[Cite as Corwin v. Kimble, 2022-Ohio-3395.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

MARK CORWIN

Plaintiff-Appellee

-vsHOLLY KIMBLE, et al.

Defendants-Appellants

JUDGES:

Hon. W. Scott Gwin, P.J.

Hon. John W. Wise, J.

Hon. Patricia A. Delaney, J. 

Case No. 22CA00002

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 20CV00603

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 26, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

ELIZABETH E. OSORIO RANDALL E. WORTH

BRIAN G. JONES 7500 Slate Ridge Blvd.

THE LAW OFFICE of BRIAN JONES, LLC Reynoldsburg, Ohio 43068

52 North Sandusky Street

Delaware, Ohio 4315
Licking County, Case No. 22CA00002 2

Wise, J.

{¶1} Defendants-Appellants Holly Kimble and Jeremy Kimble appeal the 

December 7, 2021, decision of the Licking County Common Pleas Court granting 

summary judgment in favor of Plaintiff-Appellee Mark Corwin.

STATEMENT OF THE CASE AND FACTS

{¶2} The relevant facts and procedural history as set forth in the record are as 

follows:

{¶3} On September 24, 2014, Holly Kimble and Jeremy Kimble entered into a 

rental agreement with Mark Corwin to rent out Corwin's property located at 126 South 

Highview Boulevard, Pataskala, Ohio. Pursuant to the rental agreement, the Kimbles 

agreed to pay Corwin a security deposit of $1,350 and monthly payments of $1,350 until 

the total amount of $16,200 was paid in full for a 12-month lease. Monthly payments 

began on November 1, 2014, and the agreement automatically renewed on a month-tomonth basis upon the completion of the 12-month obligation.

{¶4} The Kimbles failed to pay the rent for the months of February 2019, March

2019, and April 2019. The Kimbles allege that Corwin agreed to forego rent in exchange

for the Kimbles' cooperation in moving out of the property. 

{¶5} In early May 2020, the Kimbles vacated the property. Corwin alleges that 

he discovered substantial damage to the property after inspection.

{¶6} On June 19, 2020, Corwin filed a Complaint in the Licking County Court of 

Common Pleas against the Kimbles alleging that the Kimbles breached the rental 

agreement when they failed to pay rent and caused substantial damage to the property. 
Licking County, Case No. 22CA00002 3

Corwin requested damages in the amount of $19,510.16 plus interest and reasonable 

attorneys' fees. 

{¶7} On July 27, 2020, the Kimbles filed their Answer denying that they owe 

unpaid rent or caused the alleged damage to the property. The Kimbles also brought a 

counterclaim against Corwin alleging a violation of R.C. §5321.16, which requires a 

landlord to itemize and identify any deduction from a security deposit in a written notice 

delivered to the tenant within thirty days after termination of the rental agreement. Corwin

denies this allegation.

{¶8} On September 22, 2020, the trial court held a scheduling conference with 

counsel for the parties present. Pursuant to that conference, the trial court issued a

scheduling order which set the deadline for completion of discovery as November 23, 

2020.

{¶9} On October 22, 2020, Corwin filed a Notice of Service of Discovery 

Requests. As part of the discovery requests, Corwin included Requests for Admissions 

stating:

{¶10} REQUEST NO. 1: Admit that Defendants Holly Kimble and Jeremy Kimble 

signed a Rental Agreement for tenancy of 126 South Highview Boulevard, Pataskala, 

Ohio 43062.

{¶11} REQUEST NO. 2: Admit that Plaintiff Mark Corwin is due approximately 

$3,900 in unpaid rent, late fees and interest as a result of the Rental Agreement for 126

South Highview Boulevard, Pataskala, Ohio 43062. 
Licking County, Case No. 22CA00002 4

{¶12} REQUEST NO. 3: Admit that Plaintiff Mark Corwin is due approximately

$15,610.16 in damage to the property located at 126 South Highview Boulevard, 

Pataskala, Ohio 43062.

{¶13} The requests for admissions designated that responses were due twentyeight days after service of the requests, which would have been November 19, 2020. 

{¶14} On November 30, 2020, Appellee Corwin filed a motion to amend the 

scheduling order. Appellee’s counsel stated that on November 17, 2020, he was notified 

that Appellants’ attorney was quarantining away from the office due to exposure to 

COVID-19. At that time, Appellee's counsel was advised that responses to discovery 

requests would not be possible until after the Thanksgiving holiday due to the COVID-19 

exposure. Appellee requested that the dates in the scheduling order be extended ninety 

days to accommodate Appellants and account for the Covid-19 pandemic.

{¶15} By Order filed January 11, 2021, the trial court granted Appellee's motion 

and extended the scheduling order dates. The deadline for completion of discovery was 

extended to February 22, 2021. 

{¶16} On March 15, 2021, twenty-one days after the discovery deadline had 

passed, Appellants filed a motion for continuance requesting that all dates be postponed 

an additional three to four months. Appellants stated in their motion that Holly Kimble was

suffering from medical conditions and complications. The trial court granted the motion 

and extended the dates an additional three months. The deadline for completion of 

discovery was re-set for June 22, 2021.

{¶17} On August 16, 2021, approximately eight weeks after the rescheduled 

discovery deadline, Appellants filed another motion for continuance. Appellants asserted 
Licking County, Case No. 22CA00002 5

that Holly's medical conditions and complications and Jeremy's duties in the army 

prevented them from meeting any of the scheduled dates. This time Appellants requested 

the scheduling order dates be postponed an additional six (6) months. The trial court did 

not rule on this motion. 

{¶18} On September 1, 2021, a final pretrial conference was held. During the 

conference Appellee was granted leave to file a motion for summary judgment. 

{¶19} On September 7, 2021, Appellee filed his motion for summary judgment. 

{¶20} At the time Appellee filed his motion for summary judgment, Appellants had 

still not responded to the requests for admissions. Because Appellants failed to respond 

to the requests for admissions, Appellee argues in his motion for summary judgment that 

the admissions must be deemed admitted. Appellee then goes on to rely on these 

admissions and other evidence, including the rental agreement, text messages between 

Appellee and Holly Kimble, and photographs of the rental property, to argue that he is 

entitled to summary judgment. He also relies on text messages between himself and the 

Kimbles' new landlord and a letter he sent to the Kimbles to argue that he is entitled to 

summary judgment on Appellants’ counterclaim.

{¶21} Appellee also argued that Appellants were liable for Appellee's attorney 

fees pursuant to Civ.R. 11.

{¶22} Two days after Appellee filed his motion for summary judgment, Appellants 

delivered by electronic mail their responses to the discovery requests to Appellee's

counsel. 

{¶23} On October 12, 2021, Appellants filed a memorandum contra to Appellee's

motion for summary judgment. Appellants reiterated that they were unable to reply to
Licking County, Case No. 22CA00002 6

discovery requests because of Holly's medical condition and Jeremy's duties with the

Ohio Army National Guard rendering him unavailable for unspecified, extended periods

of time. Appellants further argued that their specific denials to Appellee's damages 

allegations create a genuine issue of material fact. 

{¶24} On November 2, 2021, Appellee filed a reply.

{¶25} By Judgment Entry filed December 7, 2021, the trial court granted summary 

judgment in favor of Appellee. In its Judgment Entry, the trial court found that Appellee’s 

requests for admissions were admitted when Appellants failed to timely respond to 

Appellee’s requests, and that Appellants were not permitted to withdraw or amend their 

admissions.

{¶26} Appellants now appeal, raising the following assignments of error for review:

ASSIGNMENTS OF ERROR

{¶27} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY 

FINDING THAT APPELLEE'S REQUESTS FOR ADMISSION WERE ADMITTED WHEN

APPELLANTS "FAILED TO TIMELY RESPOND TO PLAINTIFF'S REQUESTS.

