[Cite as Tillman v. Hyde Park Condominium #3 Owners’ Assn., 2013-Ohio-2432.]


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

KRISTINE TILLMAN                                        C.A. No.        26455

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
HYDE PARK CONDOMINIUM #3                                COURT OF COMMON PLEAS
OWNERS ASSOC., et al.                                   COUNTY OF SUMMIT, OHIO
                                                        CASE No.   CV 2009-02-1091
        Appellee

                               DECISION AND JOURNAL ENTRY

Dated: June 12, 2013



        CARR, Judge.

        {¶1}    Appellant, Kristine Tillman, appeals an order of the Summit County Court of

Common Pleas that awarded attorney’s fees to appellee, the Hyde Park Condominium Owners’

Association. This Court reverses.

                                                   I.

        {¶2}    Tillman sued the Association for damages to her unit that she believed to be

caused by problems with the building exterior and, therefore, within the responsibility of the

Association. She also requested injunctive relief and declaratory judgments related to other

tenants’ use of their units and the Association’s use of a contractor who allegedly

misappropriated funds derived from the fees paid by members of the Association.           The

Association filed a counterclaim maintaining that the damage to Tillman’s unit was due to her

own failure to maintain and repair her windows. The counterclaim sought injunctive relief

compelling her to do so, damages for repairs made to her windows by the Association, and
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attorney’s fees. The trial court granted summary judgment to the Association on all but one of

Tillman’s claims against it, and she attempted to voluntarily dismiss the remaining claim under

Civ.R. 41(A)(1)(a). The remaining claim settled.

       {¶3}    With respect to the Association’s counterclaim, the trial court granted summary

judgment to the Association as to the cost of the repairs that it made to Tillman’s windows, but

scheduled a hearing before a magistrate on the Association’s claims for injunctive relief and

attorney’s fees. After the hearing, the magistrate recommended an award of $29,377.50 in

attorney’s fees plus $1,700 for the cost of repairing the windows. Tillman filed timely objections

supported by an affidavit of counsel, but did not file a transcript of the hearing before the

magistrate. The trial court noted the absence of a transcript, adopted the magistrate’s findings of

fact, and concluded that “the Findings of Fact do support the Conclusions of Law.”

Consequently, the trial court entered judgment in favor of the Association on counts two and

three of its counterclaim, awarding $1,700 in damages and $29,377.50 in attorney’s fees.1

       {¶4}    Tillman timely appealed, asserting one assignment of error.

                                                II.

                                 ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES OF
       $29,377.50, AN AMOUNT MORE THAN 17 TIMES THE AMOUNT OF THE
       COMPENSATORY DAMAGE AWARD.




       1
          The trial court did not rule on count one of the Association’s counterclaim, which
requested a preliminary and permanent injunction against Tillman. Similarly, Tillman’s attempt
to dismiss one, but not all, of her claims against the Association under Civ.R. 41(A)(1)(a) was
ineffective. See Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, at ¶ 18.
Nonetheless, the trial court’s judgment with respect to counts two and three of the counterclaim
provided that there was no just cause for entering judgment with respect to that portion of the
case under Civ.R. 54(B). See generally Noble v. Colwell, 44 Ohio St.3d 92 (1989), syllabus.
                                                   3


        {¶5}    Tillman’s assignment of error raises two arguments: first, that the trial court erred

by summarily entering judgment in accordance with the magistrate’s decision without

considering her objections to the magistrate’s legal conclusions, and second, that the amount of

the attorney’s fees award was disproportionate to the compensatory damages. Her first argument

is dispositive of this appeal.

        {¶6}    Civ.R. 53(D)(4)(d) explains the “independent review” required when timely

objections to a magistrate’s decision are filed:

        Action on objections. If one or more objections to a magistrate's decision are
        timely filed, the court shall rule on those objections. In ruling on objections, the
        court shall undertake an independent review as to the objected matters to ascertain
        that the magistrate has properly determined the factual issues and appropriately
        applied the law. Before so ruling, the court may hear additional evidence but may
        refuse to do so unless the objecting party demonstrates that the party could not,
        with reasonable diligence, have produced that evidence for consideration by the
        magistrate.

Whenever objections are filed, therefore, a trial court must consider whether the magistrate

properly determined the factual issues and whether the magistrate appropriately applied the law.

Id. If a party objects to factual findings contained in a magistrate’s decision, however, the

objections must “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.” Civ.R.

53(D)(3)(b)(iii). When a party objects to a finding of fact but fails to support the objection as

required by the Rule, the trial court may accept the magistrate’s findings of fact, but must still

review the conclusions of law that are the subject of objections. See Weitzel v. Way, 9th Dist.

