Amanda Adamson, Administrator of the Estate of Joan Adamson v. Carrie Buckenmeyer and Norma Holguin
No. L-20-1014
Court of Appeals of Ohio, Sixth Appellate District, Lucas County
August 28, 2020
2020-Ohio-4241
OSOWIK, J.; PIETRYKOWSKI and SINGER, JJ., concur.
Trial Court No. CI0201802665
DECISION AND JUDGMENT
Decided: August 28, 2020
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Robert W. Bryce and Paul Cordell, for appellee Amanda Adamson.
Vesper C. Williams II, for appellant.
D. Casey Talbott and Mark W. Sandretto, for appellee Norma Holguin.
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OSOWIK, J.
{¶ 1} This is an accelerated appeal from four judgments by the Lucas County Common Pleas Court. For the reasons set forth below, this court affirms the judgments of the trial court.
- The trial court abused its discretion [in the April 16, 2019 judgment entry] by determining that [Defendant‘s] Third-Party Complaint on its face is barred by
R.C. 2305.10 . - The trial court abused its discretion [in the October 10, 2019 judgment entry] by finding that the Defendant‘s course of conduct manifests willful inaction and bad faith and accordingly granted Plaintiff‘s motion for sanctions rending (sic.) a default judgment as to the issue of liability [and the December 19, 2019 damage award].
I. Background
{¶ 3} On June 6, 2018, plaintiff-appellee, Amanda Adamson, Administrator of the Estate of Joan Adamson (hereafter, “Adamson“), filed a complaint against Buckenmeyer claiming reckless, wanton and negligent operation of a motor vehicle. Adamson alleged that on August 4, 2016, on a public road in Fulton County, Ohio, Buckenmeyer operated a motor vehicle while impaired by recreational drugs and swerved head-on into the vehicle in which Adamson and Adamson‘s mother were passengers. As a result of the head-on collision, Adamson‘s mother died and Adamson was injured.
{¶ 4} On June 21, 2018, Buckenmeyer filed a pro se answer that expressed remorse and denied owing Adamson any damages above what the “Fulton County * * * court ordered me to pay [as] the exact (and fair) expenses to Ms. Adamson.”
{¶ 5} On November 2, Buckenmeyer‘s new counsel filed an appearance with the trial court and moved for leave “to file a responsive pleading within 28 days.” The trial court granted the motion, and Buckenmeyer filed an “Answer and Third-Party Complaint” on December 6. She generally denied Adamson‘s allegations, raised affirmative defenses, and alleged a third-party complaint against the third-party defendant-appellee, Norma Holguin (hereafter, “Holguin“). Buckenmeyer alleged that Holguin operated her vehicle in a reckless, wanton and negligent manner “while severely impaired by a voluntary mix of medications” and caused the August 4, 2016 accident in which Buckenmeyer was injured and suffered damages. Buckenmeyer‘s third-party complaint failed to allege contribution or indemnification from Holguin for Adamson‘s claims against Buckenmeyer.
{¶ 6} On March 6, 2019, Holguin filed a motion to dismiss Buckenmeyer‘s third-party complaint pursuant to
{¶ 8} On January 10, 2019, Buckenmeyer requested unspecified additional time from Adamson to respond to Adamson‘s discovery demands, and Adamson agreed. Adamson disclosed four expert witnesses on January 17. On February 8, Buckenmeyer served answers to Adamson‘s interrogatories, but not the requests for production. Then on February 11 Buckenmeyer disclosed two expert witnesses.
{¶ 9} By March 13, Adamson contacted Buckenmeyer about her lack of responses. Buckenmeyer‘s failure to respond continued, and Adamson filed her first motion to compel discovery on April 8. Then on April 15, Buckenmeyer filed a notice of service of her discovery responses. By judgment entry journalized on April 24, the trial court denied Adamson‘s motion to compel as moot due to Buckenmeyer‘s notice. However, the trial court stated, “If the discovery is incomplete and the parties are unable to resolve those issues, the Plaintiff is, of course, able to refile her Motion.”
