[Cite as Briscoe v. U.S. Restoration & Remodeling, Inc., 2015-Ohio-3567.]

THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Samuel Lee Brisco, Jr. et al., : 

 Plaintiffs-Appellees, : No. 14AP-533 

 (C.P.C. No. 12CV-2577)

v. : 

 (REGULAR CALENDAR) 

U.S. Restoration & Remodeling, Inc. : 

et al., 

 : 

 Defendants-Appellants. 

 : 

Samuel Lee Brisco, Jr. et al., : 

 Plaintiffs-Appellants, : No. 14AP-543 

 (C.P.C. No. 12CV-2577)

v. : 

 (REGULAR CALENDAR) 

U.S. Restoration & Remodeling, Inc. : 

et al., 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on September 1, 2015 

 

Kevin O'Brien & Associates Co., L.P.A., Kevin J. O'Brien and 

Jeffrey A. Catri, for plaintiffs. 

Tyack, Blackmore, Liston & Nigh Co., LPA, James P. Tyack 

and Ryan L. Thomas, for defendants. 

 

APPEALS from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} In these consolidated appeals, plaintiffs, Samuel Lee Brisco, Jr. and Ruth A. 

Brisco ("plaintiffs"), appeal the July 26, 2013 judgment of the Franklin County Court of 
Nos. 14AP-533 and 14AP-543 2 

Common Pleas striking their memorandum contra and granting summary judgment in 

favor of defendants, U.S. Restoration and Remodeling, Inc. ("USR&R"), Joshua Kanode, 

Daniel L. Sechreist, and Karen T. Chumley ("defendants") (case No. 14AP-543). Plaintiffs 

also appeal from the trial court's January 15, 2014 decision denying plaintiffs' motion to 

reconsider. Defendants appeal from the February 20, 2014 judgment of the trial court 

denying both parties' motions for sanctions (case No. 14AP-533). For the reasons that 

follow, we affirm in part and reverse in part the judgment of the trial court. 

I. Facts and Procedural History 

{¶ 2} At some point in the spring of 2010, plaintiffs' roof sustained damage. Mr. 

Sechrist, an employee of defendants, made contact with Mr. Brisco at plaintiffs' home and 

inquired regarding the damage to their roof. Defendants presented Mr. Brisco with two 

documents, which he signed. Defendants contacted plaintiffs' home insurance company, 

which sent an adjustor to the home. The adjustor assessed the damage and provided 

plaintiffs a payment from their insurance company to repair the damage. Plaintiffs 

subsequently contracted with another company to replace their roof. 

{¶ 3} On February 26, 2012, plaintiffs filed a complaint against defendants 

asserting four causes of action: (1) violation of the Ohio Home Solicitation Sales Act under 

R.C. 1345.23, (2) violation of the Ohio Consumer Sales Practices Act under R.C. 1345.02 

and 1345.03, (3) fraud, and (4) slander of title. Plaintiffs alleged that defendants never 

performed work that they were contracted to perform but filed a mechanics lien on 

plaintiffs' home. On March 13, 2012, defendants filed a motion to dismiss plaintiffs' third 

and fourth causes of action in their complaint. On April 20, 2012, plaintiffs filed an 

amended complaint. On April 24, 2012, the trial court filed a decision granting 

defendants' motion to dismiss as to plaintiffs' claim for slander of title, but denying the 

motion as to the claim for fraud. On May 1, 2012, the trial court filed a judgment entry 

reflecting its April 24, 2012 decision. 

{¶ 4} On June 11, 2012, defendants filed an answer to plaintiffs' first amended 

complaint. On June 20, 2012, defendants filed an amended answer and counterclaim. On 

September 17, 2012, defendants filed a motion to compel discovery and to grant sanctions. 

On December 19, 2012, the trial court filed a judgment entry denying in part and granting 

in part defendants' motion to compel discovery and impose sanctions, requiring plaintiffs 
Nos. 14AP-533 and 14AP-543 3 

to provide discovery and denying the request for sanctions. On December 21, 2012, 

defendants filed a motion for reconsideration of the trial court's December 19, 2012 

decision. On January 30, 2013, the trial court denied defendants' motion for 

reconsideration. 

