By SHELLEY GRIESHOP
sgrieshop@dailystandard.com
A decision on the fate of a wrongful death case against Kimberly
Anderson could come in less than a month due to a tardy reply
to the lawsuit by her attorney.
A hearing on a plea for time extension filed by Anderson’s
attorney, Susan Heywood of Toledo, is set for Nov. 5. However,
that date may be changed due to attorney scheduling.
At the hearing Auglaize County Common Pleas Court Judge Frederick
Pepple could rule on the case due to default since Heywood’s
response did not arrive in the 28-day limit set by Pepple and
Ohio Civil Rule. He also has the option of allowing the case
to go forward on its own merits.
The lawsuit, filed in late August by members of Brent Anderson’s
family, seeks justice for the shooting death of the 37-year-old
Celina attorney and an amount in excess of $50,000 on behalf
of his two young sons and daughter.
The motion for time extension — the second such plea by
Heywood in the case — remained pending Friday afternoon
in Auglaize County Common Pleas Court. Pepple last week denied
Heywood’s first motion for time extension.
Despite the fact Heywood missed the court-ordered deadline by
four days, she filed her reply Wednesday. In the response, 39-year-old
Kimberly Anderson denies firing a gun at her estranged husband
with the intention of ending his life Sept. 2, 2001. She states
she acted in self-defense when she shot Brent Anderson eight
times in the upstairs bedroom of their Wapakoneta home. The
couple were legally separated and a divorce was pending.
Heywood claims the case venue is improper. The high-profile
criminal case against Kimberly Anderson — of which she
was acquitted in a trial in October 2002 — was held in
Defiance County in a last-minute change of venue.
Heywood also alleges in her reply that the lawsuit is “barred
by the applicable statute of limitations,” but gives no
other argument.
She seeks dismissal of the case with prejudice, meaning the
lawsuit could not be refiled in the future.
The attorney representing the Anderson family, Dale Perdue of
Columbus, on Friday filed a memorandum objecting to Heywood’s
motions for time extension and asked the court to deny the second
motion. Perdue called Heywood’s tardy response a “final
hour” filing.
“The neglect that resulted in the late filing was ordinary
and easily preventable ... not excusable.”
Perdue cites Ohio law that allows extension of time in cases
with “special” or “unusual circumstances.”
“There is nothing special or unusual about miscalculating
an answer date,” Perdue states.
Although Heywood filed her motion for extension just four days
late, Perdue claims it’s not unfair to penalize her for
doing so. He uses the example of a wide receiver who lets the
game winning pass slip through his fingers. “It’s
irrelevant to the referees ... that he almost caught the ball,”
Perdue wrote.
Order and predictability in civil litigation must be followed,
Perdue added. “Miscalculating an answer date and then
waiting until the last minute to file a responsive pleading
... is simple neglect and not excusable.”
In his denial last week, Pepple said Heywood’s excuse
for the late filing (she stated she put the wrong date on her
calendar) was not excusable neglect, which could have qualified
her for a time extension.
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