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Krlich v. Shelton

Court of Appeals of Ohio, Eleventh District, Trumbull

August 26, 2019

MATTHEW P. SHELTON, et al., Defendants-Appellees. LUCINDA KRLICH, Plaintiff-Appellant,

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

          Scott C. Essad, (For Plaintiff-Appellant).

          Michael D. Rossi, Guarnieri & Secrest, PLL, (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 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 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 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 ...

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