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

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

MARK CORWIN Plaintiff

- Appell ee

- vs HOLLY KIMBLE, et al. Defendants

- Appell ants 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

- Appell ee For Defendants

- Appell ants ELIZABETH E. OSORIO RANDALL E. WORTH BRIAN G. JONES 7500 Slate Ridge Blvd. THE LAW OFFICE of BRIAN JONES, LLC R eynoldsburg, Ohio 43068 52 North Sandusky Street Delaware, Ohio 4315Licking County, Case No. 22CA00002 2

Wise, J. {¶1} Defendants

- A ppella nts 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 histor y as set forth in the record are as follows: {¶3} On S eptember 24, 2 014, Holly Kimble and J e remy 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 rent al 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 Nove m ber 1, 2014, and the agreement automatically renewed on a month

- to

month basis upon the completion of the 1 2

- month obligation. {¶4} The Kimbles failed to p ay the rent for the months of February 2019, March 2019, and Ap ril 2019. The Ki mble s allege that Corwin agr e ed to forego rent in exchang e for the Kimbles' cooperation in moving out of the property. {¶5} In early M ay 2020, the Kimbles vacated the property. Corwin alleges t hat he di s covered substantial d amage to the property after inspection

. {¶6} On J une 19, 2020 , Cor win filed a Complaint in the Licking Count y Court of Common Pleas against the Kimbles a l leging that the Kimbl e s breached the rental agreement when they failed to pay rent and caused substantial damage to the property

.Licking County, Case No. 22CA00002 3

Corwin request ed damages in the amount of $19,510.16 plus interest and reasonabl e attorneys' fees. {¶7} On July 27, 2020, t he Ki m bles filed their A nswer denying that they owe unpaid rent or caused the alleged damage to the property. T he Kimbles also brought a counterclaim against Co rw in alleging a violation of R.C. § 5321.16, which require s 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 c ourt held a scheduling conference wi th counsel for the parties present. Pursuant to that conference, the trial c ourt issued a

sc heduling 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 Hig hview 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 Co rw in is due approximately $15,610.16 in d a mage to the property located at 126 South Highview Boulevard, Pataskala, Ohio 43062

. {¶13} T he requests for admissions designated t ha t responses were due twenty

e ight days after s e rvic e of the r e quest s, which would have been Nove m ber 19, 2 020. {¶14} O n 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 coun s el was advised that responses to discovery requests would not b e possible until after the Thanksgiving holiday due to the COVID

- 19
exposure. Appellee requested tha t the dates in the scheduling order be extende d ninety days to accommodate Appellants and account for the Covid

- 1 9 pandemic. {¶15} By Order filed January 11, 2021, t he trial c ourt granted Appellee 's motion and extended the scheduling order dates

. The deadline fo r completion of discovery was extended to February 22, 2021. {¶16} O n 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 ad d itional three to four months. A ppellants stated in their motion that Holly Kimble was sufferin g from medical conditions and complications. The trial c ourt granted the motion and extended the dates an additional three months. The deadline for completion of discovery was re - set for J une 2 2 , 2021. {¶17} On Aug u st 16 , 2021, approximately eight weeks after the rescheduled discovery deadline, Appellants filed another motion for continuance. Appellants assertedLicking County, Case No. 22CA00002 5

that Holly's medical conditions and complications and Jeremy's duties in the army prevente d them from meeti n g any of the scheduled dates. This time Appellants requested the scheduling order dates be postponed an additional s ix (6) mo n th s . The trial c ourt did not rule on this moti o n. {¶18} On September 1, 2021 , a final pretrial conference was held

. Duri n g the conference Appellee was granted leav e to file a motion fo r summary judgment. {¶19} O n September 7, 2021, Appellee filed his motion for summary judgment. {¶20} At the time Appellee filed his motion for summary jud gment , 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 fo r 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 m e ssages between himself and the
Kimbles' new landlord and a letter he se nt to the Kimbles to argue that he is entitled to summary judgment on Appellants’ counterclaim. {¶21} Appellee also argue d 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

cou n sel. {¶23} On October 12, 2021, Appellants filed a memorandum contra to Appellee 's motion for summ ary judgment. Appellants reiterate d that they were unable to reply toLicking County, Case No. 22CA00002 6

discovery requests because of Holly's medical condition and Jeremy's duties with the Ohio Army National Guard re n dering him unavailable for unspecified, extended periods of time. Appella nts 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 rep l y. {¶25} By Judgment Entry filed December 7, 2021, the trial court granted summary judgment in fa vor 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 admission s. {¶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 TRIA L 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 tri al court erred in finding Appellee’s requests for admissions were deemed admitted. We disagree. {¶31} Requests for Admissions are governed by Civ il R ule 36

. As it pertains to unanswered admissions, Civ.R. 36(A) state s, in pertinent part:

A party may serve upon a ny other party a writte n 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 cour t may allow party to whom the request is directed serves upon t he 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). A nd “ [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} Appellant s herein never requested and were never granted an extension of
time by the trial c ourt to respond to Appellee 's request s 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, 202 0

- 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 mo tion 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 there by 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. Dod ds (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. Blakemo re (1983) 5 Ohio St.3d 217, 450 N.E.2d 1140. {¶37} As explained by this C ourt 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 re quired 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

– 0 7

– 1362, 2008

– Ohio

– 1855. {¶39} First, there is the over arc hing 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.’ RKTLicking County, Case No. 22CA00002 10

Properties, supra at ¶ 12, citing Cleveland Trust, supra and Balson; See al so 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 respon ses 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. Appellant s did not respond to Appellee 's requests for admissions until September 9, 2 021 , 294 days or nine months and twenty

- one days after they were due

. B ecause Appellan ts fail e d 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 r equests 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 Ku tscherousky , 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} “ 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 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 A ppellee. 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 ma terial 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 o nly 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 const rued mostly strongly in theLicking 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 up on 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 summar y 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. , 6 7 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 stand ard used by the trial court. Smiddy v. The WeddingLicking 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 t rial 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 t hey 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 affi rmed.
By: Wise, J. Gwin , P. J., and Delaney , J., concur.

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