Individually v. Kindell, APPEAL NO. C-140160
| Decision Date | 06 May 2015 |
| Docket Number | APPEAL NO. C-140160 |
| Citation | 2015 Ohio 1709 |
| Court | Ohio Court of Appeals |
| Parties | LAUNA LYONS, Individually and as parent and next friend to M.H., a minor, Plaintiff-Appellee, v. THEOTIS KINDELL, JR., as executor of the estate of Willa Mae Kindell, deceased, and THEOTIS KINDELL, JR., as successor executor of the estate of Theotis Kindell, deceased, Defendants-Appellants. |
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Stephen R. Felson and Michael B. Ganson, for Plaintiff-Appellee,
William D. Bell, Sr., for Defendants-Appellants.
Please note: this case has been removed from the accelerated calendar.
{¶1} First in 2005, and then in a refiling in 2009, a mother sued the owners of an apartment for her child's lead-poisoning injuries, allegedly sustained when she and her child lived in the apartment in 2002. One of the owners died in 2003, the other in 2006. The executor of the owners' estates appeals the trial court's judgment in favor of the mother, arguing that the court should not have entered a default judgment against him as a discovery sanction, that the claim against one owner's estate was time-barred, and that the damages award was against the weight of the evidence. We affirm.
{¶2} Launa Lyons instituted an action for negligence, breach of contract, and breach of implied warranty of habitability against Theotis Kindell, Jr., as executor of the estates of his deceased parents, Willa Mae and Theotis Kindell, Sr. Lyons alleged that she had rented an apartment owned by Kindell's parents from December 2001, until October 2002. She claimed that a September 2002 health inspection had revealed levels of lead-based paint that rendered the apartment uninhabitable for her and her minor children. She alleged that her minor son, M.H., had suffered permanent injuries as a result of lead poisoning from the apartment.
{¶3} Lyons' complaint, filed on February 25, 2009, indicated that it was the refiling of her initial complaint that had been filed in October 2005, and voluntarily dismissed in February 2008.
{¶4} In May 2009, after Kindell had failed to answer the complaint, Lyons moved for a default judgment. In June 2009, Kindell filed a motion to answer or tootherwise plead out of time. In an accompanying affidavit, Kindell asserted that he had received the complaint at his Florida residence, and that he had mistakenly believed that the attorney for his parents' estates had also received the complaint. The trial court granted Kindell's motion.
{¶5} On September 1, 2009, Kindell filed an answer, alleging several affirmative defenses, including that Lyons' claims were barred by the statutes of limitations. He also filed a motion to dismiss the complaint against his father's estate because, pursuant to R.C. 2117.06(B), such claims had to have been filed within one year of his father's death.
{¶6} On September 24, 2009, Lyons responded to Kindell's motion to dismiss. She claimed that M.H.'s status as a minor tolled the statutes of limitations for her claims on his behalf and, as a result, for her own claims. In the alternative, she argued, her claims were contingent claims and therefore not barred by R.C. 2117.06.
{¶7} Four months later, on January 28, 2010, Kindell filed a reply memorandum to Lyons' memorandum in opposition to his motion to dismiss the claims against his father's estate. He asked the court to either grant his motion to dismiss, or to convert his motion into one for summary judgment. He supported his reply with an affidavit of the attorney for his father's estate.
{¶8} On April 27, 2010, the trial court denied Kindell's motion to dismiss the claims against his father's estate.
{¶9} On September 22, 2010, the court issued a scheduling order, mandating that discovery be completed by April 8, 2011.
{¶10} On April 8, 2011, Lyons filed a motion to compel Kindell to answer interrogatories, and a request for production of documents. Her attorney's accompanying affidavit stated that he had served the discovery requests on Kindell on September 22, 2010, and that, despite his extrajudicial attempts to resolve the matter, Kindell had failed to respond.
{¶11} On May 10, 2011, the trial court granted Lyons' motion to compel, and ordered Kindell to respond to the discovery requests by May 16, 2011. The court's entry contained the notation that "defense counsel agreed with the order and requested the same." The entry was signed by defense counsel.
{¶12} On May 18, 2011, Lyons filed a motion for sanctions against the defendants for failing to abide by the court's May 10 order, seeking a default judgment on liability. Lyons filed a notice that the motion would be heard on May 25, 2011.
