[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

ARVIND PATEL, et al., ) 

) CASE NO. 13 BE 9 

PLAINTIFFS-APPELLANTS, ) 

) 

VS. ) O P I N I O N 

) 

VILLAGE OF BELLAIRE, ) 

) 

DEFENDANT-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

Case No. 08CV412. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellants: Arvind Patel, Pro se 

16 Renaissance Way 

Wheeling, West Virginia 26003 

For Defendant-Appellee: Attorney Mel Lute, Jr. 

400 South Main Street 

North Canton, Ohio 44720 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: March 6, 2014
[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]

VUKOVICH, J. 

{¶1} Plaintiff-appellant Arvind Patel appeals the decision of the Belmont 

County Common Pleas Court which denied his post-judgment motion for Civ.R. 11 

sanctions filed against Attorney Mel Lute, Jr. Appellant alleged that counsel used 

false affidavits to support defendant-appellee Village of Bellaire’s motion for summary 

judgment, which was then granted by the trial court and affirmed on appeal to this 

court. Appellant is essentially attempting to relitigate a claim which he generally 

asserted in his response to the Village’s request for summary judgment but which he 

failed to specifically support with summary judgment evidence. Regardless, the trial 

court did not abuse its discretion in finding, after listening to the affiants testify at the 

sanctions hearing, that the affidavits were not fraudulent and/or that the Village’s 

attorney did not willfully attach fraudulent affidavits to the motion. In accordance, the 

judgment of the trial court is affirmed. 

STATEMENT OF THE CASE

{¶2} On September 7, 2009, Village of Bellaire Law Director Michael 

Shaheen filed a request for temporary and permanent injunctive relief against Arvind 

Patel and Anu & Amu, Inc. in the Belmont County Common Pleas Court resulting in 

Case No. 06CV371. The Village asked the court to order the closure of Patel’s motel 

doing business as the 7-Inn Motel. Attached to the request was the affidavit of Fire 

Captain Dennis VanKirk who stated that he undertook an inspection on behalf of the 

Village which had received various complaints concerning the property. He stated 

that he found at least 100 dangerous fire code violations, noting that he saw exposed 

wiring, deplorable conditions, flammable material, and lack of adequate fire 

extinguishers. He expressed concern that a fire would occur unless the motel was 

closed for repair. He also stated that during the investigation, Patel voiced that he 

would not comply with repair requests. A temporary restraining order was issued. 

{¶3} Patel apparently began making some repairs. Less than two weeks 

after the temporary order was issued, the State Fire Marshal’s Office conducted an 

inspection, found 183 violations, and issued a citation. Based upon subsequent 
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testimony of a State Fire Marshal, a preliminary injunction was then granted in 

06CV371. 

{¶4} Administratively, Patel requested a hearing before the Board of Building 

Appeals, after which the State Fire Marshal’s citation was upheld, with no further 

appeal taken. By this time, Patel’s operator’s license had expired, and the motel was 

no longer in operation. Thus, in mid-2007, the Village dismissed its pending request 

for a permanent injunction. 

{¶5} In mid-2008, Patel filed a pro se complaint against the Village of 

Bellaire in the Belmont County Common Pleas Court alleging a conspiracy to close 

the motel by filing and perpetuating a malicious and wrongful suit with false testimony 

and a false affidavit, negligence in filing a meritless suit and causing the motel to 

close, and tortious interference with economic advantage by causing the motel to 

close. 

{¶6} The Village filed a motion for summary judgment. The Village attached 

the fire captain’s prior affidavit and his more recent affidavit wherein he added that 

the State Fire Marshall inspected the property, found 183 violations, and provided a 

citation issued to Patel under R.C. 3737.42. He characterized this occurrence by 

stating that the State Fire Marshall “took over” to determine the fate of the plaintiff’s 

business. The Village also attached the affidavit of former Law Director Shaheen, 

wherein he stated that he filed a request for temporary and permanent relief based 

upon information supplied to him in order to ensure Patel would cease operation of 

the property pending complete repair in compliance with fire code and/or the outcome 

of an enforcement proceeding under Chapter 3737. 

{¶7} The Village raised various arguments besides the one that it was proper 

to seek closure of the motel. For instance, the Village pointed out that Patel had 

already argued that the fire captain’s affidavit was false in 06CV371. The Village 

stated that there was no allegation of an unlawful act as required for a civil 

conspiracy claim. The Village also asserted immunity in the government functions 

performed here. 
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{¶8} Patel responded by urging that the ruling in 06CV371 was not final and 

only related to a temporary order. As to the issue of the Village’s immunity, Patel 

confusingly stated that the fire captain and law director acted outside the course of 

their employment. Patel also urged that the issue of whether the Village used false 

testimony and false affidavits was a jury question. 

