ANGELA CRESPO v. RANDAL A. HARVEY, ESQ., et al.
Appellate Case No. 25861
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 25, 2014
2014-Ohio-1755
Trial Court Case No. 2011-CV-1701; (Civil Appeal from Common Pleas Court)
Rendered on the 25th day of April, 2014.
ALFRED SCHNEBLE, Atty. Reg. No. 30741, 11 West Monument Avenue, Suite 402, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
NEIL FREUND, Atty. Reg. No. 12183, SHANNON BOCKELMAN, Atty. Reg. No. 82590, 1 South Main Street, Suite 1800, Dayton, Ohio 45402
Attorneys for Defendant-Appellee
WRIGHT, J.
{¶ 2} The facts of this case have been discussed in a previous opinion issued by the court. See Crespo v. Harvey, 2d Dist. Montgomery No. 25236, 2012-Ohio-5312. Nevertheless, pertinent to the issue of this appeal is the following. In 2009, Crespo financed a purchase of a home in part with a loan from her mother. Crespo granted a mortgage to her mother which was recorded. Shortly thereafter, Crespo met with Harvey to inquire about filing for Chapter 7 bankruptcy. According to Crespo, she told Harvey that if she filed for bankruptcy her number one priority was to keep the house. Shortly after the meeting, Crespo filed a petition for bankruptcy listing her house as an asset. Because her mortgage to her mother was less than a year old, the bankruptcy court treated it as a voidable preferential transfer of property. The trustee in bankruptcy ultimately sold Crespo‘s home to satisfy her debts.
{¶ 3} Crespo then instituted the present malpractice action against Harvey alleging that he did not explain preferential avoidances to her when she petitioned for bankruptcy. Because of this alleged negligent conduct, Crespo claimed she suffered damages namely in the loss of equity in her house and other various associated expenses with moving. Harvey
{¶ 4} On May 1, 2013, Harvey served a request for admissions on Crespo‘s attorney. The request for admissions asked Crespo to admit that: (1) she was not able to calculate an exact figure for the damages, (2) the reason she was not able to calculate her damages is because those damages are too speculative, (3) she suffered no economic damages in relation to her move from her house over and above the amount of the statutory exemption she received in her bankruptcy case and the amount of debt which was discharged by the bankruptcy court, (4) appellees’ actions were not the proximate cause of her alleged relocation expenses from her move, and (5) Harvey did not breach any applicable standard of care relative to the handling of her bankruptcy filing. Crespo did not respond within the 28 days as required by
{¶ 5} As her sole assignment of error, Crespo alleges that:
The trial court erred by granting appellees summary judgment based on deemed admissions and denying appellant‘s motion for leave to file her answers to admissions out of time. Because her untimely answers would have subserved the presentation of the merits of her case, she provided a compelling or substantial reason for her noncompliance. Appellees failed to offer any evidence that granting Appellant‘s motion would prejudice them in maintaining their defense on the merits.
{¶ 6} We review a grant of summary judgment de novo, which means “we apply the standards used by the trial court.” Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E. 2d 116 (2d Dist. 2000). Summary judgment is appropriate when a trial court correctly finds:
“(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E. 2d 46 (1978). In a legal malpractice action, such as this one, the plaintiff bears the burden of demonstrating “(1) an attorney-client relationship giving rise to a duty, (2) a breach of that duty, and (3) damages proximately caused by the breach.” Vahila v. Hall, 77 Ohio St. 3d 421, 424, 674 N.E. 2d 1164 (1997) (quotation omitted).
{¶ 7} As a preliminary matter, Crespo alleges that her admissions should be weighed against other evidence in the record. In general, admissions are statements that are weighed against all other evidence. “Whereas stipulations remove an issue from the litigation, evidentiary admissions must still be weighed against contradictory statements and can be explained away by a party.” McLeod v. McLeod, 11th Dist. Ashtabula No. 2012-A-0030, 2013-Ohio-4546, ¶ 32. However,
{¶ 8} Under
Subject to the provisions of
Rule 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.
{¶ 9} Motions to withdraw admissions are reviewed for an abuse of discretion.
{¶ 10} There is a two-prong test for determining whether a trial court may allow a withdrawal or an amendment to a previous admission. Under the first prong, the party seeking to amend or withdraw the admission must show that doing so would aid in presenting the merits of the case. Kutscherousky v. Integrated Communs. Solutions, LLC, 5th Dist. Stark No. 2004 CA 00338, 2005-Ohio-4275, ¶ 19. Once that prong is met, the responding party must show that prejudice would result if the admissions were withdrawn or amended. Balson v. Dodds, 62 Ohio St. 2d 287, 405 N.E.2d 293 (1980), paragraph two of the syllabus. Additionally, we have adopted the rule that there must be compelling circumstances to excuse the movant‘s reason for not timely responding to the requested admissions. Bd. of County Commrs v. Stewart, 2d Dist. Clark No. 09-CA-104, 2010-Ohio-5290, ¶ 34. Though we have not previously defined or detailed what constitutes compelling circumstances, in Stewart, we concluded that the “lack of evidentiary materials submitted in connection with the response to summary judgment, and the lack of any real excuse for failing to file timely responses to the request for admissions” was insufficient to constitute compelling circumstances Id., ¶ 36.
{¶ 11} We first note that
{¶ 12} We next consider whether Harvey will be prejudiced if the objections are permitted to be withdrawn. Harvey points to two possible means of prejudice. First, he contends that his motion for summary judgment relied upon the admissions and secondly, he contends that he has been unable to acquire calculable damages from Crespo. The first argument can be dispensed with easily. Preparing a motion for summary judgment on which the admissions are based is generally not seen as prejudice within the meaning of
{¶ 13} We are also not persuaded by Harvey‘s damages argument. The Civil Rules of Procedure provide an avenue for settling discovery disputes with obstructionist parties. See
{¶ 14} The final issue is whether there were compelling circumstances. Moving during the course of litigation could be a compelling circumstance as the documents needed to answer the request may not be available to party. On the other hand, based on this particular request for admissions, her complaint, the various depositions, and a previous judgment by this court, Crespo should have been able to deny the admissions without referring to any documents. Her claims that she had to search through her documents to determine her answer to the complaint are plainly insincere. At the very least, her attorney could have filed a request for an extension of time to reply. Cleveland Trust Co. v. Willis, 20 Ohio St. 3d 66, 68, 485 N.E.2d 1052 (1985). Accordingly, it is difficult to see how Crespo did not have a moment within the 28-day window to respond or request an extension.
{¶ 15} Nevertheless, we now conclude that our previous holding requiring compelling circumstances to withdraw deemed admissions was misplaced. We make this conclusion for the following reasons.
{¶ 16} First, there is no textual basis for requiring the movant to provide compelling circumstances for why he or she failed to meet the deadline within
{¶ 17} Second, Cleveland Trust Co. v. Willis, 20 Ohio St. 3d 66, 485 N.E.2d 1052 (1985) does not require a movant to demonstrate compelling circumstances. The compelling circumstance prong arises from the following paragraph in Willis:
Civ.R. 36 requires that when requests for admissions are filed by a party, the opposing party must timely respond either by objection or answer. Failure to respond at all to the requests will result in the requests becoming admissions. Under compelling circumstances, the court may allow untimely replies to avoid the admissions. Id. at 67.
{¶ 18} The quoted passage does not indicate what the trial court may do in instances where there were not compelling circumstances, nor does the Supreme Court define what constitutes compelling circumstances. Furthermore, the analysis used in Willis suggests that the passage should be treated as dicta. In Willis, similarly to our case, the plaintiff-appellant missed the deadline to respond to admissions; as a result, the trial court determined that the matters sought to be admitted were conclusively established. Id. at 66. In affirming, the Ohio Supreme Court noted that appellant‘s alleged illness did not provide a compelling justification for missing the deadline. Id. at 68. However, the court also focused on the prejudice appellee would endure if the appellant‘s admissions were withdrawn. Id. at 68. Specifically, the response to the request for admissions came on the first day of trial and therefore would have clearly prejudiced appellee‘s strategy. Id. The court‘s opinion therefore was based on the prejudice the appellee would endure that justified affirming the lower court.
{¶ 19} Third, federal courts applying
{¶ 20} The district courts of appeals have had two responses to Willis. The majority of the districts that have been confronted with the issue have determined the movant must demonstrate compelling circumstances to withdraw his or her admissions. See Garrick v. Greater Cleveland Reg. Trans. Auth., 8th Dist. Cuyahoga No. 99547, 2013-Ohio-5029, ¶ 14; Whitehouse v. Customer Is Everything! Ltd., 11th Dist. Lake No. 2007-L-069, 2007-Ohio-6963, ¶ 34; Farah v. Chatman, 10th Dist. Franklin No. 06AP-502, 2007-Ohio-697,
{¶ 21} We disagree with both approaches. Simply,
{¶ 22} Accordingly, the sole assignment of error has merit.
{¶ 23} For the reasons discussed above, the judgment of the Montgomery County Court of Common Pleas is hereby reversed and remanded for further proceedings.
FROELICH, P.J., concurring:
{¶ 24} The relevant time line in this case is:
In summary:
| March 18, 2013 | Previous trial date continued and May 16 set for scheduling |
| May 1, 2013 | Requests for Admissions served on Plaintiff |
| May 16, 2013 | Scheduling Conference setting December 13 as the last date for summary judgment motions and trial for March 13 |
| May 29, 2013 | Plaintiff‘s Responses to Requests Due |
| June 6, 2013 | Defendants’ Motion for Summary Judgment relying on unresponded-to Requests for Admissions |
| June 11, 2013 | Plaintiff‘s Request for Additional Ten (10) Days |
| June 14, 2013 | Defendants’ Opposition Memo |
| July 1, 2013 | Trial Court‘s denial of June 11 Motion |
| July 31, 2013 | Decision granting Motion for Summary Judgment |
| March 13, 2014 | Scheduled trial date |
{¶ 25} The Requests for Admissions were filed May 1 and the Motion for Summary Judgment (based on the deemed admissions) was filed June 6; in the interim, the court had convened a pretrial and scheduled trial for March 13, 2014. The plaintiff filed its request on June 11, less than two weeks after Responses were due, less than a week after defendants’ Motion for Summary Judgment, and nine months before the scheduled trial.
{¶ 26} The Civil Rules are to “be construed and applied to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice.”
{¶ 27} The deemed-admitted consequence is not a “gotcha” for the minimally dilatory when it resolves the litigation in a manner completely prejudicial to one side without any prejudice to the other. I would not eliminate the compelling circumstance consideration, but rather find that it must be interpreted in this context.
FAIN, J., concurring:
{¶ 28} I agree with Judge Wright, in his opinion for the court, that “compelling” circumstances, in the sense of circumstances presenting an unusually forceful justification for a party‘s failure to have timely responded to a request for admissions, is not a requirement of
{¶ 29}
{¶ 30} Once the prerequisites have been satisfied, and the trial court has discretion, the sound exercise of that discretion requires a consideration of the culpability of the negligent party (in having failed to respond timely to the request for admissions) in comparison with the inconvenience to the trial court and to the adverse party or parties if the deemed admissions are modified or withdrawn. If the culpability of the negligent party is great, perhaps because the party has demonstrated a pattern of indifference to discovery and to orders of the court, and the inconvenience to the trial court and to the adverse parties is great, perhaps because the trial date is imminent and the adverse parties and the trial court have prepared for trial, then the sound exercise of discretion would lead a reasonable trial court to overrule a motion to modify or withdraw deemed admissions. Conversely, if both the culpability of the negligent party and the inconvenience to the trial court and the adverse parties are slight, then the sound exercise of discretion would lead a reasonable trial court to sustain the motion.
{¶ 31} Obviously, there will be cases lying somewhere midway between these extremes, in which a reasonable trial court, exercising its sound discretion, could either sustain or overrule the motion. But the case before us appears to me to lie near the extremes of slight
{¶ 32} In the circumstances of this case, I conclude that the sound exercise of the trial court‘s discretion requires the sustaining of Crespo‘s motion to withdraw her deemed admissions. Therefore, I concur.
(Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Alfred Schneble
Neil Freund
Shannon Bockelman
Hon. Dennis J. Adkins