Erdman v. Williams ( 2013 )

[Cite as Erdman v. Williams, 2013-Ohio-980.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DIANA ERDMAN JUDGES:
Hon. W. Scott Gwin, P.J.
Petitioner-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2012 AP 08 0054
MARK A. WILLIAMS
Respondent-Appellant
OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Common Pleas Court, Case No.
2011 PO 09 0956
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 13, 2013
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
DOUGLAS JACKSON MARK A. WILLIAMS, PRO SE
214 N. Dawson St. 484 2nd Dr. NE.
Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2012 AP 08 0054 2
Hoffman, J.
{¶1} Respondent-appellant Mark A. Williams appeals the August 8, 2012
Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which
approved and adopted the magistrate’s May 23, 2012 decision, overruling his motion to
dismiss. Petitioner-appellee is Diana Erdman.1
STATEMENT OF THE CASE AND FACTS
{¶2} Appellant is the biological father of three of Appellee’s children. On
September 9, 2011, Appellee filed a Complaint for Civil Stalking Protection Order. The
trial court granted an ex parte order and scheduled the matter for hearing on September
23, 2011. Appellant filed a pro se response on September 22, 2011. On the day of the
scheduled hearing, the magistrate filed a notice continuing the hearing until October 7,
2011. Appellee subsequently requested a continuance of the October 7, 2011 hearing
date, which the magistrate granted.
{¶3} The hearing commenced on October 14, 2011, and concluded on October
21, 2011. After hearing the evidence, the magistrate issued a civil stalking protection
order. The order included Civ. R. 54(B) language. Appellant filed objections to the
magistrate’s decision on November 7, 2011. Via Judgment Entry filed December 6,
2011, the trial court denied Appellant’s objections.
{¶4} On March 14, 2012, Appellant filed a Notice of Appeal of the December 6,
2011 Judgment Entry. Appellant also filed a request for an extension for filing the
appeal, explaining he was not advised of the time limitation for filing an appeal and the
1
Appellee has not filed a brief in this matter.
Tuscarawas County, Case No. 2012 AP 08 0054 3
attorney he had hired subsequent to the hearing did not file an appeal. There is nothing
in the record reflecting any ruling or disposition relative to this filing.
{¶5} On April 9, 2012, Appellant filed a motion to dismiss with the trial court,
which the magistrate overruled on May 23, 2012. On May 25, 2012, Appellant filed
additional objections to the magistrate’s decision. Appellee filed a response, asserting
the filing was improper and should be stricken; the allegations contained in Appellant’s
objections were baseless and inaccurate; and the objections were untimely filed. Via
Judgment Entry filed August 8, 2012, the trial court approved and adopted the
magistrate’s May 23, 2012 decision. Appellant filed a Notice of Appeal on August 22,
2012. Appellant filed a Request for Electronic Record of Courtroom Proceeding. A CD
of the hearing was delivered to the Clerk of Courts on September 27, 2012.
{¶6} It is from the trial court’s August 8, 2012 Judgment Entry Appellant
appeals, raising the following assignments of error:
{¶7} “I. THE COURT ERRED WHEN IT ABUSED ITS DISCRETION IN
ACKNOWLEDGING THE EVIDENCE AS BEING SUFFICIENT TO SUPPORT CLAIMS
OF STALKING.
{¶8} “II. WHATEVER THE TRIAL COURTS RULING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AS THERE IS NO EVIDENCE OR
STATEMENTS OF BEHAVIOR THAT CONSTITUTES STALKING.”
I, II
{¶9} Initially, we note Appellant's brief does not comply with the rules for a
proper brief as set forth in App.R. 16(A). Although Appellant’s brief includes a statement
of the assignments of error for review, such does not include a reference to the place in
Tuscarawas County, Case No. 2012 AP 08 0054 4
the record where each error is reflected, in violation of App.R. 16(A)(3). Further,
Appellant does not support his arguments on appeal with references to the record, legal
citations, or other authority, in violation of App. R. 16(A)(7). Compliance with the rule is
mandatory. Appellant’s failure to comply with App. R. 16 is tantamount to failing to file a
brief in this matter. Such deficiencies permit this Court to dismiss Appellant's appeal.
Notwithstanding the omissions in his brief, in the interests of justice and finality, we elect
to review the appeal.
{¶10} Appellant’s brief challenges the trial court’s issuing the civil stalking
protection order as against the manifest weight and sufficiency of the evidence.
Appellant’s Notice of Appeal indicates the appeal is being taken from the trial court’s
August 8, 2012 Judgment Entry, which approved and adopted the magistrate’s May 23,
2012 decision overruling his motion to dismiss. The trial court approved and adopted
the magistrate’s decision to issue the protection order via Judgment Entry filed
December 6, 2011. This judgment entry was a final, appealable order. See R.C.
2903.214(G) (“An order issued under this section, other than an ex parte order, that
grants a protection order, or that refuses to grant a protection order, is a final,
appealable order”).
{¶11} Accordingly, we find Appellant is barred from raising his arguments under
the doctrine of res judciata. Appellant's arguments as presented herein could have or
should have been raised on direct appeal of the trial court's December 6, 2011
Judgment Entry. A motion to dismiss or motion to vacate cannot be used as a
substitute for a direct appeal. Key v. Mitchell, 81 Ohio St.3d 89, 689 N.E.2d 548, 1998–
Tuscarawas County, Case No. 2012 AP 08 0054 5
Ohio–643; Bobardier Capital, Inc. v. W.W. Cycles, Inc. 155 Ohio App.3d 484, 801
N.E.2d 900, 2003–Ohio–6716.
{¶12} Assuming, arguendo, Appellant was not barred by the doctrine of res
judicata, we would still affirm the judgment of the trial court. Appellant failed to provide
this Court with a transcript of the October 14 and 21, 2011 hearing. Appellant bears the
burden of showing error by reference to matters in the record. Knapp v. Edwards Lab.
(1980), 61 Ohio St.2d 197, 400 N.E.2d 384; State v. Prince (1991), 71 Ohio App.3d 694,
595 N.E.2d 376. An appellate court can reach its decision only upon facts which are
adduced in the trial court's proceeding and cannot base its decision on allegations
founded upon facts from outside of the record. Merillat v. Fulton Cty. Bd. Of Commrs.
(1991), 73 Ohio App.3d 459, 597 N.E.2d 1124.
{¶13} When portions of the transcript necessary for resolution of assigned errors
are omitted from the record, the reviewing court has nothing to pass upon and thus, as
to those assigned errors, the court has no choice but to presume the validity of the
lower court's proceedings, and affirm.” Knapp, supra.
{¶14} Because Appellant failed to provide this Court with a transcript of the
hearing, we may presume the validity of the lower court's proceedings and affirm.
{¶15} Appellant’s first and second assignments of error are overruled.
Tuscarawas County, Case No. 2012 AP 08 0054 6
{¶16} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE
Tuscarawas County, Case No. 2012 AP 08 0054 7
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DIANA ERDMAN :
:
Petitioner-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARK A. WILLIAMS :
:
Respondent-Appellant : Case No. 2012 AP 08 0054
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ John W. Wise _____________________
HON. JOHN W. WISE