DiPenti v. Park Towers Condominium Assn.

[Cite as DiPenti v. Park Towers Condominium Assn., 2020-Ohio-4277.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Margaret DiPenti, :

Plaintiff-Appellant, :
No. 19AP-384
v. : (C.P.C. No. 17CV-7914)

Park Towers Condominium : (REGULAR CALENDAR)
Association et al.,
:
Defendants-Appellees.
:

D E C I S I O N

Rendered on September 1, 2020

On Brief: Ric Daniell, for appellant. Argued: Ric Daniell.

On Brief: Williams & Strohnm, LLC, and Nicholas R. Barnes,
for appellees. Argued: Nicholas R. Barnes.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Plaintiff-appellant, Margaret DiPenti, appeals from a decision of the Franklin
County Court of Common Pleas granting summary judgment in favor of defendants-
appellees Park Towers Condominium Association (the "Association") and Towne
Properties, Ltd., and awarding the Association judgment in the amount of $13,367.50,
including $12,642.50 in attorney fees, plus court costs. For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} The Association is the condominium unit owners' association for the Park
Towers Condominium (the "Condominium"), located at 1620 East Broad Street,
Columbus, Ohio, 43203. (Oct. 5, 2017 Countercl. of Park Towers Condominium
No. 19AP-384 2

Association ("Countercl."), ¶ 1, 4; Pl.'s Oct. 24, 2017 Reply to Countercl. of Defendants
("Reply"), at ¶ 1.) DiPenti is the record owner of Unit 910 (the "Unit") in the
Condominium. (Countercl., at ¶ 4, Reply at ¶ 3.) As record owner of the Unit, DiPenti is
subject to the covenants, conditions, and restrictions set forth in the Declaration of
Condominium Property for The Park Towers Condominium (the "Declaration")1
(Countercl. at ¶ 5; Reply at ¶ 3; Jill Isaly Aff. at ¶ 5.)
{¶ 3} On or about April 24, 2017, the drain line to the unit's kitchen sink ("Drain
Line") failed and caused a leak into the unit below. (Countercl. at ¶ 6, Reply at ¶ 4; William
"Biff" Heisler Aff. at ¶¶ 13-14.) The Association notified DiPenti of the leaking Drain Line
and the need for urgent repairs. (Countercl. at ¶ 6; Reply at ¶ 5.) DiPenti authorized the
Association to have the Drain Line repaired, and the Association hired a plumbing
contractor to make the repair. (Countercl. at ¶¶ 6-11; Reply at ¶¶ 5-8.)
{¶ 4} The repair to the Drain Line was performed by Biff's Plumbing, LLC
("Biff's"). (Heisler Aff. at ¶¶ 11-16.) Biff's owner, William "Biff" Heisler arrived at the
Condominium after being contacted by the Association and was given access to unit 809
in the Condominium, the unit below DiPenti's, to investigate the leak. (Id. at ¶¶ 11-12.)
Heisler removed a portion of unit 809's ceiling and observed a leak coming from a portion
of the drain line just below the Unit. (Id. at ¶ 13.) Heisler needed to access the Unit to
complete his investigation and repairs. (Id. at ¶ 15.) Ultimately, Heisler removed and
replaced the portion of the Drain Line from the connection to the common line to the tee
of the Unit's kitchen sink. (Id.) Thus, the repairs to the Drain Line were not limited to
the portion of the Drain Line located below the Unit's floor; rather, the portion of the
Drain Line located within the walls of the Unit was replaced. (Id.)
{¶ 5} Heisler is often called by the Association and Condominium unit owners to
repair kitchen sink drain lines located both inside and outside the walls of a unit. (Id. at
¶ 17.) When Heisler repairs drain lines between a unit's kitchen sink and the common
drain line, regardless of whether inside or outside the walls of a unit, Heisler sends an
invoice for the repairs to the unit owner. (Id.) In this case, because the repairs to the
Drain Line involved a drain pipe that only served the Unit and a portion of the Drain Line

