[Cite as Burwell v. Hardesty Village Home Owners Assn., 2020-Ohio-1466.]


                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT

David K. Burwell,                                  :

                Plaintiff-Appellant,               :
                                                                           No. 19AP-151
v.                                                 :                 (M.C. No. 2016 CVH 017434)

Hardesty Village Home Owners                       :                 (REGULAR CALENDAR)
Association,
                                                   :
                Defendant-Appellee.
                                                   :


                                          D E C I S I O N

                                    Rendered on April 14, 2020


                On brief: Law Offices of Donald Wiggins, Jr., LLC, and
                Donald Wiggins, Jr., for appellant. Argued: Donald
                Wiggins, Jr.

                On brief: Vargo Law LLC, and James G. Vargo, for appellee.
                Argued: James G. Vargo.

                      APPEAL from the Franklin County Municipal Court

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, David K. Burwell, appeals from a judgment of the
Franklin County Municipal Court entered on February 13, 2019, that awarded defendant-
appellee, Hardesty Village Home Owners Association ("HVHOA"), an assessment against
Burwell for attorney fees in the amount of $17,583.50 under the Frivolous Conduct statute,
R.C. 2323.51. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} We note at the outset that the history of the underlying litigation is knotty
and with an unfortunate result for appellant. The underlying matter arose from a disputed
$122.50 vehicular towing charge that HVHOA assessed against Burwell in 2016 for parking
his car allegedly in violation of HVHOA parking rules. The record, however, indicates that
No. 19AP-151                                                                             2


the disputed charge was part of a series of ongoing conflict between the parties and that
ongoing tensions between Burwell and HVHOA has been an obstacle to terminating the
litigation and appeal through settlement. The record indicates that this matter, which
began as a home owner's association parking infraction, has drastically escalated to the
point that HVHOA has claimed it had incurred through the trial court process $17,583.50
in legal fees in defending against Burwell's $122.50 claim and in further prosecuting its
claim for sanctions against Burwell for frivolous conduct under R.C. 2323.51.             To
understand how the current situation came to be, a comprehensive review of the record is
helpful here.
       {¶ 3} HVHOA is an Ohio not-for-profit corporation that serves as the governing
body of Hardesty Village, a condominium community located in Franklin County, Ohio.
Burwell has owned or occupied a residence in Hardesty Village since December 2012.
       {¶ 4} The underlying litigation commenced nearly four years ago, on June 14, 2016,
when Burwell, pro se, filed a complaint in the Small Claims Division of the Franklin County
Municipal Court seeking to recover from HVHOA $122.50, plus court costs and interest.
Burwell's complaint set forth his cause of action in two sentences:
                On May 30, 2016 at 9:08 P.M. Hardesty Village Home Owners
                Association had my vehicle, a 2006 Chrysler Pacifica Lic# FOJ
                1376, towed from the Handicap parking space nearest my home
                and impounded without cause or provocation and without
                prior notice of offense. My vehicle bore the proper Handicap
                Parking Placard and was legally parked in this spot.

(June 14, 2016 Compl. at 1.)
       {¶ 5} On July 8, 2016, just 24 days after Burwell had filed his complaint, HVHOA
filed a five-page answer and counterclaim. HVHOA's answer denied the allegations set
forth in the complaint and raised several affirmative defenses. HVHOA's counterclaim
alleged that HVHOA had established a private tow-away zone pursuant to R.C. 4513.601
and had published its parking rules and regulations to residents of Hardesty Village on
multiple occasions. HVHOA further alleged Burwell had parked one of his vehicles in a
public space for longer than the 72 consecutive hours allowed under the parking
regulations. HVHOA stated that, at 9:30 a.m. on May 28, 2016, it had caused a ticket to be
placed on Burwell's vehicle, notifying him of the violation and advising that, if the vehicle
was not moved, it would be towed at Burwell's expense on May 30, 2016. Burwell did not
No. 19AP-151                                                                          3


move his vehicle and, on May 30, 2016, HVHOA caused it to be towed from the premises.
Burwell recovered his vehicle on or about May 31, 2016. HVHOA's counterclaim alleges in
significant part as follows:
               12. Despite having a private carport to keep his vehicles,
               [Burwell] chose to park this Vehicle for weeks on end in a
               handicap spot in violation of the Parking Regulations as part of
               his on-ongoing efforts to disturb the peace of Hardesty Village.

               13. [Burwell] has now filed this civil action merely to harass
               HVHOA as his claim is knowingly unwarranted under existing
               law, cannot be supported by a good faith argument, consists of
               allegations that have no evidentiary support, and otherwise
               constitutes actionable frivolous conduct pursuant to R.C.
               2323.51.

               14. As a result of [Burwell's] conduct, HVHOA has been
               damaged and this Court should award HVHOA damages
               including, but not limited to, its court costs, attorneys' fees and
               other reasonable expenses incurred in connection with this
               action in excess of $3,000.00.

               WHEREFORE, having fully set forth its claim for relief,
               Defendant Hardesty Village Home Owners Association
               requests that the Court enter judgment or sanctions as
               appropriate in favor of Defendant Hardesty Village Home
               Owners Association, and against Plaintiff in an amount to be
               determined at trial but in excess of $3,000.00, plus punitive
               damages, court costs, attorneys' fees, any other reasonable
               expenses incurred, and any other relief the Court deems
               equitable and just.

(Emphasis sic.) (July 8, 2016 HVHOA Answer and Counterclaim at 4.)
       {¶ 6} Burwell filed an answer to HVHOA's counterclaim on August 1, 2016 and an
amended answer to the counterclaim on August 15, 2016. In addition to generally denying
HVHOA's counterclaim, Burwell raised as affirmative defenses HVHOA's violation of the
Fair Housing Act, commission of fraud, and failure to abide by the provisions of the
Americans with Disabilities Act. Burwell further invoked the doctrine of unclean hands,
alleging that HVHOA "clearly filed a frivolous counterclaim in an attempt to silence
[Burwell] as to other irrelevant matter involving policies involving condominium rules and
their interpretation." (Aug. 15, 2016 Am. Reply to Def.'s Counterclaim at ¶ 10.)
No. 19AP-151                                                                            4


       {¶ 7} The trial court set the matter for mediation, which proved unsuccessful. The
trial court referred the matter to a magistrate for trial. On March 27, 2017, the magistrate
conducted a trial at which Burwell appeared pro se, and the HVHOA was represented by
counsel. As a preliminary matter, the magistrate granted HVHOA's motion to bifurcate the
frivolous conduct claim and the award claim for the reasonableness and necessity of the
fees. The magistrate then asked HVHOA's counsel if the award to be sought was $3,000.
HVHOA's counsel advised the magistrate that the amount would probably be well over
$10,000. In response to the magistrate's question as to how HVHOA's counsel arrived at
that figure, HVHOA's counsel stated in part as follows:
               It's a very troubling scenario for our client. Mr. Burwell – which
               you will hear evidence on this today – has been kind of engaged
               in a long term harassment of [HVHOA] and its board members.
               So part of what you will hear today is (unintelligible) and it
               seemed very simple on a $122 towing charge. You will hear
               evidence today about how it was attempted to be resolved early.
               Then in interacting with Mr. Burwell in responding to
               discovery requests he sent us, he asked 20 some interrogatories
               about violations of the Fair Housing Act, wanting to seek all of
               the voting records of [HVHOA], wanting to see the balance,
               wanting to know how long the trustees were insured, what the
               limits of the liability of the insurance are, whether or not they
               had DNO coverage, whether or not they had insurance to cover
               the grounds and the members of the board.

