[Cite as Westbury Place Homeowners Assn., Inc. v. Murea, 2020-Ohio-2879.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
WESTBURY PLACE HOMEOWNERS C.A. No. 19CA0075-M ASSOCIATION, INC.
Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE MEDINA MUNICIPAL COURT RAZVAN MUREA COUNTY OF MEDINA, OHIO CASE No. 17CVH01259 Appellant
DECISION AND JOURNAL ENTRY
Dated: May 11, 2020
CARR, Judge.
{¶1} Defendant-Appellant Razvan Murea appeals from the judgment of the Medina
Municipal Court. This Court affirms.
I
{¶2} In May 2017, Plaintiff-Appellee Westbury Place Homeowners Association, Inc.
(“Westbury”) filed a complaint alleging that Mr. Murea failed to pay certain maintenance,
assessment, and attorney fees which were due and owing. Westbury noted that it previously filed
a foreclosure action against Mr. Murea and that the foreclosure decree was vacated and the case
was dismissed after Mr. Murea “paid the face value of the foreclosure decree in February 2017[.]”
However, Westbury asserted that additional fees, including attorney fees accrued between the prior
trial date of February 9, 2015 to the present.
{¶3} Mr. Murea filed a motion to dismiss arguing that res judicata barred the current
action. His motion was subsequently denied. Westbury then moved for summary judgment. Mr. 2
Murea opposed the motion, again asserting that res judicata barred Westbury’s claim. A magistrate
issued a magistrate’s decision concluding that Westbury was entitled to judgment as a matter of
law and awarded Westbury $2,455.61 and directed the clerk to set the matter for a hearing to
determine the amount of attorney fees to be included in the judgment. The trial court adopted the
decision the same day. Mr. Murea filed objections to the magistrate’s decision, which were
subsequently overruled by the trial court.
{¶4} A hearing was then held before the magistrate addressing the amount of attorney
fees to be awarded. According to the magistrate’s decision, an attorney testified about the fees
contained in an exhibit which “states the work Plaintiff’s counsel performed, the initials of the
attorney who performed the work, the time spent on same, the hourly rate, and the amount billed
for the same.” The attorney “stated the fees contained in Plaintiff’s Exhibit 1 are usual and
customary for the nature of the work plaintiff’s counsel performed, and are reasonable for doing
such work.” The magistrate observed that the attorney who testified “has extensive experience
and ability in handling cases such as this, testified that the activities and fees contained in
Plaintiff’s Motion Hearing Exhibit 1 are lower than the time he would have spent and fees he
would have charged in handling this action.” Ultimately, the magistrate concluded that the fees
were performed and were reasonable. The magistrate determined Westbury was entitled to
$11,497.57 in attorney fees. The trial court adopted the magistrate’s decision that same day. Mr.
Murea did not file objections nor did he file the transcript of the hearing or the exhibit in the trial
court.
{¶5} Mr. Murea has appealed, raising a single assignment of error for our review. 3
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR THAT SUBSTANTIALLY PREJUDICED THE RIGHTS OF THE APPELLANT AND UNDERMINED THE PUBLIC CONFIDENCE IN THE RELIABILITY OF THE JUSTICE SYSTEM WHEN THE MAGISTRATE JUDGE SUBSTITUTED HIMSELF AS A FACT AND EXPERT WITNESS IN THE APPELLEE’S CASE IN CHIEF AND CREDITED EXPERT WITNESS TESTIMONY THAT HAD NO FACTUAL EVIDENTIARY FOUNDATION WITHIN THE MEANING OF OHIO EVIDENCE RULE 703 AND 705.
{¶6} Mr. Murea argues in his sole assignment of error that the trial court committed
plain error in adopting the magistrate’s decision because the magistrate’s decision reflects that the
magistrate “testified” in its order by stating that the content of the court files demonstrated the
validity of the fees and by the magistrate relaying its past experience. Additionally, Mr. Murea
argues that the attorney who testified at the attorney fees hearing was not a proper expert witness
because Westbury failed to demonstrate that the work underlying the fees was actually performed.
{¶7} “Generally, this Court reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion.” Pflaum v. Summit Cty. Animal Control, 9th Dist. Summit No.
28335, 2017-Ohio-4166, ¶ 11, citing Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-
M, 2009-Ohio-3139, ¶ 17. An abuse of discretion implies that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). “‘In so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.’” Pflaum at ¶ 11, quoting Tabatabai at ¶ 18. Generally, “[a] trial court’s
determination in regards to an award of attorney fees will not be disturbed on appeal absent an
abuse of discretion.” (Citations omitted.) Magnum Steel & Trading, LLC v. Mink, 9th Dist.
Summit Nos. 26127, 26231, 2013-Ohio-2431, ¶ 62. 4
{¶8} Here, Mr. Murea failed to file any objections to the magistrate’s decision addressing
attorney fees. Civ.R. 53(D)(3)(b)(iv) provides that “[e]xcept 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).” Accordingly, Mr. Murea has forfeited all but plain error. Mayiras v. Sunrise Motors,
Inc., 9th Dist. Summit No. 27931, 2017-Ohio-279, ¶ 16. “[T]he Ohio Supreme Court has held that
‘in appeals of civil cases, the plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process itself.’”
Curran v. Kelly, 9th Dist. Medina No. 10CA139-M, 2012-Ohio-218, ¶ 7, quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 122-123 (1997).
{¶9} We cannot say that Mr. Murea has demonstrated plain error. To the extent Mr.
Murea has asserted that the magistrate’s statements in the magistrate’s decision amount not only
to improper testimony, but also plain error, we disagree. First, claims of error on appeal must be
based on the actions of the trial court, not the magistrate. See Stevens v. Stevens, 9th Dist. Medina
No. 17CA0084-M, 2019-Ohio-264, ¶ 17. Mr. Murea argues that these statements of the
magistrate, which amount to comments about the contents of the trial court record and the
magistrate’s experience, are particularly problematic because they constitute evidence that was not
presented at the hearing. Even if we were to agree with Mr. Murea that the statements are
problematic, Mr. Murea cannot succeed on his argument because review of his argument would
require consideration of the transcript and exhibit, which were not considered by the trial court. 5
But see State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, ¶ 4, citing The
Northeast Ohio Coalition for the Homeless v.
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[Cite as Westbury Place Homeowners Assn., Inc. v. Murea, 2020-Ohio-2879.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
WESTBURY PLACE HOMEOWNERS C.A. No. 19CA0075-M ASSOCIATION, INC.
Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE MEDINA MUNICIPAL COURT RAZVAN MUREA COUNTY OF MEDINA, OHIO CASE No. 17CVH01259 Appellant
DECISION AND JOURNAL ENTRY
Dated: May 11, 2020
CARR, Judge.
{¶1} Defendant-Appellant Razvan Murea appeals from the judgment of the Medina
Municipal Court. This Court affirms.
I
{¶2} In May 2017, Plaintiff-Appellee Westbury Place Homeowners Association, Inc.
(“Westbury”) filed a complaint alleging that Mr. Murea failed to pay certain maintenance,
assessment, and attorney fees which were due and owing. Westbury noted that it previously filed
a foreclosure action against Mr. Murea and that the foreclosure decree was vacated and the case
was dismissed after Mr. Murea “paid the face value of the foreclosure decree in February 2017[.]”
However, Westbury asserted that additional fees, including attorney fees accrued between the prior
trial date of February 9, 2015 to the present.
{¶3} Mr. Murea filed a motion to dismiss arguing that res judicata barred the current
action. His motion was subsequently denied. Westbury then moved for summary judgment. Mr. 2
Murea opposed the motion, again asserting that res judicata barred Westbury’s claim. A magistrate
issued a magistrate’s decision concluding that Westbury was entitled to judgment as a matter of
law and awarded Westbury $2,455.61 and directed the clerk to set the matter for a hearing to
determine the amount of attorney fees to be included in the judgment. The trial court adopted the
decision the same day. Mr. Murea filed objections to the magistrate’s decision, which were
subsequently overruled by the trial court.
{¶4} A hearing was then held before the magistrate addressing the amount of attorney
fees to be awarded. According to the magistrate’s decision, an attorney testified about the fees
contained in an exhibit which “states the work Plaintiff’s counsel performed, the initials of the
attorney who performed the work, the time spent on same, the hourly rate, and the amount billed
for the same.” The attorney “stated the fees contained in Plaintiff’s Exhibit 1 are usual and
customary for the nature of the work plaintiff’s counsel performed, and are reasonable for doing
such work.” The magistrate observed that the attorney who testified “has extensive experience
and ability in handling cases such as this, testified that the activities and fees contained in
Plaintiff’s Motion Hearing Exhibit 1 are lower than the time he would have spent and fees he
would have charged in handling this action.” Ultimately, the magistrate concluded that the fees
were performed and were reasonable. The magistrate determined Westbury was entitled to
$11,497.57 in attorney fees. The trial court adopted the magistrate’s decision that same day. Mr.
Murea did not file objections nor did he file the transcript of the hearing or the exhibit in the trial
court.
{¶5} Mr. Murea has appealed, raising a single assignment of error for our review. 3
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR THAT SUBSTANTIALLY PREJUDICED THE RIGHTS OF THE APPELLANT AND UNDERMINED THE PUBLIC CONFIDENCE IN THE RELIABILITY OF THE JUSTICE SYSTEM WHEN THE MAGISTRATE JUDGE SUBSTITUTED HIMSELF AS A FACT AND EXPERT WITNESS IN THE APPELLEE’S CASE IN CHIEF AND CREDITED EXPERT WITNESS TESTIMONY THAT HAD NO FACTUAL EVIDENTIARY FOUNDATION WITHIN THE MEANING OF OHIO EVIDENCE RULE 703 AND 705.
{¶6} Mr. Murea argues in his sole assignment of error that the trial court committed
plain error in adopting the magistrate’s decision because the magistrate’s decision reflects that the
magistrate “testified” in its order by stating that the content of the court files demonstrated the
validity of the fees and by the magistrate relaying its past experience. Additionally, Mr. Murea
argues that the attorney who testified at the attorney fees hearing was not a proper expert witness
because Westbury failed to demonstrate that the work underlying the fees was actually performed.
{¶7} “Generally, this Court reviews a trial court’s action with respect to a magistrate’s
decision for an abuse of discretion.” Pflaum v. Summit Cty. Animal Control, 9th Dist. Summit No.
28335, 2017-Ohio-4166, ¶ 11, citing Tabatabai v. Tabatabai, 9th Dist. Medina No. 08CA0049-
M, 2009-Ohio-3139, ¶ 17. An abuse of discretion implies that the trial court’s attitude was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). “‘In so doing, we consider the trial court’s action with reference to the nature of the
underlying matter.’” Pflaum at ¶ 11, quoting Tabatabai at ¶ 18. Generally, “[a] trial court’s
determination in regards to an award of attorney fees will not be disturbed on appeal absent an
abuse of discretion.” (Citations omitted.) Magnum Steel & Trading, LLC v. Mink, 9th Dist.
Summit Nos. 26127, 26231, 2013-Ohio-2431, ¶ 62. 4
{¶8} Here, Mr. Murea failed to file any objections to the magistrate’s decision addressing
attorney fees. Civ.R. 53(D)(3)(b)(iv) provides that “[e]xcept 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).” Accordingly, Mr. Murea has forfeited all but plain error. Mayiras v. Sunrise Motors,
Inc., 9th Dist. Summit No. 27931, 2017-Ohio-279, ¶ 16. “[T]he Ohio Supreme Court has held that
‘in appeals of civil cases, the plain error doctrine is not favored and may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no objection was
made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial process itself.’”
Curran v. Kelly, 9th Dist. Medina No. 10CA139-M, 2012-Ohio-218, ¶ 7, quoting Goldfuss v.
Davidson, 79 Ohio St.3d 116, 122-123 (1997).
{¶9} We cannot say that Mr. Murea has demonstrated plain error. To the extent Mr.
Murea has asserted that the magistrate’s statements in the magistrate’s decision amount not only
to improper testimony, but also plain error, we disagree. First, claims of error on appeal must be
based on the actions of the trial court, not the magistrate. See Stevens v. Stevens, 9th Dist. Medina
No. 17CA0084-M, 2019-Ohio-264, ¶ 17. Mr. Murea argues that these statements of the
magistrate, which amount to comments about the contents of the trial court record and the
magistrate’s experience, are particularly problematic because they constitute evidence that was not
presented at the hearing. Even if we were to agree with Mr. Murea that the statements are
problematic, Mr. Murea cannot succeed on his argument because review of his argument would
require consideration of the transcript and exhibit, which were not considered by the trial court. 5
But see State ex rel. Harris v. Rubino, 156 Ohio St.3d 296, 2018-Ohio-5109, ¶ 4, citing The
Northeast Ohio Coalition for the Homeless v. Husted, 831 F.3d 686, 714-718 (6th Cir.2016)
(appearing to rely on the Court’s prior experience in similar situations in determining whether the
rates were reasonable). While Mr. Murea did ensure that both the transcript and the exhibit were
filed as part of this Court’s record, those documents were not filed in the trial court prior to the
time Mr. Murea filed a notice of appeal. Thus, the trial court did not consider them in rendering
its decision. Accordingly, this Court is likewise not able to consider the transcript in determining
whether the trial court committed plain error. See O’Hara v. Ephraim, 9th Dist. Summit No.
28467, 2018-Ohio-567, ¶ 15; see also Stevens at ¶ 17; Strassini v. Strassini, 9th Dist. Summit No.
26038, 2012-Ohio-5269, ¶ 10 (“[W]e cannot consider materials that were not available for the trial
court to consider.”).
{¶10} Finally, Mr. Murea maintains that the testimony of the attorney who did testify at
the hearing was improper in that it lacked foundation and violated Evid.R. 703 and 705. Mr. Murea
asserts that the record does not demonstrate that the work comprising the attorney fee request was
actually performed. Again, review of the transcript and exhibit would be vital to determining the
merits of this argument. For the same reasons discussed above, we are likewise not able to review
the transcript and exhibit to resolve this argument.
{¶11} Overall, Mr. Murea has not demonstrated that the trial court committed plain error.
Mr. Murea’s assignment of error is overruled.
III.
{¶12} Mr. Murea’s assignment of error is overruled. The judgment of the Medina
Municipal Court is affirmed.
Judgment affirmed. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal
Court, County of Medina, 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 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 Appellant.
DONNA J. CARR FOR THE COURT
CALLAHAN, P. J. TEODOSIO, J. CONCUR.
APPEARANCES:
MICHAEL T. CONWAY, Attorney at Law, for Appellant.
LINSDEY A. WRUBEL, Attorney at Law, for Appellee.