Paasewe v. Wendy Thomas 5 Ltd.Paasewe v. Wendy Thomas 5 Ltd.
D E C I S I O N
Rendered on December 24, 2009
Eric K. Paasewe, pro se.
Freund, Freeze & Arnold, and Carl A. Anthony, for appellee Thomas 5 Limited.
Calfee, Halter & Griswold LLP, W. Eric Baisden and Christopher M. Ward, for appellee Calfee, Halter & Griswold LLP.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶1} Plaintiff-appellant, Eric K. Paasewe, appeals from a judgment of the Franklin County Court of Common Pleas dismissing his actions against defendants-appellees, Thomas 5 Limited (“Thomas 5“), Calfee, Halter & Griswold LLP (“Calfee“),
{¶2} On June 26, 2008, Paasewe, acting pro se, filed a complaint against Thomas 5 and Ohio Casualty.1 In the complaint, Paasewe stated that he had visited the Wendy‘s restaurant located on Hudson Street in Columbus, Ohio2 on January 2, 2008. Paasewe ordered a salad. While eating the salad, Paasewe allegedly discovered a glove in the salad. Paasewe returned the salad to the counter, where he spoke with the restaurant manager. According to Paasewe, the manager convinced him to leave the salad and glove at the restaurant. When Paasewe visited the restaurant the next day, the “boss” told Paasewe that the restaurant had forwarded the salad and glove to Ohio Casualty, Thomas 5‘s insurer. Passewe later learned, however, that the restaurant had waited until late January 2008 to send the salad and glove to Ohio Casualty. Based on these allegations, Paasewe asserted claims for fraud, spoliation of evidence, conversion, and violation of his civil and constitutional rights.
{¶3} In a second complaint, filed on November 12, 2008, Passewe relied upon the same incident to assert a claim for product liability. Unlike the first action, this second action only named Thomas 5 as a defendant. Thomas 5 moved for consolidation of the first and second action. The trial court granted Thomas 5‘s motion.
{¶4} On December 30, 2008, Paasewe filed a third complaint. Naming Thomas 5, Calfee, Ohio Casualty,3 Freund, and Anthony as defendants, the third complaint asserted a claim for defamation. Paasewe maintained that defendants defamed him
{¶5} After attempting to conduct discovery, Thomas 5 moved for summary judgment on all of the claims asserted against it. In large part, Thomas 5 supported its motion with admissions that Paasewe made when he failed to answer requests for admission. Acting pursuant to
REQUEST FOR ADMISSION NO. 1:
Admit that on January 2, 2008, the date that you purchased a taco salad from the Wendy‘s restaurant on Hudson Street, the cost of the salad was refunded to you.
* * *
REQUEST FOR ADMISSION NO. 4
Admit that no employee or representative of the Defendant Thomas 5 Ltd., made any false or misleading statements to you.
* * *
REQUEST FOR ADMISSION NO. 9
Admit that Thomas 5 Ltd., did not tamper with any evidence related to this case.
REQUEST FOR ADMISSION NO. 10
Admit that Thomas 5 Ltd., did not willfully destroy evidence relevant to your case.
REQUEST FOR ADMISSION NO. 11
Admit that Thomas 5, Ltd., did not destroy evidence with an intent to disrupt your case.
* * *
REQUEST FOR ADMISSION NO. 13
Admit that Thomas 5 Ltd. did not deprive you of any rights, privileges or immunities secured by any constitution and laws.
REQUEST FOR ADMISSION NO. 14
Admit that Thomas 5 Ltd. did not violate your civil rights in any way.
REQUEST FOR ADMISSION NO. 15
Admit that Thomas 5 Ltd. did not violate your constitutional rights in any way.
* * *
REQUEST FOR ADMISSION NO. 17
Admit that there was no glove or other foreign object in the salad at the time that you purchased it from the Wendy‘s restaurant on Hudson Street on January 2, 2008.
REQUEST FOR ADMISSION NO. 18
Admit that you put the glove into the taco salad that you purchased from the Wendy‘s restaurant on Hudson Street on January 2, 2008.
Passewe did not respond to these requests for admission, nor did he file a memorandum contra to Thomas 5‘s motion for summary judgment.
{¶6} Freund and Anthony also moved for summary judgment, relying, in part, on Paasewe‘s admissions. Calfee filed a
{¶7} On April 27, 2009, the trial court issued a judgment granting all of defendants’ motions. Finding that Paasewe had admitted that the salad did not contain a glove when he purchased it and that he put the glove in the salad after its purchase, the
{¶8} Paasewe now appeals from the April 27, 2009 judgment, and he assigns the following error:
The franklin court common pleas court erred by affirming the order of the wendy Thomas 5 limited and the wendy international and finidng that the order of the wendy thjomas 5 limited and the wendy international was supported by reliable, probative and substail evidence. [Sic passim.]
{¶9} As an initial matter, we must address the numerous procedural motions filed before this court. First, Calfee, Freund, and Anthony have moved to dismiss Paasewe‘s notice of appeal, arguing that it violates the mandates of
{¶10} Pursuant to
{¶11} In the case at bar, the notice of appeal consists of a pre-printed form on which Paasewe handwrote the relevant information. In relevant part, the notice of appeal states:
Notice is hereby given that Eric K. Paasewe___ hereby
(PARTY NAME)
appeals to the Court of Appeals, Tenth Appellate District of Franklin County, Ohio, from the final judgment entry of the civil common plea_____ entered on ______________.
