Fuss v. Gray

[Cite as Fuss v. Gray, 2021-Ohio-3620.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

ERICH FUSS, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Respondent - Appellant : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
TODD AND KRISTI GRAY, : Case No. 2021CA00020
:
Petitioners - Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2021
MI 000009

JUDGMENT: Dismissed

DATE OF JUDGMENT: October 7, 2021

APPEARANCES:

For Respondent-Appellant For Petitioners-Appellees

JACOB T. WILL NICHOLAS J. KOPCHO
JOHN P. STILES 600 Superior Avenue East, Suite 1600
121 South Main Street, Suite 250 Cleveland, Ohio 44114
Akron, Ohio 44308
Stark County, Case No. 2021CA000020 2

Baldwin, P.J.

{¶1} Appellant, Erich Fuss, appeals the decision of the Stark County Court of

Common Pleas granting appellees', Todd and Kristi Gray, request for a stalking civil

protection order under R.C. 2903.214.

STATEMENT OF FACTS AND THE CASE

{¶2} Appellee, Todd Gray, filed a petition for a stalking civil protection order, with

his wife Kristi Gray included as a protected party, seeking an order preventing appellant,

Erich Fuss, from contacting them. (Petition, January 14, 2021). The Grays alleged that:

Kristi Gray and Erich Fuss were in a brief relationship, and unhappy

with the relationship ending Mr. Fuss would appear at Kristi Gray's

workplace unannounced and uninvited to talk to her, as well as continually

send Todd and Kristi text and Facebook messages intended to inflict mental

distress on both of them. The Grays have repeatedly asked Mr. Fuss to stop

contacting them, and even filed a report with the Stark County Sheriffs

Office, but Mr. Fuss refuses to stop messaging them. Some of the

messages also indicate Mr. Fuss may be watching the Gray's house

because messages would contain specific details about their home. The

intent of Mr. Fuss's messages is to cause Todd and Kristi Gray mental

distress, and he has succeeded.

The Grays are also worried about Mr. Fuss's violent temper.

Id. at p. 2.

{¶3} The magistrate issued an ex parte order upon receiving the petition and

notified the parties that a full hearing would occur on January 26, 2021. The Stark County
Stark County, Case No. 2021CA000020 3

Sheriff's Office personally served Fuss with the ex parte order on January 15, 2021 and,

on January 21, 2021, the Grays moved to have Fuss held in contempt for violating that

order.

{¶4} The matter came before Magistrate Flowers on January 26, 2021 for a full

hearing on the petition for a stalking civil protection order as well as a hearing on the

motion requesting Fuss be held in contempt. The Grays appeared with counsel and Fuss

proceeded pro se.

{¶5} The Grays testified that they asked Fuss to stop all contact with them at the

end of November 2020, but, despite their request, Fuss continued sending messages.

The messages were described as personal, vile and disturbing by both Grays. Kristi Gray

claimed that the emotional toll was so great that she was admitted to a facility for

treatment for depression and anxiety. The Grays felt that Fuss was determined to ruin

their marriage and that without an order from the court, he would continue to contact them

despite their demand that he stop.

{¶6} Fuss testified that he had engaged in an intermittent relationship with Kristi

Gray for years and that the petition and her emotional state were part of the normal course

of their relationship. He reviewed many of the messages offered by the Grays and denied

that he sent them.

{¶7} Fuss did admit to sending several responses to a message that he received

and further admitted that he believed that message had come from Mr. Gray. Fuss

received a message on December 26 that said "I won bitch" and Fuss believed it was

from Mr. Gray. He sent several derogatory messages to this number, hoping to elicit a
Stark County, Case No. 2021CA000020 4

response from the sender to confirm his identity, though Fuss's ultimate purpose was not

made clear during the hearing.

{¶8} Fuss attempted to introduce additional evidence regarding the history of his

relationship with Kristi Gray prior to the end of November when Kristi told him the

relationship was over. The magistrate allowed Fuss latitude to introduce some of the

background information, but did not permit Fuss to introduce all of the evidence he sought

to admit. The magistrate concluded that evidence was not relevant to the matter before

the court, which she concluded was limited to the Grays’ desire to cease all contact with

Fuss and Fuss's refusal to comply with their demand.

