Mikes Handyman/HVAC Serv., L.L.C. v. DiFiore
CourtOhio Court of Appeals
Date FiledOctober 8, 2026
Docket116176
JudgeE.A. Gallagher
StatusPublished
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Full Opinion
[Cite as Mikes Handyman/HVAC Serv., L.L.C. v. DiFiore, 2026-Ohio-3967.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MIKES HANDYMAN/HVAC
SERVICE, LLC, :
Plaintiff-Appellant, :
No. 116176
v. :
JEFFREY DIFIORE, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 8, 2026
Civil Appeal from the Lyndhurst Municipal Court
Case No. CVF 2302348
Appearances:
L. Bryan Carr, for appellant.
Kenneth D. Myers, for appellee.
EILEEN A. GALLAGHER, J.:
Mikes Handyman/HVAC Service, LLC (“Mikes”) appeals the trial
court’s denial of its motion for attorney fees and sanctions. For the reasons that
follow, we reverse the decision of the lower court and remand the matter for a
hearing on Mikes’ motion.
Facts and Procedural History
This case concerns a breach of contract dispute between the parties
for services provided by Mikes to Jeffrey DiFiore (“DiFiore”) which were not paid as
agreed upon. The parties appealed to this court in Mikes Handyman-HVAC Serv.
LLC v. Difiore, 2025-Ohio-5345 (8th Dist.), regarding the damages awarded to
Mikes via summary judgment. A full recitation of the facts of the underlying
contract dispute can be found there. Id. at ¶ 2-11.
This appeal concerns the denial of Mikes’ motion for attorney fees and
sanctions which was filed on February 26, 2025. The basis of Mikes’ motion is that
the inordinate amount of filings and discovery requests filed by DiFiore, who
represented himself pro se, were done frivolously, without good ground, for delay
and to increase Mikes’ costs.
This was not Mikes’ first motion for attorney fees in response to
DiFiore’s filings. Mikes’ first request was made on March 13, 2024, in response to
DiFiore’s “objection to personal jurisdiction.” There, the magistrate issued a journal
entry, which the trial court adopted, holding the motion for attorney fees “in
abeyance until such a hearing is held on the merits.” The court stated that “if the
Plaintiff can provide evidence that Defendant’s Objections are frivolous and the
Defendant knows or should have known jurisdiction is proper the Court shall
consider an award of reasonable attorney fees after testimony has been provided.”
That hearing was not had before Mikes filed another motion
requesting attorney fees on June 25, 2024, with a motion for a protective order from
DiFiore’s abusive discovery requests that contained 96 requests for admissions, 46
requests for production of documents with subsets and 15 interrogatories. The trial
court granted the motion for protective order, in part, warning the defendant he
“may not use Discovery to annoy or harass a litigant[.]” The court also held:
The Motions for Attorney Fees shall be held in abeyance until such time
as the Court takes testimony as to the usual and customary time and
hourly rate that were expended on the pleadings and/or motions
second motion [sic] for attorney fees and sanctions.
This hearing on attorney fees was never held.
On August 12, 2024, the trial court issued a journal entry where the
court found that DiFiore had a “game plan” and his “intent was clear” that should
Mikes file suit, DiFiore would make litigation as time-consuming and expensive as
possible for Mikes. This strategy and threat were stated explicitly to Mikes in text
messages from DiFiore, which the court quoted. The court found there was evidence
that DiFiore acted on this threat since he had filed over ten pending motions or
objections. The court found that “Defendant’s pending motions are not supported
by law and fact. The Court finds that these filings were not filed with ‘good ground’
to support them but rather ‘for delay.’” The court then struck seven of DiFiore’s
filings “as sham and false” pursuant to Civ.R. 11.
Mikes filed a third motion for attorney fees on August 16, 2024.
Mikes included a fourth request for attorney fees in its motion for summary
judgment filed on September 27, 2024. The court granted summary judgment
without ruling on the request for attorney fees.
On January 28, 2025, Mikes filed a notice of pending motions with
the court. The trial court issued the following journal entry on February 12, 2025:
The Court is in receipt of Plaintiff’s “Notice of Pending Motions,’’ filed
01/28/2025. On 08/12/2024 the Court issued an order stating “Any
hearing on Plaintiff’s request for attorney’s fees will be placed on the
docket of [the judge].” The Court does not find a need for a hearing.
Accordingly, Plaintiff’s Motion for Attorney Fees filed 03/13/2024 and
06/25/2024 are DENIED.
Our review of the docket shows that no order, let alone this order, was issued on
August 12, 2024. Furthermore, the court did not issue this order on another date.
The court stated it did “not find a need for a hearing,” despite the prior orders above
stating a hearing would be held for the court to take testimony on the matter.
On February 26, 2025, Mikes filed yet another motion for attorney
fees and sanctions pursuant to Civ.R. 11 and R.C. 2323.51, which is the subject of
this appeal. After almost a year passed, with no ruling on the motion, Mikes filed
another notice of pending motion on February 3, 2026, which the court summarily
denied the same day.
Mikes now appeals raising the following sole assignment of error:
The trial court erred in denying the appellant’s motion for attorney fees
and sanctions pursuant to R.C. 2323.51 and Civil Rule 11.
Law and Analysis
Mikes argues on appeal that DiFiore’s filings were found by the trial
court to be frivolous and without merit as defined by Civ.R. 11 and R.C. 2323.51, such
that the trial court abused its discretion in denying its motion for attorney fees and
sanctions.
DiFiore argues that Mikes has waived this argument on appeal and
res judicata applies to this issue because Mikes did not appeal the trial court’s denial
of its earlier motions for attorney fees and sanctions. We find these issues of waiver
and res judicata do not apply here as Mikes is not appealing the denial of its earlier
motions and is instead appealing the denial of his February 26, 2025 motion which
would have included additional attorney fees incurred since the denial of its earlier
motions.
Pursuant to R.C. 2323.51 litigants seeking sanctions against
opponents for frivolous conduct are bound only by the following statutory deadline:
“[A]t any time not more than thirty days after the entry of final judgment in a civil
action or appeal, any party adversely affected by frivolous conduct may file a motion
for an award of court costs, reasonable attorney fees, and other reasonable expenses
incurred in connection with the civil action or appeal.” R.C. 2323.51(B)(1). As such,
Mikes was permitted to file his motion for attorney fees and sanctions after the final
judgment in this case, i.e., within 30 days after the court issued the final order
granting his summary judgment motion, which Mikes did.
DiFiore cites no case law to support his argument that Mikes’ appeal
of the trial court’s denial of its subsequent motion for attorney fees is barred by
waiver or res judicata. As such, we find no merit to this argument.
We now turn to Mikes’ assignment of error. Mikes’ motion for
attorney fees and sanctions was brought pursuant to R.C. 2323.51 and Civ.R. 11. A
decision to grant or deny sanctions under R.C. 2323.51 and Civ.R. 11 rests within the
sound discretion of the trial court and a reviewing court will not reverse a trial
court’s decision to grant or deny sanctions absent an abuse of discretion. MRN Ltd.
Partnership v. Gamage, 2023-Ohio-4541, ¶ 20 (8th Dist.). As stated in Shields v.
McCloud, 2026-Ohio-942, ¶ 13 (8th Dist.):
An abuse of discretion occurs when a court exercises “its judgment, in
an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah, 166 Ohio St. 3d 427,
2021-Ohio-3304, ¶ 35, 187 N.E.3d 463. The term abuse of discretion
implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 5 Ohio B.
481, 450 N.E.2d 1140 (1983).
“Attorney fees are generally not recoverable unless recovery is
authorized by statute or contract.” Rojas v. Rucker, 2025-Ohio-2777, ¶ 14 (8th
Dist.). Both R.C. 2323.51 and Civ.R. 11 allow for the imposition of sanctions against
a pro se litigant. Bikkani v. Lee, 2008-Ohio-3130, ¶ 29 (8th Dist.). Furthermore,
[u]nder Ohio law, pro se litigants are held to the same standard as all
other litigants: they must comply with the rules of procedure and must
accept the consequences of their own mistakes. Kilroy v. B.H.
Lakeshore Co. (1996), 111 Ohio App.3d 357, 363, 676 N.E.2d 171. The
mere fact that a party is pro se does not shield the party from the
imposition of sanctions when the party engages in frivolous
conduct. Burrell, supra. Indeed, a court’s refusal to hold a pro se
litigant to the same standard as an attorney who engages in frivolous
and egregious conduct would only defeat the purpose of R.C.
2323.51 and Civ.R. 11: to deter vexatious and harassing litigation.
Bikkani at ¶ 29.
While Ohio law provides two separate mechanisms for an aggrieved
party to recover attorney fees for frivolous conduct, they have separate standards of
proof and differ in application. Bikkani at ¶ 18.
In determining whether a pro se party’s conduct violates Civ.R. 11, the
trial court should consider whether the party signing the document: (1)
has read the document, (2) harbors good grounds to support the
document to the best of the person’s knowledge, information, and
belief, and (3) did not file the document for purposes of delay. Mitchell
v. Western Reserve Area Agency on Aging, 8th Dist. Nos. 83837 and
83877, 2004 Ohio 4353, P18.
