Judd v. MeszarosJudd v. Meszaros
Rendered on September 29, 2011
Vincent A. Dugan, Jr.; and Robert D. Cohen, for appellees.
Terrence W. Lyden Company, LLC, and Terrence W. Lyden, for appellants.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.
BRYANT, P.J.
{¶1} Appellants, Terrence W. Lyden and Trytan Investment Properties, LLC (collectively “Lyden“), appeal from a judgment of the Franklin County Court of Common
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 andOhio 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
{¶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
{¶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.
{¶9} Pursuant to
{¶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
{¶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}
III. Appellate Posture
{¶14} The appellate procedural posture of this case is unusual. The trial docket indicates Lyden‘s motion for sanctions was dismissed as moot. In response to Lyden‘s affidavit seeking to disqualify the trial judge, the Chief Justice of the Supreme Court of Ohio filed an entry noting Lyden‘s motion for sanctions had been denied as moot and the underlying case was closed. The trial court‘s ruling and the Chief Justice‘s entry both suggest not only that res judicata would bar subsequent litigation of the same motion before the visiting judge, but that Lyden should have filed his notice of appeal within 30 days of the trial court‘s denying his motion for sanctions as moot. To the extent he should have, his current appeal from the visiting judge‘s resolution of the motion for sanctions is untimely under
{¶15} The record, however, does not contain the trial court‘s entry regarding its determination that Lyden‘s motion for sanctions be dismissed as moot. The suggestion
IV. Frivolous Conduct Standard
{¶16} Pursuant to
{¶17} “Since ‘willfulness’ is not a prerequisite for relief,” under
{¶18} No single standard of review applies in
{¶19} However, “[a] determination that conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law requires a legal analysis.” Stuller v. Price, 10th Dist. No. 03AP-30, 2003-Ohio-6826, ¶14, citing Wiltberger. See also Tomb & Assoc., Inc. v. Wagner (1992), 82 Ohio App.3d 363, 366, citing Passmore v. Greene Cty. Bd. of Elections (1991), 74 Ohio App.3d 707. Purely legal questions are subject to de novo review. Stuller at ¶14, citing Wiltberger at 51-52. Finally, “[w]here a trial court has found the existence of frivolous conduct, the decision to assess or not to assess a penalty lies within the sound discretion of the trial court.” Id., citing Wiltberger at 52.
{¶20}
{¶22} While
V. No Violation of R.C. 2323.51 or Civ.R. 11
{¶23} Lyden argues Dugan and Cohen engaged in frivolous conduct in presenting the trial court with false and misleading information, in asserting that Judd had a right to live in the real estate for one year that precluded Lyden from selling or entering onto the real estate, in initiating a contempt action against Lyden, and in accusing Lyden of conspiracy and fraudulent conduct. Although each of Lyden‘s contentions is grounded in the same facts, we address Lyden‘s contentions separately for ease of discussion.
A. False and Misleading Information – “Legal Interest” Statement
{¶24} Judd‘s affidavit, filed to support the February 8, 2006 motions, stated Judd had “a legal interest in the property which can be substantiated by documentary evidence.” (R. 38, 33.) Lyden asserts Dugan knew the statement was false because
{¶25} Contrary to Lyden‘s contentions, Dugan and Cohen did not allege in the trial court that Judd was the legal owner of the real estate but, rather, made clear that Meszaros was the sole titled owner of the property. Instead, supporting their contentions with evidence, they asserted only that Judd had a legal interest in the property because Judd financed the residence construction, at least half of the manual labor came solely from him, and “[t]he funds used to purchase the vacant land and to pay for the building of the house, a sum in excess of three hundred thousand dollars ($300,000), came (100%) from [Judd], [Judd‘s] father, and [Judd‘s] brother.” (R. 34.) They further noted the CPO provided Judd with a one-year right to tenancy in the property.
{¶26} On appeal, Dugan and Cohen acknowledge Judd‘s interest was an equitable rather than a legal interest. A “legal interest” is “[a]n interest that has its origin in the principles, standards, and rules developed by courts of law as opposed to courts of chancery” or “[a]n interest recognized by law, such as legal title.” Black‘s Law Dictionary (9 ed. 2009). By contrast, an “equitable interest” is “[a]n interest held by virtue of an equitable title or claimed on equitable grounds, such as the interest held by a trust beneficiary.” Id. Here, the ownership relationship between Judd and Meszaros appears to be equitable, perhaps a “purchase-money resulting trust” which “arises when property is
{¶27} As a result, although the motions filed in the trial court stated Judd had a legal interest in the property, his affidavit factually suggests an equitable interest in the real estate: he informed the court the property was in Meszaros’ name but he financed its purchase and had a right to occupancy under the CPO. The visiting judge so concluded, noting Dugan and Cohen knew Judd had only an equitable interest in the real estate. The visiting judge recognized that Dugan provided the trial court with that information in the motions, and accordingly determined “[t]he Court was not misled by Dugan‘s disclosure of the true nature of Judd‘s claims regarding the real estate.” (Decision, 13.)
