[Cite as Commodity Blenders, Inc. v. Van Wezel, 2016-Ohio-7993.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

COMMODITY BLENDERS, INC.                                  C.A. No.   14AP0046

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
JEROEN VAN WEZEL, et al.                                  COURT OF COMMON PLEAS
                                                          COUNTY OF WAYNE, OHIO
        Appellants                                        CASE No.   13-CV-0165

                                DECISION AND JOURNAL ENTRY

Dated: December 5, 2016



        CARR, Judge.

        {¶1}    Appellants, Jeroen and Jose Van Wezel, appeal the judgment of the Wayne

County Court of Common Pleas. This Court reverses and remands.

                                                     I.

        {¶2}    On March 18, 2013, Community Blenders, Inc. (“CBI”) filed a complaint against

Jeroen and Jose Van Wezel, alleging claims of breach of contract, failure to pay an account

stated, and unjust enrichment. CBI noted that Wezbra Dairy, a company owned by the Van

Wezels, had recently filed a bankruptcy petition and that CBI sought to recover against the Van

Wezels in their individual capacity. The Van Wezels filed an answer in which they generally

denied the allegations in the complaint and raised multiple affirmative defenses. The Van

Wezels maintained that CBI’s dispute was solely with Wezbra Dairy and not the Van Wezels

individually.
                                                 2


       {¶3}    Several significant events transpired during the course of discovery. The Van

Wezels obtained an admission from CBI declaring that the Van Wezels did not sign a legal

document personally guaranteeing the debts of Wezbra Dairy. CBI subsequently obtained a

credit application that it considered evidence of a personal guarantee of the debts of Wezbra

Dairy. CBI then filed an amended complaint which included a claim that the Van Wezels had

violated the terms of the credit application. The Van Wezels filed an amended answer, again

denying that they personally guaranteed the debts of Wezbra Dairy.

       {¶4}    On July 18, 2014, CBI filed a motion for summary judgment. The Van Wezels

filed a motion for partial summary judgment on that same day. CBI moved the trial court to

withdraw its previous admission. The trial court granted the motion to withdraw the admission.

Without permitting additional discovery, the trial court denied the Van Wezels’ motion for

partial summary judgment and granted CBI’s motion for summary judgment.

       {¶5}    On appeal, the Van Wezels raise four assignments of error.                 This Court

consolidates and rearranges certain assignments of error in order to facilitate review.

                                                II.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING CBI’S
       MOTION TO WITHDRAW ADMISSION.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN GRANTING CBI’S MOTION FOR
       SUMMARY JUDGMENT.

       {¶6}    In their second and fourth assignments of error, the Van Wezels argue that the

trial court abused its discretion by granting CBI’s motion to withdraw admission and granting

CBI’s motion for summary judgment. This Court agrees.
                                                 3


       {¶7}    This Court reviews a trial court’s decision to grant or deny a motion to withdraw

an admission for an abuse of discretion. Albrecht, Inc. v. Hambones Corp., 9th Dist. Summit No.

20993, 2002-Ohio-5939, ¶ 11. A trial court’s ruling on a motion to compel discovery is also

reviewed for an abuse of discretion. State ex rel. The V Cos. v. Marshall, 81 Ohio St. 3d 467, 469

(1998). An abuse of discretion is more than an error of judgment; it means that the trial court

was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983).

       {¶8}    Under Civ.R. 36(A), a party to a lawsuit may serve a request for admissions upon

another party. “The purpose of this process is to facilitate early resolution of potentially disputed

issues, thereby expediting the trial.” Albrecht at ¶ 12, citing Cleveland Trust Co. v. Willis, 20
Ohio St. 3d 66, 67 (1985).       The facts deemed admitted under Civ.R. 36 are conclusively

established unless the trial court, on motion, permits withdrawal or amendment of the admission.

“A request for admission can be used to establish a fact, even if it goes to the heart of the case.”

Cleveland Trust Co., 20 Ohio St. 3d at 67.

