[Cite as Oehler v. McAdams, 2019-Ohio-1976.]


STATE OF OHIO                   )                   IN THE COURT OF APPEALS
                                )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

SCOTT N. OEHLER                                     C.A. No.     28903

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
PAT MCADAMS, et al.                                 COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellees                                   CASE No.   CV-2016-03-1490

        and

DANIEL S. WHITE

        Appellant

                               DECISION AND JOURNAL ENTRY

Dated: May 22, 2019



        SCHAFER, Presiding Judge.

        {¶1}    Appellant, Attorney Daniel S. White, appeals the judgment of the Summit County

Court of Common Pleas granting sanctions against him. For the reasons that follow, we affirm.

                                               I.

        {¶2}    Defendants-Appellees, Pat and Rebecca McAdams (“the McAdamses”), and

Plaintiff-Appellee, Scott Oehler, entered into a real estate purchase agreement. The record

shows that the McAdamses purchased the property at issue as an investment and that, during the

approximately eight months they owned the property, never lived there. The McAdamses made

various repairs and improvements to the property before selling it to Mr. Oehler in March 2015,

including the replacement of a downspout pipe with a perforated pipe and the addition of gravel
                                                2


and grading around the property. Mr. McAdams also painted the basement with an oil based

primer, which was not designed to resist moisture or seal the block.

       {¶3}    The parties entered into a real estate purchase agreement that provided that Mr.

Oehler would purchase the property in its “as is” condition contingent upon his good faith

satisfaction with the results of a home inspection. The McAdamses indicated on the residential

disclosure form which they provided to Mr. Oehler that they were not aware of any previous or

current water leakage, water accumulation, excess moisture, or other defects to the property and

denied any knowledge of any previous or current flooding, drainage, settling or grading or

erosion problems on the property. The McAdamses did, however, disclose on the form that there

had previously been a brick veneer on the front of the home that allowed water to run behind and

enter the foundation. Mr. Oehler hired a home inspector to perform a general home inspection

which indicated no detection of moisture in the basement of the property or any relevant issues.

       {¶4}    After a few months of owning the property with no issue, Mr. Oehler experienced

a flooding event in the basement following an unusually heavy rainfall for several days. Mr.

Oehler subsequently contacted several basement waterproofing companies in an effort to

remediate the issues caused by the water intrusion. Ohio State Waterproofing provided Mr.

Oehler with an estimate to install a water-proofing system in the basement which was the highest

of all the estimates Mr. Oehler received and almost twice as much as the lowest estimate.

Although no subsequent flooding event occurred at the property, Mr. Oehler hired Ohio State

Waterproofing to install a water-proofing system more than six months later.

       {¶5}    Mr. Oehler thereafter filed the complaint in this matter, through Attorney White,

alleging fraudulent disclosure, fraudulent inducement, and mutual mistake of fact.            The

complaint sought damages related to the installation of a water-proofing system in the basement
                                                3


of the property. The McAdamses answered the complaint and the matter proceeded through the

pretrial process. The McAdamses issued discovery requests and deposed both Mr. Oehler and an

Ohio State Waterproofing foreman. Attorney White did not issue any discovery on behalf of his

client prior to the discovery deadline nor did he depose the McAdamses or their expert.

       {¶6}    The McAdamses eventually filed a motion for summary judgment on all of Mr.

Oehler’s claims.    Mr. Oehler responded to the motion through Attorney White and the

McAdamses thereafter filed a response in support of their motion. The trial court ultimately

granted the McAdamses’ motion, entering judgment in their favor and against Mr. Oehler on all

claims in the complaint. In doing so, the trial court determined that Mr. Oehler could point to no

evidence that any water infiltration had occurred prior to the sale other than that which the

McAdamses disclosed on the property disclosure form. The trial court further found that Mr.