{¶13} On May 24, 2011, Kindell filed a response to Lyons' motion for sanctions. He stated:
The Defendant agreed with the order heretofore compelling discovery with the expectation that the Court would direct how the requested discovery should be answered since the Defendant executor, who has lived in Orlando, Florida since 1985, [h]as no personal knowledge of the information sought in the discovery. If he is to respond to the discovery with an answer to each questions stating that "[I] as the successor executor to the Estate of Theotis Kindell and the Executor tothe Estate of Willa Mae Kindell, have no knowledge or basis for responding to the requested discovery, because I had no involvement with the real estate property in question," he can do so. The deceased Kindells were the one[s] who actively operated the real estate property at 858 Hutchins Avenue, Cincinnati, Ohio. Accordingly, the Defendant will provide information on the discovery that he possesses, but cannot under oath attest to any of the substantive information requested. It is not his fault that the original action was dismissed and the knowledgeable parties, Theotis Kindell and Willa Mae Kindell, died in the interim.
{¶14} On May 25, 2011, the trial court held a hearing on the motion for sanctions. The court took the matter under submission.
{¶15} On August 1, 2011, Kindell filed his affidavit in support of his response in opposition to Lyons' motion for sanctions. In his affidavit, Kindell stated that he had lived in Florida for more than 15 years and that he had had no involvement with any real estate owned by his parents during their lives, including the subject property. He stated that he had no personal information on the matter, and that he could find no documents, including the lease alleged by Lyons, for the subject property. Kindell averred that he knew of no insurance that covered the property. He stated that the property had been transferred to his brother in October 2006, and that his attempts to locate his brother had been unsuccessful.
{¶16} On August 4, 2011, the trial court conducted another hearing on the motion for sanctions. On August 10, 2011, the court granted the motion and entered a default judgment on the issue of liability in favor of Lyons.
{¶17} Kindell appealed that order to this court, but we dismissed the appeal in February 2012.
{¶18} In April 2012, the trial court issued a scheduling order, setting the matter for trial on August 9, 2012. No transcript of the trial was filed with this court. But on August 30, 2012, Kindell filed an "objection to court's sua sponte request for findings of fact and conclusions of law from the parties before any decision is rendered by the court."
{¶19} On January 18, 2013, the trial court issued its findings of fact and conclusions of law, and its damages award for $796,305.91. Lyons filed motions for prejudgment interest, litigation expenses, and court costs.
{¶20} On October 18, 2013, the court reissued its findings of fact and conclusions of law, and reduced the damages award to $646,305.91.
{¶21} On February 25, 2014, the court issued its final judgment, awarding $646,305.91, plus prejudgment interest and costs. Kindell appeals that judgment.
{¶22} In his first assignment of error, Kindell argues that the trial court abused its discretion by granting a default judgment to Lyons as a sanction for his failure to comply with its discovery order. Kindell contends that he had informed thecourt early in the proceedings that he would have had difficulty complying with the discovery requests.
{¶23} Trial courts have discretion to impose sanctions for discovery violations. See Civ.R. 37; Toney v. Berkemer, 6 Ohio St.3d 455, 458, 453 N.E.2d 700 (1983). Under Civ.R. 37(D), if a party fails to serve answers or objections to interrogatories or to serve a written response to a request for inspection, the court "may make such orders in regard to the failure as are just, and among others it may take any action authorized under subsections (a), (b), and (c) of subdivision (B)(2) of this rule." Civ.R. 37(B)(2)(a), (b), and (c) allow orders establishing certain facts in accordance with the moving party's claim, preventing the noncompliant party from submitting evidence, striking pleadings, and rendering default judgment against the noncompliant party. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 48.
{¶24} Because a default judgment is such a harsh sanction, a trial court abuses its discretion by granting the sanction for a party's failure to respond to discovery requests if the record does not show willfulness or bad faith on the part of the responding party. Toney at syllabus; Johnson at ¶ 49. In granting a default judgment, the court need not use the words "willfulness" or "bad faith," as long as the record substantiates that the failure to respond was due to willful inaction or bad faith. See Huntington Natl. Bank v. Zeune, 10th Dist. Franklin No. 08AP-1020, 20...
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