If the pro se party fails to meet one of these requirements and the
failure was willful, as opposed to merely negligent, the person may be
subject to sanctions, including an award of reasonable attorney fees
and expenses incurred by the opposing party bringing any motion
under Civ.R. 11. Id. In deciding whether a violation was willful, the
trial court must apply a subjective bad faith standard.
Bikkani at ¶ 21.
Conversely, R.C. 2323.51 “applies an objective standard in
determining frivolous conduct, as opposed to a subjective one” and the finding of
frivolous conduct is determined without reference to what the individual knew or
believed. Bikkani at ¶ 22. R.C. 2323.51(A)(2)(a) defines “frivolous conduct” as
conduct that satisfies any of the following:
(i) It obviously serves merely 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.
(ii) It 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.
(iii) The conduct 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.
(iv) The conduct consists of denials or factual contentions that are not
warranted by the evidence or, if specifically so identified, are not
reasonably based on a lack of information or belief.
This statute was designed to chill egregious, overzealous, unjustifiable and frivolous
action and serves to deter abuse of the judicial process by penalizing sanctionable
conduct that occurs during litigation. Musial Offices, Ltd. v. Cuyahoga Cty., 2021-
Ohio-2325, ¶ 17 (8th Dist.). After a court finds frivolous conduct, the court must
also determine whether the frivolous conduct adversely affected the party moving
for attorney fees. Bikkani at ¶ 28.
“[T]his court has found that a trial court abuses its discretion when it
arbitrarily denies a motion for sanctions.” Ditech Fin. L.L.C. v. Kudroff, 2018-Ohio-
4422, ¶ 10 (8th Dist.), citing Bikkani; Lakeview Holding (OH), L.L.C. v. Haddad,
2013-Ohio-1796 (8th Dist.); see also Mitchell v. W. Res. Area Agency on Aging,
2004-Ohio-4353, ¶ 27 (8th Dist.). In Bikkani, this court held that a trial court
abuses its discretion by denying a motion for sanctions without a hearing if either
the “record clearly evidences frivolous conduct” or “an arguable basis exists for an
award of sanctions[]” pursuant to Civ.R. 11. Id. at ¶ 31. “[I]f an arguable basis exists
for an award of sanctions under Civ.R. 11, a trial court must hold a hearing on the
motion.” Bikkani at ¶ 31; Ditech at ¶ 14 (finding that the trial court erred by denying
the motion for sanctions without a hearing when the movant established an arguable
basis for awarding sanctions).
DiFiore argues the trial court did not abuse its discretion since the
imposition of sanctions and attorney fees was discretionary and is not mandated
merely because frivolous conduct is found. DiFiore also argues the trial court was
not required to hold a hearing on the motion. We find these arguments to be without
merit.
Here, the trial court very clearly determined that DiFiore’s conduct
violated Civ.R. 11 in its journal entry, that his motions were “not supported by law
and fact,” were not filed with ‘“good ground’ to support them” and were filed “for
delay.” The court struck the filings pursuant to Civ.R. 11 “as sham and false[.]” Even
DiFiore admits the trial court found a number of his filings to be frivolous. The trial
court also found DiFiore’s behavior was done purposefully and with intent to punish
Mikes for filing the lawsuit to make “litigation as time-consuming and expensive as
possible for [Mikes].” DiFiore’s subjective intent to file documents for the purpose
of delay was made clear in the text messages the court cited.
Furthermore, DiFiore’s conduct objectively qualifies as frivolous
under R.C. 2323.51(A)(2)(a)(i) and (ii) because it was obviously done merely and
explicitly to harass Mikes and cause unnecessary delay and to needlessly increase
the cost of litigation. Similarly, these motions were obviously not warranted under
existing law because they were stricken as false and sham.
Just as in Bikkani, the trial court here never held a hearing on Mikes’
request for attorney fees and costs “under R.C. 2323.51 and Civ.R. 11, despite the
overwhelming evidence of egregious conduct throughout the litigation. The record
clearly evidences frivolous conduct as well as an arguable basis to impose sanctions
under Civ.R. 11.” Bikkani at ¶ 32. Because the record clearly evidences frivolous
conduct and an arguable basis exists for an award of sanctions and attorney fees, we
find the trial court abused its discretion when it arbitrarily denied Mikes’ motion for
attorney fees and sanctions without a hearing. Id. at ¶ 31. The trial court even stated
several times it was going to hold a hearing for the motion on attorney fees and then
never did.
Accordingly, Mikes’ sole assignment of error is sustained.
Judgment is reversed and the matter is remanded for a hearing on
Mikes’ motion for attorney fees and sanctions.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Lyndhurst Municipal 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.
__________________________
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR