Evidence Rule 104 reads as follows:
RULE 104. Preliminary Questions
(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (emphasis added)
(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(C) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require.
(D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
(E) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
It seems that Evid. R. 104 would give attorneys and judges a way to shorten trials. If there were preliminary matters regarding the admissibility of evidence that did not depend on establishing a condition of fact, such matters could be disposed of by filing written motions with supporting documents or having brief summary hearings prior to trial on the admissibility of evidence. An example might be the admissibility of photographs, business records, etc.
In over 20 years on the bench, however, I can only recall a very few times that attorneys have referenced Evid. R. 104 to me regarding admissibility of evidence issues. My recollection is that such references have been during a trial, yet it would seem to be a tool that could be effectively used prior to trial.
Judge James Kimbler
Thursday, February 08, 2007
Tuesday, February 06, 2007
Foreclosure Problems
With the increasing number of foreclosures on the Medina County Common Pleas Court's docket, there has been an increasing number of requests for default judgment. Usually these requests are granted but increasingly we are running into problems with the named plaintiff having an interest in the property.
This is what happens: a financial institution files a foreclosure action and with the action files a preliminary judicial title report. That report shows all the parties who have an interest in the property. Often the financial institution that filed the foreclosure action is not listed on the preliminary judicial title report. We don't know why the plaintiff is bringing the action. We assume that it is because there was an assignment of the mortgage and promissory note, but we don't know that from the preliminary judicial title report or from the pleadings.
When that happens, we deny the motion for default judgment and order the plaintiff to provide proof within 60 days of their interest in the mortgaged premises. It would be far better from our perspective if that information was provided to the Court when the complaint is filed.
This is what happens: a financial institution files a foreclosure action and with the action files a preliminary judicial title report. That report shows all the parties who have an interest in the property. Often the financial institution that filed the foreclosure action is not listed on the preliminary judicial title report. We don't know why the plaintiff is bringing the action. We assume that it is because there was an assignment of the mortgage and promissory note, but we don't know that from the preliminary judicial title report or from the pleadings.
When that happens, we deny the motion for default judgment and order the plaintiff to provide proof within 60 days of their interest in the mortgaged premises. It would be far better from our perspective if that information was provided to the Court when the complaint is filed.
Monday, February 05, 2007
Judge Kimbler Decision on Withdrawing Admissions
Below is the text of an journal entry that Judge Kimbler released on February 5, 2006 dealing with withdrawal of admissions made pursuant to Civ. R. 36. It contains a discussion of a recent case from the Ninth District Court of Appeals dealing with the withdrawal of matters deemed admitted under Civ. R. 36.
Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.
After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.
As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.
The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “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 to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.
Plaintiff has moved for summary judgment on his Complaint, pursuant to Ohio Civil Rule 56(B). Plaintiff claims he is entitled to judgment in his favor on the issue of liability, and asks that the Court set the case for hearing solely on the issue of damages. In making this assertion, Plaintiff is relying on Defendant’s failure to respond to a Request for Admissions in a timely manner.
After considering the litigants’ briefs relative to Plaintiff’s Motion for Summary Judgment and the evidence presented in opposition to said Motion, the Court finds that there are genuine issues as to material facts in this case.
As the Ninth District Court of Appeals pointed out in Dennison v. Koba (1993), 86 Ohio App.3d 605, 609, “A summary judgment precludes a jury’s consideration of a case and should, therefore, be used sparingly, only when reasonable minds can come to but one conclusion.” Accordingly, Plaintiff’s Motion for summary judgment is denied.
The Court further finds that Defendant’s Motion to Withdraw Admission is well taken. Civil Rule 36, which governs requests for admissions, provides “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 to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”
In Albrecht v. Hambones Corporation, 2002 Ohio 5939, Summit App. No. 20993, the Ninth District Court of Appeals held it is an abuse of discretion to deny a party’s request to withdraw admissions without a showing that allowing withdrawal or amendment of the admissions would prejudice the party seeking admission. In the case now before the Court, Plaintiff has not offered any evidence that it would be prejudiced by allowing Defendants to withdraw the admissions. Accordingly, Defendants’ Motion to Withdraw Admissions is granted.
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