[Cite as Hofbauer v. Patel, 2026-Ohio-2507.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
MICHAEL HOFBAUER COURT OF APPEALS NO. {48}L-25-00281
APPELLANT TRIAL COURT NO. CI0202502931
V.
GITA U. PATEL, ET AL.
APPELLEES
DECISION AND JUDGMENT
Decided: June 30, 2026
***** Michael Hofbauer, pro se, appellant.
Paul-Michael LaFayette and Cori Agnoni, for appellees.
DUHART, J.
{¶ 1} Appellant pro se, Michael Hofbauer, appeals from a judgment of the Lucas
County Court of Common Pleas granting appellee Gita U. Patel’s Civ.R. 12(B)(6) motion
to dismiss and denying Hofbauer’s motion to amend his complaint. For the reasons that
follow, the trial court’s judgment is affirmed.
Statement of the Case and the Facts
{¶ 2} On August 8, 2025, Hofbauer filed a complaint against appellees, Gita U.
Patel and Groth & Associates, purporting to set forth causes of action for breach of contract, violation of privacy as to his medical information, disability discrimination
under the Americans with Disabilities Act (“ADA”), libel, “punitive damages,” and
injunctive relief.
{¶ 3} Within his 16-page complaint, Hofbauer detailed the history of an ongoing
juvenile court custody case in which he and his former spouse (the “Mother”) had been
negotiating Hofbauer’s visitation rights relative to their minor son. He alleged that
following a “relapse,” he and the Mother had an oral agreement that permitted Hofbauer
unsupervised visits with the child. He further alleged that following a period of successful
unsupervised visits, the Mother discontinued the visitation after “the dependent claim
issue was brought up” and the Mother “became upset claiming she wanted the tax
credits.” It was from there that juvenile court proceedings relative to visitation and
allocation of tax credits ensued. The Mother, who is not a party to the current lawsuit,
retained appellee Patel to represent her in those proceedings. Hofbauer named Patel’s
employer, Groth & Associates, as a defendant on the theory of vicarious liability.
{¶ 4} During the course of the juvenile court proceedings, Patel communicated a
proposed agreement to be entered into between Hofbauer and the Mother relative to
Hofbauer’s unsupervised visitation of the child predicated upon Hofbauer submitting to
drug testing. Believing the agreement was in place, Hofbauer submitted to drug testing
but when he went to pick up the child for visitation, the Mother refused the visitation.
Based on these facts, Hofbauer asserted his breach of contract claim against Patel.
{¶ 5} Hofbauer stated in the complaint that although the Mother was initially
responsible for the difficulties he encountered in the juvenile case, the “most liable”
2. parties were Patel and her law firm employer. Hofbauer claimed that, as the Mother’s
attorneys, appellants exercised control over the Mother’s conduct and, as a consequence
of that control, appellants were responsible for the Mother’s alleged breach of contract
regarding his unsupervised visitation with his son.
{¶ 6} In his ADA claim, Hofbauer alleged that the Mother abruptly halted his
unsupervised visits in retaliation for his inquiry about a past tax dependent claim that the
Mother had made. Hofbauer considered this to be discrimination against him because of
his status as a recovering addict, which is a protected status under the ADA.
{¶ 7} Hofbauer based his claims of libel and slander on disclosures that were made
to the court in the juvenile court proceedings. Specifically, he cited a representation that
Patel had made on the Mother’s behalf, via a motion to the juvenile court, regarding the
Mother’s concerns that Hofbauer would use the minor son’s social security number for
fraudulent purposes. Hofbauer claimed that Patel made the statement solely to defame
him to a third party, which in this case was a judge and/or magistrate in the juvenile court
case.
{¶ 8} In addition, Hofbauer asserted that the Mother “falsely alleged possible
substance abuse” and that, pursuant to court order, she was able to require Hofbauer to
submit to urine testing. Hofbauer alleged that the Mother’s false allegations should be
considered slander and defamation of character. Hofbauer asserted that Patel, through her
representation of the Mother and in motions filed as part of that representation, promoted
the alleged libel and defamation of character to the court and third parties.
3. {¶ 9} Hofbauer also complained that Patel took advantage of him during the
proceedings because he was acting in a pro se capacity. Hofbauer claimed that this
conduct was amounted to unprofessional conduct and ethics violations that deprived him
of his rights to due process, free speech and “access to the court,” and formed the basis of
his request for injunctive relief, including Patel’s disbarment. Among Hofbauer’s claims
of unprofessional conduct was a claim that Patel had attempted to “push off” the
responsibility of the Mother and her counsel with respect to visitation and negotiations
with “misleading information.”
