Wisehart v. Wisehart

[Cite as Wisehart v. Wisehart, 2019-Ohio-3833.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
ARTHUR DODSON WISEHART, CO- :
TRUSTEE OF DOROTHY R. WISEHART
TRUST, : CASE NO. CA2018-12-019
Appellee, : OPINION
9/23/2019
:
- vs -
:
ARTHUR MCKEE WISEHART, CO- :
TRUSTEE OF DOROTHY R. WISEHART
TRUST,
Appellant.
CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 15CV30565
Murr Compton Claypoole & Macbeth, Jane E. Beach, 401 East Stroop Road, Kettering, Ohio
45429, for appellee
Schneider Smeltz Spieth Bell, LLP, Scott J. Robinson, 1375 East Ninth Street, Suite 900,
Cleveland, Ohio 44114, for appellee
Arthur McKee Wisehart, 229 Court Street, Hoboken, New Jersey, 07030, pro se
PIPER, J.
{¶ 1} Appellant, Arthur Wisehart, appeals a decision of the Preble County Court of
Common Pleas finding him in contempt.
Preble CA2018-12-019
{¶ 2} Wisehart and his son, appellee, Arthur Wishart Jr. ("Son"), are co-trustees of
the Dorothy Wisehart Trust. When Wisehart attempted to convey property allegedly owned
in part by the trust, Son filed a suit to block any such conveyance. The trial court issued
orders to maintain the status quo, prohibit the conveyance of land, and preserve income
derived from renting the property in question until the matter could be decided.
{¶ 3} Despite the trial court's orders, Wisehart again arranged to convey the disputed
property. In response to the attempted conveyance, Son filed a motion for contempt. The
trial court found Wisehart in contempt for disobeying its orders to maintain the status quo,
retain title to the land, and preserve the rental income. The trial court ordered Wisehart to
replace the income and invalidated Wisehart's attempt to convey the property to a new
owner.
{¶ 4} The trial court further advised the parties that the underlying merits of the
litigation, including which party owned the property, was left undecided by its finding of
contempt. Within its entry journalizing the finding of contempt, the trial court directed the
parties to move forward to the summary judgment stage of litigation.
{¶ 5} Wisehart appealed the trial court's judgment, raising three assignments of error
for our review. However, within Wisehart's three assignments of error, he does not challenge
the trial court's order of contempt, and instead, argues that Son's cause of action should be
dismissed. Wisehart also argues the merits of the property dispute rather than arguing that
the trial court erred in finding he disobeyed a court order.
{¶ 6} While the trial court's finding of contempt was a final appealable order under
the circumstances, Wisehart fails to argue the merits of the court's contempt finding – the
only judgment entry from which Wisehart filed his appeal. Ohio law is well-settled that an
appellant must provide legal arguments and citations to both legal authority and the record
sub judice to substantiate an alleged error on appeal. Streaker v. Streaker, 12th Dist.
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Preble CA2018-12-019
Madison No. CA2018-05-013, 2019-Ohio-832.
{¶ 7} An appellate court will neither construct assignments of error nor create
arguments on behalf of an appellant because it is not the duty of an Ohio appellate court to
raise arguments for the parties. In re G.E.S., 9th Dist. Summit No. 23963, 2008-Ohio-2671,
¶ 53. Moreover, "if an argument exists that can support [an] assignment of error, it is not this
court's duty to root it out." In re Constable, 12th Dist. Clermont Nos. CA2006-08-058 and
CA2006-09-067, 2007-Ohio-3346, ¶ 12. As this court has stated on multiple occasions, "an
appellate court is not a performing bear, required to dance to each and every tune played on
an appeal." State v. Wilson, 12th Dist. Warren No. CA2018-03-022, 2019-Ohio-338, ¶ 27.
{¶ 8} Wisehart has failed to present any legal arguments within his assignments of
error specific to the trial court's ruling from which he is appealing. It is impossible for this to
court to address the merits of the property dispute and other arguments raised in Wisehart's
brief when those issues are still pending before the trial court and have yet to be ruled upon.
The final order appealed, the trial court's finding of contempt, was not challenged within
Wisehart's assignments of error, leaving nothing for this court to review. We therefore affirm
the trial court's finding of contempt and overrule Wisehart's assignments of error.
{¶ 9} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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