[Cite as Rose v. Cochran, 2014-Ohio-4979.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     ROSS COUNTY

J.R. ROSE,                                      :    Case No. 14CA3445

        Plaintiff-Appellant,                    :

v.                                              :    DECISION AND
                                                     JUDGMENT ENTRY
WAYNE COCHRAN,                                  :

        Defendant-Appellee.                     :    RELEASED: 11/4/2014

                                             APPEARANCES:

J.R. Rose, Chillicothe, Ohio, pro se appellant.

Michael W. Sandner, Pickrel, Schaeffer & Ebeling Co., L.P.A., Dayton, Ohio, for
appellee.
Harsha, J.
        {¶1}    J.R. Rose is a former insurance agent who was convicted and sentenced

to prison for the sale of unregistered securities, perjury, and forgery in connection with

his fraudulently purchasing annuities with forged signatures. Rose filed a complaint in

the Ross County Court of Common Pleas against Wayne Cochran, a former client,

alleging claims of insurance fraud, libel and slander, fraud, and unjust enrichment

against Cochran. The trial court granted summary judgment in Cochran’s favor and

dismissed the complaint.

        {¶2}    In his first assignment of error Rose asserts that the trial court committed

five instances of prejudicial error when it failed to comply with applicable law. In his first

contention, Rose claims that the trial court erred in denying his motion to amend his

complaint under Civ.R. 15(E). Rose’s claim is meritless because he could not

supplement his complaint under Civ.R. 15(E) to add new claims. Insofar as his motion
Ross App. No. 14CA3445                                                                     2


could be construed as a motion to amend his complaint under Civ.R. 15(A), the trial

court did not abuse its discretion in denying the motion because he could not file an

amended complaint as a matter of right after Cochran had submitted a timely answer to

the original complaint; moreover, he failed to make a prima facie showing of support for

the new claims he sought to be pleaded.

         {¶3}   In his second contention Rose claims that the trial court erred in denying

his motion to compel discovery. The trial court did not abuse its discretion in doing so

because Rose did not establish that Cochran had failed to comply with discovery.

         {¶4}   In his third and fourth contentions Rose asserts that the trial court erred in

granting Cochran’s motion for summary judgment because the motion was premature,

the trial court considered material outside the complaint, Cochran’s affidavit in support

of his motion was defective because it was undated and had been previously filed, and

Rose’s affidavit and exhibits raised a genuine issue of material fact. There is no merit in

any of these contentions.

         {¶5}   In his fifth contention Rose argues that the trial court erred in determining

that he did not provide sufficient evidence of fraud to preclude summary judgment. The

trial court properly determined, however, that Rose failed to submit any evidence that he

was the victim of the alleged fraud. Therefore, we overrule Rose’s first assignment of

error.

         {¶6}   In his second assignment of error Rose contends that the trial court erred

by failing to impose sanctions against Cochran’s counsel for misconduct during the

proceedings. Rose’s contention is meritless because he did not establish any
Ross App. No. 14CA3445                                                                  3


misconduct. Thus, we overrule Rose’s second assignment of error and affirm the

judgment of the trial court.

                                         I. FACTS

       {¶7}   Rose was a licensed insurance agent in Ohio, but he lacked a securities

license and failed to register any securities. Rose established bank and brokerage

accounts registered in his name and entities under his control to pool money received

from investors in Butler County, Ohio. Rose defrauded investors of their money,

commingled investor funds with his own money, and paid personal expenses out of the

accounts. Eventually, his fraudulent practices acted like a Ponzi scheme in which he

was dependent on deposits from new investors to continue paying existing investors.

Ultimately, he received millions of dollars from investors who he was unable to fully

reimburse.

       {¶8}   In 2007, the director of the Ohio Department of Commerce filed a verified

complaint in the Lucas County Court of Common Pleas for injunctive relief and the

appointment of a receiver to act on behalf of the investors who had been defrauded by

Rose. Rose consented to the receivership, and the court appointed a receiver and

issued a preliminary injunction preventing Rose from selling securities in violation of the

Ohio Securities Act.