{¶ 10} On September 11, 2025, Patel filed a motion to dismiss Hofbauer’s action
pursuant to Civ.R. 12(B)(6) for failure to state a claim. Thereafter, Hofbauer filed a
motion requesting leave to file an amended complaint and a motion to amend the
complaint.
{¶ 11} In his motion requesting leave to file an amended complaint, Hofbauer
claimed that the amendment would not alter the “overall scope” of the complaint, nor any
of its “reasonings or allegations.” Instead, he sought to correct the manner in which he
requested punitive damages because he had previously been unaware of how to properly
request them. With regard to the proposed addition, Hofbauer stated only that, after
further research of the case, he believed that Patel’s “misleading” played a critical role in
his overall damages and should therefore be considered a component to the complaint. He
claimed that the “misleading” affected his due process rights and was in violation of
“proper Attorney conduct and ethics.” No proposed amended complaint was attached to
the motion as required by Lucas County Court of Common Pleas Gen.R. 5.04(B).
4. {¶ 12} Finally, in his motion to amend, Hofbauer alleged that Patel’s “misleading”
concerning whose responsibility it was to negotiate visitations was “unethical and
irresponsible,” was “an abuse of the legal system,” and formed the basis for his punitive
damages request.
{¶ 13} The trial court granted Patel’s motion to dismiss and denied Hofbauer’s
motion to amend in an order and judgment entry journalized on November 5, 2025. In a
subsequent order and judgment entry, the trial court granted Groth & Associates’ motion
to dismiss. Hofbauer timely appealed.
Assignments of Error
{¶ 14} On appeal, Hofbauer asserts the following assignment of error:
I. The trial court erred as a matter of law by dismissing Appellant’s complaint where the complaint alleged sufficient operative facts to state cognizable claims for relief.
II. The trial court erred by failing to construe Appellant’s pro se pleadings fairly and by resolving factual inferences against the non-moving party.
III. The trial court erred by misapplying the doctrine of litigation privilege to bar claims that alleged tortious conduct and actions not categorically protected by privilege.
IV. The trial court abused its discretion by denying Appellant a meaningful opportunity to amend the complaint before terminating the action at the pleading stage.
5. Law and Analysis
Assignments of Error I, II, and III
{¶ 15} Hofbauer argues in his first assignment of error that he alleged sufficient
operative facts to state a cognizable claim for relief. He argues in his second assignment
of error that the trial court failed to construe his pleadings “fairly and by resolving factual
inferences against the non-moving party.” And he argues in his third assignment of error
that the trial court erred by misapplying the doctrine of litigation privilege to bar claims
that alleged tortious conduct and actions not categorically protected by privilege. Because
Hofbauer’s first three assignments of error involve overlapping issues related to the trial
court’s granting of Patel’s motion to dismiss under Civ.R. 12(B)(6), they will be
considered together in this analysis.
{¶ 16} An appellate court reviews a trial court’s decision to dismiss a complaint
under Civ.R. 12(B)(6) de novo. Veller v. K.B., 2025-Ohio-687, ¶ 18 (6th Dist.), citing
Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5. “To dismiss a complaint for failure to
state a claim, ‘it must appear beyond doubt that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to the relief sought.’” Veller at id.,
quoting Ohio Bur. of Workers’ Comp. v. McKinley, 2011-Ohio-4432, ¶ 12. (Additional
citation omitted.)
{¶ 17} In reviewing a Civ.R. 12(B)(6) motion, the appellate court presumes that
the complaint’s factual allegations are true and makes all reasonable inferences in the
nonmoving party’s favor. Veller at ¶ 19, citing Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192 (1988). But while we “assume the facts alleged in the complaint are true,
6. we do not assume the legal conclusions alleged to be drawn from those facts are also true
and disregard any unsupported conclusions included among the facts alleged in the
complaint.” STE Invests., LLC v. Macprep, Ltd., 2022-Ohio-2614, ¶ 14 (6th Dist.).
{¶ 18} “‘[A]s long as there is a set of facts, consistent with the plaintiff’s
complaint which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss.’” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,
2002-Ohio-2480, ¶ 29, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145
(1991). On the other hand, “‘neither the defendants nor the court is required to research
or discover every possible legal claim that may be supported by the facts.’” Veller at ¶ 21,
quoting Kramer v. Angel’s Path, LLC, 2007-Ohio-7099, ¶ 14 (6th Dist.).
{¶ 19} At the outset of our analysis, we note that Hofbauer asserts in his first
assignment of error only that the trial court “recharacterized [his] allegations, attributed
causation to non-parties, and resolved disputed factual matters adverse to [him].” He
makes no reference to the record, nor does he make any more specific claim.