1The Declaration is attached as Exhibit A-1 to the December 20, 2018 Defendants' Motion for Summary
Judgment (the "MSJ").
No. 19AP-384 3

that was replaced was actually located within the bounds of the Unit, Biff's sent an invoice
for $725 (the "Repair Cost") to DiPenti, the owner of the Unit, for his services on April 24,
2017 (the "Invoice"). (Id. at ¶ 16; Invoice2.)
{¶ 6} DiPenti told Heisler that she was trying to file an insurance claim to pay the
Invoice. (Id. at ¶ 19.) After a few weeks went by without payment of the Invoice, Heisler
contacted DiPenti, who advised Heisler that her insurance claim had been denied and
directed him to send the Invoice to the Association for payment. (Id.) On May 20, 2017,
Heisler sent the Invoice to the Association, which paid the Invoice for the Repair Cost.
(Id.)
{¶ 7} Subsequently, the Association informally attempted to recover the Repair
Cost from DiPenti. (Countercl. at ¶¶ 10, 12, 17-19 & Ex. 2 to Counterclaim; Reply, ¶¶ 9, 13.)
DiPenti refused to reimburse the Association for the Repair Cost, and the Association
initiated its attempt to formally collect the Repair Cost from DiPenti by giving her written
notice and an opportunity for a hearing. (Countercl. at ¶¶ 10-27 & Exs. 1-3 to Countercl.;
Reply at ¶¶ 8-10, 14-15.) DiPenti did not request a hearing and did not reimburse the
Association for the Repair Cost. (Id.)
{¶ 8} On September 1, 2017, DiPenti filed a complaint in the common pleas court,
asserting three claims: Count One, the Association improperly assessed the $725 Repair
Cost against her Unit because the Drain Pipe was in a common area; Count Two, the
Association improperly released "confidential financial information" causing her
embarrassment and injury;3 and Count Three, the Association and Towne Properties failed
to properly maintain all common areas of the Condominium and, therefore, DiPenti was
entitled to an accounting. (See Compl.) An amended complaint was filed on September 4,
2017 which was identical except that it did not include two exhibits that were originally
filed. (See Am. Compl.)
{¶ 9} On October 5, 2017, the Association and Towne Properties filed a combined
answer, and the Association filed a counterclaim for a judgment pursuant to R.C.

2 The invoice is attached as Exhibit B-1 to the MSJ.

3Count Two was dismissed by the trial court in its August 15, 2018 Decision and Entry and is not part of this
appeal.
No. 19AP-384 4

5311.23(B) "declaring that the Drain Line is part of [DiPenti's] Unit under Article V, Section
2(a)(iii) of the Declaration and that Ms. DiPenti, as the Unit's owner * * * is responsible for
all repair and maintenance of the Drain Line, including the Repair Cost, under Article VIII,
Section 2(a) of the Declaration." (See Countercl.) The Association also asserted a
counterclaim for damages pursuant to R.C. 5311.18(A), 5311.19(A) and Article XIII, Section
4(f) of the Declaration for collection costs, including attorney fees, incurred in connection
with filing an action to collect the $725 Repair Cost. (Id.)
{¶ 10} On December 20, 2018, the Association filed a motion for summary
judgment, and on February 27, 2019 the trial court granted summary judgment in favor of
the Association and Towne Properties on DiPenti's claims and on the Association's
counterclaims. (Feb. 27, 2019 Decision and Entry.) After a damages hearing held by the
trial court's magistrate, the magistrate issued a decision awarding the Association
$13,367.50, which included $725 for the Repair Cost of the plumbing repair and $12,642.50
in attorney fees. (April 23, 2019 Mag. Decision Following Damages Hearing.) No
objections to the magistrate's decision were filed.
{¶ 11} Subsequently, the trial court issued an order and entry adopting the
magistrate's decision and awarding judgment in favor of the Association in the amount of
$13,367.50, plus court costs. (May 16, 2019 Order and Entry Adopting the Mag. Decision
Entered April 23, 2019.) This timely appeal followed.
II. Assignments of Error
{¶ 12} Appellant asserts the following two assignments of error for our review:
[I.] The trial court erred in granting appellee's [sic] motion
for summary judgment in that such judgment was against the
manifest weight of the evidence as plaintiff-appellant has
demonstrated that genuine issues as to material facts existed.

[II.] The trial court's decision was not reasonable within the
meaning of ORC 5311.19(A).

III. Discussion
A. First Assignment of Error – Summary Judgment
{¶ 13} In her first assignment of error, DiPenti argues that the trial court erred in
granting summary judgment in favor of the Association on DiPenti's claims and the
Association's counterclaim. We do not agree.
No. 19AP-384 5

{¶ 14} An appellate court reviews summary judgment under a de novo standard.
You v. Northeast Ohio Med. Univ., 10th Dist. No. 17AP-426, 2018-Ohio-4838, ¶ 16, citing
Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567,
¶ 19, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995). This means
that an appellate court conducts an independent review, without deference to the trial
court's determination. Zurz v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-
832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th
Dist.). Summary judgment is proper only when the parties moving for summary judgment
demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled
to judgment as a matter of law, and (3) reasonable minds viewing the evidence most
strongly in favor of the non-moving party could reach but one conclusion, and that
conclusion is adverse to the non-moving party. Civ.R. 56; Hudson v. Petrosurance, Inc.,
127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158,
2007-Ohio-5584, ¶ 29.
{¶ 15} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact by pointing to specific
evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
If the moving party fails to satisfy its initial burden, the court must deny the motion for
summary judgment; however, if the moving party satisfies its initial burden, summary
judgment is appropriate unless the non-moving party responds, by affidavit or as otherwise
provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial.
Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-
5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991).
{¶ 16} A fact is "material" if it "might affect the outcome of the suit under the
applicable substantive law." Mitchell v. Mid-Ohio Emergency Servs., L.L.C., 10th Dist. No.
03AP-981, 2004-Ohio-5264, ¶ 12. A "genuine" issue of material fact exists to prevent
summary judgment only if "a reasonable jury could find that the evidence satisfies the
evidentiary standards required at trial." Myocare Nursing Home, Inc. v. Fifth Third Bank,
98 Ohio St.3d 545, 2003-Ohio-2287, ¶ 33.
No. 19AP-384 6

{¶ 17} "Trial courts should award summary judgment with caution, being careful to
resolve doubts and construe evidence in favor of the nonmoving party." Welco Industries,
Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65
Ohio St.3d 356 (1992). "Even the inferences to be drawn from the underlying facts
contained in the evidentiary materials, such as affidavits and depositions, must be
construed in a light most favorable to the party opposing the motion." Hannah v. Dayton
Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67 Ohio St.3d
337, 341 (1993).
{¶ 18} Notwithstanding the foregoing admonition, it is well-established that "the
evidence necessary to create a genuine issue of material fact must be more than just bare,
unsupported assertions" and that "a 'party's unsupported and self-serving assertions,
offered by way of affidavit, standing alone and without corroborating materials under
Civ.R. 56, will not be sufficient to demonstrate material issues of fact.' " Eichenberger v.
Tucker, 10th Dist. No. 12AP-515, 2013-Ohio-805, ¶ 9, quoting Hillstreet Fund III, L.P. v.
Bloom, 12th Dist. No. CA2009-07-178, 2010-Ohio-2961, ¶ 10, citing TJX Cos., Inc. v. Hall,
183 Ohio App.3d 236, 2009-Ohio-3372, ¶ 30 (8th Dist.); see also White v. Sears, Roebuck
& Co., 10th Dist. No. 10AP-294, 2011-Ohio-204, ¶ 7 (a non-movant's own self-serving
assertions, whether made in an affidavit, deposition or interrogatory responses, cannot
defeat a well-supported summary judgment when not corroborated by any outside
evidence); Pinchot v. Mahoning Cty. Sheriff's Dept., 164 Ohio App.3d 718, 2005-Ohio-
6593, ¶ 24 (7th Dist.) (generally, self-serving affidavits cannot be used by the non-moving
party to survive summary judgment).
{¶ 19} As a preliminary matter, we address DiPenti's assertion in her first
assignment of error that the judgment was against the manifest weight of the evidence. "[A]
manifest-weight challenge to summary judgment 'is a non-sequitur because, on summary
judgment, a court may not weigh the evidence.' " Grenga v. Youngstown State Univ., 10th
Dist. No. 11AP-165, 2011-Ohio-5621, ¶ 29, quoting Westfall at ¶ 9. "An appellate court may
summarily overrule assignments of error challenging summary judgment based on the
manifest weight of the evidence." Id. Therefore, we summarily overrule that portion of the
first assignment of error that relates to DiPenti's argument concerning the manifest weight
of the evidence.
No. 19AP-384 7

{¶ 20} Turning to the substance of the matter before us, we wholeheartedly agree
with the proposition set forth by the Association in its brief that "[t]he singular
determination necessary for the resolution of both Count One of the Amended Complaint
and the Counterclaim is whether DiPenti or the Association is responsible for the Repair
Cost." (Brief of Appellees at 11.) As explained below, we find DiPenti is responsible for the
Repair Cost.
{¶ 21} " '[C]ondominium declarations and bylaws are contracts between the
association and the purchaser.' " Murtha v. Ravines of McNaughton Condo. Assn., 10th
Dist. No. 09AP-709, 2010-Ohio-1325, ¶ 13, quoting Acacia on the Green Condominium
Assn., Inc. v. Gottlieb, 8th Dist. No. 92145, 2009-Ohio-4878, ¶ 20, citing Nottingdale
Homeowners' Assn., Inc. v. Darby, 33 Ohio St.3d 32, 35-36 (1987). The construction of
written contracts involves issues of law that appellate courts review de novo. Alexander v.
Buckeye Pipe Line Co., 53 Ohio St.2d 241 (1978), paragraph one of the syllabus. " '[I]f the
contract terms are clear and precise, the contract is not ambiguous and the trial court is not
permitted to refer to any evidence outside of the contract itself.' " Antonucci v. Ohio Dept.
of Taxation, 10th Dist. No. 09AP-629, 2010-Ohio-3326, ¶ 8, quoting Ryan v. Ryan, 9th
Dist. No. 19347 (Oct. 27, 1999). Further, when a written instrument is unambiguous, parol
evidence will not be considered in an attempt to demonstrate an ambiguity that otherwise
does not exist. Antonucci at ¶ 8, citing Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635,
638 (1992), citing Stony's Trucking Co., v. Pub. Util. Comm., 32 Ohio St.2d 139, 142 (1972).
{¶ 22} Article VIII of the Declaration at issue in this case governs Maintenance and
Repair and provides that the Association is responsible for repairing and maintaining the
common areas of the Condominium and unit owners are responsible for repairing and
maintaining their units. (See, generally, Declaration, Art. VIII, Sec. 1 and 2.) Article VIII,
Section 2(a) of the Declaration clearly and unambiguously provides that "[e]ach Unit
Owner shall repair and maintain his Unit and all components thereof." (Declaration, Art.
VIII, Sec. 2(a)).
{¶ 23} The Declaration further provides a detailed definition of the portions of the
Condominium property that constitute a unit. A "Unit" is defined to include "[a]ll plumbing
* * * and other utility or service lines, pipes, wires, ducts or conduits which serve either the
Unit or the fixtures located therein, and which are located within the bounds of the Unit."
No. 19AP-384 8

(Declaration, Art. V, Sec. 2(a)(vi).) A Unit also includes "[a]ll fixtures and appliances
located within the bounds of a Unit installed in and for the exclusive use of that Unit,
commencing at the point of disconnection from the structural body of the building and from
the point of disconnection of utility pipes, lines or systems serving the entire building or
more than one Unit thereof." (Declaration, Art. V, Sec. 2(a)(iii).) The common areas of the
Condominium, for which the Association is responsible for maintenance and repair, are
defined as only those parts of the Condominium that are not otherwise defined as "Units."
(Declaration, Art. VI, Sec. 1(a).)
{¶ 24} The admissible evidence submitted by the Association in support of its
motion for summary judgment fully substantiates the conclusion that the Drain Line is part
of DiPenti's Unit. Heisler attested in his affidavit that in order to repair the leak, he had to
enter the Unit and replace the Drain Line located within the bounds of the Unit. (Heisler
Aff., ¶ 15.) Because the Drain Line is located within the bounds of the Unit, it falls under
the definition of "Unit" as set forth in Art. V, Sec. 2(a)(vi) of the Declaration. The Drain
Line also falls under the definition of "Unit" as set forth in Art. V, Sec. 2(a)(iii) of the
Declaration, because the kitchen sink is a fixture within the Unit, the sink is installed in and
for the exclusive use of the Unit, the Drain Line is part of the sink, and the Drain Line
extends from the sink's drain to the building's utility pipes, lines, or systems serving the
entire building or more than one unit thereof. (Heisler Aff. at ¶¶ 14-18.) The Drain Line
constitutes part of DiPenti's Unit, and it is not part of the common areas of the
Condominium for which the Association is responsible for repairing and maintaining. The
Association has established that no genuine issue of material fact exists on the issue of
whether DiPenti or the Association is responsible for the Repair Cost.
{¶ 25} Nonetheless, DiPenti asserts the trial court erred in granting summary
judgment because she submitted evidence demonstrating a genuine issue of material fact
as to whether she or the Association is responsible for the Repair Cost. More specifically,
in response to the Association's motion for summary judgment before the trial court,
DiPenti submitted her own affidavit in which she attests that "Defendant Towers has paid
for identical or similar repairs (as those that were required to my unit) to condominium
units in the past" and "[d]espite what language there may be in the by-laws and rules of
Defendant Towers, * * * the fact that the Defendant pays for some owners' repairs and
No. 19AP-384 9

denies other's [sic] request is an unwarranted unequal treatment." (DiPenti Aff. at ¶ 4-5.)
Yet, DiPenti has not provided any supporting documentation or evidence that would
corroborate her allegation that the Association has paid for identical or similar repairs to
other owners' units. This alone is fatal to DiPenti's argument that she has demonstrated
genuine issues of fact because, as discussed previously, "a 'party's unsupported and self-
serving assertions, offered by way of affidavit, standing alone and without corroborating
materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact.' "
Eichenberger at ¶ 9, quoting Bloom at ¶ 10, TJX Cos. at ¶ 30. Moreover, by attesting the
repairs performed "were required to my unit" (DiPenti Aff. at ¶ 4), DiPenti has is in fact
conceded that the Drain Line is part of her Unit. In sum, DiPenti's Affidavit consists of
anecdotal and self-serving allegations which are wholly insufficient to create a genuine
issue of material fact on the issue of who is responsible for the repair cost.
{¶ 26} On appeal, DiPenti now also argues that because the statements Heisler set
forth in his Affidavit ostensibly conflict with the statements DiPenti set forth in her
Affidavit, there are genuine issues of fact concerning who is responsible for the Repair Cost.
But this argument was not made by DiPenti in response to the Association's motion for
summary judgment below. It is well-settled that " 'issues not initially raised in the trial
court may not be raised for the first time on appeal.' " Amare v. Chellena Food Express,
Inc., 10th Dist. No. 08AP-678, 2009-Ohio-147, ¶ 14, quoting Ohio Civ. Rights Comm. v.
Triangle Real Estate Servs., Inc., 10th Dist. No. 06AP-157, 2007-Ohio-1809, ¶ 11; Stevens
Skin Softener, Inc. v. Revco Drug Stores, Inc., 121 Ohio App.3d 212, 218 (8th Dist.1997);
Crist v. Precise Boring, Inc., 5th Dist. No. 11-CA-21, 2012-Ohio-2455, ¶ 41 (overruling
assignment of error concerning implied contract theory because the issue was not raised at
the trial court level). An appellant cannot change the theory of her case and present new
arguments for the first time on appeal. State ex rel. Gutierrez v. Trumbull Cty. Bd. of
Elections, 65 Ohio St.3d 175, 177 (1992); see also State ex rel. Quarto Mining Co. v.
Foreman, 79 Ohio St.3d 78, 81 (1997) ("These rules are deeply embedded in a just regard
for the fair administration of justice. They are designed to afford the opposing party a
meaningful opportunity to respond to issues or errors that may affect or vitiate his or her
cause [and] do not permit a party to sit idly by until he or she loses on one ground only to
No. 19AP-384 10

