holding that the failure to respond to requests for admission deems requests as admittedSummary of this case from First Fin. Bank, N.A. v. Mendenhall
Decided November 27, 1985.
Civil procedure — Requests for admissions — Civ. R. 36 — Failure to respond without justification.
APPEAL from the Court of Appeals for Summit County.
Because the extended series of financial transactions and the lengthy history of this litigation are explained in the lower courts' decisions, we will discuss briefly only those facts which form the basis for this appeal.
In this case appellant, Charles F. Willis, Jr. ("Charles"), appeals from the court of appeals' decision affirming the court of common pleas' determination that Charles must indemnify the estate of Harvey S. Firestone, Jr. ("Harvey") for payments made by the estate on a promissory note that Charles and Harvey both signed in 1969.
On February 15, 1983, the Cleveland Trust Company, n.k.a. Ameritrust Company ("Cleveland Trust"), as Executor of the Estate of Harvey S. Firestone, Jr., filed an amended complaint against Charles F. Willis, Jr. and Elizabeth Firestone Willis ("Elizabeth"), Harvey's daughter and formerly Charles' wife, for possession of securities owned by Charles and Elizabeth and held as collateral by the Firestone Bank, n.k.a. Bank One of Akron, NA ("Firestone"), for payment of the 1969 note. Firestone deposited the securities with the trial court. Cleveland Trust also sought indemnification from Charles.
The 1969 note was the last in a series of notes which Charles and Elizabeth had signed principally to finance Charles' business ventures. Harvey co-signed the last note to protect Elizabeth's financial resources. Charles was unaware that Harvey, instead of Elizabeth, had co-signed the note. After Harvey's death, Firestone presented the 1969 note to Harvey's estate for payment. The estate paid the balance due on the note pursuant to an order from the Summit County Probate Court. Charles contended that Harvey signed the 1969 note as a co-maker rather than as an accommodation party, and therefore Charles was not required to indemnify Harvey's estate.
The Court of Common Pleas of Summit County determined that the signatory status of the parties was conclusively established by Cleveland Trust's requests for admissions. The requests were served on Charles by mail on May 16, 1983 and required a response "within twenty-eight (28) days." On June 27, 1983, the first day of trial, Charles attempted to file his response, but the court refused permission. The requests that established Charles as maker of the note and Harvey as an accommodation party were deemed admitted. The common pleas court granted Cleveland Trust possession of the collateral for purposes of sale and judgment against Charles for the balance of the note. On appeal the court of appeals affirmed the decision of the common pleas court as to Charles.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Brouse McDowell, Frank E. Quirk, Robert E. Kerper, Jr., and Clair E. Dickinson, for appellee Cleveland Trust Company.
Topper, Alloway, Goodman, DeLeone Duffey, John J. Duffey, Hershey Browne and John L. Wolfe, for appellant Charles F. Willis, Jr.
Hahn, Loeser, Freedheim, Dean Wellman, David C. Weiner and Alan S. Kopit, for Elizabeth Willis.
The issue raised by this appeal is whether the trial court correctly ruled that the signatory status of the parties was conclusively established by Cleveland Trust's requests for admissions. We hold that the trial court was correct in that ruling.
Civ. R. 36 requires that when requests for admissions are filed by a party, the opposing party must timely respond either by objection or answer. Failure to respond at all to the requests will result in the requests becoming admissions. Under compelling circumstances, the court may allow untimely replies to avoid the admissions.
In the instant case, Charles did not respond to the requests for admissions until the date of trial, forty-two days after service. The requests designated a period of twenty-eight days within which Charles was to respond. When Charles failed to answer the requests, the admissions became facts of record which the court must recognize.
A request for admission can be used to establish a fact, even if it goes to the heart of the case. This is in accord with the purpose of the request to admit — to resolve potentially disputed issues and thus to expedite the trial. See St. Paul Fire Marine Ins. Co. v. Battle (1975), 44 Ohio App.2d 261, 269 [73 O.O.2d 291].
Any matter admitted under Civ. R. 36 is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Civ. R. 36(B). The court may permit the withdrawal if it will aid in presenting the merits of the case and the party who obtained the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action. Balson v. Dodds (1980), 62 Ohio St.2d 287 [16 O.O.3d 329], paragraph two of the syllabus. This provision emphasizes the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice.
In this case Charles failed to justify his dilatory response to the requests. On appeal Charles suggests that illness prevented his timely response. However, Charles did not move for a protective order or otherwise request relief from the duty of responding to these requests for admissions. Extensions of time may always be asked for and are usually granted on a showing of good cause if timely made under the Civil Rules. In such circumstances we do not see how Charles' illness presented a substantial reason for not responding earlier.
The most emphatic argument Charles now makes is that permission to withdraw and amend his admissions on the first day of trial would not have prejudiced Cleveland Trust in maintaining its action. We disagree. Charles did not cooperate with discovery requests and defied court orders directing him to give his deposition. Because of this conduct Cleveland Trust relied on the requests for admissions as proof of potentially disputed issues. On the first day of trial Charles sought to file his untimely response to the requests for admissions. To permit filing of Charles' response not only would have prejudiced Cleveland Trust's pursuit of its remedy and entailed further delay, but it would have put a premium upon lack of diligence. The record discloses plain failure to respond to the requests without justification for the delay. The trial court did not abuse its discretion by denying Charles' motion to amend.
Although Charles admitted to the trial court that his response to the requests was late, he now argues differently. Charles contends that the instruction with respect to the response time for the requests was improper and that a proper instruction would have read "within thirty-two (32) days." Charles did not raise this argument in the trial court and we need not address it here. Nevertheless, we have examined Charles' argument and find it to be without merit.
Charles primarily relies upon dictum in a municipal court opinion as authority for his contention. Buckeye Union Ins. Co. v. McGraw (1980), 64 Ohio Misc. 61 [18 O.O.3d 322]. See, also, Buckeye Union Ins. Co. v. Regional Transit Auth. (1983), 14 Ohio Misc.2d 11.
In Buckeye Union Ins. Co. v. McGraw, supra, the court stated that the minimum time prescribed by the rules for response to requests to admit which are served by mail is thirty-two days. The court calculated the minimum prescribed time by adding the twenty-eight days provided for in Civ. R. 36(A) to the additional three days provided for in Civ. R. 6(E) when notice is received by mail and then adding a day based on its interpretation of the preposition "within" as used in Civ. R. 36(A). The court stated that if the instruction with respect to the response time for requests to admit fails to give the minimum prescribed time period the party served may ignore the requests.
We disagree with the municipal court's interpretation and construction of the rules. Civ. R. 36(A) states that responses are due "within a period designated in the request, not less than twenty-eight days." A designated period of twenty-eight days satisfies the requirement of the rule.
Civ. R. 6(E) adds three days to a prescribed period of time if the party who must perform a duty receives notice by mail. There is no requirement that the three days be incorporated into the period designated in the notice.
Based on the foregoing we hold the trial court correctly ruled that Cleveland Trust's requests for admissions were admitted. These admissions are dispositive of the appeal. The judgment of the court of appeals is affirmed as to Charles.
Elizabeth did not file a notice of appeal in this court. Nevertheless, in a brief styled "Brief of Defendant-Appellee, Elizabeth Firestone Willis," Elizabeth presents a proposition of law and requests this court to reverse the court of appeals' judgment against her. Elizabeth's contention is not properly before us and we do not consider it on appeal.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.