               So all of these things, not knowing what we would hear today,
               we had to look at all of that. We had to look at all those things.
               And he's made threats to [HVHOA] on other issues. Whether
               this case goes his way or not, it's a constant chain of this. So the
               time which we would submit by affidavit afterwards, it's very
               descriptive of everything we had to deal with.

               Unfortunately, it's been egregiously expensive * * *. I have been
               representing [HVHOA] a long time. Usually their issues are
               very, very simple, but there is much more to this than a towing
               charge. Not for today though. The only thing before this Court
               today is whether or not Mr. Burwell's vehicle was validly towed
               under the statute. And apart from the evidence we'll submit on
               our counterclaim, that is the only issue that is before the Court
               today.

               But, again, he's made intonations in discussions that he wants
               to bring a lot more stuff in here that just isn't relevant and, you
               know, while we are sure the Rules of Evidence are going to be
No. 19AP-151                                                                             5


               enforced, I had to look at all that stuff just to know what we
               would get into today. So it's a troubling scenario and,
               unfortunately, that's why I now have fees that we have been
               forced to incur that are that high.

(Mar. 27, 2017 Tr. at 6-8.) HVHOA's counsel acknowledged that the $10,000 was "entirely
attorney fees," and that only "a very small portion of those fees relate to defending the
towing claim." Id. at 8-18. Counsel stated that the attorney fees "relate to preparing and
defending the (unintelligible) frivolous conduct of this constant chasing and harassing of
the board, with this being [Burwell's] venue to do that." Id. at 8-21.
        {¶ 8} Before proceeding with the trial, the magistrate discussed with the parties
further attempts at mediation, but they instead proceeded to a one-day trial before the
magistrate. Burwell testified on his own behalf, and Richard Greene, president of HVHOA,
testified on behalf of HVHOA.
        {¶ 9} On March 31, 2017, the magistrate issued a decision, including enumerated
findings of fact and conclusions of law. The magistrate found that HVHOA, prior to having
Burwell's vehicle towed, had established a private tow away zone under R.C. 4513.601 and
had published rules and regulations related to parking and the use of the public and
common parking spaces in Hardesty Village to all Hardesty Village residents, including
Burwell. The magistrate found that, on May 28, 2016, HVHOA's employee had placed a
notice under the windshield wiper of Burwell's vehicle indicating that the vehicle had been
parked in a public parking space in violation of HVHOA's rules and regulations and would
be towed if not moved before May 30, 2016. The magistrate found that Burwell did not
move his vehicle, the vehicle was towed by HVHOA's towing service on May 30, 2016, and
Burwell recovered his vehicle on or about May 31, 2016, after paying $122.50. The
magistrate concluded that Burwell had failed to prove by a preponderance of the evidence
a right to recover from HVHOA, entered judgment for HVHOA, and dismissed Burwell's
case.
        {¶ 10} With respect to HVHOA's counterclaim, the magistrate stated as follows:
               [HVHOA] has filed a counterclaim seeking attorney fees
               pursuant to ORC 2323.51 maintaining that [Burwell] is
               engaged in frivolous conduct in the filing of this claim. Counsel
               for [HVHOA] presented testimony and evidence to the Court
               indicating that [Burwell] has engaged in frivolous conduct and
               Motions the Court to award attorney fees in the amount of
No. 19AP-151                                                                             6


               $11,171.25. Pursuant to ORC 2323.51, the Court will set a date
               for hearing on this matter. Each party shall be given an
               opportunity to present any additional testimony and evidence
               in denial of or in support of [HVHOA's] petition for attorney
               fees.

(Mar. 31. 2017 Mag.'s Decision at 3.) The magistrate set the hearing for May 9, 2017.
       {¶ 11} On April 7, 2017, Burwell filed objections to the magistrate's decision. He
specifically disputed the finding as to the number of days his vehicle was parked in the
common handicap parking space, arguing that HVHOA had not presented testimony or
submitted an affidavit from anyone having firsthand knowledge that his vehicle was parked
in the handicap space for more than two days at a time and had not presented any
corroborating testimonial or documentary evidence as to that fact.          HVHOA filed a
memorandum contra Burwell's objections on April 14, 2017, arguing that Burwell's
objections constituted additional frivolous conduct. Burwell timely filed a transcript of the
March 27, 2017 hearing.
       {¶ 12} On June 21, 2017, the trial court entered a decision and judgment overruling
Burwell's objections, adopting the magistrate's decision, finding judgment in favor of
HVHOA, and dismissing Burwell's complaint. The trial court took issue with HVHOA's
counterclaim for sanctions, however, stating in its decision as follows:
               The record shows [HVHOA] has raised the issue of sanctions
               by way of a "counterclaim." However, the issue of frivolous
               conduct under R.C. 2323.51 is properly understood as a
               motion. In the Magistrate's Decision, the Magistrate indicated
               further proceedings were necessary on the issue of sanctions
               and attorney fees. As such, this matter will be referred back to
               [the Magistrate] by separate Order of Reference.

(June 21, 2017 Decision and Entry at 1.) The trial court simultaneously issued a special
order of reference to the magistrate for the following purposes:
               1) To hear evidence and determine, as a matter of fact, what
                  specific conduct by [Burwell], if any, constitutes frivolous
                  conduct under R.C. 2323.51. If no conduct is determined to
                  have been frivolous as defined by statute, [HVHOA's]
                  motion for sanctions shall be denied.

               2) If frivolous conduct is found to have occurred, to hear
                  evidence and determine what amount of attorney fees, if
                  any, is appropriate under the Rules of Professional
No. 19AP-151                                                                              7


                   Conduct. The Magistrate shall require [HVHOA] to submit
                   evidence of the reasonableness of the fees according to each
                   factor enumerated under Prof.Cond.R. 1.5(a).

(June 21, 2017 Order of Reference.)          The magistrate set the matter for hearing on
August 30, 2017.
       {¶ 13} On July 20, 2017, Burwell appealed the trial court's ruling. On August 18,
2017, Burwell filed a motion to continue the hearing on HVHOA's motion for frivolous
conduct, pending the outcome of his appeal. HVHOA supported Burwell's request for a
continuance. On September 1, 2017, the magistrate stayed further proceedings until
Burwell's appeal was fully resolved. On December 1, 2017, this Court dismissed Burwell's
appeal sua sponte for failure to file a brief.
       {¶ 14} The trial court's magistrate conducted the hearing on HVHOA's motion for
frivolous conduct on October 2, 2018 and issued a five-page decision entering judgment in
favor of HVHOA on November 6, 2018. The magistrate, in her decision, found that Burwell
had engaged in frivolous conduct as defined in R.C. 2323.51. The magistrate found that
Burwell sought to harass HVHOA and cause unnecessary delay by raising complicated
defenses, including fraud and alleged violations of the Fair Housing Act and the Americans
with Disabilities Act, which required HVHOA to respond accordingly, and by filing his
request for admissions. The magistrate found nothing in the record to support Burwell's
allegations and thus no evidentiary support for Burwell's conduct. The magistrate found
Burwell's failure to prosecute his appeal of the trial court's June 21, 2017 decision to be
especially egregious, as it delayed the matter in the trial court for nearly seven months. The
magistrate, having found Burwell's conduct frivolous under the statute, further found it
proper to assess Burwell $11,171.25 for HVHOA's attorney fees based on the evidence
provided by HVHOA's counsel.
       {¶ 15} On November 20, 2018, Burwell filed objections to the magistrate's
November 6, 2018 decision.
       {¶ 16} On November 29, 2018, HVHOA also filed objections to the magistrate's
decision, arguing that the magistrate had erred in calculating the award of attorney fees.
HVHOA argued that the full amount of attorney fees incurred in the underlying matter was
$17,583.50.
No. 19AP-151                                                                             8


       {¶ 17} The record before us indicates that neither Burwell nor HVHOA filed a
transcript of the October 2, 2018 hearing before the trial court's magistrate.
       {¶ 18} On January 14, 2019, while the parties' objections to the magistrate's decision
were pending before the trial court judge, the magistrate issued an amended decision
finding that the proper award of attorney fees was $17,583.50 and entering judgment in
favor of HVHOA in that amount. Neither party filed objections to the magistrate's amended
decision.
       {¶ 19} On February 13, 2019, the trial court issued a judgment entry on both parties'
objections to the magistrate's November 6, 2018 decision. The judgment entry referenced
the magistrate's amended decision of January 14, 2019, stating that it "addressed a
mathematical calculation cited in [HVHOA's] Objection to the earlier November 6, 2018
decision." (Feb. 13, 2019 Jgmt. Entry.) The trial court, having reviewed the objections and
the magistrate's decision and amended decision, found that the magistrate correctly
applied R.C. 2323.51 and Prof.Cond.R. 1.5 and overruled Burwell's objections. The trial
court adopted the magistrate's amended decision of January 14, 2019 and declared
HVHOA's objection to the magistrate's November 6, 2018 decision moot. The trial court
sustained HVHOA's motion for sanctions and awarded HVHOA an assessment against
Burwell for attorney fees in the amount of $17,583.50.
       {¶ 20} Burwell timely appealed the trial court's February 13, 2019 judgment entry.
II. ASSIGNMENTS OF ERROR
       {¶ 21} Burwell presents for our review three assignments of error.
               I. The Franklin County Municipal Court erred and abused its
               discretion when, without reason in fact or law, it adopted and
               upheld the magistrate's erroneous decision misapplying R.C.
               2323.51.

               II. The Franklin County Municipal Court erred and abused its
               discretion when it upheld the magistrate's unreasonably
               disproportionate and excessive award of attorney fees in the
               amount of $11,171.25 when the original underlying small claims
               action was in the amount of $122.50.

               III. The Franklin County Municipal Court erred when it
               awarded defendant attorney fees under R.C. 2323.51—Ohio's
               Frivolous Conduct Statute—against prevailing public policy.
No. 19AP-151                                                                                9


III. LAW AND DISCUSSION
   A. Standard of Review
       {¶ 22} When objections are filed to a magistrate's decision, the trial court must
undertake an independent, de novo review of the matters objected to in order to "ascertain
[whether] the magistrate has properly determined the factual issues and appropriately
applied the law." Civ.R. 53(D)(4)(d). See also James v. My Cute Car, LLC, 10th Dist. No.
16AP-603, 2017-Ohio-1291, ¶ 13.
       {¶ 23} The appellate standard for reviewing a trial court's adoption of a "magistrate's
decision varies with the nature of the issues that were (1) preserved for review through
objections raised before the trial court and (2) raised on appeal by assignment of error."
(Citations omitted.) Feathers v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-588,
2017-Ohio-8179, ¶ 10. Generally, " 'the appellate standard of review when reviewing a trial
court's adoption of a magistrate's decision is an abuse of discretion.' " Gilson v. Am. Inst. of
Alternative Medicine, 10th Dist. No. 15AP-548, 2016-Ohio-1324, ¶ 77, quoting Mayle v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-541, 2010-Ohio-2774, ¶ 15. However,
the standard of review applicable to this appeal is the doctrine of plain error. Civ.R.
53(D)(3)(b)(iii) provides in pertinent part as follows:
               An objection to a factual finding, whether or not specifically
               designated as a finding of fact under Civ.R. 53 (D)(3)(a)(ii),
               shall be supported by a transcript of all the evidence submitted
               to the magistrate relevant to that finding or an affidavit of that
               evidence if a transcript is not available. With leave of court,
               alternative technology or manner of reviewing the relevant
               evidence may be considered. * * * The objecting party shall file
               the transcript or affidavit with the court within thirty days after
               filing objections unless the court extends the time in writing for
               preparation of the transcript or other good cause. If a party files
               timely objections prior to the date on which a transcript is
               prepared, the party may seek leave of court to supplement the
               objections.