       {¶9}    Civ.R. 36(B) provides that a party may alter responses to requests for admissions,

or withdraw admissions, but only when expressly permitted by the trial court:

       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.

“Civ.R 36(B) 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
                                                 4


not operate to his or her prejudice.” Nelson v. Tipton, 10th Dist. Franklin No. 99AP-277, 1999
WL 1041154, *3 (Nov. 18, 1999), citing Cleveland Trust Co., 20 Ohio St. 3d at 67.

       {¶10} The procedural sequence that unfolded in this case is central to our analysis. CBI

responded to a request for admissions on December 3, 2013, and offered the following

admission:

       Request for Admission No. 14:

       Admit that Defendants Jeroen Van Wezel and Jose Van Wezel did not personally
       guaranty the debts referenced in the Complaint.

       RESPONSE:

       Admitted in part and denied in part. Plaintiff admits that there is no
       separate written guaranty signed by the Van Wezels. Plaintiff denies that the
       Van Wezels are not personally liable on their account with Plaintiff.

As discovery progressed, CBI discovered a document created in 2008 captioned “Credit

Application.” The credit application, which was drafted by CBI, created a credit account for

Wezbra Dairy, LLC, and was signed by Jose and Jeroen Van Wezel. CBI proceeded to file an

amended complaint on February 12, 2014, that included claims that the credit application

constituted evidence that the Van Wezels personally guaranteed the debts of Wezbra Dairy. The

Van Wezels promptly filed an amended answer asserting multiple affirmative defenses and

denying that the credit application constituted a personal guarantee.

       {¶11} The trial court issued a case management order stating that July 18, 2014, would

be the discovery deadline as well as the deadline to file dispositive motions. On July 18, 2014,

the Van Wezels filed a motion to compel discovery wherein they requested that CBI produce the

contact information for two former employees, Tim Dixon and George Sapon. The Van Wezels

argued that CBI’s Civ.R. 30(B) witness stated during his deposition that Dixon’s handwriting

was on the credit application and that Dixon had been the “point person” in negotiating the
                                               5


promissory note between the two parties. Also on July 18, 2014, CBI filed a motion for

summary judgment and the Van Wezels filed a motion for partial summary judgment. Each

party filed a responsive brief in opposition to the other’s motion for summary judgment. On

August 4, 2014, CBI filed a response to the motion to compel as well as a motion to withdraw its

prior admission.

       {¶12} On September 8, 2014, the trial court granted CBI’s motion to withdraw

admission. Two weeks later, on September 22, the trial court issued an order denying the Van

Wezels’ motion for summary judgment. The next day, despite never issuing a ruling on the Van

Wezels’ motion to compel discovery, the trial court issued a journal entry granting summary

judgment on behalf of CBI on the basis that the language of the credit application created a

personal guarantee on behalf of the Van Wezels.

       {¶13} The trial court abused its discretion when it granted CBI’s motion to withdraw

admission and declined to rule on the Van Wezels' motion to compel.            As noted above,

permitting a party to withdraw an admission is appropriate only when the nonmoving party

would not be prejudiced in maintaining its defense on the merits. Balson v. Dodds, 62 Ohio

St.2d 287, 290 (1980). The parties offered competing arguments regarding the significance of

the credit application. CBI’s admission was acutely relevant to that issue, and it was a critical

component not only in the Van Wezels’ motion for partial summary judgment, but also in the

Van Wezels’ ability to respond CBI’s motion for summary judgment. The timing of the motion

to withdraw an admission is an important factor in determining whether the withdrawal would be

prejudicial. Albrecht, 2002-Ohio-5939, at ¶ 20. In this case, CBI filed the motion to withdraw

admission after the Van Wezels relied on that admission in responding to CBI’s motion for

summary judgment. This Court has held that a trial court abuses its discretion when it grants a
                                                 6


motion to withdraw admission after a party relies on that admission in opposing summary

judgment. Heiland v. Smith, 9th Dist. Lorain No. 11CA010137, 2013-Ohio-134, ¶ 16-17. When

a trial court grants the withdrawal of an admission under these circumstances, it must permit

additional discovery prior to ruling on the motion for summary judgment. Heiland at ¶ 17;

