[Cite as Smith v. Perkins, 2024-Ohio-1419.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY
KELTON K. SMITH, CASE NO. 5-23-18 PLAINTIFF-APPELLANT,
v.
JOEL PERKINS, OPINION
DEFENDANT-APPELLEE.
Appeal from Findlay Municipal Court Trial Court No. 22CVF01280
Judgment Affirmed
Date of Decision: April 15, 2024
APPEARANCES:
Kelton K. Smith, Appellant Case No. 5-23-18
ZIMMERMAN, J.
{¶1} Plaintiff-appellant, Kelton K. Smith (“Smith”), a licensed Ohio attorney
representing himself, appeals the May 22, 2023 judgment entry of the Findlay
Municipal Court granting judgment in his favor against defendant-appellee, Joel
Perkins (“Perkins”), and awarding him $250.00 in compensatory damages. For the
reasons that follow, we affirm.
{¶2} This case stems from an altercation that occurred on June 17, 2022
between Smith and Perkins at the Menards home-improvement store in Findlay,
Ohio. On the same day that the altercation occurred, Smith filed a complaint in the
Findlay Municipal Court alleging a claim for assault and battery and seeking
$15,000.00 in damages. Smith filed an amended complaint on June 22, 2022
alleging a claim for assault and battery but seeking $7,500.00 in compensatory
damages and $7,500.00 in punitive damages. Smith served a request for admissions
on Perkins on June 24, 2022.
{¶3} Because Perkins did not respond to Smith’s request for admissions
within 28 days, Smith filed a motion in the trial court on August 1, 2022 to deem
his request for admissions of Perkins admitted. The trial court granted his request
on August 3, 2022. Nevertheless, Perkins filed his response to Smith’s request for
admissions on August 8, 2022. However, on August 10, 2022, Smith filed a motion
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to strike Perkins’s response to his request for admissions since Perkins’s response
was not timely.
{¶4} Moreover, since Perkins did not file an answer to the complaint, Smith
filed a motion in the trial court requesting a default judgment on August 3, 2022.1
{¶5} On August 11, 2022, Smith filed a motion in limine requesting that the
trial court limit Perkins from presenting “evidence at further hearing in this cause”
since the trial court “ordered that [Perkins] had admitted all of the admissions
contained within [Smith’s] request.” (Doc. No. 22).
{¶6} The case proceeded to a hearing on September 26, 2022 during which
the trial court denied Smith’s motion to strike Perkins’s response to his request for
admissions and Smith’s motion in limine, then the trial court proceeded to a hearing
on the issue of damages. On May 22, 2023, the trial court granted judgment in favor
of Smith and awarded him $250.00 in compensatory damages. (Doc. No. 29).
{¶7} On June 21, 2023, Smith field his notice of appeal.2 He raises three
assignments of error for our review.
First Assignment of Error
The trial court erred when it denied Appellant’s Motion to Strike Appellee’s responses to Appellant’s Request for Admission which were filed out-of-rule and without leave of court.
1 Even though Perkins did not file an answer to the complaint, he appeared in this case on August 1, 2022. 2 Perkins did not file an appellee’s brief in this case. Under such “circumstances, App.R. 18(C) provides that we ‘may accept the appellant’s statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action.’” Prater v. Mullins, 3d Dist. Auglaize No. 2-13- 04, 2013-Ohio-3981, ¶ 4, fn. 1, quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 16.
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{¶8} In his first assignment of error, Smith argues that the trial court erred
by denying his motion to strike Perkins’s untimely response to his request for
admissions. That is, Smith contends that the trial court erred by admitting Perkins’s
untimely response to his request for admissions.
Standard of Review
{¶9} This court reviews a trial court’s decision to admit untimely responses
to a party’s request for admissions for an abuse of discretion. Brown v.
Morganstern, 11th Dist. Trumbull No. 2002-T-0164, 2004-Ohio-2930, ¶ 49; State
ex rel. Davila v. Bucyrus, 194 Ohio App.3d 325, 2011-Ohio-1731, ¶ 25 (3d Dist.).
See also Riverside Drive Enterprises, LLC v. Geotechnology, Inc., 1st Dist.
Hamilton No. C-220099, 2023-Ohio-583, ¶ 11 (“This court reviews a trial court’s
ruling on a motion to strike for an abuse of discretion.”). An abuse of discretion
suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶10} “Requests for Admissions are governed by Civil Rule 36.” Corwin v.
Kimble, 5th Dist. Licking No. 22CA00002, 2022-Ohio-3395, ¶ 31. The rule
provides, in its relevant part, that “[t]he matter is admitted unless, within a period
designated in the request, not less than twenty-eight 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
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or objection * * * .” Civ.R. 36(A)(1). “Thus, failure to timely respond or to respond
at all will result in the requested matter being deemed admitted.” Corwin at ¶ 32.