       {¶ 24} Because neither party filed a transcript of the October 2, 2018 hearing on
HVHOA's motion for sanctions, our review must be conducted in accordance with Civ.R.
53(D)(3)(b)(iv), which provides:
               Except for a claim of plain error, a party shall not assign as error
               on appeal the court's adoption of any factual finding or legal
               conclusion, whether or not specifically designated as a finding
No. 19AP-151                                                                              10


               of fact or conclusion of law under Civ.R. 53 (D)(3)(a)(ii), unless
               the party has objected to that finding or conclusion as required
               by Civ.R. 53 (D)(3)(b).

   B. First Assignment of Error
       {¶ 25} Burwell argues that the trial court erred and abused its discretion in failing to
correctly apply Ohio's Frivolous Conduct statute, R.C. 2323.51, and erroneously finding
that Burwell had engaged in frivolous and egregious conduct in prosecuting his underlying
meritorious case.
       {¶ 26} In accordance with the trial court's June 21, 2017 order of reference, the
magistrate heard evidence at the October 2, 2018 hearing to determine, as a matter of fact,
what specific conduct by Burwell, if any, constituted frivolous conduct under R.C. 2323.51.
The magistrate determined that Burwell sought to harass HVHOA and cause unnecessary
delay by raising complicated defenses in his answer to HVHOA's counterclaim, including
fraud and alleged violations of the Fair Housing Act and the Americans with Disabilities
Act, none of which were supported by the record. The magistrate found that Burwell's
conduct constituted frivolous conduct under R.C. 2323.51. The magistrate also found
Burwell's failure to prosecute his appeal of the trial court's June 21, 2017 decision to be
frivolous under R.C. 2323.51 because it delayed the matter in the trial court for nearly seven
months.
       {¶ 27} As previously noted, Burwell did not file a transcript to permit the trial court
to review his objections to the magistrate's November 6, 2018 decision for abuse of
discretion (as alleged in Burwell's first assignment of error) in comparison with a transcript
of the October 2, 2018 hearing. The trial court was left with no other option but to accept
the magistrate's findings of fact and to presume regularity in the proceedings before the
magistrate. Lesh v. Moloney, 10th Dist. No. 11AP-353, 2011-Ohio-6565, ¶ 11; Walker v. Lou
Restoration, 9th Dist. No. 26236, 2012-Ohio-4031, ¶ 7-8.
       {¶ 28} As was the trial court under Civ.R. 53, this Court is constrained by Civ.R. 53
and the Rules of Appellate Procedure (see App.R. 9) concerning the record on appeal.
Without a transcript of the proceedings before the magistrate, we have no record we can
examine to factually review Burwell's allegation of abuse of discretion by the trial court.
Thus, as to the first assignment of error, we cannot and do not find that the magistrate or
No. 19AP-151                                                                                11


the trial court abused its discretion in finding that Burwell's conduct was frivolous under
R.C. 2323.51. Consequently, Burwell's first assignment of error is overruled.
   C. Second and Third Assignments of Error
       {¶ 29} We address together Burwell's assignments of error concerning the trial
court's award of attorney fees to HVHOA under R.C. 2323.51. Burwell argues that the trial
court erred and abused its discretion when it upheld the magistrate's five-figure award of
attorney fees when the original underlying small claims action was in the amount of
$122.50. Burwell also argues that the trial court erred as a matter of law when it awarded
HVHOA attorney fees under R.C. 2323.51, contrary to prevailing public policy.
       {¶ 30} The issue of Burwell's liability for the parking ticket is not before this Court,
having been dismissed in 2018 for his failure to file a brief in his appeal of that trial court
finding. As to frivolous conduct and the trial court's determination of what Burwell owes
HVHOA, the magistrate found at the October 2, 2018 hearing that Burwell had engaged in
frivolous conduct as defined by the statute. In the same hearing, the magistrate, in carrying
out the trial court's June 21, 2017 order of reference, proceeded to hear evidence and
determine what amount of attorney fees, if any, was appropriate under the Rules of
Professional Conduct. In doing so, the magistrate required HVHOA to submit evidence of
the reasonableness of the fees according to each factor enumerated under Prof.Cond.R.
1.5(a). The magistrate's decision recites the evidence HVHOA provided in support of the
attorney fees sought. To the extent the amount of the attorney fees sought grossly exceeded
the original amount in controversy, the record supports the award of those fees to HVHOA.
       {¶ 31} In the absence of a transcript of the October 2, 2018 hearing, the trial court
was required to accept the magistrate's findings of fact and to presume regularity in the
proceeding. Lesh, 2011-Ohio-6565; Walker, 2012-Ohio-4031. As earlier noted, without a
transcript of that hearing, we must do the same in review on appeal.
       {¶ 32} Burwell's argument that the trial court's substantial award of attorney fees to
HVHOA is contrary to public policy is not well-taken. R.C. 2323.51 provides for the award
of sanctions for frivolous conduct. The magistrate's decision reflects that she heard
evidence at the October 2, 2018 hearing before determining that Burwell had engaged in
frivolous conduct. That Burwell filed an appeal of the first judgment as to liability but did
not prosecute it by failing to file a brief also supports the trial court's finding of egregious
delay created by his action. We note that Burwell's failure to prosecute does appear in the
No. 19AP-151                                                                                         12


record on appeal, such that we may consider it in reviewing the trial court's judgment. We
also note that HVHOA's agreement to stay trial court proceedings pending Burwell's first
appeal does not support Burwell's position. It was reasonable for HVHOA to agree to the
stay because it avoided, for the time being, additional expense to HVHOA in prosecuting
its counterclaim pending appellate review of liability.
        {¶ 33} Burwell's claim in his third assignment of error that "[t]he Franklin County
Municipal Court erred when it awarded defendant attorney fees under R.C. 2323.51—
Ohio's Frivolous Conduct Statute—against prevailing public policy" does not rise to being
against public policy as a matter of law (involving elements of clarity, jeopardy, causation,
and overriding justification). See Shields v. Tyack, 10th Dist. No. 15AP-114, 2015-Ohio-
5369, ¶ 9, for elements of public policy tort in context of employment discharge dispute.1
In Slane v. MetaMateria Partners, LLC, 176 Ohio App.3d 459, 2008-Ohio-2426, ¶ 25 (10th
Dist.), the appellant argued that his wrongful discharge claim should survive because it was
based on his complaints about safety equipment and not solely on his disability claim, a
public policy argument. In Slane, the appellant also recognized the then recent Supreme
Court of Ohio case of Leininger v. Pioneer Natl. Latex, 115 Ohio St.3d 311, 2007-Ohio-4921,
and that it negated his claim because, in Leininger, the court held that " 'there is no need to
recognize a common-law action for wrongful discharge if there already exists a statutory
remedy that adequately protects society's interests.' " Leininger at ¶ 26, quoting Wiles v.
Medina Auto Parts, 96 Ohio St.3d 240, 2002-Ohio-3994, ¶ 15. In applying Leininger, we

1 The Supreme Court of Ohio has set forth the elements for demonstrating wrongful discharge in violation

of public policy, as follows:

                " '1. That clear public policy existed and was manifested in a state or
                federal constitution, statute or administrative regulation, or in the
                common law (the clarity element).
                " '2. That dismissing employees under circumstances like those involved
                in the plaintiff's dismissal would jeopardize the public policy
                (the jeopardy element).
                " '3. The plaintiff's dismissal was motivated by conduct related to the
                public policy (the causation element).
                4. The employer lacked overriding legitimate business justification for
                the dismissal (the overriding justification element).' "