{¶ 20} App.R. 12 (A)(2) states that an appellate court “may disregard an
assignment of error presented for review if the party raising it fails to identify in the
record the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A).”
{¶ 21} Similarly, App.R. 16(A)(7) requires an appellant's brief to include “[a]n
argument containing the contentions of the appellant with respect to each assignment of
error presented for review and the reasons in support of the contentions, with citations to
the authorities, statutes, and parts of the record on which appellant relies.”
7. {¶ 22} As indicated above, Hofbauer does not cite any legal authority in support of
his first assignment of error – not a single case, statute, or rule. “According to App.R.
12(A)(2) [an appellate court] may disregard an assignment of error if an appellant fails to
cite to any legal authority in support of an argument a required by App.R. 16(A)(7)[.]”
(Citations omitted.) Huffer v. Brown, 2013-Ohio-4384, ¶ 12 (10th Dist.).
{¶ 23} On these grounds alone, Hofbauer’s first assignment of error is properly
dismissed. Even if we were to consider his first assignment of error, we find that his
assertions of error are misplaced.
Breach of contract
{¶ 24} “A contract consists of an offer, acceptance, and consideration.” Fry v.
FCA US LLC, 2017-Ohio-7005, ¶ 17 (6th Dist.), citing Kostelnik v. Helper, 2002-Ohio-
2985, ¶ 16. (Additional citation omitted.) To succeed on a claim for breach of contract, a
plaintiff must establish that “(1) a contract existed, (2) one party fulfilled his obligations,
(3) the other party failed to fulfill his obligations, and (4) damages resulted from that
failure.” Quest Workforce Solutions, L.L.C. v. Job1USA, Inc., 2016-Ohio-8380, ¶ 40 (6th
Dist.), citing Blake Homes, Ltd. v. FirstEnergy Corp., 2007-Ohio-4606, ¶ 77 (6th Dist.).
{¶ 25} As the trial court indicated in its order and judgment entry, even most
liberally construed, Hofbauer’s allegations set forth no facts from which one could
reasonably infer the existence of a specific contract between himself and Patel, let alone
any breach. Instead, Hofbauer made mention in his complaint of an email that Patel had
sent, wherein she extended the Mother’s terms for proposed settlement:
8. Gita U Patel in an email to Michael Hofbauer proposed an agreement to be made concerning the minor child…. Dated 11-5-2024 10:38 A.M. It is as follows ‘Furthermore, my client is ready to agree to you having unsupervised visitations with [the child], on Sundays from 9:30am – 12:30pm only if you agree to provide negative drug tests within 24 hours of your visitation. The drug test must be performed the day before the visitation and my client will give you a 24 hour notice. The required drug test will not be every week, only when [the Mother] requests for a drug test to be produced. If you refuse to produce for a drug test or fail then unsupervised visitation will be terminated.’ – Gita U Patel
Reiterating the fact that any agreement was between himself and the Mother, and not
Patel, Hofbauer further alleged that “both parents verbally agreed to unsupervised visits
which was allowed and written into the court order to be allowed.”
{¶ 26} Thus, Hofbauer’s claimed breach of contract claim was predicated on the
Mother’s alleged breach of the alleged settlement agreement. We note that throughout the
complaint it was Hofbauer’s contention that it was the Mother, and not Patel, who
repeatedly interfered with his ability to have unsupervised visits with the child. He even
suggested the reason for this repeated interference was the Mother’s “retaliation” for
Hofbauer’s having raised in court the issue of the allocation of tax credits.
{¶ 27} Even presuming that the complaint’s factual allegations were true and
making all reasonable inferences in the nonmoving party’s favor, the allegations set forth
in the complaint plainly reflect that there was no contract between Hofbauer and Patel.
Accordingly, the trial court properly dismissed Hofbauer’s breach of contract claim
against Patel.
9. Libel and slander
{¶ 28} To establish a claim for defamation, a plaintiff must show “(1) that a false
statement of fact was made, (2) that the statement was defamatory, (3) that the statement
was published, (4) that the plaintiff suffered injury as a proximate result of the
publication, and (5) that the defendant acted with the requisite degree of fault in
publishing the statement.” (Citation omitted.) Speller v. Toledo Public Schools Bd. of Ed.,
2017-Ohio-7994, ¶ 51, quoting Dickinson v. Spieldenner, 2017-Ohio-667, ¶ 14 (6th
Dist.). Where an allegedly defamatory statement is made in a written pleading and bears
some reasonable relation to the judicial proceeding in which it appears, the doctrine of
absolute privilege precludes liability. Surace v. Wuliger, 25 Ohio St.3d 229, syllabus
(1986); see also Reister v. Gardner, 2020-Ohio-5484, ¶ 8, 10 (the litigation privilege
provides absolute immunity to parties, witnesses, lawyers, and judges from future
lawsuits for defamatory statements made during and relevant to judicial proceedings).
