[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 defendantappellee, 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-Ohio5369, ¶ 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.