Niederst v. Niederst , 128 N.E.3d 800 ( 2018 )

[Cite as Niederst v. Niederst, 2018-Ohio-5320.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MARK NIEDERST, et al. C.A. No. 28846
Appellees/Cross-Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BRENDA NIEDERST, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellants/Cross-Appellees CASE No. CV-2016-07-3026
DECISION AND JOURNAL ENTRY
Dated: December 26, 2018
SCHAFER, Presiding Judge.
{¶1} Defendants/Appellants/Cross-Appellees, Brenda Niederst and Wynn Investments,
LLC, appeal the judgment of the Summit County Court of Common Pleas.
Defendants/Appellees/Cross-Appellants, Mark Niederst and Niederst Portage Towers, LLC, filed
a cross-appeal.
I.
{¶2} Mark Niederst aka Mark Spagnuolo and Niederst Portage Towers, LLC
(collectively “Mark”) filed suit against Brenda Niederst and Wynn Investments, LLC
(collectively “Brenda”). The underlying dispute stems from a disagreement between Mark and
Brenda, brother and sister, over their respective obligations relating to certain real property
jointly owned by and through the siblings and their related entities.
{¶3} Through mediation, the parties reached an agreement and executed an initial
settlement agreement on December 5, 2016. Per this agreement, the parties would divide the
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properties at issue, with Brenda receiving the entire interest in Cross Creek, and Mark receiving
the entire interest in Portage Towers along with a $650,000.00 payment from Brenda. This
settlement agreement purported to set forth the material terms of the agreement with the
understanding that the parties may negotiate more definitive terms. The parties agreed that
within seven days they would enter the more definitive settlement agreement, dismiss the
pending lawsuit with prejudice, and effectuate the execution and recording of the deeds to
complete the transfer of real estate.
{¶4} Mark filed an emergency motion to enforce the settlement agreement on January
2, 2017, asserting, among other things, that Brenda refused to sign the more definitive settlement
called for in the December 5th agreement. The trial court held a hearing on that motion, which
resulted in the parties entering into a new settlement agreement. The January 4, 2017 settlement
agreement set out the terms and timeline for performance, and designated the date for closing on
the transfer of the real estate as February 9, 2017. The parties stipulated to a dismissal of all
claims with prejudice, with the court to retain jurisdiction over the settlement agreement.
{¶5} On February 1, 2017, Mark filed a motion to enforce the settlement agreement
and request for sanctions and attorney fees. Although the time to close on the transaction had not
yet passed, Mark argued that Brenda failed to cooperate by refusing to sign the necessary loan
extension documents to take the Portage Towers property out of default. The trial court referred
the matter to the magistrate for resolution. After preliminary discussions with counsel and the
parties relative to the anticipated closing date for the exchange of the properties, the magistrate
set the matter over for a hearing on the motion for April 4, 2017. At the hearing, Mark sought to
establish that Brenda breached the settlement agreement, presented evidence of damages
stemming from the alleged breach, and argued for sanctions based on Brenda’s conduct. In
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response, Brenda argued that she was excused from performance because Mark materially
breached the settlement agreement and/or anticipatorily repudiated the contract.
{¶6} Following the hearing, the magistrate issued a decision finding that Brenda
breached the settlement agreement by failing to sign the loan extension documents for the
mortgage on Portage Towers until February 8, 2017. As a direct result of the breach, the
magistrate found that Mark was entitled to recover attorney fees in the amount of $9,569.00,
bank fees in the amount of $11,176.45, bank legal fees in the amount of $24,016.45, and attorney
fees for the appearance of Jeff Brauer at the hearing in the amount of $1,442.16 for a total
damage award of $46,204.06. The magistrate made no finding on Mark’s request for sanctions,
but found that the motive behind Brenda’s conduct in withholding signature on the loan
extension document was unclear, and declined to engage in speculation.
{¶7} Mark and Brenda, respectively, filed objections to the magistrate’s decision.