Oehler had failed to establish that any defects related to water or mold existing prior to the sale

of the property or the June flooding event. Finally, the trial court found that Mr. Oehler had

failed to present any evidence that the McAdamses were aware of any prior instances of water

intrusion or damage, let alone that the McAdamses had concealed such defects and/or

intentionally misled Mr. Oehler about any such defects.

       {¶7}    The McAdamses thereafter filed a motion for sanctions, pursuant to R.C. 2323.51

and Civ.R. 11, asserting that they were entitled to an award of reasonable attorney fees and costs

incurred for opposing the frivolous filing and prosecution of the lawsuit, specifically stating the

following:

       Attorney White and Mr. Oehler filed and prosecuted this suit knowing that their
       allegations were without evidentiary support and not warranted under existing law.
       McAdamses’s [sic] counsel believes that the suit was filed as part of an assembly line
       process developed by Attorney White and his expert witness, Ohio State Waterproofing *
       * *, without regard to the merits of this case.
                                                  4


Mr. Oehler, through Attorney White, argued in his response that sanctions were not appropriate

in this matter. At the sanctions hearing, the McAdamses elicited testimony from both Attorney

White and Mr. Oehler. Attorney White did not present any testimony.

       {¶8}    The trial court ultimately determined that Attorney White had engaged in

frivolous conduct when he initiated and maintained the litigation in this case and granted the

McAdamses’ motion for sanctions, determining that an award of attorney fees was appropriate.

The trial court then set the matter for a hearing to determine the amount of the award.

Thereafter, Attorney White filed a motion for leave to withdraw as counsel for Mr. Oehler, citing

Mr. Oehler’s request that Attorney White no longer represent him in this matter. Although the

trial court granted Attorney White’s motion, the court stated in its order both Attorney White and

Mr. Oehler were still required to attend the later hearing.

       {¶9}    The trial court subsequently ordered that the matter be assigned to a magistrate for

resolution and disposition. Following the hearing on sanctions, the magistrate issued a decision

finding that damages should be awarded against Attorney White only for his actions and not

against Mr. Oehler. The magistrate further found that the McAdamses were entitled to an award

of $37,185.89 consisting of attorney fees and expenses incurred as a result of litigating the

present matter as a result of Attorney White’s frivolous conduct. The trial court thereafter

adopted the magistrate’s decision and rendered judgment in favor of the McAdamses and against

Attorney White in the amount of $37,185.89.

       {¶10} Attorney White filed this timely appeal, raising three assignments of error for our

review. As assignments of error two and three raise similar issues, we elect to address them

together.
                                                 5


                                                 II.

                                      Assignment of Error I

       The trial court’s decision to grant [the McAdamses]’ motion for sanctions
       against [Attorney White] constitutes reversible error.

       {¶11} In his first assignment of error, Attorney White contends that the trial court erred

in granting sanctions against him. Specifically, Attorney White argues that his conduct was not

frivolous because (1) he has successfully represented a number of home buyers who had been

damaged by a seller’s failure to appropriately disclose problems with the purchased property; (2)

a good faith argument was made concerning the issues in this case; (3) there was no evidence of

malice or willfulness and his conduct in this case was not meant to harass or maliciously injure;

(4) evidence was presented to support the allegations in the complaint; (5) the grant of summary

judgment in favor of the sellers and against the buyers is not sufficient to show frivolous

conduct; and (6) the trial court’s grant of summary judgment in this case was improper and

ignored significant repairs made to the home by the sellers.

       {¶12} Although the McAdamses sought sanctions against Attorney White pursuant to

Civ.R. 11 and R.C. 2323.51, the trial court’s decision and award were made pursuant to R.C.

2323.51 only. Pursuant to R.C. 2323.51(B), a court may award court costs, reasonable attorney

fees, and other reasonable expenses to any party adversely affected by frivolous conduct incurred

in connection with a civil action. “‘Conduct’          means * * * [t]he filing of a civil action, the

assertion of a claim, defense, or other position in connection with a civil action, the filing of a

pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper

filed for discovery purposes, or the taking of any other action in connection with a civil action[.]”