{¶28} The visiting judge properly concluded Dugan‘s misstatement of his client‘s interest in the property, in the midst of a paragraph where Dugan informed the court that Meszaros was the sole titled owner of the property, does not rise to the sort of egregious conduct subject to sanction as frivolous conduct. Miller v. Miller (Sept. 22 1995), 6th Dist. No. WD-95-016. Cf. Resources for Healthy Living, Inc. v. Haslinger, 6th Dist. No. WD-10-073, 2011-Ohio-1978, ¶30-32 (concluding an appellant‘s using the terms “billings,” “receivables,” and “receipts” interchangeably in the complaint, causing the complaint to misstate the terms of the contract, did not amount to frivolous conduct because the material allegations in the complaint did not lack evidentiary support); Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, ¶31 (noting an attorney does not act unreasonably in relying on the representations of his or her client).
{¶29} Lyden nonetheless contends Dugan and Cohen made the factually inaccurate “legal interest” statement “in an effort to maliciously injure Lyden and tie up the real estate.” (Appellant‘s brief, 14);
{¶30} Accordingly, the “legal interest” statement did not amount to frivolous conduct under
B. Judd‘s Right to Live in the Real Estate/ Prohibition against Sale
{¶31} Lyden also points to Dugan‘s and Cohen‘s legal assertions that the CPO not only gave Judd a right to live in the real estate for one year rent free, but also prohibited Meszaros from selling the property. Lyden contends the assertions were not warranted under existing law and could not be supported by a good-faith argument for an extension or modification of the law. See
{¶32} The motion for emergency orders asked the trial court to restrain Lyden from taking any action to remove Judd from the property, and the supporting memorandum asserted Judd had the right to occupy the residence from October 27, 2005 until October 27, 2006 pursuant to the CPO. The ex parte emergency orders, which the trial court signed but Dugan drafted, restrained Lyden from interfering with Judd‘s exclusive occupancy of the property, including entering onto the property for any reason. They also restrained Lyden from “transferring, selling, leasing, disposing of, and taking any other action which may affect title to the property.” (R. 23.) In denying the motion for sanctions, the visiting judge concluded that the “pleadings [were] not without sufficient arguable merit to be in violation of C.R. 11 or O.R.C. 2323.51.” (Decision, 18.)
{¶33} Lyden disputes the visiting judge‘s conclusion and, citing
{¶34} Domestic relations courts in Ohio have the authority, after a hearing, to “grant any protection order, with or without bond, or approve any consent agreement to
{¶35}
{¶36} In response to Lyden‘s contentions under the statute, the visiting judge noted that the February 8, 2006 motions “were predicated on the validity of the exclusive occupancy orders of paragraphs 2, 3 and 10 of the CPO * * * and given that experienced legal practitioners may believe they are valid, even if mistaken, all of those pleadings are not considered frivolous.” (Decision, 22.) We see no basis to disturb the visiting judge‘s conclusion that Dugan and Cohen had a good-faith basis on which to argue that Judd had the right to live in the residence rent free, as the CPO granted Judd the right to occupy the premises for one year and did not contain a provision relating to
{¶37} Lyden responds by asserting that the visiting judge‘s holding means a CPO can create property rights in a victim of domestic violence and, in effect, establishes “a requirement that such purchasers (and title companies) must now search the domestic relations court records in all of Ohio‘s eighty-eight counties to determine if such CPO rights exist.” (Appellant‘s brief ,17.)
{¶38} Lyden‘s argument attacks the terms of the CPO. The visiting judge did not decide whether the terms were proper; he decided Dugan and Cohen did not act frivolously in seeking to enforce those terms because they had a good-faith basis to assert, based on the terms of the agreed-to CPO and Lyden‘s attempt to evict Judd from the property, that Lyden should be prohibited from interfering with Judd‘s one-year right to occupy the real estate. Moreover, the restriction against sale, though not a part of the CPO, was issued as an emergency order in response to Lyden‘s attempt to remove Judd from the premises, contrary to the terms of the CPO.
{¶39} Under the circumstances of this case, Dugan and Cohen did not engage in frivolous conduct under
C. Contempt Motion
{¶40} Lyden claims Dugan and Cohen knowingly asserted meritless legal theories, not supported by the evidence, when they filed their motion to hold Lyden in contempt of court for his intentional violation of the CPO. The affidavit supporting the motion recounts how, despite the CPO, Judd opened the door on January 26, 2006 to be confronted by a Morrow County sheriff and Lyden. Lyden informed Judd that Lyden had purchased the property from Meszaros and wanted Judd to vacate the residence. Id. Lyden served Judd with the 30-day notice to leave premises and entered the premises. Id. The trial court signed the “Entry/Citation in Contempt” and ordered Lyden to appear before the court and show cause as to why Lyden should not be punished for his failure and refusal to obey the prior orders of the court.