(NAME OF TRIAL COURT) (DATE)
{¶12} Because Paasewe omitted the date of the judgment he was appealing, the notice of appeal fails, on its face, to pinpoint with specificity which judgment Paasewe intended to appeal. However, the trial court had only issued one “final judgment entry“—the April 27, 2009 judgment that dismissed Paasewe‘s claims against all defendants. Thus, when Paasewe stated that he was appealing from the “final judgment entry,” he necessarily had to be appealing from the April 27, 2009 judgment. Interpreting the notice of appeal in context with the other filings in the record, we conclude that the notice of appeal identified the judgment being appealed and reasonably notified each defendant named in that judgment of the existence of the appeal. Therefore, we disregard the technical defect in Paasewe‘s notice of appeal.
{¶13} Moreover, we reject Calfee, Freund, and Anthony‘s argument that we should dismiss the notice of appeal because it does not mention them or Paasewe‘s defamation claim against them. Nothing in
{¶14} Next, we address Thomas 5‘s motion to strike two documents from the trial court‘s record. After the trial court issued its April 27, 2009 final judgment entry, Paasewe filed an affidavit and “Motion to dimissed [sic] defendent motions for summery judgement [sic].” Thomas 5 argues that because the trial court did not consider either of these documents when rendering its judgment, this court cannot consider the documents when reviewing the trial court‘s judgment for error.
{¶15} Appellate review is limited to the record as it existed at the time the trial court rendered judgment. Leiby v. Univ. of Akron, 10th Dist. No. 05AP-1281, 2006-Ohio-2831, ¶7; Waterford Tower Condominium Assn. v. TransAmerica Real Estate Group, 10th Dist. No. 05AP-593, 2006-Ohio-508, ¶13; Bank of New York v. Bartmas, 10th Dist. No. 04AP-1011, 2005-Ohio-6099, ¶9. Pursuant to long-standing precedent, “[a] reviewing court cannot add matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus. Similarly, a reviewing court cannot consider evidence that a party added to the trial court record after that court‘s judgment, and then decide an appeal from the judgment based on the new evidence. Leiby at ¶6-7 (refusing to consider an affidavit that the appellant filed with the
{¶16} In the case at bar, Paasewe filed the two documents at issue after the trial court rendered the judgment that the instant appeal challenges. Because the trial court did not consider these documents in granting summary judgment, we cannot consider them in reviewing that judgment. However, although we agree with Thomas 5‘s argument, we do not find the relief that Thomas 5 requests appropriate. As a matter of comity, we are disinclined to meddle with the record of another court. Instead, we will strike from Paasewe‘s appellate briefs any references to and arguments based on the two documents. See Waterford Tower Condominium Assn. at ¶12-13 (granting such relief). Accordingly, we grant Thomas 5‘s motion to the extent state above.
{¶17} Finally, we address a motion that Paasewe filed entitled “Plaintiff demand for evidence from defendent.” In this motion, Paasewe asks this court to order an unnamed defendant, presumably Thomas 5, to produce evidence, including a copy of the video recording of the interior of the Wendy‘s restaurant from January 2 and 3, 2008, the salad and glove, a copy of the incident report prepared by the restaurant manager, a receipt signed by Paasewe showing the refund of the price of the salad, and a return receipt demonstrating that Paasewe received the requests for admission.
{¶19} We now turn to the merits of Paasewe‘s appeal. By Paasewe‘s sole assignment of error, he argues that the trial court erred in granting Thomas 5 summary judgment on his claims.4 We disagree.
{¶20} As we explained above, the trial court primarily relied upon Paasewe‘s admissions in determining that summary judgment was appropriate. When requests for admission are served on a party, that party must timely respond by either objection or answer.
{¶21} Here, Paasewe never answered the requests for admission that Thomas 5 served on him. The trial court, therefore, properly determined that Paasewe admitted each request for admission. On appeal, Paasewe contends that neither the trial court nor this court should bind him to his admissions by default. Paasewe alleges that he never received the requests for admission, so he should not suffer the consequences of his failure to respond to them. We find this argument unavailing.
{¶22}
{¶23} In the case at bar, the certificate of service attached to the requests for admission states that Thomas 5 served Paasewe with the requests on November 21, 2008 by ordinary mail. Thomas 5 mailed the requests for admission to the mailing address Paasewe has used throughout the course of this litigation. Consequently, because Thomas 5 complied with
{¶24} Moreover, we need not rely upon the presumption alone to reject Paasewe‘s attempt to avoid his admissions. In an affidavit attached to Thomas 5‘s motion for summary judgment, Thomas 5‘s attorney stated that he spoke with Paasewe after serving him with a discovery packet that included the requests for admission. During that conversation, Paasewe acknowledged receiving the discovery packet. Because the record contains sworn, uncontradicted testimony establishing that Paasewe received the requests for admission, we conclude that
{¶25} As the trial court found, the admissions preclude Paasewe from recovering on his claims against Thomas 5. Paasewe cannot recover on his fraud claim because he admitted that no one employed by or representing Thomas 5 made a false or misleading
{¶26} Having overruled Paasewe‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Motions to dismiss the notice of appeal denied; motion to strike granted; motion demanding evidence denied; and judgment affirmed.
BRYANT and McGRATH, JJ., concur.