[Cite as Smith v. Bernaciak,
2023-Ohio-175.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
CHRISTINA SMITH C.A. No. 21CA0039-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TIA BERNACIAK COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 19CIV0335
DECISION AND JOURNAL ENTRY
Dated: January 23, 2023
TEODOSIO, Presiding Judge.
{¶1} Christina Smith appeals the judgment of the Medina County Court of Common
Pleas granting a directed verdict. We affirm.
I.
{¶2} In March 2019, Christina Smith filed a complaint for assault and battery against Tia
Bernaciak for damages resulting from allegedly being struck in the face by Ms. Bernaciak in March
2018. Default judgment was initially entered against Ms. Bernaciak, but subsequently vacated by
the trial court. The case proceeded through discovery and a trial was set for June 2021. After a
jury was empaneled and an opening statement by Ms. Smith, Ms. Bernaciak moved for a directed
verdict on the grounds that certain facts had been deemed admitted by virtue of Ms. Smith’s failure
to provide timely responses to Ms. Bernaciak’s requests for admissions. The trial court
subsequently granted the motion for a directed verdict. Ms. Smith now appeals, raising two
assignments of error.
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II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S ORAL MOTION
FOR DIRECTED VERDICT BASED ON MATTERS DEEMED ADMITTED
UNDER OHIO CIV.R. 36(A).
{¶3} In her first assignment of error, Ms. Smith argues the trial court erred when it
granted a directed verdict based upon default admissions under Civ.R. 36(A). We do not agree.
{¶4} Because a motion for directed verdict presents a question of law, our review is de
novo. Spero v. Avny, 9th Dist. Summit No. 27272, 2015–Ohio–4671, ¶ 17, citing Jackovic v.
Webb, 9th Dist. Summit No. 26555, 2013–Ohio–2520, ¶ 6. A trial court must grant a motion for
directed verdict after the evidence has been presented if, “after construing the evidence most
strongly in favor of the party against whom the motion is directed, … reasonable minds could
come to but one conclusion upon the evidence submitted ….” Civ.R. 50(A)(4); Parrish v. Jones,
138 Ohio St.3d 23, 2013–Ohio–5224, ¶ 16. “By the same token, if there is substantial competent
evidence to support the party against whom the motion is made, upon which evidence reasonable
minds might reach different conclusions, the motion must be denied.” Hawkins v. Ivy,
50 Ohio
St.2d 114, 115 (1977).
{¶5} In granting a directed verdict in favor of Ms. Bernaciak, the trial court determined
that the requests for admissions served upon Ms. Smith were admitted pursuant to Civ.R. 36, and
that those admissions established the basis for the directed verdict. Ms. Smith contends that
because Ms. Bernaciak did not move for summary judgment or otherwise bring the admissions to
the trial court’s attention until the day of trial, the trial court should have overruled the motion for
a directed verdict.
{¶6} Pursuant to Civ.R. 36(A):
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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 the scope of
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, including the genuineness of any documents
described in the request.
…
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, the 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.
Civ.R. 36(B) goes on to provide:
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.
{¶7} “By the explicit terms of Civ.R. 36(A), a party’s failure to timely respond to request
for admissions results in default admissions.” Marusa v. Brunswick, 9th Dist. Medina No.
04CA0038-M, 2005-Ohio-1135, ¶ 20. “When a party fails to timely respond to the request for
admissions, ‘the admissions [become] facts of record, which the court must recognize.’”
Id.,
quoting Cleveland Trust Co. v. Willis,
20 Ohio St.3d 66, 67 (1985), certiorari denied,
478 U.S.
1005 (1986). See also L.E. Sommer Kidron, Inc. v. Kohler, 9th Dist. Wayne No. 06CA0044, 2007–
Ohio–885, ¶ 45, citing Cleveland Trust Co. at 67 (1985) (“It is well settled in Ohio that unanswered
requests for admissions cause the matter requested to be conclusively established for the purpose
of the suit ….”)
{¶8} Ms. Smith contends that by relying upon the admissions in granting a directed
verdict, the trial court deprived her of due process and points us to Arrow Fin. Servs. v. Kuzniak,
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7th Dist. Mahoning No. 06 MA 133, 2007–Ohio–2191, in support of her argument. In Kuzniak, a
magistrate’s ruling had determined that facts were admitted as a result of the defendant’s failure
to respond to the plaintiff’s requests for admissions. Id. at ¶ 17. The defendant filed objections to
the ruling and the trial court subsequently adopted the magistrate’s ruling and granted summary
judgment in favor of the plaintiff. Id. at ¶ 19-20. The Seventh District Court of Appeals concluded
that “given the unique circumstances of [the] case” the trial court had abused its discretion in
allowing the facts to be deemed as admitted. Id. at ¶ 17. Those circumstances included the fact
that it was a magistrate’s ruling that had initially determined that the facts should be admitted and
that evidence was presented suggesting that the plaintiff had been in compliance with the discovery
request. Id. at ¶ 23. We find that these circumstances distinguish Kuzniak from the case sub judice.
{¶9} As this Court has previously recognized, “[w]hile 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.” L.E. Sommer Kidron, Inc.,
2007–Ohio–885, at ¶ 53. Under some circumstances a trial court may permit a party to withdraw
or amend his admissions. Amer, Cunningham, Brennan, Co. v. Sheeler, 9th Dist. Summit No.
19093, 1999 WL 247110, *3 (Apr. 28, 1999). “Doing so must aid in the presentation of the merits
of the action and must not prejudice the party who obtained the admissions.”
Id. Assuming both
conditions are met, the decision as to whether to permit withdrawal or amendment is within the
sound discretion of the trial court. See Cleveland Trust Co.,
20 Ohio St.3d at 68. A reviewing
court may reverse a discretionary decision of the trial court only if the trial court abused its
discretion in making the decision. Jennings & Churella Constr. Co. v. Lindley,
10 Ohio St.3d 67,
70 (1984). A court abuses its discretion when it acts in an unreasonable, arbitrary, or
unconscionable manner.
Id.
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{¶10} We find no error in the trial court’s decision to grant a directed verdict on the basis
of facts admitted by default. Because facts germane to Ms. Smith’s cause of action were admitted,
after construing the evidence most strongly in favor of Ms. Smith, reasonable minds could come
to but one conclusion. See Civ.R. 50(A)(4); Parrish at ¶ 16. Directed verdict was therefore
properly granted by the trial court.
{¶11} Under this first assignment of error, Ms. Smith additionally raises the argument that
she had served Ms. Bernaciak’s counsel with responses to the requests for admissions within 28
days of their receipt and cooperated with counsel to ensure access to the responses. The record
does not support this contention. Ms. Bernaciak served her requests for admissions upon Ms.
Smith on September 10, 2020. The record indicates that although Ms. Smith provided a link to a
Google Drive account allegedly containing responses to the requests for admissions on October 7,
2020, the link was not accessible. A working link was not provided until December 8, 2020, well
outside of the 28-day window. Neither of these electronic responses included a certificate of
service as required under Civ.R. 5(B)(4).
{¶12} Ms. Smith’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO PERMIT
APPELLANT OPPORTUNITY TO WITHDRAW OR AMEND MATTERS
ALLEGEDLY DEEMED ADMITTED.
{¶13} In her second assignment of error, Ms. Smith argues the trial court erred by failing
to permit her to withdraw or amend the admissions. We do not agree.
{¶14} As we noted above, under some circumstances a trial court may permit a party to
withdraw or amend his admissions. Sheeler, 1999 WL 247110, at *3. “Doing so must aid in the
presentation of the merits of the action and must not prejudice the party who obtained the
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admissions.” Id. Assuming both conditions are met, the decision as to whether to permit
withdrawal or amendment is within the sound discretion of the trial court. See Cleveland Trust
Co.,
20 Ohio St.3d at 68. A reviewing court may reverse a discretionary decision of the trial court
only if the trial court abused its discretion in making the decision. Lindley,
10 Ohio St.3d at 70.
A court abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner.
Id.
{¶15} Although Ms. Smith did not move the trial court to withdraw or amend her
admissions, “[c]ourts have generally acknowledged that the challenging of the truth of the
admissions may be treated as an implicit motion to withdraw.” Yoder v. Bennett, 9th Dist. Summit
No. 27667, 2015–Ohio–3752, ¶ 10. See also Balson v. Dodds, 62 Ohio St.2d 287, 290 (1980), fn.
2 (“[T]he trial court could reasonably find that, by contesting the truth of the Civ.R. 36(A)
admissions for the purposes of summary judgment, appellee satisfied the requirement of Civ.R.
36(B) that she move the trial court to withdraw or amend these admissions.”).
{¶16} Although a trial court thus has discretion in determining whether the motion
requirement was satisfied, it also continues to have discretion as to whether to permit a party to
amend or withdraw admissions. See Cleveland Trust Co. at 68. We find no abuse of discretion
by the trial court in its determination that facts had been deemed admitted under Civ.R. 36, nor do
we find any abuse of discretion by the trial court in not allowing for the amendment or withdrawal
of those admissions. The record shows that Ms. Smith failed to properly respond to the request
for admissions, which resulted in default admissions, failed to file for leave to file an untimely
response, and failed to move the court to withdraw or amend the admissions. Although the trial
court had discretion to allow for the withdrawal or amendment of admissions, it was under no
obligation to do so.
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{¶17} Ms. Smith’s second assignment of error is overruled.
III.
{¶18} Ms. Smith’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
CONCURS.
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CALLAHAN, J.
DISSENTING.
{¶19} Given the circumstances surrounding the admissions in this case, the trial court
abused its discretion by failing to permit Ms. Smith to amend or withdraw them as permitted by
Civ.R. 36(B). See generally In re N.F., 9th Dist. Summit No. 29508, 2020-Ohio-2701, ¶ 7, fn. 1.
I would sustain Ms. Smith’s second assignment of error and reverse the trial court’s judgment on
that basis.
{¶20} I respectfully dissent.
APPEARANCES:
R. SAMUEL GILLEY, Attorney at Law, for Appellant.
ELIZABETH R. EMANUEL and DAVID A. ZULANDT, Attorneys at Law,
MARK CRAIG, Attorney at Law, for Appellee.