{¶ 5} On May 10, 2013, defendants filed a motion for default judgment on their 

June 20, 2012 counterclaim. On the same day, defendants filed a motion for summary 

judgment on plaintiffs' complaint. On May 24, 2013, plaintiffs filed a motion for an 

extension of time until June 7, 2013 to file a memorandum contra to defendants' motion 

for summary judgment. Also on May 24, 2013, plaintiffs filed a motion for leave to file an 

answer to defendants' counterclaim. The trial court granted both of plaintiffs' May 24, 

2013 motions on the same day, granting leave to file until June 7, 2013. 

{¶ 6} On July 9, 2013, plaintiffs filed a memorandum contra to defendants' 

motion for summary judgment. On July 11, 2013, defendants filed a motion to strike 

plaintiffs' July 9, 2013 memorandum contra. On July 26, 2013, the trial court filed a 

decision and judgment entry granting defendants' motion to strike plaintiffs' 

memorandum contra and granting summary judgment in favor of defendants on 

plaintiffs' complaint. 

{¶ 7} On August 20, 2013, defendants filed a motion for sanctions, pursuant to 

R.C. 2323.51, asserting that plaintiffs' counsel participated in frivolous conduct. On 

August 28, 2013, plaintiffs filed a motion for reconsideration of the trial court's July 26, 

2013 decision. On January 15, 2014, the trial court filed a decision and judgment entry 

denying plaintiffs' motion for reconsideration. On January 24, 2014, plaintiffs filed a 

memorandum contra defendants' August 20, 2013 motion for sanctions and a motion for 

sanctions, pursuant to R.C. 2323.51, against defendants for frivolous conduct. On 

February 20, 2014, the trial court filed a decision and judgment entry denying both 

plaintiffs' and defendants' motions for sanctions. On February 27, 2014, defendants filed 

a motion for reconsideration of the court's February 20, 2014 decision. On March 17, 

2014, the trial court denied defendants' motion for reconsideration. 

II. Assignments of Error 

{¶ 8} In case No. 14AP-543, plaintiffs appealed, assigning the following two errors 

for our review: 
Nos. 14AP-533 and 14AP-543 4 

I. THE TRIAL COURT ERRED IN STRIKING THE 

PLAINTIFFS-APPELLANTS' MEMO CONTRA DEFENDANTS-APPELLEE'S MOTION FOR SUMMARY JUDGMENT 

FILED ON JULY 9, 2013, AND IN SUSTAINING THE 

DEFENDANTS-APPELLEES' MOTION FOR SUMMARY 

JUDGMENT. 

II. EVEN IF THE TRIAL COURT PROPERLY SUSTAINED 

THE DEFENDANTS-APPELLEES' MOTION TO STRIKE 

AND PROPERLY OVERRULED THE PLAINTIFFSAPPELLANTS' MOTION FOR RECONSIDERATION, THE 

TRIAL COURT NEVERTHELESS ERRED IN GRANTING 

THE DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF FACT 

REMAIN IN THIS CASE. 

{¶ 9} In case No. 14AP-533, defendants appealed, assigning the following six 

assignments of error: 

I. THE TRIAL COURT'S FACTUAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AND SANCTIONS WERE NOT APPROPRIATE 

WAS NOT SUPPORTED BY COMPETENT, CREDIBLE 

EVIDENCE AND WAS AN ABUSE OF DISCRETION. 

II. THE TRIAL COURT'S LEGAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AS A MATTER OF LAW PURSUANT TO R.C. 

§ 2323.51(A)(2)(a)(iii) BY ALLEGING HOME SOLICITATION SALES ACT VIOLATIONS WAS AN ABUSE OF 

DISCRETION REQUIRING A DE NOVO REVIEW BY THIS 

COURT. 

III. THE TRIAL COURT'S LEGAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AS A MATTER OF LAW PURSUANT TO R.C. 

§ 2323.51(A)(2)(a)(iii) BY ALLEGING CONSUMER SALES 

PRACTICES ACT VIOLATIONS WAS AN ABUSE OF 

DISCRETION REQUIRING A DE NOVO REVIEW BY THIS 

COURT. 

IV. THE TRIAL COURT'S LEGAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AS A MATTER OF LAW PURSUANT TO R.C. 

§ 2323.51(A)(2)(a)(iii) BY SETTING FORTH A FRAUD 
Nos. 14AP-533 and 14AP-543 5 

CLAIM WAS AN ABUSE OF DISCRETION REQUIRING A 

DE NOVO REVIEW BY THIS COURT. 

