Hayberg v. Tamburello

2013 Ohio 3451

• Court: Ohio Court of Appeals
• Decided: August 1, 2013
• Docket: 2013 AP 02 0011
• Status: Published

Opinion

[Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: LEWIS HAYBERG : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Petitioner-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2013 AP 02 0011 JOHN TAMBURELLO : : Respondent-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2011 PO 12 1242

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 1, 2013

APPEARANCES:

For Petitioner-Appellee For Respondent-Appellant

CRAIG G. PELINI JOHN A. TAMBURELLO 8040 Cleveland Avenue N.W, Ste. 400 6842 Paula Drive North Canton, OH 44720 Middleburg Heights, OH 44130 [Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]

Gwin, P.J.

{¶1} Appellant appeals the January 28, 2013 judgment entry of the Tuscarawas

County Common Pleas Court denying his emergency motion for relief to terminate

protection immediately.

Facts & Procedural History

{¶2} Appellant John Tamburello resides in Cuyahoga County. In May of 2011,

appellant’s house was damaged when a tree fell through his home during a storm.

Appellant hired appellee Lewis Hayberg’s company to repair and/or restore parts of his

damaged home. Appellant and appellee subsequently had a dispute regarding the

repair and restoration of the home and whether the work was appropriately completed.

Appellant and appellee are currently still involved in civil litigation in Cuyahoga County

Common Pleas Court.

{¶3} Appellee filed a petition for civil stalking protection order on December 6,

2011 against appellant alleging appellant threatened him and his family. An ex parte

hearing was held before a magistrate on December 7, 2011 and the ex parte protection

order was granted on December 7, 2011. A full hearing was set for December 16,

2011. On December 14, 2011, appellant filed a motion to dismiss protection order. A

full hearing was held before the magistrate on December 16, 2011. Appellant did not

appear for the hearing. The magistrate granted the protection order against appellant

for five (5) years. The trial court approved and adopted the magistrate’s decision.

{¶4} Appellee filed a motion for order to show cause against appellant on

January 11, 2012 and appellant filed a motion to terminate and dismiss protection order

on January 27, 2012 and a renewed motion to dismiss on January 30, 2012. A hearing Tuscarawas County, Case No. 2013 AP 02 0011 3

was held before the magistrate on February 27, 2012. The magistrate issued a decision

on March 2, 2012, denying appellant’s motion to terminate protection order and finding

appellant in contempt based upon a series of threatening emails sent by appellant to

appellee. Appellant filed objections to the magistrate’s decision on March 13, 2012. On

March 28, 2012, the trial court issued a decision adopting the magistrate’s decision,

denying appellant’s motion to terminate protection order, and granting appellee’s motion

for civil contempt.

{¶5} Appellant filed a motion for relief and motion to show cause, requesting

that the civil protection order be immediately terminated, as he believed it would

negatively impact his insurance licenses. The magistrate held a hearing on the motion

on July 23, 2012. Appellant testified he had to have the protection order terminated

immediately to continue his career and if he could not continue his career, he could not

afford the health insurance that was keeping him alive. Appellant also argued he was

physically incapable of harming appellee. On August 8, 2012, the magistrate issued a

decision on appellant’s motion for relief and motion to show cause. The magistrate

denied appellant’s motion to terminate the protection order and denied contempt against

appellee and his attorneys. Appellant filed objections and supplemental objections to

the magistrate’s August 8th decision. The trial court held an oral hearing on September

24, 2012. Appellant detailed to the trial court his health issues and argued the civil

protection order caused him to lose his job because he could not obtain his insurance

licenses. Appellant stated he could not pay for health insurance for medically

necessary procedures and treatment with the existence of the protection order. Tuscarawas County, Case No. 2013 AP 02 0011 4

Appellant admitted anger got the better of him when he was dealing with appellee, but

that he was in no physical position to actually harm appellee.

{¶6} On September 28, 2012, the trial court issued a judgment entry overruling

appellant’s initial and supplemental objections to the magistrate’s decision and adopted

the magistrate’s decision. On October 15, 2012, appellant filed a notice of appeal with

this Court, appealing the September 28th judgment entry overruling appellant’s initial

and supplemental objections to the magistrate’s decision. That appeal was dismissed

on December 26, 2012 for want of prosecution because appellant failed to file an

appellant’s brief. Appellant filed a motion to reverse the previous decision and

terminate the protection order on October 25, 2012. The trial court denied the motion

on November 2, 2012.