See also Davila at ¶ 28 (professing that “a party’s failure to timely respond to a
request for admissions results in matters being automatically admitted under Civ.R.
36(A)”).
{¶11} Under the rule, “‘[a]ny matter admitted under Civ.R. 36 is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission.’” Corwin ¶ 32, quoting Cleveland Trust Co. v. Willis,
20 Ohio St.3d 66, 67 (1985), citing Civ.R. 36(B). “And [a] request for admission
can be used to establish a fact, even if it goes to the heart of the case.’” (Emphasis
added.) Id., quoting Cleveland Trust at 67. However, under Civ.R. 36(B), “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.”
{¶12} In this case, Smith served his request for admissions on Perkins on
June 24, 2022. Because Perkins did not respond to Smith’s request for admissions
within the 28 days as provided by Civ.R. 36, Smith (needlessly) filed a motion on
August 1, 2022 requesting that the trial court deem admitted his request for
admissions of Perkins, which the trial court granted. See Black v. Hicks, 8th Dist.
Cuyahoga No. 108958, 2020-Ohio-3976, ¶ 65 (“Under Civ.R. 36(A), requests for
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admissions are self-executing; if a party fails to respond to a request or an admission,
the matter is automatically deemed admitted and no further action is required by the
party requesting it.”); Palmer-Donavin v. Hanna, 10th Dist. Franklin No. 06AP-
699, 2007-Ohio-2242, ¶ 11 (noting that “[t]he fact that Palmer-Donavin filed a
motion seeking to admit those requests did not somehow erode the self-executing
nature of those requests”). Nevertheless, Perkins filed his response to Smith’s
request for admissions on August 8, 2022. Smith replied to Perkins’s untimely
response by filing a motion to strike Perkins’s response to the request for admissions
on August 10, 2022.
{¶13} At the September 26, 2022 hearing, the trial court initially stated that
it was “going to deny Mr. Smith’s motion” because it “already had deemed the
request to be admitted.”3 (Sept. 26, 2022 Tr. at 17). Notwithstanding that
pronouncement, the trial court proceeded to “a hearing for the motion for default
solely on the issue of what damages would be appropriate to award Mr. Smith based
on the fact that Mr. Perkins did not file an answer to the complaint nor did he
respond to those admissions.” (Id. at 21). Consequently, our review of the record
reveals that the trial court granted Smith’s motion to strike Perkins’s responses to
his request for admissions as to the issue of liability but denied Smith’s motion as
to the issue of damages.
3 The trial court memorialized its decision denying Smith’s motion to strike Perkins’s untimely response to his request for admissions in its May 22, 2023 entry.
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{¶14} “Civ.R. 36 does not specify that a formal motion is required nor does
the rule identify a time when the motion must be filed.” Corwin, 2022-Ohio-3395,
at ¶ 34, citing Balson v. Dodds, 62 Ohio St.2d 287, 290 (1980), fn. 2. “Courts have
accepted, absent a written or oral motion to withdraw, various challenges to the truth
of an admission as implicit motions to withdraw.” Id., citing C.S.J. v. S.E.J., 8th
Dist. Cuyahoga No. 108390, 2020-Ohio-492, ¶ 12 and Balson at fn. 2 (contesting
the truth of admissions serves as evidence of a motion to withdraw the admissions).
See also Haskett v. Haskett, 11th Dist. Lake No. 2011-L-155, 2013-Ohio-145, ¶ 25
(challenging the truth of the admissions during trial proceedings constitutes a
motion to withdraw or amend admissions).
{¶15} “‘In making its determination of whether to permit a withdrawal or
amendment of the admissions, the trial court is required to consider the elements of
Civ.R. 36(B).’” Corwin at ¶ 38, quoting Bush v. Eckman, 5th Dist. Licking No.
07CA0115, 2008-Ohio-5080, ¶ 23. See also Kutscherousky v. Integrated
Communications Sols., LLC, 5th Dist. Stark No. 2004 CA 00338, 2005-Ohio-4275,
¶ 17 (stressing that “standard set forth in Civ. R. 36 makes no mention of ‘excusable
neglect’”). “‘Ohio courts have stylized this consideration into a multi-pronged
analysis.’” Corwin at ¶ 38, quoting Bush at ¶ 23.