R.C. 2323.51(A)(1)(a). “Frivolous conduct” is defined as follows:
                                                6


       (a) Conduct of [a] * * * party to a civil action * * * that satisfies any of the
       following:

       (i) It obviously serves merely to harass or maliciously injure another party to the
       civil action or appeal or is for another improper purpose, including, but not
       limited to, causing unnecessary delay or a needless increase in the cost of
       litigation.

       (ii) It is not warranted under existing law, cannot be supported by a good faith
       argument for an extension, modification, or reversal of existing law, or cannot be
       supported by a good faith argument for the establishment of new law.

       (iii) The conduct consists of allegations or other factual contentions that have no
       evidentiary support or, if specifically so identified, are not likely to have
       evidentiary support after a reasonable opportunity for further investigation or
       discovery.

       (iv) The conduct consists of denials or factual contentions that are not warranted
       by the evidence or, if specifically so identified, are not reasonably based on a lack
       of information or belief.

R.C. 2323.51(A)(2)(a). “‘R.C. 2323.51 does not purport to punish a party for failing on a claim.

Rather, it addresses conduct that serves to harass or maliciously injure the opposing party in a

civil action or is unwarranted under existing law and for which no good-faith argument for

extension, modification, or reversal of existing law may be maintained’” Harold Pollock Co.,

LPA v. Bishop, 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 19, quoting Indep.

Taxicab Assn. of Columbus v. Abate, 10th Dist. No. 08AP-44, 2008-Ohio-4070, ¶ 22. “Frivolous

conduct, as contemplated by R.C. 2323.51(A)(2)(a), is judged under an objective, rather than a

subjective standard, * * * and must involve egregious conduct.” State ex rel. DiFranco v. City of

S. Euclid, 144 Ohio St.3d 571, 2015-Ohio-4915, ¶ 15, citing State ex rel. Strikler v. Cline, 130

Ohio St.3d 214, 2011-Ohio-5350, ¶ 21.

       {¶13} The analysis      of a claim pursuant to R.C. 2323.51(A)(2) “boils down to a

determination of (1) whether an action taken by the party to be sanctioned constitutes ‘frivolous

conduct,’ and (2) what amount, if any, of reasonable fees necessitated by the frivolous conduct is
                                                7


to be awarded to the aggrieved party.” P.N. Gilcrest Ltd. Partnership v. Doylestown Family

Practice, Inc., 9th Dist. Wayne No. 10CA0035, 2011-Ohio-2990 at ¶ 32. This Court’s standard

of review is subject to which part of the analysis is at issue on appeal. Flint v. Flint, 9th Dist.

Lorain No. 15CA010895, 2016-Ohio-5279, ¶ 7. “A trial court’s award of attorney fees under

R.C. 2323.51 is generally reviewed under an abuse of discretion standard, but the trial court’s

factual finding that frivolous conduct occurred will be affirmed if supported by competent

credible evidence in the record.” Eastwood v. Eastwood, 9th Dist. Summit No. 25310, 2010-

Ohio-6492, ¶ 12, citing S & S Computer Systems, Inc. v. Peng, 9th Dist. Summit No. 20889,

2002-Ohio-2905, ¶ 9.

       {¶14} Although the trial court did not specify the subsection of R.C. 2323.51(A)(2)(a)

upon which it based its finding of frivolous conduct, its findings appear to implicate only

subsections (i), (iii), and (iv).   The trial court determined that Attorney White engaged in

frivolous conduct pursuant to R.C. 2323.51(A)(2) when he initiated and maintained the litigation

at issue below after making the following factual findings. First, the trial court found that the

defects and substantial repairs referenced in Mr. Oehler’s response to the motion for sanctions

were not required disclosures and were unrelated to the allegations in the complaint, the

flooding, or the damage cause by water infiltration. Second, the court found that Attorney White

did not sufficiently address the manner in which he receives referrals from Ohio State

Waterproofing in order to dispel the evidence of collaboration. Third, the court found that