{¶9} The Village replied to the latter contention by pointing out that Patel set 

forth mere general accusations of falsity and provided no summary judgment 

evidence in support of his contention that there remained a genuine issue for trial. 

Before the trial court could rule, Patel retained counsel for the first time in this suit. 

Instructions were issued for counsel to review the file to determine if he concurred 

with appellant’s pro se filings, but counsel later withdrew. In July 2010, the Village 

filed a supplement to their motion for summary judgment in order to place it back 

before the court’s consideration. The Village’s supplement added Patel’s deposition 

and noted that he only generally set forth his belief that the affidavits were based on 

lies and that the motive was to close his motel rather than an actual threat of fire. 

{¶10} On July 21, 2010, the trial court granted summary judgment to the 

Village. Patel appealed that judgment and raised a total of seven assignments of 

error. See Patel v. Village of Bellaire, 7th Dist. No. 10BE27, 2012-Ohio-4348. Patel 

made various arguments in that appeal regarding his belief that the trial court relied 

on affidavits that were false, fraudulent, and manufactured. Id. at ¶ 25, 47. 

{¶11} This court initially set forth the law on political subdivision immunity. Id.

at ¶ 27-29. We ruled that Patel did not raise any exception to immunity. Id. at ¶ 30. 

We pointed out that he claimed that the fire captain or law director acted outside of 

the scope of their duties, but this would only further the Village’s case of immunity, 

noting that he did not file suit against the fire captain and the law director. Id. at ¶ 30, 

39. We also concluded that Patel failed to provide evidence that the affidavits of the 

fire captain and the law director were false or that there remained a genuine issue as 

to his claims. Id. at ¶ 34, 39, 49. We affirmed the grant of summary judgment. 

{¶12} While that appeal was pending, Patel filed a motion for sanctions under 

Civ.R. 11 against Attorney Lute who defended the Village in this lawsuit. Patel 
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claimed that Attorney Lute willfully attached to the summary judgment motion three 

false affidavits (the two affidavits of the fire captain and the affidavit of the law 

director). Appellant also contested counsel’s statements in the summary judgment 

motion recapping the affidavits. Appellant then explained why he disagreed with the 

content and/or wording of certain portions of the affidavits. 

{¶13} The trial court waited to rule on the motion until the appellate process of 

the underlying suit was complete. See Patel v. Judge Crawford, 7th Dist. No. 

12BE28, 2013-Ohio-2284, ¶ 5, 15. The trial court conducted a hearing on the motion 

on April 9, 2013. At the hearing, Patel questioned the fire captain and the law 

director on certain portions of their affidavits. For instance, appellant tried to 

establish that a statement in the law director’s affidavit that a permanent injunction 

was requested was false because no permanent injunction was issued or because 

no hearing ended up being held on a permanent injunction due to the voluntary 

dismissal. As another example, appellant tried to demonstrate that the fire captain’s 

affidavit falsely stated that the State Fire Marshal’s office “took over” to determine the 

fate of the business; appellant based this argument on a letter he received from that 

office stating that they were not part of the pending injunction lawsuit but were 

proceeding administratively on his license. Both witnesses testified that when they 

filed the affidavits at issue, they believed that what they said was true. 

{¶14} The trial court concluded that there was no evidence that there was 

anything false in any of the affidavits. And, the trial court stated that even if there 

were false statements, there is no evidence that the affiants knew those statements 

were false. Regardless, the trial court found that there was absolutely no evidence 

that Attorney Lute had any knowledge of falsities in the affidavits. The court opined 

that this was the most frivolous motion and hearing that the court had encountered in 

its more than 30 years as a judge. The court’s decision denying the motion for 

sanctions was journalized on April 24, 2013. Patel filed a timely notice of appeal and 

filed a pro se brief on his own behalf (not on behalf of the corporation). 
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ASSIGNMENTS OF ERROR

{¶15} Patel sets forth the following seven assignments of error: 

{¶16} “The trial court made an egregious error in failing to recognize the 

[former law director’s] false and fabricated affidavit and testimony at the hearing of 

April 9, 2013.” 

{¶17} “The trial court made an egregious error in failing to recognize the [fire 

captain’s] false and fabricated affidavit and testimony at the hearing of April 9, 2013.” 

{¶18} “Trial court abused its discretionary power by directly coaching the 

witness stating that you can file a false and fabricated affidavit and come into court 

and testify that you believe it was true at the time of the filing of the affidavit.” 

