IN THE MATTER OF: ESTATE OF JOYCE LEICHMAN
CASE NOS. CA2015-07-060, CA2015-07-062
IN THE COURT OF APPEALS, TWELFTH APPELLATE DISTRICT OF OHIO, WARREN COUNTY
6/27/2016
2016-Ohio-4592
S. POWELL, J.
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS, PROBATE DIVISION, Case No. 2012EST1436; Georgianna Parisi, 257 Regency Ridge Drive, Dayton, Ohio 45459, appellant, pro se; Tyrone P. Borger, 24 Remick Boulevard, Springboro, Ohio 45066, for appellee
S. POWELL, J.
{¶ 1} Petitioner-appellant, Georgianna I. Parisi, the former attorney for the estates of Joyce and Richard Leichman, appeals from the decision of the Warren County Court of Common Pleas, Probate Division, denying her application for attorney fees. For the reasons outlined below, we affirm.
{¶ 2} Respondent-appellee, Lori Horstman, retained Parisi to represent the estates of her parents, Joyce and Richard Leichman, who passed away on November 13, 2010 and January 27, 2011, respectively. The sole asset of each estate was 308 shares of J.C.
{¶ 3} On December 3, 2013, several months after withdrawing as counsel, Parisi filed an application for attorney fees requesting an additional $2,550.76 from Horstman for work she claims to have done on the Leichman estates. However, the administration of the Leichman estates was later closed without any ruling on Parisi‘s application and without any additional attorney fees being paid to Parisi. As a result, on September 19, 2014, Parisi filed a motion to reopen the Leichman estates and requested a hearing on her application for attorney fees. As Parisi stated in her motion, “[s]ince it is apparent that [Horstman] has repudiated the original agreement, Ms. Parisi respectfully requests the Court to hold a full hearing on the attorney fees originally requested.” Because Horstman denied that the Leichman estates owed any additional money to Parisi, the trial court scheduled a contested hearing on that single issue for October 27, 2014. At Parisi‘s request, the contested hearing was then continued several times before ultimately taking place on April 16, 2015.
{¶ 4} On April 8, 2015, eight days before the contested hearing was scheduled to begin, Parisi filed a notice with the trial court claiming she had previously submitted discovery requests to Horstman on February 24, 2015 that included various interrogatories, requests for certain documents, and requests for admissions. Parisi did not attach a copy of her alleged discovery requests to this filing. Nevertheless, as part of later filings with the trial court, Parisi claims her discovery requests included a request that Horstman admit the Leichman estates owed her an additional “$808.59 for her legal services provided to the Estate of Richard Leichman and $1,742.17 for her legal services to the Estate of Joyce
{¶ 5} On April 16, 2015, the trial court held the previously scheduled hearing on Parisi‘s application for attorney fees. The record on appeal contains only a partial transcript of this hearing. However, the record indicates the trial court heard testimony from both Parisi and Horstman at this hearing, as well as from Parisi‘s expert witness, Konrad Kuczak, an attorney who has been licensed to practice law in Ohio since 1969. During this hearing, Kuczak specifically testified that he reviewed “the requests for admissions that are admitted as a matter of law that you alluded to in your, uh, opening statement.” It does not appear that the alleged admissions were ever admitted as an exhibit at the contested hearing. Rather, on May 15, 2015, one month after the contested hearing had concluded, Parisi filed a “Notice of Admissions Deemed Admitted.” Attached to this notice, Parisi included an “Exhibit A” that consisted of a one-page document listing Parisi‘s purported requests for admissions. The document does not contain a certificate of service.
{¶ 6} On June 2, 2015, the probate court issued its decision denying Parisi‘s application for attorney fees. As part of that decision, the trial court provided the following findings of fact:
- [Horstman] retained [Parisi] to represent the estates of her parents, Richard Leichman and Joyce Leichman.
- The sole asset in each estate was 308 shares of J.C. Penney stock, with a date of death value of $9,588.04.