V. THE TRIAL COURT'S LEGAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AS A MATTER OF LAW PURSUANT TO R.C. 

§ 2323.51(A)(2)(a)(ii) BY INITIATING AND MAINTAINING 

A SLANDER OF TITLE CLAIM WAS AN ABUSE OF 

DISCRETION REQUIRING A DE NOVO REVIEW BY THIS 

COURT. 

VI. THE TRIAL COURT'S LEGAL DETERMINATION THAT 

PLAINTIFFS' COUNSEL DID NOT ENGAGE IN FRIVOLOUS 

CONDUCT AS A MATTER OF LAW PURSUAUNT TO R.C. 

§ 2323.51(A)(2)(a)(i) & (ii) BY INITIATING AND MAINTAINING THE LAWSUIT AGAINST THE INDIVIDUAL 

EMPLOYEES OF USR&R WAS AN ABUSE OF DISCRETION 

REQUIRING A DE NOVO REVIEW BY THIS COURT. 

We first address plaintiffs' assignments of error. 

III. Plaintiffs' First Assignment of Error 

{¶ 10} In their first assignment of error, plaintiffs assert that the trial court erred 

by striking their July 9, 2013 memorandum contra to defendants' motion for summary 

judgment and in sustaining defendants' motion for summary judgment. 

{¶ 11} It is well-established that "trial courts have inherent power to manage their 

own dockets." State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-Ohio-2882, ¶ 23. 

"Absent an abuse of discretion, a trial court's decision to grant a motion to strike will not 

be overturned on appeal." Embry v. Bur. of Workers' Comp., 10th Dist. No. 04AP-1374, 

2005-Ohio-7021, ¶ 12. See also Cromartie v. Goolsby, 8th Dist. No. 93438, 2010-Ohio2604, ¶ 18, citing Weller v. Weller, 115 Ohio App.3d 173 (6th Dist.1996) ("Whether to 

grant or deny a motion to extend a court-ordered deadline or a motion to strike an 

untimely filed motion is a decision committed to the trial court's sound discretion."); 

Cashlink, L.L.C. v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-Ohio-5906, ¶ 9. " '[A]buse 

of discretion' connotes more than an error of law or judgment; it implies that the trial 

court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 

5 Ohio St.3d 217, 219 (1983). 
Nos. 14AP-533 and 14AP-543 6 

{¶ 12} Loc.R. 21.01 of the Franklin County Court of Common Pleas provides as 

follows: 

All motions shall be accompanied by a brief stating the 

grounds and citing the authorities relied upon. The opposing 

counsel or a party shall serve any answer brief on or before the 

14th day after the date of service as set forth on the certificate 

of service attached to the served copy of the motion. The 

moving party shall serve any reply brief on or before the 7th 

day after the date of service as set forth on the certificate of 

service attached to the served copy of the answer brief. On the 

28th day after the motion is filed, the motion shall be deemed 

submitted to the Trial Judge. Oral hearings on motions are 

not permitted except upon leave of the Trial Judge upon 

written request by a party. The time and length of any oral 

hearing shall be fixed by the Trial Judge. Except as otherwise 

provided, this Rule shall apply to all motions. 

Loc.R. 57.02 provides as follows: 

All affidavits, depositions, and other evidentiary material 

permitted by Civ. R. 56(C) in support of or in opposition to the 

motion for summary judgment shall be filed with the motion 

or responsive pleading. This section does not extend the time 

limits for filing a brief in opposition or a reply brief as 

provided in Loc. R. 21.01. 

Thus, the rules provide a party 14 days to file a brief in opposition to a motion, including 

filing all evidentiary materials in support of the responsive pleading. See Bradley v. Ohio 

Dept. of Transp., 10th Dist. No. 13AP-918, 2014-Ohio-3205, ¶ 17. 

{¶ 13} Here, defendants filed their motion for summary judgment on May 10, 

2013. Plaintiffs sought and received leave to file an untimely response on or before June 7, 

2013. Despite receiving an extension of time to file two weeks after the time limit required 

by Loc.R. 21.01, the record reflects that plaintiffs did not file their memorandum contra 

until July 9, 2013, approximately one month after the extended deadline, without seeking 

additional leave of court. Plaintiffs assert that they did timely file their response on 

June 7, 2013, but claim that the clerk of courts erroneously did not document their filing. 

