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Bates v. Merchants Holding LLC

Court of Appeals of Ohio, Tenth District

May 1, 2018

James W. Bates, Plaintiff-Appellee,
v.
Merchants Holding LLC et al., Defendants-Appellees, Jeffrey Starner, Defendant-Appellant.

          APPEAL from the Franklin County C.P.C. No. 15CV-6657 Court of Common Pleas

         On brief:

          Brunner Quinn, Rick Brunner, and Patrick Quinn, for appellee Merchants Holding LLC.

          Thomas C. Loepp, Law Offices, Co., LPA, and Thomas C. Loepp, for appellant.

         Argued:

          Rick Brunner.

          Thomas C. Loepp.

          DECISION

          DORRIAN, J.

         {¶ 1} Defendant-appellant, Jeffrey Starner, appeals the August 4, 2017 judgment of the Franklin County Court of Common Pleas dismissing his cross-claims against defendants-appellees, Merchants Holding, LLC ("Merchants Holding") and Merchants 5 Star, Inc. ("Merchants Inc."), and third-party claims against Merchants 5 Star, Ltd. ("Merchants Ltd."). For the following reasons, we reverse.

         I. Facts and Procedural History

         {¶ 2} On August 3, 2015, plaintiff-appellee, James W. Bates, filed a complaint against Merchants Holding, Merchants Inc., and appellant. Bates asserted five claims for relief: breach of contract, unjust enrichment, promissory estoppel, negligent misrepresentation, and common-law fraud. Bates sought $192, 346.81 in compensatory damages, punitive damages, attorney fees, pre- and post-judgment interest, and costs. On August 20, 2015, attorneys for Christopher Davis, appointed receiver for Merchants Inc., filed a notice of appointment of receiver for Merchants Inc. and a suggestion of stay.[1] On September 10, 2015, the trial court filed a final agreed judgment entry granting judgment in favor of Bates against Merchants Holding in the amount of $130, 000 in full satisfaction of the demand for relief in the complaint as to Merchants Holding only.

         {¶ 3} On September 22, 2015, appellant filed an answer to Bates' complaint and cross-claims against Merchants Holding and Merchants Inc., and third-party claims against Merchants Ltd.[2] On the same date, appellant filed a motion to dismiss Bates' complaint against him. On November 24, 2015, appellant filed a motion for default judgment against Merchants Holding. On November 25, 2015, Bates filed a notice of dismissal of his complaint against appellant without prejudice.

         {¶ 4} On April 11, 2016, the trial court filed a journal entry staying the case as to Merchants Inc. and Merchants Ltd., denying as moot appellant's motion to dismiss, and denying appellant's motion for default judgment against Merchants Holding.

         {¶ 5} On January 31, 2017, appellant's counsel filed a motion to withdraw, which the trial court granted on February 15, 2017. On July 12, 2017, the trial court filed a journal entry lifting the stay and ordering a scheduling conference for August 4, 2017. In its July 12, 2017 entry, the trial court ordered "[n]o later than Monday July 31, each party that believes it retains any claim, affirmative defense or issue requiring decision in this case shall file a 'Statement of Claim(s), Affirmative Defense(s), and/or Issues.' " (Emphasis sic.) (Entry at 2.) On July 31, 2017, Merchants Holding filed a statement of claims, affirmative defenses and/or issues pursuant to ...


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