[Cite as Woodrow v. Krukowski, 2023-Ohio-378.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

MARIA WOODROW, :

Plaintiff-Appellee, :

No. 111753

v. :

THEODORE KRUKOWSKI, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 9, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-944942

Appearances:

Harvey + Abens Co., LPA, David L. Harvey III, and 

Matthew Abens, for appellant. 

FRANK DANIEL CELEBREZZE, III, J.:

Appellant Theodore Krukowski (“Theodore”) appeals the judgment of 

the Cuyahoga County Court of Common Pleas denying his motion for sanctions 

against appellee Maria Woodrow (“Woodrow”) under R.C. 2323.51. After a 

thorough review of the applicable law and facts, we affirm the judgment of the trial 

court.
I. Factual and Procedural History

Woodrow filed suit against Theodore and Maria Krukowski (“Maria”), 

Woodrow’s daughter, alleging claims for fraud, fraud in the inducement, promissory 

estoppel, undue influence, and civil fraud. The allegations in the complaint were as 

follows: In September 2017, Woodrow purchased property located at 870 Pelley 

Drive, Cleveland, Ohio (“Property”). Less than a year later, she transferred the 

Property via quitclaim deed to Theodore and Maria, who were married. 

Woodrow alleged that she had been out of contact with Theodore and 

Maria for approximately 17 years prior to purchasing the Property but had since 

reconnected when Maria was ill. She purchased the Property with the purpose and 

intention of renting the Property to Maria and Theodore because the home they were 

living in at the time was in foreclosure. In June 2018, Theodore presented Woodrow

with a quitclaim deed that purported to transfer the Property to him and Maria 

without consideration. Woodrow alleged that she was not knowledgeable about 

legal documents or matters and that Theodore had prepared the deed. 

Woodrow further alleged that when she purchased the Property she had 

relied on Theodore and Maria’s representation that they would pay her monthly 

rental payments of $400 in exchange for living in the Property. She claimed that 

the quitclaim deed was fraudulent because she did not intend to transfer the 

property to Theodore without any consideration. 

Theodore moved under Civ.R. 12(B)(6) to dismiss Woodrow’s claims 

for fraud, fraud in the inducement, promissory estoppel, undue influence, and civil 
fraud, arguing that these claims failed to state a claim upon which relief could be 

granted. Specifically, he argued that Woodrow’s claimed oral agreement that 

Theodore and Maria would pay rent for the Property was barred by the statute of 

frauds and that Woodrow did not allege that she was susceptible as part of her claim 

for undue influence.

Woodrow filed a brief in opposition to the motion to dismiss, arguing 

that the doctrine of promissory estoppel provided an exception to the written 

requirement that rendered her claims viable. Woodrow further asserted that the 

allegations in her claims complied with the requirements for notice pleading.

The trial court granted Theodore’s motion to dismiss, finding that 

Woodrow could prove no set of facts that would entitle her to relief. Following this, 

the only count that remained pending against Theodore was Woodrow’s claim for 

unjust enrichment. 

Theodore then moved for summary judgment on the claim for unjust 

enrichment, arguing that there were no genuine issues of material fact with regard 

to Woodrow’s claim and that her transfer of the Property was a gift. In support of 

Theodore’s motion, he submitted the affidavit of Jeffrey Burke, who was a broker 

hired by Woodrow to sell the Property prior to transferring it to Theodore and Maria. 

According to Burke’s affidavit, he listed the Property for sale and three separate 

offers were received. Woodrow rejected all of them and informed him that she was 

going to gift the Property to her daughter Maria. Burke noted this on the property 

listing, stating, “Seller has decided to gift the property to her daughter. It’ll be [taken 
off the market] status until withdrawn within next week or two approx. 8-27. Do 

not want agents to waste time showing under these circumstances.” Theodore

argued that this evidence of Woodrow’s donative intent nullifies any claim for unjust 

enrichment.

In her brief in opposition to the motion for summary judgment, 

Woodrow contends that Burke’s notation regarding her alleged intent to gift the 

Property was documented approximately two months after the Property had been 

transferred to Theodore and Maria. Woodrow submitted her own affidavit wherein 

she detailed the events leading up to the transfer of the Property. She stated that 

she borrowed $5,000 from her sister in order to purchase and rehabilitate the 

Property and that, prior to the purchase, Theodore stated that he and Maria would 

pay rent to her to live in the Property. She further stated that she did not see the 

quitclaim deed until Theodore told her to sign it and that she was only shown the 

signature page of the deed. She stated that Theodore told her he would sign an 

agreement to compensate her for the Property later.

The trial court granted Theodore’s motion for summary judgment, 

finding that Theodore was entitled to judgment as a matter of law on the unjustenrichment claim.1 Theodore subsequently moved for sanctions, arguing that 

Woodrow engaged in frivolous conduct by commencing and prosecuting her claims 

against him. Theodore asserted that Ohio law did not support Woodrow’s unjust1 Maria also moved for summary judgment on all of Woodrow’s claims, which was 

granted by the trial court. She did not move for sanctions or join Theodore’s motion and 

is not party to this appeal.
enrichment claim when there was evidence that established Woodrow’s intent to gift 

the Property to him and Maria. Theodore further asserted that Woodrow only filed 

her complaint to harass him because he and Maria are now in the midst of a divorce 

and Theodore is living in the Property with a woman who is not Woodrow’s 

daughter.

The trial court denied Theodore’s motion without analysis. Theodore

then filed the instant appeal, raising one assignment of error for our review:

The trial court abused its discretion in denying appellant’s motion for 

sanctions against appellee pursuant to R.C. 2323.51.

II. Law and Analysis

Theodore argues that the trial court erred in denying his motion 

without holding a hearing because Woodrow’s claims were not warranted under 

current precedent. He contends that her complaint could not be supported by any 

facts, that she intended to harass Theodore by filing the complaint, and that she 

“repeatedly turn[ed] a blind eye to undisputed evidence.”

A motion for sanctions under R.C. 2323.51 requires a trial court to 

determine whether the challenged conduct constitutes frivolous conduct as defined 

in the statute and, if so, whether any party has been adversely affected by the 

frivolous conduct. Riston v. Butler, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 

N.E.2d 857, ¶ 17 (1st Dist.).

R.C. 2323.51(A)(2)(a)(ii) defines “frivolous conduct” as conduct that 

“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.” R.C. 2323.51 applies an 

objective standard in determining frivolous conduct, as opposed to a subjective one. 

Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, ¶ 22. The finding 

of frivolous conduct under the statute is determined without reference to what an 

individual knew or believed. Ceol v. Zion Industries, Inc., 81 Ohio App.3d 286, 289, 

610 N.E.2d 1076 (9th Dist.1992).

R.C. 2323.51 was not intended to punish mere misjudgment or tactical 

error. Turowski v. Johnson, 70 Ohio App.3d 118, 123, 590 N.E.2d 434 (9th 

Dist.1991). Instead, the statute was designed to chill egregious, overzealous, 

unjustifiable, and frivolous action. Turowski v. Johnson, 68 Ohio App.3d 704, 706, 

589 N.E.2d 462 (9th Dist.1990). The statute serves to deter abuse of the judicial 

process by penalizing sanctionable conduct that occurs during litigation. Filonenko 

v. Smock Constr., L.L.C., 10th Dist. Franklin No. 17AP-854, 2018-Ohio-3283, ¶ 14.

A determination to impose sanctions under R.C. 2323.51 involves a 

mixed question of law and fact. Resources for Healthy Living, Inc. v. Haslinger, 

6th Dist. Wood No. WD-10-073, 2011-Ohio-1978, ¶ 26. We review purely legal 

questions de novo. Riston, 149 Ohio App.3d 390, 2002-Ohio-2308, 777 N.E.2d 857, 

at ¶ 22. On factual issues, however, “we give deference to the trial court’s factual 

determinations because the trial judge, of course, will have had the benefit of 

observing the entire course of proceedings and will be most familiar with the parties 

and attorneys involved.” In re Estate of O’Toole, 8th Dist. Cuyahoga No. 108122, 
2019-Ohio-4165, ¶ 30, citing Riston at ¶ 25. The ultimate decision as to whether to 

grant sanctions under R.C. 2323.51 rests within the sound discretion of the trial 

court. State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 

19, ¶ 11.

