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COA: Suspended attorney’s failure to litigate attributable to client

May 30, 2017

A now-suspended attorney’s repeated failure to communicate with his client and litigate her case was a failure directly attributable to the client and, thus, made the opposing party entitled to summary judgment, the Indiana Court of Appeals ruled Tuesday.

After she was injured in a January 2009 slip-and-fall on the property of McKinley, Inc., doing business as Summer Wood Apartments Homes, Michelle Skyllas hired her second cousin, Samuel Vazanellis, to bring a negligence suit against McKinley. Specifically, Skyllas alleged McKinley failed to remove snow and ice, but McKinley filed a third-party complaint against Snow Pros, Inc., claiming it was responsible for the property’s snow and ice removal.

Vazanellis failed to litigate the case, and Skyllas concedes she was forced to approach him at family gatherings to obtain information about her case. McKinley twice moved to dismiss the case due to inactivity, but the Lake Superior Court denied those motions.

In May 2016, the court set discovery deadlines, and McKinley served a request for admission on Skyllas through Vazanellis, which included potentially dispositive admissions to which Skyllas had 30 days to respond. Meanwhile, Snow Pros also served interrogatories on Skyllas through Vazanellis.

Vazanellis continued to avoid communication with Skyllas, forcing her to meet with his wife at his office to prepare answers to Snow Pros’ interrogatories. When Vazanellis did finally speak with Skyllas, he told her “he had filed everything that needed to be filed” and assured her everything was “under control.”

When the trial court set a deadline for dispositive motions in June 2016, McKinley moved for summary judgment against Skyllas, attaching her admissions. She did not respond with 30 days, so McKinley filed a request for a summary ruling.

McKinley’s motion for summary judgment was granted just days after Vazanellis was indefinitely suspended from the practice of law in Indiana. Skyllas then hired new counsel, which moved to correct error pursuant to Trial Rule 59, and also moved to withdraw and amend admissions. The trial court granted both of Skyllas’ motions, finding Vazanellis was “extremely negligent” and had obliterated the attorney-client relationship.

On appeal in McKinley, Inc. a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skylas, 45A05-1612-CT-2853, McKinley argued Skyllas was not entitled to relief. The Indiana Court of Appeals agreed, with Judge John Sharpnack writing Tuesday the grant of summary judgment was not erroneous under Indiana Trial Rule 59 because “the court had no choice but to grant the motion.” Further, Skyllas’ motion to withdraw admissions was procedurally inappropriate because it was filed after judgment had been entered, Sharpnack said. 

The trial court granted relief from judgment “by determining that the failure to respond to the request for admissions … was the fault of Vazanellis and not attributable to Skyllas,” a type of relief available under Indiana Trial Rule 60(B)(1), the court said. Under a 60(B)(1) analysis, the appellate panel found while Vazanellis’ misconduct was “deplorable,” it was also attributable to Skyllas.

Thus, Skyllas did not establish she was entitled to relief, so the court reversed the grant of her motion to correct and remanded the case with instructions to enter judgment in favor of McKinley.

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