[Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
LEWIS HAYBERG : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Petitioner-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2013 AP 02 0011
JOHN TAMBURELLO :
:
Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County
Court of Common Pleas, Case No. 2011
PO 12 1242
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 1, 2013
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
CRAIG G. PELINI JOHN A. TAMBURELLO
8040 Cleveland Avenue N.W, Ste. 400 6842 Paula Drive
North Canton, OH 44720 Middleburg Heights, OH 44130
[Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]
Gwin, P.J.
{¶1} Appellant appeals the January 28, 2013 judgment entry of the Tuscarawas
County Common Pleas Court denying his emergency motion for relief to terminate
protection immediately.
Facts & Procedural History
{¶2} Appellant John Tamburello resides in Cuyahoga County. In May of 2011,
appellant’s house was damaged when a tree fell through his home during a storm.
Appellant hired appellee Lewis Hayberg’s company to repair and/or restore parts of his
damaged home. Appellant and appellee subsequently had a dispute regarding the
repair and restoration of the home and whether the work was appropriately completed.
Appellant and appellee are currently still involved in civil litigation in Cuyahoga County
Common Pleas Court.
{¶3} Appellee filed a petition for civil stalking protection order on December 6,
2011 against appellant alleging appellant threatened him and his family. An ex parte
hearing was held before a magistrate on December 7, 2011 and the ex parte protection
order was granted on December 7, 2011. A full hearing was set for December 16,
2011. On December 14, 2011, appellant filed a motion to dismiss protection order. A
full hearing was held before the magistrate on December 16, 2011. Appellant did not
appear for the hearing. The magistrate granted the protection order against appellant
for five (5) years. The trial court approved and adopted the magistrate’s decision.
{¶4} Appellee filed a motion for order to show cause against appellant on
January 11, 2012 and appellant filed a motion to terminate and dismiss protection order
on January 27, 2012 and a renewed motion to dismiss on January 30, 2012. A hearing
Tuscarawas County, Case No. 2013 AP 02 0011 3
was held before the magistrate on February 27, 2012. The magistrate issued a decision
on March 2, 2012, denying appellant’s motion to terminate protection order and finding
appellant in contempt based upon a series of threatening emails sent by appellant to
appellee. Appellant filed objections to the magistrate’s decision on March 13, 2012. On
March 28, 2012, the trial court issued a decision adopting the magistrate’s decision,
denying appellant’s motion to terminate protection order, and granting appellee’s motion
for civil contempt.
{¶5} Appellant filed a motion for relief and motion to show cause, requesting
that the civil protection order be immediately terminated, as he believed it would
negatively impact his insurance licenses. The magistrate held a hearing on the motion
on July 23, 2012. Appellant testified he had to have the protection order terminated
immediately to continue his career and if he could not continue his career, he could not
afford the health insurance that was keeping him alive. Appellant also argued he was
physically incapable of harming appellee. On August 8, 2012, the magistrate issued a
decision on appellant’s motion for relief and motion to show cause. The magistrate
denied appellant’s motion to terminate the protection order and denied contempt against
appellee and his attorneys. Appellant filed objections and supplemental objections to
the magistrate’s August 8th decision. The trial court held an oral hearing on September
24, 2012. Appellant detailed to the trial court his health issues and argued the civil
protection order caused him to lose his job because he could not obtain his insurance
licenses. Appellant stated he could not pay for health insurance for medically
necessary procedures and treatment with the existence of the protection order.
Tuscarawas County, Case No. 2013 AP 02 0011 4
Appellant admitted anger got the better of him when he was dealing with appellee, but
that he was in no physical position to actually harm appellee.
{¶6} On September 28, 2012, the trial court issued a judgment entry overruling
appellant’s initial and supplemental objections to the magistrate’s decision and adopted
the magistrate’s decision. On October 15, 2012, appellant filed a notice of appeal with
this Court, appealing the September 28th judgment entry overruling appellant’s initial
and supplemental objections to the magistrate’s decision. That appeal was dismissed
on December 26, 2012 for want of prosecution because appellant failed to file an
appellant’s brief. Appellant filed a motion to reverse the previous decision and
terminate the protection order on October 25, 2012. The trial court denied the motion
on November 2, 2012.