Attorney White had not substantiated his claim that he has obtained favorable verdicts in wet

basement cases with facts and evidentiary support similar to the present action. Finally, the court

found that Attorney White did not satisfactorily explain his failure to complete deposition

discovery in this matter.
                                                   8


         {¶15} In their motion for sanctions, the McAdamses alleged that Attorney White and

Ohio State Waterproofing filed and prosecuted this suit knowing that their allegations were

without evidentiary support and not warranted under existing law and that was their counsel’s

belief “that the suit was filed as part of an assembly line process developed by Attorney White

and his expert witness, Ohio State Waterproofing * * * , without regard to the merits of the

case.” The complaint in this matter alleges that the McAdamses made fraudulent representations

concerning the property fraudulent inducement, fraud, and mutual mistake of fact. The elements

of fraud are:

         (a) a representation or, where there is a duty to disclose, concealment of a fact, (b)
         which is material to the transaction at hand, (c) made falsely, with knowledge of
         its falsity, or with such utter disregard and recklessness as to whether it is true or
         false that knowledge may be inferred, (d) with the intent of misleading another
         into relying upon it, (e) justifiable reliance upon the representation or
         concealment, and (f) resulting injury proximately cause by the reliance.

Ponder v. Culp, 9th Dist. Summit No. 28184, 2017-Ohio-168, ¶ 11. Despite alleging that the

McAdamses had made fraudulent representations to Mr. Oehler and carrying the burden to prove

such allegations, Attorney White made no effort to issue timely discovery requests or to depose

the McAdamses or their identified expert. During the discovery process, the McAdamses issued

a discovery request asking what evidence Mr. Oehler had to support his claims. Mr. Oehler

responded that he was relying on the fact that the McAdamses had painted the basement and an

expert report generated by an Ohio State Waterproofing foreman that stated, in his opinion, the

water intrusion issues did not happen overnight. Mr. Oehler specifically stated during his

deposition that his belief that Mr. McAdams had prior knowledge of water intrusion was based

on the flooding event he had experienced and that Mr. McAdams had painted the basement

walls.
                                                9


        {¶16} A review of the hearing transcript shows that when the McAdamses’ counsel

specifically asked Attorney White what facts were known to him prior to filing the complaint

other than what was written in the foreman’s report and that the basement had been painted, he

was evasive until directly addressed by the court. When the court expressly asked him what

knowledge or circumstantial evidence he had at the time he filed the complaint regarding a

problem with water intrusion on the property, Attorney White stated that he “probably would

have had whatever the contractors found out there based on what their report was and

information as to what they did. And that was later more amplified by what the defendants put

in their own pleadings.” In addition to his vague and ambiguous description of the facts known

to him when he filed the complaint, Attorney White also could not state with certainty whether

or not he knew specific facts or indicate when in the course of litigation he may have known

them.

        {¶17} “An allegation or factual contention needs only minimal evidentiary support in

order for a party or its attorney to avoid a frivolous conduct finding under R.C.

2323.51(A)(2)(a)(iii).” Southard Supply, Inc. v. Anthem Contractors, Inc., 10th Dist. Franklin

No. 16AP-545, 2015-Ohio-7298, ¶ 14, citing Carasalina LLC v. Bennett, 10th Dist. Franklin No.

14AP-74, 2014-Ohio-5665, ¶ 36. “If a party makes an allegation or factual contention on

information or belief, then the party must have the opportunity to investigate the truth of that

allegation or factual contention. However, if a party persists in relying on that allegation or

factual contention when no evidence supports it, then the party has engaged in frivolous conduct

under R.C. 2323.51(A)(2)(a)(iii).” Carasalina at ¶ 36.

        {¶18} In support of the contention that this matter was filed and maintained as part of an

“assembly line” of litigation without consideration of the merits of this particular case, the
                                                10


McAdamses identified a significant number of cases—all decided prior to the commencement of

this case—wherein Attorney White was counsel of record for the plaintiff and an appellate court

concluded that the evidence, similar to the evidence relied on in filing the complaint in this

matter, was not sufficient to support claims for fraud or mutual mistake. See e.g. Muruschak v.

