[Cite as Corwin v. Kimble,
2022-Ohio-3395.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARK CORWIN JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vsCase No. 22CA00002
HOLLY KIMBLE, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 20CV00603
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 26, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
ELIZABETH E. OSORIO RANDALL E. WORTH
BRIAN G. JONES 7500 Slate Ridge Blvd.
THE LAW OFFICE of BRIAN JONES, LLC Reynoldsburg, Ohio 43068
52 North Sandusky Street
Delaware, Ohio 4315
Licking County, Case No. 22CA00002 2
Wise, J.
{¶1} Defendants-Appellants Holly Kimble and Jeremy Kimble appeal the
December 7, 2021, decision of the Licking County Common Pleas Court granting
summary judgment in favor of Plaintiff-Appellee Mark Corwin.
STATEMENT OF THE CASE AND FACTS
{¶2} The relevant facts and procedural history as set forth in the record are as
follows:
{¶3} On September 24, 2014, Holly Kimble and Jeremy Kimble entered into a
rental agreement with Mark Corwin to rent out Corwin's property located at 126 South
Highview Boulevard, Pataskala, Ohio. Pursuant to the rental agreement, the Kimbles
agreed to pay Corwin a security deposit of $1,350 and monthly payments of $1,350 until
the total amount of $16,200 was paid in full for a 12-month lease. Monthly payments
began on November 1, 2014, and the agreement automatically renewed on a month-to-
month basis upon the completion of the 12-month obligation.
{¶4} The Kimbles failed to pay the rent for the months of February 2019, March
2019, and April 2019. The Kimbles allege that Corwin agreed to forego rent in exchange
for the Kimbles' cooperation in moving out of the property.
{¶5} In early May 2020, the Kimbles vacated the property. Corwin alleges that
he discovered substantial damage to the property after inspection.
{¶6} On June 19, 2020, Corwin filed a Complaint in the Licking County Court of
Common Pleas against the Kimbles alleging that the Kimbles breached the rental
agreement when they failed to pay rent and caused substantial damage to the property.
Licking County, Case No. 22CA00002 3
Corwin requested damages in the amount of $19,510.16 plus interest and reasonable
attorneys' fees.
{¶7} On July 27, 2020, the Kimbles filed their Answer denying that they owe
unpaid rent or caused the alleged damage to the property. The Kimbles also brought a
counterclaim against Corwin alleging a violation of R.C. §5321.16, which requires a
landlord to itemize and identify any deduction from a security deposit in a written notice
delivered to the tenant within thirty days after termination of the rental agreement. Corwin
denies this allegation.
{¶8} On September 22, 2020, the trial court held a scheduling conference with
counsel for the parties present. Pursuant to that conference, the trial court issued a
scheduling order which set the deadline for completion of discovery as November 23,
2020.
{¶9} On October 22, 2020, Corwin filed a Notice of Service of Discovery
Requests. As part of the discovery requests, Corwin included Requests for Admissions
stating:
{¶10} REQUEST NO. 1: Admit that Defendants Holly Kimble and Jeremy Kimble
signed a Rental Agreement for tenancy of 126 South Highview Boulevard, Pataskala,
Ohio 43062.
{¶11} REQUEST NO. 2: Admit that Plaintiff Mark Corwin is due approximately
$3,900 in unpaid rent, late fees and interest as a result of the Rental Agreement for 126
South Highview Boulevard, Pataskala, Ohio 43062.
Licking County, Case No. 22CA00002 4
{¶12} REQUEST NO. 3: Admit that Plaintiff Mark Corwin is due approximately
$15,610.16 in damage to the property located at 126 South Highview Boulevard,
Pataskala, Ohio 43062.
{¶13} The requests for admissions designated that responses were due twenty-
eight days after service of the requests, which would have been November 19, 2020.
{¶14} On November 30, 2020, Appellee Corwin filed a motion to amend the
scheduling order. Appellee’s counsel stated that on November 17, 2020, he was notified
that Appellants’ attorney was quarantining away from the office due to exposure to
COVID-19. At that time, Appellee's counsel was advised that responses to discovery
requests would not be possible until after the Thanksgiving holiday due to the COVID-19
exposure. Appellee requested that the dates in the scheduling order be extended ninety
days to accommodate Appellants and account for the Covid-19 pandemic.