{¶7} On January 18, 2013, appellant filed an emergency motion for relief to

terminate protection immediately. Appellant requested immediate termination of the

protection order because the protection order caused a loss of income and caused his

inability to pay for health insurance. On January 28, 2013, the trial court denied

appellant’s emergency motion for relief to terminate protection immediately, citing to the

previous decisions for its reasons in denying the motion. Appellant filed an appeal of

this decision on February 26, 2013.

{¶8} Appellant does not specifically enumerate his assignments of error.

However, after reviewing appellant’s brief and contentions, we have interpreted his

assignments of error as follows:

{¶9} “I. THE TRIAL COURT DOES NOT HAVE JURISDICTION. Tuscarawas County, Case No. 2013 AP 02 0011 5

{¶10} “II. THE MAGISTRATE AND TRIAL JUDGE ARE BIASED AGAINST

APPELLANT BECAUSE HE IS NOT A RESIDENT OF TUSCARAWAS COUNTY.

{¶11} “III. THE CONTINUATION OF THE CIVIL PROTECTION ORDER IS

UNDULY BURDENSOME AND EXCESSIVE IN THAT IT SEVERELY AFFECTS

APPELLANT’S CAREER AND ABILITY TO PAY HEALTH INSURANCE.

{¶12} “IV. THE CIVIL PROTECTION ORDER IS CRUEL AND UNUSUAL

PUNISHMENT.

{¶13} “V. THE TRIAL COURT VIOLATED THE AMERICANS WITH DISABILIES

ACT BECAUSE APPELLANT HAS COPD, PTSD, HEART PROBLEMS, AND

CANCER.”

{¶14} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R. 11. 1. It shall be sufficient compliance

with App. R. 12(A) for the statement of the reason for the court's decision

as to each error to be in brief and conclusionary form. The decision may

be by judgment entry in which case it will not be published in any form.”

{¶15} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th

Dist. 1983). Tuscarawas County, Case No. 2013 AP 02 0011 6

{¶16} This appeal shall be considered in accordance with the aforementioned

rules.

Pro Se Appellants

{¶17} We understand appellant has filed this appeal pro se. However, “like

members of the bar, pro se litigants are required to comply with the rules of practice and

procedure.” Hardy v. Belmont Correctional Inst., 10th Dist No. 06AP-116, 2006-Ohio-

3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶ 11.

We also understand that “an appellate court will ordinarily indulge a pro se litigant where

there is some semblance of compliance with the appellate rules.” State v. Richard, 8th

Dist. No. 86154, 2005-Ohio-6494, ¶ 4 (internal quotations omitted).

{¶18} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528

(2001), the Ohio Supreme Court noted, “a reviewing court cannot add matter to the

record before it that was not part of the trial court’s proceedings, and then decide the

appeal on the basis of the new matter.” See State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978). Further, the “record cannot be enlarged by factual assertions in the

brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227 (1963). New material and factual assertions contained in any brief in this court may

not be considered. See North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, quoting Dzina v. Celebreeze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶ 16. Therefore, we have disregarded facts and documents in appellant’s

brief that are outside of the record. Tuscarawas County, Case No. 2013 AP 02 0011 7

{¶19} In the interests of justice, we shall attempt to consider appellant’s

assignments of error.

I.

{¶20} Appellant first argues the trial court has no jurisdiction in this case

because appellant is a resident of Cuyahoga County and the alleged actions took place

in Cuyahoga County. R.C. 2903.214 deals with civil stalking protection orders. R.C.

2903.14(B) provides, “[t]he court has jurisdiction over all proceedings under this

section.” “Court” as used in R.C. 2903.214(B) is defined as, “the court of common pleas

of the county in which the person to be protected by the protection order resides.” R.C.

2903.214(A)(1). The statute thus confers jurisdiction over requests for protection orders

to the court of common pleas of the county in which the person to be protected resides.

Appellee, the person to be protected, resides in Tuscarawas County and thus

Tuscarawas County Common Pleas Court has jurisdiction over appellee’s petition for

civil protection order. Appellant fails to present any legal authority that the trial court

issuing the protection order does not have jurisdiction to hear a motion to terminate the

protection order. Accordingly, appellant’s first assignment of error is overruled.

II.

{¶21} Appellant next argues both the magistrate and trial judge are biased

against him because he is not a resident of Tuscarawas County.

{¶22} We first note that the magistrate did not rule on appellant’s January 18th

emergency motion to dismiss the protection order in the January 28th judgment entry.

The trial judge himself issued the judgment entry. Therefore, there is no bias by the

magistrate with regard to the judgment entry at issue in this case. Tuscarawas County, Case No. 2013 AP 02 0011 8

{¶23} It is well-established that, pursuant to R.C. 2701.03, the Chief Justice of

the Supreme Court of Ohio has exclusive jurisdiction to determine a claim that a

common pleas judge is biased or prejudiced. See Jones v. Billingham, 105 Ohio

App.3d 8, 11, 663 N.E.2d 657 (2d Dist. 1995). If a common pleas litigant wishes to

raise a challenge to a trial judge’s objectivity, he or she must utilize the procedure set

forth in R.C. 2701.03. See In re Baby Boy Eddy, 5th Dist. No. 99CA22, 2000 WL 1410

(1999). In this case, there is no indication that appellant followed the necessary

procedures to bring a bias claim before the Chief Justice.

{¶24} Appellant’s second assignment of error is therefore overruled.

III.

{¶25} A trial court may modify or vacate a civil stalking protection order if the

movant shows that the original circumstances have materially changed and it is no

longer equitable for the order to continue. Prostejovsky v. Prostejovsky, 5th Dist. No.

06-COA-033, 2007-Ohio-5743 (Oct. 25, 2007). We review a ruling on a motion to

terminate a civil protection order for an abuse of discretion. Jones v. Rose, 4th Dist No.

09CA7, 2009-Ohio-4347. To find an abuse of discretion, this court must determine that

the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶26} We find the trial court did not abuse its discretion in denying appellant’s

emergency motion for relief to terminate protection immediately. While the trial court

was sympathetic towards appellant and the circumstances regarding his health and

employment situation, the trial court did not find a material change in circumstances Tuscarawas County, Case No. 2013 AP 02 0011 9

warranting termination of the protection order. The protective order in this case was

issued because the trial court found appellant made threats toward appellee and his

family. After the protection order was issued, the trial court found appellant in contempt

based upon a series of threatening emails sent by appellant to appellee and appellant’s

continued contact with appellee. Based on our review of the record, we do not find the

trial court abused its discretion in finding appellant did not demonstrate a material

change in circumstances and in not terminating the civil protection order. Appellant’s

third assignment of error is overruled.

IV. & V.

{¶27} Appellant asserts in his brief that the civil protection order is cruel and

unusual punishment and that the trial court’s actions violated the Americans with

Disabilities Act because appellant has COPD, PTSD, heart problems, and cancer.

{¶28} “If an argument exists that can support [an] assignment of error, it is not

the court’s duty to root it out.” Thomas v. Harmon, 4th Dist. No. 08CA17, 2009-Ohio-

3299, ¶ 14, quoting State v. Carman, 8th Dist. No. 90512, 2008-Ohio-4368, ¶ 31. “It is

not the function of this court to construct a foundation for [an appellant’s] claims; failure

to comply with the rules governing practice in the appellate courts is a tactic which is

ordinarily fatal.” Catanzarite v. Bowell, 9th Dist. No. 24184, 2009-Ohio-1211, ¶ 16,

quoting Kramer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). We

may thus disregard an assignment of error that “fails to present any citations to case law

or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc, 4th Dist. No. 07CA4,

2008-Ohio-2194, ¶ 12. See also, App.R. 16(A) and App. R. 12(A)(2). In this case,

appellant has failed to provide any explanation concerning the legal reasons or Tuscarawas County, Case No. 2013 AP 02 0011 10

evidence in support of his argument that the civil protection order is cruel and unusual

punishment and that the trial court violated the Americans with Disabilities Act.

Accordingly, appellant’s fourth and fifth assignments of error are overruled.

{¶29} Based on the foregoing, the judgment entry of the Tuscarawas County

Common Pleas Court is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 0723 [Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

LEWIS HAYBERG : : Petitioner-Appellee : : : -vs- : JUDGMENT ENTRY : JOHN TAMBURELLO : : : Respondent-Appellant : CASE NO. 2013 AP 02 0011

For the reasons stated in our accompanying Memorandum-Opinion, the judgment

entry of the Tuscarawas County Common Pleas Court is affirmed. Costs to appellant.