- [Horstman] paid [Parisi] the sum of $500.00 as a retainer.
- [Parisi] advised [Horstman] that the estates could not be released from administration because the decedents’ wills named [Horstman] and one of her siblings co-executors.
- Upon the filing of each estate and application to probate will, the co-executor, the brother of [Horstman], executed a declination, thereby naming [Horstman] as the sole executor.
- In addition to the retainer, [Horstman] paid [Parisi] additional monies for postage and other expenses; however, there was no testimony as to the amount of such payments.
- On one occasion, while [Horstman] was attending her daughter‘s Saturday morning ball game, [Parisi] telephoned [Horstman] demanding money and that [Horstman] must bring it to her office by Noon that day. [Horstman] left her daughter‘s game and went to [Parisi‘s] office and paid the money. There was no testimony as to the amount paid by [Horstman].
- The Inventory filed in each estate by [Parisi] named the aforementioned J.C. Penney stock, and its date of death value, as the only asset of the estate.
- The decedents had amassed credit card debt as a way of paying medical and other expenses. [Parisi] advised [Horstman] to correspond directly with the credit card companies to resolve the debt. On the back of an envelope, [Parisi] hand-drafted a form letter for [Horstman] to use. [Horstman] prepared and sent the letters, and was able to resolve the credit card debt without further assistance of [Parisi].1
- As to the transfer of J.C. Penney stock, [Parisi] advised [Horstman] to sell the stock and have the cashier‘s check made payable to [Parisi]; she would then pay the rest of her costs and expenses and issue a check to [Horstman] for the remainder. At this time, [Horstman] became suspicious of [Parisi‘s] intentions. It was subsequent to this that [Horstman] terminated [Parisi‘s] services.
- [Horstman] testified at trial, when examining the bill statements offered by [Parisi] in her case, that the billing statements offered as exhibits looked different than the billing statements actually received by [Horstman] from [Parisi]. [Parisi] denied this in her testimony.
- [Horstman] testified that one entry on the billing statement was for a telephone call from [Parisi] to the husband of [Horstman]. [Horstman], as well as her husband, testified that the purpose of the phone call was [Parisi] requesting from [Horstman‘s] husband free tickets to a sporting or other type of entertainment event.
[Parisi] applied to have her law license placed on inactive status, and the application was granted effective September 1, 2013. On September 12, 2013, she withdrew as counsel for the aforementioned estates. - On or about December 2, 2013, [Horstman] retained substitute counsel, who completed both estates for a fee of $500.00.
- On December 3, 2013, [Parisi] submitted to this Court her fee agreement, as well as a request for additional attorney fees. As to the Estate of Joyce Leichman, she requested the sum of $1,742.17; as to the Estate of Richard Leichman the sum of $808.59.2
- [Horstman] refused to pay any additional attorney fees to [Parisi].
{¶ 7} After listing these factual findings, the trial court determined that the Leichman estates have “more than fulfilled any financial obligation” they had with Parisi. In so holding, the trial court noted that it “had the benefit of testimony and exhibits” presented at the hearing and pursuant to its local rules:
[Parisi], had she completed the work, would be entitled to a total of $958.80. [Horstman] paid a retainer of $500.00, which would result in a balance due of $458.80. This money would be due and owing [Parisi] had she completed her work for [Horstman], pursuant to her fee agreement. But she did not do so.
The trial court also noted that there was nothing in the record to indicate Parisi‘s alleged discovery requests were ever actually served upon Horstman. Yet, even if those discovery requests were properly served, the trial court determined that Parisi‘s discovery requests, particularly that of her requests for admissions, “goes to the sole issue, the very core, of this case,” the use of which was “inappropriate and served no useful purpose other than to harass and annoy [Horstman]” since that exact issue had already been scheduled for a
{¶ 8} Parisi now appeals the trial court‘s decision, raising three assignments of error for review.
Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN THAT ITS ORDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN THAT THE PETITIONER-APPELLANT ASKED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND THE COURT NEVER MENTIONED THE EXPERT WITNESS TESTIMONY PRESENTED.
{¶ 10} In her first assignment of error, Parisi argues the trial court‘s decision to deny her application for attorney fees was against the manifest weight of the evidence since the trial court “never once mentions” the testimony of her expert witness, Konrad Kuczak, within its decision. According to Parisi, “[t]he failure of the Court to even note the testimony of [her expert] in its findings or facts or in the conclusions of law is a plain error under the law.” We disagree.
{¶ 11} “The standard of review for a manifest weight challenge in a civil case is the same as that applied to a criminal case.” Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. In considering a manifest weight challenge, a reviewing court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial ordered. Hacker v. House, 12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. A judgment will not be reversed as being against the manifest weight of the evidence where the “judgment is supported by some competent, credible evidence going to all essential elements of the case.” Ashburn v. Roth, 12th Dist. Butler Nos. CA2006-03-054 and CA2006-03-070, 2007-Ohio-2995, ¶ 26, citing C.E. Morris Co. v. Foley Const. Co., 54 Ohio St.2d 279 (1978), syllabus.
{¶ 12} Although an expert‘s opinion may not be “‘arbitrarily ignored‘” unless there are “‘some reasons * * * objectively present,‘” Coleman v. Hamilton, 12th Dist. Butler Nos. CA2011-03-049 thru CA2011-03-051, 2011-Ohio-4717, ¶ 14, quoting State v. Brown, 5 Ohio St.3d 133, 135 (1983), it is well-established that an expert‘s opinion is not conclusive upon a trier of fact and serves only as “an item of evidence intended to assist the trier of fact in consideration with the other evidence of the case.” Croft v. State Farm Mut. Auto. Ins. Co., 3d Dist. Allen No. 1-01-72, 2002 WL 18665, *3 (Jan. 8, 2002). As a result, it is within “the trial court‘s prerogative to give [an] expert‘s testimony whatever weight it deemed appropriate.” Donithan v. Donithan, 12th Dist. Clermont No. CA89-12-104, 1990 WL 134310, *2 (Sept. 17, 1990). This is true even when that expert opinion goes unrebutted. Butler v. Stevens, 2d Dist. Montgomery No. 22822, 2009-Ohio-2775, ¶ 39, citing Hotel Statler v. Cuyahoga Cty. Bd. of Revision, 79 Ohio St.3d 299, 304 (1997).
{¶ 13} After a thorough review of the record, we fail to see how the trial court‘s failure to directly comment on the expert witness testimony within its decision constitutes plain error or renders that decision against the manifest weight of the evidence. As noted above, the trial court specifically stated within its decision that it “had the benefit of testimony and exhibits” presented at the hearing. This includes the testimony from Parisi‘s expert witness. The trial court was not required to give credit to this testimony, and its decision clearly demonstrates that it did not. “[T]he trier of fact is not required to accept as gospel every aspect of the expert‘s testimony; the trier of fact may believe all of what a witness says, none of it, or part of it.” Tolliver v. Tolliver, 12th Dist. Clinton No. CA90-07-015, 1991 WL 6364, *2 (Jan. 22, 1991).
{¶ 14} Rather, after considering all the testimony and evidence presented, the trial
Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT ERRED WHEN IT DID NOT ENFORCE THE OHIO RULES OF CIVIL PROCEDURE REGARDING ADMITTED ADMISSIONS.
{¶ 17} In her second assignment of error, Parisi argues the trial court erred by not giving credit to her requests for admissions after those requests went unanswered.3 We disagree.
{¶ 18}
{¶ 19} We recently addressed this same issue in Fifth Third Bank v. Meadow Park Plaza, L.L.C., 12th Dist. Clinton No. CA2015-07-012, 2016-Ohio-753. In that case, the trial court issued a decision granting Fifth Third partial summary judgment, finding Meadow Park had defaulted on its obligations under a note, guaranty agreement, and mortgage held by Fifth Third. The trial court then granted Meadow Park additional time for discovery “regarding the issue of amounts owed to Fifth Third under the terms of the note, mortgage and guaranty.” Id. at ¶ 6. The trial court set the matter for a hearing as to whether there was, in fact, any indebtedness still due and owing to Fifth Third on the note and guaranty agreement. Id. at ¶ 6, 28. The amount of the disputed debt, if any, was the only issue set for this contested hearing.
{¶ 20} Shortly before the hearing began, Meadow Park filed a notice of admission deemed admitted, indicating it had sent a discovery request to Fifth Third that had since gone unanswered. Id. at ¶ 7. Included within the discovery request were various interrogatories, a request for production of documents, and a single request for an admission, specifically asking Fifth Third to “[a]dmit that, once the proceeds of the receiver‘s sale is applied, [Meadow Park] owe[s] [Fifth Third] nothing.” Id. Although acknowledging that it had not answered Meadow Park‘s discovery request, Fifth Third filed a memorandum in opposition to Meadow Park‘s notice, wherein it argued Meadow Park‘s attempt to submit a request for
{¶ 21} On appeal, Meadow Park argued the trial court erred and abused its discretion by not giving credit to its request for admission after the admission went unanswered. Id. at ¶ 26. This court, however, found the trial court did not err or abuse its discretion in that regard since Meadow Park‘s request “dealt with the very issue upon which the trial court had already determined an evidentiary hearing was required; namely, whether there was, in fact, any indebtedness still due and owing to Fifth Third on the note and guaranty agreement.” Id. at ¶ 28. This court also agreed with the trial court‘s decision finding Meadow Park‘s “attempts to avoid a deficiency judgment through this procedural device was ‘full of gamesmanship and without merit.‘” Id. at ¶ 29.
{¶ 22} As can be seen, in both Fifth Third and the case at bar, the trial court scheduled a contested hearing to resolve an issue regarding a disputed debt. Thereafter, one party sought further discovery that included a request for an admission regarding the amount due on that disputed debt, the single issue scheduled to be heard at the contested hearing. The amount due on that debt, if any, was clearly an issue of contention as there would have been no need for the trial court to ever hold a contested hearing on the matter were that not the case. That is certainly true here, for Parisi herself even stated within her motion to reopen the administration of the Leichman estates that a contested hearing was necessary “to determine her attorney fees” now that Horstman had refused to provide her with any additional money.
{¶ 24} Like Meadow Park‘s efforts in Fifth Third, Parisi did not seek to rely upon the unanswered admission in preparation of trial. Rather, Parisi sought to rely on the admission in order to circumvent a contested hearing on the only issue in dispute; namely, the amount of additional attorney fees Parisi was owed, if any. While Parisi claims otherwise, we agree with the trial court‘s decision finding Parisi‘s attempts to manipulate the discovery rules in order to rely on a procedural technicality when she clearly knew Horstman had repeatedly and consistently refused to provide her with any additional money even after a contested hearing on that single issue had already been scheduled was “inappropriate and served no useful purpose other than to harass and annoy [Horstman].” The purpose behind
{¶ 25} In so holding, we note that it is generally well-established that “‘[a] request for admission can be used to establish a fact, even if it goes to the heart of the case.‘” Kornylak Corp. v. Messina, 12th Dist. Butler No. CA99-03-052, 1999 WL 760893, *2 (Sept. 27, 1999), quoting Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67 (1985). However, just as this court previously concluded in Fifth Third, strict application of this rule to factual scenarios
{¶ 26} We understand the concerns that may be raised by our decision in the case at bar and that of our previous decision in Fifth Third. However, this decision should not be construed as limiting a party‘s ability to seek discovery after a contested hearing has been scheduled, nor should it be interpreted as this court rewriting the Rules of Civil Procedure. Rather, our decision in this case and that of Fifth Third merely stand for the general proposition that, when possible, disputes should be resolved on their merits, not through deception and gamesmanship. Other states have reached similar results. See, e.g., Costello v. Zavodnik, Ind.App. No. 49A04-1504-PL-163, 2016 WL 2956569, *5 (May 23, 2016) (requests for admissions asking responding party to admit liability of $30,000, $300,000, and $600,000 in a contested dispute over the sale of a $75 printer were improper and constituted a misuse of the discovery rules in hopes that “[responding party] would not respond, rendering the matters admitted by operation of Rule 36“); see also St. Mary v. Superior Court, 223 Cal.App. 4th 762, 783 (2014) (requests for admissions are intended to “expedite trials and to eliminate the need for proof when matters are not legitimately contested” as opposed to serve as “a ‘gotcha’ device“); Lucas v. Clark, 347 S.W.3d 800, 803
Assignment of Error No. 3:
{¶ 28} THE TRIAL COURT ERRED WHEN IT IGNORED THE EVIDENCE SUBMITTED AND FAILED TO TAKE INTO CONSIDERATION THE QUANTUM MERIET [sic] AMOUNT OF WORK PERFORMED BY THE PETITIONER-APPELLANT IN THE TWO ESTATES.
