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March 5, 2026 Get Citation Alerts Download PDF Add Note

Mitchell Family Trust Fund v. Cole

Ohio Court of Appeals

• Citations: 2026 Ohio 744
• Docket Number: 115426

• Judges: Calabrese

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (97)

• PDF

Syllabus

Production of documents; depositions; corporate designee; motion to compel; motion to show cause; new arguments on appeal; summary judgment; de novo review; App.R. 9; Civ.R. 26; Civ.R. 34; Civ.R. 30; Civ.R. 30(B)(5); Civ.R. 37; Civ.R. 56(F); Civ.R. 56. Affirmed. The trial court's orders granting appellees' motions for summary judgment are affirmed because appellants demand a manifest-weight-of-the-evidence review. In addition, appellants did not properly raise discovery disputes with the trial court.

Combined Opinion

                        by [Anthony Orlando Calabrese Jr.](https://www.courtlistener.com/person/8063/anthony-orlando-calabrese-jr/)

[Cite as Mitchell Family Trust Fund v. Cole, 2026-Ohio-744.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MITCHELL FAMILY TRUST FUND,
ET AL., :

Plaintiffs-Appellants, :
No. 115426
v. :

BRIAN COLE, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-22-961536

Appearances:

Gino P. Zavarella, Jr., for appellants.

Lewis Brisbois Bisgaard & Smith LLP, and Daniel A.
Leister, for appellees.

DEENA R. CALABRESE, J.:

Plaintiffs-appellants Mitchell Family Trust Fund (“Mitchell Trust”) and

Spring Break, LLC (“Spring Break”) appeal the trial court’s orders granting

defendants-appellees Turoczy Bonding Company’s (“Turoczy”) and Brian Cole’s

(“Cole”) motions for summary judgment and the trial court’s oversight of discovery
disputes. The trial court’s orders are affirmed because Mitchell Trust and Spring

Break demand a manifest-weight-of-the-evidence review on the orders granting

summary judgment and because they did not properly raise the discovery disputes

before the trial court.

I. Relevant Facts and Procedural History

This case centers around the alleged trademark infringement of bail-

bond company names, and specifically the name and logo for “City Bonding,” in

Ohio and Michigan. On April 4, 2022, Mitchell Trust and Spring Break filed their

original complaint. On July 17, 2022, Mitchell Trust and Spring Break filed an

amended complaint alleging state and federal claims for trademark infringement,

unfair competition, and copyright infringement against Cole, Turoczy, and Demcas

LLC. The parties proceeded to engage in protracted litigation, including the filing of

cross-claims, counterclaims, a third-party complaint, discovery, and extensive

motion practice. On July 14, 2023, the trial court granted Demcas LLC’s motion for

summary judgment. On September 5, 2023, the trial court held a status conference

to schedule case-management dates and set the discovery cutoff date for December

29, 2023. On June 26, 2024, the trial court issued an amended case-management

schedule and set the discovery cutoff date for September 9, 2024.

Relevant to this appeal are Mitchell Trust and Spring Break’s two

discovery disputes with Turoczy and Cole. The first discovery dispute involved a

purchase agreement. Cole alleged that he purchased intellectual property rights,

including the name and logo for “City Bonding” in 2015 from Eddie Lee Legacy, Inc.
Cole produced a document in discovery related to the assignment of the intellectual

property purchased in 2015 but did not produce the purchase agreement. On July 9,

2025, the trial court held a pretrial where they indicated that the parties could not

rely on any documents in trial that were not produced to opposing parties in

discovery. Turoczy and Cole responded that they did not intend to produce the

purchase agreement in discovery but also did not intend to use the document at trial.

The second discovery dispute involved Mitchell Trust and Spring Break’s attempts

to depose Turoczy’s and Cole’s Civ.R. 30 (B)(5) designee, Pennie Johnson

(“Johnson”).