{¶15} By Order filed January 11, 2021, the trial court granted Appellee's motion
and extended the scheduling order dates. The deadline for completion of discovery was
extended to February 22, 2021.
{¶16} On March 15, 2021, twenty-one days after the discovery deadline had
passed, Appellants filed a motion for continuance requesting that all dates be postponed
an additional three to four months. Appellants stated in their motion that Holly Kimble was
suffering from medical conditions and complications. The trial court granted the motion
and extended the dates an additional three months. The deadline for completion of
discovery was re-set for June 22, 2021.
{¶17} On August 16, 2021, approximately eight weeks after the rescheduled
discovery deadline, Appellants filed another motion for continuance. Appellants asserted
Licking County, Case No. 22CA00002 5
that Holly's medical conditions and complications and Jeremy's duties in the army
prevented them from meeting any of the scheduled dates. This time Appellants requested
the scheduling order dates be postponed an additional six (6) months. The trial court did
not rule on this motion.
{¶18} On September 1, 2021, a final pretrial conference was held. During the
conference Appellee was granted leave to file a motion for summary judgment.
{¶19} On September 7, 2021, Appellee filed his motion for summary judgment.
{¶20} At the time Appellee filed his motion for summary judgment, Appellants had
still not responded to the requests for admissions. Because Appellants failed to respond
to the requests for admissions, Appellee argues in his motion for summary judgment that
the admissions must be deemed admitted. Appellee then goes on to rely on these
admissions and other evidence, including the rental agreement, text messages between
Appellee and Holly Kimble, and photographs of the rental property, to argue that he is
entitled to summary judgment. He also relies on text messages between himself and the
Kimbles' new landlord and a letter he sent to the Kimbles to argue that he is entitled to
summary judgment on Appellants’ counterclaim.
{¶21} Appellee also argued that Appellants were liable for Appellee's attorney
fees pursuant to Civ.R. 11.
{¶22} Two days after Appellee filed his motion for summary judgment, Appellants
delivered by electronic mail their responses to the discovery requests to Appellee's
counsel.
{¶23} On October 12, 2021, Appellants filed a memorandum contra to Appellee's
motion for summary judgment. Appellants reiterated that they were unable to reply to
Licking County, Case No. 22CA00002 6
discovery requests because of Holly's medical condition and Jeremy's duties with the
Ohio Army National Guard rendering him unavailable for unspecified, extended periods
of time. Appellants further argued that their specific denials to Appellee's damages
allegations create a genuine issue of material fact.
{¶24} On November 2, 2021, Appellee filed a reply.
{¶25} By Judgment Entry filed December 7, 2021, the trial court granted summary
judgment in favor of Appellee. In its Judgment Entry, the trial court found that Appellee’s
requests for admissions were admitted when Appellants failed to timely respond to
Appellee’s requests, and that Appellants were not permitted to withdraw or amend their
admissions.
{¶26} Appellants now appeal, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶27} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED BY
FINDING THAT APPELLEE'S REQUESTS FOR ADMISSION WERE ADMITTED WHEN
APPELLANTS "FAILED TO TIMELY RESPOND TO PLAINTIFF'S REQUESTS.
{¶28} “II. THE TRIAL COURT ERRED BY FINDING AS A MATTER OF LAW
THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTS AND THAT APPELLANTS
BREACHED THE LEASE BY FAILING TO PAY RENT AND CAUSING DAMAGES TO
THE PROPERTY.
{¶29} “III. THE TRIAL COURT ERRED BY FINDING THAT THE APPELLEES
[sic] ADMITTED THAT APPELLANT [sic] IS DUE APPROXIMATELY $3,900.00 IN
RENT, LATE FEES AND INTEREST AND $15,610.16 IN DAMAGES TO THE
PROPERTY.”
Licking County, Case No. 22CA00002 7
I.
{¶30} In their first assignment of error, Appellants argue that the trial court erred
in finding Appellee’s requests for admissions were deemed admitted. We disagree.
{¶31} Requests for Admissions are governed by Civil Rule 36. As it pertains to
unanswered admissions, Civ.R. 36(A) states, in pertinent part:
A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within Civ.R. 26(B) set forth in the request that relate to statements
or opinions of fact or of the application of law to fact, …
…
(1) … The matter is admitted unless, within a period designated in
the request, not less than twenty-eight days after service of the request or
within such shorter or longer time as the court may allow party to whom the
request is directed serves upon the party requesting the admission a written
answer or objection addressed to the matter, signed by the party or by the
party’s attorney.
{¶32} Thus, failure to timely respond or to respond at all will result in the requested
matter being deemed admitted. Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67,
485
N.E.2d 1052 (1985). “Any matter admitted under Civ.R. 36 is conclusively established
unless the court on motion permits withdrawal or amendment of the admission.”
Id., citing
Civ.R. 36(B). And “[a] request for admission can be used to establish a fact, even if it
goes to the heart of the case.” Cleveland Trust at 67.
Licking County, Case No. 22CA00002 8
{¶33} Appellants herein never requested and were never granted an extension of
time by the trial court to respond to Appellee's requests for admissions. Appellants admit
in their brief that they never specifically asked for an extension of time to respond to the
requests for admissions. (Appellants’ brief at 12).
{¶34} However, Civ.R. 36 does not specify that a formal motion is required nor
does the rule identify a time when the motion must be filed. Balson v. Dodds, 62 Ohio
St.2d 287, 290,
405 N.E.2d 293 (1980), fn. 2. Courts have accepted, absent a written or
oral motion to withdraw, various challenges to the truth of an admission as implicit motions
to withdraw. C.S.J. v. S.E.J., 8th Dist. Cuyahoga No. 108390,
2020-Ohio-492, ¶ 12; See
Balson at fn. 2 (contesting the truth of admissions serves as evidence of a motion to
withdraw the admissions).
{¶35} Civ.R. 36 (B) states the following:
Any matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of the
admission. Subject to the provisions of Civ.R. 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. Any admission made by a party under this rule is for the
purpose of the pending action only and is not an admission by the party for
any other purpose nor may it be used against the party in any other
proceeding.
Licking County, Case No. 22CA00002 9
{¶36} The decision as to whether to permit a modification to admissions rests in a
trial court's sound discretion. Balson v. Dodds (1980), 62 Ohio St.2d 287,
405 N.E.2d 293;
Civ.R. 36(B). In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore (1983)
5 Ohio St.3d 217,
450 N.E.2d 1140.
{¶37} As explained by this Court in Bush v. Eckman, Licking App. No. 07CA0115,
2008–Ohio–5080, ¶ 23:
{¶38} “In making its determination of whether to permit a withdrawal or
amendment of the admissions, the trial court is required to consider the elements of Civ.R.
36(B). Ohio courts have stylized this consideration into a multi-pronged analysis. See
Kutcscherousky v. Integrated Communications Solutions, LLC, 5th Dist. No.
2004CA00338, 2005–Ohio–4275; RKT Properties, LLC v. City of Northwood, 6th Dist.
No. WD–05–009, 2005–Ohio–4178, 162 Ohio App.3d 590,
834 N.E.2d 393; Farmers Ins.
Of Columbus, Inc. v. Lister, 5th Dist. No. 2005–CA–29, 2006–Ohio–142; B & T
Distributors v. CSK Const., Inc., 6th Dist. No. L–07–1362, 2008–Ohio–1855.
{¶39} First, there is the overarching goal that cases should be resolved on their
merits. The court must determine whether the amendment or withdrawal of the
admissions will aid in presenting the merits of the case. Cleveland Trust at 67. If the court
so determines, the burden then shifts to the party who obtained the admissions to
establish that the withdrawal or amendment will prejudice the party in maintaining their
action. Id.; Balson v. Dodds (1980), 62 Ohio St.2d 287,
405 N.E.2d 293, paragraph two
of the syllabus. ‘Against this prejudice, the court must weigh the “compelling”
circumstances that led to the failure to respond to the request for admissions.’ RKT
Licking County, Case No. 22CA00002 10
Properties, supra at ¶ 12, citing Cleveland
Trust, supra and Balson; See also Himes v.
Smith, 5th Dist. Stark No. 2011CA00086,
2012-Ohio-184, ¶¶ 10-17
{¶40} Here, the requested matter was deemed admitted and conclusively
established when Appellants failed to timely respond to the requests for admissions.
Appellee designated that responses to his requests for admissions were due twenty-eight
days after service of the requests. Appellee sent his requests via electronic mail service
on October 22, 2020. Thus, responses were due on November 19, 2020. Appellants did
not respond to Appellee's requests for admissions until September 9, 2021, 294 days or
nine months and twenty-one days after they were due. Because Appellants failed to timely
respond to Appellee’s requests for admissions they were automatically deemed admitted.
{¶41} Unlike the facts in this case, in Kutscherousky, supra, “the time frame for
discovery had not expired and was not close to expiring; there was no response to the
motion for summary judgment or any other action on the part of appellee in reliance upon
the requests for admissions[.]” See id. at ¶ 23. By contrast, in this case, discovery had
been closed for almost ten (10) months, and Appellant did not deny the admissions until
after Appellee relied upon such admission in his motion for summary judgment.
{¶42} In Kutscherousky, supra, this Court held that there must be a point after
which the party who gained the admissions has the right to rely on them. What amount of
time is “reasonable” varies on a case-by-case basis.
{¶43} “While Civ.R. 36(B) emphasizes the importance of resolving a case on the
merits, it also assures each party that justified reliance on an admission in preparation for
trial will not operate to his prejudice.” (Internal quotations and citation omitted.) L.E.
Licking County, Case No. 22CA00002 11
Sommer Kidron, Inc., 2007–Ohio–885, at ¶ 53; See also, Heiland v. Smith, 9th Dist. Lorain
No. 11CA010137, 2013-Ohio-134, ¶¶ 16-17.
{¶44} Here, Appellee followed the applicable civil rules and was justified in relying
upon Appellants’ admission and should not be prejudiced by that reliance.
{¶45} Upon review of the record, we find that the trial court did not err or abuse its
discretion in deeming the requests for admissions admitted.
{¶46} Appellants’ first assignment of error is overruled.
II.
{¶47} In their second assignment of error, Appellants argue that the trial court
erred in granting summary judgment in favor of Appellee. We disagree.
Summary Judgment Standard of Review
{¶48} Civ.R. 56 states in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that party being
entitled to have the evidence or stipulation construed mostly strongly in the
Licking County, Case No. 22CA00002 12
party's favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶49} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party's claim. Dresher v. Burt, 75 Ohio St.3d 280,
662 N.E.2d 264 (1996).
Once the moving party meets its initial burden, the burden shifts to the nonmoving party
to set forth specific facts demonstrating a genuine issue of material fact does exist.
Id.
The non-moving party may not rest upon the allegations and denials in the pleadings, but
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle,
75 Ohio App.3d 732,
600 N.E.2d 791(12th Dist.1991).
{¶50} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427,
424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc.,
15 Ohio St.3d 321,
474 N.E.2d
271 (1984). A fact is material if it affects the outcome of the case under the applicable
substantive law. Russell v. Interim Personnel, Inc.,
135 Ohio App.3d 301,
733 N.E.2d
1186 (6th Dist.1999).
{¶51} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Licking County, Case No. 22CA00002 13
Party, Inc., 30 Ohio St.3d 35,
506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer,
90 Ohio St.3d 388,
738 N.E.2d 1243 (2000).
{¶52} In the case sub judice, Appellants argue that the trial court erred in finding
that they breached the lease by failing to pay rent and causing damages to the property.
{¶53} As set forth above, through the unanswered requests for admissions,
Appellants admitted that they owed $3,900.00 in unpaid rent, and that they owed Appellee
$15,610.16 for damages caused to the property.
{¶54} In Ohio, “unanswered requests for admissions render the matter requested
conclusively established … and a motion for summary judgment may be based on such
admitted matter.” (Citations omitted.) Jade Sterling Steel Co. v. Stacey, 8th Dist.
Cuyahoga No. 88283, 2007-Ohio-532,
2007 WL 416697, ¶ 11. The failure to respond to
the request satisfies the Civ.R. 56 written answer requirement, and also serves as a
“conclusive admission pursuant to Civ.R. 36.” Id.; Riddick v. Taylor, 8th Dist. No. 105603,
2018-Ohio-171,
105 N.E.3d 446, ¶ 29.
{¶55} In light of the above, the trial court did not err or abuse its discretion in
relying on those admissions or other evidence in granting summary judgment.
{¶56} Appellants’ second assignment of error is overruled.
III.
{¶57} In their third assignment of error, Appellants argue that the trial court erred
in finding that Appellants admitted damages in this matter. We disagree.
{¶58} For the same reasons as set forth in Assignments of Error I and II, we find
Appellants’ third assignment of error not well-taken and hereby overrule same.
Licking County, Case No. 22CA00002 14
{¶59} For the foregoing reasons, the judgment of the Court of Common Pleas,
Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/kw 0921
