Neal v. Lilly
| Decision Date | 17 January 2020 |
| Docket Number | Appellate Case No. 28400,Appellate Case No. 28082 |
| Citation | 2020 Ohio 128 |
| Parties | LEO NEAL, JR. Plaintiff-Appellant v. THOMAS LILLY, et al. Defendant-Appellee |
| Court | Ohio Court of Appeals |
(Civil Appeal from Common Pleas Court)
OPINIONLEO NEAL, JR., 5174 Schuylkill Street, Columbus, Ohio 43220 Plaintiff-Appellant, Pro Se
CRAIG T. MATTHEWS, Atty. Reg. No. 0029215, 320 Regency Ridge Drive, Dayton, Ohio 45459 Attorney for Defendant-Appellee
{¶ 1} Plaintiff-Appellant, Leo Neal, Jr., appeals pro se from a judgment awarding damages to Defendant-Appellee, Thomas Lilly, on Lilly's counterclaim for temporary injury to Lilly's real property and a judgment denying Neal's motion for a new trial. (Neal did not prevail on his claim against Lilly.) We conclude that none of Neal's assignments of error have merit, and we affirm.
{¶ 2} Lilly owns four parcels of real property in Licking County, Ohio, which include a four-family residential unit, a two-family residential unit, and a single-family mobile home, all of which Lilly rented out. In 2008, Lilly agreed to sell the properties for $120,000 to Chad Jones under a land-installment contract that called for Jones to make monthly payments over ten years.
The Ohio EPA lawsuit
{¶ 3} In December 2012, the Ohio Environmental Protection Agency (EPA) sent Lilly a letter that alleged continuing violations of Ohio's water pollution control laws. Evidently, the septic systems on the Licking County properties were leaking, and Lilly had twice been told earlier in the year that he had to connect to nearby sanitary sewers. In the letter, the Ohio EPA proposed a civil penalty and stated its final findings and orders, one of which was that Lilly "abandon the on-site septic system and connect the site to the sanitary sewers."
{¶ 4} A year later, in December 2013, the state filed suit against Lilly and Jones. Lilly decided to defend himself without an attorney. Instead, he hired Neal, an engineer, to advise him. Neal had told Lilly that Lilly did not need an attorney because he was an expert in defending against alleged EPA violations and would provide Lilly all the necessary assistance. As the case proceeded, the state served Lilly with discovery requests. Neal advised Lilly that he did not need to respond to them, so Lilly didn't. Later, the state notified Lilly of a scheduled deposition. Neal advised Lilly that he did not need to attend, so Lilly did not appear. For Lilly's inaction, judgment was entered against him in September 2014, and in July 2015, Lilly entered into a consent agreement with the state in which he agreed to pay damages and to decommission the septic systems. Lilly and Jones agreed that Jones would decommission the septic systems in exchange for Lilly's waiving approximately six months of land-contract payments.
{¶ 5} Lilly never did connect the properties to the sanitary sewer. After the septic systems were decommissioned, the properties had no waste disposal, rendering them unusable as residential properties. Jones no longer wanted to buy the properties, so in August 2016, Lilly and Jones terminated the land contract. The properties were re-zoned commercial and listed for sale.
Neal files suit in the municipal court
{¶ 6} In June 2016, Neal filed a pro se complaint in the Kettering Municipal Court against Lilly and his wife, Renata ("Renata"), alleging that they had failed to pay him for his services in helping Lilly defend against the Ohio EPA's lawsuit. The complaint asserted claims for breach of contract and unjust enrichment. Renata moved to dismiss the claims against her, and Lilly filed an answer and three counterclaims. Neal moved to dismiss the counterclaims and moved for summary judgment on his claims.
{¶ 7} On October 27, 2016, the municipal court granted Renata's motion, dismissing Neal's claims against her. The court overruled Neal's motion to dismiss Lilly's counterclaims. The following month, Neal again moved for summary judgment on his claims. He then appealed the municipal court's October 27 decision, which we dismissed for lack of jurisdiction, because it was not a final appealable order. Neal v. Lilly, Decision and Final Judgment Entry, 2d Dist. Montgomery No. 27385 (April 12, 2017).
{¶ 8} In June 2017, Lilly amended his answer and counterclaims. The amended counterclaims were for professional negligence, negligent misrepresentation, promissory estoppel, and fraud. Lilly alleged that because he relied on Neal's (mis)representations about his expertise in defending against alleged Ohio EPA violations, he suffered damages in excess of $25,000. Lilly also moved to transfer the case to the Montgomery County Court of Common Pleas, which the municipal court allowed.
Discovery sanctions in the common pleas court
{¶ 9} Shortly before the transfer, Lilly had served Neal his first set of interrogatories and requests for documents. Neal never responded. After the transfer, in October 2017, Lilly filed a motion to compel. The common pleas court granted the motion on December 8, 2017, and ordered Neal to serve "within fifteen (15) days complete responses to Defendant's First Set of Interrogatories and Request for Production of Documents." The court's order warned Neal: "Plaintiff is cautioned that failure to comply with this Order within the time provided may lead to the imposition of additional sanctions against him in accordance with Civ.R. 37(B)(1), up to and including the dismissal of his claims in their entirety and/or entry of judgment against him on Defendant's counterclaim." The deadline came and went. Finally, on December 27, Neal filed a response in which he refused to answer the interrogatories and refused to produce any documents, claiming a Fifth Amendment right against self-incrimination.
{¶ 10} Lilly moved for sanctions, asking the court to dismiss Neal's claims and enter judgment on the counterclaims. The court held a conference with the parties on February 2, 2018, and thereafter entered an order giving Neal another chance to provide full and complete answers to Lilly's interrogatories and to provide responsive documents, this time by February 12, 2018. The order spelled out exactly what sanctions would be imposed if Neal failed to comply:
{¶ 11} This time, Neal submitted timely responses, but they were insufficient. Lilly filed a notice of non-compliance with the trial court, stating that Neal had not provided full, complete, and accurate answers or full and complete documents. On March 2, 2018, the trial court imposed the sanctions on Neal that it had said it would. The court dismissed Neal's claims against Lilly, entered judgment for Lilly on his counterclaims, and ordered that a damages hearing be held at which Neal would not be permitted to introduce evidence. Neal subsequently filed a demand that damages be determined by a jury. The trial court did not respond to Neal's demand.
The damages hearing and award
{¶ 12} At the damages hearing, Lilly testified and submitted several exhibits, including the consent agreement in the Ohio EPA case, property tax information from Licking County, the 2015 property-tax bill, and the 2018 property-tax bill. Lilly testified that he had been told that it would cost around $50,000 to connect the properties to the sanitary sewer. He also said that when the land contract was terminated, Jones still owed around $18,000. After the hearing, Lilly filed a post-hearing brief asking for $230,675 in total damages—$91,300 for diminution in the fair market value of the property due to Neal's failure to assist Lilly in the Ohio EPA lawsuit; $10,000 for the penalty Lilly paid in the Ohio EPA lawsuit; and $129,375 in lost rental income. For his part, Neal filed a motion asking the court to deny all Lilly's damage claims.
{¶ 13} On July 19, 2018, the trial court entered judgment awarding Lilly total damages of $68,362.28. Part of the award was for the injury to the properties caused by the decommissioning of the septic systems. The court awarded Lilly $50,000, the cost of connecting the properties to the sanitary sewer, as the cost to restore the properties to their pre-injured state. The other part of the award, $18,362.28, the amount that Jones still owed under the land contract when it was terminated, was for the loss of use of the properties from the date the land contract was terminated until the time of the judgment.
{¶ 14} On August 3, 2018, Neal moved for a new trial under Civ.R. 59. Three days later, he filed an appeal raising issues related to two of the municipal court's orders and from the common pleas court's July 19, 2018 judgment.1 The trial court notified the parties that because Neal had appealed, the court had no jurisdiction to rule on Neal's motion for a new trial. We remanded the case for the limited purpose of allowing the trial court to decide that motion, and on April 17, 2019, the trial court overruled it. Neal separately appealed that ruling.2
{¶ 15} We consolidated Neal's two appeals and consider them now.
{¶ 16} Neal presents twenty-one assignments of error. Three errors are assignedto the municipal court and eighteen are assigned to the common pleas court.
Errors assigned to the municipal court
{¶ 17} The first three assignments of error concern procedural matters in the municipal court.
{¶ 18} Renata moved to dismiss the claims against her under Civ.R. 12(B)(6), arguing that the claims for breach of contract or unjust enrichment were not actually...
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