Krlich v. Shelton

[Cite as Krlich v. Shelton, 2019-Ohio-3441.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

GARRICK G. KRLICH, : OPINION

Plaintiff, :
CASE NO. 2018-T-0104
LUCINDA KRLICH, :

Plaintiff-Appellant, :

- vs – :

MATTHEW P. SHELTON, et al., :

Defendants-Appellees. :

Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV
02134.

Judgment: Affirmed.

Scott C. Essad, 721 Boardman-Poland Road, Suite 201, Boardman, OH 44512 (For
Plaintiff-Appellant).

Michael D. Rossi, Guarnieri & Secrest, PLL, 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Defendants-Appellees).

MARY JANE TRAPP, J.

{¶1} Appellant, Lucinda Krlich, appeals the judgment of the Trumbull County

Court of Common Pleas adopting a magistrate’s decision that ordered her to pay attorney

fees in the amount of $8,250 for frivolous conduct.
 {¶2} Since Mrs. Krlich failed to file a transcript of the magistrate’s evidentiary

hearing with the trial court within 30 days of filing her objections to the magistrate’s

decision, our review is limited to determining whether the trial court abused its discretion

in adopting the magistrate's decision. We find no clear error or other defect on the face

of the magistrate’s decision determining Mrs. Krlich engaged in frivolous conduct under

R.C. 2323.51(A)(2)(a)(iii) and (i).

{¶3} Thus, we affirm the judgment of the Trumbull County Court of Common

Pleas.

Substantive History and Procedural Background

{¶4} On November 26, 2014, appellant, Lucinda Krlich (“Mrs. Krlich”), and

Garrick Krlich (collectively, the “Krliches”), through counsel, filed a complaint captioned

“Intentional Infliction of Emotional Distress” in the Trumbull County Court of Common

Pleas against appellees, Mary Beth Foltz, Brian Stipetich, David Nicora, Brian Trinckes,

Tracy Trinckes, Florence Buydos, Barbara Novotny, Adam Novotny, and Timothy

Novotny (collectively, the “appellees”), as well as 29 other defendants.

{¶5} The Krliches’ complaint alleged that over a period of time exceeding 42

months, the appellees and the other defendants (1) deliberately harassed/annoyed and

menaced/stalked them, (2) trespassed, (3) blatantly violated the sanctity of their

residence in Hubbard, Ohio and their entitlement to privacy and quiet enjoyment, (4)

intentionally and at all hours sounded automobile horns/sirens outside their residence

and made harassing phone calls, (5) drove over their side yard lawn, (6) paint-balled the

side of their residence, (7) strew trash over their front lawn, (8) made threats of physical

harm through electronic messaging, (9) made lewd gestures, and (9) defamed their

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reputations by making slanderous remarks and libelous comments through electronic

messaging.

{¶6} The Krliches’ alleged damages consisted of loss of value of their real estate,

extreme sleep deprivation, anxiety, debilitating emotional distress, loss of income, and

medical expenses.

{¶7} The appellees, through counsel, sent correspondence to the Krliches’

counsel requesting dismissal of the appellees and offering to provide affidavits indicating

none of them had engaged in the alleged conduct.

{¶8} This was apparently unsuccessful since the appellees jointly filed an answer

denying the allegations and a counterclaim against the Krliches and their counsel for

alleged violations of Civ.R. 11 and R.C. 2323.51.

{¶9} The Krliches propounded no discovery after filing their complaint and failed

to respond to appellees’ requests for admissions, which the trial court deemed as

admitted.

{¶10} The appellees jointly moved for summary judgment, attaching their

affidavits denying each allegation contained in the Krliches’ complaint.

{¶11} The Krliches filed a brief in opposition, attaching their affidavits,

photographs of vehicles taken from a video system they installed outside their residence,

and copies of vehicle registrations relating to each appellee. In their affidavits, the

Krliches asserted that they had witnessed and visually recorded vehicles registered to

each appellee repeatedly driving past their residence and sounding the automobile horn.

{¶12} The trial court issued a judgment entry granting the appellees’ motion for

summary judgment. The trial court construed the Krliches’ complaint as asserting claims

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for defamation, intentional infliction of emotional distress, trespass, and nuisance. It

found the Krliches had not presented any evidence of defamation, trespass, or nuisance.

{¶13} With respect to intentional infliction of emotional distress, the trial court

found that honking a horn did not constitute extreme and outrageous conduct that went

beyond all possible bounds of decency. According to the trial court, the Krliches’ affidavits

only established a horn was blown from appellees’ automobiles, not that the appellees

blew the horn. Finally, the trial court found that the Krliches provided no evidence to

establish severe emotional distress.

{¶14} The Krliches appealed the trial court’s judgment, which we dismissed for

lack of a final, appealable order in Krlich v. Shelton, 11th Dist. Trumbull No. 2016-T-0003,

2016-Ohio-3292. At the time of the appeal, the trial court had not entered judgment on

the appellees’ counterclaim, and there had been no disposition against another

defendant. Id. at ¶10.1

{¶15} Following our dismissal of the appeal, the magistrate held a hearing on

appellees’ counterclaim, where the parties offered testimony and evidence. The

magistrate subsequently issued a decision finding as follows: (1) “there was no good

ground to support any of the claims against” the appellees “[w]ithin the meaning of Civil

Rule 11”; (2) “the allegations in the complaint had no evidentiary support and were not

likely to have evidentiary support after a reasonable opportunity for further investigation

or discovery”; and (3) “the bringing and/or maintenance of this action served merely to

harass, annoy and maliciously injur[e]” the appellees. The magistrate also incorporated

by reference the trial court’s judgment entry granting summary judgment in favor of the

1. The trial court’s docket reflects it granted summary judgment to this defendant on May 3, 2018.

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appellees. The magistrate awarded $8,250 in attorney fees to the appellees and against

the Krliches for frivolous conduct.

{¶16} The Krliches filed objections to the magistrate’s decision but did not file a

transcript of the evidentiary hearing with the trial court. The trial court adopted the

magistrate’s decision in its entirety and entered judgment against the Krliches on the

appellees’ counterclaim.

{¶17} Mrs. Krlich now appeals, asserting the following assignment of error:

{¶18} “The trial court erred when it held that Appellant Lucinda Krlich’s complaint

was frivolous, had no evidentiary support, and was brought in bad faith to harass, injure,

or annoy. To the contrary, there were good grounds to file the complaint, even if it was

ultimately unsuccessful.”

{¶19} Garrick Krlich is not a party to this appeal, and Mrs. Krlich’s current appeal

does not involve the trial court’s granting of summary judgment in favor of the appellees.

Standard of Review

{¶20} Mrs. Krlich’s failure to file a transcript of the magistrate’s hearing with the

trial court is determinative of our standard of review.

{¶21} Under Civ.R. 53(D)(3)(b)(i), a party may file written objections to a

magistrate's decision within 14 days of the filing of the decision, whether or not the court

has adopted the decision during that 14-day period. Civ.R. 53(D)(3)(b)(iii) describes

certain requirements to support an objection to a magistrate's factual findings, stating in

pertinent part:

{¶22} “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

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evidence if a transcript is not available. * * * 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.”

{¶23} Without a transcript, the trial court’s review of the magistrate’s findings of

fact is limited to determining whether those findings support the magistrate’s conclusions

of law. Smith v. Treadwell, 11th Dist. Lake No. 2009-L-150, 2010-Ohio-2682, ¶25. When

no transcript is provided to the trial court in support of factual objections to a magistrate's

decision, an appellate court is limited to determining whether the trial court abused its

discretion in adopting the magistrate's decision. Id. “Under such circumstances,

therefore, an appellate court will only reverse if it finds the trial court adopted the

magistrate's decision when there was clear error of law or other defect on its face.” Id.

{¶24} Mrs. Krlich timely filed objections to the magistrate’s decision within the 14

days allotted under Civ.R. 53(D)(3)(b)(i). We have previously held findings of frivolous

conduct under R.C. 2323.51(A)(2)(a)(iii) and (i) are factual determinations. See Keith-

Harper v. Lake Hospital System, Inc., 11th Dist. Lake No. 2015-L-137, 2017-Ohio-7361,

¶24 (regarding R.C. 2323.51(A)(2)(a)(iii)); State Farm Ins. Cos. v. Peda, 11th Dist. Lake

No. 2004-L-082, 2005-Ohio-3405, ¶28 (regarding R.C. 2323.51(A)(2)(a)(i)). Therefore,

Mrs. Krlich’s objections were based entirely on the magistrate’s findings of fact. However,

Mrs. Krlich did not file a transcript of the magistrate’s proceeding or an affidavit within 30

days of filing the objections. After expiration of the 30 days, the trial court adopted the

magistrate’s decision in its entirety.

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 {¶25} Although a transcript of the magistrate’s hearing is included in the record on

appeal, our review is limited to the record as it existed at the time the trial court rendered

its judgment. (Citations omitted.) Bahgat v. Kissling, 10th Dist. Franklin No. 17AP-641,

2018-Ohio-2317, ¶36. “A reviewing court cannot add matter to the record before it, which

was not a part of the trial court’s proceedings, and then decide the appeal on the basis of

the new matter.” Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, ¶13, quoting

State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus. Therefore, we

may not consider the hearing transcript in ruling on Mrs. Krlich’s assignment of error.

{¶26} Thus, we determine whether the trial court abused its discretion in adopting

the magistrate's decision, i.e., whether there was clear error or other defect on its face.

Frivolous Conduct

{¶27} In her sole assignment of error, Mrs. Krlich argues her complaint was not

frivolous, had evidentiary support, and was not brought in bad faith to harass, injure, or

annoy.

Civ.R. 11

{¶28} Although Mrs. Krlich mostly argues that her conduct was not frivolous under

R.C. 2323.51, she also disputes any existence of “bad faith” and refers to Civ.R. 11 in her

question presented for review. We disagree that the magistrate’s decision imposed

attorney fees against Mrs. Krlich pursuant to Civ.R. 11.

{¶29} Civ.R. 11 requires “at least one attorney of record” of a represented party

or a “party who is not represented by an attorney” to sign every motion, pleading, or other

document filed in a civil action. This signature serves as a certificate that (1) the attorney

of record or pro se party filing the document has read the document, (2) everything

contained in it is true to the best of the individual’s knowledge, (3) there is a good ground

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to support it, and (4) its purpose was not to delay. Civ.R. 11; Fast Property Solutions,

Inc. v. Jurczenko, 11th Dist. Lake Nos. 2012-L-015 & 2012-L-016, 2013-Ohio-60, ¶52.

{¶30} Civ.R. 11 further provides that “[f]or a willful violation of this rule, an attorney

or pro se party * * * may be subjected to appropriate action, including an award to the

opposing party of expenses and reasonable attorney fees incurred in bringing any motion

under this rule.” (Emphasis added.)

{¶31} By its own terms, Civ.R. 11 authorizes an award only against attorneys or

pro se parties, not represented parties. See Sauerwein v. Sauerwein, 6th Dist. Lucas No.

L-95-084, 1996 WL 38809, *7 (Feb. 2, 1996); Shaffer v. Mease, 66 Ohio App.3d 400, 410

(4th Dist.1991); Stevens v. Kiraly, 9th Dist. Wayne Nos. 1957 & 1983, 1984 WL 4031, *2

(Nov. 15, 1984).

{¶32} The appellees’ counterclaim sought damages against the Krliches and their

counsel. Although the magistrate decision states “there was no good ground” to support

any of the Krliches’ claims “within the meaning of Civil Rule 11,” the magistrate did not

render an award against the Krliches’ attorney of record. We therefore construe the

magistrate’s decision as awarding judgment solely against the Krliches and solely

pursuant to R.C. 2323.51. Mrs. Krlich’s first assignment of error is overruled to the extent

it assigns error based on Civ.R. 11.

R.C. 2323.51

{¶33} R.C. 2323.51 serves to deter abuse of the judicial process by penalizing

sanctionable conduct that occurs during litigation. Filonenko v. Smock Constr., LLC, 10th

Dist. Franklin No. 17AP-854, 2018-Ohio-3283, ¶14. The statute was designed to chill

egregious, overzealous, unjustifiable and frivolous action. (Citations omitted.) Ferron v.

Video Professor, Inc. 5th Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, ¶45. In

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determining whether conduct is frivolous, courts must carefully apply the statute so that

legitimate claims are not chilled. (Citation omitted.) Id.

{¶34} Pursuant to R.C. 2323.51(B)(1), “at any time not more than thirty days after

the entry of final judgment in a civil action * * *, any party adversely affected by frivolous

conduct may file a motion for an award of court costs, reasonable attorney’s fees, and

other reasonable expenses incurred in connection with a civil action * * *.” The award

may be made “against a party, the party’s counsel of record, or both.” R.C. 2323.51(B)(4).

{¶35} “Conduct” includes, in relevant part, “[t]he filing of a civil action, the assertion

of a claim, defense, or other position in connection with a civil action, the filing of a

pleading, motion, or other paper in a civil action, * * * or the taking of any other action in

connection with a civil action[.]” R.C. 2323.51(A)(1)(a).

{¶36} “Frivolous conduct” means the conduct of a party or the party's attorney that

satisfies any of the following:

{¶37} “(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.

{¶38} “(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.

{¶39} “(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.

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 {¶40} “(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.” R.C. 2323.51(A)(2)(a)(i) through (iv).

{¶41} R.C. 2323.51 uses an objective standard in determining whether sanctions

may be imposed for frivolous conduct. (Citation omitted.) Stevenson v. Bernard, 11th

Dist. Lake No. 2006-L-096, 2007-Ohio-3192, ¶41. Thus, a finding of frivolous conduct

under R.C. 2323.51 is decided without inquiry as to what the individual knew or believed.

(Citation omitted.) Omerza v. Bryant & Stratton, 11th Dist. Lake No. 2006-L-147, 2007-

Ohio-5216, ¶15.

R.C. 2323.51(A)(2)(a)(iii)

{¶42} R.C. 2323.51(A)(2)(a)(iii) defines “frivolous conduct” as “conduct [that]

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.” A party only needs minimal evidentiary

support for its allegations or factual contentions to avoid a frivolous conduct finding.

Carasalina LLC v. Bennett, 10th Dist. Franklin No. 14AP-74, 2014-Ohio-5665, ¶36.

{¶43} The magistrate’s decision reflects that the Krliches presented evidence in

the form of “a flash drive, the testimony of a retired FBI agent who ‘ran the license plates’

of the honking cars to determine ownership, and [Mr. Krlich’s] own testimony to verify the

images on the flash drive showed ‘horn honking’ by the various [appellees].”

{¶44} Considering this evidence, the magistrate found “the allegations in the

complaint had no evidentiary support and were not likely to have evidentiary support after

a reasonable opportunity for further investigation or discovery.” Specifically, the

magistrate found: (1) honking a horn on an unspecified number of occasions does not

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constitute extreme and outrageous conduct that goes beyond all possible bounds of

decency; (2) the Krliches’ evidence did not show the appellees themselves blew the horn;

(3) appellees filed affidavits denying they honked their horns specifically to disturb the

Krliches, which appellees’ counsel offered to the Krliches early in the litigation; and (4)

there was no way to determine the circumstances on the road at the time of the honking.

{¶45} Mrs. Krlich argues the evidence of the appellees’ conduct, i.e., the

audio/video “buttressed by the BMV records,” constitutes evidentiary support. Similarly,

the dissent argues that Mrs. Krlich’s evidence, which “showed there existed some nexus

between the defendants and the ‘horn honking’” provided a sufficient factual basis for her

complaint. We disagree.

{¶46} Although the materials qualify as “evidence,” they do not constitute

“evidentiary support” for Mrs. Krlich’s allegations of tortious conduct in the complaint. See

Norris v. Philander Chase Co., 5th Dist. Knox No. 10-CA-04, 2010-Ohio-5297, ¶24

(finding frivolous conduct where litigant lacked evidence to prove all the elements of a tort

at the time of the filing of the complaint).

{¶47} For instance, the materials do not support allegations that the appellees

themselves actually drove the offending vehicles. In fact, the complaint indicates that one

of the appellees resided in Gates Mills in Cuyahoga County, which is over 60 miles away

from Mrs. Krlich’s residence in Hubbard. See Stevenson, supra, at ¶48 (finding frivolous

conduct where complaint was filed based solely on assumptions and suspicions and

without any investigation).

{¶48} Even if the appellees did in fact drive the offending vehicles, Mrs. Krlich’s

evidence does not support her allegations that the appellees acted intentionally to harass

or annoy her rather than responding to valid road conditions.

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 {¶49} And even if the appellees tried to harass or annoy her, Mrs. Krlich’s

evidence does not support her allegations that such conduct was extreme and outrageous

that went beyond all possible bounds of decency and caused her serious emotional

distress. The magistrate found that the evidence showed horn-honking “on an

unspecified number of occasions.”

{¶50} Obviously, Mrs. Krlich’s evidence could not support allegations of

menacing, stalking, trespassing, phone harassment, paintballing, trash strewing, or

electronic messaging.

{¶51} We find no clear error or other defect on the face of the magistrate's decision

determining that Mrs. Krlich engaged in frivolous conduct under R.C. 2323.51(A)(2)(a)(iii).

R.C. 2323.51(A)(2)(a)(i)

{¶52} R.C. 2323.51(A)(2)(a)(i) defines “frivolous conduct” as “conduct [that]

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.”

{¶53} The magistrate found the “the bringing and/or maintenance” of the action

“served merely to harass, annoy and maliciously injure” the appellees.

{¶54} Mrs. Krlich argues she did not bring the action to harass or injure the

appellees because she had “good information” to bring it, consisting of the videos and

BMV records. However, as discussed above, this evidence did not support Mrs. Krlich’s

allegations that the defendants engaged in tortious conduct.

{¶55} Mrs. Krlich also argues nothing in the evidence “revealed a harassing or

malicious intent.” However, R.C. 2323.51(A)(2)(a)(i) does not require evidence of intent.

Instead, the “conduct” must “obviously serve[] merely to harass or maliciously injure

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another party to the civil action.” (Emphasis added.) R.C. 2323.51(A)(2)(a)(i). As

previously indicated, R.C. 2323.51 uses an objective standard in determining whether

sanctions may be imposed for frivolous conduct. Stevenson, supra, at ¶41.

{¶56} Mrs. Krlich further argues her counsel’s failure to issue discovery requests

to the appellees constituted “trial decisions” rather than frivolous conduct. We disagree.

{¶57} Along with their joint motion for summary judgment, the appellees filed

affidavits denying they had honked their horns specifically to disturb the Krliches. The

magistrate’s decision indicates appellees’ counsel offered to provide these affidavits to

the Krliches early in the litigation.

{¶58} Mrs. Krlich issued no discovery requests to the appellees. In addition, she

failed to respond to their requests for admissions, which the trial court deemed as

admitted.

{¶59} While the failure to conduct discovery is not in and of itself frivolous conduct,

once faced with opposing evidence in the form of affidavits from the defendants denying

any participation in the alleged events, one must either take the opportunity to investigate

further (by confronting the appellees at deposition or through requests for admissions)

and provide evidence supporting the elements of the claims for relief or dismiss. Mrs.

Krlich did neither.

{¶60} As the Tenth District has held, “[i]f a party makes an allegation or factual

contention on information or belief, then the party must have the opportunity to investigate

the truth of that allegation or factual contention.” Carasalina, supra, at ¶36. “However, if

a party persists in relying on that allegation or factual contention when no evidence

supports it, then the party has engaged in frivolous conduct.” Id.

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 {¶61} Mrs. Krlich turned a blind eye to evidence that unequivocally refuted her

allegations. Her persistence amounts to frivolous conduct. See Carasalina at ¶38

(holding that a litigant’s “persistence” in pursuing disproven allegations amounted to

frivolous conduct); Keith-Harper, supra, at ¶29 (affirming a finding of frivolous conduct

where counsel continued to pursue a litigant’s claims after depositions established that

the complaint lacked merit); Masturzo v. Revere Rd. Synagogue, 98 Ohio App.3d 347,

353 (9th Dist.1994) (affirming a finding of frivolous conduct for litigant’s failure to dismiss

in a timely fashion after being informed that the defendant did not have an interest in the

property that was the subject of the action).2

{¶62} We find no clear error or other defect on the face of the magistrate's decision

determining that Mrs. Krlich engaged in frivolous conduct under R.C. 2323.51(A)(2)(a)(i).

{¶63} Mrs. Krlich also argues her claim for intentional infliction of emotional

distress was not frivolous under R.C. 2323.51(A)(2)(a)(ii) because it was warranted under

existing law. However, the magistrate did not consider whether the Krliches’ conduct was

frivolous under this portion of the statute, so we do not need to address this argument.

