{¶ 1} Plаintiff-appellant, The Illuminating Company (“IC”), appeals from a common pleas court order granting summary judgment for defendant-appellee, Riverside Racquet Club, Ltd., on the ground that IC’s claims were barred by res judicata. Riverside has cross-appealed the court’s denial of its motion to deem facts admitted. For the following reasons, we find that genuine issues of material fact precluded the common pleas court from entering summary judgment for Riverside on IC’s complaint. Accordingly, we reverse and rеmand for further proceedings. However, we find that the court did not abuse its discretion by denying Riverside’s motion to deem facts admitted, and we therefore overrule its cross-аssignment of error.
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2}
IC filed its complaint on October 31, 2003, and amended it on January 7, 2004 after the court granted Riverside’s motion for a more definite statement. IC claimed that it supрlied electrical service to 15381 Royalton Road, Strongs-ville, Ohio, from August 1, 1997 to January 5, 2001 pursuant to an account established in the name of River Run Racquet Club, a trade name of Riverside. IC averred that the trade name was cancelled by operation of law on December
{¶ 3} Riverside moved the court to deem certain matters admitted on the ground that IC had failed to respond to its request for admissions in a timely manner. Four days later, IC filed a response indicating that it had supplied responses to Riverside. The court then denied Riverside’s motion.
{¶ 4} Riverside moved for summary judgment on April 5, 2004. It asserted that IC had obtained a judgment in the amount of $22,935.29 against River Run Racquet Club, Ltd. on October 17, 2001 for electrical services provided to the same property during the same time period involved in the present сase. Riverside claimed that the judgment was res judicata with respect to any claims IC might have against Riverside. In support of this argument, Riverside attached a copy оf the complaint filed in the prior case as well as the default judgment entered against River Run Racquet Club. IC responded, arguing that Riverside was not a party to the prior action, so res judicata is not applicable. The trial court granted summary judgment for Riverside.
{¶ 5} IC now argues that genuine issues of material fact precluded the court from entering summary judgment for Riverside. It argues that there was no privity as between River Run and Riverside, and, therefore, the prior judgment against River Run should not bar its present claim against Rivеrside. Alternatively, it argues that the judgment against River Run was void because River Run does not exist, and a void judgment cannot be res judicata. Finally, it asserts that strict application of the doctrine of res judicata would work an injustice. Riverside responds that it was in privity with River Run and that the prior judgment against River Run arose out of the same transactions аs the present case.
{¶ 6} We review de novo a trial court order granting summary judgment.
Bonacorsi v. Wheeling & Lake Erie Ry. Co.,
{¶ 8} There is, however, evidence that several months after the account was established, on December 20, 1977, “River Run Racquеt Club” was registered as a trade name of Riverside. This trade name registration was cancelled by operation of law on December 28, 1992. The name on IC’s account was not changed, although there is no evidence whether Riverside otherwise continued to use the name River Run Racquet Club after the cancellation of the tradе name registration.
{¶ 9} The evidence does not disclose who owned the property at the time this account was established in 1977, or what relationship River Run or Riverside may have had to it between August 1977 and September 1998. There is evidence that Riverside became the owner of the property in September 1998 and sold it in 2002.
{¶ 10} When the true legal status of a defendant is unknown, it can be properly sued and served with a complaint that identifies it only by a fictitious name, even if that name is not registered as a trade namе. R.C. 1329.10;
Family Medicine Found., Inc. v. Bright,
{¶ 11} Here, it is not clear whether IC knew that River Run Racquet Club was a fictitious name or that Riverside was the user of that name at the time it filed its prior complaint. If it did not, then the default judgment was a valid default judgment against Riverside. 2
{¶ 13} Accordingly, genuine issues of material fact preсluded judgment for either party on the question whether the prior judgment was res judicata here, and the court erred by entering judgment for Riverside.
{¶ 14} Riverside’s cross-appeal asserts that the court erred by denying its motion to deem matters admitted. Pursuant to Civ.R. 36(A), the matter which is the subject of a request for admission “is admitted unless, within a period designated in the requеst, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the рarty requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney.” Thus, the matters requested were admitted as soоn as IC failed to respond; no court order was needed.
{¶ 15} Civ.R. 36(B) provides that “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. * * * [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtаined the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits.” Based upon this provision, the court could allow IC to avoid the conclusive effect of its failure to timely respond to the request for admissions if presentation of the merits would be enhanced and Rivеrside failed to demonstrate that it would be prejudiced.
Balson v. Dodds
(1980),
{¶ 16} In this сase, the trial court did not abuse its discretion by allowing IC to withdraw its admissions and respond to Riverside’s requests. The respons
The judgment is reversed, and the cause is remanded for further proceedings.
Judgment accordingly.