiland neve r filed a motion for summary judgment, and, thus, his third assignment of error is overruled in part.

III. {¶19} We sustain Mr. Heiland’s first and second assignments of error. Mr. Heiland’s third assignment of error is moot in part and overruled in part. The judgment of the Lorain County Court of Common Pleas is reversed in part, and the matter is remanded for further proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is 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 docum ent 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. 30.9

Costs taxed equally to both parties.

EVE V. BELFANCE FOR THE COURT

MOORE, P. J. CARR, J. CONCUR.

APPEARANCES: ERIC HEILAND, pro se, Appellant. NICHOLAS D. SATULLO and JAMES O’CONNOR, Attorneys at Law, for Appellees.