{¶19} “The trial judge abused his discretionary power and changed the 

definition of rule 11 ‘motion for sanction’ to favor Appellee.” 

{¶20} “The trial judge abused his discretionary power, by not allowing the 

defendant Attorney Lute on the stand for cross examination.” 

{¶21} “The trial judge abused his discretionary power and falsely stated that 

this is the first and only hearing on the Motion [for] sanctions today.” 

{¶22} “The trial court abused his discretionary power, and held the hearing 

without important witness[es], whom Mr. Patel subpoenaed.” 

{¶23} Before proceeding, we admonish appellant that gratuitous cursing in an 

appellate brief is inappropriate. See Appellant’s Brief at 21 (where appellant states 

that the trial judge “did not give a shit”). 

GENERAL LAW

{¶24} Pursuant to Civ.R. 11, every pleading, motion, or other document of a 

party represented by an attorney shall be signed by at least one attorney of record. 

The signature of an attorney constitutes a certificate by the attorney: that he has 

read the document; that to the best of his knowledge, information, and belief there is 

good ground to support it; and that it is not interposed for delay. Civ.R. 11. If a 

document is signed with intent to defeat the purpose of this rule, it may be stricken as 

sham and false and the action may proceed as though the document had not been 

served. Id. For a willful violation of this rule, an attorney may be subjected to 
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appropriate action, including an award to the opposing party of expenses and 

reasonable attorney fees incurred in bringing a motion under this rule. Id.

{¶25} Appellee points out that the rule does not apply to affidavits of a nonparty used to support a motion. See Staff Note to 1994 Amendment to Civ.R. 11. 

Appellant responds by contending that where counsel cites parts of those affidavits in 

his motion, the rule would apply to those statements regardless of counsel’s 

subjective belief. That is, appellant urges the test employed in a Civ.R. 11 evaluation 

is not subjective and is employed without considering actual bad faith. 

{¶26} However, the Ohio Supreme Court has stated that “Civ.R. 11 employs a 

subjective bad-faith standard to invoke sanctions by requiring that any violation must 

be willful.” State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 

874 N.E.2d 510, ¶ 19. The standard requires more than bad judgment or negligence 

and requires dishonest purpose or actual intent to mislead for instance. State ex rel. 

Bardwell v. Cuyahoga Cty. Bd. of Commrs, 127 Ohio St.3d 202, 937 N.E.2d 1274, 

2010-Ohio-5073, ¶ 8. 

{¶27} A reviewing court does not reverse a decision on a motion for sanctions 

unless the trial court has abused its discretion. Id. at ¶ 9, citing Dreamer, 115 Ohio 

St.3d 190 at ¶ 18. As long as some competent, credible evidence exists to support 

the judgment, no abuse of discretion occurs. Id.

ANALYSIS

{¶28} Many of appellant’s complaints regarding the affidavits can be classified 

as caviling (the raising of trivial and frivolous objections), misinterpretation, or outright 

mistake on appellant’s part. Most notably, appellant complains that the law director’s 

affidavit stated that he previously requested a permanent injunction, but appellant 

insists that this is not true. However, the original filing was a request for both 

temporary and permanent relief. Although only a temporary and preliminary 

injunction had been issued by the time the complaint was voluntarily dismissed, there 

was still an initial request for a permanent injunction. 

{¶29} Appellant’s next complaint regarding the law director dealt with his 

statement at a hearing in the injunction case. As to how this relates to the affidavit, 
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appellant seems to focus on the law director’s statement in his affidavit that he filed 

for an injunction subject to complete repair of the property. Appellant believes the 

statement is false because he alleges that he did make the repairs of the items in the 

initial complaint but his motel stayed closed. However, the law director was merely 

paraphrasing the complaint for an injunction; he was not swearing that repairs never 

began or that they were not completed at a later date. And, the excerpt from a prior 

hearing utilized by appellant here does not support his position as the law director 

mentioned only that appellant was “making progress” and stated that several 

violations still exist. In any event, appellant is essentially making a legal argument as 

to whether the code violations found by the state could be used to further extend the 

injunction where he allegedly fixed the violations found by the village. This was a 

matter for the summary judgment stage of the proceedings, rather than the Civ.R. 11 

stage. 