Frivolous conduct implicated by R.C. 2323.51(A)(2)(a)(ii) involves 

proceeding on a legal theory that is wholly unwarranted in law. “In determining 

whether a claim is frivolous under R.C. 2323.51(A)(2)(a)(ii), the test is objective —

whether no reasonable lawyer would have brought the action in light of the existing 

law.” Internatl. Union of Operating Engineers, Local 18 v. Laborers’ Internatl. 

Union of N. Am., Local 310, 8th Dist. Cuyahoga No. 104774, 2017-Ohio-1055, ¶ 15, 

citing Orbit Elecs., Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 2006-Ohio2317, 855 N.E.2d 91, ¶ 49 (8th Dist.). A claim is therefore frivolous “‘if it is absolutely 

clear under the existing law that no reasonable lawyer could argue the claim.’” Orbit 

at id., quoting Hickman v. Murray, 2d Dist. Montgomery No. CA 15030, 1996 Ohio 

App. LEXIS 1028, 14 (Mar. 22, 1996).

Theodore argues that the trial court abused its discretion in denying 

his motion without holding a hearing given Woodrow’s frivolous conduct. Although 

ordinarily a trial court does not have to hold a hearing if it denies a motion for 

attorney fees and costs under R.C. 2323.51 or Civ.R. 11, Ohio courts have recognized 

that a trial court abuses its discretion when it “arbitrarily” denies a request for 

attorney fees. Bikkani, 8th Dist. Cuyahoga No. 89312, 2008-Ohio-3130, at ¶ 31, 

citing Turowski, 68 Ohio App.3d 704, 589 N.E.2d 462; Mitchell v. W. Res. Area 
Agency on Aging, 8th Dist. Cuyahoga Nos. 83837 and 83877, 2004-Ohio-4353, 

¶ 27. An arbitrary denial occurs when the record clearly evidences frivolous conduct, 

but the trial court nonetheless denies a motion for attorney fees without holding a 

hearing. Bikkani at id. Similarly, if an arguable basis exists for an award of 

sanctions under Civ.R. 11, a trial court is required to hold a hearing on the motion. 

Fitworks Holdings, L.L.C. v. Pitchford-El, 8th Dist. Cuyahoga No. 88634, 2007-

Ohio-2517, ¶ 14, citing Capps v. Milhem, 10th Dist. Franklin No. 03AP-251, 2003-

Ohio-5212.

“Frivolous conduct is not proved merely by winning a legal battle or 

by proving that a party’s factual assertions were incorrect.” State ex rel. DiFranco 

v. S. Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, 45 N.E.3d 987, ¶ 15, citing Ohio 

Power Co. v. Ogle, 4th Dist. Hocking No. 12CA14, 2013-Ohio-1745, ¶ 29-30. (““‘A 

party is not frivolous merely because a claim is not well-grounded in fact. * * * [R.C. 

2323.51] was designed to chill egregious, overzealous, unjustifiable, and frivolous 

action. * * * [A] claim is frivolous if it is absolutely clear under the existing law that 

no reasonable lawyer could argue the claim’””), DiFranco at id., quoting Ogle at id., 

quoting Hickman v. Murray, 2d Dist. Montgomery No. CA-15030, 1996 Ohio App. 

LEXIS 1028, 5 (Mar. 22, 1996).

In this case, Theodore’s claim that Woodrow engaged in frivolous 

conduct is entirely premised on its demonstration that Woodrow’s factual 

allegations were incorrect. Unlike in other cases in which the conduct was 

demonstrated to be egregious by multiple acts of misconduct that exceeded the 
bounds of zealous advocacy, see, e.g., Lakeview Holding (OH), L.L.C. v. Haddad, 

8th Dist. Cuyahoga No. 98744, 2013-Ohio-1796, ¶ 19 (repeated failure to serve court 

filings and the submission of an invalid preliminary judicial report, among other 

issues, demonstrated egregious behavior to warrant a hearing on the frivolous 

conduct motion), in this case, Theodore’s claims are limited to accusing Woodrow

of having advanced allegations that could be deemed to be without merit based on 

review of Theodore’s evidentiary submissions.

In essence, Theodore is claiming that because the court granted his 

motion to dismiss and motion for summary judgment, Woodrow’s claims were 

frivolous. In his motion to dismiss, Theodore argued that any alleged agreement to 

pay rent fell within the statute of frauds and thus was not actionable and that 

Woodrow failed to plead any allegations that she was susceptible to undue influence. 

We note that Theodore only moved for sanctions against Woodrow and not her 

counsel. R.C. 2323.51(B)(4) provides that sanctions may be awarded against a party, 

a party’s counsel, or both. While we do not analyze whether Theodore would have 

been successful in seeking sanctions against Woodrow’s counsel, we do not believe 

that an award of sanctions against Woodrow could be appropriate when it would 

arise from a complaint filed and prepared by counsel. It is counsel who determines 

which claims to allege and the factual allegations to present in support thereof. 

Accordingly, Theodore’s arguments regarding the claims that were dismissed by the 

court under Civ.R. 12(B)(6) cannot form the basis for sanctions against Woodrow. 
With regard to the unjust-enrichment claim that was resolved via 

summary judgment, Theodore argues that there was nothing in the record, aside 

from Woodrow’s affidavit, that supported her allegations. “Filing a complaint 

without evidentiary support, however, does not become frivolous conduct under the 

law when no evidentiary support is uncovered by investigation or discovery. The 

conduct is frivolous only when the expectation of finding such evidence is not 

reasonable.” Haslinger, 6th Dist. Wood No. WD-10-073, 2011-Ohio-1978, at ¶ 31. 

Regardless, Woodrow did present evidentiary support for her claims. 

While Theodore argues that Woodrow’s affidavit submitted with her opposition to 

the motion for summary judgment was self-serving, it still constituted evidence in 

support of her claims. Theodore characterizes the MLS listing and Burke’s affidavit 

as “undisputed evidence”; however, it was, in fact, disputed. While the court 

ultimately concluded that no genuine issues of material fact remained as to 

Woodrow’s unjust-enrichment claim, and we are not here to second-guess that 

determination, we cannot say that Woodrow’s submission of only her own affidavit 

in support of her claim constituted frivolous conduct that would warrant a hearing. 

Being unable to overcome a motion for summary judgment does not mean that there 

was no evidentiary support for Woodrow’s claim. It simply means that the trial court 

determined that the evidence presented failed to demonstrate a genuine issue of 

material fact.
Moreover, while Woodrow may not be happy that Theodore is now 

residing in the Property without Maria, there is no evidence demonstrating that she 

filed the complaint in order to harass him. 

Thus, Theodore’s claims are insufficient to satisfy the frivolousconduct standard without allegations of egregious misbehavior, harassment, or a 

demonstration that there was no evidence supporting Woodrow’s claims. “Simply 

asserting that a plaintiff’s claims can be disproven does not rise to the type of 

behavior that necessitates a court to conduct a hearing for frivolous conduct.” 

Sworak v. Great Lakes Recreational Vehicle Assn., 8th Dist. Cuyahoga No. 110137, 

2021-Ohio-4309, ¶ 20.

Based on the record before us, we find that the trial court was not 

required to hold a hearing on Theodore’s motion for sanctions and did not abuse its 

discretion in denying the motion. Theodore’s sole assignment of error is overruled, 

and the judgment of the trial court is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, JUDGE

ANITA LASTER MAYS, A.J., and

MARY EILEEN KILBANE, J., CONCUR