On April 11, 2025, Turoczy and Cole each filed motions for summary

judgment against Mitchell Trust and Spring Break. Both motions essentially

asserted that Mitchell Trust and Spring Break had no intellectual property rights to

the name “City Bonding.” On July 12, 2025, the trial court granted Cole’s motion for

summary judgment, and, on July 15, 2025, the trial court granted Turoczy’s motion

for summary judgment. This appeal stems, in part, from these orders.1

Mitchell Trust and Spring Break raise three assignments of error for our

review:

1. The trial court abused its discretion and committed reversible error by failing to enforce its own discovery order, thereby depriving appellants of due process.

1Mitchell Family Trust Fund v. Cole, 8th Dist. Cuyahoga No. 115340 is a
companion case to this appeal.
2. The trial court abused its discretion by permitting appellees to
obstruct critical discovery, then penalizing appellants for the resulting
delay.

1. The trial court’s judgment is against the manifest weight of the evidence as it rests on a factually and legally impossible chain of title.

II. Law and Analysis

As a preliminary matter, we note that Mitchell Trust and Spring Break’s

brief with this court includes attached exhibits. Pursuant to App.R. 9, the record on

appeal consists of the following:

The original papers and exhibits thereto filed in the trial court, the
transcript of proceedings, if any, including exhibits, and a certified copy
of the docket and journal entries prepared by the clerk of the trial court
shall constitute the record on appeal in all cases.

Further, “[t]his court cannot consider matters dehors the record.” Lisboa v. Lisboa,

2011-Ohio-351, ¶ 10 (8th Dist.), citing State v. Ishmail, 54 Ohio St.2d 402, 377

(1978). Therefore, we will consider the record prepared by the clerk of the trial court

and will not consider the attachments to Mitchell Trust and Spring Break’s brief with

this court.

A. Discovery Order

We address Mitchell Trust and Spring Break’s first and second

assignments of error together for ease of analysis because both involve discovery

disputes. In the first assignment of error, Mitchell Trust and Spring Break assert

that the trial court erred and abused its discretion when it did not enforce discovery

of its own discovery order. Mitchell Trust and Spring Break specifically sought

production of a purchase agreement from Turoczy and Cole. In the second
assignment of error, Mitchell Trust and Spring Break assert that the trial court

abused its discretion when it did not order the deposition of Johnson, Turoczy’s and

Cole’s Civ.R. 30 (B)(5) designee.

On appeal, discovery matters are reviewed for an abuse of discretion.

12312 Mayfield Rd., LLC v. High & Low Little Italy, LLC, 2024-Ohio-2717, ¶ 11 (8th

Dist.), citing Wall v. Ohio Permanente Med. Group Inc., 119 Ohio App.3d 654, 661

(8th Dist. 1997), citing Henneman v. Toledo, 35 Ohio St.3d 241, 243-246 (1988).

Civ.R. 26 governs the general scope of discovery, and states, in part, “[p]arties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s

claim or defense and proportional to the needs of the case . . . .” Civ.R. 26(B)(1).

Civ.R. 34 governs the production of documents. The rule states that

“any party may serve on any other party a request to produce and permit the party

making the request, or someone acting on the requesting party’s behalf . . . to inspect

and copy any designated documents . . . .” Civ.R. 34(A). The rule also sets out the

procedure for making a discovery request and sets a 28-day time limit for responses

to requests for discovery. Civ.R. 34(B) and (B)(1).

Civ.R. 30 governs depositions and states, in part, that “[a]fter

commencement of the action, any party may take the testimony of any person,

including a party, by deposition upon oral examination.” Civ.R. 30(A). The rule also

outlines the procedure for the deposition of a corporate designee as follows:

In its notice or subpoena, a party may name as the deponent a public
or private corporation, a partnership, an association, a limited liability
entity, a governmental agency, or other entity and shall describe with
reasonable particularity the matters for examination. The named
organization shall designate one or more officers, directors, or
managing agents, or designate other persons who consent to testify on
its behalf; and it may set out the matters on which each person
designated will testify.

Civ.R. 30(B)(5).

A party can ask the court to compel responses to discovery requests or

to order a deponent to appear for a deposition when a responding party does not

comply with a request for discovery. Civ.R. 37 governs motions to compel discovery

responses, and states, in relevant part, as follows:

(A) Motion for an order compelling discovery.

(1) In general. On notice to other parties and all affected persons, a
party may move for an order compelling discovery. The motion shall
include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make discovery
in an effort to obtain it without court action.

(2) Appropriate court. A motion for an order to a party or a
deponent shall be made to the court where the action is pending.

(Emphasis in original.) Civ.R. 37.

In this case, Mitchell Trust and Spring Break contend that the trial

court ordered Turoczy and Cole to produce the purchase agreement and to

collaborate regarding the deposition of Johnson, then did not enforce its own order.

This assertion is not supported by the record. First, Mitchell Trust and Spring Break

assert that the trial court’s February 10, 2025 entry ordered Turoczy and Cole to

produce “the purchase agreement for the assets they claimed to own.” (Appellants’

brief at pg. 6). It does not. Instead, the trial court’s February 10, 2025 order gives

the parties guidance regarding the upcoming settlement conference and trial,
including instructions regarding trial briefs, trial exhibits, jury instructions, and

motions in limine. The order does not address discovery.

On April 30, 2025, Mitchell Trust and Spring Break filed a motion to

compel and to show cause. The trial court never expressly overruled the April 30,

2025 motion, however, “motions that a trial court fails to explicitly rule upon are

deemed denied once a court enters final judgment.” Hopkins v. Greater Cleveland

Regional Transit Auth., 2024-Ohio-2265, ¶ 40 (8th Dist.), citing State v. Nikolic,

2020-Ohio-3718, ¶ 5 (8th Dist.).

In the April 30, 2025 motion, Mitchell Trust and Spring Break ask the

trial court to compel the production of “numerous documents” in compliance with

the trial court’s February 6, 2025 order. However, the trial court issued 13 entries

on February 6, 2025, and none of the entries include orders for Turoczy or Cole to

produce documents. Mitchell Trust and Spring Break’s motion to compel the

production of documents is a nullity because it relies on a nonexistent court order.

The April 30, 2025 motion is also captioned as a motion to show cause.

A motion to show cause is a means to escalate the enforcement of a discovery order.

It is a request asking a party to explain to the court why they have not followed a

court order and seeking sanctions against the opposing party for noncompliance.

However, it requires that there is a court order in place. See Civ.R. 37(B). In this

case, there was no court order for the parties to follow or for the trial court to enforce.

Lastly, Mitchell Trust and Spring Break’s April 30, 2025 motion to

compel and motion to show cause does not properly invoke Civ.R. 56(F). Mitchell
Trust and Spring Break contend that the trial court erred when it did not grant them

additional time pursuant to Civ.R. 56(F) to conduct discovery prior to responding to

the pending motions for summary judgment. However, the April 30, 2025 motion

does not mention or properly invoke Civ.R. 56(F). Civ.R. 56(F) provides:

Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated
present by affidavit facts essential to justify the party’s opposition, the
court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or discovery to be had
or may make such other order as is just.

To properly invoke Civ.R. 56(F), a party is required to file a motion for a continuance

and an affidavit pursuant to the subsection explaining its need for additional

discovery to obtain facts necessary to oppose the opposing party’s summary-

judgment motion. See Gurary v. John Carroll Univ., 2024-Ohio-3114, ¶ 28 (8th

Dist.). In this case, Mitchell Trust and Spring Break did not file a motion for a

continuance or an affidavit explaining its need for the purchase agreement or the

deposition of Johnson to oppose the motion for summary judgment. In fact, the

motion refers generally to a need for documents and does not mention the purchase

agreement. Because Mitchell Trust and Spring Break’s April 30, 2025 motion did

not comply with either of the requirements, it did not invoke Civ.R. 56(F).

Next, Mitchell Trust and Spring Break contend that the trial court

ordered production of the purchase agreement and collaboration for the deposition

of Johnson during a July 9, 2025 pretrial conference. A review of the pretrial

conference transcript reveals that third-party defendant Donnell Mitchell discusses

with the trial court his efforts to procure the purchase agreement during discovery
and to depose Johnson. However, Mitchell Trust and Spring Break did not request

a court order compelling discovery, and the trial court did not issue any orders

regarding the discovery sought. The trial court did note that a deposition of Johnson

was never properly noticed. In addition, the trial court’s July 12, 2025 entry

journalizing the pretrial conference does not include any orders related to the

production of the purchase agreement or the deposition of Johnson.

The trial court did not err or abuse its discretion when it did not order

Turoczy and Cole to produce the purchase agreement or for Johnson to appear for a

deposition for the simple reason that Mitchell Trust and Spring Break never

properly filed the requisite motions requesting these orders. Mitchell Trust and

Spring Break concede they did not file a motion to compel production of the

purchase agreement with the trial court. The record reveals that Mitchell Trust and

Spring Break did not file a notice of deposition pursuant to Civ.R. 30(B)(5) to depose

Johnson. This means that they did not file the appropriate motions seeking court

orders to enforce their discovery requests. In addition, and contrary to Mitchell

Trust and Spring Break’s assertion, the Ohio Rules of Civil Procedure do not task the

trial court with enforcing compliance with discovery requests sua sponte.

Because Mitchell Trust and Spring Break did not raise these issues

with the trial court, the first and second assignments of error present new arguments

that were not raised in the case below. “‘[A] party cannot present new arguments

for the first time on appeal that were not raised below. . . .’” Johnson v. State Farm
Mut. Auto. Ins. Co., 2024-Ohio-3187, ¶ 24 (8th Dist.), quoting State v. Moore, 2020-

Ohio-3459, ¶ 58 (8th Dist.).

For the reasons stated above, we find that Mitchell Trust and Spring

Break’s first and second assignments of error are without merit, and are therefore

overruled.

B. Summary Judgment

In the third assignment of error, Mitchell Trust and Spring Break

assert that the trial court’s judgment is against the manifest weight of the evidence

because it rests on a factually and legally impossible chain of title.

Ohio appellate courts “review summary judgment rulings de novo,

applying the same standard as the trial court.” Montgomery v. ExchangeBase, LLC,

2024-Ohio-2585, ¶ 47 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105 (1996). Here, Mitchell Trust and Spring Break demand a manifest-weight-

of-the-evidence review.

This court reviews an entry of summary judgment, not under a
manifest weight standard of review, but pursuant to the Civ.R. 56
standard set forth above. Hamilton v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 06AP-916, 2007-Ohio-1173, ¶ 10. A challenge to
summary judgment as against the manifest weight of the evidence is a
non sequitur because, on summary judgment, a court may not weigh
the evidence. Id., citing Tesco Real Estate, Inc. v. K-Y Residential,
Commercial & Indus. Dev. Corp. (Feb. 17, 1995), 11th Dist. No. 94-T-
5093, 1995 Ohio App. LEXIS 584. Thus, an appellate court may
summarily overrule assignments of error seeking reversal of
summary judgment based on the manifest weight of the evidence.
Hamilton at ¶ 10; Urbanek v. All State Home Mtge. Co., 178 Ohio
App.3d 493, 2008-Ohio-4871, ¶ 38, 898 N.E.2d 1015. Accordingly, we
overrule appellant’s first assignment of error.
(Emphasis added.) White v. Westfall, 2009-Ohio-4490, ¶ 9 (10th Dist.). See also

Lopez v. Dave’s Supermarket, 2003-Ohio-1350, ¶ 8 (8th Dist.) (“Because we do not

review the summary judgments under a ‘manifest weight’ standard, [appellant]’s

second assignment of error is overruled.”).

Because Mitchell Trust and Spring Break demand a manifest-weight-

of-the-evidence standard, the third assignment of error is overruled.

For the reasons stated above, the trial court’s order granting Turoczy’s

and Cole’s motions for summary judgment against Mitchell Trust and Spring Break,

as well as the trial court’s oversight of discovery matters, is affirmed.

It is ordered that appellees recover from appellants 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

common pleas 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.

DEENA R. CALABRESE, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR