Opinion
NO. 2019-CA-000242-MR
03-27-2020
ERIN ROBERTS APPELLANT v. MITCHELL SIMONS APPELLEE
BRIEFS FOR APPELLANT: Bryan C. Berger Covington, Kentucky BRIEF FOR APPELLEE: David F. Fessler Ft. Thomas, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 18-CI-00445 OPINION
AFFIRMING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: Erin Roberts appeals from a memorandum opinion and judgment entered by the Campbell Circuit Court in favor of Mitchell Simons. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Simons filed a civil complaint against Roberts on May 22, 2018. Therein, Simons alleged two claims for money damages. First, he alleged he gave Roberts $12,500 to invest in her business, Abingdin Equestrian Wear, LLC, in exchange for twenty-five units of the business, but Roberts took the money and spent it on personal items. Second, Simons alleged he loaned Roberts $4,000 for personal expenses, but she refused to pay him back.
In early July 2018, Simons served Roberts with plaintiff's interrogatories, requests for production of documents, and requests for admission. When Roberts failed to respond to the discovery requests, on September 4, 2018, Simons filed a motion for summary judgment. Therein, he stated the requests for admissions had not been answered within the time allowed by law and he was, therefore, entitled to summary judgment.
Roberts responded to the discovery requests on October 22, 2018, but the circuit court nevertheless entered summary judgment in Simons's favor in early January 2019. The judgment was granted in the amount of $16,500, representing $12,500 for the investment and $4,000 for the loan, plus costs. Although the court gave no explanation for granting the judgment, it is apparent the court had determined that, as Roberts had not responded to the requests for admission, the matters thereby admitted resolved all fact issues in Simons's favor. This appeal by Roberts followed.
Roberts argues in this appeal that the circuit court abused its discretion by administering the civil "death penalty" due to her not responding to the requests for admission and erroneously did not consider less severe alternative punishment. Further, Roberts argues that, even if the answers to the requests for admissions were deemed admitted, there were still material facts to be determined and summary judgment was therefore inappropriate.
In support of Roberts's argument, she cites Greathouse v. American National Bank and Trust Co., 796 S.W.2d 868 (Ky. App. 1990). In that case, after the plaintiff served interrogatories and a request for production of documents on the defendant's attorney, the defendant failed to respond. Id. at 869. The plaintiff then moved the trial court to compel discovery by the defendant, and the court ordered the defendant to answer the discovery attempts within thirty days. Id.
When the defendant again failed to answer or respond, the plaintiff moved the trial court to hold the defendant in contempt. Id. Following a hearing, rather than holding the defendant in contempt, the court held CR 37.02(2) sanctions were appropriate, ordered the defendant's answer and counterclaim stricken, and directed plaintiff's counsel to prepare and tender a default judgment, which the court later entered. Id.
Kentucky Rules of Civil Procedure. --------
The appellate court in Greathouse vacated the judgment and remanded the case to the trial court based on the lack of specific findings in support of the court's decision. Id. at 870. As noted by Roberts in her brief, the appellate court stated there are three factors to consider in reviewing the imposition of sanctions for abuse of discretion: "(1) whether the adversary was prejudiced by the dismissed party's failure to cooperate in discovery, (2) whether the dismissed party was warned that failure to cooperate could lead to dismissal, and (3) whether less drastic sanctions were imposed or considered before dismissal was ordered." Id. (quoting Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir. 1988)).
Roberts argues her failure to respond to discovery requests did not warrant granting summary judgment to Simons and this was the equivalent to the granting of a default judgment as in the Greathouse case. Roberts notes how Simons never filed a motion to compel discovery and the court never made any written findings of fact or conclusions of law to explain the reason why it granted the motion.
The facts in the Greathouse case are distinguishable from the facts in this case. Greathouse dealt with CR 37.02(2) sanctions, whereas this case involves the effect of the failure to answer requests for admission.
CR 36.01(1) provides, in relevant 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 the scope of Rule 26.02 set forth in the request that relates to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request." CR 36.01(2), in relevant part, states: "The matter is admitted unless, within 30 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 his attorney. . . ." CR 36.02, in relevant part, states: "Any matter admitted under Rule 36 is conclusively established unless the court on motion permits withdrawal or amendment of the admission."
"Once a party has been served with a request for admissions, that request cannot simply be ignored with impunity. Pursuant to CR 36.01, the failure of a party to respond to such a request means that the party admits the truth of the allegations asserted." Buridi v. Leasing Group Pool II, LLC, 447 S.W.3d 157, 174-75 (Ky. App. 2014) (quoting Harris v. Stewart, 981 S.W.2d 122, 124 (Ky. App. 1998)). Also,
any matter admitted under the rule is held to be conclusively established unless the trial court permits the withdrawal or amendment of the admissions. CR 36.02. Thus, an inattentive party served with a request for admissions may run the risk of having a judgment entered against him based upon the failure to respond.Id. at 175 (quoting Harris, 981 S.W.2d at 124).
In this case Roberts failed to respond to the requests for admissions, and she did not file a motion asking the trial court for permission to withdraw or amend the admissions pursuant to CR 36.02. Thus, the truth of the matter asserted was "conclusively established." See Lewis v. Kenady, 894 S.W.2d 619, 621 (Ky. 1994).
Finally, Roberts contends that, even if the requests are deemed admitted, such would not be fatal to her case as genuine issues of material fact were still present.
Because the requests for admissions were deemed admitted, Roberts admitted she: (1) approached or solicited Simons to invest in her business; (2) told Simons his investment money would be used in connection with the business; (3) told Simons he would receive twenty-five units in the business for his investment; (4) told Simons that by owning twenty-five units he would be entitled to receive a share of any profits, gains, or dividends; (5) told Simons the investment money would be used solely for the business; (6) failed to provide the twenty-five units to Simons; (7) spent all or part of the money on personal items; (8) failed to pay Simons back for the $12,500 he had invested; (9) took the money and invested it for her personal use; (10) borrowed $4,000 from Simons; and (11) failed to repay him for the loan.
We conclude that these admissions are sufficient to support the summary judgment awarded in favor of Simons.
The memorandum opinion and judgment of the Campbell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Bryan C. Berger
Covington, Kentucky BRIEF FOR APPELLEE: David F. Fessler
Ft. Thomas, Kentucky