Briscoe v. U.S. Restoration & Remodeling, Inc.

[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 DEFEND-
ANTS-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 PLAINTIFFS-
APPELLANTS' MOTION FOR RECONSIDERATION, THE
TRIAL COURT NEVERTHELESS ERRED IN GRANTING
THE DEFENDANTS-APPELLEES' MOTION FOR SUM-
MARY 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 SOLICITA-
TION 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 MAIN-
TAINING 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-Ohio-
2604, ¶ 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-Ohio-
4637, ¶ 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 know-
ledge 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.

4Mr. 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. C-
120088, 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-Ohio-
3957, ¶ 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.

5We 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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