{¶16} “First, there is the overarching goal that cases should be resolved on
their merits.” Id. at ¶ 39. Under this step, the trial court “must determine whether
the amendment or withdrawal of the admissions will aid in presenting the merits of
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the case.” Id. See also Stevens v. Cox, 6th Dist. Wood No. WD-08-020, 2009-Ohio-
391, ¶ 52 (asserting that “‘this burden is clearly met when the effect of denying a
motion to withdraw and amend would “practically eliminate any presentation of the
merits”’”), quoting Kutscherousky at ¶ 19, quoting Westmoreland v. Triumph
Motorcycle Corp., 71 F.R.D. 192, 193 (D.Conn.1976).
{¶17} Second, “[i]f the court so determines, the burden then shifts to the
party who obtained the admissions to establish that the withdrawal or amendment
will prejudice the party in maintaining their action.” Corwin at ¶ 39. “‘Against this
prejudice, the court must weigh the “compelling” circumstances that led to the
failure to respond to the request for admissions.’” Id., quoting RKT Properties,
L.L.C. v. Northwood, 162 Ohio App.3d 590, 2005-Ohio-4178, ¶ 12 (6th Dist.).
{¶18} In this case, Perkins admitted to most of the facts underlying Smith’s
claim by failing to timely respond to his request for admissions. Compare Abuhilwa
v. Corr. Med. Ctr., 10th Dist. Franklin No. 08AP-642, 2008-Ohio-6915, ¶ 12.
Significantly, because the crux of Smith’s argument in the trial court and on appeal
is that Perkins’s admissions alone warranted an entry of judgment in his favor, the
first portion of the analysis is satisfied. Accord id.; Balson, 62 Ohio St.2d. at 290-
291 (analyzing that “[i]t is uncontested that presentation of the merits herein would
be enhanced by permitting appellee to file untimely answers”). In other words,
amendment or withdrawal of Perkins’s admissions would have “furthered the
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presentation and resolution of the case on its merits, instead of the admissions.”
Abuhilwa at ¶ 12. See also Davila, 194 Ohio App.3d 325, 2011-Ohio-1731, at ¶ 29.
{¶19} Turning to the second portion of the analysis, Smith failed to identify
any prejudice to him resulting from amendment or withdrawal of Perkins’s
admissions as to the issue of damages and we see none. Accord French v. Dwiggins,
9 Ohio St.3d 32, 37 (1984); Abuhilwa at ¶ 12; Davila at ¶ 30. “Prejudice under
Civ.R. 36(B), however, does not result simply because the party who initially
obtained the admission will now have to convince the fact finder of its truth.”
Davila at ¶ 30. Indeed, “[c]ourts have recognized that, where a party all but
conceded liability through its admission in a contested case, it is unlikely that the
opposing party could have reasonably relied on the truth of the admission.”
Kutscherousky, 2005-Ohio-4275, at ¶ 27. That is, even if Smith relied on Perkins’s
admissions during his trial preparations, “courts are ‘“‘loathe to reward what would
have been an unreasonable reliance in order to glorify technical compliance with
the rules of civil procedure.’”’” (Emphasis added.) C.S.J., 2020-Ohio-492, at ¶ 16,
quoting Bayview Loan Servicing L.L.C. v. St. Cyr, 8th Dist. Cuyahoga No. 104655,
2017-Ohio-2758, ¶ 23, quoting Kutscherousky at ¶ 28, quoting Westmoreland, 71
F.R.D. at 193.
{¶20} Moreover, the circumstances that led to Perkins’s failure to respond to
Smith’s request for admissions do not weigh against withdrawal or amendment of
Perkins’s admissions. Significantly, the record reflects that Perkins’s delay in
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providing his response to Smith’s request for admissions was less than three weeks
past the due date for his response and while discovery was ongoing. Compare
Davila at ¶ 31 (noting that “the respondents’ delay in providing responses to the
request for admissions was only a little more than a month past the due date for
responses and while discovery was ongoing”); Kutscherousky at ¶ 23 (noting that
“the appellant’s responses were only nine days late; both parties were aware of each
other’s position on the merits of the case; [and] the time frame for discovery had not
expired and was not close to expiring”). In particular, at the September 26, 2022
hearing, Perkins informed the trial court that he did not receive Smith’s request for
admissions until early August and that he had “it two days and [then] brought it [to
the court] Friday, but [it was] already closed Friday, so [he] had to bring it in
Monday.” (Sept. 26, 2022 Tr. at 8).
{¶21} Based on the foregoing reasons, the grounds for granting a Civ.R.
