Ashley v. Kevin O'Brien & Assocs. Co., L.P.A. ( 2023 )

[Cite as Ashley v. Kevin O'Brien & Assocs. Co., L.P.A., 2023-Ohio-4677.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Stacia Ashley, :
Plaintiff-Appellee, :
No. 23AP-81
v. : (C.P.C. No. 16CV-1795)
Kevin O’Brien & Assoc. Co. LPA, et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on December 21, 2023
On brief: Kevin O’Brien & Assoc. Co., L.P.A., and Donn L.
Costello, for appellant.
On brief: Ice Miller L.L.P., John P. Gilligan, and Amy E.
Flowers, for appellee Stacia Ashley.
On brief: Organ Law L.L.P., Shawn J. Organ, and Ashley T.
Merino, for appellees Scott Torguson and Gregory
Reichenbach.
APPEAL from the Franklin County Court of Common Pleas
BOGGS, J.
{¶ 1} Defendants-appellants, Kevin O’Brien (“O’Brien”) and Kevin O’Brien &
Associates Co., L.P.A. (the “O’Brien firm”) (collectively, “appellants”), appeal the judgment
of the Franklin County Court of Common Pleas denying their motion for sanctions against
plaintiff-appellee, Stacia Ashley, and her former attorneys, appellees, Scott Torguson and
Gregory Reichenbach.1 For the following reasons, we affirm the trial court’s judgment.
1 Appellants originally also sought sanctions against attorney Jacqueline Gutter, but they dismissed Gutter
after her limited involvement came to light during the hearing on the motion for sanctions. (Oct. 21, 2022
Mag.’s Decision at 2.)
No. 23AP-81 2
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} This is a relatively straightforward case, which presents to this court only the
question whether appellants are entitled to sanctions for frivolous conduct under R.C.
2323.51 as a result of Ashley suing appellants for violations of the Fair Debt Collections
Practices Act (“FDCPA”); it is complicated only by the lengthy history of litigation between
the parties, including no less than four appeals to this court, all stemming from the
collection of a payday loan.
{¶ 3} In this case, filed in February 2016, Ashley sued appellants, alleging multiple
violations of the FDCPA in appellants’ attempts to collect on an unpaid loan from their
client, 1st National Financial Services, Ltd. (“1st National”), to Ashley. The FDCPA case was
stayed twice, first because O’Brien filed for bankruptcy and later to await this court’s
resolution of appeals in a case regarding the underlying debt. After this court resolved the
final appeal regarding the underlying debt in 2019, Ashley voluntarily dismissed her
FDCPA complaint. Two weeks later, however, appellants filed a motion for sanctions
against Ashley and her attorneys, arguing that the filing of the FDCPA complaint
constituted frivolous conduct under R.C. 2323.51. After holding an evidentiary hearing, a
magistrate denied the motion for sanctions. The trial court then overruled appellants’
objections to the magistrate’s decision, which it adopted as the court’s own. This appeal
follows.
{¶ 4} Because Ashley’s claims for violations of the FDCPA concern appellants’
attempts to collect her debt to 1st National, we must examine the facts concerning the
underlying debt and appellants’ conduct in relation thereto to evaluate appellants’ claim,
pursuant to R.C. 2323.51, for sanctions for frivolous conduct.
A. The debt, the collection actions, and the cognovit note
{¶ 5} In September 2014, on behalf of 1st National, appellants filed a complaint
against Ashley in the Franklin County Municipal Court, Small Claims Division, to recover
the amount due on a loan that 1st National made to Ashley under the Ohio Mortgage Loan
Act, R.C. 1321.51, et seq. (Feb. 20, 2016 Compl. at ¶ 24-26, Ex. 1.) A Loan Repayment
Agreement dated September 13, 2013 indicates that Ashley borrowed $1,998.31, with
interest at 25 percent per annum, to be repaid in total by October 11, 2013. The 2014
complaint characterizes that case as a “consumer loan case.” (Compl., Ex. 1 at 2.)
No. 23AP-81 3
{¶ 6} 1st National dismissed its 2014 collection case after Ashley signed a cognovit
promissory note on February 28, 2015, by which she agreed to pay the O’Brien firm, as 1st
National’s counsel, $1,423.70, with zero percent interest. (Compl., Ex. 2 at 4.) The note set
forth the terms of repayment and stated, “The parties * * * stipulate and agree that this note
represents the settlement of a commercial matter and that the instant note is not given for
a consumer loan, transaction or debt.” (Emphasis sic.) (Nov. 19, 2022 Def.s’ Brief on Objs.
at 2.) The cognovit note does not identify the underlying loan from 1st National to Ashley
or the case number of the 2014 collection case, but the parties do not dispute that it was
utilized as a settlement of that case. (Id. at 2; Dec. 5, 2022 Opp. & Resp. to Defs.’ Purported
Objs. at 7.)
{¶ 7} On April 27, 2015, on behalf of 1st National, appellants filed a complaint
against Ashley in the Franklin County Municipal Court to recover on the cognovit note,
alleging that Ashley was in default under the agreed upon terms of repayment. (Feb. 20,
2016 Compl. at ¶ 42, Ex. 2; Def.s’ Aug. 25, 2017 Mot. to Dismiss at 3.) On April 30, 2015,
the municipal court entered judgment on the cognovit note against Ashley in the amount
of $1,073.70 plus statutory interest of 4 percent per annum and court costs. The municipal
court subsequently issued an order for Ashley’s wages to be garnished to satisfy the
judgment. Ashley alleged in her FDCPA complaint that appellants have retained from her
garnished wages an amount greater than that due under either the terms of the cognovit
note or under the April 30, 2015 judgment. (Feb. 20, 2016 Compl. at ¶ 55-56.)