{¶ 29} In her third assignment of error, Parisi presents several arguments alleging the trial court erred (1) by making a factual finding that Horstman paid her a $500 retainer fee when there was no documentary evidence to corroborate her testimony, (2) by striking the exhibits she attached to her written closing argument, and (3) by “refusing to award [her with] ANY attorney fees” under a theory of quantum meruit since she “performed necessary and valuable legal services for the two estates.” We disagree.
{¶ 30} Initially, as it relates to the trial court‘s factual finding that Horstman had paid Parisi a $500 retainer fee, it is well-established that the trial court, as the trier of fact, is in the best position “to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Mike Castrucci Ford Sales, Inc. v. Hoover, 12th Dist. Clermont No. CA2007-02-022, 2008-Ohio-1358, ¶ 19. In turn, although Parisi denied that Horstman had ever paid her a $500 retainer fee, the trial court weighed the credibility of Horstman‘s testimony and found that
{¶ 31} Next, as it relates to the trial court‘s decision to strike the exhibits Parisi attached to her written closing argument, just like the trial court found, it was improper for Parisi to present any new evidence as part of her written closing argument since closing arguments are not evidence. Di v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 101760, 2016-Ohio-686, ¶ 109 (“opening and closing statements are not evidence“); Jenkins v. Hill, 4th Dist. Meigs No. 14CA4, 2015-Ohio-118, ¶ 12 (“statements made by counsel during opening statements and closing arguments are not evidence“). Rather, “[t]he purpose of closing argument is to summarize the evidence at trial.” John F. Bushelman Const. v. Glacid Group, Inc., 1st Dist. Hamilton Nos. C-950412 and C-950438, 1996 WL 348002, *3 (June 26, 1996). Therefore, Parisi‘s second argument is without merit.
{¶ 32} Finally, as it relates to Parisi‘s claim that she was entitled to recover any additional attorney fees on a theory of quantum meruit, Parisi had the burden to prove “the billed time was fair, proper and reasonable.” In re Dye, 12th Dist. Fayette Nos. CA2011-04-004 thru CA2011-04-006, 2012-Ohio-2570, ¶ 44, citing In re Estate of Williams, 11th Dist. Lake No. 2003-L-200, 2004-Ohio-3993, ¶ 21. As noted above, the trial court found the fees that had already been paid to Parisi “more than fulfilled any financial obligation” for the work Parisi actually did. “[A] court‘s decision regarding the award of attorney fees on a quantum meruit basis is based upon the individual case facts and will be reversed only if there is an abuse of discretion.” Rust v. Harris Gordon, 6th Dist. Lucas No. L-03-1091, 2004-Ohio-1636, ¶ 33. Again, because Parisi did not provide this court with a full transcript of the contested hearing, we must presume the validity of the trial court‘s decision. Therefore, Parisi‘s third
{¶ 33} Judgment affirmed.
HENDRICKSON, J., concurs.
PIPER, P.J., concurs separately.
PIPER, J., concurring separately.
{¶ 34} Due to the analysis, not the result, I must concur in judgment only.
{¶ 35} The second assignment of error should have been resolved in the same manner as the first assignment of error.5 In resolving the first assignment of error regarding the trial court‘s failure to mention in any way Parisi‘s expert witness testimony in its decision, the majority states: “[A]side from the testimony of her expert witness, Parisi did not provide this court with a full transcript of the contested hearing on her application for attorney fees. ‘Absent a full transcript, this court must presume the validity of the trial court‘s determination[.]’ Bunnell Electric, Inc. v. Ameriwash, 12th Dist. Warren No. CA2004-01-009, 2005-Ohio-2502.”
No Exhibit, No Record, No Service
{¶ 36} Although Parisi indicated she previously submitted requests for admission to Horstman, such requests were never tendered as an exhibit and therefore are not available for appellate review. The trial court apparently examined whatever Parisi allegedly submitted to Horstman and noted there was no indication of service. Without a certificate of service, the trial court could not determine if the requests were submitted timely or “ever actually
{¶ 37} The majority acknowledges it “can find nothing in the record to prove Horstman ever actually received Parisi‘s alleged discovery request, nor do we have the benefit of reviewing the full transcript of the contested hearing to determine the full extent that the parties may have discussed those discovery requests.” As Parisi failed to supply this court with most of the record and without an exhibit tendered at the time of the hearing, we must presume the validity of the trial court‘s determination.
{¶ 38} Because requests for admission narrow future issues to be litigated and can have significant impact upon the proceedings, assiduous compliance is required. January Invests., LLC v. Ingram, 12th Dist. Warren No. CA2009-09-127, 2010-Ohio-1937 (admissions were deemed admitted due to the lack of compliance with strict time requirements). Accordingly, a trial court is not bound by unanswered admissions that do not indicate service on opposing counsel. The nature of the noncompliance warrants disregarding the unanswered admissions. Where there is no proof of service, a trial court is correct in not considering the filing. Capital One Bank, N.A. v. Ryan, 10th Dist. Franklin No. 14AP-102, 2014-Ohio-3932, ¶ 28.
Journalized Contempt Ruling Does Not Substitute a Complete Record
{¶ 39} In a separate matter, Parisi filed Motions for Contempt, seeking sanctions against Horstman for not responding to propounded discovery requests. The majority uses the trial court‘s journalized entry, which rules on Parisi‘s contempt motions as if that same verbiage was used by the trial court in its decision at the hearing not to permit reliance upon the requests for admission. However, we have no transcript of those discussions, nor do we have a journalized entry specific to Parisi not being permitted to rely upon the requests for admissions at the hearing.
{¶ 40} Despite a gaping lapse of relevant portions of the record, the majority continues
{¶ 41} Without service and with nothing before us to indicate Horstman actually received the requests for admission, we need not re-interpret Fifth Third or resort to precedent in other states. “When portions of the transcript * * * are omitted from the record, the reviewing court has nothing to pass upon and thus, * * * the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980). Yet, the majority chooses to assign, sua sponte, vitriolic intentions to Parisi in her failed attempt to prove her case by propounding admissions, a determination, which in fairness, should at least necessitate a complete record.
Mere Scheduling of a Hearing Does Not Render Requests Inappropriate
{¶ 43} The majority suggests there are “scenarios” where discovery requests should not be permitted to go to the heart of the case. In its rush to revisit Fifth Third Bank v. Meadow Park Plaza, L.L.C., 12th Dist. Clinton No. CA2015-07-012, 2016-Ohio-753, the majority relies upon cases from California and other states. However, the cases cited involved narrow facts wherein the attempted use of discovery was litigated or the trial court made findings specifically involving the use of admissions, and a complete record existed for the purposes of appellate review, which was not provided to us by Parisi in this case.
