COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70072 ROGER D. HELLER : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION KIMBERLY G. McLAUGHLIN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING Civil appeal from Cleveland Municipal Court Case No. 95-F-00035 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: ROGER D. HELLER, ESQ. ALEXANDER JURCZENKO, ESQ. 1350 Rockefeller Bldg. 1750 Standard Building 614 Superior Ave., N.W. 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Kimberly G. McLaughlin appeals from an order granting summary judgment in the sum of $8,511.69 by the Cleveland Municipal Court in favor of plaintiff-appellee Roger D. Heller, Esq. on his claim for attorney fees in representing her in a divorce action. Defendant claims the court erred in denying her motion to amend responses to requests for admissions and in granting the summary judgment which was precluded by disputed issues of material fact. We agree with defendant and reverse for the reasons hereinafter stated. As appears from the record on summary judgment below, in June 1993, plaintiff was retained by defendant to represent her in the divorce matter. Plaintiff contends defendant agreed to pay fees of $165 per hour, and to reimburse him for costs advanced on her behalf. On July 6, 1993, plaintiff sent a letter to defendant confirming the representation at the $165 hourly rate and the cost arrangements. (Pltf's. Aff. 4-9). Defendant contends she did not agree to the $165 hourly rate and never signed or returned the engagement letter. Plaintiff rendered legal services in the divorce action and sent defendant sixteen consecutive monthly billings beginning July 15, 1993 and ending November 15, 1994. (Pltf's. Aff. 10-12). The monthly billings contained detailed information about each charge, including the date, the nature of the charge, and amount of - 3 - time spent, as well as a calculation which revealed the hourly rate being charged. (Pltf's. Aff. Exs. B-Q). Plaintiff performed the legal services described in Exhibit R to his Affidavit, and the total charges were $9,883.50 for 59.90 hours at a rate of $165 per hour. In addition, plaintiff advanced costs as described in Exhibit S to the Affidavit in the total amount of $428.19. Defendant made payments to plaintiff in the total amount of $1,800, leaving a balance due from defendant of $8,511.69. Plaintiff also averred that the hourly rate of $165 per hour was reasonable and customary in the domestic relations field for a lawyer of his experience. (Pltf's. Aff. 11-14) On January 3, 1995, plaintiff brought suit in the Cleveland Municipal Court against defendant to recover for the past due amount which defendant refused to pay. In her answer, defendant admitted the attorney/client relationship, but denied the remainder of the allegations. On February 28, 1995, plaintiff initiated discovery which included his request for admissions and notice, and his interrogatories directed to defendant, which were served on defendant's counsel. On March 7, 1995, plaintiff served his request for production of documents. On April 28, 1995, no discovery responses having been received, plaintiff filed his motion for summary judgment with his affidavit and attached exhibits as referenced above. The evidentiary material submitted with plaintiff's motion included the - 4 - request for admissions "deemed admitted," to which defendant had not responded. At defendant's request, the trial court "granted an enlargement of time to respond to the motion for summary judgment by June 12, 1995." On June 12, 1995, defendant filed her opposition brief to the motion for summary judgment and her answers to plaintiff's interrogatories. Defendant did not submit her own counter- affidavit in opposition to the motion. On June 13, 1995, although defendant had made no original response to the request for admissions, pursuant to Civ. R. 36(B) defendant "moved this Court to amend the response to the request for admissions on the grounds that the presentation of the merits of the action will be subserved thereby" citing Balson v. Dodds (1980), 62 Ohio St.2d 287. On June 21, 1995, plaintiff filed a responsive brief, which attached defendant's amended admission responses and her answers to plaintiff's interrogatories. Plaintiff contended that summary judgment should be granted even considering the belated discovery responses. On June 21, plaintiff also filed an opposition to defendant's motion to amend responses to the request for admissions. The only prejudice plaintiff asserted from defendant's untimely responses was "he relied on her failure to respond as an admission of the fee arrangement." Following an interim occasioned by defendant's bankruptcy stay, on December 5, 1995, the trial court issued a judgment entry acknowledging that the bankruptcy stay had been lifted, and granted - 5 - summary judgment to plaintiff in the amount of $8,511.69 plus interest. In the entry, the trial court stated that "defendant never sought a timely extension to respond to the discovery and her Motion to Amend Response to Request for Admissions is denied." Defendant subsequently filed a timely appeal now before the court. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO AMEND RESPONSES TO REQUEST FOR ADMISSIONS. Generally, it has been stated that "Civil Rule 36 provides a mechanism by which potentially disputed issues may be expeditiously resolved before trial, thereby expediting proof of these issues at trial." St. Paul Fire & Marine Ins. Co. v. Battle (1975), 44 Ohio App.2d 261, 269. Civ. R. 36 provides in relevant part as follows: (A) Request for admission. 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(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. * * * Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court - 6 - may allow, the party to whom the request is directed serves upon the party requesting the admissions a written answer or objection addressed to the matter, signed by the party or by his attorney ***. Plaintiff's request for admissions did not specifically designate the period within which defendant was required to answer or object to the requests. The relevant preamble to the plaintiff's request reads as follows: Plaintiff requests that Defendant admit the truth of the matters set forth in the attached pages, pursuant to Rule 36, Ohio Rules of Civil Procedure, for all purposes allowed in such rules and subject to sanctions provided therein for delays in responding or unreasonable refusals to admit. Further, the parties shall take notice that Plaintiff may offer into evidence the documents referred to with these Requests, copies of which have been previously submitted or are submitted along with this requests. Thus, the form of plaintiff's request did not identify the time for responding ("within a period designated within the request") as required by Civ. R. 36(A). Given this omission, it is difficult to speculate on when, if ever, defendant was out of rule in not responding. French v. Dwiggins (1984), 9 Ohio St.3d 32, 37 (appellant's request for admissions failed to designate response time; therefore failure to respond until trial not deemed admissions); Birch v. Menko (June 27, 1986), Lake County App. No. 10-280, unreported at 4 (since no time limit was contained in request for admissions, discoveree was under no duty to respond within any designated time). In any event, the court gave defendant leave to respond to the motion for summary judgment by - 7 - June 12, 1995, at which time defendant filed her brief in opposition and her answers to interrogatories. Arguably, the leave to respond to the motion for summary judgment encompassed leave to respond to (or amend) the requests for admissions attached to plaintiff's summary judgment papers. On June 13, 1995, defendant filed her amended responses to plaintiff's requests for admissions pursuant to Civ. R. 36(B). While generally admitting the attorney-client relationship with plaintiff in the divorce case, defendant denied the nature and extent of plaintiff's claim for services rendered. In particular, the following requests and answers outline the dispute between plaintiff and defendant. No. 4: In June 1993, Defendant agreed to pay fees to Plaintiff at the rate of $165.00 per hour, with respect to the legal services that he was going to render with regards to representing her in the divorce matter. ADMIT: Denied * * * No. 8: Defendant received a letter from Plaintiff dated July 6, 1993 setting forth details relating to Plaintiff's representation of Defendant in her divorce case, a copy of such letter is attached hereto as Exhibit "A." ADMIT: Denied No. 9: Defendant received from Plaintiff various billings for legal services rendered and costs advanced with respect to Plaintiff's representation of Defendant in her divorce case. - 8 - ADMIT: Admitted, that various billings were received; but, denied that billings were reasonable and necessary. No. 10: Defendant received from Plaintiff the billings described as follows: [Sixteen invoices for each month from July 15, 1993 to November 15, 1994 to which defendant gave the following common answer:] ADMIT: See response to No. 9 No. 11: With respect to Plaintiff's representation of Defendant in her divorce case, Plaintiff performed the legal services described in attached Exhibit "R." ADMIT: Denied that the contents of Exhibit "R" reflect reasonable and necessary services. * * * No. 13: The hourly rate of $165.00 is a reasonable and customary rate as of 1993 for attorneys practicing law in the area of domestic relations and who had been in practice in said field for a period in excess of 17 years. ADMIT: Denied Defendant contends that the trial