{¶ 10} Adamson filed her second motion to compel discovery on May 1, stating that as of that date, Buckenmeyer produced no documents requested, including those
{¶ 11} Adamson then filed her third motion to compel discovery on June 13, stating that what Buckenmeyer produced on June 3 was “in a less than meaningful fashion.” Rather than comply with
{¶ 12} Buckenmeyer neither opposed the third motion to compel nor sought any protective orders, and by judgment entry dated on July 2, the trial court granted
Defendant shall respond to each document request individually, specifically identifying which document is responsive to which request. If Defendant does not have any documents responsive to a particular request, she shall, in writing, indicate as such. If defense counsel has an objection to a particular request, the objection shall be set forth in writing and signed by defense counsel. If Ms. Buckenmeyer fails to comply within the timeframe set forth above, sanctions may result, including but not limited to the Court awarding Plaintiff‘s attorney fees associated with filing its Motion to Compel.
{¶ 13} Adamson filed her second motion for sanctions on August 23, stating that Buckenmeyer “has done absolutely nothing,” despite the trial court‘s clear instructions. Adamson requested from the trial court “a ruling in favor of Plaintiff be granted on the issue of liability, only.” Adamson argued the requested sanction was not too extreme because Buckenmeyer‘s guilty plea to aggravated vehicular homicide is admissible in this civil action and is an admission by Buckenmeyer of responsibility for Adamson‘s claims, including the death of Adamson‘s mother. Adamson further argued, “As such, a sanction imposing liability against Defendant Buckenmeyer is reasonable. The Court has wide latitude in determining sanction[s.] Plaintiff requests the Court exercise its authority.”
{¶ 15} Instead, on September 17 Buckenmeyer filed a “Notice of Compliance” to Adamson‘s production requests, and on September 18 Buckenmeyer filed answers, responses, and objections to Adamson‘s production requests claiming her expert witness reports and related materials were protected from discovery as attorney work product. This objection was repeated eight times. In one response Buckenmeyer answered, “I have not read or reviewed any materials relied upon by the experts * * *.” In another response, Buckenmeyer answered, “I understand that my attorney has provided to Plaintiff‘s attorney copies of materials used by my experts to support their opinions. However, we do not understand them * * *.”
{¶ 16} Then on September 18, Buckenmeyer finally opposed Adamson‘s motion for sanctions. She argued possessing proof she did not cause the fatal vehicle accident, even though “[a]t the scene of the accident there was a rush to judgment by the authorities that the accident was defendant‘s fault.” Buckenmeyer argued, “Defendant‘s counsel provided evidence to Plaintiff‘s counsel who is now trying to win the case on any
{¶ 17} On September 25, Adamson renewed her motion for sanctions, citing
{¶ 18} The trial court held the damages hearing on November 6, where Adamson presented witness testimony and other evidence supporting her claims for financial losses and “intangible damages, including loss of society and mental anguish” from the death of Adamson‘s mother. By judgment entry journalized on December 20, the trial court awarded Adamson court costs plus $17,090 for compensatory damages for funeral expenses and $500,000 for past and future intangible damages, including loss of society and mental anguish suffered by Adamson and her mother‘s seven brothers and sisters.
{¶ 19} We review de novo a trial court‘s decision granting a motion to dismiss pursuant to
{¶ 20}
A. Statute of Limitations
{¶ 21} Failure to commence an action within the applicable statute of limitations warrants a dismissal on the merits of the case and constitutes a dismissal with prejudice. LaBarbera v. Batsch, 10 Ohio St.2d 106, 116, 227 N.E.2d 55 (1967). A court has subject-matter jurisdiction to decide whether the statute of limitations should bar a cause of action. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 76, 701 N.E.2d 1002 (1998). The existence and duration of a statute of limitations for a cause of action is determined
{¶ 22}
{¶ 23} We reviewed the record de novo and find that none of Buckenmeyer‘s arguments in support of her first assignment of error overcome her failure to commence her third-party claim against Holguin prior to the expiration of the two-year statute of limitations. It is undisputed the motor vehicle accident at issue occurred on August 4, 2016, and Buckenmeyer admits that date is when the cause of action accrued. It is also undisputed Buckenmeyer‘s third-party complaint against Holguin was filed on December 6, 2018, which is more than two years from when the cause of action accrued.
