2015 Ohio 5446
Ohio Ct. App.2015Background
- Plaintiff Adam Lester bought a Marion, Ohio property listed on MLS as including a “Two Car, Attached” garage and paid $15,000; after closing he discovered the garage was not included.
- Lester sued the listing broker Lu Chivington, Coldwell Banker, and seller Citibank for fraudulent misrepresentation, negligent misrepresentation, and breach of contract.
- Chivington (served Oct. 23, 2014) did not file a court answer; she sent a letter to plaintiff’s counsel but waited months before moving for leave to file an answer instanter.
- Plaintiff moved for default judgment; the trial court denied Chivington’s Civ.R. 6(B)(2) request for leave to file late, finding no excusable neglect, and granted default judgment as to liability.
- At a damages hearing Lester testified and presented evidence; the trial court awarded $12,500 in damages (value of garage $5,500; lost garage rent $5,200; lost home rent $1,800) and denied punitive damages and attorney fees.
- On appeal Chivington challenged (1) denial of leave to file answer instanter (excusable neglect) and (2) sufficiency of evidence tying her to proximate cause of damages. The court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion denying leave to file answer instanter under Civ.R. 6(B)(2) | Lester: Chivington failed to timely plead; default appropriate | Chivington: excusable neglect — she sent a letter to plaintiff’s counsel and misunderstood filing requirements | Court: No abuse of discretion; inaction amounted to inexcusable neglect given summons language and six-month delay; motion denied |
| Whether default judgment was improper because proximate cause was not proven | Lester: default admitted liability; only damages remained and were proven at hearing | Chivington: insufficient evidence that her actions proximately caused damages | Court: Liability deemed admitted by default; damages hearing produced sufficient evidence; award affirmed |
Key Cases Cited
- State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464 (Civ.R. 6(B)(2) determinations are reviewed for abuse of discretion)
- Miller v. Lint, 62 Ohio St.2d 209 (abuse-of-discretion standard for Civ.R. determinations)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (definition of abuse of discretion)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (failure to act may show complete disregard for judicial system)
- Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18 (discussion of excusable neglect and the need for unusual or special circumstances)