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Vilardo v. Sheets

Ohio App. 12 Dist.,2006

Not Reported in N.E.2d, 2006 WL 1843585 (Ohio App. 12 Dist.), 2005 -Ohio-

3473

David J. SHEETS, et al., Defendants-Appellants.

CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS

AND WEIGHT OF LEGAL AUTHORITY.

Court of Appeals of Ohio,

Twelfth District, Clermont County.

Ralph J. VILARDO, Sr., Plaintiff-Appellee,

No. CA2005-09-091.

Decided July 3, 2006.

BRESSLER, J.

{¶ 1} Defendant-appellant, David J. Sheets, appeals a decision of the Clermont

County Court of Common Pleas granting default judgment against Travel Center,

Inc. and a decision granting summary judgment to plaintiff-appellee, Ralph J.

Vilardo, Sr. For the reasons outlined below, we affirm the decisions of the trial

court.

{¶ 2} On August 16, 2004, Ralph Vilardo made arrangements with Travel Center,

Inc. to purchase a trip to Florida for December 2004 to celebrate his 50th

wedding anniversary. David Sheets, the sole owner and proprietor of Travel

Center, Inc., accepted Vilardo’s $6,900 payment covering airfare and

accommodations for Vilardo’s family. From the date of purchase to the

commencement of this action, Sheets falsely assured Vilardo that all travel

arrangements and reservations were properly set. No arrangements were ever

made.FN1

FN1. As later stated in the procedural posture, the trial court granted Vilardo’s

motion to deem admitted the subject matter of Vilardo’s request for admissions to

which Sheets failed to respond. The facts stated in the admissions are thus

conclusively established and incorporated here. See Civ.R. 36(B).

{¶ 3} On August 24, 2004, Vilardo paid Travel Center, Inc. $195 to secure an

airline ticket and related services for travel to Florida in February 2005. Again,

Sheets maintained that he had consummated the transaction and arranged the

necessary reservations, when in fact he failed to make any arrangements.

{¶ 4} Vilardo also noticed two unauthorized transactions on the credit card he had

provided to Sheets. Dated November 9, 2004, these two charges were made to

U.S. Airways Vacations for travel services totaling $1,182.35. Vilardo neither

requested nor consented to these two transactions.

{¶ 5} On January 18, 2005, Vilardo filed a complaint against Sheets individually

as well as Sheets d/b/a Travel Center, Inc., Travel Center, Travel Artists, Inc.,

complaint also asserted claims against the business entity Travel Center, Inc.,

d/b/a Travel Center, Travel Artists, Inc., Travel Artists, Travel House, Inc., and

Not Reported in N.E.2d, 2006 WL 1843585

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.