[Cite as J.P. v. M.H., 2020-Ohio-13.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

J.P.                                                  C.A. No.       18CA011450

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
M.H.                                                  COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   15CV187984

                                  DECISION AND JOURNAL ENTRY

Dated: January 6, 2020



        SCHAFER, Judge.

        {¶1}     Plaintiff-Appellant, J.P., appeals from the judgment of the Lorain County Court of

Common Pleas entering judgment upon a jury verdict in favor of Defendant-Appellee, M.H.

                                                 I.

        {¶2}     J.P. filed a complaint against M.H. on November 13, 2015. In the complaint, he

asserted four causes of action: invasion of privacy, defamation, abuse of process, and civil

conspiracy. Following a stay pending the appeal of other cases the trial court deemed related to

the parties and issues involved in this case, the matter proceeded through the pretrial process.

        {¶3}     A jury trial commenced on October 15, 2018. At the close of J.P.’s case, the trial

court granted M.H.’s motion for directed verdict on the claims for defamation and abuse of

process. At the conclusion of the trial, the two remaining claims were submitted to the jury.

Following deliberation, the jury returned its verdict finding in favor of M.H. on each of the

claims. On October 22, 2018, the trial court entered judgment on the verdict.
                                                 2


       {¶4}    The trial court denied J.P.’s motion for a new trial. J.P. then timely appealed the

judgment. He presents four assignments of error for our review.

                                                II.

                                     Assignment of Error I

       The trial court erred and abused discretion to the prejudice of [J.P.] in
       entering judgment upon jury verdict against [J.P.], because Judge Inderlied
       erred and abused discretion to the prejudice of [J.P.] in being assigned to the
       case and in assuming personal jurisdiction over the case in the first place and
       in later overruling [J.P.]’s objection thereto.

       {¶5}    In his first assignment of error, J.P. contends that the visiting judge assigned to

hear this matter in the trial court “lacked personal jurisdiction over the case” because his

assignment was an abuse of discretion, in that it contravened relevant rules for the assignment of

visiting judges, and deprived J.P. of federal due process.

       {¶6}    The transcript of the trial court docket contains and entry on May 5, 2017 stating:

       THE HONORABLE HERMAN FREDERICK INDERLIED, JR., A RETIRED
       JUDGE OF THE GEAUGA COUNTY COURT OF COMMON PLEAS,
       GENERAL AND DOMESTIC RELATIONS DIVISIONS, IS ASSIGNED
       EFFECTIVE 4/24/17 TO PRESIDE IN THE LORAIN COUNTY COURT OF
       COMMON PLEAS, GENERAL DIVISION, TO HEAR CASES 15CV185623,
       [J.P.] V. [T.H.]; 15CV186969, [M.H] V. [L.P.]; 15CV186968, [J.P.] V. [M.H.];
       15CV187984, [J.P.] V. [M.H.]; AND TO CONCLUDE ANY PROCEEDINGS
       IN WHICH HE PARTICIPATED. (S/C MAUREEN O'CONNOR, CHIEF
       JUSTICE)[.]

The transcript reflects that a copy of the certificate of assignment was entered upon the docket.

Although the document is missing from the record on appeal, J.P. acknowledges that certificate

17JA0943 assigned Judge Inderlied to hear the case.

       {¶7}    J.P. filed an “objection to judicial assignment” on May 26, 2017. In the filing,

J.P. objected to the assignment of Judge Inderlied, asserting that he lacked jurisdiction because

his assignment to the case was “irregular[.]” The trial court issued an order overruling J.P.’s
                                                  3


objection. In the order, Judge Inderlied stated that he was assigned to the matter pursuant to

Ohio Constitution Art. IV, Section 6(C), that he consented to the assignment, and that the Chief

Justice of the Supreme Court of Ohio issued certificate of assignment 17JA0943.

       {¶8}    In his merit brief, J.P. argues that the assignment of Judge Inderlied failed to

comport with Ohio’s “specific rules and procedures for judicial assignment and re-assignment.”

Referencing the Guidelines for the Assignment of Judges issued by the Chief Justice of the

Supreme Court of Ohio, J.P. contends that the reason for the reassignment was not stated in a

journal entry, nor was it apparent from the record of the case.           J.P. also argues that the

assignment “violated” Lorain County Court of Common Pleas Loc.R. 7 IV.