Brenda objected to the magistrate’s failure to find that Mark materially breached and
anticipatorily repudiated the settlement agreement, the magistrate’s finding that Mark was
damaged by Brenda’s breach of agreement, and the magistrate’s finding that Mark was entitled
to $11,176.45 in damages for bank fees. Mark objected to the magistrate’s finding on damages,
contending that damages should also be awarded for attorney fees incurred from December 2016
through January 2, 2017, for attorney fees for attending two hearings, and for sanctions based on
Brenda’s bad faith and repeated breaches. On October 12, 2017 the trial court entered judgment
adopting, while modifying in part, the magistrate’s decision.
{¶8} The parties have timely appealed the decision of the trial court, with each
presenting three assignments of error for our review.
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II.
Brenda’s Assignment of Error I
Whether the trial court erred by sustaining the [m]agistrate’s [d]ecision that
[Mark] did not materially breach and [Brenda] did materially breach the
parties’ typewritten settlement agreement.
{¶9} Brenda contends that the trial court abused its discretion by “arbitrarily penalizing
Brenda for Mark’s material breach and ignoring compelling evidence of his gamesmanship * *
*.” Brenda argues that the trial court arbitrarily drew a distinction between her conduct and
Mark’s conduct, which Brenda alleges resulted in Mark’s own breach of the settlement
agreement. We disagree.
{¶10} “Generally, the decision to adopt, reject, or modify a magistrate’s decision lies
within the discretion of the trial court and should not be reversed on appeal absent an abuse of
discretion.” Barlow v. Barlow, 9th Dist. Wayne No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse
of discretion is more than an error of judgment; it means that the trial court was unreasonable,
arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). When applying this standard, a reviewing court is precluded from simply substituting its
own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621
(1993).
{¶11} Brenda claims the trial court should have rejected the magistrate’s decision and
instead found that Mark materially breached the settlement agreement and that Brenda’s conduct
was insignificant, largely immaterial, and did not impact the transaction closing by the agreed
upon date.
{¶12} There is no dispute that Mark and Brenda are parties to an enforceable settlement
agreement. A settlement agreement is a contract intended to resolve claims in lieu of litigation.
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Wochna v. Mancino, 9th Dist. Medina No. 07CA0059-M, 2008-Ohio-996, ¶ 11. Accordingly, a
party asserting the breach of a settlement agreement must establish all elements of a breach of
contract: the existence of an agreement, that the non-breaching party fulfilled its obligations
under the agreement; a breach without legal justification; and damages to the non-breaching
party. Id.{¶13} In adopting the magistrate’s finding and concluding that Brenda breached the
settlement agreement, the trial court stated:
[Brenda’s] failure to complete the loan extension paperwork placed Portage
Towers at risk of default, and directly threatened the viability of the bargained-for
exchange. Further, Brenda was notified on numerous occasions and by multiple
individuals that the extension paperwork needed to be executed, and she was
repeatedly advised of the consequences for failing to timely provide the extension
paperwork. Despite these notifications, [Brenda] ignored the requests and failed
to timely execute the extension paperwork. By engaging in her conduct, [Brenda]
placed Portage Towers at risk of default and foreclosure and needlessly incurred
unnecessary costs.
In reaching this decision, the trial court noted that Brenda’s conduct was “vastly different” from
Mark’s conduct and, considering the evidence and the terms of the settlement agreement, the trial
court found that Mark’s purported deficiencies “were small and immaterial to the bargained for
exchange.” Thus, the trial court agreed with the magistrate’s finding that Mark’s alleged failure
to perform “was non-material and was reasonably rectified upon notification of the deficiency[,]”
overruled Brenda’s objection, and concluded that Mark had not committed a material breach that
would excuse Brenda from the duty to perform under the settlement agreement.
