Lloyd v. Kuznar

• Decision Date: 28 December 2021
• Docket Number: Court of Appeals Case No. 21A-CT-1338
• Citation: 180 N.E.3d 353
• Parties: Kim M. LLOYD, Appellant-Plaintiff/Counterclaim Defendant, v. Lawrence KUZNAR, Appellee-Defendant/Counterclaim Plaintiff and Trustees of Purdue University, Defendant.
• Court: Indiana Appellate Court

180 N.E.3d 353

Kim M. LLOYD, Appellant-Plaintiff/Counterclaim Defendant,

v.Lawrence KUZNAR, Appellee-Defendant/Counterclaim PlaintiffandTrustees of Purdue University, Defendant.

Court of Appeals Case No. 21A-CT-1338

Court of Appeals of Indiana.

FILED December 28, 2021

Attorney for Appellant: Diana C. Bauer, Bauer Legal LLC, Fort Wayne, Indiana

Attorney for Appellee Kuznar: Jared P. Baker, Burt, Blee, Dixon, Sutton & Bloom, LLP, Fort Wayne, Indiana

Attorneys for Appellee Trustees of Purdue University: Kathleen M. Anderson, Barnes & Thornburg LLP, Fort Wayne, Indiana, John R. Maley, Justine Farris-Niehaus, Barnes & Thornburg LLP, Indianapolis, Indiana

May, Judge.

[1] Kim M. Lloyd appeals the trial court's denial of her Trial Rule 60(B) motion to set aside the dismissal of her complaint against Purdue University and Lawrence Kuznar and the entry of default judgment against her on Kuznar's counterclaim. She presents five issues for our review, which we consolidate and restate as:

i. Whether the trial court abused its discretion in denying Lloyd's Trial Rule 60(B) motion to set aside the order dismissing her complaint against Purdue University;

ii. Whether the trial court erred in denying Lloyd's Trial Rule 60(B) motion to set aside its order dismissing Lloyd's complaint against Kuznar; and

iii. Whether the trial court erred in denying Lloyd's Trial Rule 60(B) motion to set aside its orders granting default judgment in favor of Kuznar on his counterclaim and awarding Kuznar over $600,000 in damages.

We affirm the denial of Lloyd's Trial Rule 60(B) motion to the extent it sought to set aside the dismissal of her complaint. However, we reverse the portion of the trial court's order denying Lloyd's motion to set aside the default judgment on Kuznar's counterclaim and remand for further proceedings consistent with this opinion.

Facts and Procedural History

[2] Lloyd, who was represented by the law firm of Christopher Myers and Associates, initiated suit against Purdue University on December 14, 2018. She then amended her complaint on September 4, 2019, adding Kuznar as a defendant. The amended complaint alleged Lloyd was an assistant professor at Purdue University-Fort Wayne ("PFW") from 2014 until May 2019 and her contract was terminated after she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The charge of discrimination accused Kuznar, then-chair of PFW's sociology and anthropology department and Lloyd's supervisor, of making unwanted sexual advances toward her and inappropriately touching her. She also claimed that, after taking leave pursuant to the Family Medical Leave Act¹ ("FMLA") and rejecting Kuznar's advances, Kuznar retaliated against her by belittling her in front of their colleagues and sabotaging her three-year review meeting. Lloyd alleged Kuznar's actions violated her rights under Title VII of the Civil Rights Act of 1964² and the FMLA. Lloyd also asserted that she suffered "physical pain, emotional distress, mental anguish, lost income, lost job-related benefits, humiliation, embarrassment, inconvenience and other financial damages and injuries" as a result. (Appellant's App. Vol. II at 36.)

[3] On November 15, 2019, Kuznar filed a counterclaim against Lloyd for defamation in which he alleged Lloyd sent an email on October 26, 2018, to Eric Link, a Dean at PFW; Carl Drummond, Vice Chancellor for Economic Affairs at PFW; and all the professors in the university's anthropology and sociology department. He asserted Lloyd's email falsely accused him of abusing his position as department chair, harassing Lloyd, and requesting "highly inappropriate favors" from Lloyd. (Appellee's App. Vol. II at 8.) Kuznar claims the email damaged his professional reputation and caused him to take an unpaid leave of absence from his position at PFW.

[4] On December 23, 2019, Purdue filed a motion to compel asking the court to order Lloyd to provide long overdue responses to Purdue's discovery requests. Purdue alleged:

1) Purdue serviced Defendant's First Discovery Requests to Plaintiff on July 26, 2019 by email and by regular U.S. mail ...

2) On August 22, 2019, the office of Plaintiff's counsel requested an initial 30-day extension of time to respond to Purdue's discovery requests, and defense counsel agreed to the requested extension.

3) On September 27, 2019, the office of Plaintiff's counsel contacted defense counsel, Kathleen Anderson, and requested a three-week extension of time to respond to Defendant's discovery, advising that he was having trouble reaching Plaintiff. Defendant's counsel agreed to a three-week extension.

