Niepsuj v. Stoner

[Cite as Niepsuj v. Stoner, 2015-Ohio-4564.]
IN THE COURT OF APPEALS
NINTH APPELLATE DISTRICT
SUMMIT COUNTY, OHIO
VINCENT M. NIEPSUJ, : OPINION
Plaintiff-Appellant, :
CASE NO. 27734
- vs - :
TRACY STONER, et al., :
Defendants-Appellees. :
Civil Appeal from the Summit County Court of Common Pleas.
Case No. CV 2014 10 4759.
Judgment: Affirmed.
Vincent M. Niepsuj, pro se, 400 West Ave., Suite A 1, Buffalo, NY 14224 (Plaintiff-
Appellant).
Sherri Bevan Walsh, Prosecuting Attorney, and Heaven Dimartino, Assistant
Prosecuting Attorney, Summit County Safety Building, 53 University Ave., 6th Floor,
Akron, OH 44308 (For Defendant-Appellee Tracy Stoner).
Brian M. Spiess, Montgomery, Rennie & Johnson, 36 East Seventh Street, Suite 2100,
Cincinnati, OH 45202; Kimberly Riley, Montgomery, Rennie & Johnson, 14701 Detroit
Avenue, Suite 555, Cleveland, OH 44107 (For Defendants-Appellees John P. Quinn
and Carol J. Dezso).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Vincent M. Niepsuj, appeals the judgment of the Summit
County Court of Common Pleas, which granted the motions to dismiss his amended
complaint filed by appellees, Magistrate Tracy Stoner, Judge John Quinn, and Judge
Carol Dezso. For the following reasons, we affirm the decision of the court below.
{¶2} On October 20, 2014, appellant filed a complaint against Magistrate
Stoner. On November 21, 2014, appellant filed an amended complaint, adding Judge
Quinn and Judge Dezso as defendants. The amended complaint alleged violations of
42 U.S.C. §1983, R.C. 2305.09(D), and R.C. 2305.10, stating appellees “are individually
responsible for compensatory and punitive reparations under the above captioned * * *
laws within a companion underlying context of legal fraud and intentional
misrepresentation.”
{¶3} Appellees filed motions to dismiss appellant’s amended complaint:
Magistrate Stoner filed individually, and Judge Quinn and Judge Dezso filed jointly. On
February 23, 2015, the trial court issued a judgment entry granting the motions to
dismiss, stating: “(1) plaintiff fails to sufficiently plead a claim against the [defendants,]
(2) plaintiff’s claims against the judges may not be raised in a collateral action seeking
to alter domestic court proceedings, and (3) the [defendants] are absolutely immune
from plaintiff’s claims for damages.”
{¶4} Appellant filed a timely notice of appeal from this entry and raises four
assignments of error:
[1.] The Trial Court erred in granting dismissal and abused its
discretion by not considering—in fact ignoring—that Magistrate
Stoner was not a bona fide magistrate at the time of the April 13,
2011 CPO ‘full evidentiary hearing’ in the Domestic Relations
Court, as she was not sworn in per ORC 3.21 and ORC 3.22.
[2.] The Trial Court erred in granting dismissal and abused its
discretion by not entertaining a jurisdictional consideration of
whether any Court officer has any qualifications or authority to
diagnose what is essentially a mental illness (trauma) particularly
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without observing the persons deemed to be so afflicted, and
particularly in what seems to be quasi-criminal Civil Protection
Order Proceeding enveloping the high burden of PROOF criminal
statute RC 2903.211.
[3.] The Trial Court erred in granting dismissal and abused its
discretion in not considering the Claim against Appellee Stoner in
terms of any theory of Fraud or Negligent Misrepresentation.
[4.] The Trial Court erred in granting dismissal and abused its
discretion in supporting the Appellees’/Defendants’ contention that
Appellant’s cure lay in the appeal process, alone, particularly when
the Appellate Court ruled in CA 26015 (on December 4, 2012) that
Appellee Dezso didn’t have jurisdiction to rule (October 19, 2012)
on Appellant’s (June 10, 13 2011) Motion to Vacate in Summit
County case DR 2011-04-0968.
{¶5} An appellant carries the burden of affirmatively demonstrating error on
appeal. Snype v. Cost, 11th Dist. Portage No. 2012-P-0001, 2012-Ohio-3892, ¶6, citing
State ex rel. Fulton v. Halliday, 142 Ohio St. 548, 549 (1944) and App.R. 9. An
appellant’s brief must 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.” App.R. 16(A)(7).
{¶6} Pursuant to App.R. 12(A)(2), “[t]he court may disregard an assignment of
error presented for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment separately in the
brief, as required under App.R. 16(A).” See also Harris v. Nome, 9th Dist. Summit No.
21071, 2002-Ohio-6994; Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-
Ohio-1831. “It is not the obligation of an appellate court to search for authority to
support an appellant’s argument as to an alleged error.” Harris, supra, ¶15, citing
Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.1996). If there is an argument that
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can support an appellant’s assignments of error, “‘it is not this court’s duty to root it out.’”
Id., quoting Cardone v. Cardone, 9th Dist. Summit Nos. 18349 & 18673, 1998 Ohio
App. LEXIS 2028 (May 6, 1998).
{¶7} In his brief on appeal, appellant’s assignments of error are largely
indecipherable, and he has not cited to any portion of the record at hand to support his
assigned errors. Further, appellant does not rely on any relevant legal authority; rather,
he supports his disjointed arguments with emotionally charged annotations of trial court
proceedings held not only in this action, but in many others within the last fifteen years,
and with exhibits that were not before the trial court. We are therefore permitted, under
App.R. 12(A)(2), to disregard appellant’s assignments of error.
{¶8} At oral argument, appellant acknowledged that he really has no claim
against Judge Quinn and Judge Dezso. Therefore, his continued pursuit of litigation
against them does not appear to be in good faith. Appellant indicated his primary
complaint is against Magistrate Stoner due to some alleged defect in the administration
of her oath.
{¶9} When a trial court is presented with a Civ.R. 12(B)(6) motion to dismiss,
“[t]he factual allegations of the complaint and items properly incorporated therein must
be accepted as true.” Vail v. Plain Dealer Publishing Co., 72 Ohio St.3d 279, 280
(1995) (citations omitted). We review a trial court’s ruling on a Civ.R. 12(B)(6) motion
de novo. Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶5.
Therefore, our scrutiny is limited to the “four corners” of appellant’s amended complaint
and any items properly incorporated therein.
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{¶10} Initially, we note that appellant filed multiple exhibits with this court, stating
“the following exhibits were brought to the attention of the [Domestic Relations] Court.”
Not only are these exhibits irrelevant to the proceedings at hand, they were also not
incorporated into appellant’s amended complaint. We are therefore not permitted to
consider these exhibits.
{¶11} Further, appellant does not argue or otherwise establish how a defect in
the administration of Magistrate Stoner’s oath would establish a cause of action in his
favor. In fact, the law appellant does cite actually supports the magistrate. R.C. 3.22
states, in pertinent part: “Each person chosen or appointed to an office under the
constitution or laws of this state, and each deputy or clerk of such officer, shall take an
oath of office before entering upon the discharge of his duties. The failure to take such
oath shall not affect his liability * * *.” Therefore, accepting as true appellant’s allegation
that there was a defect in the administration of the oath, Magistrate Stoner does not
lose immunity and is not liable to appellant for any such failure. In addition, appellant
does not allege any defect with Magistrate Stoner’s appointment under Civ.R. 53(A). As
a result, there is no set of facts consistent with appellant’s amended complaint that
would allow him to recover. See Huffman v. Willoughby, 11th Dist. Lake No. 2007-L-
040, 2007-Ohio-7120, ¶18.
{¶12} Pursuant to App.R. 12(A)(2) and the opinion of this court, appellant’s
assignments of error are overruled. The judgment of the Summit County Court of
Common Pleas is affirmed.
{¶13} We order that a special mandate issue out of this Court, directing the
Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into
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execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
App.R. 27.
{¶14} Immediately upon the filing hereof, this document shall constitute the
journal entry of judgment, and it shall be 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.
{¶15} Costs taxed to appellant.
_____________________________________
PRESIDING JUDGE TIMOTHY P. CANNON
Eleventh Appellate District,
Sitting by Assignment.
CYNTHIA WESTCOTT RICE, J.,
Eleventh Appellate District,
Sitting by Assignment,
THOMAS R. WRIGHT, J.,
Eleventh Appellate District,
Sitting by Assignment,
concur.
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