{¶14} Brenda argues that the trial court ignored “compelling evidence” of Mark’s
gamesmanship and premature filing of a motion to enforce. She also argues that the trial court
“completely disregarded” the testimony presented by her attorney and fact witness, Anne
Corrigan, that Brenda timely signed and delivered the loan extension paperwork to the bank’s
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attorney prior to the agreed upon closing date, and that such paperwork was, in any event, not
fundamental to the transaction. Brenda contends that Mark’s delay in transferring certain Cross
Creek accounts and records was a material breach of the settlement agreement because it
undermined the fundamental purpose of the agreement.
{¶15} The arguments Brenda presents in this appeal essentially reiterate the arguments
presented to the magistrate and trial court below: that Mark’s conduct was more egregious and
material to the transaction than Brenda’s own conduct. However, Brenda has not identified any
relevant testimony or evidence in the record to establish that the trial court abused its discretion
in finding that Mark had not materially breached the settlement agreement. The record before
us, including the testimony of Ms. Corrigan, does not support Brenda’s argument that her failure
to timely execute the loan extension paperwork was insignificant or immaterial. Moreover,
Brenda has not established that the trial court failed to consider such testimony in reaching its
decision.
{¶16} Brenda has failed to demonstrate that the trial court acted arbitrarily, or otherwise
abused its discretion, in determining that Mark did not materially breach the parties’ agreement,
that Brenda was not excused from performing under the agreement based on Mark’s conduct,
and that Brenda’s actions constitute a material breach of the settlement agreement.
{¶17} Brenda’s first assignment of error is overruled.
Brenda’s Assignment of Error II
Whether the trial court erred by overruling [Brenda]’s objection to the
[m]agistrate’s [d]ecision that [Mark] anticipatorily repudiated the parties’
typewritten settlement agreement.
{¶18} Within her second assignment of error, Brenda argues that the trial court erred
when it overruled Brenda’s objection to the magistrate’s decision that Mark did not anticipatorily
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repudiate the settlement agreement. Alleging Mark’s failure to transfer bank accounts, employee
files, and bank stubs on time, Brenda argues that she was justified in suspending her own
performance under the settlement agreement. Brenda contends that Mark made clear that he
would not perform his duty to transfer ownership in Cross Creek to Brenda, and gave
“unconditional refusals to perform[.]” We disagree.
{¶19} We apply the same abuse of discretion standard of review to the trial court’s
decision to adopt the magistrate’s decision, and consider whether the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Barlow, 2009-Ohio-3788, at ¶ 5;
Blakemore, 5 Ohio St.3d at 219.
{¶20} Anticipatory repudiation occurs when one party to a contract declares that he will
not perform the terms of the contract, and the injured party can immediately maintain an action
for breach. Cambridge Co., Ltd. v. Telsat Inc., 9th Dist. Summit No. 23935, 2008-Ohio-1056, ¶
8. “‘To prevail on a claim of anticipatory breach of contract, a plaintiff must establish that there
was a contract containing some duty of performance not yet due and, by word or deed, the
defendant refused future performance, causing damage to the plaintiff.’” Id. quoting Banks v.
Bob Miller Builders, Inc., 10th Dist. Franklin No. 01AP-582, 2001 WL 1608131, *3 (Dec. 18,
2001) (Stating that “[t]he repudiation must be expressed in clear and unequivocal terms.”).
{¶21} In ruling on Brenda’s objection, the trial court found “little evidence that [Mark]
engaged in any action or made any statements canceling the contract.” In the absence of
evidence that Mark clearly refused future performance the trial court agreed with the magistrate
and found that “an unequivocal and clear repudiation did not occur.” On appeal, Brenda has not
articulated a precise argument, nor has she pointed to evidence in the record of a clear and
unequivocal repudiation, to show that the trial court acted unreasonably, arbitrarily, or
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unconscionably in overruling Brenda’s objection. The trial court did not abuse its discretion in
adopting the magistrate’s decision and finding that Mark did not anticipatorily repudiate the
settlement agreement. Accordingly, we overrule Brenda’s second assignment of error.
Brenda’s Assignment of Error III
Whether the trial court erred by partially sustaining the [m]agistrate’s
[d]ecision that [Mark] suffered damages as a result of [Brenda]’s purported
breach, and awarding [Mark] damages in the amount of $35,027.61.
{¶22} In the third assignment of error Brenda argues that, even if the trial court correctly
found that she breached the agreement, the court erroneously awarded damages to Mark. Brenda
contends that Mark did not meet his burden to prove that any damages were cause by Brenda’s
breach. Additionally, Brenda argues that the trial court’s award of attorney fees violates public
policy. We disagree.
{¶23} Here again, we apply the abuse of discretion standard to review the trial court’s
decision ruling on objections to the magistrate’s decision, and consider whether the trial court
was unreasonable, arbitrary, or unconscionable in its ruling. Barlow, 2009-Ohio-3788, at ¶ 5;
Blakemore, 5 Ohio St.3d at 219.
{¶24} A settlement agreement is a contract. Wochna, 2008-Ohio-996, at ¶ 11. To
recover damages incurred for a breach of contract, the party asserting the breach must establish
the amount of damages corresponding to injuries resulting from the breach with reasonable
certainty. Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144 (9th
Dist.1996). Attorney fees that are incurred as a direct result of the breach of the settlement
agreement are recoverable as damages. See Tejada-Hercules v. State Auto. Ins. Co., 10th Dist.
Franklin No. 08AP-150, 2008-Ohio-5066, ¶ 9, quoting Shanker v. Columbus Warehouse Ltd.
Partnership., 10th Dist. Franklin No. 99AP-772, 2000 WL 726786 (June 6, 2000).
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{¶25} Brenda contends that she was under no legal obligation to execute the loan
extension paperwork prior to the February 9, 2017 closing date specified in the settlement
agreement and argues that, because she did execute those documents before the closing, Mark
suffered no damages as a result of delay. In addition to arguing that she also incurred costs
based on Mark’s conduct, Brenda makes the unsupported assertion that “[n]either party would
have derived any benefit from Brenda executing the paperwork any earlier in time than she
ultimately did.” However, Brenda’s argument disregards the fact that both the magistrate and
trial court found that her failure to timely execute the documents was a breach of the settlement
agreement, notwithstanding a timely closing of the entire transaction to complete the transfer of
the properties.
{¶26} Considering Brenda’s argument that Mark suffered no damages because the
transactions closed on the date specified in the settlement agreement, the trial court specifically
found “the fact that the transactions closed on time does not equate to zero damages suffered by
[Mark].” In ruling on Brenda’s objection, the trial court found that the evidence at the hearing
clearly established that as a result of Brenda’s breach of the settlement agreement—failing to
timely execute the loan extension documents—Mark incurred significant cost increases
associated with the refinancing of Portage Towers and attorney fees. The trial court recognized
that, in the event of a breach, Section 10 of the settlement agreement authorized the prevailing
party to collect “any and all damages, expenses, attorney’s fees and costs[,]” and concluded that
the magistrate had correctly determined that Brenda’s delay caused Mark’s damages.
{¶27} Brenda also argues that an award of attorney fees is contrary to public policy
because it would reward Mark for engaging in “gamesmanship” and prematurely filing motions
to enforce the settlement agreement to intentionally drive up litigation costs. This argument
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again disregards the fact that Mark prevailed on his motion to enforce and established that
Brenda breached the settlement agreement. The trial court determined that Mark incurred
additional attorney fees as a result of the breach, and that the recovery of such fees was
authorized by law and pursuant to the settlement agreement. Brenda has not presented an
argument to explain how her public policy contention might establish an abuse of discretion by
the trial court.
{¶28} Brenda has not identified any error in the trial court’s decision to award damages,
in general, or attorney fees, in particular. The decision of the trial court to overrule Brenda’s
objection to allow Mark to recover damages for breach of the settlement agreement was not
arbitrary, unreasonable, or unconscionable. We conclude that the trial court did not abuse its
discretion; therefore Brenda’s third assignment of error is overruled.