4) On October 18, 2019, the office of Plaintiff's counsel advised Attorney Anderson that Plaintiff was working on her discovery responses but required extra time. Attorney Anderson agreed to another one-week extension of time on October 19, 2019.

5) On October 25, 2019, the office of Plaintiff's counsel asked for a one-week extension and Attorney Anderson again agreed to the extension.

6) On November 4, 2019, the office of Plaintiff's counsel advised that Plaintiff had promised to get her responses to her counsel that afternoon and that the responses would be transmitted to defense counsel "ASAP."

7) On November 11, 2019, Attorney Anderson emailed the office of Plaintiff's counsel, inquiring about the discovery responses. At that time, the office of Plaintiff's counsel advised that the responses had not been received from Plaintiff and that Attorney Christopher Myers might have to withdraw from the case.

8) On December 10, 2019, the Court held a status conference. At this conference Attorney Myers advised that he has not been able to reach his client.

9) To date, Purdue has not received Plaintiff's discovery responses or received any information that they are imminent.

(Appellee's Supp. App. Vol. II at 2-3.) Purdue asked the trial court to order Lloyd to provide immediate responses to its written discovery requests, and if she still failed to respond, to dismiss her complaint as a sanction for discovery non-compliance.

[5] On January 13, 2020, Attorney Myers moved to withdraw as Lloyd's counsel. The motion listed Lloyd's last known address as: 11515 Sandy Creek Crossing, Fort Wayne, Indiana 46814 ("Fort Wayne Address"). It also listed a telephone number and e-mail address for Lloyd. Attorney Myers submitted with his motion to withdraw a letter dated December 30, 2019, addressed to Lloyd's Fort Wayne Address and her e-mail. The letter detailed Attorney Myers’ efforts to contact Lloyd and her repeated failures to respond. The letter notified Lloyd that Myers intended to file a motion to withdraw, and it advised her as follows:

a. Your case is scheduled for a status conference on February 11, 2020 at 9:30 a.m.

b. Defendants filed a Motion to Compel your discovery responses on December 23, 2019, and your response to their motion is due on January 7, 2020. Attached is a copy of that Motion to Compel.

c. I requested on your behalf, and was granted, an extension of time to answer the Counter-Claim filed against you—your answer is now due on January 6, 2020.

d. Pursuant to the Allen County Local Rules, you have an ongoing duty as an unrepresented party to inform the Court of your change in address, telephone number, fax number and email address.

e. According to the Indiana common law, as an unrepresented party, you will be held to the same standard of conduct as an attorney licensed to practice in the State of Indiana.

f. Prejudice may occur from your failure to act promptly or to secure new counsel.

(Appellant's App. Vol. II at 45-46.) On January 23, 2020, the trial court granted Attorney Myers’ motion to withdraw his appearance. The copy of the order mailed from the court to Lloyd's Fort Wayne Address was returned with the notation:

(Id. at 48.) The chronological case summary reflects the letter was returned on February 4, 2020.

[6] On February 11, 2020, the trial court held a hearing on Purdue's motion to compel. Both Purdue and Kuznar appeared by counsel, but Lloyd failed to appear. The trial court granted Purdue's motion to compel, and it set a hearing for March 10, 2020, "regarding possible sanctions, Trial Rule 41(E), and Defendant Lawrence Kuznar's anticipated Motion for Default Judgment[.]" (Id. at 51.) The trial court sent a copy of the order granting Purdue's motion to compel and setting a hearing for March 10, 2020, to Lloyd's Fort Wayne Address. That letter was similarly returned to the court with the same "Return to Sender" notification that provided an address for Lloyd in the state of Washington. (Id. at 52.)

[7] On February 20, 2020, Kuznar filed a motion seeking entry of default judgment against Lloyd on his counterclaim and asking the trial court to set a hearing on damages. The motion alleged Lloyd was required to file an answer to Kuznar's counterclaim by February 5, 2020, and she had not done so. The certificate of service indicates Kuznar served Lloyd by mailing a copy of the motion to her Fort Wayne Address. Lloyd did not appear at the March 10, 2020, hearing. The trial court issued an order following the hearing in which it dismissed Lloyd's complaint against Purdue as a sanction for her failure to abide by the trial court's order granting Purdue's motion to compel, dismissed Lloyd's complaint against Kuznar pursuant to Trial Rule 41(E), and entered default judgment against Lloyd with respect to Kuznar's counterclaim. The trial court took the issue of damages on the counterclaim under advisement.³

[8] On April 1, 2020, the trial court held a hearing on Kuznar's damages and issued an order in which it found the statements Lloyd made in the email she sent to select PFW faculty and administrators were false. The trial court ruled:

The Court concludes that Lloyd is liable to Kuznar in the amount of $402,632.00 for presumed damages, as Lloyd's statement was defamation per se, imputing misconduct in Kuznar's profession. The Court further concludes that Kuznar is entitled

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