Schafer, 11th Dist. Lake No. 2015-L-071, 2015-Ohio-5340, ¶ 21-22 (holding that contention that

wall was freshly painted was insufficient where plaintiff did not attest that a defect was

discovered hidden under the coat of pain in order to prove concealment and that a “waterproofer”

attestating that in his opinion the water infiltration problems “probably” took a number of years

was not evidence that the sellers knew or should have known of the issue); Brown v. Scheussler,

9th Dist. Summit No. 25008, 2010-Ohio-642, ¶ 9 (holding that there was no evidence that the

seller’s representation of no water intrusion was fraudulent although a waterproofing company

foreman opined that the problems he fixed “did not develop overnight and probably took a

number of years to get the point at which he found them” because (1) the waterproofer did not

offer an opinion as to how long the water had been present or whether the seller would have

known it was there; and (2) although the buyer experienced water intrusion several months after

purchasing the home, it did not follow that the problem existed before the sale or that the sellers

knew about the problem); Lewis v. Marita, 8th Dist. Cuyahoga No. 99697, 2013-Ohio-5431, ¶ 25

(noting that the evidence showed sellers did not occupy the home and stating that the fact that the

sellers painted or primed the basement walls does not necessarily establish that they knew of a

water intrusion problem and attempted to conceal that fact); McDonald v. JP Dev. Group, L.L.C.,

8th Dist. Cuyahoga No. 99322, 2013-Ohio-3914, ¶ 17; Wallington v. Hageman, 8th Dist.

Cuyahoga No. 94763, 2010-Ohio-6181, ¶ 19 (stating buyer could not show that seller knew or

should have known of a water intrusion problem where a seller never lived in the home and
                                               11


buyer did not present any other facts to support their belief that seller had knowledge of water

intrusion problem).

       {¶19} In the response to the motion for sanctions and in his arguments made at the

hearing, Attorney White attempted to show that he and Mr. Oehler had a reasonable and good

faith basis for asserting and maintaining the claims against the McAdamses by claiming that

some appellate courts have affirmed grants of summary judgment in favor of plaintiffs in matters

with similar facts. However, all of the cases cited by Attorney White in the response and at the

hearing are factually and/or procedurally distinguishable from this case.       See DiNapoli v.

Lewandowski, 9th Dist. Summit No. 18897, 1998 WL 668004 (Sept. 30, 1998) (procedurally and

factually distinguishable); Meadows v. Otto, 5th Dist. Stark No. 2006CA00138, 2007-Ohio-4031

(factually distinguishable); Nichols v. Petroff, 5th Dist. Stark No. 2004CA00271, 2005-Ohio-481

(factually distinguishable).

       {¶20} Regardless, in light of the significant number of “wet basement” cases wherein

Attorney White served as counsel of record and his own argument at the sanctions hearing that

he did “a lot of research in these cases,” Attorney White should have been on notice that the

evidence he relied on in filing the complaint in this matter, which consisted of the language used

in the foreman’s report and the fact that the McAdamses had painted the basement, standing

alone, would not be sufficient evidence to prove fraud. Furthermore, a review of the record

shows that Attorney White and Mr. Oehler, prior to filing the complaint, knew of other facts

which would arguably be detrimental to the case. For instance: (1) neither the inspection report

nor the appraisal noted any indication of water damage or intrusion, (2) the McAdamses never

lived on the property; and (3) Mr. Oehler had only experienced a singular flooding event in the

property’s basement after an abnormally heavy rainfall, but had otherwise not experienced
                                               12


further water intrusion. Additionally, during his deposition, the foreman contradicted his report,

stating that he had not observed the property before installing the water-proofing system and that

he did not “know exactly what was going on before[.]” Nonetheless, despite all of this adverse

information, Attorney White admitted during the hearing that he did not conduct any discovery

on behalf of his client. Accordingly, we conclude that the trial court’s finding that Attorney

White failed to satisfactorily explain his failure to complete discovery in this matter was

supported by competent credible evidence.

