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Stanton E. Judd v. Cheryl L. Meszaros

September 29, 2011

STANTON E. JUDD, PLAINTIFF-APPELLEE,
v.
CHERYL L. MESZAROS,
DEFENDANT-APPELLEE, (TRYTAN INVESTMENT PROPERTIES, LLC AND TERRENCE W. LYDEN, DEFENDANTS-APPELLANTS).



(C.P.C. No. 95DV-979) APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.

The opinion of the court was delivered by: Bryant, P.J.

Cite as Judd v. Meszaros,

(REGULAR CALENDAR)

DECISION

{¶1} Appellants, Terrence W. Lyden and Trytan Investment Properties, LLC (collectively "Lyden"), appeal from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, denying Lyden's motion for sanctions against Robert D. Cohen, Vincent A. Dugan, Jr., and Stanton E. Judd. Lyden assigns a single error:

The Trial Court Erred in Denying Trytan Investment Properties LLC and Terrence W. Lyden's Motion for Sanctions Pursuant to Ohio Revised Code Section 2323.51 and Ohio Civil Procedure Rule 11 against Attorney's [sic] Vincent Dugan and Robert Cohen.

Because the trial court did not err in denying Lyden's motion for sanctions, we affirm.

I. Facts & Procedural History

{¶2} The action underlying Lyden's motion for sanctions arose out of a domestic dispute in Morrow County. Prior to 2005, Stanton E. Judd and Cheryl L. Meszaros, an unmarried couple with one child together, lived at a residence in Fredericktown, Ohio. Meszaros was the sole titled owner of the Fredericktown property and the sole obligor on the mortgage on the property. Even so, all money used to purchase the property and to construct the residence located on it came from Judd and his immediate family. Judd admitted that he arranged for the property to be titled in Meszaros' name in an attempt to shield his assets from his creditors.

{¶3} Meszaros left the Fredericktown property in January 2005, took the couple's child with her, and moved to Hilliard, Ohio. On October 5, 2005, Judd filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, a petition for a domestic violence civil protection order ("CPO") against Meszaros. Judd alleged Meszaros shut the water off to the Fredericktown residence and then came to the residence where she kicked in a dining room window, verbally threatened Judd and the others, and placed them all in fear of physical danger. The court granted Judd an ex parte domestic violence CPO, effective until October 19, 2005.

{¶4} On October 27, 2005, the parties entered into a consent agreement and CPO, which the court approved. The CPO, effective until October 27, 2006, ordered Meszaros immediately to vacate the Fredericktown residence and granted Judd exclusive possession of the residence. It further prohibited Meszaros from interfering with Judd's "right to occupy the residence including, but not limited to canceling utilities or insurance, interrupting phone service, [or] mail delivery." (R. 16-17.) Under the CPO, Meszaros could not enter the residence, remove, damage or dispose of any of Judd's property, or cause or encourage any person to do any act the CPO prohibited. Meszaros was named the legal custodian of the child, but the court granted Judd visitation. Throughout the time period relevant to the CPO, Attorney Vincent Dugan represented Judd; another local attorney represented Meszaros.

{¶5} Almost immediately after the trial court approved the CPO, Meszaros' attorney and Dugan began negotiating, on behalf of their respective clients, to have Meszaros convey the property to Judd and to refinance the mortgage in his name. Meszaros, however, determined she had no option but to sell the property. Meszaros' attorney commissioned a title company to conduct a title search on the property, and the search did not reveal any unknown encumbrances. The title company referred Meszaros' attorney to Lyden as a potential buyer; Lyden knew the attorney from playing on the same softball team. Prior to purchasing the property, Lyden stated Meszaros' attorney told him about the CPO, informed him Meszaros no longer lived on the property, and advised "the ex-boyfriend was living in the property" and had "some type of a possessionary [sic] interest." (Tr. 77.)

{¶6} Meszaros and Lyden agreed on a price of $250,000, and the sale closed on January 19, 2006. Lyden stated he received a copy of the CPO either at the closing or a couple of days after the closing. On January 26, 2006, Lyden went to the Fredericktown residence and served Judd with a 30-day notice to leave premises. The notice informed Judd his month-to-month tenancy had been terminated, he unlawfully possessed the premises, and he had 30 days to vacate the premises in order to avoid eviction proceedings. Lyden entered the residence, took pictures, and attempted to change the locks, Judd forestalling the latter when he provided Lyden with a key to the residence. While Lyden was at the house, Judd called Dugan and handed the phone to Lyden. Lyden admitted to Dugan that he was aware of the CPO. (Tr. 80.)