{¶ 14} Regardless of the truth of plaintiffs' assertion, it was the responsibility of 

plaintiffs or their counsel to ensure that the electronic filing of their response was 

successful, a responsibility that plaintiffs' counsel acknowledges. See Essi Acoustical 
Nos. 14AP-533 and 14AP-543 7 

Prods. Co. v. Friedman, 8th Dist. No. 65477 (May 19, 1994) ("Parties or their attorneys 

are expected to keep themselves apprised of the progress of their case."); Carpenter v. 

Gibson, 10th Dist. No. 98AP-1327 (July 15, 1999). Although plaintiffs claim that the trial 

court's staff attorney told them to refile their response electronically once plaintiffs 

discovered that the docket did not reflect the filing of their memorandum contra, 

plaintiffs did not file for leave from the court to do so. Moreover, plaintiffs were clearly 

aware of the need to seek the court's leave to file a response outside of the rule since they 

had already sought leave to untimely file their memorandum contra. 

{¶ 15} As plaintiffs did not file an affidavit demonstrating good cause for their 

untimely filing or respond to the motion to strike, we cannot find that the trial court 

abused its discretion by striking plaintiffs' response, which was filed without leave of the 

court after the extended period of time previously granted for filing. Bradley at ¶ 18 

(finding that trial court did not err by striking untimely memorandum contra and 

attached evidentiary materials where appellant "fail[ed] to comply with local rules or even 

to object to the motion to strike"); O'Brien v. Sutherland Bldg. Prods., Inc., 10th Dist. No. 

93AP-948 (Mar. 24, 1994) (finding it was not error for trial court to rule on the 

defendant's motion for summary judgment without considering the plaintiffs' untimely 

filed request for an extension or memorandum contra). 

{¶ 16} Plaintiffs state that the trial court's decision to grant the motion to strike is 

at odds with the trial court's statement in its January 15, 2014 decision and entry denying 

plaintiffs' motion for reconsideration that, "[d]espite granting Defendants' Motion to 

Strike Plaintiffs' Memorandum Contra, the Court did consider its merits before ruling on 

Defendants' Motion for Summary Judgment." (Jan. 15, 2014 Decision, 3.) Although the 

trial court's statement that it considered stricken materials is puzzling, having found that 

the trial court did not abuse its discretion by granting the motion to strike, we cannot 

agree with plaintiffs that the trial court's consideration of stricken materials supports the 

claim that the granting of the motion to strike was in error. 

{¶ 17} Accordingly, we overrule plaintiffs' first assignment of error. 

IV. Plaintiffs' Second Assignment of Error 

{¶ 18} In their second assignment of error, plaintiffs assert that, even if the trial 

court did not err by striking their memorandum contra, the trial court nevertheless erred 
Nos. 14AP-533 and 14AP-543 8 

by granting summary judgment in favor of defendants since genuine issues of material 

fact remain to be determined. 

{¶ 19} An appellate court reviews summary judgment under a de novo standard. 

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio 

Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is 

appropriate only when the moving party demonstrates: (1) no genuine issue of material 

fact exists; (2) the moving party is entitled to judgment as a matter of law; and 

(3) reasonable minds could come to but one conclusion and that conclusion is adverse to 

the party against whom the motion for summary judgment is made, that party being 

entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex 

rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997). 

{¶ 20} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and of identifying those portions of 

the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 

75 Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the 

court must deny the motion for summary judgment; however, if the moving party satisfies 

its initial burden, summary judgment is appropriate unless the nonmoving party 

responds, by affidavit or otherwise as provided under Civ.R. 56, with specific facts 

demonstrating a genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of 

Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 

Ohio App.3d 732, 735 (12th Dist.1991). 