{¶ 44} The majority holds that when a hearing has been scheduled it would be unfair and inappropriate to allow a party to submit requests for admission, even if timely and pursuant to the civil rules, that otherwise attempt to resolve issues set to be litigated. The majority states “where the exact issue raised within a request for admission had already been scheduled for a contested hearing on that issue [it] would be fundamentally unfair to the administration of justice and to do nothing more to lead further attempts to exploit the rules of civil procedure.” I must disagree with this proposition as well as the majority‘s belief that our previous analysis in Fifth Third should be modified to reach the case at bar, particularly when based on out-of-state cases containing dissimilar facts where the court had the ability to review trial court findings via a complete record.
The Facts and Circumstances of Fifth Third Are Very Different
{¶ 46} Contrary to the partial summary judgment, Daniels nevertheless requested a single admission from Fifth Third that once the proceeds of the receiver‘s sale were applied, nothing further would be owed by Daniels to Fifth Third.6 The trial court determined that it had already rendered a decision that Fifth Third would receive a judgment on the difference between the proceeds and what was owed, and the fact that Daniels requested an admission on the issue the court had already decided was “disingenuous.” This court agreed with the trial court‘s assessment that Daniels’ attempt to “undo” the trial court‘s earlier decision was “full of gamesmanship.”
{¶ 47} In the current case, the facts are completely different. The trial court had not
{¶ 48} Fifth Third involved special statutory proceedings of foreclosure and a land sale proceeding through receivership. The current case involves special statutory proceedings in probate court regarding the performance of work pursuant to an oral contract and attendant attorney fees. Fifth Third involved a court issuing a partial summary judgment with a litigant attempting to undermine the court‘s journalized judgment. The current situation contains no such judgment or conduct. Fifth Third involved discovery that had been served upon opposing counsel and the attempted use of such was opposed in writing; this case involves neither. Fifth Third involved the trial court making specific findings as to the attorney‘s “gamesmanship,” with appellate review upon a complete record. Again, this case involves neither.
{¶ 49} The rationale in Fifth Third did not turn on whether or not a hearing had already been scheduled as the majority interprets it. The rationale in Fifth Third turned on the fact that the trial court found that the litigant displayed “gamesmanship” by attempting to “undo” the court‘s partial summary judgment which the trial court had already granted, thereby deliberately attempting to undermine the court. While the majority selectively revisits the
Conclusion
{¶ 50} In the world of litigation, hearings are scheduled in advance with the expectation that the parties will be conducting extensive discovery in an effort to eliminate as many issues as possible, even though those same issues are subject to a scheduled hearing. Using discovery in advance of a hearing, is not “gamesmanship” or “deception” or “manipulation,” nor is it a “tactic” aimed at undermining the court, but rather it is routine, everyday-lawyering, using the civil rules as anticipated. An appellate court needs a complete record if it is to, for the first time upon review, draw inferences or make findings pertaining to counsel‘s conduct.
{¶ 51} A party cannot “deny” requests for admission for the reason that the requests relate to an issue scheduled to be litigated. See Salem Med. Arts & Dev. Corp. v. Columbiana Cty. Bd. of Revision, 82 Ohio St.3d 193 (1998). Similarly, the mere fact that requests for admission go to issues scheduled to be litigated is not a reason for an appellate court to label the requests as an inappropriate tactic or an exploitation of the civil rules.
{¶ 52} In its misapplication of Fifth Third, the majority gives future litigants, and trial courts as well, no criteria as to what circumstances or “scenarios” justify labeling discover efforts as “procedural technicality” subject to being summarily disregarded with no advance filing or notice. The majority attempts to defend its extension of Fifth Third as if this current set of facts justifies such an extension. However, without the illumination of a complete record, such extension remains in dim light and therefore is a path we are better advised not
{¶ 53} The concerning precedent the majority‘s analysis sets is unnecessary to a concise resolution. Thus, I must respectfully concur in judgment only.