[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-CV02375
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 PlaintiffAppellant’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-Ohio5819, ¶ 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