Court of Appeals of Ohio, First District, Hamilton
JAMES R. STROUD, Plaintiff-Appellant,
FOUR E PROPERTIES, INC., STEVEN VERKLEY, and NANCY L. VERKLEY, Defendants-Appellees, and STROVER HOLDINGS, LLC, Defendant.
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
& Lamping, LLP, and Neil Fairweather, for
Reardon & Chasar, LPA, Matthew R. Chaser and Joseph M.
Sprafka III, for Defendants-Appellees.
James Stroud appeals from the trial court's judgment
ordering sanctions against him, denying his motion for leave
to file an amended complaint, and denying his Civ.R. 60(B)(1)
motion for relief from judgment. We affirm.
Stroud filed a pro se complaint against Steven and Nancy
Verkley, Four E Properties, Inc., ("Four E") and
Strover Holdings, LLC, ("Strover") for, among other
things, breaches of contract and fiduciary duty. At the time
Stroud filed suit, he was suing Steven Verkley in another
case through counsel.
Stroud and Steven Verkley each owned 50 percent of Strover.
The gist of Stroud's complaint was that Steven Verkley
had transferred Strover real property holdings to himself and
his wife, Nancy Verkley, without Stroud's knowledge or
consent. Stroud also alleged that some of these properties
were then transferred from the Verkleys to Four E-a
corporation owned by Steven and Nancy Verkley. All of the
transfers from Strover to the Verkleys, and from the Verkleys
to Four E, occurred in 2006. Stroud claimed that in 2014 and
2015, Four E sold several of these properties, and that
Stroud-who had remained on at least two of the mortgages-had
been damaged as a result.
The Verkleys and Four E moved to dismiss Stroud's
complaint under Civ.R. 12(B)(6). Stroud's counsel entered
a limited appearance, and informed the trial court that he
intended to file an amended complaint, but counsel did not
immediately enter a formal notice of appearance. No amended
complaint was filed. The court set a hearing on the motion to
dismiss. Stroud neither appeared pro se nor through counsel,
nor did he otherwise oppose the motion.
The Verkleys and Four E subsequently moved for sanctions,
contending that Stroud had filed unwarranted claims that were
barred by the statute of limitations, and that the complaint
was filed in an improper attempt to gain leverage in the
other lawsuit that Stroud had brought against Steven Verkley.
Steven Verkley's affidavit was filed with the motion for
sanctions. Verkley averred that Stroud had had actual
knowledge of all Strover property transfers that had occurred
in 2006. Attached to the affidavit were documents purporting
to show that Stroud had knowingly transferred the deeds to
the subject properties.
The court conducted two hearings on the sanctions motion.
Following the hearings, the trial court found that
Stroud's complaint was "unsupported" and was
filed "at the same time he was in litigation with the
defendant before another judge. "The court also
determined that Stroud was not a real party in interest to
the 2014 or 2105 transfers, and his claims arising from the
2006 transfers were time-barred. Citing R.C. 2323.51, the
court awarded the Verkleys and Four E $32, 460.10 in attorney
fees and expenses, and $3, 730.80 in expert witness fees.
While the motion for sanctions was pending, Stroud moved
under Civ.R. 60(B)(1) for relief from the trial court's
judgment dismissing his complaint. In pertinent part, Stroud
contended that several of his claims did not fall outside the
statute of limitations, and that his failure to oppose the
motion to dismiss constituted "excusable neglect"
because he had been unaware of the hearing date as he
believed opposing counsel was not going forward with the
motion to dismiss. In response, the Verkleys and Four E
submitted emails to the court showing that counsel for the
Verkleys and Four E had emailed Stroud's counsel stating
that if Stroud did not soon file an amended complaint as
discussed, the Verkleys and Four E intended to request a
hearing on their Civ.R. 12(B)(6) motion.
Following a hearing, the trial court denied Stroud's
Civ.R. 60(B)(1) motion, finding that, based on the statute of
limitations, Stroud's complaint "simply does not
state a cause of action." The trial court also found
that there was not excusable neglect in Stroud's failure
to defend the motion to dismiss.
On January 18, 2017, Stroud moved the court for leave to file
an amended complaint under Civ.R. 15. The court denied his
motion. This appeal followed.
In his first and third assignments of error, Stroud contends
that the trial court erred when it granted the Verkleys and
Four E's motion for sanctions, and denied his motion for
relief from judgment. Stroud focuses arguments in both
assignments of error on the trial court's determination
that his complaint had been time-barred. While we are not
entirely convinced that all claims in the complaint were
barred by the statute of limitations, we do not reach that
issue because (1) Stroud did not appeal the dismissal, and
(2) there are other bases for the trial court's sanctions