{¶28} “II. THE TRIAL COURT ERRED BY FINDING AS A MATTER OF LAW 

THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTS AND THAT APPELLANTS

BREACHED THE LEASE BY FAILING TO PAY RENT AND CAUSING DAMAGES TO 

THE PROPERTY.

{¶29} “III. THE TRIAL COURT ERRED BY FINDING THAT THE APPELLEES 

[sic] ADMITTED THAT APPELLANT [sic] IS DUE APPROXIMATELY $3,900.00 IN 

RENT, LATE FEES AND INTEREST AND $15,610.16 IN DAMAGES TO THE 

PROPERTY.”
Licking County, Case No. 22CA00002 7

I.

{¶30} In their first assignment of error, Appellants argue that the trial court erred 

in finding Appellee’s requests for admissions were deemed admitted. We disagree.

{¶31} Requests for Admissions are governed by Civil Rule 36. As it pertains to 

unanswered admissions, Civ.R. 36(A) states, in pertinent part:

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 Civ.R. 26(B) set forth in the request that relate to statements 

or opinions of fact or of the application of law to fact, ...

* * *

(1) ... 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 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.

{¶32} Thus, failure to timely respond or to respond at all will result in the requested 

matter being deemed admitted. Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 

N.E.2d 1052 (1985). “Any matter admitted under Civ.R. 36 is conclusively established 

unless the court on motion permits withdrawal or amendment of the admission.” Id., citing 

Civ.R. 36(B). And “[a] request for admission can be used to establish a fact, even if it

goes to the heart of the case.” Cleveland Trust at 67.
Licking County, Case No. 22CA00002 8

{¶33} Appellants herein never requested and were never granted an extension of 

time by the trial court to respond to Appellee's requests for admissions. Appellants admit 

in their brief that they never specifically asked for an extension of time to respond to the

requests for admissions. (Appellants’ brief at 12). 

{¶34} However, Civ.R. 36 does not specify that a formal motion is required nor 

does the rule identify a time when the motion must be filed. Balson v. Dodds, 62 Ohio 

St.2d 287, 290, 405 N.E.2d 293 (1980), fn. 2. Courts have accepted, absent a written or 

oral motion to withdraw, various challenges to the truth of an admission as implicit motions 

to withdraw. C.S.J. v. S.E.J., 8th Dist. Cuyahoga No. 108390, 2020-Ohio-492, ¶ 12; See 

Balson at fn. 2 (contesting the truth of admissions serves as evidence of a motion to 

withdraw the admissions).

{¶35} Civ.R. 36 (B) states the following:

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.
Licking County, Case No. 22CA00002 9

{¶36} 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, 405 N.E.2d 293; 

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, 450 N.E.2d 1140.

{¶37} As explained by this Court in Bush v. Eckman, Licking App. No. 07CA0115, 

2008–Ohio–5080, ¶ 23:

{¶38} “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, 162 Ohio App.3d 590, 834 N.E.2d 393; 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. 

{¶39} First, there is the overarching 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 Trust 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 
Licking County, Case No. 22CA00002 10

Properties, supra at ¶ 12, citing Cleveland Trust, supra and Balson; See also Himes v. 

Smith, 5th Dist. Stark No. 2011CA00086, 2012-Ohio-184, ¶¶ 10-17

{¶40} Here, the requested matter was deemed admitted and conclusively 

established when Appellants failed to timely respond to the requests for admissions. 

Appellee designated that responses to his requests for admissions were due twenty-eight 

days after service of the requests. Appellee sent his requests via electronic mail service 

on October 22, 2020. Thus, responses were due on November 19, 2020. Appellants did 

not respond to Appellee's requests for admissions until September 9, 2021, 294 days or 

nine months and twenty-one days after they were due. Because Appellants failed to timely 

respond to Appellee’s requests for admissions they were automatically deemed admitted.

{¶41} Unlike the facts in this case, in Kutscherousky, supra, “the time frame for 

discovery had not expired and was not close to expiring; there was no response to the 

motion 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 almost ten (10) months, and Appellant did not deny the admissions until 

after Appellee relied upon such admission in his motion for summary judgment.