{¶9} At the conclusion of the case the magistrate ruled from the bench, granting

the petition for a five year term.

{¶10} Fuss filed a notice of appeal and submitted two assignments of error:

{¶11} “I. THE COURT'S ORDER OF PROTECTION AND RELATED FINDINGS

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶12} “II. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO

DUE PROCESS OF LAW WHERE THE TRIAL COURT DID NOT PROVIDE THE

APPELLANT WITH A FAIR AND FULL OPPORTUNITY TO RESPOND TO THE

APPELLEE’S CLAIMS IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE,

SECTION SIXTEEN OF THE OHIO CONSTITUTION.”

{¶13} We also note that Fuss was held in contempt of court for a violation of the

January 26, 2021 order when he contacted Kristi Gray by phone at her place of

employment. The parties executed an agreed judgment entry finding Fuss in contempt
Stark County, Case No. 2021CA000020 5

for which he was sentenced to thirty days in jail. The sentence was suspended contingent

upon no further violations.

ANALYSIS

{¶14} Before considering the merits, we must first address the Grays’ contention

that "Mr. Fuss's appeal must be dismissed, or the trial court's ruling must be upheld, due

to his failure to file objections to Magistrate Flowers' decision in violation of Civ. R. 53."

(Appellee’s Brief, p.8). Fuss responded that this Rule does not apply because his

counsel did not enter an appearance in the case until after the court approved the

magistrate's decision and after the fourteen-day deadline for filing objections. He further

contends that he did not receive the required notice regarding the requirement of

objections pursuant to Civ.R. 53(0)(3)(a)(iii) and that “The trial court had already reviewed

the decision of the magistrate when the civil protection order was adopted on January 29,

2021. Any further objection would have been superfluous.” (Appellant’s Reply Brief, p. 2).

{¶15} Fuss's contention that the Civil Rules should not apply if he was not

represented by counsel is unsupportable. The Supreme Court of Ohio has "repeatedly

declared that “pro se litigants * * * must follow the same procedures as litigants

represented by counsel.’” State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-

4150, 914 N.E.2d 376, ¶ 5. “It is well established that pro se litigants are presumed to

have knowledge of the law and legal procedures and that they are held to the same

standard as litigants who are represented by counsel.’” State ex rel. Fuller v. Mengel, 100

Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of

Job & Family Serv., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238. State ex rel. Neil v.
Stark County, Case No. 2021CA000020 6

French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764. Fuss's failure to follow

the Civil Rules cannot be excused for lack of counsel or knowledge of the law.

{¶16} Fuss and Gray rely on the language in Civ.R. 53 to support their argument,

but both have cited the incorrect Rule. Civil Rule 53 does not control the procedure for

stalking civil protection orders. Instead, we must look to Civ.R. 65.1:

The provisions of this rule apply to special statutory proceedings

under R.C. 3113.31, R.C. 2151.34, and R.C. 2903.214 providing for

domestic violence, stalking, and sexually oriented offense civil protection

orders, shall be interpreted and applied in a manner consistent with the

intent and purposes of those protection order statutes, and supersede and

make inapplicable in such proceedings the provisions of any other rules of

civil procedure to the extent that such application is inconsistent with the

provisions of this rule.

Civ. R. 65.1(A).

{¶17} The Gray's petition was authorized by R.C. 2903.214, so the terms of Civ.R.

65.1 are controlling and Civ.R. 65.1 (F)(3)(b) makes clear that Civ.R. 53 does not apply

in this context: "A magistrate's denial or granting of a protection order after full hearing

under this division does not constitute a magistrate's order or a magistrate's decision

under Civ.R. 53(D)(2) or (3) and is not subject to the requirements of those rules." Those

Rules contain the requirements that the magistrate’s decision notify the parties of

procedure to preserve an appeal and the consequence of failing to object as described

by Fuss and the Grays, but neither section is applicable to this case.
Stark County, Case No. 2021CA000020 7

{¶18} Civil Rule 65.1(F)(3)(d)(i) permits the filing of objections "to a court's

adoption, modification, or rejection of a magistrate's denial or granting of a protection

order after a full hearing, or any terms of such an order, within fourteen days of the court's

filing of the order" and, though similar to the terms of Civ.R. 53, this rule requires an

objection to the trial court's action on the magistrate's decision regarding the order, and

not an objection to the magistrate's order.