B. The motion to vacate the cognovit judgment
{¶ 8} In September 2015, Ashley filed a motion in the municipal court to vacate the
cognovit judgment, arguing primarily that the cognovit note was invalid and the municipal
court lacked jurisdiction to enter judgment because the note arose from a consumer loan.
See 1st Natl. Fin. Servs. v. Ashley, 10th Dist. No. 16AP-18, 2016-Ohio-5497, ¶ 3 (“Ashley
I”). The municipal court initially denied Ashley’s motion as moot because 1st National had
filed a notice captioned “Satisfaction of Judgment,” stating that the judgment had been
satisfied by the garnished funds. Id. at ¶ 6-7. Ashley appealed that judgment.
C. The FDCPA complaint
{¶ 9} While the municipal court’s judgment denying her motion to vacate the
cognovit judgment was on appeal to this court in Ashley I, and while questions regarding
No. 23AP-81 4
the consumer or commercial nature of Ashley’s debt to 1st National, the validity of the
cognovit note, and whether the trial court had subject-matter jurisdiction to enter judgment
on the cognovit note remained unresolved, Ashley filed her FDCPA complaint. Ashley
alleged that appellants’ collection actions violated 15 U.S.C. 1692e, 1692e(2), 1692e(5),
1692e(8), 1692e(10), 1692f, and 1692f(1). (Feb. 20, 2016 Compl. at ¶ 60-66.)
{¶ 10} Ashley alleged that although appellants described the loan between 1st
National and Ashley as a “consumer loan” in the 2014 collection complaint, id. at ¶ 25, they
settled the matter by having her sign a cognovit note that “falsely stated that ‘it represents
the settlement of a commercial matter and * * * is not given for a consumer loan, transaction
or debt,” id. at ¶ 38, when “Ohio law forbids the use of a cognovit note to satisfy an
obligation entered into for personal, family, educational or household purposes,” id. at ¶ 39.
Ashley alleged that an employee of the O’Brien firm told her she need not read the cognovit
note, that she did not speak with the O’Brien firm on the day she signed the note, and that
no one from the O’Brien firm discussed with her whether she had used the underlying loan
from 1st National for a business purpose. Id. at ¶ 33, 35-36, 41. Ashley also alleged that
appellants made false statements to the municipal court in the 2015 collection case
regarding the nature of the underlying debt and the discussions between O’Brien and
Ashley that preceded her signing of the cognovit note. Id. at ¶ 50. She maintained that the
cognovit judgment was void, and that appellants recovered by garnishment more than
would have been due under either the cognovit note or the 2015 judgment. Id. at ¶ 53, 56.
She also alleged, more generally, that appellants “had a practice of suing consumer debtors
* * * without any intention of prosecuting the case through a final hearing.” Id. at ¶ 29.
{¶ 11} Appellants filed a motion to dismiss the FDCPA complaint pursuant to Civ.R.
12(B)(6), arguing that the doctrine of collateral estoppel precluded Ashley from arguing
that her debt to 1st National was a consumer debt, because that question was resolved when
the municipal court denied Ashley’s motion to vacate the cognovit judgment.2 They also
argued that Ashley was equitably estopped from arguing that the debt was a consumer debt
because she had stipulated otherwise in the cognovit note. The trial court converted
appellants’ motion to dismiss into one for summary judgment, but it then stayed the matter
2 Appellants filed their motion to dismiss prior to the second appeal of the municipal court’s denial of Ashley’s
motion to vacate judgment. Thus, the characterization of the underlying debt as consumer or commercial had
not yet been finally determined.
No. 23AP-81 5
pending resolution of appeals of the municipal court’s judgment denying Ashley’s motion
to vacate.
D. Appeals in the 2015 collection case
{¶ 12} In Ashley I, this court reversed the municipal court’s judgment denying as
moot Ashley’s motion to vacate, because the municipal court did not examine whether it
had subject-matter jurisdiction to enter the cognovit judgment, as Ashley had argued in her
motion. Ashley I at ¶ 29. We acknowledged that a common pleas court lacks jurisdiction
to enter judgment upon a warrant of attorney accompanying a cognovit note when “ ‘the
relationship giving rise to the claim for relief involves a consumer transaction.’ ” Id. at ¶ 23,
quoting Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988).
{¶ 13} On remand, the municipal court again denied Ashley’s motion to vacate after
conducting an evidentiary hearing. This court again reversed the municipal court’s
judgment, however, this time holding that the trial court improperly placed on Ashley the
burden of proving that the underlying loan was a consumer loan. 1st Natl. Fin. Servs. v.
Ashley, 10th Dist. No. 17AP-638, 2018-Ohio-3134 (“Ashley II”). We held that the municipal
court “should have placed the burden on 1st National * * *, as the party seeking to invoke
the court’s jurisdiction,” to establish the court’s subject-matter jurisdiction. Id. at ¶ 14.
