As the executor of his deceased parents’ estate, a Florida man didn’t know the details of the rental property they owned in Cincinnati. When a tenant filed a negligence lawsuit against the estate, he ignored discovery requests and was hit with a $646,000 default judgment. An Ohio appeals court last week deemed that to be a fair sanction for his inactivity.

In a 2-1 opinion, the First District Court of Appeals sided with Laura Lyons against the owners of the apartment she rented claiming lead-poisoning injuries to her child. Her landlords at the time were Willa Mae and Theotis Kindell Sr. who died in 2006 and 2003 respectively, and the property became part of their estate with Theotis Kindell Jr. as its executor.

Lyons lived in the apartment from late 2001 through October 2002. In September 2002, a health inspection revealed high levels of lead-based paint and deemed the apartment uninhabitable. She alleged in her lawsuit that her son suffered permanent injuries from the lead paint exposure. She originally filed her complaint in 2005, then withdrew and refilled in 2009.

Kindell, who lives in Orlando, responded to the complaint in 2009 asserting that he mistakenly believed the attorney for his parents had received a copy and was responding. He then sought to have the case dismissed on the grounds it was barred by the statute of limitations. The court denied the dismissal and issued a scheduling order for the case that included an April 2011 date to complete discovery.

When Kindell did not respond, Lyons filed a motion to sanction him. Kindell then argued that he had no involvement with the property operated by his deceased parents, and could not provide any substantive information under oath. The property’s ownership was transferred to his brother in 2006 and he said he could not locate him.

A Hamilton County Common Pleas Court granted the sanctions for failing to comply with discovery in August 2011 and ordered a default judgment to Lyons. Kindell appealed to the First District, which denied the appeal in February 2012. In April 2012 the common pleas court conducted a trial on the sanctions and in January 2013 awarded Lyons damages for $796,000. It reduced the award in October 2013 to $646,000, and made the order final in February 2014.  Kindell again appealed to the First District.

Writing for the court, Judge Penelope R. Cunningham wrote that default judgment is a harsh sanction and a trial court must determine whether the sanctions where proportionate to the seriousness of the infraction. While Lyons requested information in September 2010, Kindell did not respond to her by the April deadline, and only responded to the court in May that he was contesting Lyon’s attempt to sanction him. It was not until August 2011 that Kindell produced any information and only to reiterate his failed attempts to locate documentation, Judge Cunningham noted.

“Kindell’s utter failure to respond to Lyons’ discovery requests ‘cannot be construed  as a good faith effort to comply,’” she wrote.

As to the amount of damages, Judge Cunningham indicated that while Kindell disputed the amount, the appeals court was not provided with a transcript of the trial court record, and it is Kindell’s responsibility to provide it. Without the transcript, the court presumes the validity of the trial proceedings.

In a concurring opinion, Judge Patrick F. Fischer scolded Kindell for not investigating the case and preparing for litigation when Lyons first filed in 2005. He said in 2009 Kindell acknowledged receiving a summons in Florida and did nothing, and did not send a letter or email to Lyons during the period of long delay informing them of the reasons for delay.

“Parties cannot allow cases to just ‘sit there,’ and ignore discovery requests because that slows down the efficiency of our courts and our entire civil justice system, and creates increased costs for parties who invoke Ohio’s systems of justice,” he wrote.

In her dissent, Judge Sylvia Sieve Hendon indicated that Kindell’s actions were not of such “willfulness or bad faith” to warrant the extreme sanction but demonstrated a “continued, albeit clumsy, attempt to defend the case.” She noted while Kindell remained in Florida, his local counsel appeared at multiple hearings before the trial court, and that Kindell mistakenly expected some direction from the court on how to respond to the discovery requests when he did not have any information in his possession and that his brother owned the property.

“The trial court had far less drastic remedies available to it, and should have imposed one before resorting to the harshest sanction possible,” she wrote.

Lyons v. Kindell, 2015-Ohio-1709
http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2015/2015-Ohio-1709.pdf
Civil Appeal From: Hamilton County Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 6, 2015

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