court should have considered defendant's amended responses to the requests for admissions before granting summary judgment in that Civ. R. 36(B) allows for just such consideration when the interest of trying the case on the merits is thereby subserved. Civ. R. 36(B) states in pertinent part that: Any matter admitted under this Rule is conclusively established unless the Court on motion permits withdrawal or amendment of the admission *** 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 - 9 - to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. In the first place, it should be recognized that "an admission arising by failure to respond to a request for admissions, which is evidenced by a writing, is a 'written admission' for purposes of Civ. R. 56(C)." T & S Lumber Co. v. Alta Construc. Co. (1984), 19 Ohio App.3d 241, 244; Kleisch v. Reid (1994), 95 Ohio App.3d 664, 675. In support of defendant's motion to amend, she cited Balson v. Dodds (1980), 62 Ohio St.2d 287. In Balson, the Supreme Court recognized that the defendant could withdraw or amend pursuant to Civ. R. 36(B) any admissions which may have resulted from a failure to answer under Civ. R. 36(A) and a formal motion was not required. The Court stated that: *** Civ. R. 36(B) does not require that a written motion be filed, nor does it specify when such motion must be filed. Thus, the rule leaves such matters to the discretion of the trial court. Herein, the trial court could reasonably find that, by contesting the truth of the Civ. R. 36(A) admissions for the purposes of summary judgment, appellee satisfied the requirements of Civ. R. 36(B) that she move the trial court to withdraw or amend these admissions. Balson, at 290, fn. 2. "[Civ. R. 36(B)] emphasized the importance of having the action resolved on the merits, while at the same time assuring each party that justified reliance on an admission in preparation for trial will not operate to his prejudice." Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d 66, 67. - 10 - In essence, the withdrawal or amendment of Civ. R. 36(A) admissions should be permitted where: it is uncontested that presentation of the merits herein would be enhanced by permitting [Defendant] to file untimely answers; and [Plaintiff] has not demonstrated that these untimely answers would prejudice [Plaintiff] in maintaining the action on the merits. Balson at 290-291. The same is true here: the merits of the controversy will be served and plaintiff has suffered no cognizable prejudice by defendant's delay in responding to the discovery; the motion for summary judgment was filed on April 28, 1995; defendant was given leave to June 12 to file her opposition; the amended answers to the request for admissions were filed on June 13, 1995; no prejudice is asserted nor conceivable from such a minute delay. Furthermore, the Supreme Court's decision in French v. Dwiggins, supra at 37 confirms the conclusions we have reached in this matter: In Balson, supra we upheld the withdrawal of admissions occasioned by a party's failure to timely respond to requests for admissions. We noted that, "appellant has not demonstrated that these untimely answers would prejudice appellant in maintaining her action on the merits." Balson, supra, at 291. In the case sub judice, appellant has not demonstrated to any degree that submission of the amount of damages to the jury would prejudice her ability to maintain her action. Appellant's request for admissions clearly did not comply with the strictures of Civ. R. 36. Accordingly, we hold that the trial court properly ruled that the amount of damages not be deemed conclusively established under Civ. R. 36. - 11 - Since plaintiff's requests for admissions did not designate a period within which defendant was required to respond; since defendant was arguably not out-of-rule; since there was no demonstrable prejudice in allowing the amended answers; since the court's leave to file an opposition to summary judgment could have included the amended responses; since defendant's motion to amend her responses clearly contested the truth of the Civ. R. 36(A) admissions for the purposes of summary judgment; since the presentation of the merits of the case would be enhanced by allowing the amendments; we find the trial court abused its discretion in failing to consider the amended requests. Assignment of Error I is sustained. II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Giving effect to the filing of the amended responses and the other evidentiary materials on file, including the amended responses to the requests for admissions, we find that summary judgment was improperly entered for the plaintiff. Under Civ. R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. - 12 - State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court modified the summary judgment standard as applied in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing a genuine issue for trial exists. Id. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court - 13 - reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. In addition to the amended responses to the requests for admissions referenced above, defendant also filed answers to plaintiff's interrogatories which disputed the claims filed by the plaintiff. The following interrogatories and answers are illustrative. Interrogatory No. 4: State your understanding of the agreement for payment of compensation and expenses for legal services rendered by Plaintiff with respect to legal matters in which Plaintiff represented you regarding your divorce, including the manner in which the compensation would be computed, i.e., hourly rate, etc. ANSWER: The fee for legal services was to be commensurate with the amount of time and effort involved in the case along with the difficulty of the issues presented and the results achieved. Interrogatory No. 5: State whether you ever received any billings [from] Plaintiff and, if so, state the date on which you received each such billing and the amount so billed. ANSWER: Received billings based upon the time clock method. Interrogatory No. 6: State whether you agree that there is any money due and owing to Plaintiff for legal services or advancements of - 14 - expenses with respect to Plaintiff's representation of you in regards to your divorce. ANSWER: There is probably a balance due for services rendered; but, the exact amount needs to be determined based upon the criteria contained in Answer No. 4. * * * Interrogatory No. 9: State the basis on which you alleged in your Third Defense, Paragraph 8 of your Answers, that Plaintiff's claim exceeds the reasonable value of the services performed on [sic] Plaintiff, and state what you claim the reasonable value of such services to be. ANSWER: See Answer No. 4 Interrogatory No. 10: State the basis for your claim in the Fourth Defense, paragraph 4 of your Answer, that Plaintiff's claim is barred by the equitable doctrine of latches and/or waiver. ANSWER: Plaintiff knew Defendant was encountering financial difficulties and did not have the means to pay for legal services; and, on that basis, agreed to be paid from the proceeds of the sale of the Defendants and her former husband's marital residence. Interrogatory No. 11: State whether you received a letter from Plaintiff dated July 6, 1993, a copy of which is attached hereto as Exhibit "A." ANSWER: Probably; but, the letter was not signed. Interrogatory No. 12: State whether Defendant discussed with Plaintiff the matter of attorney fees for his legal representation of her in her divorce case, and with respect to each such occasion, the following: (a) The approximate date of the discussion, if known; - 15 - (b) Whether the discussion was in person or over the telephone and if in person, the location of such discussion; (c) The subject matter of the discussion. ANSWER: Generally, the discussion between Plaintiff and Defendant regarding legal fees were very few, except that Defendant was not in a position to pay substantial fees. Interrogatory No. 13: State whether Plaintiff made any statements to Defendant regarding the matter of attorney fees for his legal representation of Defendant, and if so, state with respect to each such statement: (a) The approximate date, if known; (b) The statement made by Plaintiff. ANSWER: See Answer No. 12. Based upon the amended responses to the requests for admissions and the answers to interrogatories cited above, we find that genuine issues of material fact remain and the plaintiff was not entitled to summary judgment. As these discovery answers and responses make clear, there is a genuine dispute: as to the essential agreement for legal services between the parties and the rate of payment; as to the scope of the services necessary or required; as to whether time of payment was conditioned on sale of the marital residence; and as to what were customary and reasonable charges under such circumstances. That evidence of the disputed issues arises from defendant's discovery responses is no reason to disregard them. See Monastra v. D'Amore (March 21, 1996), Cuyahoga App. No. 69378, unreported at p. 19: - 16 - D'Amore's deposition, timely filed in the action, sets forth her dispute over Monastra's bills. She disagreed with everything about his billing, including entries in the bills that conflicted with the notations on her own calendar. (D'Amore Depo. pp. 77-78). Attached to her deposition was a list of dates detailing when she called Monastra and when he did and did not return her calls. Her list also specified when hearings were held. The dates on her list conflicted with the entries on plaintiff's itemized bill and she also disagreed with time he said he spent. She