978-1285770178 Case Printout Case CPC-01-08

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Vilardo v. Sheets
Not Reported in N.E.2d, 2006 WL 1843585 (Ohio App. 12 Dist.), 2005 -Ohio-
No. CA2005-09-091.
Decided July 3, 2006.
wedding anniversary. David Sheets, the sole owner and proprietor of Travel
Center, Inc., accepted Vilardo's $6,900 payment covering airfare and
airline ticket and related services for travel to Florida in February 2005. Again,
Sheets maintained that he had consummated the transaction and arranged the
d/b/a Travel Center, Travel Artists, Inc., Travel Artists, Travel House, Inc., and
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other things, fraud, theft, breach of contract, unjust enrichment, and Ohio Sales
Practices Act violations. Sheets filed a pro se answer on March 17, 2005 denying
all claims.
through a licensed attorney in order to properly answer a complaint. Sheets' pro
se answer could not be deemed to be on behalf of Travel Center, Inc. Because
the entity failed to file an answer or otherwise appear, the trial court ordered
default judgment against Travel Center, Inc. on July 15, 2005.
{¶ 7} After Sheets failed to timely respond to a request for admissions that
newly-retained counsel was unable to attend the hearing due to a commitment in
another court. Neither Sheets nor his attorney appeared at the July 22 hearing.
The trial court granted Vilardo's motion on July 25, 2005.
{¶ 8} On July 28, 2005, Sheets moved for an extension to respond to Vilardo's
summary judgment motion. Sheets also filed a motion on August 3 asking the
damages in the amount of $8,277.35, trebled to $24,832.05 for violation of Ohio's
Consumer Sales Practices Act. The court also overruled Sheets' motion for an
extension and his motions for reconsideration. Sheets timely appealed, raising
six assignments of error.
{¶ 10} Assignment of Error No. 1:
served as a responsive pleading for Travel Center, Inc.
{¶ 13} Default judgment is proper where a party against whom relief is sought
fails to plead or otherwise respond. Civ.R. 55(A). A defendant is required to serve
an answer within 28 days after receipt of the summons and complaint. Civ.R.
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12(A). Under Ohio law, a defendant that is a corporate entity may only appear
deemed appropriate. Written objections to a magistrate's decision must be filed
within 14 days of the decision. Civ.R. 53(E)(3)(a). By failing to do so, Sheets
waived the right to assign as error on appeal the trial court's adoption of any
finding of fact or conclusion of law. Civ.R. 53(E)(3)(d). The magistrate's decision
awarded default judgment on the basis that Travel Center, Inc. was a corporate
not a corporate entity, the issue was conclusively established when Sheets
admitted otherwise. In his answer, Sheets verified that “Travel Center, Inc. * * * is
an Ohio Corporation, partnership, enterprise, proprietorship, or other entity
engaged in the business of providing travel related services to the public.” In
addition, pursuant to the information admitted to in Vilardo's request for
{¶ 16} We further note that, in his first assignment of error, Sheets claims that
Travel Center, Inc. is a nonentity and as such may be represented by his pro se
answer to Vilardo's complaint. Contrarily, in his fifth assignment of error, Sheets
invokes the corporate veil in an attempt to avoid personal liability for Vilardo's
claims. Corporate veil piercing renders a shareholder in a corporation personally
against Travel Center, Inc., Sheets relies upon its status as a nonentity. These
two arguments are logically irreconcilable. Ultimately, however, this misstep is of
no consequence in view of Sheets' admission that Travel Center, Inc. is a sole
proprietorship and the resultant inapplicability of the corporate veil doctrine.
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{¶ 17} Because Travel Center, Inc. failed to answer the complaint, default
motion to deem admitted the subject matter of the request for admissions
propounded upon Sheets. Sheets protests that his attorney was unable to attend
the July 22 hearing due to a scheduling conflict, and that the proceeding was not
a proper motion hearing.FN2
FN2. Sheets claims that the July 22 hearing “was changed from a motion hearing
request for admissions is served, the matters contained therein are admitted
unless the receiving party serves written answers or objects to the items within
28 days of service. Civ.R. 36(A). Because the Ohio Rules of Civil Procedure
explicitly provide for default admissions upon the recipient's failure to timely
respond, the fact that the court deemed the admissions admitted following the
Marusa v. City of Brunswick, Medina App. No. 04CA0038-M, 2005-Ohio-1135, ¶
20, quoting Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67.
{¶ 23} Once filed, Sheets never opposed or otherwise responded to Vilardo's
motion to deem admitted. We emphasize the importance of timely responding to
a request for admissions. Admitted matters are conclusively established unless
not pursue any ameliorative measures. Not only did he entirely fail to respond to
or oppose the admissions, but he failed to file for leave to file an untimely
response and failed to move the court to withdraw or amend the admissions. As
a result, the subject matter of the admissions was conclusively established and
properly incorporated into the record. This consequence, and the means to avoid
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{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
GRANT DEFENDANT-APPELLANT'S MOTION FOR AN EXTENSION OF
TIME.”
{¶ 27} Sheets retained counsel on July 18 and on July 28 filed a motion seeking
a 20-day extension in which to respond to Vilardo's July 14 motion for summary
App. No. CA2003-10-013, 2004-Ohio-7136, ¶ 17. An abuse of discretion implies
that the court's decision was unreasonable, arbitrary, or unconscionable, and not
merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219.
further discovery in order to develop its opposition to the motion. The opposing
party must submit an affidavit stating its reasons justifying an extension. Where
no affidavit is presented to support a motion for an extension under Civ.R. 56(F),
a court may not grant an extension pursuant thereto. See Washington v.
Concordia Care, Cuyahoga App. No. 84211, 2005-Ohio-3165, ¶ 27, citing State
J Kartway, Preble App. No. CA2005-06-011, 2006-Ohio-881, ¶ 24. Sheets has
thus waived this argument for purposes of appeal. See id.
{¶ 31} Sheets' third assignment of error is overruled.
{¶ 32} Assignment of Error No. 4:
{¶ 33} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
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admitted was filed a mere eight days prior to the July 22 hearing, and that his
attorney was denied the opportunity to gather information before the trial court's
ruling on the motion.
{¶ 35} A motion for reconsideration addressed to a trial court decision is a nullity.
This court has previously noted that the Ohio Rules of Civil Procedure do not
JUDGMENT ON DAVID SHEETS INDIVIDUALLY.”
{¶ 39} Sheets disputes the trial court's awarding of summary judgment against
him individually on the basis that Vilardo provided insufficient evidence to pierce
the corporate veil to impose personal liability.
{¶ 40} We review a trial court's decision on a summary judgment motion de novo.
moving party bears the initial burden of informing the court of the basis for the
motion, and demonstrating the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. If the moving party
meets its burden, the nonmoving party has a reciprocal burden to set forth
specific facts showing a genuine issue for trial. Id.
of the individual who owns it.” Patterson v. v. & M Auto Body (1992), 63 Ohio
St.3d 573, 574-75. Thus Sheets, the lone owner and proprietor of Travel Center,
Inc., is the party personally responsible for all obligations of the entity. See id.,
citing Duval v. Midwest Auto City, Inc. (D.Neb.1977), 425 F.Supp. 1381, 1387.
{¶ 42} Sheets admitted all pertinent facts relative to Vilardo's claims and failed to
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APPELLANT SHEETS TO DISCLOSE INFORMATION.”
{¶ 46} Sheets invokes his Fifth Amendment privilege against compelled self-
incrimination to argue that the trial court abused its discretion when it subjected
him to Vilardo's request for admissions. Sheets maintains that such potentially
incriminating disclosures violated his Fifth Amendment rights in light of a
v. Meyers (1975), 419 U.S. 449, 461, 95 S.Ct. 584. The privilege applies in both
civil and criminal proceedings, shielding a witness or defendant from self-
incrimination through compelled testimony or other compelled acts that are
deemed testimonial in nature. Cincinnati v. Bawtenheimer (1992), 63 Ohio St.3d
260, 264, citing Maness at 461.
Vilardo's request for admissions, Sheets allowed the deadline to lapse without
submitting any response or objection. Pursuant to the rules, Sheets' inaction
resulted in default admissions. See Civ.R. 36. See, also, Cleveland Trust, 20
Ohio St.3d at 67. A holding by this court declaring that the Fifth Amendment
privilege against self-incrimination automatically obviates the imposition of default
incrimination because Civ.R. 36(B) insulates the privilege by providing that
admissions cannot be used against a party in any other proceeding. See
Lefkowitz v. Turley (1973), 414 U.S. 70, 78, 94 S.Ct. 316. Thus, Sheets' Fifth
Amendment privilege against self-incrimination was not abrogated by inclusion of
the default admissions.