No. 21539, 2003-Ohio-6822, ¶ 18. See also Martin v. Ohio Dept. of Rehab. and Corr., 10th

Dist. No. 07AP-1006, 2008-Ohio-3166, ¶ 10 (In reviewing the magistrate’s legal analysis, the

trial court may “reach a different legal conclusion as long as that conclusion is supported by the

magistrate’s findings of fact.”).
                                                 4


       {¶7}    Tillman did not file a transcript of the proceedings before the magistrate, but she

did attach an affidavit from her attorney to the objections. The first question we must consider,

then, is whether her attorney’s affidavit was an appropriate substitute for the transcript of

proceedings under Civ.R. 53(D)(3)(b)(iii). The terms of the Rule, however, limit the use of a

transcript to situations in which the transcript is not available. Id. Consequently,

       The rule does not provide the objecting party with an option to file either a
       transcript or an affidavit. An affidavit may be employed only where a transcript
       of the proceedings is not available. A transcript is not unavailable merely because
       the original stenographic notes have not been transcribed or because a party elects
       not to order a transcript of the proceedings. Where a transcript can be produced,
       the transcript is available and must be provided to the trial court in support of
       objections to a magistrate's decision.

Gladden v. Grafton Correctional Institution, 10th Dist. No. 05AP-567, 2005-Ohio-6476, ¶ 7.

Neither Tillman’s objections nor her attorney’s affidavit addresses the availability of the

transcript in this case. Under the plain language of the Rule, Tillman could not opt to support her

objections with an affidavit without showing that the transcript of proceedings was unavailable.

Even if we assume without deciding that Tillman’s affidavit adequately sets forth the evidence

from the hearing before the magistrate, therefore, Tillman’s use of an affidavit in support of her

objections in this case was not proper.

       {¶8}    Our next consideration is whether the trial court erred by adopting the

magistrate’s decision and entering judgment in favor of the Association without first considering

Tillman’s objections to the magistrate’s legal analysis. Tillman raised fifteen timely objections

to the magistrate’s decision. Some of the objections argued that the magistrate’s findings of fact

were contrary to the evidence, but many of them challenged the legal basis for the magistrate’s

recommendations by arguing that the magistrate misinterpreted or failed to apply relevant

statutes and rules. In objection ten, for example, Tillman argued that the magistrate failed to
                                                 5


engage in the analysis required by Prof.Cond.R. 1.5 for determining the reasonableness of an

attorney fee award. She also argued that the magistrate misinterpreted R.C. 5311.081(C) and

that, as a matter of law, an award of attorney’s fees in excess of $29,000 is disproportionate to

compensatory damages of $1,700.

       {¶9}     The trial court summarized the requirements of Civ.R. 53(D)(3)(iii), then

concluded:

       Without a transcript this Court has no basis to determine whether [Tillman’s]
       objections to the magistrate’s factual findings were well-grounded. In such cases,
       the trial court does not err in accepting and adopting the findings of fact contained
       in the magistrate’s decision.

       Upon review of the Magistrate’s decision, without review of the transcript, this
       Court finds that the Findings of Fact do support the Conclusion of Law.
       Accordingly, this Court will overrule the Appellant’s objections to the
       Magistrate’s decision.

(Internal citations omitted.)   To the extent that the trial court accepted and adopted the

magistrate’s findings of fact in the absence of a transcript, it did not err. Nonetheless, Civ.R.

53(D)(4)(d) requires “an independent review as to the objected matters to ascertain that the

magistrate has properly determined the factual issues and appropriately applied the law.”

(Emphasis added.) With respect to the legal arguments raised by objections in this case, the trial

court erred by confining its decision to whether the findings of fact supported the conclusions of

law without considering Tillman’s objections to the magistrate’s legal conclusions themselves.

See generally Civ.R. 53(D)(4)(d).

       {¶10} We agree that the trial court erred by failing to consider Tillman’s objections to

the extent that they challenged the correctness of the magistrate’s legal conclusions. The rest of

her assignment of error, which argues that the substance of the trial court’s judgment is incorrect,

is premature.
                                                  6


       {¶11} Tillman’s assignment of error is sustained.

                                                 III.

       {¶12} Tillman’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed, and this matter is remanded to the trial court to consider

Tillman’s objections, without a transcript, in light of this decision.

                                                                               Judgment reversed
                                                                             and cause remanded.




       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.

       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 Appellee, Hyde Park Condominium #3 Owners’ Association.




                                                        DONNA J. CARR
                                                        FOR THE COURT


BELFANCE, P. J.
HENSAL, J.
CONCUR
                                          7



APPEARANCES:

TIM L. COLLINS and JULIE A. PERKINS, Attorneys at Law, for Appellant.

CULLEN J. COTTLE, Attorney at Law, for Appellee.
