Pulled From The Pits Rescue & Sanctuary v. Dabernig

[Cite as Pulled From The Pits Rescue & Sanctuary v. Dabernig, 2016-Ohio-7255.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
PULLED FROM THE PITS RESCUE & C.A. No. 15AP0061
SANCTUARY, et al.
Appellees
APPEAL FROM JUDGMENT
v. ENTERED IN THE
WAYNE COUNTY MUNICIPAL COURT
JAMI DABERNIG COUNTY OF WAYNE, OHIO
CASE No. 2014 CVH 0808
Appellant
DECISION AND JOURNAL ENTRY
Dated: October 11, 2016
HENSAL, Judge.
{¶1} Defendant-Appellant, Jami Dabernig, appeals from a judgment of the Wayne
County Municipal Court, overruling her objections to the magistrate’s decision and granting
judgment in favor of Plaintiffs-Appellees, Pulled from the Pits Rescue & Sanctuary and Crystal
Miller. This Court affirms.
I.
{¶2} This appeal involves a dispute over the ownership of certain rescue dogs. Pulled
from the Pits Rescue & Sanctuary (“Pulled from the Pits”) filed a complaint against Jami
Dabernig, asserting a number of causes of actions including breach of contract and replevin. The
basis of Pulled from the Pits’ complaint was that it provided a number of rescue dogs to Ms.
Dabernig with the understanding that Ms. Dabernig would temporarily “foster” the dogs until
Pulled from the Pits found each dog a permanent home. After determining that Ms. Dabernig
was not properly caring for the dogs, Pulled from the Pits sought to regain possession of them.
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Ms. Dabernig refused, and the underlying lawsuit followed. Crystal Miller,1 who operates Pet
Lover’s Dog Rescue, filed a similar action against Ms. Dabernig concerning other dogs, and the
trial court consolidated the two actions. The case proceeded to a bench trial before a magistrate.
{¶3} By the time of trial, all but seven dogs had been returned to either Pulled from the
Pits or Ms. Miller. At the conclusion of trial, the magistrate ordered Ms. Dabernig to
immediately return the remaining dogs. Ms. Dabernig filed objections to the magistrate’s
decision, which the trial court denied. The trial court adopted the magistrate’s decision and this
appeal followed. Ms. Dabernig now raises seven assignments of error for our review. For ease
of consideration, we have combined some of Ms. Dabernig’s assignments of error.
II.
ASSIGNMENT OF ERROR I
THE COURT OF COMMON PLEAS VIOLATED APPELLANT JAMI
DABERNIG’S DUE PROCESS CONSTITUTIONAL RIGHTS (SECTION 16,
ARTICLE I OF THE OHIO CONSTITUTION AND THE FOURTEENTH
AMENDMENT AND THE FOURTH AND FIFTH AMENDMENT TO THE
UNITED STATES CONSTITUTION) WHEN IT FAILED TO FOLLOW THE
REQUIRED MANDATES OF OHIO RULES OF CIVIL PROCEDURE AND
OHIO REVISED CODE CHAPTER 2737.
ASSIGNMENT OF ERROR II
THE COURT OF COMMON PLEAS COMMITTED ERR[OR] AND ABUSED
ITS DISCRETION WHEN [IT] REMOVED PROPERTY FROM APPELLANT
JAMI DABERNIG WITHOUT FOLLOWING THE MANDATES OF OHIO
RULES OF CIVIL PROCEDURE AND OHIO REVISED CODE CHAPTER
2737.
ASSIGNMENT OF ERROR III
THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS
DISCRETION WHEN ITS MARCH 19, 2015[,] MAGISTRATE’S PROPOSED
DECISION[] “MADE A PART HEREOF” THE MARCH 10, 2015[,] ORDER.
1
Ms. Miller is not a party to this appeal.
3
ASSIGNMENT OF ERROR IV
THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS
DISCRETION BY ADOPTING THE MARCH 10, 2015[,] []MAGISTRATE’S
ORDER – REPLEVIN AND THE MARCH 19, 2015[,] MAGISTRATE’S
PROPOSED DECISION[] IN ITS OCTOBER 22, 2015[,] JUDGMENT ENTRY.
ASSIGNMENT OF ERROR V
THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS
DISCRETION WHEN IT DENIED APPELLANT DABERNIG’S
EMERGENCY MOTION TO POST BOND AND DENIED HER EMERGENCY
MOTION FOR RETURN OF PROPERTY.
{¶4} Initially, we note that Ms. Dabernig’s merit brief does not contain separate
arguments for each assignment of error. Rather, Ms. Dabernig’s merit brief combines her first
five assignments of error and presents several separate arguments therein. While this Court is
authorized to disregard those assignments of error on that basis, we, nevertheless, will exercise
our discretion to consider Ms. Dabernig’s arguments. App.R. 12(A)(2) (“The court may
disregard an assignment of error presented for review if the party raising it fails to * * * argue
the assignment separately in the brief[.]”); In re C.R., 9th Dist. Summit No. 25211, 2010-Ohio-
2737, ¶ 43 (“App. R. 12(A)(2) provides that an appellate court has the discretion to disregard any
error not separately assigned and argued[.]”).
{¶5} Ms. Dabernig raises several arguments in her first five assignments of error,
including: (1) the trial court erred because the order of possession for the dogs was based upon
evidence presented at the bench trial, as opposed to evidence presented at the hearings on the
motion for an order of possession, thus violating Revised Code Section 2737.07; (2) the trial
court violated Ms. Dabernig’s constitutional rights by seizing her property without due process
of law; (3) the trial court violated Ms. Dabernig’s constitutional rights because the levying
officer did not serve her with the order of possession; (4) the order of possession was ineffective
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because Plaintiffs-Appellees never posted bond as required under Section 2737.10; (5) the order
of possession was ineffective because Ms. Dabernig was never informed that she could post
bond as set forth in Section 2737.08(B); (6) the magistrate lacked authority to order the dogs to
be immediately removed from Ms. Dabernig’s possession because such an order must first be
adopted by the trial court; and, relatedly, (7) the trial court erred by subsequently adopting the
magistrate’s decision, which the magistrate had no authority to issue.
{¶6} This Court, however, need not address the merits of Ms. Dabernig’s first five
assignments of error because she failed to raise the issues contained therein in her objections to
the magistrate’s decision.2 Civil Rule 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 * * * unless the party has objected to that finding or conclusion[.]” As this
Court has stated, “[t]he failure to raise [a] matter before the trial court deprive[s] the court of an
opportunity to correct any errors and forfeits the right to challenge those issues on appeal.” Ilg v.
Ilg, 9th Dist. Summit No. 23987, 2008-Ohio-6792, ¶ 6. Accordingly, Ms. Dabernig’s first,
second, third, fourth, and fifth assignments of error are overruled.
ASSIGNMENT OF ERROR VI
THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS
DISCRETION WHEN IT ENTERED AN INCOMPLETE JUDGMENT,
OCTOBER 22, 2015[,] JUDGMENT ENTRY, WHICH FAILED TO DISPOSE
OF ALL THE CLAIMS OF ALL THE PARTIES.
{¶7} In her sixth assignment of error, Ms. Dabernig argues that the trial court abused
its discretion by entering an incomplete judgment that failed to dispose of Crystal Miller’s
claims. The argument in support of Ms. Dabernig’s assignment of error, however, is three
2
While Ms. Dabernig did raise a due process argument in her objections to the
magistrate’s decision, she has raised a different due process argument on appeal.
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sentences long and does not contain a single citation to any authority or statute. See App.R.
16(A)(7) (requiring an appellant’s brief to include “[a]n argument containing the contentions of
the appellant with respect to each assignment of error presented for review and the reasons in
support of the contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.”). As this Court has stated, “[i]t is not the function of this court to
construct a foundation for a party’s claims; failure to comply with the rules governing practice in
the appellate courts is a tactic which is ordinarily fatal.” Kremer v. Cox, 114 Ohio App. 3d 41, 60
(9th Dist.1996). Because Ms. Dabernig has failed to develop an argument in support of her
assignment or error, we decline to address it. Wrinch v. Miller, 183 Ohio App. 3d 445, 2009-
Ohio-3862, ¶ 45 (declining to address an undeveloped argument that lacked citations to any legal
authority). Ms. Dabernig’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS
DISCRETION WHEN IT FAILED TO COMPLY WITH O.R.C. 2705.05 AND
HOLD A CONTEMPT HEARING.
{¶8} In her final assignment of error, Ms. Dabernig argues that the trial court abused its
discretion by denying her motion to show cause without holding a contempt hearing. In her
motion, Ms. Dabernig argued that Pulled from the Pits and Ms. Miller violated the court’s order
(which instructed them to maintain ownership of the dogs until further court order) because they
had relinquished ownership of some of the dogs.
{¶9} Section 2705.03 governs contempt hearings and provides that the accused must be
given the opportunity to be heard. Similarly, Section 2705.05(A) provides that “[a]t the hearing,
the court shall investigate the charge and hear any answer or testimony that the accused makes or
offers and shall determine whether the accused is guilty of the contempt charge.” (Emphasis
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added.) While Section 2705.05(A) further states that the court shall conduct a hearing in all
contempt proceedings, this Court has interpreted Chapter 2705 to afford the accused, not the
accuser, the opportunity to be heard. State v. Bozsik, 9th Dist. Medina No. 03CA0141-M, 2004-
Ohio-4947, ¶ 9 (“By express statutory provision and fundamental due process protection, an
accused must be afforded a hearing under such circumstances.”) (Emphasis original.); see also
Ohio Patrolmen’s Benevolent Assn. v. Cuyahoga Cty. Sheriff, 8th Dist. Cuyahoga No. 79391,
2001 WL 1612109, *4 (Dec. 13, 2001) (addressing Section 2705.05 and stating that “the statute
contemplates that the trial court hear testimony from the defendant.”).
{¶10} Here, the accuser (Ms. Dabernig), not the accused (Plaintiffs-Appellees), is
arguing that the trial court erred by not conducting a hearing. Ms. Dabernig, however, has cited
no authority for the proposition that the accuser must be afforded the opportunity to be heard.
This Court has rejected a similar argument, noting that “Appellant points to no authority, and we
find none, that provides the accuser with a due process right to be heard on his contempt charges
and accusations.” Bozsik at ¶ 10. Accordingly, Ms. Dabernig’s seventh assignment of error is
overruled.
III.
{¶11} Defendant-Appellant Jami Dabernig’s assignments of error are overruled. The
judgment of the Wayne County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, 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.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
CARR, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
MICHELA HUTH, Attorney at Law, for Appellant.
DANAMARIE K. PANNELLA, Attorney at Law, for Appellee.