Tamburin v. Simpson

[Cite as Tamburin v. Simpson, 2016-Ohio-8154.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ERICA A. TAMBURIN, et al., ) CASE NO. 15 BE 0081
)
PLAINTIFFS-APPELLEES, )
)
VS. ) OPINION
)
CHAD ALLEN SIMPSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Belmont County
Court – Northern Division of Belmont
County, Ohio
Case No. 15 CVI 0283
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiffs-Appellees: Erica Tamburin, et al.
P.O. Box 126
214 Bennett Street
Bridgeport, Ohio 43912
No Brief filed
Pro se
For Defendant-Appellant: Chad Simpson
1105 Traubert Place
Follansbee, West Virginia 26037
Pro se
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: December 9, 2016
[Cite as Tamburin v. Simpson, 2016-Ohio-8154.]
ROBB, J.
{¶1} Defendant-Appellant Chad Simpson appeals the Belmont County Court,
Northern Division’s decision awarding Plaintiffs-Appellees Erica Tamburin and
Connie Tamburin $1,754.56 in damages in their small claims tort suit against him.
Appellant’s pro se appellate brief appears to assert the trial court’s decision to find
him liable for damages in that amount is against the manifest weight of the evidence.
For the reasons expressed below, the trial court’s decision is not against the weight
of the evidence and thus, it is affirmed.
Statement of the Facts and Case
{¶2} Appellant and Appellee Erica are divorced and have one child together.
On June 1, 2015, Appellant attempted to exercise visitation with the seven week old
child. The parties have a designated exchange location that is monitored by a
camera. Appellee Erica did not bring the child to the designated location because
either she did not believe it was Appellant’s visitation time, or the child was sick and
she did not want Appellant to exercise his visitation. As a result, Appellant went to
Appellees’ residence to exercise his visitation.
{¶3} According to Appellant he brought a police officer with him to the
residence in case there was an altercation. Both Appellant and Appellee Erica
testified Appellant told Appellee Erica he was not there to take the child, but rather
just wanted to see the child. Appellant admitted that statement was a lie. Appellee
Erica let Appellant into the residence.
{¶4} An altercation ensued between Appellant and Appellee Erica when
Appellant attempted to leave with the child. The officer Appellant brought with him to
the residence had to leave prior to Appellant getting in the house; the officer was
dispatched to another incident. However, the officer came back in the midst of the
altercation.
{¶5} Upon re-arriving at the residence, from outside the residence, the
officer observed a lamp “fly” off the window sill and a few seconds later the curtain
was ripped down. The officer indicated he had to kick the door in to gain entrance.
He observed the parties screaming at each other and them actively pulling the child
in opposite directions. Officer’s Incident Report.
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{¶6} The officer was concerned for the child’s welfare and ordered an
ambulance to transport the child to the hospital for examination. Appellee Erica
chose to go to the hospital with her child to have her alleged injuries examined. The
officer’s incident report indicates both parties were charged with domestic violence.
Attached to the officer’s incident report are pictures of the room, and of the alleged
injuries each party and the child sustained in the altercation.
{¶7} As a result of the medical bills and damage to the property, Appellees
filed a small claims action against Appellant in Belmont County Court, Northern
Division. 7/22/15 Complaint. They asked for $2,174.66 in damages.
{¶8} The case proceeded to trial. 9/2/15 Trial. Appellant and Appellee Erica
testified. Also, Appellee Connie, Erica’s mother who witnessed the event and lives
with Erica, testified.
{¶9} After considering the evidence, the trial court rendered judgment in
Appellees’ favor in the sum of $1,754.56 plus court costs. In rendering this judgment,
the court stated Appellees met their burden on some of their claims; the claims in
relation to Radiology Associates, Wheeling Hospital, and property claims. 11/10/15
J.E.
{¶10} Appellant filed a timely appeal from that decision.
Analysis
{¶11} Appellant’s pro se brief does not comply with the Ohio Rules of
Appellate Procedure. The brief does not set forth an assignment of error or a
statement of the issue presented for review. App.R. 16(A)(3) and (4). Likewise,
Appellant does not direct this court to any case law and/or statutes supporting his
argument. App.R. 16(A)(7). That said, it appears Appellant is arguing the trial court’s
judgment is against the manifest weight of the evidence.
{¶12} In applying the manifest weight standard to civil cases, the appellate
court must review the whole record, weigh the evidence and all reasonable
inferences, consider the witnesses' credibility, and determine whether the trier of fact
clearly lost its way and created such a miscarriage of justice that the court's order
must be reversed. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972
N.E.2d 517; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
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doing so, the appellate court must always be aware of the presumption in favor of the
finder of fact. Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984). Thus, “[t]he discretionary power to grant a
new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against” the judgment. Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶13} As aforementioned, the trial court found Appellees met their burden in
proving some of their claims. It found they proved Appellant was liable for the
property damage, and the Radiology Associates and Wheeling Hospital bills for
Erica’s medical treatment that resulted from the June 1, 2015 altercation.
{¶14} At trial, Appellees offered the Radiology Associates bill to prove the
amount owed. The bill showed a balance due of $39.00. Tr. 12- 13, 15; Radiology
Associates Bill. At trial Appellee Erica testified this bill was for an x-ray of her elbow
that was injured during the altercation. Tr. 15. She indicated the $39.00 was the
portion not covered by insurance. Tr. 15.
{¶15} Appellees also submitted the Wheeling Hospital bill at trial. Tr. 12-13.
This bill listed Erica as the patient and indicated she paid $114.64. Tr. 16; Wheeling
Hospital Bill.
{¶16} As to property damage, Appellees claimed $1,599.93 in property
damages. Appellee Erica testified items were damaged as a result of the altercation.
Tr. 9. Appellee Erica indicated Appellee Connie’s computer system was knocked
over and no longer worked properly. Tr. 9. Erica testified the lamp was broken, the
curtain rod was bent, and the curtain was torn. Tr. 9. She also testified the front door
was damaged; the lock no longer worked and the frame was damaged. Tr. 9. She
produced exhibits showing the cost of each item; $24.99 for the lamp, $29.99 for the
lamp shade, $14.50 for the curtain, $3.00 for the curtain rod, $899.99 for the
computer, and $199.00 for a new door. Tr. 9, 12-14; Exhibits. As to the cost for
installation of the new door and repairs to the door frame, Erica testified she
contacted a repairman and he gave her a verbal estimate of $428.46. Tr. 15;
Exhibits.
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{¶17} Appellee Connie also testified. Tr. 24-27. She confirmed that during
the altercation, the computer was knocked over and broken, the lamp was knocked
over and broken, the curtains were ripped off the wall, and the door was kicked in.
Tr. 24.
{¶18} The pictures attached to the officer’s incident report showed a
disheveled room. A lamp was on the floor, and the curtain rod was pulled out of the
wall. The picture of the computer is dark; it is a photocopy of a picture. The area
looks disheveled, but it is not clear that the computer was knocked over.
{¶19} When the figures for the two medical bills and the property damages
are totaled it is $1,753.57, which is approximately the amount the trial court awarded
to Appellees.
{¶20} During cross-examination, Appellant attempted to show the computer
Appellees claimed was damaged was not the same computer shown in the pictures.
Tr. 21-22. He indicated the computer listed in the exhibits was for an all-in-one
computer, but the computer pictured was a laptop. Tr. 21-22. He also questioned
Appellee Erica about whether she was aware of a claim she could have brought
against the police to repair the damage done to the front door; he referred to such
claim as a police tort claim. Tr. 22. She indicated she was not aware of such an
action. Tr. 22.
{¶21} Appellant further testified he did not cause any of the property damage.
Tr. 31. He avowed the damage was caused by Appellee Erica when she was
attempting to keep him from signaling to the police officer to come in the residence.
Tr. 32, 36. He also stated he does not remember anything breaking during the
struggle. Tr. 37.
{¶22} Considering all the above, the trier of fact did not clearly lose its way
and create such a miscarriage of justice that the court's order must be reversed.
Appellant admittedly deceived Appellee Erica to gain entrance to the residence to
exercise his visitation. As a result, an altercation ensued. Appellee Erica went to a
hospital to have her elbow checked, which she claimed was injured in the altercation.
Appellee claimed multiple items were damaged during the altercation. Appellant
claimed nothing was broken. The trial court was in the best position to determine
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credibility, and we will defer to its finding. As to the cost of medical bills and the
replacement cost of the damaged property, Appellees provided testimony and
documentation to support the request for damages. Although, Appellant disputes
those items were damaged and disputes the replacement cost of those allegedly
damaged items, we cannot find the evidence weighs heavily against the judgment.
{¶23} Appellant’s argument is meritless and the trial court’s judgment is
affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.