Besch v. Williams

Civil Appeal from the Rocky River Municipal Court Case No. 19 CVF 2869

J.W. Krueger Law, L.L.C., and Jeffrey W. Krueger, for appellant

Ronald A. Skingle, for appellee Floyd Williams III.

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, PRESIDING JUDGE.

I. Introduction

{¶ 1} Plaintiff-appellant R. Todd Besch ("Besch") appeals the trial court's denial of summary judgment in favor of defendants-appellees John Phillip Williams

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("JW") and Floyd Williams III ("FW"). JW was represented by counsel, and FW appeared pro se below. On appeal, FW is represented by counsel.^[1] We affirm.

II. Background and Facts

{¶ 2} For ease of reference, we extract a portion of the background from the magistrate decision adopted by the trial court as its final judgment in this matter:

Plaintiff has brought this case to recover an alleged cash down payment of $8, 500 to defendants for a siding job on the grounds of breach of contract and violation of the Consumer Sales Practices Act. Defendants maintain they never received the cash deposit and that they never entered into a contract with Plaintiff for the pertinent job

Upon testimony [the] parties agree to the fact that two siding jobs for Plaintiff were quoted by Defendant JPW with JPWs nephew Defendant Floyd as the go between. One job, which is not part of this lawsuit, was in Olmsted Falls and for which deposit of $7, 200 by check was paid by Plaintiff, was started by JPW and then due to illness became delayed and led to a rift between the parties. The other job in Fairview which is the subject of this lawsuit, was negotiated around the same time but the deposit of $8, 500 was allegedly made in cash and JPW alleges to never have agreed to the contract and never started the job and no materials [were] purchased Plaintiff alleges that both the $7, 200 check for the earlier job and the $8, 500 cash for the later job and proposals were all in the envelope given to Floyd to take to his uncle, Defendant JPW.

Plaintiff has no checks or receipts to show the alleged $8, 500 payment although there is a notation on one proposal of that as an amount but it is not marked "received" or "paid." Defendants both deny any knowledge or receipt of the $8, 500. Plaintiff also offers evidence of going to his safety deposit box around the date in question and the deposition of an associate who knew he went to the bank that day however there is no evidence [of] the transaction at the bank. Finally, Plaintiff relies on Defendant Floyd Williams failure or late response to Plaintiffs Requests for Admissions. However, in this case the Motion for Summary Judgment was denied and the Defendant Floyd has now testified and been cross-examined at trial. Said contradictory

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testimony has been considered in case law as an implicit motion to withdraw admissions, especially if it allows a case to be decided on its merits instead of a Rules of Civil Procedure technicality. C.S.J. v. S.E.J., 2020-Ohio-492, 8th Dist. [Cuyahoga No. 108390].

In summary, based on the evidence and testimony presented, this is a case of "he said, he said" and Plaintiff has not established his burden of proof by a preponderance of the evidence.

Therefore judgment is recommended for the Defendants at Plaintiffs costs.

Magistrate decision, p.1 (Mar. 25, 2021), adopted by the judge and journalized same date, Journal book No. 2019, Journal page No. 2869.

III. Assignment of Error

{¶ 3} The single assigned error posed by Besch is "the trial court erred in denying Appellant's motion for summary judgment on his claims against Appellee."

IV. Reviewability

{¶ 4} As a preliminary matter, we sua sponte consider whether the denial of summary judgment may be reviewed on appeal after a trial and judgment on the merits.

[T]he Ohio Supreme Court has held that a trial court's denial of a motion for summary judgment is reviewable on appeal by the movant from a subsequent adverse final judgment. Balson v. Dodds, 62 Ohio St.2d 287, 289, 405 N.E.2d 293 (1980). Furthermore, any error in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was raised. Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 156, 642 N.E.2d 615 (1994). Accordingly, Ohio courts have reviewed denials of summary judgment motions when a judgment has been entered in favor of the nonmoving party. Id.

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Eberhard Architects, L.L.C. v. Schottenstein, Zox & Dunn Co., L.PA., 8th Dist. Cuyahoga No. 102088, 2015-Ohio-2519, ¶ 10.

{¶ 5} In this case, a judgment has been entered in favor of the nonmoving party. Thus, the issue is reviewable.

V. Standard of Review

{¶ 6} "We review an appeal from summary judgment under a de novo standard." Nationstar Mtge. L.L.C. v. Jessie, 8th Dist. Cuyahoga No. 109394, 2021- Ohio-439, ¶ 14, citing Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). "Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate." Id., citing N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997).

{¶ 7} Additionally,

[u]nder Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact and, viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law. On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.

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Maddy v. Honeywell Internal Inc., 8th Dist. Cuyahoga Nos. 108698 and 109066, 2020-Ohio-3969, ¶ 70.

VI. Analysis

{¶ 8} Besch challenges the trial court's denial of summary judgment solely as to FW. Though there is no notice of service of discovery in the record, Besch states that the discovery requests were served on appellees on March 2, 2020, and that the responses were due on April 1, 2020. According to Besch, seven days elapsed prior to implementation of the Covid tolling statute that ended on July 30, 2020.^[2] Besch calculates that the responses were due on August 24, 2020. FW delivered responses to the office of Besch's counsel on October 23, 2020.^[3] On November 1, 2020, FW filed notice in the form of correspondence with the court advising that the discovery responses were delivered on October 23, 2020, and denying Besch's claims. A copy of the responses was attached.

{¶ 9} Civ.R. 36 governs requests for admissions and provides in pertinent part:

(A) Availability; procedures for use * * *

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(1) Each matter of which an admission is requested shall be separately set forth. The party to whom the requests for admissions have been directed shall quote each request for admission immediately preceding the corresponding answer or objection. 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(A)(1).

{¶ 10} Civ.R. 36(B) adds that "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Id.

"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 Rule 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 him for any other purpose nor may it be used against the party in any other proceeding.

Id.

{¶ 11} Besch offers that FW's failure to timely respond to the request for admissions constitutes "'written admissions' for summary judgment purposes and may be relied upon to demonstrate the absence of a genuine issue of material fact for trial under Civ.R. 56(C)." Garfield Estates, L.L.C. v. Whittington, 2021-Ohio-211, 167 N.E.3d 113, ¶ 23 (8th Dist), quoting Civ.R. 56(C).

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{¶ 12} Besch further adds that FW is not excused from compliance with the ...