{¶30} Appellant also alleges here that the law director falsely claimed that 

Chapter 3737 was followed. This is apparently based upon appellant’s contention 

that the fire captain did not strictly follow the law, and that the law director should 

have known that. First, the law director’s three-sentence affidavit was used in this 

lawsuit merely to show what he did in the prior lawsuit. He did not specifically claim 

that the fire captain complied with every aspect of Chapter 3737. He merely outlined 

that he filed for temporary and permanent relief to assure appellant would cease 

operation subject to the complete repair in compliance with fire codes and/or the 

outcome of enforcement proceedings under Chapter 3737. And, nothing in that 

affidavit could be attributable to bad faith of the current attorney provided by the 

insurance company to represent the Village of Bellaire in this action instituted by 

appellant. 

{¶31} As to the affidavit of the fire captain that was written at the time of the 

summary judgment motion, appellant complains that he stated that the State Fire 

Marshal’s office “took over” after finding 183 violations. The trial court found that the 

fire captain believed the state was taking over (for him) and the affidavit was not 

fraudulently made. Appellant points to a letter written to him on behalf of the State 
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Fire Marshal’s Office, noting that it was not a party to the action for injunctive relief as 

they were pursuing actions against the hotel’s license administratively which “at this 

time do not involve the courts.” Appellant’s complaint seems to be merely an 

interpretation argument or an argument of what impressions were made on the fire 

captain by the involvement of the state. So they did not take over the civil case; they 

did, however, essentially take over the investigatory and compliance aspects of the 

matter. In fact, testimony of one of those state agents was presented to support 

extending the temporary restraining order into a preliminary injunction. And, as 

aforementioned, any argument that the state’s citation was a malicious reason to 

extend the injunction is a legal argument. Arguments such as this were resolved at 

the summary judgment stage of this action due to appellant’s inadequate response. 

{¶32} Appellant also complains that the fire captain’s affidavit stated the he 

issued a citation to appellant in writing, describing with particularity the nature of the 

violation and the portion of the fire code violated. Appellant complains that the 

citation was more like a letter and that each violation does not have a specific code 

section after it. However, it was in writing, with a list of particular violations, and 

general code sections were provided in the introduction to the list of violations. Once 

again, any argument that the fire captain’s citation was statutorily insufficient to justify 

an injunction is a legal argument that was already resolved, at the least by the time 

that summary judgment was entered in this action. And, defense counsel does not 

make a groundless argument by defending the sufficiency of a fire captain’s citation 

in an action for malicious prosecution against his client, the Village of Bellaire. 

{¶33} Appellant even takes issue with a statement in the fire captain’s original 

affidavit, filed in support of the Village’s prior action for a restraining order, where he 

states, “During our investigation, Mr. Patel made it clear that he absolutely will not 

comply with our requests to repair the subject property. Furthermore, he openly 

disputed our authority to order him to do so.” There is no rational reason to connect 

any liability for this statement (made by a fire captain the day after an inspection in 

September 2006) to a defense counsel who, two years later, merely attached the 

affidavit (which had already been accepted by a court in granting both temporary and 
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preliminary relief) to a motion for summary judgment. In any event, there is no 

evidentiary indication that the fire captain’s impressions of appellant’s conduct and 

statements were false. Additionally, appellant had the chance to contest these 

statements, and summary judgment has since been entered against him. 

{¶34} The trial court had the discretion to believe the affiants who testified that 

the affidavits were true and/or they believed their affidavits were true when they wrote 

them. The court did not “coach” the witnesses but followed up Patel’s questioning 

with one final question as to whether they believed at the time of signing that the 

affidavits were true. Other statements by the court were attempts to align appellant’s 

presentation to the proper focus rather than to permit him to retry his original 

complaint. Furthermore, appellant’s particular arguments were either unconvincing 

or constituted erroneous analysis, misinterpretation, quibbling over semantics, or 

caviling. 

{¶35} “Civ.R. 11 employs a subjective bad-faith standard to invoke sanctions 

by requiring that any violation must be willful.” Dreamer, 115 Ohio St.3d 190 at ¶ 19. 

The standard requires more than bad judgment or negligence but suggests a 

dishonest purpose or actual intent to mislead. Bardwell, 127 Ohio St.3d 202 at ¶ 8. 

{¶36} Thus, contrary to appellant’s argument, the trial court was not wrong by 

noting that even if it were to assume for sake of argument that a person’s affidavit 

turns out to contain some false statements does not automatically mean that the 

attorney representing the village (hired by the insurance company) must be 

sanctioned. As Attorney Lute points out, Civ.R. 56 speaks of affidavits being made 

on the personal knowledge of the affiant. Appellant cites nothing requiring the 

attorney to be absolutely liable for the client’s (or a non-party’s) statements in the 

affidavit just because he points to the affidavit in his motion for summary judgment. 