36(B) motion were satisfied under the facts presented. Therefore, the trial court’s
decision, in effect, to permit Perkins to withdraw his admissions as to the issue of
damages and to proceed with a hearing on the issue of damages is not unreasonable,
arbitrary, or unconscionable. Accord C.S.J. at ¶ 18 (“The trial court did not abuse
its discretion when it allowed C.S.J. to proceed at trial and, in effect, permitted her
to withdraw her Civ.R. 36(A) admissions.”); French, 9 Ohio St.3d at 37 (holding
“that the trial court properly ruled that the amount of damages not be deemed
conclusively established under Civ.R. 36”). See also Davila at ¶ 31 (concluding
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that “the trial court’s refusal to grant the Civ.R. 36(B) motion in effect resulted in a
default judgment against the respondents in the amount of $1,409,000,” which was
“simply unreasonable under the circumstances of this case and contrary to ‘“[the]
basic tenet of Ohio jurisprudence that cases should be decided on their merits”’”),
quoting First Fed. Bank of Ohio v. Angelini, 160 Ohio App.3d 821, 2005-Ohio-
2242, ¶ 22 (3d Dist.), quoting Perotti v. Ferguson, 7 Ohio St.3d 1, 3 (1983).
{¶22} For these reasons, Smith’s first assignment of error is overruled.
Second Assignment of Error
The trial court erred when it denied Appellant’s Motion In Limine and permitted Appellee to produce evidence which would tend in any way to contradict facts and admissions which the trial court had previously ordered that Appellee had admitted.
{¶23} In his second assignment of error, Smith argues that the trial court
erred by denying his motion in limine, which requested the trial court to limit
Perkins from presenting any evidence that would contradict his purported
admissions in this case.
{¶24} “We review a trial court’s ruling on a motion in limine for an abuse of
discretion.” Childs v. Kroger Co., 10th Dist. Franklin No. 22AP-524, 2023-Ohio-
2034, ¶ 57. See also Wasinski v. PECO II, Inc., 3d Dist. Crawford No. 3-08-14,
2009-Ohio-2615, ¶ 55 (applying the abuse-of-discretion standard of review to a trial
court’s ruling on a motion in limine). Again, for this court to determine that the trial
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court abused its discretion, we must conclude that the trial court acted unreasonably,
arbitrarily, or unconscionably. Blakemore, 5 Ohio St.3d at 219.
{¶25} At the September 26, 2022 hearing, the trial court denied Smith’s
motion in limine after concluding that the hearing would proceed only “on the issue
of what damages would be appropriate to award Mr. Smith based on the fact that
Mr. Perkins did not file an answer to the complaint nor did he respond to those
admissions.” 4 (Sept. 26, 2022 Tr. at 21). Proceeding only on the issue of damages,
Perkins did not present any evidence. (See Sept. 26, 2022 Tr. at 46-47). Compare
Brentson v. Chappell, 66 Ohio App.3d 83, 87 (8th Dist.1990) (evaluating that “the
record reveals that appellee neither raised the issue of the cause of the electrical
failure nor did appellee offer expert testimony during trial on said issue”).
{¶26} “It is well established that a decision on a motion in limine is a
‘tentative, preliminary or presumptive ruling about an evidentiary issue that is
anticipated but has not yet been presented in its full context.’” Wasinski at ¶ 52,
quoting State v. Geboy, 145 Ohio St.3d 706, 726 (2001). “‘An appellate court need
not review the propriety of such an order unless the claimed error is preserved by
an objection, proffer, or ruling on the record when the issue is actually reached and
the context is developed at trial.’” (Emphasis deleted.) Gollihue v. Consol. Rail
4 The trial court memorialized its decision denying Smith’s motion in limine in its May 22, 2023 entry.
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Corp., 120 Ohio App.3d 378, 388 (3d Dist.1997), quoting State v. Grubb, 28 Ohio
St.3d 199, 203 (1986). In other words, “[a] court’s initial denial of a motion in
limine does not preserve any error for review.” White v. Ctr. Mfg. Co., 126 Ohio
App.3d 715, 722 (6th Dist.1998). “Thus, the evidence at issue must be presented at
trial, and a proper proffer made, in order to preserve the error for appeal.” Id.
{¶27} Because Perkins did not present any evidence relative to damages at
the damages hearing, there is no error for us to review. Accord Brentson at 87
(holding that “[e]rror, therefore, may not be predicated on the trial court’s denial of
appellant’s motion in limine since a final ruling with respect to the contested
evidence was not reached by the trial court”). See also Morgan v. Ohio State Univ.
College of Dentistry, 10th Dist. Franklin No. 13AP-287, 2014-Ohio-1846, ¶ 34.
{¶28} Smith’s second assignment of error is overruled.
Third Assignment of Error
The trial court erred when it ruled that even after it had ordered on 3 August 2022 that Appellant [sic] had admitted each and every one of the thirty-three (33) requests for admission propounded upon him in Appellant’s Request for Admission, the admissions contained within such Request for Admission were not conclusively established and did not support Appellant’s claim for damages contained within his Amended Complaint because Appellee was appearing pro se, without counsel.
{¶29} In his third assignment of error, Smith challenges the trial court’s
judgment awarding him $250.00 in compensatory damages. Specifically, Smith
argues that, because Perkins “already admitted and it was conclusively established
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that he owed [Smith] $7,500.00 in compensatory damages and $7,500.00 in punitive
damages,” the trial court should have awarded him $15,000.00 in damages.
(Appellant’s Brief at 19).
{¶30} Generally, “[w]e review a trial court’s decision to grant a motion for
default judgment under an abuse of discretion standard.” Wells Fargo Bank, N.A.
v. Thompson, 3d Dist. Hancock No. 5-12-20, 2013-Ohio-644, ¶ 8. See also Sailors
v. Pacheco, 11th Dist. Lake No. 2021-L-011, 2021-Ohio-3180, ¶ 41 (applying the
abuse-of-discretion standard of review “when a trial court decides a motion for
default judgment after hearing evidence”). Once more, for a trial court to abuse its
discretion, the trial court’s decision must be unreasonable, arbitrary, or
unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶31} “However, once default judgment is entered, ‘the determination of the
kind and maximum amount of damages that may be awarded is not committed to
the discretion of the trial court, but is subject to the mandates of Civ.R. 55(C) and
Civ.R. 54(C).’” Sailors at ¶ 43, quoting Natl. City Bank v. Shuman, 9th Dist.
Summit No. 21484, 2003-Ohio-6116, ¶ 6. “Thus, ‘the question of whether a trial
court’s grant of default judgment complies with Civ.R. 55(C) and Civ.R. 54(C) is
one of law, which we review de novo.’” Id., quoting Shuman at ¶ 6. “De novo
review is independent and without deference to the trial court’s determination.”
ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
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{¶32} When a trial court’s damages award complies with the mandates of
Civ.R. 55(C) and Civ.R. 54(C), “[a] reviewing court ordinarily will uphold a trial
court’s damage award if it is not against the manifest weight of the evidence.” Clark
v. Enchanted Hills Community Assn., 4th Dist. Highland No. 19CA4, 2020-Ohio-
553, ¶ 9. See also R.C. 2315.21(B)(3). “Judgments supported by some competent,
credible evidence * * * will not be reversed by a reviewing court as being against
the manifest weight of the evidence.” Sailors at ¶ 46. See also Brooks v. RKUK,
Inc., 5th Dist. Stark No. 2021CA00048, 2022-Ohio-266, ¶ 56 (“‘This standard of
review is highly deferential and even “some” evidence is sufficient to support a
court’s judgment and to prevent a reversal.’”), quoting Clark at ¶ 9.
{¶33} “The award of default judgment is governed under Civ.R. 55 and
provides that ‘[i]n all cases a judgment by default is subject to the limitations of
Rule 54(C).’” Arendt v. Price, 8th Dist. Cuyahoga No. 101710, 2015-Ohio-528, ¶
10, quoting Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, ¶ 8 (4th Dist.).
Civ.R. 54(C) provides that “[a] judgment by default shall not be different in kind
from or exceed in amount that prayed for in the demand for judgment.”
The primary purpose of Civ.R. 54(C)’s limitations on default judgment is to ensure that defendants are clearly notified of the maximum potential liability to which they are exposed, so that they may make an informed, rational choice to either: (1) enable a default judgment by not responding, or (2) invest the time and expense involved in defending an action.
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Shuman at ¶ 11.
{¶34} In this case, Smith does not dispute that the trial court complied with
Civ.R. 55(C) and Civ.R. 54(C). Rather, Smith argues that the trial court should have
awarded him $15,000.00 in damages ($7,500.00 in compensatory damages and
$7,500.00 in punitive damages) because Perkins admitted to his liability in that
amount by failing to respond to Smith’s request for admissions. Smith’s argument
is without merit.
{¶35} Civ.R. 55(A) prescribes when a hearing on damages is necessary and
provides, in its relevant part, that
[if], in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper * * *.
Civ.R. 55(A). Consequently, a “trial court has the discretion to conduct a hearing
following an entry of default judgment in order to determine the measure of
damages.” Skiver v. Wilson, 8th Dist. Cuyahoga No. 106560, 2018-Ohio-3795, ¶
15, citing Malaco Constr. v. Jones, 10th Dist. Franklin No. 94APE10-1466, 1995
WL 506026, *8 (Aug. 24, 1995) and Buckeye Supply Co. v. N.E. Drilling Co., 24
Ohio App.3d 134, 136 (9th Dist.1985) (“It has always been within the discretion of
the trial court to determine whether further evidence is required to support a claim
against a defaulting defendant.”). Since “the determination of damages necessarily
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requires consideration of information outside a written instrument, the trial court
abuses its discretion [by] failing to hold an evidentiary hearing to determine the
exact amount of damages.” Am. Communications of Ohio, Inc. v. Hussein, 10th
Dist. Franklin No. 11AP-352, 2011-Ohio-6766, ¶ 16.
{¶36} “In conducting a hearing on damages, the trial court has broad
discretion in assessing the weight and credibility of the evidence of damages.”
Skiver at ¶ 18. “And there is no requirement that a trial court award damages based
upon the estimates provided.” Id. Critically, “an appellant’s disagreement with the
trier of fact as to the appropriate amount of damages is not grounds for reversal.”
Id., quoting Arendt, 2015-Ohio-528, at ¶ 16.
{¶37} Importantly, a trial court lacks authority to award damages in the
absence of evidence supporting the damage award. Kelley v. Sullivan, 8th Dist.
Cuyahoga No. 106189, 2018-Ohio-1410, ¶ 10, citing Carr v. Charter Natl. Life Ins.
Co., 22 Ohio St.3d 11 (1986), syllabus. “‘Where a damages claim is “liquidated”
or based on a readily ascertainable amount, such as an account, no additional proof
is necessary.’” Id., quoting K. Ronald Bailey & Assocs. Co., L.P.A. v. Soltesz, 6th
Dist. Erie No. E-05-077, 2006-Ohio-2489, ¶ 16. See also Clark, 2020-Ohio-553, at
¶ 11 (“In the context of damages on default judgment, generally, no proof of
damages is required for a liquidated damages claim.”). “A liquidated damages
claim is one ‘that can be determined with exactness from the agreement between the
parties or by arithmetical process or by the application of definite rules of law.’”
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Clark at ¶ 11, quoting Huo Chin Yin v. Amino Prods. Co., 141 Ohio St. 21, 29
(1943).
{¶38} “‘However, when the judgment is not liquidated, or only partially
liquidated, it is reversible error for the trial court to enter a default judgment without
holding a hearing on the damages issue.’” (Emphasis added.) Hull v. Clem D’s
Auto Sales, 2d Dist. Darke No. 2011 CA 6, 2012-Ohio-629, ¶ 7, quoting Mid-
American Acceptance Co. v. Reedy, 11th Dist. Lake No. 89-L-14-072, 1990 WL
94816, *2 (June 29, 1990). In such circumstances, “[b]efore a money judgment may
be awarded, the plaintiff must establish evidence of the damages.” Brooks, 2022-
Ohio-266, at ¶ 55. Typically, “‘once a right to damages has been established, that
right cannot be denied because damages are incapable of being calculated with
mathematical certainty.’” Clark at ¶ 10, quoting Labonte v. Labonte, 4th Dist.
Meigs No. 07CA15, 2008-Ohio-5086, ¶ 19, quoting Pingue v. Pingue, 5th Dist.
Delaware No. 95CAF02006, 1995 WL 768535, *10 (Nov. 6, 1995). “‘“However,
the amount of damages must be susceptible of ascertainment in some manner other
than by mere speculation, conjecture or surmise.”’” Id., quoting Labonte at ¶ 19,
quoting Pingue at *10.
{¶39} In this case, Smith sought compensatory and punitive damages.
“Compensatory damages are intended to make whole the plaintiff for the wrong
done to him or her by the defendant.” Fantozzi v. Sandusky Cement Prod. Co., 64
Ohio St.3d 601, 612 (1992). “Compensatory damages are defined as those which
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measure the actual loss, and are allowed as amends therefor.” Id. “Compensatory
damages include both economic damages—‘direct pecuniary loss, such as hospital
and other medical expenses immediately resulting from the injury, or loss of time
or money from the injury, loss due to the permanency of the injuries, disabilities or
disfigurement’—and noneconomic damages.” Brooks v. Montgomery Care Ctr.,
1st Dist. Hamilton No. C-130838, 2014-Ohio-4644, ¶ 8, quoting Fantozzi at 612.
“‘Usually awarded for pain and suffering, noneconomic damages can also include
compensation for loss of ability to perform usual functions; loss of consortium,
mental anguish, or other intangible loss; and humiliation or embarrassment.’” Id.,
quoting Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 2006-Ohio-5481, ¶
19. “The assessment of such damage is, however, a matter solely for the
determination of the trier of fact because there is no standard by which such pain
and suffering may be measured.” Fantozzi at 612. See also Waxman Dev., L.L.C.
v. Iron Cowboy Prods., L.L.C., 8th Dist. Cuyahoga No. 103453, 2016-Ohio-3458, ¶
22 (noting that a plaintiff must prove the amount of compensatory damages sought
by a preponderance of the evidence).
