[Cite as Kaiser v. Helbig, 2022-Ohio-2999.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

ALICIA KAISER,

 PLAINTIFF-APPELLANT, CASE NO. 14-22-10

 v.

HOLLY HELBIG, D.V.M., ET AL. O P I N I O N

 DEFENDANTS-APPELLEES.

Appeal from Union County Common Pleas Court

Trial Court No. 19CV0015

Judgment Affirmed

Date of Decision: August 29, 2022 

APPEARANCES:

John P. Cocoran, Jr. for Appellant

John A. Fiocca, Jr. for Appellee
Case No. 14-22-10

-2-

ZIMMERMAN, P.J.

{¶1} Plaintiff-appellant, Alicia Kaiser (“Kaiser”), appeals from the March 

18, 2022 judgment of the Union County Court of Common Pleas dismissing her 

claim for fraudulent misrepresentation against the defendants-appellees, Holly 

Helbig, D.V.M. (“Dr. Helbig”), Lebanon Equine Clinic, Inc., and Hawthorne 

Veterinary Clinic, L.L.C. (collectively “defendants”). For the reasons that follow, 

we affirm. 

{¶2} The genesis of this case stems from verbal statements made by Dr. 

Helbig during a fitness examination of Varillus, a 14-year-old Chestnut Dutch 

Warmblood gelding. Kaiser purchased the horse for $43,000 in April 2016, and a 

few month later, the horse was euthanized for lameness. 

{¶3} Kaiser filed her original civil action in Pennsylvania, but the matter was 

dismissed for want of personal jurisdiction. Then, Kaiser filed a civil action in 

Ohio.1 

{¶4} Kaiser’s complaint asserted claims for negligence, breach of contract, 

fraudulent concealment, and fraudulent misrepresentation. The trial court granted 

the defendants’ motion for judgment on the pleading as to all four claims. Kaiser 

appealed the trial court’s determination to this court. See Kaiser v. Helbig, D.V.M., 

1 This court recited much of the factual and procedural background of this case in a previous appeal, and we 

will not duplicate those efforts here. See Kaiser v. Helbig, D.V.M., et al., 3d Dist. Union No. 14-20-14, 2021-

Ohio-887.
Case No. 14-22-10

-3-

et al., 3d Dist. Union No. 14-20-14, 2021-Ohio-887. We affirmed the trial court’s 

judgment on the pleadings in favor of the defendants as to Kaiser’s claims for

negligence, breach of contract, and fraudulent concealment. Id. at ¶ 17. However, 

we reversed the trial court’s determination as to Kaiser’s fraudulentmisrepresentation claim and remanded the matter back to the trial court for further 

proceedings. Id. at ¶ 18. 

{¶5} On January 3, 2022, the defendants’ filed their motion for summary 

judgment in the trial court as to Kaiser’s fraudulent-misrepresentation claim. (Doc. 

No. 44). Kaiser filed a memorandum in opposition to the defendants’ motion. (Doc. 

No. 46). On March 18, 2022, the trial court granted the defendants’ motion for 

summary judgment. (Doc. No. 56). 

{¶6} Kaiser timely appeals and raises one assignment of error for our review. 

Assignment of Error

The Trial Court erred in granting the Motion for Summary 

Judgment as to Count IV (Fraudulent Misrepresentation) of the 

Complaint, where a genuine issue of material fact as to whether 

the Veterinarian misrepresented the condition of the horse.

{¶7} In Kaiser’s sole assignment of error, she argues that the trial court erred 

in granting defendants’ motion for summary judgment. Specifically, Kaiser asserts 

that a genuine issue of material fact remains as to whether Dr. Helbig made verbal 

statements contemporaneous with the fitness examination of the horse that

represented the health and suitability of the horse differently than in her written 
Case No. 14-22-10

-4-

report. Hence, Kaiser argues she relied upon that verbal representation (instead of 

the written report) to purchase a lame horse that ultimately had to be euthanized. 