{¶ 14} Following the second remand from this court, the municipal court denied
Ashley’s motion to vacate a third time, and Ashley appealed yet again. In her third appeal,
this court affirmed the municipal court’s judgment. 1st Natl. Fin. Servs. v. Ashley, 10th
Dist. No. 18AP-803, 2019-Ohio-5321 (“Ashley III”). We did not afford determinative
weight to the statement in the cognovit note that it represented the settlement of a
commercial matter. Instead, we stated, “Lacking any documentary evidence outside of the
cognovit instrument itself, the issue hinges almost entirely on the credibility of the
witnesses.” Id. at ¶ 18. We held that Ashley gave this court “no persuasive reason to
question the trial court’s” assignment of credibility to O’Brien’s testimony that he explained
to Ashley she could only execute the cognovit note if she had used the proceeds of the
underlying loan for commercial purposes. Id. at ¶ 19. We stated, “Given the trial court was
in the best position to view the credibility of the witnesses, and found O’Brien credible and
[Ashley] not credible, we conclude the loan was for commercial purposes.” Id.
No. 23AP-81 6
E. The motion for sanctions and the motion to disqualify the magistrate
{¶ 15} Ashley voluntarily dismissed her FDCPA complaint without prejudice shortly
after this court issued its decision in Ashley III, (Jan. 21, 2020 Notice of Dismissal), but
approximately two weeks later, appellants filed a motion for sanctions against Ashley and
her attorneys, pursuant to R.C. 2323.51. (Feb. 06, 2020 Def.s’ Mot. for Sanctions at 1.)
Appellants argued that Ashley’s FDCPA claims “should never have been filed,” because
Ashley could not repudiate the settlement represented by the cognovit judgment or
contradict the stipulation contained in the cognovit note that the underlying loan was not
a consumer loan. Id. at 5-6. They reiterated arguments from their motion to dismiss that
equitable estoppel barred Ashley from denying the validity of the cognovit note, and that
execution of the cognovit note to settle the 2014 collection action extinguished the original
loan and any claim based thereon. Id. at 7-11. The trial court referred the matter to
Magistrate Mark Petrucci for a hearing. (Feb. 18, 2020 Order of Ref.)
{¶ 16} While their motion for sanctions remained pending, appellants filed a motion
to disqualify Magistrate Petrucci. Based on statements the magistrate allegedly made
during a status conference, appellants argued that the magistrate was biased or prejudiced
against appellants. The trial court denied the motion to disqualify the magistrate.
{¶ 17} Following an evidentiary hearing, at which O’Brien was the only witness, the
magistrate issued a decision, including findings of fact and conclusions of law, denying the
motion for sanctions. The magistrate concluded that O’Brien did not establish a factual or
a legal basis for holding that Ashley’s filing of the FDCPA complaint constituted frivolous
conduct. (Oct. 21, 2022 Mag.’s Decision at 9.) In particular, the magistrate noted that
O’Brien’s testimony addressed Ashley’s FDCPA claims only vis-à-vis the cognovit note and
did not touch on Ashley’s other claimed violations of the FDCPA. Id. He concluded, “there
was no controlling law on point that would show that the [FDCPA complaint] was not
warranted under existing law,” id. at 10, and O’Brien’s belief that he would prevail on
Ashley’s claims was not evidence that those claims were frivolous, id. at 9. He also found
no evidence that Ashley or her attorneys “filed the complaint to merely harass or
maliciously injure” appellants. Id. at 10.
{¶ 18} Appellants filed timely objections to the magistrate’s decision, which they
supplemented with a brief, but they did not file a transcript of the sanctions hearing or an
No. 23AP-81 7
affidavit of the evidence presented to the magistrate. The trial court overruled appellants’
objections, adopted the magistrate’s decision, and denied appellants’ motion for sanctions.
Id. at 5.
II. ASSIGNMENT OF ERROR
{¶ 19} Appellants raise a single assignment of error, which states, “THE TRIAL
COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR SANCTIONS.”
(Appellants’ Brief at v.) Within that single assignment of error, however, appellants argue
that (1) the municipal court had jurisdiction to enforce the cognovit note, (2) Ashley could
not repudiate the cognovit note, (3) Ashley’s claims against 1st National or appellants were
merged into the settlement agreement/cognovit note, (4) Ashley is equitably estopped from
denying the validity or terms of the cognovit note, (5) 1st National’s release of its claim
against Ashley bars her FDCPA claims, and (6) the trial court erred by overruling the
motion to disqualify the magistrate. Id. at v.
III. DISCUSSION
A. Motion for sanctions
{¶ 20} A party to a civil action who is adversely affected by frivolous conduct may
file a motion for an award of court costs, reasonable attorney fees, and other reasonable
expenses incurred in connection with the civil action. R.C. 2323.51(B)(1). R.C.
2323.51(A)(2) defines “frivolous conduct” as:
(a) Conduct of [a] party to a civil action * * * that satisfies any
of the following:
(i) It obviously serves merely to harass or maliciously injure
another party to the civil action or appeal or is for another
improper purpose, including, but not limited to, causing
unnecessary delay or a needless increase in the cost of
litigation.