{¶40} “In Ohio, punitive damages may be awarded in tort actions involving
fraud, malice, or insult.” Gibbons v. Shalodi, 9th Dist. Lorain No. 19CA011586,
2021-Ohio-1910, ¶ 52. See also R.C. 2315.21(C)(1). “The purpose of punitive
damages is not to compensate a plaintiff, but to punish and deter certain conduct.”
Burns v. Prudential Secs., Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, ¶ 98 (3d
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Dist.). “Accordingly, an award of punitive damages requires something more than
a showing of mere negligence.” Id. “Punitive damages are, by nature, unliquidated
damages that require additional evidence.” Berube v. Richardson, 8th Dist.
Cuyahoga No. 104651, 2017-Ohio-1367, ¶ 10. Therefore, a plaintiff must
demonstrate by clear and convincing evidence that he or she is entitled to recover
punitive damages. Burns at ¶ 98, citing R.C. 2315.21(D)(4). “Clear and convincing
evidence is that ‘which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.’” Desai v. Franklin, 177 Ohio
App.3d 679, 2008-Ohio-3957, ¶ 40 (9th Dist.), quoting Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus.
{¶41} “‘Actual malice, necessary for an award of punitive damages, is (1)
that state of mind under which a person’s conduct is characterized by hatred, ill will
or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other
persons that has a great probability of causing substantial harm.’” Kelley, 2018-
Ohio-1410, at ¶ 9, quoting Preston v. Murty, 32 Ohio St.3d 334 (1987), syllabus.
{¶42} Based on the record before us, we conclude that the trial court did not
abuse its discretion by granting default judgment in favor of Smith and awarding
him $250.00 in compensatory damages. That is, the trial court did not abuse its
discretion by conducting a hearing following its decision granting default judgment
in favor of Smith in order to determine the measure of damages in this case. See
Henderson v. SMC Productions, Inc., 6th Dist. Erie No. E-18-003, 2019-Ohio-5275,
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¶ 126 (Zmuda, J., dissenting) (concluding that the trial court did not abuse its
discretion by deciding “to hold a hearing on appellants’ claim for unliquidated
damages” and did not “abuse [its] discretion in requiring appellants to prove their
damages rather than merely relying on unanswered requests for admission that
purport to establish damages”). Indeed, even though “a defendant’s failure to
answer or otherwise defend a complaint constitutes an admission of facts alleged in
the complaint,” those admitted facts alone are insufficient to warrant the imposition
of damages. Favors v. Burke, 8th Dist. Cuyahoga No. 98617, 2013-Ohio-823, ¶ 16.
See also Carr v. Charter Natl. Life Ins. Co., 22 Ohio St.3d 11, 13 (1986).
{¶43} Specifically, as we determined in Smith’s first assignment of error, the
trial court proceeded to a hearing on the issue of damages after denying Smith’s
motion to strike Perkins’s untimely response to his request for admissions (and, in
effect, permitting Perkins to withdraw his admissions) as to the issue of damages.
Stated another way, the trial court proceeded on the issue of damages after granting
default judgment in favor of Smith since Perkins did not file an answer to the
complaint in this case. Consequently, since the measure of damages in this case is
not liquidated and because Smith did not attach an affidavit to his motion for default
judgment itemizing his damages, it was necessary for the trial court to conduct such
hearing. See Henderson at ¶ 125 (Zmuda, J., dissenting) (noting that, even when
admitted, “proof of damages is generally required for unliquidated damages” and
“‘when [a] judgment is not liquidated, or only partially liquidated, it is reversible
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error for the trial court to enter a default judgment without holding a hearing on the
damages issue’”), quoting Hull, 2012-Ohio-629, at ¶ 7; Heckman v. Porter, 5th Dist.
Stark No. 2002CA00380, 2003-Ohio-3135, ¶ 6-7, 15.
{¶44} Even though Smith sought $15,000.00 in damages—$7,500.00 in
compensatory damages and $7,500.00 in punitive damages—Smith’s prayer for
$15,000.00 in damages appears to be based on the jurisdictional limits of the
municipal court rather than the actual damages he suffered. Compare Hull at ¶ 9
(noting that damages in the amount of $15,000.00 “appears to be based on the
jurisdictional limits of the municipal court, rather than the actual damages suffered
by the Hulls”). Importantly, the only evidence Smith presented in support of his
claim for $15,000.00 in damages is Perkins’s admissions. Compare Bayview Loan
Servicing, 2017-Ohio-2758, at ¶ 29 (recognizing that “St. Cyr relie[d] solely upon
the deemed admissions to support his claim”); Kelley, 2018-Ohio-1410, at ¶ 14
(“Kelley provided no evidence to support an amount of punitive damages except for
requests for admissions”).
{¶45} However, based on our review of the record, the trial court’s award of
$250.00 in compensatory damages is not against the manifest weight of the
evidence. Specifically, the trial court concluded that the only evidence that Smith
presented in support of his compensatory-damages claim was his testimony
regarding his noneconomic loss. Indeed, the trial court found that Smith “did not
provide any evidence of any economic loss for which he can recover compensatory
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damages.” (Doc. No. 29). Compare Brooks, 2014-Ohio-4644, at ¶ 9 (concluding
that Brooks failed to demonstrate evidence of economic loss because “Brooks
offered no evidence that her brother suffered direct pecuniary loss”). Consequently,
the trial court resolved that Smith “is entitled to a nominal award of compensatory
damages for his noneconomic loss” since he “did not provide any further
explanation or description of the injuries, did not indicate that they were severe
enough to seek medical treatment and did not indicate that they were severe enough
for him to miss work.” (Doc. No. 29).
{¶46} Some competent, credible evidence supports the trial court’s
determination that Smith is entitled to $250.00 in compensatory damages for his
noneconomic loss. In particular, at the September 26, 2022 hearing, the only
evidence that Smith presented regarding his compensatory damages was his
testimony that he sustained minimal injuries and minimal mental anguish. (See
Sept. 26, 2022 Tr. at 32-33). Compare Hull, 2012-Ohio-629, at ¶ 8 (noting that
“[t]he Hulls did not detail the amount of damages that they had suffered for each
claim, and nothing in the record indicated the amount” sought). Since such
noneconomic-loss award is “a matter solely for the determination of the trier of fact
because there is no standard by which such pain and suffering may be measured,”
the trial court’s compensatory-damage calculation is not against the manifest weight
of the evidence. Fantozzi, 64 Ohio St.3d at 612.
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{¶47} As to Smith’s claim for $7,500.00 in punitive damages, the trial court
determined that Smith “is not entitled to an award of punitive damages” because it
could not “find based on the evidence presented by [Smith] that [Perkins] possessed
a state of mind under which his conduct could be characterized by hatred, ill will or
a spirit of revenge, or that he had a conscious disregard for the rights and safety of
other persons that ha[d] a great probability of causing substantial harm.” (Doc. No.
29). Critically, the trial court found that Perkins “was at his truck and was
attempting to load or unload his items when [Smith] approached him, instigated an
argument and followed [Perkins] when he attempted to walk away from him.” (Id.).
{¶48} Nevertheless, Smith contends that the trial court erred by denying his
request for $7,500.00 in punitive damages because,
[w]ith it being given that [Perkins] admitted the operative facts and the damages he owed [Smith], and with such facts are conclusively established, there could be no other conclusion than a preponderance of the evidence indicates that [Perkins] owes [Smith] * * * the amount of [$7,500.00] in punitive damages for [Smith’s] intentional and unprovoked act of assaulting [Smith] on 17 June 2022.
(Appellant’s Brief at 20). Smith’s argument is misplaced. Imperatively, Smith bore
the burden of proving entitlement to punitive damages by clear and convincing
evidence. Kelley, 2018-Ohio-1410, at ¶ 13. Thus, even if Perkins’s admissions
were “deemed admitted by default,” such admission “may satisfy the preponderance
of the evidence measure of proof, but the clear and convincing standard requires
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something more.” Id. at ¶ 15. “Moreover, punitive damages are not recoverable as
of right; their allowance is discretionary.” Id. at ¶ 16.
{¶49} In this case, other than his insistence that Perkins admitted to owing
him $7,500.00 in punitive damages, Smith highlights no evidence to indicate that
he is entitled to a punitive-damages award. Compare id. at ¶ 14 (“Kelley provided
no evidence to support an amount of punitive damages except for requests for
admissions.”); Halliburton Energy Services, Inc. v. Synder, S.D.Ohio No. 2:17-CV-
349, 2018 WL 6573682, *7 (Dec. 13, 2018). We see no evidence—let alone clear
and convincing evidence—presented by Smith at the damages hearing reflecting
that Perkins acted with actual malice. Rather, our review of the record reveals that
there is some competent, credible evidence—namely, “the video admitted by
[Smith] as Plaintiff’s Exhibit A”— supporting the trial court’s determination that
Smith did not present clear and convincing evidence that Perkins acted with actual
malice. (Doc. No. 29). Thus, because the trial court has broad discretion in
assessing the weight and credibility of such evidence, the trial court’s punitive-
damages award is not against the manifest weight of the evidence.
{¶50} For these reasons, we conclude that the trial court’s measure of
damages is not against the manifest weight of the evidence. Consequently, the trial
court did not abuse its discretion by granting a default judgment in favor of Smith
and awarding him $250.00 in compensatory damages.
{¶51} Smith’s third assignment of error is overruled.
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{¶52} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/hls
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