{¶7} On January 18, 2013, appellant filed an emergency motion for relief to
terminate protection immediately. Appellant requested immediate termination of the
protection order because the protection order caused a loss of income and caused his
inability to pay for health insurance. On January 28, 2013, the trial court denied
appellant’s emergency motion for relief to terminate protection immediately, citing to the
previous decisions for its reasons in denying the motion. Appellant filed an appeal of
this decision on February 26, 2013.
{¶8} Appellant does not specifically enumerate his assignments of error.
However, after reviewing appellant’s brief and contentions, we have interpreted his
assignments of error as follows:
{¶9} “I. THE TRIAL COURT DOES NOT HAVE JURISDICTION.
Tuscarawas County, Case No. 2013 AP 02 0011 5
{¶10} “II. THE MAGISTRATE AND TRIAL JUDGE ARE BIASED AGAINST
APPELLANT BECAUSE HE IS NOT A RESIDENT OF TUSCARAWAS COUNTY.
{¶11} “III. THE CONTINUATION OF THE CIVIL PROTECTION ORDER IS
UNDULY BURDENSOME AND EXCESSIVE IN THAT IT SEVERELY AFFECTS
APPELLANT’S CAREER AND ABILITY TO PAY HEALTH INSURANCE.
{¶12} “IV. THE CIVIL PROTECTION ORDER IS CRUEL AND UNUSUAL
PUNISHMENT.
{¶13} “V. THE TRIAL COURT VIOLATED THE AMERICANS WITH DISABILIES
ACT BECAUSE APPELLANT HAS COPD, PTSD, HEART PROBLEMS, AND
CANCER.”
{¶14} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be sufficient compliance
with App. R. 12(A) for the statement of the reason for the court's decision
as to each error to be in brief and conclusionary form. The decision may
be by judgment entry in which case it will not be published in any form.”
{¶15} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist. 1983).
Tuscarawas County, Case No. 2013 AP 02 0011 6
{¶16} This appeal shall be considered in accordance with the aforementioned
rules.
Pro Se Appellants
{¶17} We understand appellant has filed this appeal pro se. However, “like
members of the bar, pro se litigants are required to comply with the rules of practice and
procedure.” Hardy v. Belmont Correctional Inst., 10th Dist No. 06AP-116, 2006-Ohio-
3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶ 11.
We also understand that “an appellate court will ordinarily indulge a pro se litigant where
there is some semblance of compliance with the appellate rules.” State v. Richard, 8th
Dist. No. 86154, 2005-Ohio-6494, ¶ 4 (internal quotations omitted).
{¶18} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528
(2001), the Ohio Supreme Court noted, “a reviewing court cannot add matter to the
record before it that was not part of the trial court’s proceedings, and then decide the
appeal on the basis of the new matter.” See State v. Ishmail, 54 Ohio St.2d 402, 377
N.E.2d 500 (1978). Further, the “record cannot be enlarged by factual assertions in the
brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227 (1963). New material and factual assertions contained in any brief in this court may
not be considered. See North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, quoting Dzina v. Celebreeze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶ 16. Therefore, we have disregarded facts and documents in appellant’s
brief that are outside of the record.
Tuscarawas County, Case No. 2013 AP 02 0011 7
{¶19} In the interests of justice, we shall attempt to consider appellant’s
assignments of error.
I.
{¶20} Appellant first argues the trial court has no jurisdiction in this case
because appellant is a resident of Cuyahoga County and the alleged actions took place
in Cuyahoga County. R.C. 2903.214 deals with civil stalking protection orders. R.C.
2903.14(B) provides, “[t]he court has jurisdiction over all proceedings under this
section.” “Court” as used in R.C. 2903.214(B) is defined as, “the court of common pleas
of the county in which the person to be protected by the protection order resides.” R.C.
2903.214(A)(1). The statute thus confers jurisdiction over requests for protection orders
to the court of common pleas of the county in which the person to be protected resides.
Appellee, the person to be protected, resides in Tuscarawas County and thus
Tuscarawas County Common Pleas Court has jurisdiction over appellee’s petition for
civil protection order. Appellant fails to present any legal authority that the trial court
issuing the protection order does not have jurisdiction to hear a motion to terminate the
protection order. Accordingly, appellant’s first assignment of error is overruled.
II.
{¶21} Appellant next argues both the magistrate and trial judge are biased
against him because he is not a resident of Tuscarawas County.
{¶22} We first note that the magistrate did not rule on appellant’s January 18th
emergency motion to dismiss the protection order in the January 28th judgment entry.