       {¶9}   That same year Rose entered a guilty plea to a bill of information filed in

the Butler County Court of Common Pleas charging him with felony counts of sale of an

unregistered security, perjury, and forgery. In April 2008, the court sentenced Rose to

an aggregate prison term of 20 years. A month later the receiver issued an amended

report in the Butler County Court of Common Pleas setting forth the classification and
Ross App. No. 14CA3445                                                                   4


priority of claims of the victims of the fraud perpetrated by Rose. The receiver

determined that Cochran had paid over $101,000 to Rose and that the ending value of

the annuities purchased was about $26,000, but because of the money to be paid out to

other claimants injured by Rose’s misconduct, Cochran’s net claim would only be

$10,375.82.

       {¶10} After Rose was convicted and sentenced, Cochran wrote a letter to

National Western Life Insurance Company (“National Western”) to terminate an annuity

contract Rose set up with the company and to surrender the account value without any

fees or penalties. Cochran also sent a letter provided by the receiver noting that

investors like Cochran had suffered more than $13,000,000 in losses resulting from

Rose’s forgeries and other illegal acts, including those who owned annuities that were

purchased with their forged signatures, and requesting companies to waive any

penalties in light of these circumstances. The application contained the signatures of

Cochran and agent Robin Whiles, but did not include Rose’s signature. Sometime

thereafter, National Western terminated the annuity.

       {¶11} In January 2011, Rose filed a complaint in the Ross County Court of

Common Pleas alleging that by sending letters to National Western detailing Rose’s

misconduct, the company terminated the annuity, which resulted in a reversal of the

$585 sales commission received by Rose to his detriment. Rose claimed that

Cochran’s actions constituted insurance fraud under R.C. 2913.47, libel and slander,

unjust enrichment, and fraud. Cochran filed a Civ.R. 12(B)(6) motion to dismiss Rose’s

complaint for failure to state a claim upon which relief can be granted, but relied on an
Ross App. No. 14CA3445                                                                    5


affidavit of himself and exhibits that were not attached to the complaint. The trial court

granted Cochran’s motion and dismissed the cause.

       {¶12} We reversed the judgment and remanded the cause because the trial

court erred when it considered additional evidence beyond the complaint without

converting the motion to dismiss to a motion for summary judgment as required by

Civ.R. 12(B). Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729.

       {¶13} After a tortuous procedural history following remand, the case finally

ended up back in Ross County Court of Common Pleas. Subsequently, Rose filed

motions to compel discovery and to amend his complaint. After the trial court denied

both motions, the parties filed motions for summary judgment. Cochran filed his

previously filed affidavit and exhibits. Rose filed his own affidavit and exhibits. The trial

court granted Cochran’s motion, overruled Rose’s motion, and dismissed the cause.

                              II. ASSIGNMENTS OF ERROR

       {¶14} Rose assigns the following errors for our review:

       I. Whether the trial court committed prejudicial error when it failed to
       comply with Ohio Law.

       II. Whether the lower court abused its discretion in failing to sanction the
       misconduct of counsel.

                                 III. LAW AND ANALYSIS

                                 A. First Assignment of Error

       {¶15} In his first assignment of error, Rose contends that the trial court

committed prejudicial error by acting contrary to law in five separate circumstances.

                                Motion to Amend Complaint
Ross App. No. 14CA3445                                                                                   6


        {¶16} In his first contention Rose asserts that the trial court erred by denying his

motion to amend his complaint. In the motion Rose claimed that he wanted to amend

his complaint pursuant to Civ.R. 15(E) to add new claims for breach of contract and for

violation of the Ohio Blue Sky Laws. Rose claims that he was entitled to an amendment

as a matter of right because Cochran did not timely file an answer to his original

complaint within the required period after the case was transferred back to the Ross

County Court of Common Pleas from another jurisdiction. His claim is meritless

because Cochran had already filed his answer after we reversed the trial court’s

dismissal of Rose’s complaint in his first appeal. “Pursuant to Civ.R. 15(A), once an

answer to a complaint is served, a party may amend a pleading only by leave of the

court or by written consent of the adverse party.” See Martin v. Ohio Dept. of Rehab.

and Corr., 140 Ohio App.3d 831, 837, 749 N.E.2d 787 (4th Dist.2001).1 In the absence

of Cochran’s consent, Rose’s requested amendment required leave of court.

