The State Ex Rel. Davila v. City of Bucyrus

• Decision Date: 11 April 2011
• Docket Number: No. 3–10–20.,3–10–20.
• Citation: 2011 -Ohio- 1731,194 Ohio App.3d 325,956 N.E.2d 332
• Parties: The STATE ex rel. DAVILA, Appellee,v.CITY OF BUCYRUS et al., Appellants.
• Court: Ohio Court of Appeals

194 Ohio App.3d 325

956 N.E.2d 332

2011 -Ohio- 1731

The STATE ex rel. DAVILA, Appellee,

v.CITY OF BUCYRUS et al., Appellants.

No. 3–10–20.

Court of Appeals of Ohio, Third District, Crawford County.

Decided April 11, 2011.

William E. Walker, for appellee.James F. Mathews, North Canton, and Matthew E. Crall, for appellants.PRESTON, Judge.

[Ohio App.3d 327] {¶ 1} Respondents-appellants, the city of Bucyrus, Mayor Daniel F. Ross, and Police Chief Kenneth Teets, appeal the Crawford County Court of Common Pleas' grant of summary judgment in favor of relator-appellee, Edwin Davila. For the reasons that follow, we reverse.

{¶ 2} On March 17, 2009, Davila sent a letter addressed to the “City of Bucyrus care of Mayor Dan Ross or President of Records Commission,” requesting “copies of the minutes and public notices of all meetings held by the City of Bucyrus Records Commission.” That same day, Davila also sent a letter to the Bucyrus chief of police requesting access to the department's reel-to-reel tapes, which recorded telephone calls and radio traffic to and from the police department. Davila requested access to “the data that was recorded on both the primary and back-up tapes that [the] department used over the years during the time that such a tape recording system was used.” Davila further requested access to “all entries of incoming and outgoing calls for service that were placed on the Bucyrus Police Department's Radio Log * * * for the above mentioned tapes or tape system.”

{¶ 3} On April 17, 2009, the Bucyrus city law director responded to Davila's public-records request by letter, indicating that he had included the minutes and public notices of the Bucyrus Records Commission for the last five years and that if Davila needed documents from prior years, he should contact the mayor's office. The law director also requested that Davila clarify his request for the police department records. He noted that the police department had not used reel-to-reel audio recordings since at latest 1998 and that retention of such records was for a period of two years pursuant to its retention policy, approved in 1990. The law director did include one copy of a radio log for February 13–14, 1994, that had been maintained as part of a case involving an inmate on death row. The law director further advised Davila that he should contact Captain John Beal at the police department to set up a time to review other records he might be interested in viewing.

{¶ 4} On April 28, 2009, Davila wrote a letter in response to clarify that he was seeking “ all the meeting minutes for each of the meetings held by the Record's Commission from the first meeting to the last.” (Emphasis sic.). On May 5, 2009, the law director responded by letter indicating that he had included copies [Ohio App.3d 328] of the minutes dating back to 1999 (the last ten years) and that Davila should contact the mayor's office if he wanted to review any previous years.

{¶ 5} On June 16, 2009, Davila filed a complaint for writ of mandamus and alternatively for civil forfeiture pursuant to R.C. 149.351 seeking to compel disclosure of the public records or civil forfeiture for records that were damaged, mutilated, or destroyed. That same day, Davila filed his first request for admissions, directing respondents to respond within 28 days.

{¶ 6} On July 13, 2009, respondents filed an answer denying the substantive allegations of the complaint and asserting several affirmative defenses. At this time, respondents did not file responses to the requests for admissions.

{¶ 7} On July 29, 2009, Davila filed a motion that facts related to his unanswered request for admissions be taken as admitted and motion for summary judgment. In support of the motion, Davila argued that respondents' failure to timely respond to the request for admissions resulted in default admissions pursuant to Civ.R. 36(A) and that summary judgment was appropriate based upon those default admissions.

{¶ 8} On July 30, 2009, respondents moved for recusal of Judge Russel B. Wiseman from the case. On August 3, 2009, respondents filed a motion for extension of time to answer the request for admissions and production of documents. In support of this motion, respondents asserted that they were unable to respond to the request for admissions since many of the answers required contacting persons no longer with the city.

{¶ 9} On August 6, 2009, Judge Wiseman recused himself from the case and referred the matter to the Ohio Supreme Court to appoint Judge David C. Faulkner, retired, of the Hardin County Court of Common Pleas, to preside over the case.¹

{¶ 10} On August 12, 2009, Davila filed a memo in opposition to respondents' motion for an extension of time to answer the request for admissions and production of documents.

{¶ 11} On August 19, 2009, Judge Faulkner filed a briefing schedule for Davila's pending motion that his unanswered request for admissions be taken as admitted and motion for summary judgment. Judge Faulkner gave the parties until August 26, 2009, to file affidavits, briefs, and other supporting documents.

{¶ 12} On August 24, 2009, respondents filed a motion for extension of time to file briefs, affidavits, and other supporting documents in opposition to the motion for summary judgment because respondents had hired new, outside counsel to [Ohio App.3d 329] handle the case. On August 25, 2009, new counsel for respondents filed a notice of appearance. On August 27, 2009, respondents filed notice of providing answers to Davila's request for admissions and responses to Davila's request for production of documents. On August 28, 2009, Davila filed a memo in opposition to the extension of time. On that same day, however, the trial court granted the extension and set the matter for nonoral hearing on September 4, 2009.

{¶ 13} On September 4, 2009, respondents filed a combined brief in opposition to Davila's motion for summary judgment, a cross-motion for leave to amend answers to requests for admissions, and motion for additional discovery under Civ.R. 56(F). On September 10, 2009, Davila filed a reply in support of his motion for summary judgment, and on October 7, 2009, Davila filed a supplemental memorandum in support of his motion for summary judgment.

{¶ 14} On December 14, 2009, the trial court granted Davila's request for default admissions pursuant to Civ.R. 36(A) and granted him summary judgment based upon those default admissions. The trial court issued a writ of mandamus requiring respondents to provide Davila with a right of inspection of the requested records and noted that a hearing would be set on the question of forfeiture and damages for those records that could not be produced.

{¶ 15} On February 19, 2010, the trial court held a hearing on forfeiture and damages for those documents that respondents could not provide. On March 12, 2010, the parties filed proposed findings of fact and conclusions of law.

{¶ 16} On July 19, 2010, the trial court filed its judgment entry finding that Davila was entitled to a judgment of $1,409,000 for 1,409 public records being destroyed.

{¶ 17} On July 28, 2010, respondents filed a motion for judgment notwithstanding the verdict, remittitur, and new trial pursuant to Civ.R. 59(A). On September 10, 2010, Davila filed a memorandum in opposition, and on September 17, 2010, respondents filed a reply.

{¶ 18} On October 4, 2010, the trial court overruled respondents' motion. On October 14, 2010, respondents filed a notice of appeal.

{¶ 19} On October 22, 2010, Davila filed a motion to dismiss with this court, alleging that the July 19, 2010 judgment was a final, appealable order from which respondents failed to appeal within 30 days as required under App.R. 4(A). On November 30, 2010, however, we overruled the motion, finding that respondents' timely Civ.R. 59(A) motion tolled the time for appeal under App.R. 4(B)(2).

{¶ 20} On December 13, 2010, Davila filed notice of filing a complaint for preemptory writs of prohibition and mandamus with the Ohio Supreme Court and a motion to stay proceedings in this court. On January 6, 2011, this court denied [Ohio App.3d 330] Davila's motion to stay proceedings. On March 2, 2011, the Ohio Supreme Court dismissed Davila's complaint for preemptory writs of prohibition and mandamus.

{¶ 21} The case is now before this court for review. Respondents raise seven assignments of error for our review. We elect to combine their first two assignments of error for our discussion.

Assignment of Error I

The trial court erred in its misstatement or misidentification of the record, suggesting that the appellants did not file a motion for relief from the default admissions under Ohio R. Civ. P. 36(B), to the appellants' prejudice.

Assignment of Error II

The trial court erred when it did not hear the appellants' motion for relief from the default admissions, since the appellants demonstrated grounds for such relief, establishing prejudice to appellants.

{¶ 22} In their first and second assignments of error, respondents argue that the trial court inappropriately denied their Civ.R. 36(B) motion for relief from default admissions when they had demonstrated sufficient grounds for relief. We agree. Civ.R. 36 provides:

(A) * * * 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 Civ. R. 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. * * *

(1) * * * The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service of a printed copy 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...