Mark’s Assignment of Error I
The trial court erred in failing to award [Mark] all damages[.]
{¶29} In this first assignment of error, Mark argues that the trial court erred in finding
that the settlement agreement precluded recovery of any damages incurred prior to January 4,
2017. Mark’s brief alludes generally to the trial court’s failure to award “any damages” incurred
prior to the parties’ execution of the settlement agreement. It is evident from the brief that Mark
contends that the magistrate correctly assessed as damages $11,176.45 in bank fees, and argues
that the trial court erred in modifying the damage award to eliminate those banks fees. However,
to the extent that Mark intended to challenge the trial court’s decision with respect to any alleged
damages other than the bank fees, he has failed to articulate his contention in this assignment of
error.
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{¶30} Mark challenges the trial court’s decision to adopt and modify the magistrate’s
decision. This Court reviews such a decision by the trial court for an abuse of discretion.
Barlow, 2009-Ohio-3778, at ¶5. Under the abuse of discretion standard, we consider whether the
trial court’s decision was arbitrary, unreasonable, or unconscionable. Blakemore, 5 Ohio St.3d at
219.
{¶31} In his objection to the magistrate’s decision, Mark did raise a general objection to
the fact that the magistrate’s damage award “did not include the attorney[] fees from December
2016 until January 2, 2017[.]” Objecting solely on the issue of damages, Mark urged that the
overall damage award should be increased to $66,065.40. Without offering any evidence or
argument in support, Mark made the conclusory assertion that an unspecified portion of the
increased award would cover costs and attorney fees incurred from “the original breach through
the second full hearing[.]”
{¶32} Mark did not object to the magistrate’s finding that the waiver provision of the
settlement agreement barred recovery of attorney fees and damages incurred prior to January 4,
2017. The trial court adopted the magistrate’s finding that it was appropriate to consider only the
attorney fees, costs, or damages that occurred after January 4, 2017, in determining damages for
breach of the settlement agreement. In its decision, the trial court noted that the settlement
agreement resolved prior liabilities and precluded further claims, but that it contained an
exception for claims related to breach of the agreement as provided for in Section 10 of the
settlement agreement. Ultimately, the trial court concluded that “[c]learly, damages related to a
breach of the agreement could not occur until after the agreement was executed.”
{¶33} Now, on appeal, Mark claims that the trial court erred in several respects. Mark
contends that the release was not effective unless Brenda fully performed under the settlement
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agreement and that, by the express terms of the settlement agreement, no claims relating to any
breach of the settlement agreement were waived or released. Additionally, Mark contends that
the settlement agreement actually relates back to the parties’ original settlement agreement,
making the true effective date December 5, 2016. However, our review of the record shows that
Mark raises these issues on appeal without having raised them before the trial court in his
objection to the magistrate’s decision.
{¶34} Civ.R. 53(D)(3)(b)(iv) states as follows:
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 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).
Civ.R. 53(D)(3)(b)(ii) requires that “[a]n objection to a magistrate’s decision shall be specific
and state with particularity all grounds for objection.” “Where a party fails to raise an issue in
its objections to a magistrate’s decision, that issue is forfeited on appeal.” Bass-Fineberg
Leasing, Inc. v. Modern Auto Sales, Inc., 9th Dist. Medina No. 13CA0098-M, 2015-Ohio-46, ¶
24; see also Civ.R. 53(D)(3)(b). Mark forfeited the arguments not raised in his objection, and
has not argued plain error. McMaster v. Akron Health Dept. Hous. Div., 189 Ohio App.3d 222,
2010-Ohio-3851, ¶ 20 (9th Dist.). This Court will not review new theories asserted for the first
time on appeal. Bass-Fineberg, 2015-Ohio-46, at ¶ 29.
