2019 Ohio 2395
Ohio Ct. App.2019Background
- Sylvia Ezzo owned a property; her son Nicholas lived in a cottage there since 2004. Sylvia later added her other two children, Thomas and Deborah, to the survivorship deed in 2010.
- Plaintiffs (Sylvia, Thomas, Deborah) sued Nicholas for forcible entry and detainer in 2016, alleging an oral permission-to-reside arrangement and unpaid rent; Nicholas counterclaimed for specific performance of an alleged sale contract and sought to enjoin transfers.
- Nicholas served requests for admissions; Sylvia failed to timely respond. She later filed late responses roughly three months after service. Nicholas moved for summary judgment based on deemed admissions; the trial court denied the motion.
- At an earlier injunction hearing (Feb. 1, 2017), Sylvia testified; Nicholas did not cross-examine her. At bench trial (May 23, 2018) Sylvia did not appear; the court received the transcript of her prior testimony and entered judgment for plaintiffs on the eviction and against Nicholas’s specific performance claim.
- Trial court found no written contract and that payments by Nicholas did not constitute partial performance or promissory estoppel sufficient to overcome the Statute of Frauds.
- On appeal, the court affirmed the summary judgment denial but reversed and remanded because admission of Sylvia’s prior testimony without cross-examination violated Evid.R. 804(B)(1) and Nicholas’s confrontation rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying Nicholas’s motion for summary judgment based on Sylvia’s untimely requests-for-admissions responses | Sylvia’s late responses should be accepted; permitting withdrawal serves presentation of the merits and causes no prejudice | Untimely responses operate as admissions under Civ.R. 36(A) and therefore establish facts entitling Nicholas to summary judgment | Trial court did not abuse discretion: late responses effectively withdrew admissions under Civ.R. 36(B); genuine issues of material fact remained, so summary judgment denial affirmed |
| Whether the court could admit Sylvia’s prior (injunction‑hearing) testimony at trial without Nicholas having had an opportunity to cross‑examine | Admission was harmless because Nicholas offered similar evidence (an affidavit and a transcript) at trial | Admission violated Evid.R. 804(B)(1) and deprived Nicholas of his right to cross-examine, so it was prejudicial | Admission was prejudicial error: prior testimony admitted without opportunity to cross-examine violated the rule and due process; judgment reversed as to admissibility and case remanded for retrial |
Key Cases Cited
- Balson v. Dodds, 62 Ohio St.2d 287 (Ohio 1980) (trial court may permit withdrawal of deemed admissions under Civ.R. 36(B) to allow adjudication on the merits)
- Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66 (Ohio 1985) (courts may allow untimely replies under compelling circumstances to avoid admissions)
- Burkhart v. H.J. Heinz Co., 140 Ohio St.3d 429 (Ohio 2014) (Evid.R. 804(B)(1) bars admission of former testimony when opposing party had no opportunity to examine declarant)
- Glimcher v. Doppelt, 5 Ohio App.2d 269 (Ohio App. 1966) (denial of opportunity to cross-examine adverse witnesses can require remand for new hearing)