Briscoe v. U.S. Restoration & Remodeling, Inc.
2015 Ohio 3567
Ohio Ct. App.2015Background
- In 2010 plaintiffs Samuel and Ruth Brisco alleged roof damage and signed documents after contact with defendants' representatives; defendants contacted plaintiffs’ insurer but did not perform roof work and later a different company replaced the roof.
- Plaintiffs sued in 2012 asserting claims under the Ohio Home Solicitation Sales Act (HSSA), the Ohio Consumer Sales Practices Act (CSPA), fraud, and slander of title; defendants answered, counterclaimed, and moved for summary judgment.
- The trial court granted plaintiffs leave to file an extended response to summary judgment (deadline June 7, 2013), but the memorandum contra was filed July 9, 2013; the court struck it as untimely and granted summary judgment for defendants on HSSA, CSPA, and fraud.
- Defendants moved for sanctions under R.C. 2323.51 alleging plaintiffs’ claims were frivolous; the trial court denied sanctions for both sides without a hearing or factual findings.
- On appeal, the court affirmed striking the late memorandum and the grant of summary judgment, but reversed in part and remanded solely to require the trial court to hold a hearing and make findings on defendants’ sanctions motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by striking plaintiffs' untimely memorandum contra and then granting summary judgment | Brisco: filing was timely June 7 but clerk failed to record it; striking was improper and prejudicial | USR&R: memorandum was filed after extended deadline (filed July 9) without further leave; court rules required strike | Court: No abuse of discretion; plaintiffs failed to secure/verify leave and did not show good cause, so strike and summary judgment were proper |
| Whether genuine issues of material fact precluded summary judgment on HSSA claim | Brisco: HSSA violation (no proper Notice of Cancellation) | USR&R: provided a Notice of Cancellation bearing Brisco’s signature; no factual dispute | Court: Defendants met initial Civ.R. 56 burden on HSSA; summary judgment proper |
| Whether genuine issues of material fact precluded summary judgment on CSPA and fraud claims | Brisco: misrepresentations and fraud (signed docs believing they were only authorizations) | USR&R: deposition shows Brisco admitted no misrepresentations about goods/services or warranties; complaint lacks particularized intent to defraud | Court: Defendants met their burden; plaintiffs offered no timely evidentiary response, so summary judgment proper |
| Whether the trial court erred in denying defendants’ motion for sanctions under R.C. 2323.51 without a hearing or findings | Brisco: sanctions were unwarranted; trial court need not always hold hearing | USR&R: plaintiffs’ complaint contained allegations lacking evidentiary support and therefore was arguably frivolous; hearing and findings required | Court: Denial without hearing or factual findings was error because defendants’ motion had arguable merit; remand for hearing and factual findings on sanctions |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (definition of abuse of discretion standard)
- Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433 (a party who can read a document generally cannot claim to be misled for signing it)
- Dice v. Akron, Canton & Youngstown R.R. Co., 155 Ohio St. 185 (same principle regarding responsibility to read instruments)
- Dresher v. Burt, 75 Ohio St.3d 280 (party moving for summary judgment bears initial burden to identify absence of genuine issue)
- Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40 (elements of fraud)
- Coventry Twp. v. Ecker, 101 Ohio App.3d 38 (de novo review standard for summary judgment)