{¶ 29} Hofbauer’s complaint expressly alleged that the defamatory statements
attributed to Patel arose in written motions to the court in the underlying juvenile court
proceeding. Specifically, Hofbauer alleged that Patel made negative comments about him
“within a motion to the Judge and magistrate.” Inasmuch as it is undisputed that
Hofbauer’s claims of defamation arose out of Patel’s motions to the court and, thus, were
made in written pleadings in relation to the juvenile proceeding, the trial court properly
found that the doctrine of absolute privilege applied to Patel’s communications to the
court. Accordingly, the clear and unambiguous allegations of Hofbauer’s complaint,
10. taken as true, establish as a matter of law that Hofbauer failed to state a claim upon which
relief may be granted for libel or slander, and so dismissal was proper.
Invasion of privacy
{¶ 30} To succeed on a claim for invasion of privacy by publication of private
facts, a plaintiff must show “(1) the disclosure was public in nature; (2) the facts disclosed
concerned an individual's private life, not his public life; (3) the matter publicized would
be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4)
the publication was made intentionally, not negligently and (5) the matter publicized was
not of legitimate concern to the public. Villa v. Elmore, 2005-Ohio-6649, ¶ 38, citing
Early v. The Toledo Blade, 130 Ohio App.3d 302, 342, (1998), citing Killilea v. Sears,
Roebuck & Co., 27 Ohio App.3d 163, 166–167 (1985). In addition, the Supreme Court of
Ohio has held that consent is an absolute defense to an invasion of privacy claim.
Lunsford v. Sterilite of Ohio, L.L.C., 2020-Ohio-4193.
{¶ 31} In the case at bar, Hofbauer asserts a claim for invasion of privacy
predicated upon Hofbauer’s disclosure of urine screening to Patel. Specifically, Hofbauer
alleged that he “followed through [with the urine testing] and provided [Patel] with
confidential medical information,” but that “it was not used as intended for the
contractual purposes” -- that is, it was not used “to clarify and allow [Hofbauer] to have
visits.”
{¶ 32} Hofbauer acknowledges that he voluntarily submitted to urine screening as
part of the visitation agreement with the Mother. As such, he consented to the disclosure
of the urine screening. By Hofbauer’s own admissions throughout the complaint, the
11. issue of child visitation was central to the juvenile court proceedings. Accordingly, not
only did Hofbauer consent to the urine screening and the sharing of that information with
Patel, but the information produced was core to the court proceedings relative to the issue
of custody. In addition, Hofbauer failed to allege any publication of the information to
any third party. Under these circumstances, Hofbauer’s consent is a complete bar to his
claim of invasion of privacy. Thus, the clear and unambiguous allegations of Hofbauer’s
complaint, taken as true, establish as a matter of law that Hofbauer failed to state a claim
for invasion of privacy upon which relief may be granted, and so dismissal was proper.
ADA discrimination
{¶ 33} Both the ADA and Ohio’s civil rights statutes under R.C. Chapter 4112
broadly protect individuals with physical and mental disabilities from discrimination. In
his complaint, Hofbauer asserted a claim of ADA discrimination against non-party the
Mother. Specifically, he alleged that the Mother abruptly halted his unsupervised visits in
retaliation for his inquiry about a tax dependent claim that the Mother had made.
Hofbauer considers this to be discrimination against him because of his status as a
recovering addict, which is a protected status under the ADA. In making these
allegations, Hofbauer fails to state a cause of action under the ADA against Patel, whom
he acknowledges was nothing more than the Mother’s legal counsel. Once again, the
clear and unambiguous allegations of Hofbauer’s complaint, taken as true, establish as a
matter of law that Hofbauer failed to state a claim under the ADA upon which relief may
be granted, and so dismissal was proper.
12. Vicarious liability
{¶ 34} Hofbauer’s claims against appellee Groth & Associates, by his own
admission, are predicated solely upon the theory of vicarious liability. An employer may
be vicariously liable for an employee’s tort under the doctrine of respondeat superior.
Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 2009-Ohio-3601, ¶ 20, citing
Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438 (1994).
(Additional citation omitted.) Liability depends on the employer’s control over the
employee. Natl. Union at id., citing Hanson v. Kynast, 24 Ohio St.3d 171, 173 (1986).
But in order for liability to extend to the employer, the employee must first be liable for a
tort committed within the scope of her employment. Natl. Union at ¶ 23. Thus, if there is
no underlying employee liability, there can be no employer liability.
{¶ 35} Because the trial court properly dismissed the claims against Patel as there
is no liability against her, the trial court properly dismissed Hofbauer’s vicarious liability
claim against Groth & Associates. Thus, the clear and unambiguous allegations of
Hofbauer’s complaint, taken as true, establish as a matter of law that Hofbauer failed to
state a vicarious liability claim upon which relief may be granted, and so dismissal was
proper.
{¶ 36} For the foregoing reasons, Hofbauer’s first, second, and third assignments
of error are found not well-taken.
Assignment of Error IV
{¶ 37} Hofbauer argues in his fourth assignment of error that the trial court abused
its discretion by denying him a meaningful opportunity to amend his complaint before
13. terminating his action at the pleading stage. The law is clear that “[a] trial court’s denial
of a motion for leave to amend a pleading will not be reversed absent an abuse of
discretion.” Musil v. Gerken Materials, Inc., 2020-Ohio-3548, ¶ 23 (6th Dist.). Abuse of
discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 38} Under Civ.R. 15(A), “A party may amend its pleading once as a matter of
course within twenty-eight days after serving it…. In all other cases, a party may amend
its pleading only with the opposing party's written consent or the court's leave. The court
shall freely give leave when justice so requires.”
{¶ 39} A motion to amend should be refused if there is a showing of bad faith,
undue delay, or undue prejudice to the opposing party. Musil at ¶ 25, citing Leo v. Burge
Wrecking, LLC, 2017-Ohio-2690, ¶ 10 (6th Dist.). “‘Factors for the trial court to consider
include whether the movant makes a prima facie showing of support for the new matters
sought to be pleaded, the timeliness of the motion, and whether the proposed amendment
would prejudice the opposing party.’” Musil at id., quoting Frankel v. Toledo Pub.
Schools, 2015-Ohio-1571, ¶ 16 (6th Dist.), citing Wilmington Steel Prods., Inc. v.
Cleveland Elec. Illuminating, 60 Ohio St.3d 120 (1991).
{¶ 40} “‘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.’” Frankel at ¶ 16, quoting Wilmington Steel. “This requirement
ensures that a proposed amendment is not a delaying tactic or one which would cause
prejudice to the opposing party.” State ex rel. Jeffers v. Athens Cty. Comm’r., 2016-Ohio-
14. 8119, ¶ 64 (4th Dist.), citing Darby v. A–Best Products Co., 2004–Ohio–3720, ¶ 20,
citing Wilmington Steel at 122. Where the motion to amend follows the filing of a
dispositive motion, the timing of a motion to amend can raise the “spectre of prejudice.”
See, e.g., Frankel at ¶ 18.
{¶ 41} Here, the trial court began its analysis by noting that no proposed amended
complaint was attached to Hofbauer’s motion as required by local rule. See Lucas County
C.P. Gen.R. 5.04(B) (“A motion seeking leave to amend a pleading shall include a copy
of the proposed amended pleading.”) In addition, the trial court noted that Hofbauer filed
his motion to amend following the filing of Patel’s motion to dismiss and so potentially
raised the spectre of prejudice. Further, the trial court determined that Hofbauer’s
proposed reframed request for punitive damages did not amount to a new cause of action
and, further, would be futile, inasmuch as Hofbauer “premise[d] such damages on his
other causes of action.” The trial court explained:
Plaintiff’s Complaint fails to state any cause of action upon which he can recover from Defendant. The deficiencies do not merely rest on pleading ‘mistakes,’ technicalities, or lack of sufficient factual allegations. Where an amendment to the complaint would be futile, it is not an abuse of the trial court’s discretion to deny the motion. See, e.g., Hogrefe v. Mercy St. Vincent Med. Ctr., 2014-Ohio-2687, ¶ 67 (6th Dist.)
{¶ 42} Finally, the trial court determined that Hofbauer’s other basis for
amendment -- “that ‘Defendant’s “misleading” played a critical role in [his] overall
damages’” -- was vague and offered no support for any new matters he wished to plead.
{¶ 43} On these grounds, the trial court concluded that “even the most liberal
construction of Civ.R. 15(A)” led it to deny the motion to amend.
15. {¶ 44} Upon this record, we cannot say that the trial court acted arbitrarily,
unreasonably, or unconscionably when it denied Hofbauer’s motion for leave to amend.
Accordingly, Hofbauer’s fourth assignment of error is found not well-taken.
Conclusion
{¶ 45} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
Thomas J. Osowik, P.J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
16.