{¶ 50} Sheets' sixth assignment of error is overruled.
{¶ 51} Judgment affirmed.
other things, fraud, theft, breach of contract, unjust enrichment, and Ohio Sales
Practices Act violations. Sheets filed a pro se answer on March 17, 2005 denying
all claims.
through a licensed attorney in order to properly answer a complaint. Sheets' pro
se answer could not be deemed to be on behalf of Travel Center, Inc. Because
the entity failed to file an answer or otherwise appear, the trial court ordered
default judgment against Travel Center, Inc. on July 15, 2005.
{¶ 7} After Sheets failed to timely respond to a request for admissions that
newly-retained counsel was unable to attend the hearing due to a commitment in
another court. Neither Sheets nor his attorney appeared at the July 22 hearing.
The trial court granted Vilardo's motion on July 25, 2005.
{¶ 8} On July 28, 2005, Sheets moved for an extension to respond to Vilardo's
summary judgment motion. Sheets also filed a motion on August 3 asking the
damages in the amount of $8,277.35, trebled to $24,832.05 for violation of Ohio's
Consumer Sales Practices Act. The court also overruled Sheets' motion for an
extension and his motions for reconsideration. Sheets timely appealed, raising
six assignments of error.
{¶ 10} Assignment of Error No. 1:
served as a responsive pleading for Travel Center, Inc.
{¶ 13} Default judgment is proper where a party against whom relief is sought
fails to plead or otherwise respond. Civ.R. 55(A). A defendant is required to serve
an answer within 28 days after receipt of the summons and complaint. Civ.R.
12(A). Under Ohio law, a defendant that is a corporate entity may only appear
deemed appropriate. Written objections to a magistrate's decision must be filed
within 14 days of the decision. Civ.R. 53(E)(3)(a). By failing to do so, Sheets
waived the right to assign as error on appeal the trial court's adoption of any
finding of fact or conclusion of law. Civ.R. 53(E)(3)(d). The magistrate's decision
awarded default judgment on the basis that Travel Center, Inc. was a corporate
not a corporate entity, the issue was conclusively established when Sheets
admitted otherwise. In his answer, Sheets verified that “Travel Center, Inc. * * * is
an Ohio Corporation, partnership, enterprise, proprietorship, or other entity
engaged in the business of providing travel related services to the public.” In
addition, pursuant to the information admitted to in Vilardo's request for
{¶ 16} We further note that, in his first assignment of error, Sheets claims that
Travel Center, Inc. is a nonentity and as such may be represented by his pro se
answer to Vilardo's complaint. Contrarily, in his fifth assignment of error, Sheets
invokes the corporate veil in an attempt to avoid personal liability for Vilardo's
claims. Corporate veil piercing renders a shareholder in a corporation personally
against Travel Center, Inc., Sheets relies upon its status as a nonentity. These
two arguments are logically irreconcilable. Ultimately, however, this misstep is of
no consequence in view of Sheets' admission that Travel Center, Inc. is a sole
proprietorship and the resultant inapplicability of the corporate veil doctrine.
{¶ 17} Because Travel Center, Inc. failed to answer the complaint, default
motion to deem admitted the subject matter of the request for admissions
propounded upon Sheets. Sheets protests that his attorney was unable to attend
the July 22 hearing due to a scheduling conflict, and that the proceeding was not
a proper motion hearing.FN2
FN2. Sheets claims that the July 22 hearing “was changed from a motion hearing
request for admissions is served, the matters contained therein are admitted
unless the receiving party serves written answers or objects to the items within
28 days of service. Civ.R. 36(A). Because the Ohio Rules of Civil Procedure
explicitly provide for default admissions upon the recipient's failure to timely
respond, the fact that the court deemed the admissions admitted following the
Marusa v. City of Brunswick, Medina App. No. 04CA0038-M, 2005-Ohio-1135, ¶
20, quoting Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67.
{¶ 23} Once filed, Sheets never opposed or otherwise responded to Vilardo's
motion to deem admitted. We emphasize the importance of timely responding to
a request for admissions. Admitted matters are conclusively established unless
not pursue any ameliorative measures. Not only did he entirely fail to respond to
or oppose the admissions, but he failed to file for leave to file an untimely
response and failed to move the court to withdraw or amend the admissions. As
a result, the subject matter of the admissions was conclusively established and
properly incorporated into the record. This consequence, and the means to avoid
{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
GRANT DEFENDANT-APPELLANT'S MOTION FOR AN EXTENSION OF
TIME.”
{¶ 27} Sheets retained counsel on July 18 and on July 28 filed a motion seeking
a 20-day extension in which to respond to Vilardo's July 14 motion for summary
App. No. CA2003-10-013, 2004-Ohio-7136, ¶ 17. An abuse of discretion implies
that the court's decision was unreasonable, arbitrary, or unconscionable, and not
merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219.
further discovery in order to develop its opposition to the motion. The opposing
party must submit an affidavit stating its reasons justifying an extension. Where
no affidavit is presented to support a motion for an extension under Civ.R. 56(F),
a court may not grant an extension pursuant thereto. See Washington v.
Concordia Care, Cuyahoga App. No. 84211, 2005-Ohio-3165, ¶ 27, citing State
J Kartway, Preble App. No. CA2005-06-011, 2006-Ohio-881, ¶ 24. Sheets has
thus waived this argument for purposes of appeal. See id.
{¶ 31} Sheets' third assignment of error is overruled.
{¶ 32} Assignment of Error No. 4:
{¶ 33} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
admitted was filed a mere eight days prior to the July 22 hearing, and that his
attorney was denied the opportunity to gather information before the trial court's
ruling on the motion.
{¶ 35} A motion for reconsideration addressed to a trial court decision is a nullity.
This court has previously noted that the Ohio Rules of Civil Procedure do not
JUDGMENT ON DAVID SHEETS INDIVIDUALLY.”
{¶ 39} Sheets disputes the trial court's awarding of summary judgment against
him individually on the basis that Vilardo provided insufficient evidence to pierce
the corporate veil to impose personal liability.
{¶ 40} We review a trial court's decision on a summary judgment motion de novo.
moving party bears the initial burden of informing the court of the basis for the
motion, and demonstrating the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. If the moving party
meets its burden, the nonmoving party has a reciprocal burden to set forth
specific facts showing a genuine issue for trial. Id.
of the individual who owns it.” Patterson v. v. & M Auto Body (1992), 63 Ohio
St.3d 573, 574-75. Thus Sheets, the lone owner and proprietor of Travel Center,
Inc., is the party personally responsible for all obligations of the entity. See id.,
citing Duval v. Midwest Auto City, Inc. (D.Neb.1977), 425 F.Supp. 1381, 1387.
{¶ 42} Sheets admitted all pertinent facts relative to Vilardo's claims and failed to
APPELLANT SHEETS TO DISCLOSE INFORMATION.”
{¶ 46} Sheets invokes his Fifth Amendment privilege against compelled self-
incrimination to argue that the trial court abused its discretion when it subjected
him to Vilardo's request for admissions. Sheets maintains that such potentially
incriminating disclosures violated his Fifth Amendment rights in light of a
v. Meyers (1975), 419 U.S. 449, 461, 95 S.Ct. 584. The privilege applies in both
civil and criminal proceedings, shielding a witness or defendant from self-
incrimination through compelled testimony or other compelled acts that are
deemed testimonial in nature. Cincinnati v. Bawtenheimer (1992), 63 Ohio St.3d
260, 264, citing Maness at 461.
Vilardo's request for admissions, Sheets allowed the deadline to lapse without
submitting any response or objection. Pursuant to the rules, Sheets' inaction
resulted in default admissions. See Civ.R. 36. See, also, Cleveland Trust, 20
Ohio St.3d at 67. A holding by this court declaring that the Fifth Amendment
privilege against self-incrimination automatically obviates the imposition of default
incrimination because Civ.R. 36(B) insulates the privilege by providing that
admissions cannot be used against a party in any other proceeding. See
Lefkowitz v. Turley (1973), 414 U.S. 70, 78, 94 S.Ct. 316. Thus, Sheets' Fifth
Amendment privilege against self-incrimination was not abrogated by inclusion of
the default admissions.
{¶ 50} Sheets' sixth assignment of error is overruled.
{¶ 51} Judgment affirmed.

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