avail himself or herself of another on appeal."). Therefore, we decline to consider this new
argument of DiPenti.
{¶ 27} In short then, as pertains to both DiPenti's first claim and the Association's
counterclaim, there simply are no genuine issues of material fact regarding whether DiPenti
or the Association is responsible for the Repair Cost. Instead, the admissible evidence
overwhelmingly and conclusively establishes it is DiPenti who is responsible for it.
{¶ 28} Turning to Count Three of DiPenti's amended complaint, we observe DiPenti
presents another argument on appeal that she did not raise before the trial court.
Specifically, she asserts there are "complicated circumstances" and "confusion" regarding
the term special assessments as used by the Association which supports her demand for an
accounting. (Brief of Appellant at 14.) Putting aside the vagueness and general lack of
clarity of DiPenti's assertion, as we have already explained above, because DiPenti did not
make this argument in the trial court, she is barred from raising it now. Amare, 2009-
Ohio-147, ¶ 14 (Internal citations omitted.)
{¶ 29} Furthermore, even if we were to consider this new argument of DiPenti for
the first time on appeal, the argument is unavailing. In essence, DiPenti is attempting to
argue that objections made by the Association's counsel in response to DiPenti's discovery
requests concerning special assessments support her argument (raised for the first time on
appeal) that there was confusion concerning special assessments, and therefore she is
entitled to an accounting. Not only is the foregoing reasoning entirely circular, it is entirely
illogical. Obviously, DiPenti filed her lawsuit in which she sought an accounting as Count
Three before her discovery requests were ever propounded and objected to. Therefore, it is
impossible for the objections to DiPenti's discovery requests to have formed the basis for
her claim that she is entitled to an accounting. And, as a review of the record evinces no
other basis upon which she might be entitled to an accounting, the trial court did not err in
granting summary judgment in favor of the Association on this claim.
{¶ 30} In the final analysis, DiPenti has failed to produce sufficient evidence from
which a reasonable jury could find in her favor on her claims and on the Association's
counterclaims. Instead, the only evidence submitted by DiPenti in rebuttal to the
Association's motion for summary judgment and the evidence upon which it is properly
supported is her own affidavit, which consists of conclusory, anecdotal and self-serving
No. 19AP-384 11

allegations. As discussed above, this is simply not enough to survive an otherwise properly
supported motion for summary judgment. Furthermore, the affidavit includes an
admission that the Drain Line is part of her Unit. Therefore, there are no genuine issues of
material fact in this case and it was not error for the trial court to grant summary judgment
in favor of the Association. Accordingly, DiPenti's first assignment of error is overruled.
B. Second Assignment of Error – Attorney Fees
{¶ 31} In her second assignment of error, DiPenti argues trial court's decision to
award $12,642.50 in attorney fees was not reasonable within the meaning of R.C.
5311.19(A). We find no merit to appellant's position.
{¶ 32} R.C. 5311.19(A) and Article XIII, Section 4(f) of the Declaration central to this
matter authorize an award of reasonable attorney fees in connection with appellees'
counterclaim for collection of the $725 Repair Cost. R.C. 5311.19(A) provides in relevant
part:
All unit owners * * * of a condominium property shall comply
with all covenants, conditions, and restrictions set forth in a
deed to which they are subject or in the declaration, the bylaws,
or the rules of the unit owners association, as lawfully
amended. Violations of those covenants, conditions, or
restrictions shall be grounds for the unit owners association
* * * to commence a civil action for damages, injunctive relief,
or both, and an award of court costs and reasonable attorney's
fees in both types of action.