{¶ 21} In this case, the trial court granted summary judgment in favor of 

defendants on plaintiffs' three claims: (1) violation of the Ohio Home Solicitation Sales 

Act, (2) violation of the Ohio Consumer Sales Practices Act, and (3) fraud.1 We therefore 

begin by examining whether defendants, as the moving party, met their burden of 

identifying those portions of the record demonstrating the absence of a genuine issue of 

material fact on each of plaintiffs' three claims. We note that plaintiffs have raised new 

issues in their brief on appeal that were not raised in the complaint or considered by the 

trial court. As plaintiffs failed to raise such issues before the trial court, we cannot now 

 

1 We note that plaintiffs do not appeal the granting of summary judgment on their claim for slander of 

title. Therefore, we will not address the same. 
Nos. 14AP-533 and 14AP-543 9 

consider them for the first time on appeal. Hamilton v. Dayton Corr. Inst., 10th Dist. No. 

06AP-469, 2007-Ohio-13, ¶ 8 ("It is well-established that an appellant may not assert a 

new theory for the first time before an appellate court."); Barker v. Century Ins. Group, 

10th Dist. No. 06AP-377, 2007-Ohio-2729 (finding "plaintiff cannot now change the 

theory of his case and present new arguments for the first time on appeal"); Lanham v. 

Franklin Twp., 12th Dist. No. CA2002-07-052, 2003-Ohio-2222, ¶ 13 (finding that the 

plaintiffs could not pursue a breach of contract claim on appeal since no such claim was 

raised in their complaint). 

{¶ 22} First, plaintiffs asserted a claim for violation of the Ohio Home Solicitation 

Sales Act under R.C. 1345.21 et seq. Specifically, plaintiffs asserted that defendants failed 

to provide plaintiffs with a "Notice of Cancellation" as required by R.C. 1345.23(B)(2) and 

failed to provide notice of the date by which plaintiffs could cancel and the name and 

address where plaintiffs were to send their notice of cancellation as required by R.C. 

1345.23(B)(2) and (3). 

{¶ 23} In support of their motion for summary judgment, defendants attached as 

an exhibit to their motion a copy of a document labeled "NOTICE OF CANCELLATION" 

that contained defendants' address at their place of business and a date for the 

cancellation to be effective. (Exhibit E.2) Mr. Brisco's signature appears on the document, 

and he testified in his deposition that it was his signature. Based upon our review of the 

record, we conclude that defendants met their initial burden of identifying an absence of a 

genuine issue of material fact as to plaintiffs' claim under the Ohio Home Solicitation 

Sales Act.3

{¶ 24} Second, plaintiffs asserted a claim for violation of the Ohio Consumer Sales 

Practices Act under R.C. 1345.02 and 1345.03, alleging that defendants made 

 

2 Of the exhibits attached to defendants' motion for summary judgment, only Mr. Brisco's deposition 

appears to be evidence of the type contemplated by Civ.R. 56(C) since none of the other documents, 

including the "Notice of Cancellation" relied upon by the trial court, are authenticated. However, since no 

objection was filed to lack of authentication, the trial court had discretion to consider the unauthenticated 

documents when rendering summary judgment. See Smith v. GuideOne Ins., 10th Dist. No. 02AP-1096, 

2003-Ohio-4823, ¶ 15; Stonehenge Condominium Assn. v. Davis, 10th Dist. No. 04AP-1103, 2005-Ohio4637, ¶ 17. 

3 We note that, although plaintiffs' complaint includes both Samuel Lee Brisco, Jr. and Ruth A. Brisco as 

complainants, the record reflects that Ruth Brisco had no communication with defendants and was not 

materially involved with any transactions between defendants and Samuel Lee Brisco, Jr. (S. Brisco 

Depo., 33.) 
Nos. 14AP-533 and 14AP-543 10 

misrepresentations and committed a variety of unfair or deceptive consumer sales 

practices. In their motion for summary judgment, defendants responded to the individual 

allegations as they appeared in plaintiffs' amended complaint with reference to the 

deposition of Mr. Brisco, which was attached to the motion for summary judgment. 

{¶ 25} In his deposition, Mr. Brisco stated that defendants did not "misrepresent 

anything" and specifically that they did not "misrepresent[] anything * * * regarding the 

goods or services that could be provided." (S. Brisco Depo., 33.) Next, in response to 

plaintiffs' claim that they failed to perform services in a competent, satisfactory, and 

workmanlike manner and failed or refused to correct substantial work or defects, 

defendants pointed to Mr. Brisco's deposition in which he stated that defendants did not 

perform any repairs to his house and that he had no complaints about the work that they 

in fact never began. Mr. Brisco further stated that, as defendants never performed any 

work on his roof, he did not expect any warranties and that defendants made no 

representations to him regarding warranties. Based upon our review of the record, we 

conclude that defendants met their burden as to plaintiffs' claim under the Ohio 

Consumer Sales Practices Act. 