(ii) It is not warranted under existing law, cannot be supported
by a good faith argument for an extension, modification, or
reversal of existing law, or cannot be supported by a good faith
argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual
contentions that have no evidentiary support or, if specifically
so identified, are not likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
No. 23AP-81 8
(iv) The conduct consists of denials or factual contentions that
are not warranted by the evidence or, if specifically so
identified, are not reasonably based on a lack of information or
belief.
Analysis of a claim for fees and expenses under R.C. 2323.51 requires the court to determine
“ ‘(1) whether an action taken by the party to be sanctioned constitutes “frivolous conduct,”
and (2) what amount, if any, of reasonable attorney fees necessitated by the frivolous
conduct is to be awarded to the aggrieved party.’ ” Streb v. AMF Bowling Ctrs., Inc., 10th
Dist. No. 99AP-633, 2000 Ohio App. LEXIS 1927, *11 (May 4, 2000), quoting Ceol v. Zion
Industries Inc., 81 Ohio App.3d 286, 291 (9th Dist.1992). A court may award fees and
expenses under R.C. 2323.51(B)(1) against a party, the party’s attorney, or both. R.C.
2323.51(B)(4).
{¶ 21} Appellants’ motion for sanctions cites all four subsections of R.C.
2323.51(A)(2)(a), but it does not specify how particular conduct by Ashley and her
attorneys satisfies any particular definition of “frivolous conduct.” The thrust of the
motion, however, seems to be that Ashley and her attorneys engaged in frivolous conduct
by filing claims for violations of the FDCPA upon which appellants contend Ashley could
not prevail. The magistrate found that, when asked at the sanctions hearing why O’Brien
moved for sanctions, he responded, “ ‘this case should never have been filed’ ” (Oct. 21,
2022 Mag.’s Decision at 6), and when asked about the basis of his motion, he responded,
“there was not law that would support” Ashley’s claims, id. at 7.
{¶ 22} No single standard of review applies when an appellate court reviews a claim
under R.C. 2323.51. Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-
533, 2015-Ohio-3567, ¶ 35. “[R]eview of a trial court’s factual determinations is subject to
deference and will not be disturbed where the record contains competent, credible evidence
to support the trial court’s findings.” Id. On the other hand, a determination under R.C.
2323.51(A)(2)(a)(ii) that conduct is not warranted under existing law and cannot be
supported by a good-faith argument for an extension, modification, or reversal of existing
law requires a legal analysis and is subject to de novo review. Id.{¶ 23} R.C. 2323.51 does not include within the definition of frivolous conduct “ ‘the
assertion of a claim or defense which is not well grounded in fact.’ ” Fornshell v. Roetzel &
Andres, L.P.A., 8th Dist. No. 92132, 2009-Ohio-2728, ¶ 72. In Fornshell, the court
No. 23AP-81 9
recognized the danger that applying R.C. 2323.51 too broadly, particularly in cases where
there is not a clear cut statutory violation, could unacceptably chill legitimate advocacy by
discouraging an attorney from aggressively representing a client. Id. The test for
determining whether the filing of a claim was frivolous under R.C. 2323.51(A)(2)(a)(ii) is
whether “ ‘no reasonable attorney would have brought the action in light of the existing
law.’ ” Bennett v. Martin, 10th Dist. No. 13AP-99, 2013-Ohio-5445, ¶ 18, quoting Groves
v. Groves, 10th Dist. No. 09AP-1107, 2010-Ohio-4515, ¶ 17, citing L & N Partnership v.
Lakeside Forest Assn., 183 Ohio App.3d 125, 2009-Ohio-2987, ¶ 37 (10th Dist.). “ ‘ “[A]
claim is frivolous if it is absolutely clear under the existing law that no reasonable lawyer
could argue the claim.” ’ ” Id.{¶ 24} Ashley alleged violations of seven sections of the FDCPA: 15 U.S.C. 1692e,
1692e(2), 1692e(5), 1692e(8), 1692e(10), 1692f, and 1692f(1). (Feb. 20, 2016 Compl. at
¶ 60-66.)
{¶ 25} 15 U.S.C. 1692e states: “A debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” It then
lists 16 examples of such conduct. See 15 U.S.C. 1692(e)(1) through (16). The subsections
cited in Ashley’s complaint identify the following conduct as violations of 15 U.S.C. 1692e:
(2) The false representation of - -
(A) the character, amount, or legal status of any debt; or
***
(5) The threat to take any action that cannot legally be taken or
that is not intended to be taken.
***
(8) Communicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that a
disputed debt is disputed.
***
(10) The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information
concerning a consumer.
No. 23AP-81 10
15 U.S.C. 1692e.
{¶ 26} 15 U.S.C. 1692f states, “A debt collector may not use unfair or unconscionable
means to collect or attempt to collect any debt” and then goes on to list eight examples of
such conduct. 15 U.S.C. 1692f(1), cited in Ashley’s complaint, includes as an unfair or
unconscionable means to collect or attempt to collect a debt “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to the principal obligation) unless
such amount is expressly authorized by the agreement creating the debt or permitted by
law.”