{¶35} Mark did not specifically object to the magistrate’s findings and conclusion that
Mark was not entitled to recover any damages for breach of the settlement agreement incurred
prior to the execution of the settlement agreement on January 4, 2017. Unlike Mark’s challenge
to the trial court’s modification of the damage award, these issues did exist before the trial court.
See Russell v. City of Akron Hous. Appeals Bd., 9th Dist. Summit No. 17271, 1996 WL 1769, *1
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(Jan. 3, 1996) (A party cannot contest on appeal an issue that existed before the trial court, but
that the party failed to raise.). Mark has forfeited his arguments with respect to these issues and
has not argued plain error on appeal.
{¶36} Accordingly, we limit our consideration to the trial court’s modification of the
magistrate’s damage award to disallow $11,176.45 in bank fees. Mark argues that the trial court
“misinterpreted” the damages relating to bank fees, mistakenly believing that they were incurred
in December of 2016. Regarding Brenda’s objection to the magistrate’s award of $11,176.45 in
bank fees, the trial court found there was no testimony to establish whether those fees were
incurred before or after January 4, 2017—the date the parties executed the settlement agreement.
The trial court recognized that the past-due letter establishing the bank fees of $11,176.45 was
dated January 10, 2017. However, the trial court reasoned that Mark bore the burden to establish
the damages with reasonable certainty and found that the evidence was insufficient to establish
that those fees were actually incurred after January 4, 2017. Absent evidence that Mark incurred
the bank fees as a result of Brenda’s breach of the January 4, 2017 settlement agreement, the trial
court found that Mark did not establish with reasonable certainty the $11,176.45 in bank fees as
damages for breach of the settlement agreement. Accordingly, the trial court sustained Brenda’s
objection and decreased the amount of damages awarded to Mark by $11,176.45.
{¶37} Regardless of any mutual release provisions, Section 8 of the settlement
agreement specifies that all prior and contemporaneous agreements and understandings “are of
no further force and effect except as set forth [in the January 4, 2017] agreement.” The
magistrate and trial court found that Brenda breached the settlement agreement executed by the
parties on January 4, 2017. On this basis, the trial court reduced the damage award so as not to
include any damages not established with reasonable certainty as a consequence of the breach of
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that settlement agreement. Further, the trial court rejected Mark’s attempt to increase the award
to include any alleged damages for breach of the settlement incurred prior to the execution of the
settlement.
{¶38} On appeal, Mark has failed to demonstrate that the trial court abused its discretion
in limiting the award to those damages established with reasonable certainty as corresponding to
injuries resulting from Brenda’s breach of the settlement agreement. Textron, 115 Ohio App.3d
at 144. Therefore, Mark’s first assignment of error is overruled.
Mark’s Assignment of Error II
Trial court erred by failing to award [Mark] all attorney[] fees.
{¶39} In his second assignment of error, Mark argues that the trial court erred in failing
to award the full amount of attorney fees that Mark incurred as a result of Brenda’s breach of the
settlement agreement. Mark contends that the trial court “refused to award additional attorney[]
fees incurred for the time at the actual evidentiary hearings on the motion to enforce ***” and
“failed to acknowledge that the length of the hearings and additional fees incurred [] could not be
known at the time of the hearing.”
{¶40} Initially, we note that Mark’s argument fails to direct this Court to the parts of the
record on which he relies, as required by App.R. 16(A)(7). Ostensibly, Mark aims to challenge
the following portion of the trial court’s decision:
Next, the [c]ourt further finds that while the time spent at the hearings by
[Mark]’s counsel may have been recoverable, the burden is on the [Mark] to
provide evidence as to the cost of that representation. Damages cannot be based
on mere speculation or conjecture. Ben. Evolution v. Atl. Tool & Die, 9th Dist.
No. 25405, 2011-Ohio-4062. Here, no evidence was presented as to the amounts
owed as a result of the hearings. Without some evidence as to the cost of the
representation at the hearings, the [c]ourt finds any award [of] damages would be
speculative and improper. Accordingly, the [c]ourt finds the [m]agistrate correctly
excluded any damages for the work performed at the two hearings.
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The trial court apparently made this finding based on one part of Mark’s three-part objection to
the magistrate’s award of damages.
{¶41} To assign as error on appeal the trial court’s adoption of any of the magistrate’s
findings or legal conclusions, Mark must have objected to that finding or conclusion as required
by Civ.R. 53(D)(3)(b). Civ.R. 53(D)(3)(b)(iv). “An objection to a magistrate’s decision shall be
specific and state with particularity all grounds for objection. Civ.R. 53(D)(3)(b)(ii).
{¶42} Mark’s objection to the magistrate decision stated that “[t]he sole issue raised by
this [o]bjection is the amount of the award.” In the objection, Mark asserted that he should have
been awarded damages in the amount of $66,065.40, including the costs and attorney fees
stemming from “the original breach through the second full hearing,” plus “sanctions/punitive
damages” for Brenda’s “bad faith acts and repeated breaches of the parties’ [s]ettlement
[a]greement.” The only portion of Mark’s objection relevant to this assignment of error, is the
claim that “damages should have been awarded for the time counsel spent at the two evidentiary
hearings[.]” The basis for this vague request for the trial court to make a finding that Mark was
entitled to an award of attorney fees in an unspecified amount for attending two hearings is not
apparent, and the grounds for such an objection are not evident.
{¶43} Based upon our review of the argument raised in Mark’s brief and the record
before us, we find that Mark’s objection to the magistrate’s decision on the grounds of additional
attorney fees for attendance at evidentiary hearings lacks the specificity and particularity
required by Civ.R. 53(D)(3)(b)(ii). Having failed to object to a finding or conclusion “as
required by Civ.R. 53(D)(3)(b)” Mark forfeited all but a claim of plain error for this issue on
appeal. Civ.R. 53(D)(3)(b)(iv); Bass-Fineberg, 2015-Ohio-46, at ¶ 24 (“Where a party fails to
raise an issue in its objections to a magistrate's decision, that issue is forfeited on appeal.”) Mark
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has not argued plain error. Consequently, we conclude that Mark has forfeited the argument that
the trial court erred in declining to award unspecified attorney fees for attending hearings and
overrule Mark’s second assignment of error.
Mark’s Assignment of Error III
Trial court erred in not sanctioning [Brenda] or awarding punitive damages.
{¶44} In the third assignment of error, Mark contends that the trial court erred in failing
to sanction Brenda or award punitive damages. We apply the same abuse of discretion standard
of review to the trial court’s decision to adopt the magistrate’s decision, and consider whether the
trial court was unreasonable, arbitrary, or unconscionable in its ruling. Barlow, 2009-Ohio-3788,
at ¶ 5; Blakemore, 5 Ohio St.3d at 219.
{¶45} In its decision, the trial court clarified that “the [m]agistrate did not make any
finding of bad faith and, accordingly, an award of sanctions by the Magistrate would have been
error.” The trial court emphasized the magistrate’s finding and conclusion that “[w]hether
[Brenda] was attempting to utilize the document as leverage for further negotiations or other
reasons, this [c]ourt does not know and will not speculate.” Further, the trial court found:
Upon independent review, the [c]ourt agrees with the [m]agistrate’s determination
that the evidence did not establish a showing of bad faith and that any
determination that the failure to sign the documents was done in bad faith would
amount to mere speculation. The [c]ourt further finds damages were warranted in
this matter under the terms of the type-written settlement and not as a sanction or
as the result of evidence of bad faith.
{¶46} Mark’s “sole objection” to the trial court was based on the amount of damages
awarded by the magistrate. Specifically, he argued that “the [m]agistrate should have sanctioned
[Brenda] for [her] bad faith conduct * * *” without objecting to the fact that the magistrate did
not find that Brenda had engaged in bad faith conduct. Mark did not object to this finding and
conclusion in the trial court as required by Civ.R. 53(D)(3)(b), and has forfeited all but a claim of
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plain error—which he has not raised—for this issue on appeal. Civ.R. 53(D)(3)(b)(iv); Bass-
Fineberg, 2015-Ohio-46, ¶ 24.
{¶47} Having forfeited the issue, Mark cannot challenge in this appeal the trial court’s
adoption of the magistrate’s finding and conclusion that the evidence presented did not establish
that Brenda’s actions were taken in bad faith. Therefore, Mark has not identified any basis for
the trial court to have imposed sanctions or awarded punitive damages. Hence, Mark has not
demonstrated that the trial court erred in finding that the evidence did not support an award of
sanctions. Because the trial court did not abuse its discretion in adopting the magistrate’s
decision and declining to award sanctions or punitive damages. Mark’s third assignment of error
is overruled.
III.
{¶48} Each of Brenda’s three assignments of error are overruled, and Mark’s three
assignments are also overruled. The decision of the Summit County Court of Common Pleas is
affirmed.
Judgment affirmed.
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
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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 all parties equally.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, J.
CONCURS.
CALLAHAN, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶49} I concur in the majority’s resolution of Brenda’s first, second, and third
assignments of error and of Mark’s third assignment of error. I also agree with the majority’s
resolution of Mark’s first assignment of error to the extent that the majority addresses his
argument on the merits. I disagree with the majority’s conclusion that Mark failed to preserve
other arguments raised in his first and second assignments of error by objecting in the trial court,
so I respectfully dissent on that basis.
{¶50} Mark’s first assignment of error asserts that “The trial court erred in failing to
award plaintiffs all damages.” Within this assignment of error, he develops the argument that the
trial court erred by failing to award any damages attributable to Brenda’s conduct that occurred
before January 4, 2017. Specifically, he argued that under the terms of the Settlement
Agreement, Brenda could not avail herself of the release without fully performing; that, in any
event, no claims related to a breach of the Settlement Agreement were released; that the effective
date of the Settlement Agreement was December 5, 2016, rather than January 4, 2017; and that
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even given the trial courts erroneous conclusion regarding the effective date of the Settlement
Agreement, bank fees were incurred in January and February 2017. Mark’s cross-objection to
the magistrate’s decision sufficiently preserved this error, most notably by grounding his
argument in the position that “damages for breach of the settlement should have been awarded
for * * * the period after the settlement with Judge McQuade (i.e. from December 2016
forward)” and by noting that “upon breach of the Settlement Agreement, Plaintiffs were entitled
to all ‘damages, expenses, attorneys’ fees and costs’ incurred in enforcing the Settlement.”
{¶51} Similarly, Mark’s second assignment of error argues that the “Trial court erred by
failing to award [him] all attorneys fees.” Within his discussion of the second assignment of
error, Mark noted that under the terms of the Settlement Agreement and under Ohio law, he was
entitled to all attorney’s fees incurred as a result of litigating the motion to enforce, including
amounts that could not be determined until the proceedings ran their course. In his cross-
objection, Mark argued that “The Magistrate only awarded $46,204.06, which did not include the
attorneys’ fees from December 2016 until January 2, 2017 [or] the attorneys’ fees for attending
the actual hearings[.]” This objection was sufficient to raise this issue in the trial court, and it
has not been forfeited for purposes of appeal.
{¶52} Consequently, I disagree with the majority’s conclusion that the arguments
asserted by Mark in his first and second assignments of error have been forfeited, and I would
address each argument on its merits.
APPEARANCES:
JON J. PINNEY, JONATHON W. GROZA, and SEAN P. MALONE, Attorneys at Law, for
Appellants/Cross-Appellees.
MICHAEL R. STAVNICKY, Attorney at Law, for Appellees/Cross-Appellants..