       {¶21} A review of the record also shows that the trial court’s finding that the defects and

substantial repairs referenced in the response to the motion for sanctions were not required

disclosures and were unrelated to the allegations in the complaint, the flooding, or the damage

caused by water infiltration is also supported by competent credible evidence. Attorney White

attempted in the response and at the hearing to argue that he and Mr. Oehler had a reasonable

and good faith basis for asserting the claims against the McAdamses because the McAdamses

had failed to disclose certain defects and made substantial repairs to the property. However, the

only additional evidence Attorney White points to were statements made in the McAdamses’

motion for summary judgment and attached affidavits.             Specifically, he refers to the

McAdamses’ statements that they had replaced an exterior downspout pipe with a perforated

pipe, added gravel and grading around the property, and cleaned and painted the basement for

hygienic reasons since the prior owners kept animals. None of these statements implicate a

fraudulent misrepresentation regarding the McAdamses’ knowledge of prior water intrusion on

the property, nor do they contradict the McAdamses’ representation that they had no such

knowledge of prior water intrusion. Additionally, none of the defects and or repairs referenced

by the McAdamses in are required disclosures on the residential property disclosure form since
                                               13


the form only requires a seller to disclose repairs completed in response to any known water

intrusion problem. See R.C. 5302.30 and Ohio Adm.Code 1301:5-6-10.

       {¶22} A review of the record further shows that the trial court’s finding that Attorney

White did not sufficiently address the manner in which he receives referrals from Ohio State

Waterproofing to dispel the evidence of collaboration is supported by competent credible

evidence. The McAdamses’ motion for sanctions stated that their counsel believed this suit was

brought as part of an assembly line process developed by Attorney White and Ohio State

Waterproofing without regard to the merits of the case. Although Attorney White denied paying

Ohio State Waterproofing to render expert opinions, the Ohio State Waterproofing foreman

stated during his deposition that he was being paid his daily rate by Ohio State Waterproofing to

provide testimony at the deposition and that Ohio State Waterproofing was being compensated

for his time. The foreman also stated that he had “worked with” Attorney White at least four

times before and that other foremen had also worked with Attorney White. The record shows

that the foreman rendered the “expert opinion,” on which Attorney White relied, at the time of

service. However, in their motion for sanctions and during the hearing, the McAdamses’ were

able to point to a number of cases filed by Attorney White that specifically referenced identical

or analogous language used by other Ohio State Waterproofing foremen in their opinions

regarding basement water intrusion in other cases.      Although Attorney White was initially

evasive regarding referrals from Ohio State Waterproofing, he eventually stated during the

hearing that he did receive referrals from various basement waterproofing companies, but had

“no idea” how many referrals he received from Ohio State Waterproofing in a given year. He

also stated he did not know who referred Mr. Oehler to him or how many cases he filed each

year using an Ohio State Waterproofing foreman to render an expert opinion.
                                                 14


       {¶23} Finally, a review of the record further shows that although Attorney White

claimed he had received favorable verdicts in cases with similar facts and evidentiary support, he

failed to point the court to any of those favorable verdicts. In the response to the motion for

sanctions Attorney White listed a number of common pleas court cases where he “has been

successful,” but did not explain in what way he was successful, what facts and evidentiary

support existed in those cases, nor did he submit any evidence as to the actual judgments entered

any of the cases. Attorney White did point to a settlement agreement for one of the common

pleas court cases as evidence of “success,” but a review of that agreement shows that it does not

list any allegations, facts, or evidence presented in the matter and specifically states that the

releasers “acknowledge and agree that the settlement of [the] matter constitutes resolution of a

doubtful and disputed claim and the payment of the [s]ettlement [a]mount is not to be construed

as an admission of liability * * * .” Additionally, the appellate cases Attorney White cites as

examples of favorable verdicts wherein he was counsel of record are factually and/or

procedurally distinguishable from this case. See DiNapoli (factually distinguishable); Meadows

(factually distinguishable); Nichols (factually distinguishable).