{¶41} “A person who violates a protection order issued or a consent agreement approved under”
{¶42} Under the third prong, Lyden nonetheless claims nothing in the CPO provided clear and unambiguous notice prohibiting him from purchasing the real estate. Dugan and Cohen did not argue that Lyden‘s contemptuous act in purchasing the real estate but in attempting to evict Judd from the property during his court-ordered one-year tenancy. The terms of the CPO granting Judd exclusive possession of the real estate for one year were sufficiently clear that Dugan and Cohen reasonably could contend those terms put Lyden on notice that serving Judd with the notice to leave premises would interfere with the court‘s order.
{¶43} Lyden further asserts he could not be held in contempt for violating the CPO because he was not a party to the CPO. The visiting judge properly concluded the “CPO restraints could apply to Lyden because the terms of the CPO consent agreement prohibited anyone conspiring with Meszaros to defeat the CPO order giving Judd exclusive possession until October 27, 2006, of which Lyden was aware.” (Decision, 15.) Moreover, Dugan and Cohen reasonably could argue that Lyden colluded with Meszaros, as Lyden purchased the property from Meszaros, who not only was subject to the CPO, but knew of the terms of the CPO and arguably, as a result of the sale, colluded with Lyden to interfere with Judd‘s interest in the real estate in violation of the CPO.
{¶44} Even apart from collusion, Dugan and Cohen reasonably could argue that Lyden could be held in contempt because ” ‘[u]nder the proper circumstances, courts can find nonparties guilty of contempt.’ ” State v. Chavez-Juarez, 185 Ohio App.3d 189, 2009-Ohio-6130, ¶35, appeal not allowed, 124 Ohio St.3d 1509, 2010-Ohio-799, quoting Scarnecchia v. Rebhan, 7th Dist. No. 05 MA 213, 2006-Ohio-7053, ¶9; Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990) 52 Ohio St.3d 56, 61, quoting Regal Knitwear Co. v. NLRB (1945), 324 U.S. 9, 14, 65 S.Ct. 478, 481 (stating “[n]onparties are bound by an injunction to ensure ‘that defendants [do] not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding’ “). Dugan and Cohen reasonably could argue Lyden, although a nonparty to the CPO, was bound by its terms so as to prevent him, where he had received actual notice of the CPO‘s terms, from carrying out the acts the CPO prohibited.
{¶45} Under the noted circumstances, nothing suggests Dugan and Cohen lacked good grounds to support the motion for contempt or filed it solely for purposes of delay. As a result, the filing and continued prosecution of the motion for contempt did not amount to frivolous conduct under
D. Fraud & Conspiracy
{¶46} Lyden lastly alleges neither Dugan nor Cohen sufficiently investigated the claim that Lyden acted fraudulently or unethically, or conspired with Meszaros or her attorney, when he served Judd with a notice to vacate the property. Although Dugan‘s and Cohen‘s memorandum supporting the motion to join Lyden as a party alludes to a possible collusion, they did not allege a conspiracy, and the visiting judge thus did not address it. The visiting judge, however, concluded Lyden‘s 30-day notice to leave premises was a fraudulent representation as “[t]hat representation was knowingly
{¶47} When a reasonable inquiry by counsel would have revealed the inadequacy of a claim, a finding that the counsel engaged in frivolous conduct is justified. All Climate Heating and Cooling v. Zee Properties, Inc. (Apr. 25, 2002), 10th Dist. No. 01AP-784, appeal not allowed, 96 Ohio St.3d 1512, 2002-Ohio-4950, quoting Ron Schiederer & Assoc. v. London, 81 Ohio St.3d 94, 97-98, 1998-Ohio-453. “This court has previously upheld the imposition of sanctions for frivolous conduct where the action was ‘based upon suspicions which were generally not supported at all and/or contrary to documentary and other evidence.’ ” Crooks v. Consol. Stores Corp. (Feb. 4, 1999), 10th Dist. No. 98AP-83, quoting Rossman & Co. v. Donaldson (Dec. 6, 1994), 10th Dist. No. 94APE03-388.
{¶48} The elements of fraud include: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) that is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Kerns v. Schmidt (1994), 94 Ohio App.3d 601, 611, quoting Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55.
{¶49} Lyden‘s contentions reduce to the same argument earlier addressed: because the CPO was unenforceable, all attempts to enforce it were frivolous. For the same reasons noted earlier, the argument fails. Dugan and Cohen, along with Meszaros’ attorney, agreed to a CPO that allowed Judd to remain in the property for a year. Despite
{¶50} Because the evidence does not support Lyden‘s assertions that Dugan and Cohen willfully accused Lyden of fraud without grounds to support the claim or that they did so solely for purposes of delay, the allegations did not amount to frivolous conduct under
VI. Disposition
{¶51} For the reasons stated, Lyden‘s sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, denying Lyden‘s motion for sanctions, is affirmed.
Motion to strike denied;
judgment affirmed.
KLATT and CONNOR, JJ., concur.