denied the accuracy of his itemization. (D'Amore Depo. at 78, 148). A comparison between D'Amore's list and plaintiff's itemization shows that twenty of plaintiff's listed conferences with D'Amore do not appear on D'Amore's list. Also, four alleged pretrials itemized on plaintiff's bill do not appear on D'Amore's list, nor on the court docket. Although expert testimony is ordinarily required to challenge reasonableness of attorney fees, that is not an absolute requirement when a layman can understand the issues. Ramage v. Cent. Ohio Em. Serv. (1992), 64 Ohio St.3d 97, 103; Schafter v. Ward (1985), 17 Ohio St.3d 79, 83; Northwestern Life Ins. v. Rolers (1989), 61 Ohio App.3d 506, 512. Here, an issue of fact existed regarding the reasonableness of the fees based on defendant's deposition testimony that there were discrepancies between defendant's personal list and plaintiff's itemized bill. Expert testimony would not be needed as a lay person could understand that the bill does not match defendant's list of services. Furthermore, even if defendant did need to obtain an expert opinion, the trial court abused its discretion in not permitting her the extra time to obtain one even though she had recently obtained new counsel and plaintiff had filed the motion for summary judgment without leave. *** The ruling comes close to summary judgment by default, a practice which should be discouraged. "Default" summary judgments are not permitted under Ohio law. Maust v. Palmer - 17 - (1994), 94 Ohio App.3d 764, 769; Wooten v. Cols. Div. (1993), 91 Ohio App.3d 326, 331. It is a basic tenet of Ohio jurisprudence that cases should be "decided on their merits not upon pleading deficiencies." Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175. See, also, Perotti v. Ferguson (1983), 7 Ohio St.3d 1, 3; Hopkins v. Quality Chevrolet (1992), 79 Ohio App.3d 578, 583. Finally, whatever the deficiencies of defendant's responses or their timeliness, we note that plaintiff's affidavit, on which its claim for summary judgment rests, contains an averment that the fees were reasonable and customary, but contains no averment that the hours expended were reasonable and necessary given the difficulty of the case. As recently stated in Thompson, Hine & Flory v. Pingue Properties, Inc. (March 29, 1996), Franklin App. No. 95APE 07-881, unreported at 4: Other courts have held that, where a fee agreement exists, that contains the hourly rate as well as a retainer fee, the attorney seeking to recover fees must also demonstrate that the time spent was fairly and properly used, and that the work hours devoted to the case were reasonable. Jacobs v. Holston (1980), 70 Ohio App.2d 55, 434 N.E.2d 738; Brooks v. Houston (Sept. 14, 1995), 1995 Ohio App. LEXIS 3961, Franklin App. No. 95APG02-180, unreported (1995 Opinions 3872). And further to the point, see Skidmore & Assoc. Co. v. Southerland (1993), 89 Ohio App.3d 177, 180: In general, the rule is that where the employment of an attorney is under an express, valid contract for an agreed fee, either for a specified amount or a specified percentage of a recovery, such contract is conclusive as to the amount of such compensation. See 6 Ohio Jurisprudence 3d (1978) 694, Attorneys at Law, Section 156. We note, however, that this case, - 18 - as presented to the trial court, does not involve an agreed fee. While there was an agreement as to the hourly rate, the letter contract did not refer in any way to the number of hours to be expended. See Jacobs v. Holston (1980), 70 Ohio App.2d 55, 60, 24 O.O.3d 72, 75, 434 N.E.2d 738, 741-742. In that there is no agreed fee, the burden of proving that the time was fairly and properly spent and that a reasonable and customary number of hours were devoted to the clients' case is on the law firm as plaintiff. Id. Based on the agreement, however, the $150-per-hour rate need not be shown to be a reasonable rate. See, also, Climaco, Seminatore, Delligatti & Hollenbaugh v. Carter (1995), 100 Ohio App.3d 313, 323 (even though a fee agreement existed, "the burden of proving that the time expended was fairly and properly used and the burden of showing the reasonableness of work hours directed to the case rest on the attorney. *** [A] trial court must base its determination of reasonable attorney fees upon actual value of the necessary services performed, and there must be some evidence which supports the court's determination.") In the absence of such evidence, summary judgment for plaintiff was not warranted by the state of the record. Assignment of Error II is sustained. Judgment reversed and remanded. - 19 - It is ordered that appellant recover of appellee her costs herein taxed. It is ordered that a special mandate be sent to the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and HARPER, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .