House of G.R.A.C.E. Residential Servs., L.L.C. v. C-8 Found., L.L.C.

[Cite as House of G.R.A.C.E. Residential Servs., L.L.C. v. C-8 Found., L.L.C., 2026-Ohio-3940.] IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT STARK COUNTY, OHIO HOUSE OF G.R.A.C.E. Residential Services, LLC Case Nos. 2026-CA-00015 2026-CA-00016 Plaintiff-Appellant Opinion And Judgment Entry Appeal from the Stark County Court of Common Pleas, Case No. 2024-CV- 02375 C8 FOUNDATION, LLC, ET AL. Judgment: Affirmed Defendants-Appellees Date of Judgment Entry: October 5, 2026 BEFORE: Craig R. Baldwin, Kevin W. Popham, and David M. Gormley, Judges APPEARANCES: Susan J. Lax, for Plaintiff-Appellant; William Kotar, for the C8 Appellees; Sherrie C. Massey, for the Canton City Appellees OPINION Popham, J., {¶1} Appellant House of G.R.A.C.E. Residential Services, LLC (“House of G.R.A.C.E.”) appeals the judgment of the Stark County Court of Common Pleas granting appellees’ motion to dismiss pursuant to Civ.R. 41(B)(1). Because we find no abuse of discretion in the trial court’s granting of the motion to dismiss, we affirm the trial court’s judgment.  Facts & Procedural History {¶2} House of G.R.A.C.E. and appellee C8 Foundation, LLC each provide services for individuals with developmental disabilities. Portage County Department of Job and Family Services (“JFS”) has custody of a non-party adolescent, S.R., who is a student at Canton City Schools. C8 was initially the provider for S.R., and House of G.R.A.C.E. subsequently became the provider. {¶3} In January 2024, S.R. refused to board the school bus. House of G.R.A.C.E. employees were involved in the incident. The school employees who witnessed the incident reported the House of G.R.A.C.E. employees to JFS for alleged abuse in their attempt to get S.R. onto the bus. As a result of those allegations, JFS temporarily placed S.R. with C8 on an emergency basis. S.R. was then placed with a non-party provider. {¶4} House of G.R.A.C.E. alleges that Canton City School employees made false statements to JFS that House of G.R.A.C.E. abused S.R. or otherwise failed to provide appropriate provider agency services. It further alleges that C8 employees made false representations during the investigation, which caused House of G.R.A.C.E. to lose its contract with JFS to provide services for S.R. {¶5} Accordingly, on December 11, 2024, House of G.R.A.C.E filed a complaint against C8, Jennifer Brumfield, and Courtney Brumfield (collectively “C8”), and against the Canton City School District, Theresa Vasquez, Iycayshia Shearer, Summer Garrison, and Denise Armstrong (collectively “CCSD”). House of G.R.A.C.E. asserted a defamation claim against all defendants, and a tortious interference claim against C8. {¶6} On March 2, 2025, the trial court held an initial pretrial and set the pertinent litigation dates, including a trial date of November 17, 2025. Upon a joint motion, on August 22, 2025, the court continued all dates in the case, including a trial continuance to February 23, 2026. {¶7} On November 8, 2025, House of G.R.A.C.E. filed a motion to continue all dates, including the trial date. On November 9, 2025, the trial court denied the motion. {¶8} Also on November 9, 2025, C8 and CCSD filed a joint motion to extend their dispositive motion deadline to December 15, 2025. The trial court granted the motion, extending only that deadline and no others. {¶9} On November 14, 2025, C8 and CCSD filed a joint motion to dismiss for failure to prosecute pursuant to Civ.R. 41(B)(1) and served it on counsel for House of G.R.A.C.E. by email the same day1. On December 9, 2025, C8 and CCSD filed a joint reply memorandum in support of their motion, again asking the court to dismiss the case under Civ.R. 41(B)(1). The reply specifically noted that House of G.R.A.C.E. had not yet responded to the motion. The reply was served on counsel for House of G.R.A.C.E. by email the day it was filed. {¶10} At 11:45 a.m. on December 16, 2025, the trial court granted appellees’ joint motion and dismissed the action with prejudice pursuant to Civ. R. 41(B)(1) for failure to prosecute. The court noted that House of G.R.A.C.E. failed to file any response to the motion. At 2:51 p.m. that day – December 16, 2025, after the case had been dismissed, House of 1 Pursuant to Civ.R. 6(C)(1), Appellant’s response to Appellees’ motion to dismiss was due within fourteen days after service of the motion, making Appellant’s response due Friday November 28, 2025. If the Stark County Clerk of Courts office was closed for a “legal holiday” on November 28, 2025, which was the day after Thanksgiving, or if the clerk’s office closed before its usual closing time on November 28, 2025, Appellant’s response was due no later than the next succeeding day which was not a Saturday, Sunday, or a legal holiday – making Appellant’s response due no later than Monday December 1, 2025. Civ.R. 