Lester v. Chivington

[Cite as Lester v. Chivington, 2015-Ohio-5446.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
ADAM LESTER,
PLAINTIFF-APPELLEE,
CASE NO. 9-15-21
v.
LU CHIVINGTON, ET AL.,
DEFENDANTS-APPELLANTS,
-and- OPINION
CITIBANK, N.A.,
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 14-CV-494
Judgment Affirmed
Date of Decision: December 28, 2015
APPEARANCES:
Kevin P. Collins for Appellants
Case No. 9-15-21
SHAW, J.
{¶1} Defendants-appellants, Lu Chivington and Coldwell Banker, appeal
the April 22, 2015 judgment of the Marion County Court of Common Pleas
granting the Motion for Default Judgment filed by plaintiff-appellee, Adam Lester,
and awarding Lester damages arising from a real estate sale. Chivington assigns
as error the trial court’s decision to deny her Motion for Leave to File Answer
Instanter and to grant judgment and award Lester $12,500.00 plus statutory
interest.1
Facts and Procedural History
{¶2} On October 6, 2014, Lester filed a complaint naming Chivington,
Coldwell Banker, and Citibank, N.A. as defendants. The complaint alleged the
following: Citibank was the seller of real property located at 465 Hartford Street
in Marion, Ohio. Citibank engaged Chivington, a licensed real estate broker
associated with Coldwell Banker, to sell the premises. The listing on the Multiple
Listing Service (“MLS”) expressly stated that the property had a “Two Car,
Attached” garage and further stated “Wait until you see the garage. Its [sic]
huge!!” The listing also included a photograph of the garage and listed the sale
price as $15,000.00.
1
Although the notice of appeal includes both Chivington and Coldwell Banker as appealing parties, the
brief and assignments of error only pertain to Chivington. Therefore, we will only address the issues on
appeal as they relate to Chivington.
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{¶3} In July of 2013, Lester entered into a contract to purchase the property
for the full purchase price. The closing took place on August 2, 2013. After the
transaction was completed, Lester learned that the garage was not included in the
purchase. Lester claimed he was induced into purchasing the property based upon
the defendants’ representations about the garage. He further claimed that
throughout the negotiation and closing of the transaction, the defendants never
disclosed to him that the garage was not part of the sale.
{¶4} Lester maintained that the defendants’ actions were the proximate
cause of his damages and asserted three claims against the defendants collectively:
(1) Fraudulent Misrepresentation; (2) Negligent Misrepresentation; and (3) Breach
of Contract. The record reflects that service on defendants Chivington and
Coldwell Banker was perfected on October 23, 2014. Service on defendant
Citibank was perfected on October 28, 2014.
{¶5} On January 26, 2015, Lester filed a Motion for Default Judgment. In
support of his motion, Lester asserted that none of the defendants had filed an
answer to his complaint with the trial court. Lester attached to his motion a letter
dated November 5, 2014 that Chivington personally wrote to Lester’s attorney
regarding the complaint. However, Lester argued that this correspondence could
not be construed as a timely-filed answer with the court and therefore did not
preclude him from being entitled to default judgment.
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{¶6} On March 10, 2015, trial court issued notice of a hearing on Lester’s
Motion for Default Judgment scheduled for April 13, 2015.
{¶7} On April 10, 2015, defendants Chivington and Coldwell Banker filed
a Motion for Leave to File Answers Instanter. In a supporting memorandum,
defendants Chivington and Coldwell Banker asserted they had meritorious
defenses to the complaint and requested the motion be granted on the basis of
excusable neglect due to Chivington’s unfamiliarity with the judicial process and
her belief that her letter to Lester’s attorney was an adequate response to the
complaint.
{¶8} The trial court conducted the hearing as scheduled. The trial court
initially addressed the parties’ arguments pertaining to Chivington’s request for
leave to file an answer and determined that Chivington failed to establish
excusable neglect for not properly responding to Lester’s complaint. As a result,
the trial court overruled the Motion for Leave to File an Answer Instanter and
granted Lester’s Motion for Default Judgment. Lester then presented the
testimony of four witnesses and several exhibits in support his claim for damages.