       {¶24} Based on the foregoing, we conclude that under the specific circumstances of this

case, the trial court’s factual findings, taken as a whole, support the trial court’s determination

that Attorney White engaged in frivolous conduct by initiating and maintaining this action.

Attorney White’s first assignment of error is overruled.

                                     Assignment of Error II

       The trial court’s decision to assign sole liability to [Attorney White]
       constitutes reversible error.
                                                15


                                      Assignment of Error III

       The trial court’s decision to adopt the magistrate’s finding constitutes
       reversible error.

       {¶25} In his second assignment of error, Attorney White contends that the trial court

erred when it assigned him sole liability for the sanctions. In his third assignment of error,

Attorney White contests the trial court’s adoption of the magistrate’s findings as to the amount of

attorney fees to award to the McAdamses as a result of the trial court’s grant of the McAdamses’

motion for sanctions. However, we do not reach the merits of Attorney White’s assignments of

error as they were forfeited below.

       {¶26} In this case, the trial court bifurcated the proceedings, agreeing to hold a hearing

on damages only if the court determined that sanctions were appropriate. After issuing the order

granting the McAdamses’ motion for sanctions, the trial court ordered the matter be assigned to a

magistrate for resolution and disposition of the remaining issues. Following the hearing, the

magistrate determined that damages should be awarded against Attorney White only since the

focus of the order was the actions of Attorney White as counsel for Mr. Oehler and the order did

not specifically reference any of Mr. Oehler’s actions as the plaintiff. The magistrate further

found that the McAdamses were entitled to an award of $37,185.89 consisting of attorney fees

and expenses incurred as a result of litigating the present matter as a result of Attorney White’s

frivolous conduct. Attorney White did not file any objections to the magistrate’s decision and

the trial court thereafter adopted the decision and rendered judgment in favor of the McAdamses

and against Attorney White in the amount of $37,185.89.

       {¶27} “This Court has held that when a party fails to properly object to a magistrate’s

decision in accordance with Civ.R. 53(D)(3), the party has forfeited the right to assign those

issues as error on appeal.” Adams v. Adams, 9th Dist. Wayne No. 13CA0022, 2014-Ohio-1327,
                                                16


¶ 6. “While a [party] who forfeits such an argument still may argue plain error on appeal, this

[C]ourt will not sua sponte undertake a plain-error analysis if the [party] fails to do so.”

(Alterations sic.) Bass-Fineberg Leasing, Inc. v. Modern Auto Sales, Inc., 9th Dist. Medina No.

13CA0098-M, 2015-Ohio-46, ¶ 24. Accordingly, Attorney White has failed to preserve for

appellate review the issues set forth in assignments of error two and three and we decline to

address them. See Henry v. Henry, 9th Dist. Summit No. 27696, 2015-Ohio-4350, ¶ 18.

       {¶28} We note, however, that on appeal, Attorney White contends he was never served

with the magistrate’s decision. Nonetheless, Attorney White did not raise the issue in the trial

court and we decline to do so in the first instance because such a ruling would exceed our

jurisdiction as a reviewing court. See Catalanotto v. Byrd, 9th Dist. Summit No. 27824, 2016-

Ohio-2815, ¶ 12.

       {¶29} Attorney White’s second and third assignments of error are overruled.

                                                III.

       {¶30} Attorney White’s assignments of error are overruled. Therefore, the judgment of

the Summit County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                17


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CALLAHAN, J.
CONCURS.

HENSAL, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DANIEL S. WHITE, Attorney at Law, pro se, Appellant.

ANN L. WEHENER, Attorney at Law, for Appellee.

SCOTT N. OEHLER, pro se, Appellee.