B. Third-party Complaint
{¶ 24} Although we find Buckenmeyer‘s third-party complaint against Holguin was barred by the applicable statute of limitations, Buckenmeyer nevertheless argues timeliness due to unique characteristics of a third-party complaint.
At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff‘s claim against him. * * * The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff‘s claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13.
{¶ 26}
{¶ 28} Buckenmeyer argues her third-party complaint related back to Adamson‘s original complaint timely filed on June 6, 2018, where all of Adamson‘s injuries were caused by Holguin. We disagree. Pursuant to
{¶ 29} Buckenmeyer argues that because Holguin also caused all of Buckenmeyer‘s injuries, the third-party complaint relates back to her pro se answer timely filed on June 21, 2018. We disagree. Pursuant to
{¶ 30} Buckenmeyer further argues the statute of limitations was tolled by her second answer filed on December 6, 2018, in which she asserted as an affirmative
{¶ 31} Buckenmeyer further argues the statute of limitations was also tolled by her second answer in which she asserted as an affirmative defense that Adamson failed to join all necessary and indispensable parties. She argues the basis of her third-party complaint is that Holguin is “liable to [Buckenmeyer] for all or part of [Adamson‘s] relief against the original defendant, as is the case here.” We disagree. Pursuant to
{¶ 32} For
{¶ 33} Buckenmeyer‘s first assignment of error is not well-taken.
III. Motion for Sanctions
{¶ 34} In support of her second assignment of error, Buckenmeyer argues she complied with all discovery orders. Buckenmeyer explains that expert testimony was required to understand the discovery she provided to Adamson‘s2 attorneys. She “offered [her attorney] to come to their offices to explain the discovery and/or set up a deposition of the two experts to explain that which they could not understand,” even though “[t]his information was [her attorney‘s] work product.”
{¶ 35} Buckenmeyer further argues that on the eve of the 2017 criminal trial, the experts produced exculpatory evidence that she “did not cause, is not at fault and [is] not liable for” the deadly accident; rather, Holguin was liable. Buckenmeyer argues her
{¶ 36} The trial court‘s journalized October 11, 2019 order granting Adamson‘s motion for sanctions identified that Buckenmeyer failed to comply with its July 2 order. The trial court stated, “Rather than respond to Plaintiff‘s discovery requests as outlined in this Court‘s previous order, Defendant now claims that ‘any reports, memoranda or other written materials received by the Defendant, or counsel for the Defendant, from all proposed expert witnesses are attorney work product.‘” Citing to
A. Standard of Review
{¶ 37} We review for an abuse of discretion a trial court‘s decision to grant a motion for sanctions and issue a default judgment for failing to respond to discovery requests so long as the record shows willfulness or bad faith on the part of the respondent. Toney v. Berkemer, 6 Ohio St.3d 455, 453 N.E.2d 700 (1983), syllabus.