{¶42} In Kutscherousky, supra, this Court held that there must be a point after 

which the party who gained the admissions has the right to rely on them. What amount of 

time is “reasonable” varies on a case-by-case basis.

{¶43} “While 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.” (Internal quotations and citation omitted.) L.E. 
Licking County, Case No. 22CA00002 11

Sommer Kidron, Inc., 2007–Ohio–885, at ¶ 53; See also, Heiland v. Smith, 9th Dist. Lorain 

No. 11CA010137, 2013-Ohio-134, ¶¶ 16-17.

{¶44} Here, Appellee followed the applicable civil rules and was justified in relying 

upon Appellants’ admission and should not be prejudiced by that reliance.

{¶45} Upon review of the record, we find that the trial court did not err or abuse its 

discretion in deeming the requests for admissions admitted.

{¶46} Appellants’ first assignment of error is overruled.

II.

{¶47} In their second assignment of error, Appellants argue that the trial court 

erred in granting summary judgment in favor of Appellee. We disagree.

Summary Judgment Standard of Review

{¶48} Civ.R. 56 states in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely filed in 

the action, show that there is no genuine issue of material fact and that the 

moving party is entitled to judgment as a matter of law. No evidence or 

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or 

stipulation, and only from the evidence or stipulation, 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, that party being 

entitled to have the evidence or stipulation construed mostly strongly in the 
Licking County, Case No. 22CA00002 12

party's favor. A summary judgment, interlocutory in character, may be 

rendered on the issue of liability alone although there is a genuine issue as 

to the amount of damages.

{¶49} The party moving for summary judgment bears the initial burden of 

informing the trial court of the basis of the motion and identifying the portions of the record 

which demonstrate the absence of a genuine issue of fact on a material element of the 

non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). 

Once the moving party meets its initial burden, the burden shifts to the nonmoving party 

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but 

instead must submit some evidentiary materials showing a genuine dispute over material 

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791(12th Dist.1991).

{¶50} A trial court should not enter a summary judgment if it appears a material 

fact is genuinely disputed, nor if, construing the allegations most favorably towards the 

non-moving party, reasonable minds could draw different conclusions from the 

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 

(1981). The court may not resolve any ambiguities in the evidence presented. Inland 

Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 

271 (1984). A fact is material if it affects the outcome of the case under the applicable 

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 

1186 (6th Dist.1999).

{¶51} When reviewing a trial court's decision to grant summary judgment, an 

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding 
Licking County, Case No. 22CA00002 13

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter 

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).

{¶52} In the case sub judice, Appellants argue that the trial court erred in finding 

that they breached the lease by failing to pay rent and causing damages to the property.

{¶53} As set forth above, through the unanswered requests for admissions, 

Appellants admitted that they owed $3,900.00 in unpaid rent, and that they owed Appellee 

$15,610.16 for damages caused to the property.

{¶54} In Ohio, “unanswered requests for admissions render the matter requested

conclusively established * * * and a motion for summary judgment may be based on such 

admitted matter.” (Citations omitted.) Jade Sterling Steel Co. v. Stacey, 8th Dist. 

Cuyahoga No. 88283, 2007-Ohio-532, 2007 WL 416697, ¶ 11. The failure to respond to 

the request satisfies the Civ.R. 56 written answer requirement, and also serves as a 

“conclusive admission pursuant to Civ.R. 36.” Id.; Riddick v. Taylor, 8th Dist. No. 105603, 

2018-Ohio-171, 105 N.E.3d 446, ¶ 29.

{¶55} In light of the above, the trial court did not err or abuse its discretion in 

relying on those admissions or other evidence in granting summary judgment.

{¶56} Appellants’ second assignment of error is overruled. 

III.

{¶57} In their third assignment of error, Appellants argue that the trial court erred 

in finding that Appellants admitted damages in this matter. We disagree.

{¶58} For the same reasons as set forth in Assignments of Error I and II, we find 

Appellants’ third assignment of error not well-taken and hereby overrule same.
Licking County, Case No. 22CA00002 14

{¶59} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Licking County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

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