The trial judge himself issued the judgment entry. Therefore, there is no bias by the
magistrate with regard to the judgment entry at issue in this case.
Tuscarawas County, Case No. 2013 AP 02 0011 8
{¶23} It is well-established that, pursuant to R.C. 2701.03, the Chief Justice of
the Supreme Court of Ohio has exclusive jurisdiction to determine a claim that a
common pleas judge is biased or prejudiced. See Jones v. Billingham, 105 Ohio
App.3d 8, 11, 663 N.E.2d 657 (2d Dist. 1995). If a common pleas litigant wishes to
raise a challenge to a trial judge’s objectivity, he or she must utilize the procedure set
forth in R.C. 2701.03. See In re Baby Boy Eddy, 5th Dist. No. 99CA22, 2000 WL 1410
(1999). In this case, there is no indication that appellant followed the necessary
procedures to bring a bias claim before the Chief Justice.
{¶24} Appellant’s second assignment of error is therefore overruled.
III.
{¶25} A trial court may modify or vacate a civil stalking protection order if the
movant shows that the original circumstances have materially changed and it is no
longer equitable for the order to continue. Prostejovsky v. Prostejovsky, 5th Dist. No.
06-COA-033, 2007-Ohio-5743 (Oct. 25, 2007). We review a ruling on a motion to
terminate a civil protection order for an abuse of discretion. Jones v. Rose, 4th Dist No.
09CA7, 2009-Ohio-4347. To find an abuse of discretion, this court must determine that
the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely
an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶26} We find the trial court did not abuse its discretion in denying appellant’s
emergency motion for relief to terminate protection immediately. While the trial court
was sympathetic towards appellant and the circumstances regarding his health and
employment situation, the trial court did not find a material change in circumstances
Tuscarawas County, Case No. 2013 AP 02 0011 9
warranting termination of the protection order. The protective order in this case was
issued because the trial court found appellant made threats toward appellee and his
family. After the protection order was issued, the trial court found appellant in contempt
based upon a series of threatening emails sent by appellant to appellee and appellant’s
continued contact with appellee. Based on our review of the record, we do not find the
trial court abused its discretion in finding appellant did not demonstrate a material
change in circumstances and in not terminating the civil protection order. Appellant’s
third assignment of error is overruled.
IV. & V.
{¶27} Appellant asserts in his brief that the civil protection order is cruel and
unusual punishment and that the trial court’s actions violated the Americans with
Disabilities Act because appellant has COPD, PTSD, heart problems, and cancer.
{¶28} “If an argument exists that can support [an] assignment of error, it is not
the court’s duty to root it out.” Thomas v. Harmon, 4th Dist. No. 08CA17, 2009-Ohio-
3299, ¶ 14, quoting State v. Carman, 8th Dist. No. 90512, 2008-Ohio-4368, ¶ 31. “It is
not the function of this court to construct a foundation for [an appellant’s] claims; failure
to comply with the rules governing practice in the appellate courts is a tactic which is
ordinarily fatal.” Catanzarite v. Bowell, 9th Dist. No. 24184, 2009-Ohio-1211, ¶ 16,
quoting Kramer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). We
may thus disregard an assignment of error that “fails to present any citations to case law
or statutes in support of its assertions.” Frye v. Holzer Clinic, Inc, 4th Dist. No. 07CA4,
2008-Ohio-2194, ¶ 12. See also, App.R. 16(A) and App. R. 12(A)(2). In this case,
appellant has failed to provide any explanation concerning the legal reasons or
Tuscarawas County, Case No. 2013 AP 02 0011 10
evidence in support of his argument that the civil protection order is cruel and unusual
punishment and that the trial court violated the Americans with Disabilities Act.
Accordingly, appellant’s fourth and fifth assignments of error are overruled.
{¶29} Based on the foregoing, the judgment entry of the Tuscarawas County
Common Pleas Court is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0723
[Cite as Hayberg v. Tamburello, 2013-Ohio-3451.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LEWIS HAYBERG :
:
Petitioner-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOHN TAMBURELLO :
:
:
Respondent-Appellant : CASE NO. 2013 AP 02 0011
For the reasons stated in our accompanying Memorandum-Opinion, the judgment
entry of the Tuscarawas County Common Pleas Court is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
Hayberg v. Tamburello
Combined Opinion