{¶ 33} The Supreme Court of Ohio has held that " ' "where a court is empowered to
award attorney fees by statute, the amount of such fees is within the sound discretion of the
trial court. Unless the amount of fees determined is so high or so low as to shock the
conscience, an appellate court will not interfere." ' " In re Estate of Born, 10th Dist. No.
06AP-1119, 2007-Ohio-5006, ¶ 15, quoting Bittner v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d
143, 146 (1991), quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d
85, 91 (12th Dist.1985). Accordingly, we will affirm the trial court's judgment absent an
abuse of discretion.4 "The term 'abuse of discretion' connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

4 DiPenti asserts in her brief that the standard of review should be de novo, but this is incorrect.
No. 19AP-384 12

{¶ 34} DiPenti argues the award of $12,642.50 was unreasonable in the face of the
underlying judgment of $725 because it is disproportionate. (Brief of Appellant at 17.)
DiPenti's proportionality argument fails. This is so because "[p]roportionality is not
synonymous with reasonableness." Miller v. Grimsley, 10th Dist. No. 09AP-660, 2011-
Ohio-6049, ¶ 16. " 'A "reasonable" fee must be related to the work reasonably expended on
the case and not merely to the amount of the judgment awarded.' " Id., quoting Stonehenge
Land Co. v. Beazer Homes Invests., L.L.C., 177 Ohio App.3d 7, 2008-Ohio-148, ¶ 45,
quoting Roth Produce Co. v. Scartz, 10th Dist. No. 01AP-480, 2001-Ohio-8866. Indeed,
"[t]his court has repeatedly held that attorney fees need not be mathematically
proportionate to the amount of damages." Id., citing Luft v. Perry Cty. Lumber & Supply
Co., 10th Dist. No. 02AP-559, 2003-Ohio-2305, ¶ 42; Dehoff v. Veterinary Hosp.
Operations of Cent. Ohio, Inc., 10th Dist. No. 02AP-454, 2003-Ohio-3334, ¶ 141. And, " '
"a court should not reduce attorney fees based on a simple ratio of successful claims." ' "
Miller, quoting Hollingsworth v. Time Warner Cable, 168 Ohio App.3d 658, 2006-Ohio-
4903, ¶ 82 (1st. Dist.), quoting Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1169
(6th Cir.1996).
{¶ 35} Furthermore, as pointed out by the Association, it was DiPenti who initiated
the lawsuit against the Association and forced the engagement of lengthy litigation, even
after being offered a payment plan to pay the $725 Repair Cost. She cannot be heard now
to complain that the Association incurred too much in attorney fees in defending against
her lawsuit and successfully pursuing its counterclaim against her.
{¶ 36} Moreover, as noted above, in the trial court DiPenti failed to file objections to
the magistrate's decision regarding attorney fees. Civ.R. 53(D)(3)(b)(iv) makes clear that
on appeal, any party who fails to object to the magistrate's decision before the trial court is
barred from raising objections in this court except to assert a claim of plain error in the trial
court's decision:
Waiver of right to assign adoption by court as error on
appeal. 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).
No. 19AP-384 13

(Emphasis sic.) Civ.R. 53(D)(3)(b)(iv).
{¶ 37} Although DiPenti does not acknowledge in her appellate brief that she failed
to file objections to the magistrate's decision awarding attorney fees before the trial court,
the record is clear she did not. Therefore, DiPenti has waived any claim of error on appeal
other than a claim of plain error. State ex rel. Findlay Industries v. Indus. Comm., 121 Ohio
St.3d 517, 2009-Ohio-1674, ¶ 3; see also, e.g., Lavelle v. Lavelle, 10th Dist. No. 12AP-159,
2012-Ohio-6197, ¶ 8. Furthermore, DiPenti neither alleges nor otherwise demonstrates
plain error on this issue. Thus, DiPenti has forfeited all arguments against the trial court's
decision awarding the Association its reasonable attorney fees in her appeal before this
court. Accordingly, her second assignment of error is overruled.
IV. Disposition
{¶ 38} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and KLATT, J., concur.