{¶7} On February 8, 2006, Dugan filed three motions in the trial court: (1) a motion to join Lyden, Meszaros' attorney, and Fifth Third Bank as respondents to the domestic violence action giving rise to the CPO; (2) an ex parte emergency motion seeking orders to restrain Lyden, Meszaros, and her attorney not only from disposing of the funds resulting from the sale of the property but from taking any action to remove Judd from his home; and (3) a motion to hold Lyden, Meszaros, and her attorney in contempt of court for violating the terms of the CPO. The trial court granted the motions that same day, restraining the named persons from interfering with Judd's exclusive occupancy of the property and from transferring or selling the property, except to transfer title to Judd.

{¶8} Lyden, through counsel, filed motions to dissolve, dismiss, and set aside the February 8, 2006 orders. On March 17, 2006, Attorney Robert Cohen entered his appearance as co-counsel for Judd; on May 26, 2006, the court granted Dugan permission to withdraw as counsel of record for Judd, leaving Cohen as Judd's sole attorney. After conducting a hearing on the motions to dismiss, dissolve, and set aside, the court on November 1, 2006 dismissed them as moot, noting the CPO expired on October 27, 2006.

{¶9} Pursuant to Civ.R. 11 and R.C. 2323.51, Lyden then filed a motion for sanctions against Dugan, Cohen, and Judd. Lyden contended Dugan filed the February 8, 2006 motions to harass and maliciously injure Lyden, as Judd had no right to remain in the property rent free and "[n]othing in the CPO purport[ed] to determine such occupancy right as between [Judd and Meszaros] and any third party." (R. 161.) The record reflects the motion was dismissed as moot.

{¶10} On April 10, 2007, Lyden filed a motion with the Supreme Court of Ohio seeking to have the trial judge disqualified from presiding over the sanctions hearing. The Chief Justice of the Supreme Court denied the motion, as the trial court had denied the motion for sanctions, and the underlying case was closed. The trial judge subsequently filed an entry of recusal in the case, and for unexplained reason the case was re-assigned to a different trial judge and set for a hearing on Lyden's motion for sanctions. After all of the judges of the Franklin County Court of Common Pleas, Division of Domestic Relations filed a joint entry of recusal on April 22, 2009, the matter was assigned to a visiting judge, who, in turn, recused himself due to an ex parte communication. Ultimately, a second visiting judge conducted a hearing on May 26, 2010. At the hearing, Lyden testified on behalf of his motion for sanctions; Dugan and Cohen did not present any evidence.

{¶11} On November 1, 2010, the visiting judge filed a judgment entry dismissing Lyden's motion for sanctions, but correcting a typographical error in a nunc pro tunc judgment entry of November 29, 2010. The visiting judge determined the February 8, 2006 motions were not without any potential merit and were not meant solely to harass, delay, or maliciously injure Lyden. As the visiting judge concluded, "Dugan, Cohen, and the Court all had a good faith belief that Lyden, who admitted that he was aware of the Consent Order prior to purchase, could be held in contempt of the prior orders of this Court and restrained for dispossessing Judd of his occupancy in the real estate." (Decision, 26.) Even if the parties "were mistaken in their belief that the Court could enforce its order against Lyden, that mistaken belief is not sufficient to impose an award of sanctions against Cohen and Dugan." (Decision, 27.) Lyden timely filed a notice of appeal.

II. Motion to Strike

{¶12} Lyden also filed a motion to strike Dugan and Cohen's appellate brief, contending they improperly certified service of their brief. Dugan and Cohen filed their appellate brief on April 29, 2011. The certificate of service states a true and accurate copy of the brief was served on Lyden that same day, but Lyden asserts in his motion that Dugan and Cohen instead mailed Lyden a copy of their brief on May 3, 2011.

{¶13} App.R. 13(B) provides that "[c]opies of all documents filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for the party on all other parties to the appeal."

Dugan and Cohen explained in their memorandum opposing Lyden's motion that they mistakenly believed they needed a time-stamp from the court, demonstrating their brief was timely filed, before serving the brief on Lyden. Their independent contractor, hired to file the brief, did not return the filed, time-stamped brief to them until May 3, 2011, the day they served the brief on Lyden. Lyden does not describe how the four-day discrepancy prejudiced his ability to present his appeal, and we discern none. Huffer v. Huffer, 10th Dist. No. 09AP-574, 2010-Ohio-1223, ΒΆ10 (denying motion to strike appellate brief, based on appellee's noncompliance with App.R. 16, where appellant could ...


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