{¶ 26} Third, plaintiffs asserted a claim for fraud. As this court stated in Morrow 

v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665 (10th Dist.): 

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. 

Id. at ¶ 20, citing Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987). 

{¶ 27} Mr. Brisco stated that he believed that defendants misled him because he 

was unable to read the documents he signed, and he believed that he was only signing a 

document that permitted defendants to contact his insurance company. As stated in Ed 

Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433 (1996), generally, under Ohio 

law: 
Nos. 14AP-533 and 14AP-543 11 

"A person of ordinary mind cannot say that he was misled into 

signing a paper which was different from what he intended to 

sign when he could have known the truth by merely looking 

when he signed. * * * If this were permitted, contracts would 

not be worth the paper on which they are written. If a person 

can read and is not prevented from reading what he signs, he 

alone is responsible for his omission to read what he signs." 

Id. at 441, quoting Dice v. Akron, Canton & Youngstown RR. Co., 155 Ohio St. 185, 191 

(1951). See also Nesco Sales & Rental v. Superior Elec. Co., 10th Dist. No. 06AP-435, 

2007-Ohio-844, ¶ 20-22. 

{¶ 28} Importantly, Mr. Brisco does not allege that he informed defendants that he 

was unable to read the documents that he signed or that defendants were otherwise aware 

of his alleged inability to read the documents. Although he could not recall specifically 

whether or not he told defendants that he could not read the documents, he stated that he 

did not "normally tell anybody that I'm blind in my left eye." (Tr. 45.4) However, even if 

we considered that defendants misrepresented the nature of the documents that Mr. 

Brisco signed by taking advantage of his alleged blindness, defendants nevertheless 

demonstrated the absence of a genuine issue of material fact regarding plaintiffs' fraud 

claim. 

{¶ 29} Specifically, defendants demonstrated that plaintiffs failed to allege that 

defendants made the alleged misrepresentations with the intent of misleading plaintiffs 

into relying upon them. In their amended complaint, plaintiffs alleged: 

55. Defendants made the above representations with knowledge of their falsity, or with such utter disregard and 

recklessness as to whether such representations were true or 

false that knowledge may be inferred or with fraudulent intent 

and actual malice. 

56. Plaintiffs reasonably relied on Defendants['] false 

statements of fact and signed a document Plaintiffs believed 

to be an authorization to contact Plaintiff's insurance 

company. 

 

4 Mr. Brisco stated that his wife was with him in the house when he signed the documents but that she 

was not in the same room when he met with defendants. 
Nos. 14AP-533 and 14AP-543 12 

57. Defendants did not, in fact, replace Plaintiffs roof in 

accordance with the representations made to Plaintiffs. 

 (Amended Complaint, 10-11.) However, plaintiffs failed to allege that defendants made 

the alleged misrepresentations "with the intent of misleading another into relying upon 

it." Morrow at ¶ 20. Thus, we find that defendants met their initial burden of identifying 

the absence of a genuine issue of material fact as to plaintiffs' claim for fraud. 

{¶ 30} Having determined that defendants met their initial burden of informing 

the trial court of the basis for the motion and identifying those portions of the record 

demonstrating the absence of a material fact, we need not consider the remainder of 

plaintiffs' arguments since, as determined above, the trial court properly struck plaintiffs' 

memorandum contra. Therefore, since plaintiffs failed to respond, by affidavit or as 

otherwise provided under Civ.R. 56, with specific facts demonstrating a genuine issue 

exists for trial, we conclude that summary judgment was properly granted. 

{¶ 31} Accordingly, we overrule plaintiffs' second assignment of error. 

V. Defendants' Six Assignments of Error 

{¶ 32} As all six of defendants' assignments of error are interrelated, we address 

them together. Defendants assert that the trial court erred by denying their motion for 

sanctions, pursuant to R.C. 2323.51, against plaintiffs for engaging in purportedly 

frivolous conduct by (1) alleging a violation of the Home Solicitation Sales Act, (2) alleging 

a violation of the Consumer Sales Practices Act, (3) setting forth a claim for fraud, 

(4) setting forth a claim for slander of title, and (5) for initiating claims against the 

individual employees of USR&R as named in the complaint. 

{¶ 33} Pursuant to R.C. 2323.51(B)(1), a court may "award * * * court costs, 

reasonable attorney's fees, and other reasonable expenses incurred in connection with a 

civil action or appeal * * * to any party to the civil action or appeal who was adversely 

affected by frivolous conduct." "Conduct" encompasses "[t]he filing of a civil action, the 

assertion of a claim, defense, or other position in connection with a civil action, the filing 

of a pleading, motion, or other paper in a civil action, * * * or the taking of any other 

action in connection with a civil action." R.C. 2323.51(A)(1)(a). 

{¶ 34} "Frivolous conduct" is defined as conduct that (1) "obviously serves merely 

to harass or maliciously injure another party to the civil action or appeal or is for another 
Nos. 14AP-533 and 14AP-543 13 

improper purpose, including, but not limited to, causing unnecessary delay or a needless 

increase in the cost of litigation"; (2) "is not warranted under existing law, cannot be 

supported by a good faith argument for an extension, modification, or reversal of existing 

law, or cannot be supported by a good faith argument for the establishment of new law"; 

(3) "consists of allegations or other factual contentions that have no evidentiary support 

or, if specifically so identified, are not likely to have evidentiary support after a reasonable 

opportunity for further investigation or discovery"; or (4) "consists of denials or factual 

contentions that are not warranted by the evidence or, if specifically so identified, are not 

reasonable based on a lack of information or belief." R.C. 2323.51(A)(2)(a). 

{¶ 35} When reviewing a claim under R.C. 2323.51, no single standard of review 

applies, and the inquiry is one of mixed questions of law and fact. Judd v. Meszaros, 10th 

Dist. No. 10AP-1189, 2011-Ohio-4983, ¶ 18, citing Wiltberger v. Davis, 110 Ohio App.3d 

46, 51 (10th Dist.1996); Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87, 2012-Ohio-5193, 

¶ 25. First, review of a trial court's factual determinations is subject to deference and will 

not be disturbed where the record contains competent, credible evidence to support the 

trial court's findings. Judd at ¶ 18, citing Wiltberger at 52. Second, " '[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' " and is, therefore, subject to a de novo standard of review. Judd at ¶ 19, quoting 

Stuller v. Price, 10th Dist. No. 03AP-30, 2003-Ohio-6826, ¶ 14, citing Wiltberger. Finally, 

in cases where a trial court has found the existence of frivolous conduct, the decision to 

assess a penalty lies within the sound discretion of the trial court. Judd at ¶ 19; 

Dehlendorf at ¶ 25. 

{¶ 36} Defendants did not specifically allege that the trial court erred (1) in not 

holding a hearing and (2) in not making findings of fact. Nevertheless, because the first 

assignment of error alleges that the determination was not supported by competent, 

credible evidence, we find it necessary to address the lack of a hearing and lack of 

findings. 

{¶ 37} Neither R.C. 2323.51 nor Civ.R. 11 require a trial court to conduct a hearing 

before denying a motion for attorney fees. Rather, a trial court " ' "must schedule a 

hearing only on those motions which demonstrate arguable merit." ' " Donaldson v. Todd, 
Nos. 14AP-533 and 14AP-543 14 

174 Ohio App.3d 117, 2007-Ohio-6504, ¶ 9 (10th Dist.), quoting Ohio Dept. of Adm. Servs. 

v. Robert P. Madison Internatl., Inc., 138 Ohio App.3d 388, 399 (10th Dist.2000), 

quoting Tosi v. Jones, 115 Ohio App.3d 396, 401 (10th Dist.1996). See also Cortext Ltd. v. 

Pride Media Ltd., 10th Dist. No. 02AP-1284, 2003-Ohio-5760, ¶ 13 ("The key to this 

court's analysis of the hearing requirement pursuant to R.C. 2323.51 is that the trial court 

may deny an oral hearing only to those motions which 'on their face reveal the lack of a 

triable issue.' "). Similarly, other appellate courts have found that it is reversible error for 

a trial court to arbitrarily deny a motion for sanctions, which occurs " 'when (1) the record 

clearly evidences frivolous conduct and (2) the trial court nonetheless denies a motion for 

attorney fees without holding a hearing.' " Polk v. Spirit Homecare, Inc., 1st Dist. No. C120088, 2012-Ohio-4948, ¶ 6, quoting Poindexter v. Grantham, 8th Dist. No. 95825, 

2011-Ohio-1576, ¶ 12. See also Cleveland v. Abrams, 8th Dist. No. 97814, 2012-Ohio3957, ¶ 19. 

{¶ 38} Here, the record reflects that the trial court did not hold a hearing regarding 

defendants' motion for sanctions and, in its decision denying the motions for sanctions, 

the trial court stated only that "[u]pon review, the Court has determined that sanctions 

are not appropriate in this matter for either party." (Feb. 20, 2014 Decision, 2.) Thus, the 

trial court made no factual findings regarding defendants' motion for sanctions. Without 

factual findings, it is difficult for us to discern whether the trial court's determination is 

supported by competent, credible evidence. This is especially true when our preliminary 

review of the record reveals that defendants' motion demonstrated arguable merit. 

{¶ 39} In their complaint and amended complaint, plaintiffs' causes of action 

contained several allegations that appear to lack any evidentiary support. Specifically, 

plaintiffs alleged that defendants made false representations regarding warranties and 

failed to perform services or to correct substandard work. However, as noted above, Mr. 

Brisco testified that defendants never made misrepresentations regarding warranties to 

him and that he had no complaints regarding any work performed by defendants since he 

contracted with another party to perform the work on his roof. Thus, Mr. Brisco's 

testimony calls into question whether there was any evidentiary support for several 

allegations. The trial court, in its decision granting defendants' motion for summary 

judgment, recognized these issues when it stated: 
Nos. 14AP-533 and 14AP-543 15 

Most telling to the Court, and not disputed by the parties, is 

the fact that Defendants did not perform any work on 

Plaintiffs' roof. Plaintiffs are not alleging Defendants took 

money from them without performing work, overcharged 

them for the work, or anything justifying several of the counts 

of Plaintiffs' Amended Complaint. Based on the record, the 

Court is at a loss as to how Plaintiffs, as a matter of law, can 

prevail on its second count. 

(July 26, 2013 Decision, 4-5.) 

{¶ 40} Based upon the foregoing, we find that defendants' motion demonstrated 

arguable merit as they alleged frivolous conduct within the meaning of R.C. 

2323.51(A)(2)(a), and such motion did not on its face reveal the lack of a triable issue. 

Therefore, we find that the trial court erred by denying defendants' motion for sanctions 

without either holding a hearing or making factual findings to support its conclusion that 

sanctions were not appropriate. Donaldson at ¶ 10-11.5 In finding that defendants' motion 

presented an arguable basis for a hearing, we need not address the remainder of 

defendants' arguments, and we make no findings regarding whether sanctions are 

ultimately appropriate in this matter. 

{¶ 41} Accordingly, we sustain in part defendants' six assignments of error to the 

extent that it is necessary for the trial court, on remand, to hold a hearing and issue 

factual findings regarding the merits of defendants' claims under R.C. 2323.51. 

VI. Disposition 

{¶ 42} For the foregoing reasons, plaintiffs' two assignments of error are overruled, 

and defendants' six assignments of error are sustained in part to the extent outlined in 

this decision. The judgment of the Franklin County Court of Common Pleas is affirmed in 

part and reversed in part, and this cause is remanded to that court for the limited purpose 

of conducting a hearing to determine whether sanctions are appropriate. 

Judgment affirmed in part, reversed in part, 

 and cause remanded with instructions. 

LUPER SCHUSTER and BROGAN, JJ., concur. 

 

5 We note that, in Donaldson, the appellant specifically assigned as error the trial court's failure to hold a 

hearing. Id. at ¶ 6. Nevertheless, for the reasons stated above, we find Donaldson to be applicable here. 
Nos. 14AP-533 and 14AP-543 16 

BROGAN, J., retired, of the Second Appellate District, 

assigned to active duty under the authority of the Ohio 

Constitution, Article IV, Section 6(C). 

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