        {¶17} “The decision to grant or deny a motion for leave to amend a pleading is

within the sound discretion of the trial court. * * * Thus, we will not reverse a court’s

decision denying a motion for leave to amend, absent an abuse of discretion.” Mollette

v. Portsmouth City Council, 169 Ohio App.3d 557, 2006-Ohio-6289, 863 N.E.2d 1092, ¶

28 (4th Dist.); Fifth Third Bank v. Rankin, 4th Dist. Pickaway No. 10CA45, 2011-Ohio-

2757, ¶ 36. An abuse of discretion occurs when a decision is unreasonable, arbitrary,



1
  Nor did Cochran violate the time requirements of Civ.R. 12(A) by filing his answer to the amended
complaint more than 14 days after we reversed the trial court’s dismissal of the cause pursuant to his
Civ.R. 12(B)(6) motion. See BAC Home Loans Servicing, LP v. Kolenich, 12th Dist. Butler No. CA201-01-
001, 2012-Ohio-5006, ¶ 27 (“There is nothing in Civ.R. 12(A)(2) that provides any express guidance as to
what to do in situations like the one here, where the trial court has entered final judgment in the case, but
the court of appeals reverses that judgment and remands the matter to the trial court for further
proceedings consistent with the court of appeals’ opinion. Therefore, [appellants’] reliance on the 14-day
time limits in Civ.R. 12(A)(2)(a) and 12(A)(2)(b) is misplaced”). In fact, Rose does not claim otherwise.
Ross App. No. 14CA3445                                                                 7

or unconscionable. State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136

Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 25.

      {¶18} We conclude that the trial court did not act in an unreasonable, arbitrary,

or unconscionable manner in denying Rose leave to amend his complaint to add two

new claims for relief. First, Rose requested leave to amend pursuant to Civ.R. 15(E),

which permits parties to file a motion, and upon reasonable notice and such terms as

are just, to “serve a supplemental pleading setting forth transactions or occurrences or

events which have happened since the date of the pleading sought to be

supplemented.” State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-

Ohio-3328, 974 N.E.2d 3328, ¶ 18.

      {¶19} Under Civ.R. 15(E), a supplemental pleading is a mere addition to or

continuation of the original complaint and cannot be used to raise new and different

causes of action. Gilson v. Windows and Doors Showcase, LLC, 6th Dist. Fulton Nos.

F-05-017 and F-05-024, 2006-Ohio-292, ¶ 26; Mork v. Waltco Truck Equipment Co., 70

Ohio App.3d 458, 461, 591 N.E.2d 379 (9th Dist.1990), citing State ex rel. Dickman v.

Defenbacher, 151 Ohio St. 391, 394, 86 N.E.2d 5 (1949) (“A new and different cause of

action cannot be raised by a supplemental pleading”); Peoples Bank of Point Pleasant

v. Yeager, 4th Dist. Gallia No. 91CA34, 1993 WL 63458 (Mar. 2, 1993), *5 (“an

amended pleading is designed to include matters occurring before the filing of the

complaint but [were] either overlooked or not known at the time, whereas a

supplemental pleading is designed to cover matters subsequently occurring but

pertaining to the original cause”). Rose does not claim that the additional claims that he

wanted to raise were based on events that had occurred after he filed his original
Ross App. No. 14CA3445                                                                   8


complaint. Therefore, Rose could not supplement his complaint under Civ.R. 15(E) to

raise two new claims of breach of contract and Ohio Blue Sky Law violations based on

facts that were present when he filed his original complaint.

       {¶20} Second, insofar as Rose’s motion could have been considered a motion

for leave to amend it still was properly denied. Although Civ.R. 15(A) provides that

leave of court shall be freely given when justice so requires, there is no absolute or

unlimited right to amend a complaint. See, generally, Kinchen v. Mays, 8th Dist.

Cuyahoga No. 100672, 2014-Ohio-3325, ¶ 17. “Where a plaintiff fails to make a prima

facie showing of support for new matters sought to be pleaded, a trial court acts within

its discretion to deny a motion to amend the pleading.” Wilmington Steel Products, Inc.

v. Cleveland Elec. Illuminating Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991), syllabus;

Townsend v. Ohio Dept. of Transp., 10th Dist. Franklin No. 11AP-672, 2012-Ohio-2945,

¶ 34; Kinchen at ¶ 17. This requirement ensures that a proposed amendment is not a

delaying tactic or one which would cause prejudice to the opposing party. Darby v. A-

Best Products Co., 102 Ohio St.3d 410, 2004-Ohio-3720, 811 N.E.2d 1117, ¶ 20, citing

Wilmington Steel at 122.