1. The magistrate’s decision
{¶ 27} In his decision, which contained findings of fact and conclusions of law, the
magistrate acknowledged the two exhibits admitted at the hearing—a copy of the cognovit
note and a copy of Ashley’s FDCPA complaint and its attachments—and the parties’
agreement that he could take judicial notice of filings in the collection cases. (Oct. 21, 2022
Mag.’s Decision at 1-2.) The magistrate found that the docket “does not reflect filings
indicative of a party engaged in frivolous conduct,” id. at 6, and concluded that appellants
did not meet their burden of establishing that the filing of the FDCPA complaint constituted
frivolous conduct. Id. at 8-9. He stated there was no controlling law to show that the
FDCPA complaint was unwarranted under existing law and that O’Brien “was unable or
unwilling to provide evidence that ‘no reasonable lawyer’ would have filed the complaint or
advanced the claims when the complaint was filed in 2016.” Id. at 10. He concluded,
appellants “had a burden to show that the complaint was frivolous, and Mr. O’Brien’s
testimony did not remotely prove that it was.” Id. Instead, he concluded that the FDCPA
complaint was “timely filed [and] rais[ed] existing” violations of the FDCPA. Id. The
magistrate also concluded that appellants did not establish that Ashley’s complaint was
frivolous because O’Brien’s testimony only addressed the FDCPA claims stemming from
the cognovit note. Id. at 9. He stated that, since a single statutory violation is sufficient to
support an FCDPA claim, appellants “had a duty to address all of [Ashley’s] claims[,] and
they failed.” Id. Finally, the magistrate found no evidence that Ashley, or her counsel, filed
the FDCPA complaint merely to harass or maliciously injure appellants. Id.
No. 23AP-81 11
2. Civ.R. 53
{¶ 28} A party may file written objections to a magistrate’s decision within 14 days
of the filing of the decision. Civ.R. 53(D)(2)(b)(i). Objections must be “specific and state
with particularity all grounds for objection.” Civ.R. 53(D)(2)(b)(ii). A party who files
objections to a magistrate’s factual findings generally must support those objections with a
transcript of all the relevant evidence submitted to the magistrate. Civ.R. 53(D)(3)(b)(iii)
states:
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.
{¶ 29} A court may adopt a magistrate’s decision to which no objections have been
filed, “unless it determines that there is an error of law or other defect evident on the face
of the magistrate’s decision.” Civ.R. 53(D)(4)(c). If objections are timely filed, however,
the trial court must rule on them by undertaking “an independent review as to the objected
matters to ascertain that the magistrate properly determined the factual issues and
appropriately applied the law.” Civ.R. 53(D)(4)(d). When an objecting party fails to
support objections to a magistrate’s factual findings as required by Civ.R. 53(D)(3)(b)(iii),
though, “ ‘the trial court may properly adopt [the] magistrate’s factual findings without any
further consideration.’ ” Black v. Columbus Sports Network, LLC, 10th Dist. No. 13AP-
1025, 2014-Ohio-3607, ¶ 16, quoting Estate of Stepien v. Robinson, 11th Dist. No. 2013-L-
001, 2013-Ohio-4306, ¶ 28, citing Lincoln S. & L. Assn. v. Damron, 4th Dist. No. 02CA4,
2003-Ohio-2596, ¶ 23. It may then “examine only the magistrate’s legal conclusions based
upon those facts.” Dale v. Ohio State Hwy. Patrol, 10th Dist. No. 04AP-639, 2005-Ohio-
3383, ¶ 18.
{¶ 30} An objecting party’s failure to file a transcript restricts the scope of review not
only by the trial court, but also on appeal. Black at ¶ 15. “ ‘[W]here a party files objections
to a magistrate’s decision in the trial court, but does not support those objections with a
transcript * * *, that party is precluded from arguing on appeal that the trial court erred in
its factual determinations.’ ” Id., quoting Gill v. Grafton Corr. Inst., 10th Dist. No. 09AP-
1019, 2010-Ohio-2977, ¶ 14. In such circumstances, an appellate court’s review is limited
No. 23AP-81 12
to determining “whether the trial court abused its discretion in applying the law to the
magistrate’s findings of fact.” Dale at ¶ 18.
3. Appellants’ objections
{¶ 31} Appellants did not identify in their objections any particular findings of fact
or conclusions of law to which they objected; indeed, as the trial court noted, appellants did
not include a single citation to the magistrate’s decision. Appellants instead rehashed the
same legal arguments they have made before—in their motion to dismiss, in their motion
for sanctions, and in response to Ashley’s motion to vacate, as well as on appeal in the 2015
collection action. As set out in their trial brief on objections, appellants’ objections parallel
the issues listed under their assignment of error here. They state:
1. Defendants’ Settlement with Ashley was Legally
Appropriate; the Municipal Court Always Had Jurisdiction to
hear 1st National’s Cognovit Promissory Note Case.
2. Ashley Settled her 2014 Lawsuit with 1st National by Way of
a Cognovit Promissory Note; a Settlement is a Contract which
Cannot be Repudiated by Either Party.
3. Ashley Settled her 2014 Municipal Court Case with 1st
National; Any Claims which she had Against 1st National and
O’Brien were Merged Into the Settlement Agreement.
4. Ashley is precluded by the Doctrine of Equitable Estoppel
from Denying the Validity and Terms of the Cognovit
Promissory Note She Signed.
5. 1st National Garnished Ms. Ashley’s Wages and Secured All
of the Money Due Under the Terms of the Cognovit Promissory
Note; 1st National Released its Claim Against Ashley by Filing
a Satisfaction of Judgment; the Release of 1st National’s Claim
Against Ashley is an Absolute Bar to Any Subsequent Action
Regarding that Claim, Including Ashley’s FDCPA Claim
Against O’Brien.
6. O’Brien Objects and Renews his Motion to Disqualify
Magistrate Petrucci; Petrucci Improperly Circumscribed the
Hearing; Petrucci Would Not Consider Evidence From the
2014 and 2015 1st National Cases against Ashley; Petrucci was
Openly Hostile Toward O’Brien and Told the Parties How the
Case Would Conclude.
No. 23AP-81 13
(Sic passim.) (Nov. 19, 2022 Defs.’ Brief on Objs. at 1-5, 8.) Appellants did not support
their objections with a transcript of the evidentiary hearing on their motion for sanctions,
nor did they file an affidavit of the evidence presented to the magistrate.
1. The trial court did not err in overruling appellants’ objections
{¶ 32} The sole issue before the magistrate when deciding appellant’s motion for
sanctions was whether Ashley and/or her counsel engaged in frivolous conduct under R.C.
2323.51(A)(2) by filing the FDCPA complaint. If they did not, the magistrate’s analysis was
at an end, and he would have been obligated to deny appellants’ motion.
{¶ 33} First, to the extent appellants challenged any of the magistrate’s findings of
fact, the trial court appropriately overruled those objections, based on appellants’ failure to
file a transcript. (Jan. 6, 2023 Decision & Entry at 3.) See Black, 2014-Ohio-3607, at ¶ 15.
A trial court may properly adopt a magistrate’s factual findings and overrule objections
thereto without any further consideration when the objecting party does not support the
objections in the manner prescribed in Civ.R. 53(D)(3)(b)(iii). Id. This includes the trial
court’s factual findings that the reason for appellants’ motion for sanctions was a belief that
the law did not support Ashley’s claims; that Ashley alleged FDCPA claims separate from
those based on the validity of the cognovit note; that “[t]he docket does/did not reflect
findings indicative of a party engaged in frivolous conduct”; and that O’Brien’s testimony
was not credible. (Oct. 21, 2022 Mag.’s Decision at 6.)
{¶ 34} After appropriately adopting the magistrate’s factual findings, the trial court
concluded that O’Brien failed to state his objections to the magistrate’s legal conclusions
with the specificity required by Civ.R. 53(D)(3)(b)(ii), noting O’Brien’s failure to identify in
his objections the specific conclusions of law to which he objects. (Jan. 6, 2023 Decision &
Entry at 4.) O’Brien does not tie his broad arguments regarding the use of a cognovit note
to settle 1st National’s 2014 collection action to specific conclusions of law in the
magistrate’s decision. A failure to file specific objections is treated the same as a failure to
file any objections. In re A.P., 10th Dist. No. 22AP-62, 2022-Ohio-4295, ¶ 27, citing In re
C.P., 12th Dist. No. CA2010-12-025, 2011-Ohio-4563, ¶ 34. See also State ex rel. Williams
v. Ohio Adult Parole Auth., 10th Dist. No. 22AP-662, 2023-Ohio-850, ¶ 3. But the trial
court then went on to hold that, even if O’Brien had specifically objected to the magistrate’s
No. 23AP-81 14
decision, his objections would not be well-taken, because the magistrate applied the
appropriate law to the findings of fact. We agree on both fronts.
{¶ 35} In her complaint, Ashley alleged that appellants violated the FDCPA in its
efforts to collect on a consumer debt, which ultimately resulted in a cognovit judgment
against Ashley. Although this court ultimately affirmed the municipal court’s denial of
Ashley’s motion to vacate the cognovit judgment in Ashley III, we did not decide Ashley III
until almost four years after Ashley filed her FDCPA complaint. In the first appeal from the
trial court’s denial of Ashley’s motion to vacate, we implicitly rejected appellants’ argument
that the stipulation in the cognovit note itself was determinative of the character of the
underlying debt when we remanded the matter for an evidentiary hearing to determine
whether the municipal court had subject-matter jurisdiction to enter judgment on the
cognovit note. Additionally, the magistrate here found that O’Brien had acknowledged that
Ashley’s loan from 1st National was recorded on a form that identified it as a consumer
transaction and that he had likewise previously characterized it as a consumer loan. (Mag.’s
Decision at 6.) The 2014 collection complaint, filed by appellants and signed by O’Brien,
itself in fact expressly states that the action was a “consumer loan case.” (Feb. 20, 2016
Compl., Ex. 1 at 2.) This court’s ultimate ruling in Ashley III that the cognovit note did not
arise out of a consumer transaction does not render Ashley’s allegation to the contrary,
made four years earlier, frivolous.
{¶ 36} Appellants do not support with any clear, on-point legal authority their
assertion that, regardless of whether the loan from 1st National to Ashley was a consumer
loan when made, the execution of a cognovit note to settle the 2014 collection action
converted the matter into a commercial transaction and thereby stripped from Ashley any
consumer protections to which she may be afforded under the law. Nor do appellants
address in their objections whether a debt collector’s use of cognovit note to settle a debt
that the debt collector had previously acknowledged as a consumer debt is itself a violation
of the FDCPA. Even so, the appellants might have a valid defense to Ashley’s FDCPA claims
does not necessitate a determination that those claims were frivolous when filed. Indeed,
that question would have been one of first impression in Ohio had Ashley’s complaint
proceeded to trial.
No. 23AP-81 15
{¶ 37} Appellants’ reliance on Bd. of Commrs. v. Samuelson, 24 Ohio St.3d 62(1986), for the proposition that execution of the cognovit note resulted in a merger of any
claims Ashley had against 1st National or appellants into the cognovit note, is misplaced.
Samuelson involved a settlement agreement executed after an entry of judgment against
the appellants and uncontroversially held only that the settlement agreement, which the
parties intended “to settle their dispute and end the litigation,” satisfied the preexisting
judgment. Id. at 63. Even assuming that Ashley and 1st National’s rights and obligations
under the original loan were merged into their rights and obligations under the cognovit
note, so as to preclude a claim to enforce the original loan, nothing in the cognovit note
purports to release potential claims by Ashley that appellants violated the FDCPA in their
actions to collect on the debt, including a claim that appellants’ use of the cognovit note
itself constituted a violation of the act.
{¶ 38} The fact that 1st National recovered on Ashley’s debt through a garnishment
of her wages does not preclude Ashley from maintaining her independent claims for
violations of the FDCPA by appellants, and appellants have cited no on-point legal authority
for their argument to the contrary. Appellants made a similar “mootness” argument in
Ashley I, in which they argued that satisfaction of the cognovit judgment rendered moot
Ashley’s appeal from the denial of her motion to vacate. Id. at ¶ 28. We held, however, that
satisfaction of the judgment did not render her appeal moot if the trial court lacked
jurisdiction over the cognovit case to begin with—a question the trial court had not
addressed. Id.
{¶ 39} Here, appellants go further and argue that the satisfaction of judgment
prevents Ashley not just from challenging the underlying judgment, but also from claiming
that appellants violated the FDCPA in their attempts to collect on the debt. In their
objections, appellants cited Haller v. Borror Corp., 50 Ohio St.3d 10, 13 (1990), which
stands for the unremarkable proposition that “[a] release of a cause of action for damages
is ordinarily an absolute bar to a later action on any claim encompassed within the release.”
Id. at 13, citing Perry v. M. O’Neil & Co., 78 Ohio St. 200 (1908). A claim for a violation of
the FDCPA, however, is entirely independent of an action to recover an underlying debt and
cannot be said to be “encompassed” within a release of 1st National’s claim to recover from
Ashley upon satisfaction of its judgment. A finding that settlement or payment of an
No. 23AP-81 16
underlying debt implicitly releases the debtor’s right to sue for a violation of the FDCPA
“would produce consequences squarely at odds with the statute’s public-policy goal of
preventing ‘abusive, deceptive, and unfair debt collection practices.’ ” Werbicky v. Green
Tree Servicing, LLC, D.Nevada No. 2:12-cv-01567-JAD-NJK, 2016 U.S. Dist. LEXIS 40327(Mar. 28, 2016), quoting 15 U.S.C. 1692.
{¶ 40} Finally, putting aside the question of the cognovit note and the
characterization of the underlying loan as a consumer or a commercial loan, the magistrate
found that O’Brien offered no testimony from which it could be determined that Ashley’s
claims for other violations of the FDCPA were frivolous. For example, Ashley alleged that
appellants garnished and retained funds in excess of the amount due under either the
cognovit note or the judgment entered thereon, and that appellants have not returned the
overpayments. Under 15 U.S.C. 1692f(1), the collection of any amount that is not
authorized by the agreement creating the debt, or authorized by law, constituted an unfair
or unconscionable means to collect or attempt to collect a debt. Although appellants
disputed Ashley’s allegations regarding overpayment, the trial court did not have, and we
do not have, a transcript of the sanctions hearing, and we therefore have no basis upon
which to disregard the magistrate’s conclusion that appellants presented no evidence to
demonstrate that Ashley’s allegations in that regard were frivolous.
{¶ 41} Accepting as we must the magistrate’s findings of fact, as adopted by the trial
court, we conclude that the trial court did not abuse its discretion in applying the law to the
magistrate’s findings of fact.
B. Motion to disqualify
{¶ 42} Appellants’ final argument is that the trial court erred by denying their
motion to disqualify the magistrate and in refusing to reconsider that decision when
appellants asked the court to do so in their objections to the magistrate’s decision.
{¶ 43} Less than two weeks after appellants filed their motion for sanctions, the trial
court referred the matter to Magistrate Petrucci for a hearing. Following a spate of
discovery motions and appellants’ unsuccessful appeal from the trial court’s non final order
denying their motion to enjoin discovery, see Ashley v. Kevin O’Brien & Assocs. Co., L.P.A.,
10th Dist. No. 20AP-354, 2022-Ohio-24, the magistrate held a status conference on
No. 23AP-81 17
February 18, 2022. Six months later, appellants filed a motion pursuant to Civ.R. 53(D)(6)
to disqualify Magistrate Petrucci from hearing their motion for sanctions.
{¶ 44} Pursuant to Civ.R. 53(D)(6), a party may file a motion to disqualify a
magistrate “for bias or other cause.” In support of their motion, appellants argued that the
magistrate “made several biased remarks” during the February 2022 status conference.