{¶37} Putting aside the conclusion that a rational trier of fact could find a lack 

of evidence that the affidavits were factually false, Attorney Lute was not part of the 

lawsuit by the Village against appellant, and there was no evidence that Attorney 

Lute had knowledge of a “conspiracy” or fraudulent statements by affiants. Appellant 

states that the court should have let him cross-examine Attorney Lute; however, he 
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did not mention questioning Attorney Lute until he was in the middle of making final 

arguments and the court was responding to those arguments (thus alerting him as to 

his evidentiary failure). As the trial court pointed out, appellant had already answered 

that he had no more witnesses to call. 

{¶38} Appellant also takes issue with the court’s statement that this was the 

first and only hearing on his motion. He states that a hearing on his motion was 

conducted back when he first filed the motion two years before. However, he failed 

to provide a complete or official transcript of that hearing (as we pointed out to him in 

ruling on the prior mandamus action he filed). As we stated then, the incomplete and 

unofficial pages he did submit showed only that the trial court stated that it would 

either dismiss the motion or stay it pending the appellate decision. There was no 

indication that an evidentiary hearing was held then. We have before us only a full 

and official transcript of the evidentiary hearing that occurred on April 9, 2013. 

{¶39} Contrary to another assertion by appellant, there is nothing wrong with 

the court having the questioner show the document to the witness instead of to the 

court. As appellant points out, the motion for sanctions had been filed with the court, 

and it had attachments to it. However, an unsworn document attached to a motion 

need not be accepted as evidence. Even appellant’s own “affidavit” was not 

notarized. In any event, we have the filed motion and its attachments and such 

documents do not change the analysis of the situation here. 

{¶40} As to his final contention, appellant waited until a few days before the 

scheduled hearing to issue subpoenas. The local fire captain received his subpoena 

the day prior to the hearing, and the law director and a judge did not receive their 

subpoenas until the morning of the hearing. From the returns, it can be seen that the 

non-local state employees could not be served in time for the hearing. Appellant did 

not seek a continuance to secure these witnesses; nor did he show how their 

testimony could relate to Attorney Lute’s knowledge. (The only reason he sought a 

continuance was his attempted appeal to the United States Supreme Court.) 

{¶41} Lastly, appellant was essentially attempting to relitigate the issues 

arising from his complaint and the summary judgment stage; a stage which ended in 
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a final order, a final order that was upheld on appeal. Appellant is taking issue with 

statements in affidavits attached to a summary judgment motion in a motion for 

sanctions against counsel when those issues were generally and vaguely sketched 

but were not particularized in the response to summary judgment. He is finally 

specifying what he should have specified in his response to summary judgment. He 

said that affidavits were false then, but he presented no summary judgment evidence 

in support of this bare assertion. The trial court accepted the affidavits in ruling on 

summary judgment. This court reviewed appellant’s argument that the affidavits 

were false. We concluded that he had presented no evidence below that this was 

the case as was his burden. We affirmed the entry of summary judgment. 

{¶42} To allow a motion for sanctions to be utilized in such a manner would 

allow a party who loses due to their own lack of proper response to attempt to 

relitigate the veracity of the movant’s summary judgment evidence. Notably, this is 

not a case where a party who lost at summary judgment discovered new information 

showing not only that the affidavits were false but also that counsel knew about the 

falsity. 

{¶43} And, as to the fire captain’s first affidavit, this document was filed in 

court by the Village to support the restraining order years prior to this action. It was 

contested by appellant at that time. Most importantly, appellant’s suit here was 

based on his allegation that said affidavit was false. Counsel, who was uninvolved in 

the prior suit, attached to the summary judgment motion the very affidavit that 

appellant’s complaint says is false. Counsel was hired to defend against this claim. 

It is not willful bad faith to attach the document upon which the opponent’s suit is 

based. Had appellant shown there was a genuine issue as to whether the affidavit 

was material and false at the proper stage, counsel still could have proceeded to 

defend his client at trial. 

{¶44} As explained in his appeal of the grant of summary judgment, appellant 

failed to support his claim in responding to summary judgment. By filing a motion for 

sanctions on this same affidavit, appellant is improperly duplicating the claim he 

made in the complaint which he failed to protect in the summary judge stage of 
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proceedings. And, he is essentially attempting to alter the law of the case on this 

affidavit. Judgment has already been entered against appellant on his complaint that 

the affidavit was false. 

{¶45} Regardless, as explained supra, a reasonable court could find the 

claims of falsity outlined on appeal were not supported by the evidence, and Attorney 

Lute’s bad faith was not discernible and could be found lacking by a reasonable trial 

court. For the foregoing reasons, the judgment of the trial court is hereby affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.