[Cite as Marafiote v. Estate of Marafiote, 2016-Ohio-4809.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

ANTHONY M. MARAFIOTE                                    )
                                                        )
        PLAINTIFF-APPELLANT                             )
                                                        )            CASE NO. 14 MA 0130
VS.                                                     )
                                                        )                   OPINION
  ESTATE OF VITO MARAFIOTE, et al.                      )
                                                        )
        DEFENDANTS-APPELLEES                            )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from Court of Common
                                                        Pleas of Mahoning County, Ohio
                                                        Case No. 2011 CV 3458

JUDGMENT:                                               Affirmed.

APPEARANCES:
For Plaintiff-Appellant                                 Attorney Christopher Lacich
                                                        Roth, Blair, Roberts, Strasfeld & Lodge
                                                        100 East Federal Street, Suite 600
                                                        Youngstown, Ohio 44503

For Defendants-Appellees                                Attorney Jay Blackstone
                                                        WPA Memorial Building
                                                        Suite 401-A, 132 S. Broad Street
                                                        Canfield, Ohio 44406




JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                        Dated: June 30, 2016
[Cite as Marafiote v. Estate of Marafiote, 2016-Ohio-4809.]
DeGENARO, J.

        {¶1}     Anthony Marafiote, Plaintiff-Appellant, appeals the Mahoning County
Common Pleas Court's decision denying his request for attorney's fees against
Defendants-Appellees, the Estate of Vito Marafiote, John Marafiote and Frank
Marafiote. For the reasons discussed below, the trial court did not abuse its discretion
in failing to award Anthony his attorney's fees or in denying his motion for default
judgment. Nor did Anthony demonstrate that the trial court failed to conduct an
independent review of the magistrate's decision. Accordingly, Anthony's arguments
are meritless and the decision of the trial court is affirmed.
                                 Facts and Procedural History
        {¶2}     Anthony Marafiote filed a complaint in the Mahoning County Court of
Common Pleas against his father, Vito, and his brothers, John and Frank, (or
Defendants, as appropriate) alleging that they were depriving him of certain personal
property located in Vito's Ambert Avenue residence, and further, that they were
preventing him from receiving the legal deed to real estate on Loveland Avenue.
Anthony also requested punitive damages based on the "outrageous and egregious
conduct of Defendants."
        {¶3}     Vito, John and Frank filed an answer generally denying Anthony's
complaint and asserting various affirmative defenses. Vito died less than a year later
and his estate was substituted as a party.
        {¶4}     Pursuant to a magistrate's decision, a partial agreement was entered.
On appeal the parties differ on the specific terms of what that agreement entailed.
Anthony states that pursuant to the agreement he returned a shotgun to his father
and in exchange Vito deeded Loveland Avenue to Anthony as well as permitting him
to retrieve personalty in Vito's possession. Defendants contend that the agreement
provided that the personalty located at Ambert Avenue would be turned over to
Anthony, who would return the shotgun, but that the settlement agreement did not
include Loveland Avenue because it had previously been deeded to Anthony.
        {¶5}     Although the exchange of all personal and real property occurred, the
litigation continued as Anthony sought fees, damages and costs via two amended
                                                                              -2-


complaints. Leave was clearly granted the first time. However, due to conflicting
magistrate's decisions as discussed below, there was confusion as to if and when
leave was granted to file the second amended complaint.
      {¶6}   The defendants concede that they failed to timely file an answer to
Anthony's second amended complaint. Anthony filed for default judgment on this
basis and the defendants filed an answer without leave of court. The trial court
denied Anthony's request for default judgment.
      {¶7}   The sole issue tried to the magistrate was whether Anthony was entitled
to attorney's fees and costs as an exception to the American rule. The magistrate
denied Anthony's request finding he had not met his burden by a preponderance of
the evidence and ordered that based on the evidence, no exception to the American
rule could be found which would allow the court to award his reasonable attorney's
fees and costs. The trial court overruled Anthony's objections, and adopted the
magistrate's decision.
                                  Attorney's Fees
      {¶8}   In his first and second of four assignments of error, Anthony asserts:

             THE RECORD EVIDENCE AT TRIAL PROVED BY A
      PREPONDERENCE OF THE EVIDENCE THAT THE APPELLEES'
      CONDUCT ESTABLISHED AS A MATTER OF LAW THAT HE WAS
      ENTITLED TO AN AWARD OF ATTORNEY'S FEES UNDER AN
      EXCEPTION TO THE AMERICAN RULE.

             APPELLEES' COUNSEL WAS OPERATING WITH ACTUAL
      AND/OR APPARENT AUTHORITY WHEN HE SENT LETTERS TO
      APPELLANT THAT WERE LATER PROVEN TO BE FALSE AND/OR
      MISLEADING, AND WHICH LEAD TO LITIGATION BETWEEN THE
      PARTIES AND SUBSTANTIAL LEGAL FEES FOR APPELLANT.

      {¶9}   The essence of Anthony's argument in these two assigned errors is that
                                                                                -3-


Vito, Frank, John and their attorney's "bad faith, vexatious, wanton, obdurate and
oppressive conduct" caused him to initiate this litigation, and that their conduct
continued throughout the litigation. Anthony asserted in his objections, and reiterated
on appeal, that "the key linchpin" to his claim for attorney fees was the conduct of the
attorney representing Vito, John and Frank; specifically, letters sent by the attorney
which contained false information and misstatements of the law. Anthony further
argues that John and Frank engaged in a course of conduct designed to turn Vito
against him; and deprive Anthony of his personal and real property, thereby forcing
him to institute this lawsuit and expend legal fees. Anthony contends that these
actions constitute bad faith and justify an award of attorney's fees, that this evidence
was discounted by the magistrate, and that the trial court erred as a matter of law by
overruling his objections and failing to award attorney fees.
       {¶10} Defendants counter that this matter was settled by the exchange of real
and personal property, but Anthony "continued the hostilities" by filing two amended
complaints seeking attorney's fees after the magistrate's decision memorializing the
exchange was filed. They maintain that they had no interest in Anthony's property as
all of the requested items were transferred to him. Further, John and Frank assert
they were merely trying to assist Vito in his final years and they allege that this
lawsuit was the result of thirty years of unfortunate family conflict.
       {¶11} The standard of review on the issue of attorney fees is abuse of
discretion. Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St.3d 157, 160, 1995-
Ohio-281, 648 N.E.2d 488. "An abuse of discretion means an error in judgment
involving a decision that is unreasonable based upon the record; that the appellate
court merely may have reached a different result is not enough." Downie v.
Montgomery, 7th Dist. No. 12 CO 43, 2013-Ohio-5552, ¶ 50.
       {¶12} Anthony's claim for attorney fees is procedurally and substantively
problematic. With respect to procedural concerns, a month after the property
exchange Anthony filed the first amended complaint. Anthony argues that the trial
court granted him leave to file for attorney's fees, but a review of his motion for leave
                                                                                   -4-


demonstrates otherwise. Nothing was stated about attorney fees in the leave.
Instead, Anthony sought leave to further litigate a monetary loss related to the real
property, namely waste and back taxes, on Loveland Avenue. Similarly, there was no
mention of attorney fees when Anthony sought leave to file his second amended
complaint; again, Anthony stated that the purpose of amending his complaint for a
second time was to more clearly set forth his damage claim. Thus, Anthony's claim
for attorney fees is undercut procedurally. We next turn to his substantive argument.
       {¶13} "Ohio has long adhered to the 'American rule' with respect to recovery
of attorney fees: a prevailing party in a civil action may not recover attorney fees as
part of the costs of litigation." Willborn v. Banc One Corp., 121 Ohio St.3d 546, 2009-
Ohio-306, 906 N.E.2d 396, ¶ 7. (internal citations omitted) "Attorney fees may be
awarded, as an exception to the American rule, as a part of the relief granted a
petitioner in actions where the losing party has acted in bad faith, vexatiously,
wantonly, obdurately, or for oppressive reasons." State ex rel. Gerchak v. Tablack,
117 Ohio App.3d 222, 226, 690 N.E.2d 93 (7th Dist.1997). A prevailing party is one in
whose favor the decision or verdict is rendered and judgment entered. See Collins v.
York 1st Dist. No. C–000125, 2000 WL 1867371, *1 (Dec. 22, 2000) quoting
Hagemeyer v. Sadowski, 86 Ohio App.3d 563, 566, 621 N.E.2d 707 (6th Dist.1993).
       {¶14} The First District has considered the implications of a settlement
agreement on "prevailing party" status in Keal v. Day, 164 Ohio App.3d 21, 2005-
Ohio-5551, 840 N.E.2d 1139 (1st Dist.) holding that by entering into a settlement
agreement the plaintiff nullified the benefit of a successful defense against the
defendant. Therefore, the plaintiff forfeited his status as the prevailing party. Id. at ¶1,
¶12.
       {¶15} The same logic applies here. Anthony and the defendants resolved the
issues before the trial court with the exchange of personal property which was
memorialized with the filing of the magistrate's order. The order does not identify one
side as the prevailing party. Both sides were required to exchange items of personal
property, though Anthony only was required to return a shotgun. Accordingly,
                                                                                    -5-


Anthony is not entitled to attorney's fees as he is not a "prevailing party."
       {¶16} Further, Anthony would not be successful under a bad faith analysis.
The magistrate's decision and judgment entry outlined the testimony and reviewed
the factual details of this matter at length, noting the history of discord and strife:

       As noted above, this case involves the tragic situation of intra-family
       conflict, pitting brother against brother, son against father, and bringing
       other family members into the vortex of the conflict. In this case,
       although the record does show that certain, specific incidents intensified
       the differences, this conflict originated decades ago and, since then,
       many resentments simmered beneath the surface until the incidents
       described in the testimony caused the irreparable breach that led to this
       lawsuit.

       {¶17} After a thorough analysis the judgment entry concluded: "[b]ased upon
the testimony and documents introduced at the trial, the court is unable to conclude
that Vito, Frank, or John acted in a manner that could be described as 'bad faith,
vexatious, wanton, obdurate, or for oppressive reasons'."
       {¶18} The magistrate was in the best position to judge the credibility of the
witnesses and evidence presented. Anthony does not take issue with the facts, but
rather the magistrate and judge's interpretation of those facts, based upon the
evaluation of the witnesses' demeanor and credibility. As the defendants readily
concede, all of the parties involved had been through numerous years of family
conflict. The magistrate and trial judge viewed the facts from an objective standard
and cannot be said to have committed an abuse of discretion.
       {¶19} We turn next to Anthony's second assignment of error regarding the
letters sent by the defendants' attorney before the original complaint was filed. As
noted above, Anthony asserts these are "the key linchpin" to his claim for attorney
fees. Although the letters were unprofessional and exacerbated the family discord,
the magistrate and the trial court did not abuse their discretion in finding the conduct
                                                                                -6-


of the defendants and their attorney did not rise to the level warranting attorney fees.
       {¶20} In sum, this case does not involve circumstances that warrant an
exception to the American rule regarding attorney fees. Accordingly, Anthony's first
and second assignments of error are meritless.
                            Default Judgment on Liability
       {¶21} In his third of four assignments of error, Anthony asserts:

              THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT
       A DEFAULT JUDGMENT ON THE ISSUE OF LIABILITY ONLY.

       {¶22} A trial court's decision to grant or deny a motion for default judgment is
reviewed on appeal for an abuse of discretion. Fitworks Holding L.L.C. v. Sciranko,
8th Dist. No. 90593, 2008–Ohio–4861, ¶ 4, citing Discover Bank v. Hicks, 4th Dist.
No. 06CA55, 2007–Ohio–4448. "An abuse of discretion means an error in judgment
involving a decision that is unreasonable based upon the record; that the appellate
court merely may have reached a different result is not enough." Downie v.
Montgomery, 7th Dist. No. 12 CO 43, 2013-Ohio-5552, 2013 WL 6687239, ¶ 50.
       {¶23} The parties resolved the matter with the exchange of personal property
at issue, as memorialized in a magistrate's decision. But then Anthony filed his first
amended complaint. According to the leave, the basis of the amended complaint was
for Anthony to state "with more particularity and detail" the monetary loss he suffered,
specifically back real estate taxes and loss of rental income, due to the defendants'
actions. Anthony stated that "such amendment to account for specific damages was
contemplated in paragraph 8 of Plaintiff's Complaint, as well as the prayer clause of
same.” Defendants answered this amended complaint after being granted leave.
       {¶24} Anthony then filed a second amended complaint, and in his motion
seeking leave to do so stated that the purpose was to "more clearly set forth his
damage claim." He said the "damages were generally and/or specifically pled to
some extent and/or contemplated in paragraph 8, and paragraphs 18-25 of Plaintiff's
Amended Complaint, as well as the prayer clause of same." Defendants concede
                                                                                -7-


that they missed the deadline to file the answer to the second amended complaint.
Anthony filed a motion for default judgment, after which the Defendants filed an
answer and a motion for leave to file instanter a response to Anthony's default
judgment motion.
       {¶25} Anthony's argument is meritless for two reasons. First, granting
Anthony a default judgment would be extreme and unwarranted. Defendants filed an
answer and various motions. Clearly, they were actively participating in this matter
throughout the proceedings.
       {¶26} Secondly, and more importantly, neither of Anthony's motions for leave
to file nor the two amended complaints sought attorney fees. Instead, they were filed
with the stated purpose of clarifying and particularizing the damage claims relating to
the real property. Both leaves to plead stated that the damages were generally pled
in paragraph 8 of the original complaint. In the defendants' original answer they
denied the allegations contained in paragraph 8. A default judgment may be awarded
when a defendant fails to make an appearance by filing an answer or otherwise
defending an action. Civ.R. 55(A). The defendants made an appearance and filed
answers to both the original and the first amended complaint. As there were no new
allegations raised in the second amended complaint, the defendants had no need to
deny these allegations as they had denied all damages in both of their previously
filed answers.
       {¶27} Because the trial court properly denied default judgment, Anthony's
third assignment of error is meritless.
                          Review of Magistrate's Decision
       {¶28} In his fourth and final assignments of error, Anthony asserts:

              THE TRIAL COURT ERRED IN NOT CONDUCTING AN
       INDEPENDENT REVIEW OF THE MAGISTRATE'S DECISION DATED
       JUNE 9, 2014 BY DENYING APPELLANT'S REQUEST FOR ORAL
       ARGUMENT            AND        REPLICATING/DUPLICATING                 THE
       MAGISTRATE'S DECISION VERBATIM IN HER JUDGMENT ENTRY.
                                                                                -8-


       {¶29} In ruling on objections to a magistrate's decision, Civ.R. 53(D)(4)(d)
requires a trial court to undertake an independent review of the objected matters to
ascertain that the magistrate properly determined the factual issues and appropriately
applied the law. Bailey v. Marrero-Bailey, 7th Dist. No. 10 BE 16, 2012–Ohio–894,
¶15. A decision to modify, affirm or reverse a magistrate's decision lies within the
sound discretion of the trial court and should not be reversed on appeal absent an
abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028
(1989). "An abuse of discretion means an error in judgment involving a decision that
is unreasonable based upon the record; that the appellate court merely may have
reached a different result is not enough." Downie v. Montgomery, 7th Dist. No. 12 CO
43, 2013-Ohio-5552, ¶ 50.
       {¶30} When examining whether a trial court has conducted the required
independent review of a magistrate's decision, appellate courts "generally presume
regularity in the proceedings below, and, therefore, we generally presume that the
trial court conducted its independent analysis in reviewing the magistrate's decision.”
Mahlerwein v. Mahlerwein, 160 Ohio App.3d 564, 2005-Ohio-1835, 828 N.E.2d 153,
¶ 47 (4th Dist.). Thus, a party who asserts that the trial court did not conduct such a
review bears the burden of affirmatively demonstrating the trial court's failure to
perform its duty. Id.
       {¶31} When ruling on the magistrate's objections, the trial judge stated: "The
Court finds that there is no reason for an oral hearing on the issues presented in the
objections and therefore declines to conduct a hearing. Civ. R. 53(4)(d). The Court
has undertaken an independent review as to the objected matters to ascertain that
the Magistrate has properly determined the factual issues and appropriately applied
the law in consideration of this matter."
       {¶32} Anthony argues that the trial court did not conduct an independent
review of the magistrate's decision demonstrated by the court "cavalierly not writing
its own opinion after review of the transcript and exhibits in this matter" highlighted
further by the "denial of oral argument in this matter." He contends that the trial court
                                                                              -9-


needed to write its own opinion to demonstrate it conducted an independent review
of the magistrate's decision before we can affirm its conclusion. We have previously
stated the cutting and pasting of a magistrate's decision into a judgment entry does
not show mere rubber-stamping. Ramos v. Khawli, 181 Ohio App.3d 176, 2009-Ohio-
798, 908 N.E.2d 495, ¶ 26 (7th Dist.), citing Schmidli v. Schmidli, 7th Dist. No. 02 BE
63, 2003-Ohio-3274, ¶ 16.
       {¶33} Further, Anthony's argument ignores the presumption in favor of the
regularity of trial court proceedings mentioned above. Anthony has not presented
anything to rebut the presumption that the trial court conducted the required
independent analysis, even though he has the affirmative duty to demonstrate that
the trial court did not conduct the required review. "An affirmative duty requires more
than a mere inference, it requires appellant to provide the reviewing court with facts
to rebut our general presumption." In re Taylor G., 6th Dist. No. L-05-1197, 2006-
Ohio-1992, ¶ 21. Accordingly, Anthony's fourth assignment of error is meritless.
       {¶34} In conclusion, the trial court did not abuse its discretion in failing to
award Anthony his attorney's fees or in denying his motion for default judgment. Nor
did Anthony demonstrate that the trial court failed to conduct an independent review
of the magistrate's decision. Accordingly, Anthony's assignments of error are
meritless and the judgment of the trial court is affirmed.



Donofrio, P. J., concurs.

Waite, J., concurs.