(Aug. 31, 2022 Mot. to Disqualify at 2.) Specifically, they claimed the magistrate stated he
would not consider evidence regarding 1st National’s collection cases, improperly suggested
that Ashley’s counsel filed the FDCPA case to comply with the one-year statute of
limitations on such claims, and urged appellants to consider dismissing their motion for
sanctions. Id. Appellants argued, based primarily on their belief in the unimpeachable
validity of their frivolous conduct claim, that the magistrate’s comments indicated that he
“harbor[ed] a hostile feeling or spirit of ill will against [appellants],” and “plainly
announced the decisions he [would make] despite the facts and the law.” Id. at 6.
{¶ 45} When used in reference to a judge before whom a matter is pending, the
phrase “biased or prejudiced” “ ‘implies a hostile feeling or spirit of ill-will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a
fixed anticipatory judgment on the part of the judge, as contradistinguished from an open
state of mind which will be governed by the law and the facts.’ ” In re Disqualification of
O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, ¶ 14, quoting State ex rel. Pratt v.
Weygandt, 164 Ohio St. 463, 469 (1956). A magistrate is presumed not to harbor bias or
prejudice toward or against a party. Powell v. Lawson, 10th Dist. No. 18AP-289, 2019-
Ohio-4993, ¶ 9, citing Melick v. Melick, 9th Dist. No. 26488, 2013-Ohio-1418, ¶ 9. Thus,
the party alleging bias and seeking disqualification of a magistrate bears the burden to
produce adequate evidence to overcome the presumption of the magistrate’s integrity. Id.Mere disagreement with a magistrate’s ruling does not demonstrate bias or prejudice. Id.,citing In re Disqualification of Corrigan, 105 Ohio St.3d 1243, 2004-Ohio-7354, ¶ 9.
{¶ 46} Removal of a magistrate falls within the discretion of the judge who referred
the matter to the magistrate. In re Disqualification of Wilson, 77 Ohio St.3d 1250, 1251
(1996). An appellate court reviews a trial court’s ruling on a motion for disqualification for
an abuse of discretion. Lingenfelter v. Lingenfelter, 9th Dist. No. 15AP0062, 2017-Ohio-
235, ¶ 9, citing Lingenfelter v. Lingenfelter, 9th Dist. No. 14AP0005, 2015-Ohio-4002, ¶ 10.
No. 23AP-81 18
{¶ 47} Here, the trial court denied appellants’ motion to disqualify Magistrate
Petrucci because it found both that appellants failed to support their motion with evidence
and that appellants’ factual claims, even if supported by evidence, did “not overcome the
presumption of integrity.” (Sept. 27, 2022 Entry at 2.)
{¶ 48} Appellants submitted no evidence in support of their motion to disqualify.
The record contains neither a transcript of the February 2022 status conference at which
appellants allege the magistrate made statements that indicated his bias against appellants
nor an affidavit or other evidence to establish that such statements were made.3 In Angus
v. Angus, 10th Dist. No. 15AP-655, 2016-Ohio-7789, ¶ 20, this court overruled an
assignment of error challenging the trial court’s denial of a motion to disqualify a magistrate
based on the magistrate’s alleged oral statements: “without a transcript establishing that
the magistrate actually said what [the appellant] alleges, [the appellant] does not have
adequate evidence to overcome the presumption against bias.” See also Melick (party
seeking disqualification based on an alleged conversation between magistrate and
attorneys failed for lack of evidence to substantiate the allegation). Furthermore, to the
extent appellants argue that the magistrate’s purported bias or prejudice is evidenced by a
refusal to allow evidence regarding the collection cases against Ashley, that argument is
precluded by appellants’ failure to file a transcript of the sanctions hearing.
{¶ 49} Appellants obviously disagree with the magistrate’s alleged statement that
Ashley and her counsel may have filed the FDCPA claims to avoid a lapse of the relevant
statute of limitations and the magistrate’s alleged skepticism of the merits of appellants’
frivolous conduct claims. But appellants’ disagreement, standing alone, does not
demonstrate bias or prejudice. See Columbus v. Flowers, 10th Dist. No. 19AP-423, 2019-
Ohio-5205, ¶ 27, citing Fifth Third Mtge. Co. v. Berman, 10th Dist. No. 17AP-563, 2019-
Ohio-1068, ¶ 44. “A trial judge’s opinions of law, even if erroneous, are not by themselves
evidence of bias or prejudice and thus are not grounds for disqualification.” In re
Disqualification of Murphy, 36 Ohio St.3d 605 (1988). As we stated in Angus, “a motion
to disqualify does not provide a forum for a party to collaterally attack the merits of a
magistrate’s factual findings or legal conclusions.” Angus at ¶ 23.
3 After Ashley and her counsel filed a memorandum in opposition to the motion to disqualify, appellants filed
an affidavit from O’Brien, which set out many of the unsworn statements from appellant’s motion, but they
did not seek leave of court to file the untimely affidavit, and the trial court did not consider it.
No. 23AP-81 19
{¶ 50} As appellants cited no evidence upon which the trial court could determine
that the magistrate was biased or prejudiced against appellants, there is similarly no record
evidence upon which this court could rely to conclude that the trial court abused its
discretion in holding that appellants did not overcome the presumption of integrity and in
denying appellants’ motion to disqualify the magistrate.
IV. CONCLUSION
{¶ 51} For these reasons, we overrule appellants’ sole assignment of error and affirm
the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON and EDELSTEIN, JJ., concur.