HSBC Mtge. Servs., Inc. v. Watson, 3d Dist. Paulding No. 11-14-03, 2015-Ohio-221, ¶ 29. Here,

the trial court granted the motion to withdraw admission without allowing any opportunity for

further discovery prior to ruling on the motions for summary judgment.1 This constituted an

abuse of discretion as the trial court’s actions fundamentally altered the evidentiary posture of

the summary judgment proceedings and effectively prevented the Van Wezels from maintaining

their defense on the merits.

       {¶14} The second and fourth assignments of error are sustained.

                                ASSIGNMENT FOR ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE VAN
       WEZELS’ MOTION TO COMPEL.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DENYING THE VAN WEZELS’ MOTION
       FOR PARTIAL SUMMARY JUDGMENT.

       {¶15} In their first and third assignments of error, the Van Wezels argue that the trial

court erred by denying their motion to compel discovery and by denying their motion for

summary judgment. As our resolution of the second and fourth assignments of error reopens

discovery in this matter, our resolution of those assignments of error is dispositive of this appeal.




       1
         While we take no position on the propriety of CBI’s motion to withdraw admission
generally, we note that it was error to grant the motion under the specific circumstances of this
case where the trial court proceeded to summary judgment without permitting additional
discovery.
                                                 7


We decline to address the first and third assignments of error as they are rendered moot. See

App.R. 12(A)(1)(c).

                                                III.

       {¶16} The Van Wezels’ second and fourth assignments of error are sustained. We

decline to address the first and third assignments of error as they have been rendered moot. The

judgment of the Wayne County Court of Common Pleas is reversed and the cause remanded for

further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       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 Wayne, 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 Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                                 8




SCHAFER, J.
CONCURS.

HENSAL, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶17} While I agree that the trial court’s judgment must be reversed and remanded for

further proceedings, I would do so on a different basis. As the majority points out, the trial court

found that the unambiguous language of the credit application included a personal guarantee that

rendered the Van Wezels personally liable for the debts of Wezbra Dairy. The trial court’s

judgment entry, however, is devoid of any discussion regarding the effect, if any, the

subsequently executed promissory note had on the Van Wezels’ obligations under the credit

application.2 This is significant given that the Van Wezels specifically argued below that “even

if the Credit Application is a personal guarantee, [their] liability under the Credit Application

was discharged by the subsequent promissory note between Wezbra Dairy and [Commodity

Blenders, Inc.].” They also raised this issue on appeal, arguing that this Court should reverse the

trial court’s judgment because the trial court “did not even address the overwhelming evidence

that the Van Wezels were relieved from any liability on the Credit Application by execution of

the Promissory Note.”

       {¶18} Because the trial court’s judgment entry does not address the effect, if any, the

subsequently executed promissory note had on the Van Wezels’ obligations under the credit

application, I would reverse and remand the matter for the trial court to consider the Van

Wezels’ argument in this regard in the first instance. See Maurer v. Wayne Cty. Bd. of Cty.


       2
         Although the trial court’s judgment entry mentions the promissory note, it does so only
to highlight the fact that the credit application, unlike the promissory note, did not indicate that
the Van Wezels were signing it in their representative capacity for Wezbra Dairy.
                                                9


Commrs., 9th Dist. Wayne No. 14AP0039, 2015-Ohio-5318, ¶ 11 (reversing and remanding the

trial court’s grant of summary judgment on the basis that the trial court did not address certain

issues in its judgment entry, and noting that, as the “reviewing court, we will not consider the

issues relevant to the motion for summary judgment in the first instance.”).


APPEARANCES:

J. MATTHEW FISHER and JEFFREY R. CORCORAN, Attorneys at Law, for Appellants.

DAVID J. WIGHAM and LUCAS K. PALMER, Attorneys at Law, for Appellee.