Blumensaadt v. Put-In-Bay Police Dept.

2014 Ohio 3068

• Court: Ohio Court of Appeals
• Decided: July 11, 2014
• Docket: OT-13-005
• Status: Published

Opinion

[Cite as Blumensaadt v. Put-In-Bay Police Dept., 2014-Ohio-3068.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

Virginia Blumensaadt Court of Appeals No. OT-13-005

Appellant Trial Court No. CVI 1200112

v.

Put-In-Bay Police Department DECISION AND JUDGMENT

Appellee Decided: July 11, 2014

*****

Virginia Blumensaadt, pro se.

Jeffrey T. Kay and George C. Wilber, for appellee.

OSOWIK, J.

{¶ 1} This is an appeal from a small claims court judgment of the Ottawa County

Municipal Court, which dismissed appellant’s claim of battery and intimidation against

the Put-In-Bay Police Department based upon multiple facts fatal to the filing, including sovereign immunity and the statute of limitations. For the reasons set forth below, this

court affirms the judgment of the trial court.

{¶ 2} Appellant, Virginia Blumensaadt, asserts the following on appeal:

I. This motion is for judgment of compensation and is supported by

the evidence presented of the battery and intimation.

{¶ 3} The following undisputed facts are relevant to this matter. This case stems

from appellant’s involvement in a fracas at Axel & Harry’s, a bar and restaurant owned

by appellant’s son located at Put-In-Bay. Appellee, the Put-In-Bay Police Department,

responded to an incident involving patrons who serve in the military at Camp Perry,

appellant’s son, daughter-in-law, and appellant. Appellant claims that she was assaulted

and injured by one of the Put-In-Bay police officers responding to the scene. Appellant

subsequently sued the Put-In-Bay Police Department in small claims court.

{¶ 4} In response to appellant’s battery complaint, appellee filed a motion for

judgment on the pleadings. The motion emphasized the lack of any evidence in support

of the claim and noted multiple procedural flaws. Appellant did not respond to the

motion.

{¶ 5} On November 2, 2012, the trial court conducted an oral hearing on the

motion for judgment on the pleadings. On November 8, 2012, the magistrate determined

that: 1) the Put-In-Bay Police Department is not a legal entity capable of being sued;

2) appellant’s claim is barred by the one-year statute of limitations set forth in R.C.

2. 2744.11; and 3) political subdivisions are immune from intentional torts pursuant to R.C.

2744.02(A)(1).

{¶ 6} On November 21, 2012, appellant objected to the magistrate’s decision.

Notably, she failed to serve a copy of the objection to the opposing counsel.

{¶ 7} On January 3, 2013, the trial court issued a decision and judgment denying

appellant’s objection and affirming the magistrate’s decision. The trial court noted that

appellant failed to file an affidavit or a transcript. The trial court emphasized in relevant

part, “Plaintiff’s Objection is conclusionary in nature, devoid of detail and contains at

least one outrageous accusation.”

{¶ 8} On February 1, 2013, appellant appealed to this court. The appeal was

subsequently dismissed as appellant failed to file her brief. The appeal was subsequently

reinstated upon appellant’s motion for reconsideration.

{¶ 9} Principally, appellant has asserted no assignments of legal error on appeal in

her filings and did not establish any legal error in her filings.

{¶ 10} In conjunction with the above, and as previously determined by this court

in this case, appellant’s reliance on materials that were not properly before the court must

be disregarded. The audio and video discs now offered by appellant were never part of

the record. Appellant wholly failed to comport with App.R. 9(B)(6). Similarly, none of

the materials proffered by appellant to this court were filed with the trial court clerk or

sent to opposing counsel as is mandated. See generally State v. Ishmail, 54 Ohio St.2d

3. 402, 377 N.E.2d 500 (1978); In re W.E., 6th Dist. Lucas No. L-11-1076, 2011-Ohio-

4693.

{¶ 11} “The duty to provide a transcript or affidavit to the trial court rests with the

person objecting to the magistrate’s decision.” GMS Mgt. Co., Inc. v. Coultier, 11th Dist.

Lake No. 2005-L-071, 2006-Ohio-1263, ¶ 26. Again, we note that appellant failed to

assert or articulate any assignments of error and never referenced the disputed trial court

judgment entry. Additionally, appellant failed to properly file or furnish the transcript,

any supporting affidavits, or any other materials constituting a record conducive to

review by this court. Appellant is precluded from submitting documentation to this court

that is not part of a properly generated trial court record. Ishmail, supra.

{¶ 12} It is well-established that an appellant who fails to support their objections

pursuant to Civ.R. 53 is precluded from arguing factual determinations on appeal.

Remnant Room v. Smith, 11th Dist. Trumbull No. 2002-T-0041, 2003-Ohio-3545, ¶ 5;

Sain v. Estate of Haas, 10th Dist. Franklin No. 06AP-902, 2007-Ohio-1705, ¶ 23. Since

this court is barred from consideration of materials that were not properly before the trial

court, we must presume that the facts presented to the trial court were correctly

interpreted and decided.

{¶ 13} The requirements of Civ.R. 53 have not been satisfied in this matter. The

rationale of Civ.R. 53 is to ensure an accurate version of what transpired at the court

below, and not what a given party’s impressions are with regard to the specificity of the

evidence submitted. Remnant Room at ¶ 5.

4. {¶ 14} Notably, pro se litigants are presumed to have knowledge of the law and

are not accorded greater rights than litigants who may have retained counsel. Jones

Concrete, Inc. v. Thomas, 9th Dist. Summit No. 2957-M, 1999 WL 1260308, *2

(Dec. 22, 1999), citing Copeland v. Rosario, 9th Dist. Summit No. 18452, 1998 WL

46768, *6 (Jan. 28, 1998). Here, appellant failed to assert or demonstrate any error by

the trial court. Appellant unilaterally concludes that she was the victim of battery and

intimidation by a police officer and demands compensation. Appellant has failed to

properly supply a record of evidence on appeal. All improper submissions have been

stricken.

{¶ 15} Based on the forgoing and pursuant to Civ.R. 53, we find appellant’s

assertions to be without merit and not well-taken.

{¶ 16} Wherefore, the judgment of the Ottawa County Municipal Court is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

5. Blumensaadt v. Put-In-Bay Police Dept. C.A. No. OT-13-005

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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