B. Effect of Guilty Plea
{¶ 38} By judgment entry journalized on August 9, 2017, the Fulton County Common Pleas Court accepted Buckenmeyer‘s guilty plea to the August 4, 2016 incident. The court then found Buckenmeyer guilty of aggravated vehicular homicide, a violation of
{¶ 39} Despite Buckenmeyer providing extensive reasons to this court for entering a guilty plea to felony charges arising from the August 4, 2016 incident, the record shows the guilty plea had no effect on the trial court‘s order for sanctions. The order makes no reference to the guilty plea. Even if the trial court‘s order had referenced Buckenmeyer‘s felony guilty plea, that plea would be admissible evidence in this civil action. Clinger v. Duncan, 166 Ohio St. 216, 222, 141 N.E.2d 156 (1957), citing Freas v. Sullivan, 130 Ohio St. 486, 487, 200 N.E. 639 (1936), paragraph nine of the syllabus;
{¶ 40} Buckenmeyer argues that she complied with all trial court discovery orders by taking the position that all discovery related to her experts’ testimonies was protected from disclosure by the attorney work-product doctrine. The trial court‘s judgment entry granting Adamson‘s motion for sanctions found that Buckenmeyer violated
1. Standard of Review
{¶ 41} To differentiate from discovery orders that are generally reviewed for an abuse of discretion, if the information sought to be obtained during discovery must be interpreted under the law for attorney work-product protection, then an appellate court reviews de novo that question of law. See Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
2. Scope of Protection and Waiver
{¶ 42} In Masters, this court found the language of
{¶ 43} “In Ohio, protection for an attorney‘s work product is codified in
{¶ 44}
Subject to the provisions of [Civ.R. 26(B)(5)], a party may obtain discovery of documents, electronically stored information and tangible
things prepared in anticipation of litigation or for trial by or for another party or by or for that other party‘s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing of good cause therefor. A statement concerning the action or its subject matter previously given by the party seeking the statement may be obtained without showing good cause. A statement of a party is (a) a written statement signed or otherwise adopted or approved by the party, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement which was made by the party and contemporaneously recorded.
{¶ 45} The attorney work-product protection is not absolute. “Attorney work product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if it is directly at issue in the case, the need for the information is compelling, and the evidence cannot be obtained elsewhere.” Squire at paragraph two of the syllabus. In addition, once a court determines the attorney work-product sought to be discovered is directly at issue, the work-product protection is essentially waived, and the work product is discoverable regardless of other considerations. Jackson v. Greger, 160 Ohio App.3d 258, 2005-Ohio-1588, 826 N.E.2d 900, ¶ 36 (2d Dist.).
{¶ 46} Upon de novo review, we find as a matter of law that the information regarding Buckenmeyer‘s experts after they were formally identified during discovery
{¶ 47} We further find the trial court did not abuse its discretion when it determined the purported attorney work-product was directly at issue and ordered Buckenmeyer to comply with its discovery orders.
D. Motions to Compel and Default Judgment Sanction
{¶ 48}
{¶ 49} The trial court order rendered the default judgment pursuant to
{¶ 50} It appears the trial court order contained a clerical error and clearly intended to reference
{¶ 51} The record shows Adamson filed motions to compel three times before filing three motions for sanctions. Having previously determined the discovery sought is not protected attorney work-product, Buckenmeyer‘s continued failure to comply with the trial court‘s discovery orders creates a presumption of a willful or bad faith refusal to comply. Parsons v. City of Norwalk, 6th Dist. Huron No. H-90-41, 1991 WL 253804, *3 (Sept. 13, 1991).
{¶ 52} We find the record shows willfulness or bad faith by Buckenmeyer. We find the trial court did not abuse its discretion when it granted each of Adamson‘s motions to compel and, ultimately, granted Adamson‘s motion for sanctions and rendered a default judgment for failing to respond to discovery requests. We further find the trial court did not abuse its discretion when it subsequently awarded Adamson damages.
{¶ 53} Appellant‘s second assignment of error is not well-taken.
{¶ 54} On consideration whereof, the judgments of the Lucas County Court of Common Pleas are affirmed. We affirm the trial court‘s judgments granting Holguin‘s motion to dismiss, granting Adamson‘s motion for sanctions, granting default judgment in favor of Adamson, and awarding damages to Adamson. Buckenmeyer is ordered to pay the costs of this appeal pursuant to
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
CONCUR.
JUDGE
22.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.