(Emphasis sic.) Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, ¶ 13-16, quoting Painter
v. Graley, 70 Ohio St.3d 377, 384 (1994), fn. 8, quoting Perritt, The Future of Wrongful Dismissal Claims:
Where Does Employer Self-Interest Lie?, 58 U.Cin.L.Rev. 397, 398-99 (1989); Leininger v. Pioneer Natl.
Latex, 115 Ohio St.3d 311, 2007-Ohio-4921,¶ 8-12; Shields, 2015-Ohio-5369, at ¶ 9.
No. 19AP-151                                                                              13


specifically stated, "[m]oreover, because Slane cannot establish a prima facie case of
disability discrimination, his wrongful discharge claim fails as well." (Emphasis added.)
Slane at ¶ 25, citing Thaman v. Ohio Health Corp., S.D.Ohio No. 2:03 CV 210, 2005 U.S.
Dist. LEXIS 29857, 2005 WL 1532550 (Nov. 29, 2005). Burwell failed to prosecute his
appeal on liability and did not even file a brief. We find no public policy argument against
the trial court finding frivolous conduct under R.C. 2323.51 or in the award of damages such
that we could sustain Burwell's third assignment of error.
       {¶ 34} Finally, Burwell cannot argue for the first time on appeal that the trial court's
award against him is against public policy when he had the opportunity to argue it in
objections to the magistrate's October 2, 2018 decision before the trial court. He has
effectively waived that argument on appeal. See S & P Lebos, Inc. v. Ohio Liquor Control
Comm., 163 Ohio App.3d 827, 2005-Ohio-5424, ¶ 12 (10th Dist.), wherein we held:
               Ordinarily, the doctrine of waiver precludes a litigant from
               raising an issue for the first time on appeal. The waiver rule is
               tempered somewhat by the doctrine of plain error. However, in
               a civil case, the doctrine of plain error will be applied only in
               the "extremely rare case involving exceptional circumstances
               where error, to which no objection was made at the trial court,
               seriously affects the basic fairness, integrity, or public
               reputation of the judicial process, thereby challenging the
               legitimacy of the underlying judicial process itself." Goldfuss v.
               Davidson (1997), 79 Ohio St.3d 116, 122-123, 1997-Ohio-401,
               679 N.E.2d 1099.

While we recognize the difficulty Burwell now finds himself in, based on the record from
the trial court, we can find no error affecting "the basic fairness, integrity, or public
reputation of the judicial process" to challenge "the legitimacy of the underlying judicial
process itself" such that he may avoid waiver to permit us to examine the question of plain
error in the trial court's award. S & P Lebos at ¶ 12.
       {¶ 35} Based on our review of the record, we find no error and no actionable
violation of public policy in the award of attorney fees to HVHOA for frivolous conduct
against Burwell. Nor do we find plain error in the trial court's proceedings. Burwell's
second and third assignments of error are overruled.
IV. CONCLUSION
       {¶ 36} In the final analysis, the magistrate's findings of fact support the conclusions
of law in the magistrate's November 6, 2018 decision. Because Burwell failed to file a
No. 19AP-151                                                                             14


transcript with his objections in the trial court, the trial court had no independent basis on
which to review the magistrate's factual findings. In the absence of a transcript, the trial
court correctly presumed regularity in the proceedings, and Burwell cannot demonstrate
error on appeal. Accordingly, the trial court properly adopted the magistrate's decision and
entered judgment for HVHOA. We therefore affirm the judgment of the Franklin County
Municipal Court.
                                                                        Judgment affirmed.

                              BROWN, J., concurs.
                    LUPER SCHUSTER, J., concurs in judgment only.