6(A). Appellant could not avail itself of the additional 3-day response period under Civ.R. 6(D) because the certificate of service attached to Appellees’ motion to dismiss indicates that service of the motion was sent “via email only on this 14th day of November 2025.” In any event, as noted above, Appellant failed to meet the response deadline. G.R.A.C.E. filed “Plaintiff’s Verified Memorandum and Response in Opposition to the Defendants’ Joint Motion to Dismiss for Failure to Prosecute.” {¶11} C8 and CCSD moved to strike House of G.R.A.C.E.’s December 16 response, and the trial court granted the motion on January 6, 2026. {¶12} House of G.R.A.C.E. appeals both the December 16, 2025, and January 6, 2026, judgment entries of the Stark County Court of Common Pleas, and assigns the following as error: {¶13} “I. The trial court’s dismissal of the case with prejudice violated Civ.R. 41(B)(1) and due process because appellant was given no meaningful notice and was deprived of any real opportunity to be heard before the imposition of the harshest possible sanctions by the court.” {¶14} “II. The trial court erred procedurally by dismissing the case during active litigation, not recognizing that the delays were not caused by Plaintiff, but mostly by oversight within governmental entities not under Plaintiff’s control.” {¶15} “III. Whether the trial court abused its discretion by imposing the harshest and excessive sanction, without prior notice and no evidence of contumacious or recalcitrant conduct.” {¶16} “IV. Whether the trial court erred, having ordered the Defendants to file a Motion for Summary Judgment by December 15th, by treating a sanction-based case dismissal as equivalent to a merits-based summary judgment dispositive motion, thereby depriving appellant of required procedural safeguards.” {¶17} “V. Whether the trial court erred by improperly striking the Plaintiff- Appellant’s Verified Response to the Defendant’s Motion to Dismiss after the Court’s dismissal of the case with prejudice. The Response demonstrated active prosecution by the Plaintiff-Appellant and the striking of the Response further frustrated meaningful appellate review which compounded the trial court’s initial error.” I. & III. {¶18} Assignments of Error I and III are interrelated and will be addressed together, in which House of G.R.A.C.E. contends that the trial court abused its discretion in dismissing its case with prejudice. {¶19} Civ.R. 41(B)(1) provides, “where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.” {¶20} The decision to dismiss a case pursuant to Civ.R. 41(B)(1) is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Jones v. Hartranft, 78 Ohio St.3d 368, 371 (1997). An abuse of discretion is more than an error of law or judgment; it implies that the action of the trial court was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Notice {¶21} In its first and third assignments of error, House of G.R.A.C.E. contends that the trial court abused its discretion in granting the motion to dismiss because House of G.R.A.C.E. did not receive notice that dismissal with prejudice was a possibility. We disagree. {¶22} Due process requires that notice be given to a party who is in jeopardy of having its claims dismissed so that the party has one last chance to comply with the order or explain the default. Sazima v. Chalko, 86 Ohio St.3d 151, 155 (1999). This notice requirement applies to all dismissals with prejudice. Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986). “The purpose of notice is to provide the party in default an opportunity to explain the default or to correct it, or to explain why the case should not be dismissed with prejudice.” Logsdon v. Nichols, 72 Ohio St.3d 124, 128 (1995). {¶23} The Supreme Court of Ohio has held that, for purposes of Civ.R. 41(B)(1), counsel has notice of an impending dismissal with prejudice when counsel has been informed that dismissal is a possibility and has had a reasonable opportunity to defend. Quonset Hut, Inc. v. Ford Motor Co., 80 Ohio St.3d 46, 49 (1997). The notice need not be actual but may be implied if reasonable under the circumstances. Id. {¶24} In this case, the record demonstrates that counsel for House of G.R.A.C.E. received proper notice of the possibility of dismissal and had a reasonable opportunity to defend against the dismissal. {¶25} As this Court has held, a motion to dismiss pursuant to Civ.R. 41(B)(1) is sufficient to put counsel on notice that the case could be dismissed with prejudice. Fulmer v. West Licking Joint Fire Dist., 2014-Ohio-5843, ¶ 13 (5th Dist.); Ford v. Smith, 2018-Ohio-3751, ¶ 19 (5th Dist.). Thus, the motion to dismiss pursuant to Civ.R. 41(B)(1) filed by C8 and CCSD on November 14, 2025, and served on counsel for House of G.R.A.C.E. by email that same day, was sufficient to put House of G.R.A.C.E. on notice that dismissal with prejudice was a possibility. Additionally, C8 and CCSD filed a reply brief on December 9, 2025, noting that House of G.R.A.C.E. had not yet filed a response and again asking the court to dismiss the case pursuant to Civ.R. 41(B)(1). The reply was served on counsel for House of G.R.A.C.E. by email on December 9, 2025.  {¶26} House of G.R.A.C.E. was given a reasonable opportunity to respond to the motion or explain why the court should not grant the motion to dismiss, as the trial court did not grant the motion until eighteen days after the response deadline passed. {¶27} House of G.R.A.C.E. makes no argument in its appellate brief, and there is no evidence in the record, that its counsel was not served with the joint motion for dismissal, or appellees’ reply brief, each of which requested that the trial court dismiss the complaint pursuant to Civ.R. 41(B)(1). C8 and CCSD served the motion and reply by email on the same day they were filed. The trial court ruled on the motion thirty-two days after it was filed. We therefore find that House of G.R.A.C.E. was informed that dismissal with prejudice was a possibility, had a reasonable opportunity to defend against the dismissal and simply failed to timely do so. Conduct {¶28} House of G.R.A.C.E. also argues that dismissal with prejudice was too harsh a sanction and less drastic alternatives should have been employed under the circumstances. {¶29} In considering dismissals under Civ.R. 41(B)(1), a trial court may take into account the entire history of the litigation. Sazima, 86 Ohio St.3d at 158. However, “the extremely harsh sanction of dismissal should be reserved for cases when an attorney’s conduct falls substantially below what is reasonable under the circumstances evidencing a complete disregard for the judicial system or the rights of the opposing party.” Id. “In other words, dismissal is reserved for those cases in which the conduct of a party is so negligent, irresponsible, contumacious or dilatory as to provide substantial grounds for a dismissal with prejudice for a failure to prosecute or obey a court order.” Id. citing Quonset, 80 Ohio St.3d at 48, quoting Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632 (1992).  {¶30} In this case, the joint motion to dismiss was based upon House of G.R.A.C.E.’s conduct regarding discovery, specifically depositions. {¶31} On March 4, 2025, the trial court issued a “Magistrate’s Case Management Order” setting forth a discovery cutoff of August 15, 2025. On August 22, 2025, the court issued a “Judgment Entry Resetting Dates” that set a new discovery cutoff of October 31, 2025. To be sure, there is nothing in the record before us that House of G.R.A.C.E. was unaware of these discovery deadlines. {¶32} At the end of May 2025, counsel for C8 sent emails to the parties to begin scheduling depositions. Counsel for House of G.R.A.C.E. indicated by email that she was available for a deposition the afternoon of July 1, 2025. Accordingly, on June 16, 2025, C8 filed a “Notice to Take Rule 30(B)(5) Deposition of House of G.R.A.C.E. Residential Services, LLC Corporate Representative” scheduled for the afternoon of July 1, 2025. On June 18, 2025, counsel for House of G.R.A.C.E. sent an email informing the parties that neither counsel nor a corporate representative for House of G.R.A.C.E. was available for a deposition on July 1, 2025. {¶33} On June 20, 2025, C8 proposed via email nine alternative deposition dates in July. When counsel for House of G.R.A.C.E. did not respond to the email, on June 25, 2025, C8 revised its proposal to five available dates in July. On June 26, 2025, Counsel for House of G.R.A.C.E. stated that she “may” be available on July 23, 2025, but that her client had health issues and would not be available for over a month for the deposition. {¶34} On October 3, 2025, counsel for C8 proposed nine dates in October for depositions. Counsel for CCSD was available on eight of those dates. On October 8, 2025, Counsel for House of G.R.A.C.E. stated that she was unavailable on all the proposed dates in October. She generally asserted that she was short-staffed and, as a solo practitioner, did not have the “luxury” of numerous associate attorneys to assist her. However, in the same email correspondence, counsel for House of G.R.A.C.E. specifically proposed two dates in November for depositions: November 17 and November 21. On November 7, 2025, counsel for C8 filed a Civ.R. 30(B)(5) notice of depositions using those two dates, on which counsel for House of G.R.A.C.E. previously indicated she was available. On November 9, 2025, counsel for House of G.R.A.C.E. informed counsel for the other parties that she was unavailable for depositions on November 17 and 21 because of “Professional Development Seminars previously scheduled.” She also stated that she was unavailable on any other dates in November for depositions. C8 and CCSD filed their joint motion to dismiss several days later. {¶35} House of G.R.A.C.E. did not file a timely response to the motion to dismiss and thus presented no explanation to the trial court for its failure to proceed with discovery and depositions. This is not the case in which House of G.R.A.C.E. took immediate action after receiving notice pursuant to Civ.R. 41(B)(1). Fulmer v. West Licking Joint Fire Dist., 2014- Ohio-5843, ¶ 14 (5th Dist.). House of G.R.A.C.E. had from November 14, 2025, until the morning of December 16, 2025, to respond, or request an extension of time to respond, but failed to do so until after the trial court issued its dismissal order. {¶36} House of G.R.A.C.E. argues that the failure to schedule depositions resulted from the involvement of multiple attorneys and that neither C8 nor CCSD was prejudiced. We find this argument unavailing and that the trial court did not abuse its discretion in finding likewise.  {¶37} The trial court had already continued the trial and case management dates once. Despite that continuance and multiple deposition dates offered by counsel for C8 and CCSD, efforts to schedule depositions with counsel for House of G.R.A.C.E. were unsuccessful, despite the looming discovery deadline. Counsel for House of G.R.A.C.E. stated that she was available on two dates in November. However, once C8 noticed the depositions for those dates, counsel recanted – stating that she had previously scheduled continuing education seminars that she attended every year on those dates and was unavailable on any other dates in November. {¶38} Proposing and agreeing to schedule depositions on dates one knows one is unavailable because of a previously scheduled commitment is, at the very least, irresponsible, or negligent if the person failed to check for conflicts before proposing dates, or dilatory if the person proposed and agreed to the dates while aware of the conflict. See Quonset Hut, Inc., 80 Ohio St.3d at 48 (requiring either negligent, irresponsible, contumacious, or dilatory conduct when dismissing with prejudice for failure to prosecute). Further, House of G.R.A.C.E.’s actions surrounding the depositions prejudiced C8 and CCSD by affecting their ability to defend against allegations by House of G.R.A.C.E., fully litigate the case, and prepare dispositive motions. {¶39} Although we recognize that disposition of cases on their merits is favored and that dismissal with prejudice is a harsh sanction, we cannot say, based on the particular facts of this case, that the trial court abused its discretion in dismissing the complaint with prejudice. Nothing in the record suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. {¶40} House of G.R.A.C.E.’s first and third assignments of error are overruled.  II. {¶41} In its second assignment of error, House of G.R.A.C.E. contends that the trial court erred procedurally by dismissing the case during “active litigation,” and “failed to recognize” that the delays were not caused by House of G.R.A.C.E., but were mostly caused by a governmental entity not under House of G.R.A.C.E.’s control, i.e., the Portage County Board of Developmental Disabilities (“Portage DD”). {¶42} House of G.R.A.C.E. rests a portion of its argument for want of Portage County DD records. However, the record demonstrates that House of G.R.A.C.E. did not issue a subpoena to Portage County DD until August 21, 2025, more than eight months after it filed the complaint, and more than five months after the trial court issued the initial case management order, even though the records it sought related to an investigation that had concluded before the complaint was filed in December 2024 - paragraph 52 of the complaint provides: “the MUI allegations were later investigated and found unsubstantiated by the County DD Office.” No explanation was given for the delay in issuance of a subpoena for the Portage County DD records. {¶43} On August 25, 2025, the trial court ordered Portage DD to submit its records. House of G.R.A.C.E. asserts in its brief that it did not realize until November that Portage County DD failed to submit documents to the court. There is no indication why House of G.R.A.C.E. waited more than two months to check on the status of these documents, nor is there an explanation of why, according to its appellate brief, House of G.R.A.C.E. waited until December 9, 2025, to email the “correct” individual for further information about the documents. The delays in this case were attributable to House of G.R.A.C.E., which is particularly egregious given its awareness of the case management schedule.  {¶44} House of G.R.A.C.E.’s second assignment of error is overruled. IV. {¶45} In its fourth assignment of error, House of G.R.A.C.E. contends the trial court erred by treating a sanction-based dismissal as a merits-based dismissal, thereby depriving House of G.R.A.C.E. of procedural safeguards required under Ohio law, such as Civil Rule 56 notice, the right to submit evidentiary materials, the right to argue about genuine issues of material fact, and the right to have claims adjudicated on the merits. {¶46} First, House of G.R.A.C.E. contends that the trial court “ordered” C8 and CCSD to file a motion for summary judgment by December 15, 2025. The record does not reflect that the trial court ordered either C8 or CCSD to file a dispositive motion. Rather, the trial court extended the dispositive motion deadline for C8 and CCSD to December 15, 2025. {¶47} Further, we find no support in the record for House of G.R.A.C.E.’s argument that the trial court’s ruling represented any sort of “improper hybrid procedure.” The trial court did not convert the motion to dismiss into a motion for summary judgment. Accordingly, House of G.R.A.C.E. was not denied any procedural safeguards provided by Civil Rule 56, because no Civil Rule 56 motion was filed and the motion to dismiss was not converted into a motion for summary judgment. The trial court’s judgment entry clearly stated it was granting the motion to dismiss. {¶48} The procedural safeguard to which House of G.R.A.C.E. was entitled is found in Civ.R. 6(C)(1), as noted above in Fn. 1. C8 and CCSD filed a motion to dismiss and served House of G.R.A.C.E. with the motion on November 14, 2025. The trial court did not grant the motion until December 16, 2025, thirty-two days after the motion was filed. House of G.R.A.C.E. did not file a response or request an extension of time to file a response during those thirty-two days and only attempted to file a response after the case was dismissed. {¶49} We find the trial court did not improperly utilize a hybrid procedure or improperly convert the motion to dismiss to a motion for summary judgment. A review of the judgment entry demonstrates that the court granted the motion to dismiss pursuant to Civ.R. 41(B)(1) for failure to prosecute. House of G.R.A.C.E.’s fourth assignment of error is overruled. V. {¶50} In its fifth assignment of error, House of G.R.A.C.E. contends the trial court committed error in striking its “verified response” to the motion to dismiss because the response demonstrated “active participation” by House of G.R.A.C.E. and prevented the creation of a complete record addressing the alleged basis for dismissal. House of G.R.A.C.E. asks this Court either to consider its “verified response” in determining this appeal or to vacate the judgment entry of dismissal and remand the case with instructions that the trial court consider the “verified response.” {¶51} First, House of G.R.A.C.E. asks this Court to consider its “verified response,” filed after the trial court dismissed the case, which purportedly explains how House of G.R.A.C.E. actively participated in the case and why the standard for dismissal under Civ.R. 41(B)(1) was not met. We decline to do so. “A reviewing court cannot add matter to the record before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 405 (1978); Williams v. Williams, 2013-Ohio-5861, ¶ 12 (5th Dist.).  {¶52} Second, House of G.R.A.C.E. asks this Court to vacate the entry of dismissal, reverse the judgment entry granting the motion to strike, and instruct the trial court to consider the “verified response.” The Supreme Court of Ohio has held that, when a trial court unconditionally dismisses a case, “the trial court patently and unambiguously lacks jurisdiction to proceed ….” Page v. Riley, 85 Ohio St.3d 621, 623 (1999). {¶53} Here, because the case had already been dismissed with prejudice, the trial court was without authority to rule on any subsequent motion. Coyne v. Salvatore, 2002-Ohio- 5819, ¶ 109 (8th Dist.). For the same reason, the trial court lacked the authority to consider House of G.R.A.C.E.’s “verified response” to the motion. Thus, regardless of whether the trial court struck the response, it lacked jurisdiction to consider the response or otherwise act on it. Moreover, because the response was not before the trial court when it decided the motion to dismiss, which is the judgment entry on appeal, it is not properly before this Court. {¶54} Finally, even had the trial court wanted to, it could not, after dismissal, reconsider its judgment of dismissal based on House of G.R.A.C.E.’s “verified response” because the Ohio Rules of Civil Procedure do not permit a trial court to reconsider its valid final judgments. Pitts v. Ohio Dept. of Transp. 67 Ohio St.2d 378, 379 (1981). {¶55} Because both the “verified response” and motion to strike were filed after the case was dismissed, the trial court lacked jurisdiction to address or consider these filings, and we similarly lack jurisdiction to review them, House of G.R.A.C.E.’s fifth assignment of error is overruled.  {¶56} For the reasons stated in our Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. {¶57} Costs to Appellant House of G.R.A.C.E. By: Popham, J. Baldwin, P.J. and Gormley, J., concur