       {¶21} Rose filed his motion to amend nearly two years after he filed his original

complaint and stated only that he requested “an amendment to the original complaint

relating to the operative facts pursuant to Civ.R. 15(E)” and “the addition of the

applicable Blue Sky Laws, including Defendant’s breach of contract.” He did not attach

a proposed amended complaint and did not specify the facts or evidence supporting the

addition of either of his new claims for relief. Under these circumstances, Rose did not

make a prima facie showing to support the new claims he wanted to raise. Therefore,
Ross App. No. 14CA3445                                                                   9


the trial court did not abuse its discretion by denying Rose’s motion to amend his

complaint.

                                     Motion to Compel

       {¶22} In his second contention Rose claims that the trial court erred in denying

his motion to compel discovery. Courts have broad discretion over discovery matters so

a reviewing court reviews these rulings only for an abuse of discretion. State ex rel.

Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27;

State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998)

(applying the abuse-of-discretion standard of review to a trial court’s denial of a motion

to compel discovery); Watson v. Highland Ridge Water & Sewer Assn., Inc., 4th Dist.

Washington No. 12CA12, 2013-Ohio-1640, ¶ 20.

       {¶23} In his motion and attached declaration Rose stated that Cochran, through

his trial counsel, provided evasive answers to interrogatories propounded by Rose and

that Cochran provided a defective affidavit with no jurat in the answers. However, Rose

did not attach the discovery he objected to or submit any evidence to support his

contentions. Consequently, the trial court denied his motion to compel discovery

because “there have been no documents provided to the court that discovery has been

requested or not provided by defendant.” Because there is nothing in the record that

supports Rose’s claims that Cochran provided evasive answers to interrogatories or a

defective affidavit with those answers, the trial court did not abuse its broad discretion in

denying his motion to compel discovery.

                                   Summary Judgment
Ross App. No. 14CA3445                                                                     10


       {¶24} In his third, fourth, and fifth contentions Rose challenges the propriety of

the trial court’s entry of summary judgment in favor of Cochran. Appellate review of

summary judgment decisions is de novo, governed by the standards of Civ.R. 56.

Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19.

Summary judgment is appropriate if the party moving for summary judgment establishes

that (1) there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one conclusion,

which is adverse to the party against whom the motion is made. Civ.R. 56; New Destiny

Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶

24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-

3484, ¶ 26.

       {¶25} The moving party has the initial burden, by pointing to summary judgment

evidence, of informing the trial court of the basis for the motion and identifying the parts

of the record that demonstrate the absence of a genuine issue of material fact on the

pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996);

Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-

moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts

showing that there is a genuine issue remaining for trial. Dresher at 293.

       {¶26} Rose claims that Cochran’s motion for summary judgment was premature

because Cochran did not timely file an answer to his complaint. Cochran counters that

because he did file an answer, he was entitled to file his motion for summary judgment

under Civ.R. 56(A), which authorizes a party seeking affirmative relief to “move for

summary judgment at any time after the expiration of the time permitted under these
Ross App. No. 14CA3445                                                                    11


rules for a responsive motion or pleading by the adverse party.” Both parties

erroneously cite Civ.R. 56(A) because Cochran was the defending party in the trial

court. Therefore, Civ.R. 56(B) applied, and because the case had not been set for

pretrial or trial, Cochran could “at any time, move with or without supporting affidavits for

a summary judgment in [his] favor as to all or any part of the claim[s].” Ogle v. Kroger

Co., 4th Dist. Hocking No. 13CA22, 2014-Ohio-1099, ¶ 17; King v. Rubber City

Archives, L.L.C., 9th Dist. Summit No. 25498, 2011-Ohio-2240, ¶ 30. Cochran timely

filed his motion for summary judgment in accordance with Civ.R. 56(B) and the trial

court properly considered it.

       {¶27} Next Rose claims that the trial court erred by considering materials outside

the complaint in contravention of this court’s ruling in his first appeal. Rose is incorrect.

That appeal involved a Civ.R. 12(B)(6) motion to dismiss and not a Civ.R. 56 motion for

summary judgment. Although a court cannot consider materials outside the complaint

in determining a Civ.R. 12(B)(6) without converting the motion to dismiss to a motion for

summary judgment, that same limitation does not apply when the court considers a

properly filed motion for summary judgment. See Civ.R. 56(C) detailing the evidence

that may be considered in a summary judgment determination.

       {¶28} Rose further contends that the trial court erred in granting summary

judgment in favor of Cochran because Cochran’s affidavit was defective in that it had

previously been filed in the case and did not include a specific date when it was

executed. Cochran refiled his affidavit, which he had originally submitted in support of

his motion to dismiss the complaint, and the affidavit stated that it was executed in

February 2011, but did not include a specific day. Rose cites no authority in support of
Ross App. No. 14CA3445                                                                       12


his proposition that an affidavit is defective and cannot be considered in a summary

judgment determination when it had previously been filed in the same action or does not

include a specific date when it was executed.

       {¶29} Civ.R. 56(E) sets forth the requirements for affidavits submitted in support

of or in opposition to a motion for summary judgment. Wesley v. Walraven, 4th Dist.

Washington No. 12CA18, 2013-Ohio-473, ¶ 24. Under Civ.R. 56(E), “affidavits shall be

made on personal knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify as to the

matters stated in the affidavit.” Cochran’s affidavit met these requirements. There are

no additional requirements that would automatically preclude an affidavit simply

because it was previously filed in the same or a different action or lacks a specific date.

Therefore, the trial court did not err insofar as it considered Cochran’s affidavit in its

summary judgment determination.

       {¶30} Next Rose claims that the trial court erred in granting Cochran summary

judgment. He contends that his affidavit and attached exhibits raised a genuine issue of

material fact. In his complaint Rose raised claims of insurance fraud under R.C.

2913.47, libel and slander, unjust enrichment, and fraud. Rose specifically concedes

that he did not state a claim for insurance fraud under R.C. 2913.47 or a claim for libel

and slander. And he does not specifically contend that the trial court erred in granting

summary judgment on his unjust enrichment claim. Instead, his argument is limited to

his claims of fraud, breach of contract, and violation of Ohio Blue Sky Laws. As noted

previously, these latter two claims were not properly before the trial court because the
Ross App. No. 14CA3445                                                                    13


trial court properly denied his motion to amend his complaint to add these new claims.

Therefore, the only remaining claim at issue is Rose’s claim of fraud.

       {¶31} A plaintiff must prove the following elements to establish fraud: “(1) a

representation (or concealment of a fact when there is a duty to disclose), (2) that is

material to the transaction at hand, (3) 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, and (4) with intent to mislead another into relying upon it, (5) justifiable

reliance, and (6) resulting injury proximately caused by the reliance.” Volbers-Klarich v.

Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 27;

Bear v. Bear, 9th Dist. Summit No. 26810, 2014-Ohio-2919, ¶ 23.

       {¶32} Rose’s fraud claim was based on the letter Cochran wrote to National

Western to terminate an annuity contract Cochran claimed had been set up by Rose.

Rose contended that he lost commission fees as an agent on the sale of the annuity

when National Western terminated it based on Cochran’s fraudulent misrepresentation.

But the uncontroverted summary judgment evidence established that the insurance

agent who signed Cochran’s application for the annuity was Robin Whiles, not Rose.

Therefore, harm caused by any alleged misrepresentation injured Whiles and not Rose.

“ ‘The elements of fraud must be directed against the alleged victim.’ ” See Wiles v.

Wiles, 10th Dist. Franklin No. 12AP-989, ¶ 33, quoting Moses v. Sterling Commerce

Am., Inc., 10th Dist. Franklin No. 02AP-161, 2002-Ohio-4327, ¶ 21. Consequently,

summary judgment was properly entered in favor of Cochran on Rose’s fraud claim.

       {¶33} The trial court did not err in entering summary judgment in favor of

Cochran. Nor did the trial court abuse its discretion in denying Rose’s motions to
Ross App. No. 14CA3445                                                                    14


amend his complaint and to compel discovery. We overrule Rose’s first assignment of

error.

                                B. Second Assignment of Error

                              Sanctions for Frivolous Conduct

         {¶34} In his second assignment of error Rose asserts that the trial court abused

its discretion by failing to impose sanctions for the misconduct of Cochran’s counsel.