{¶64} In addition, since Mrs. Krlich has not appealed the trial court’s judgment

entry granting summary judgment in favor of the appellees, we also do not need to

address her various arguments disputing the merits of that ruling.

{¶65} The trial court did not abuse its discretion in adopting the magistrate's

decision. Thus, Mrs. Krlich’s sole assignment of error is without merit.

2. Although the cited cases involved findings of frivolous conduct under R.C. 2323.51(A)(2)(a)(iii), we find
the analysis equally applicable to whether Mrs. Krlich’s persistence in maintaining her claims served to
merely harass or maliciously injure the appellees under R.C. 2323.51(A)(2)(a)(i).

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 {¶66} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J., concurs,

TIMOTHY P. CANNON, J., dissents with a Dissenting Opinion.

____________________

TIMOTHY P. CANNON, J., dissenting.

{¶67} Respectfully, I dissent from the opinion of the majority, as I believe the trial

court’s adoption of the magistrate’s decision was an abuse of discretion.

{¶68} In her objections to the magistrate’s decision and on appeal, appellant

challenges the magistrate’s factual findings that her allegations have “no evidentiary

support” and that her conduct “served merely to harass, annoy and maliciously injure” the

defendants.

{¶69} Generally, a trial court’s determination of frivolous conduct under R.C.

2323.51(A)(2)(a), when based on factual findings rather than a question of law, is afforded

a degree of deference. Further, an appellate court must presume the regularity of

proceedings in the absence of a transcript. See, e.g., Carasalina LLC v. Bennett, 10th

Dist. Franklin No. 14AP-74, 2014-Ohio-5665, ¶37 (citations omitted) (“Appellate courts

will not reverse a determination that conduct is frivolous under R.C. 2323.51(A)(2)(a)(iii)

unless the record lacks competent, credible evidence to support the trial court’s factual

findings.”); Bayview Loan Servicing, L.L.C. v. Likely, 9th Dist. Summit No. 28466, 2017-

Ohio-7693, ¶12 (citations omitted) (“Without a transcript, an appellant cannot

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demonstrate error with respect to factual findings, and thus, the appellate court must

presume the regularity of the proceedings and that the facts were correctly interpreted.”).

{¶70} Here, however, the magistrate’s factual findings that appellant’s complaint

had “no evidentiary support” and that it was pursued “merely to harass, annoy, or

maliciously injure” are belied by other contradictory findings in the magistrate’s own

decision.

{¶71} The magistrate acknowledged that appellant “presented evidence in the

form of a flash drive, the testimony of a retired FBI agent who ‘ran the license plates’ of

the honking cars to determine ownership, and his own testimony to verify that the images

on the flash drive showed ‘horn honking’ by the various Defendants.” The magistrate

further found that “the evidence showed at most that the vehicles registered to the

Defendants had their respective horn honked, not that the individual Defendant himself

or herself blew the horn. This is fatal to Plaintiffs’ case because Plaintiffs did not and

cannot identify any Defendant as the ‘horn-honker.’”

{¶72} While this evidence may have not been sufficient to avoid summary

judgment in favor of the defendants, it does not support a finding that there was no factual

or legal basis for appellant’s complaint—it, in fact, showed there existed some nexus

between the defendants and the “horn honking.” It also contradicts the finding that

appellant’s purpose was merely to harass, annoy, and maliciously injure the defendants.

There does not appear to be any dispute that people were driving by appellant’s house

at all hours, in vehicles owned by the defendants, repeatedly honking their horns.

{¶73} I further disagree with the majority’s conclusion that appellant was frivolous

because she “turned a blind eye to evidence that unequivocally refuted her allegations.”

The evidence to which this statement refers was in the form of the defendants’ own self-

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serving affidavits, in which they denied honking their horns to harass appellant. This is

hardly unequivocal evidence. And appellant’s persistence, without vigorously pursuing

discovery in response to it, is hardly proof of frivolous conduct intended to harass, annoy,

or maliciously injure the defendants.

{¶74} Accordingly, I believe the magistrate’s determination that appellant

engaged in frivolous conduct is not supported by the magistrate’s own contradictory

factual findings. The trial court’s adoption of the magistrate’s decision ordering appellant

to pay attorney fees to appellees was, therefore, an abuse of discretion. I would reverse

the ruling of the trial court and vacate the entry ordering appellant to pay the defendants’

attorney fees.

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