Evidence on Damages
{¶9} Lester testified he has been engaged in the business of acquiring and
renting real estate for eight years. He submitted a portion of the listing advertising
the sale of the 465 Hartford Street property on the MLS, which included pictures
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of the garage and indicated it was part of the sale. Lester relied on the
representations made in the listing, as well as on the representations of the relators
involved, that the garage was part of the sale. Lester testified that prior to the
closing the seller’s representatives never mentioned to him that the garage was not
on the same lot as the residence. According to Lester, the purchase price of
$15,000.00 for the residence was well over the value of the home in its condition
at the time of the sale. He further stated that the garage was the primary reason he
purchased the real estate.
{¶10} Lester intended to rent the house and the garage separately. Lester
had an agreement with Rebecca Chapman to rent the house for $600.00 per month
from December 1, 2013 through the time of the hearing in April 2015. Ms.
Chapman took the stand and confirmed her intention of renting the residence for
that amount beginning in December 2013. Lester explained that he initially spent
a couple thousand dollars updating the home. However, he stopped repairs when
it became apparent that the issue with the garage was not going to be quickly
resolved. He explained that rescission of the purchase contract was one of the
remedies he was willing to pursue and he did not want to continue to spend money
on the property or to commit to having renters in the home.
{¶11} Lester also testified that he had an agreement with Harold Kemp, Jr.
to rent the garage purported to be part of property for $400.00 a month. Mr. Kemp
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Case No. 9-15-21
took the stand at the hearing and explained that he planned to use the space for his
taxi service; specifically for the storage and maintenance of his vehicles. He
intended to rent the garage from October 2013 through January of 2015 at the
amount stated above. In support of his claims for damages, Lester submitted a
document at the hearing which included his calculations of lost rental income for
both the residence and the garage.
{¶12} In November 2013, shortly after he purchased the property and
discovered the garage was not included in the sale, Lester contacted both relators
and the title company involved in the transaction to resolve the situation. He
began discussions with Chivington who indicated that she would work with the
estate who owned the lots where the garage was situated. According to Lester,
Chivington continually promised to “resolve” the issue which entailed purchasing
the lots and transferring them to Lester. However, a number of months passed
without a resolution and Lester initiated this action. Lester sought $5,500.00, the
purchase price of the garage; $16,625.00 in lost rental income; $3,262.50 in legal
fees; and $100,000.00 in punitive damages based on his allegations that the
defendants acted in bad faith. The trial court took the matter under advisement.
{¶13} On April 22, 2015, the trial court issued a judgment entry finding
that Lester was entitled to recover damages in the amount of $12,500.00 plus
statutory interest from all three defendants. In a separate opinion, the trial court
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found that Lester was entitled to recover $5,500.00 for the value of the garage that
was represented to be included in the real estate sale. As for the lost rental
income, the trial court found that Lester was entitled to $5,200.00, which
represented the amount of rent he would have received from Mr. Kemp for the
rental of the garage for thirteen months at a rate of $400.00 a month.
{¶14} However, the trial court determined that Lester was not entitled to
the full amount requested for lost rental income on the home. The trial court
concluded that Lester did not satisfy his duty to mitigate his damages because the
evidence suggested that he could have moved renters into the residence despite the
uncertainty with the sale. Thus, the trial court only awarded Lester lost rental
income for three months at a rate of $600.00, or $1,800.00. Finally, the trial court
determined the evidence did not support Lester’s claims that the defendants acted
in bad faith prior to the closing of the sale and concluded Lester was not entitled to
either punitive damages or reasonable attorney fees.
{¶15} On appeal, Chivington asserts the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT, LU CHIVINGTON, BY
DENYING HER MOTION FOR LEAVE TO FILE HER
ANSWER INSTANTER.
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ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT, LU CHIVINGTON, BY
GRANTING JUDGMENT TO PLAINTIFF-APPELLEE
AGAINST HER IN THE AMOUNT OF $12,500.00
First Assignment of Error
{¶16} In her first assignment of error, Chivington claims that the trial court
erred in overruling her Motion for Leave to File an Answer Instanter. Chivington
asserts that the delay in her filing an answer several months past the allotted
timeframe is attributable to excusable neglect.
{¶17} Civil Rule 12(A)(1) requires that the defendant serve her answer to a
complaint within 28 days of service of the summons and complaint. Nevertheless,
Civ.R. 6(B)(2) allows a court “in its discretion” to extend this period to file an
answer where the defendant files a motion outside of the 28-day period and
demonstrates that the failure to timely plead “was the result of excusable
neglect[.]” “A trial court’s Civ.R. 6(B)(2) determination is addressed to the sound
discretion of the trial court and will not be disturbed on appeal absent a showing of
an abuse of discretion.” State ex rel. Lindenschmidt v. Butler Cty. Bd. of
Commrs., 72 Ohio St.3d 464, 465 (1995), citing Miller v. Lint, 62 Ohio St.2d 209,
213–214 (1980). An abuse of discretion implies the court’s decision is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). When applying this standard, a reviewing court is precluded from simply
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substituting its own judgment for that of the trial court. Pons v. Ohio St. Med. Bd.,
66 Ohio St.3d 619, 624 (1993).
{¶18} “In determining whether neglect is excusable or inexcusable, this
Court must take into consideration the surrounding facts and circumstances, and
must be mindful of the admonition that cases should be decided on their merits,
where possible, rather than procedural grounds.” Univ. of Akron v. Mangan, 9th
Dist. Summit No. 24167, 2008-Ohio-4844, ¶ 10, citing Marion Prod. Credit Assn.
v. Cochran, 40 Ohio St.3d 265, 271 (1988). When considering these
circumstances and the preference for settling cases on their merits, we are also
mindful that “the test for excusable neglect under Civ.R. 6(B)(2) is less stringent
than that applied under Civ.R. 60(B).” Lindenschmidt at 466.
{¶19} Although the term “excusable neglect” is an elusive concept that
courts often find difficult to define and to apply, the cases discussing excusable
neglect reveal some general principles. Kay v. Marc Glassman, Inc., 76 Ohio
St.3d 18, 20 (1996). Examples of instances where a court might find excusable
neglect include the following: the party had neither knowledge nor notice of the
pending legal action; counsel of record suffers from personal or family illness; and
counsel of record fails to appear for trial because he has not received notice of a
rescheduled trial date. Doddridge v. Fitzpatrick, 53 Ohio St.2d 9, 13 (1978); The
Bluffs of Wildwood Homeowners’ Assn., Inc. v. Dinkel, 96 Ohio App.3d 278, 281
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(1994); Columbia Gas of Ohio v. Riley, 38 Ohio App.3d 151 (1987), paragraph
two of the syllabus. A majority of the cases finding excusable neglect also have
found unusual or special circumstances that justified the neglect of the party or
attorney. Kay, supra.
{¶20} “Neglect is inexcusable, pursuant to Civ.R. 6(B), when a party’s
inaction can be classified as a ‘complete disregard for the judicial system.’ ”
Reimund v. Reimund, 3d Dist. Hancock No. 5-04-52, 2005-Ohio-2775, ¶ 16,
quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 153
(1976). Likewise, conduct falling “substantially below what is reasonable under
the circumstances” constitutes inexcusable neglect. GTE. at 152. Further, if the
party could have prevented the circumstances from occurring, neglect will not be
considered excusable. McKinley v. Rhee, 3d Dist. Allen No. 1-01-168, 2002-
Ohio-1768.
{¶21} Chivington argues that she has demonstrated excusable neglect
because she sent a letter to Lester’s attorney asserting meritorious defenses to the
claims three weeks after she received the complaint. She further contends that she
misunderstood the requirement of having to file an answer with the trial court
within the 28-day timeframe. The record reflects that the summons accompanying
the complaint stated the following:
You are hereby summoned and required to serve upon the
plaintiff’s attorney (or upon the plaintiff, if he has no attorney of
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record) a copy of an answer to the complaint within twenty-eight
days after service of this summons on you, exclusive of the day of
service. Your answer must be filed with the Court within three
days after the service of a copy of the answer on the plaintiff’s
attorney.
If you fail to appear and defend, judgment by default will be
rendered against you for the relief demanded in the complaint.
(Doc. No. 2A) (emphasis added).
{¶22} At the outset, we note that appellate courts have consistently held
that failure to respond to a complaint due to “layperson” status insufficient to rise
to the level of excusable neglect. See e.g., Martin v. Wayne County Nat. Bank
Trust, 9th Dist. No. 03CA0079, 2004-Ohio-4194, at ¶ 16 (stating “will not waive
the requirements imposed by the Civil Rules of Procedure simply because one of
the litigants is proceeding pro se”); Vanest v. Pillsbury Co., 124 Ohio App.3d 525,
537 (4th Dist.1997). Moreover, the record demonstrates Chivington failed to file
any responsive pleadings with the trial court prior to her attempt to file her answer
instanter, three days before the hearing on Lester’s Motion for Default Judgment.
Notably, Chivington’s attempt to file an answer with the trial court occurred
nearly six months after the service of the complaint and three months after she
received notice of Lester’s Motion for Default Judgment.
{¶23} In making its determination on this issue at the hearing, the trial court
reviewed relevant case law and stated the following on the record:
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The guideline for inexcusable neglect is when a party’s inaction
could be classified for a complete disregard for the judicial
system. * * *[A]lso if the party could have prevented the
circumstances from occurring neglect will not be considered
excusable. Reviewing that standard to what’s been provided in
support of the Motion in this matter the Court finds that this—
the conduct of Miss Chivington would fall within inexcusable
neglect. [The] Court’s reviewed the summons, fairly standard
language, makes it very clear that the Answer should have been
filed with this Court * * *.
So applying the standards for excusable neglect the Court finds
that the Defendants have failed to establish excusable neglect for
properly responding to the Complaint in this matter, and the
Motion to File Answers Instanter will be overruled.
(Trans. at 8-9). Based on the circumstances of this case and the fact that a Civ.R.
6(B) determination lies within the trial court’s sound discretion, we cannot say the
trial court erred in denying Chivington’s motion for leave to plead instanter. It
was within the trial court’s discretion to deny the motion, and we find such a
conclusion was not an abuse of discretion. Accordingly, the first assignment of
error is overruled.
Second Assignment of Error
{¶24} In her second assignment of error, Chivington argues that the trial
court erred in granting judgment against her in the amount of $12,500.00.
Specifically, Chivington asserts that Lester presented insufficient evidence to
prove that Chivington’s actions were the proximate cause of his damages.
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{¶25} In his complaint, Lester alleged that Chivington’s actions were the
proximate cause of his damages. When Chivington failed to file a responsive
pleading, those allegations were admitted as true. See Civ.R. 8(D);2 see also
Girard v. Leatherworks Partnership, 11th Dist. No.2004-T-0010, 2005-Ohio-
4779, at ¶ 38 (stating that “[w]hen a defendant fails to answer, default judgment is
appropriate because liability has been admitted or “confessed” by the omission of
statements in a pleading refuting the plaintiff’s claims”). Furthermore, based upon
Civ.R. 55, the trial court properly granted default judgment once Chivington failed
to plead or otherwise defend the action and Lester properly moved for default
judgment. “Once a default judgment has been entered, the only remaining triable
issue is the amount of damages.” Sokol v. Spigiel, 9th Dist. Lorain No.
05CA008839, 2006-Ohio-4408, ¶ 14.
{¶26} Accordingly, the issue of proximate cause was not before the trial
court during its “damages-only” hearing. Sokol at ¶ 15 (finding defendant’s
failure to respond to the complaint in a timely manner established such causation).
Moreover, the record demonstrates that Lester presented sufficient evidence to
support the trial court’s damage award. Chivington’s second assignment of error
is therefore overruled.
2
Civil Rule 8(D) states that: “Averments in a pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied
or avoided.”
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{¶27} For all these reasons, the assignments of error are overruled and the
judgment is affirmed.
Judgment Affirmed
PRESTON, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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