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The Daily



10-11-03: Tardy reply may speed Anderson suit


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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