Standard of Review

{¶8} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). “De novo review is independent and 

without deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. 

Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. 

Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary 

judgment is proper where there is no genuine issue of material fact, the moving party 

is entitled to judgment as a matter of law, and reasonable minds can reach but one 

conclusion when viewing the evidence in favor of the non-moving party, and the 

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels 

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

{¶9} “The party moving for summary judgment has the initial burden of 

producing some evidence which demonstrates the lack of a genuine issue of material 

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is 

not required to produce any affirmative evidence, but must identify those portions 

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of 
Case No. 14-22-10

-5-

a genuine triable issue; he may not rest on the mere allegations or denials of his 

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

{¶10} Material facts are those facts “that might affect the outcome of the suit 

under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993) citing 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). 

“Whether a genuine issue exists is answered by the following inquiry: Does the 

evidence present ‘a sufficient disagreement to require submission to a jury’ or is it 

‘so one-sided that one party must prevail as a matter of law[?]’” Id., citing Anderson

477 U.S at 251-252, 106 S.Ct. 2512.

Analysis

The elements of fraud are:

‘(a) a representation or, where there is a duty to disclose, concealment 

of a fact, (b) which 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.’

Burris v. Romaker, 71 Ohio App.3d 772, 776 (3d Dist.1991), quoting Gaines v. 

Preterm Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987). 

{¶11} The central issue before us is whether the evidence below, when 

viewed in a light most favorable to Kaiser, establishes as a matter of law that no 

genuine issue of material fact exists concerning the elements of her (Kaiser’s)
Case No. 14-22-10

-6-

fraudulent-misrepresentation claim, and whether the absence of any such elements 

entitles the defendants to summary judgment.

{¶12} Because it is dispositive here, we need only address whether Dr. 

Helbig’s verbal statements were made falsely and with the intent to mislead Kaiser 

into purchasing the horse. Importantly, Kaiser’s memorandum in opposition to 

summary judgment failed to establish any genuine issue of material fact that Dr. 

Helbig recommended that Kaiser purchase the horse. Moreover, assuming, without 

deciding, that Dr. Helbig made the verbal statements that Kaiser asserts (and that 

are disputed by Dr. Helbig), Kaiser nevertheless failed to present any evidence to 

the trial court, as she is required to do by Civ.R. 56, reflecting that the horse was not 

healthy and suitable for Kaiser’s intended use in April 2016.2 Put more plainly–

even though Kaiser’s and Dr. Helbig’s affidavits are in conflict as to the verbal 

statements of Dr. Helbig at the time of the fitness examination, such conflict, does 

not raise a genuine issue of material fact as to the horse’s health and suitability in 

April 2016. Indeed, the record supports that the horse performed well (after the 

fitness examination was completed) in May 2016 taking five 1st place finishes, one

2d, one 3d, and one 4th place finish. Consequently, there is no genuine issue of 

material fact that Dr. Helbig made a false representation (during the fitness 

2 Kaiser purchased the horse for her daughter to ride at show-jumping events over hunter fences at a height 

between two feet six inches and three feet. 
Case No. 14-22-10

-7-

examination) material to Kaiser’s purchase of the horse with knowledge of its falsity

and with the intent of misleading her (Kaiser) into purchasing the horse. 

{¶13} Accordingly, we conclude that there is no genuine issue of material 

fact that Dr. Helbig fraudulently misrepresented the horse’s health and suitability in 

April 2016 to Kaiser. Thus, the trial court properly granted summary judgment in 

favor of the defendants as to Kaiser’s fraudulent-misrepresentation claim.

{¶14} Accordingly, Kaiser’s assignment of error is overruled. 

{¶15} Having found no error prejudicial to the appellant in the particulars 

assigned and argued in her assignment of error, we affirm the judgment of the trial 

court.

Judgment Affirmed

MILLER and WILLAMOWSKI, J.J., concur.

/jlr