{¶19} Subsection (G) states in relevant part that "a party must timely file objections

to such an order under division (F)(3)(d) of this rule prior to filing an appeal, and the timely

filing of such objections shall stay the running of the time for appeal until the filing of the

court's ruling on the objections." We have had the opportunity to consider the application

of this Rule in M.K. v. A.C.K., 5th Dist. Fairfield No. 2019 CA 00023, 2020-Ohio-400, ¶ 18

where we held that "without timely filed objections under Civ.R. 65.1(G), [appellant] may

not challenge the trial court's decision on appeal. Accordingly, we decline to address the

merits and the appeal is dismissed pursuant to Civ.R. 65.1(G)."

{¶20} Our colleagues have held the requirements of Civ.R. 65.1(G) are mandatory

and a party's failure to file timely objections to a trial court's adoption of a magistrate's

decision granting or denying a civil protection order prior to filing an appeal is a violation

of Civ.R. 65.1(G) and as such, the appeal of the civil protection order must be dismissed.

See K.R. v. T.B., 10th Dist. Franklin No. 17AP-302, 2017-Ohio-8647, ¶ 4–6 (dismissing

appeal pursuant to Civ.R. 65.1(G)); C.F. v. T.H.R., 10th Dist. Franklin No. 18AP-536,

2019-Ohio-488 (dismissing appeal pursuant to Civ.R. 65.1(G)); J.S. v. D.E., 7th Dist.

Mahoning No. 17 MA 0032, 2017-Ohio-7507, ¶ 17–22 (dismissing appeal when written

objections not timely filed); K.U. v. M.S., 7th Dist. Mahoning No. 16 MA 0165, 2017-Ohio-
Stark County, Case No. 2021CA000020 8

8029, ¶ 17–18 (stating that without objections filed appellate court has no jurisdiction);

A.S. v. D.S., 9th Dist. Medina No. 16CA0080-M, 2017-Ohio-7782, ¶ 5-6 (dismissing

appeal without addressing merits pursuant to Civ.R. 65.1(G)); Hetrick v. Lockwood, 6th

Dist. Sandusky No. S-17-014, 2018-Ohio-118, 2018 WL 388965, ¶ 8 (dismissing appeal

when appellant failed to file timely objections to trial court's adoption of magistrate's

granting of CSPO after full hearing); Danison v. Blinco, 3rd Dist. Crawford, No. 3-18-19,

2019-Ohio-2767, ¶ 8 (failure to file objections to trial court's adoption of magistrate's

decision failed to preserve appellant's arguments for appeal); See also Frith v. Frith, 9th

Dist. Summit No. 28361, 2017–Ohio–7848, ¶ 4–6 (dismissing due to trial court not ruling

on appellant's timely filed objections prior to the appeal as required under Civ.R. 65.1(G));

Runkle v. Stewart, 2nd Dist. Miami No. 2018-CA-27, 2019-Ohio-2356, ¶ 11 (affirmed

judgment of trial court after appellant failed to file timely objections to trial court's adoption

of magistrate's decision denying DVCPO after full hearing). But see Saqr v. Naji, 1st Dist.

Hamilton No. C-160850, 2017-Ohio-8142, ¶ 14–19 (allowing appeal despite no objections

filed because no notice that objections must be filed was provided).

{¶21} We have reached the same conclusion in H.C. v. J.C., 5th Dist. Ashland

No. 19-COA-023, 2020-Ohio-1227, ¶ 11, Casto v. Lehr, 5th Dist. Tuscarawas No. 2020

AP 02 0002, 2020-Ohio-3777, ¶¶ 19-21 Toombs v. McGuire, 5th Dist. Morrow

No. 20CA0005, 2021-Ohio-387, ¶ 13 and we are constrained by our precedent to reach

the same decision in this case.
Stark County, Case No. 2021CA000020 9

{¶22} Fuss did not file timely objections under Civ.R. 65.1(G), so he may not

challenge the trial court's decision on appeal. Accordingly, we decline to address the

merits and the appeal is dismissed pursuant to Civ.R. 65.1(G).

By: Baldwin, P.J.

Gwin, J. and

Delaney, J. concur.