Although Rose did not file a separate motion for sanctions, he requested sanctions for

Cochran’s attorney’s frivolous conduct pursuant to R.C. 2323.51 in his motions for

summary judgment and to strike Cochran’s memorandum in opposition to his motion for

summary judgment. We assume without deciding this was sufficient to raise such a

claim. See Charlie Asmus Family Farm, Inc. v. Haskins, 6th Dist. Wood No. WD-08-

050, ¶ 29, citing Buettner v. Bader, 6th Dist. Lucas No. L-97-1106, 1998 WL 30539

(Jan. 9, 1998) (“although the defendants did not file a separate motion for attorney fees

pursuant to R.C. 2323.51, by filing a counterclaim alleging frivolous conduct, the

defendants set forth a claim within the ambit of R.C. 2323.51 and the trial court,

therefore, had jurisdiction to award attorney fees on the basis of frivolous conduct”).

         {¶35} “R.C. 2323.51 provides for an award of attorney fees to a party harmed by

‘frivolous conduct’ in a civil action.” Moss v. Bush, 105 Ohio St.3d 458, 2005-Ohio-

2419, 828 N.E.2d 994, fn. 3. “The General Assembly vests the decision whether to

award sanctions, including an award of reasonable attorney fees, in the court.” State ex

rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 10; R.C.

2323.51(B)(1) (“The court may assess and make an award to any party to the civil

action or appeal who was adversely affected by frivolous conduct “). The trial court’s
Ross App. No. 14CA3445                                                                  15


decision whether to award sanctions under R.C. 2323.51 will not be reversed absent an

abuse of discretion. Striker at ¶ 11. Frivolous conduct subject to sanctions includes

conduct by a party’s counsel that “obviously serves to harass or maliciously injure

another party to the civil action or appeal or is for another improper purpose, including,

but not limited to, causing unnecessary delay or a needless increase in the cost of

litigation” or “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(A)(2)(a)(i) and (ii).

       {¶36} Rose claims that Cochran’s counsel engaged in misconduct by relying on

materials outside the complaint in support of his motion for summary judgment and for

relying on an undated and outdated affidavit. For the reasons previously discussed,

counsel was justified in relying on these summary judgment materials so he did not

commit misconduct in this regard.

       {¶37} Next Rose cites Cochran’s counsel’s statement in his memorandum in

opposition to his motion for summary judgment that “in the Plaintiff’s motion for

summary judgment Plaintiff makes a variety of statements and/or assertions, none of

which are supported by affidavit testimony or other evidence.” This statement

constitutes a fair assessment of Rose’s motion and is within the bounds of reasonable

argument, even though it is disputed by Rose. A party is not frivolous merely because a

claim or contention is not necessarily well-grounded in fact; the statute is not intended to

punish mere misjudgment or tactical error. See, generally, State ex rel. Verhovec v.
Ross App. No. 14CA3445                                                                    16

Marietta, 4th Dist. Washington Nos. 11CA29, 12CA52, 12CA53, 13CA1, and 13CA2,

2013-Ohio-5414, ¶ 47.

       {¶38} Finally, Rose cites Cochran’s counsel’s certification that he had served

Rose with a copy of his memorandum in opposition to Rose’s motion for summary

judgment by regular mail on February 17, 2014, when it was later disclosed that the

copy was not mailed until a week later. In Cochran’s memorandum in opposition to

Rose’s motion to strike the memorandum for improper service, however, Cochran

provided evidence by affidavit that a copy of the memorandum was indeed sent by

regular mail on February 17, but when it was returned for insufficient postage, the copy

was resent by regular mail with sufficient postage to Rose. We find no misconduct,

much less frivolous conduct, by Cochran’s trial counsel by the oversight in the initial

mailing. And because the memorandum was subsequently properly served, there is no

indication of any prejudice to Rose.

       {¶39} The trial court did not abuse its discretion by failing to impose sanctions

against Cochran’s trial counsel because Rose did not establish that he engaged in any

frivolous conduct. We overrule Rose’s second assignment of error.

                                    IV. CONCLUSION

       {¶40} The trial court properly entered summary judgment and did not abuse its

discretion by denying Rose’s motions to amend his complaint and compel discovery and

failing to impose sanctions against Cochran’s trial counsel. Having overruled Rose’s

assignments of error, we affirm the judgment of the trial court.

                                                                   JUDGMENT AFFIRMED.
Ross App. No. 14CA3445                                                                  17


                                   JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.




                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