       {¶9}    J.P. argues that the record does not reflect the recusal or disqualification of “[t]he

last judge who lawfully assumed personal jurisdiction over the case[.]” Despite acknowledging

that the docket contains a certificate from the Chief Justice of the Supreme Court of Ohio

assigning Judge Inderlied to hear the case, J.P. contends that the “rules and provisions for

judicial re-assignment were clearly and egregiously violated.” According to J.P., the absence of

a journal entry listing the justifiable reasons for the assignment of Judge Inderlied, together with

the alleged failure to follow the rules to reassign a judge, give “the appearance if not the reality

of case-fixing.”

       {¶10} Loc.R. 7 IV outlines the procedure for reassigning a case as follows:

       Any cases requiring reassignment shall be referred to the Administrative Judge
       along with reason for reassignment. When merited, the Administrative Judge will
       reassign the case. The Judge receiving the reassigned case may transfer a case of
       similar import to the Judge requesting reassignment.

Local rules are of a court’s own making—not substantive principles of law—and there is

generally no error if a court exercises its discretion to deviate from its rules in a particular case.

Schmitt v. Ward, 9th Dist. Summit No. 27805, 2016-Ohio-5693, ¶ 13.
                                                 4


         {¶11} J.P. has not provided any support for his contention that the trial court was bound

to comply with Loc.R. 7 IV under these circumstances. Where, as is the case here, a “local rule

is administrative and designed to facilitate case management, the court is not bound to comply

with the rule.” GMAC Mtge., L.L.C. v. Jacobs, 9th Dist. No. 24984, 196 Ohio App.3d 167,

2011-Ohio-1780, ¶ 20. Even assuming that the trial court failed to follow its own rule in the

process of seeking the appointment of a visiting judge, J.P. has not demonstrated that a failure to

follow Loc.R. 7 IV deprived him “of a reasonable opportunity to defend against the disposition

of the case in favor of the other party[.]” Id. Therefore, we conclude that J.P. has not identified

a reversible error and his argument regarding the trial court’s alleged failure to follow Loc.R. 7

IV lacks merit.

         {¶12} To the extent that J.P. also contends that the assignment of Judge Inderlied did not

comply with the Supreme Court of Ohio’s “Guidelines for assignment of Judges,” we note that

“these guidelines are not binding on Ohio courts.” Forsyth v. Feinstein, 2d Dist. Clark No. 99-

CA-66,      2000     WL      192298,     *3;    Guidelines     for    Assignment     of     Judges,

https://www.sc.ohio.gov/JCS/judicialAssignment/judgeAssignGuide.pdf         (accessed     Oct.   21,

2019) (“While these guidelines may impose specific duties upon other persons, the Chief Justice

may waive compliance with any guidelines to assist the exercise of that discretion. These

guidelines have not been adopted as rules pursuant to Article IV, Section 5 of the Ohio

Constitution and should not be construed as requiring adoption.”). Although it may be the best

practice to adhere to these guidelines, a failure to do so is not reversible error. PNC Mtge. v.

Guenther, 2d Dist. Montgomery No. 25385, 2013-Ohio-3044, ¶ 22, fn. 3, quoting Ward v.

NationsBanc Mtge. Corp., 6th Dist. Erie No. E-05-040, 2006-Ohio-2766, ¶ 22 (stating that the
                                                  5


guidelines are not mandatory, have not been adopted as rules, and that “the failure to abide by

them cannot be construed as a fatal or reversible act of the trial court.”).

       {¶13} J.P.’s first assignment of error is overruled.

                                          Assignment of Error II

       The trial court erred and abused discretion to the prejudice of [J.P.] in
       entering judgment upon jury verdict against [J.P.], because the trial court
       erred and abused discretion to the prejudice of [J.P.] in failing/refusing to
       grant [J.P.] his motion for default judgment and/or default judgment itself
       and/or at least a default judgment hearing, including because it was
       reversible error for the trial court to 1) grant [M.H.]’s motion for extension
       and an additional 30 days or until April 7, 2016, to answer or otherwise
       respond to [J.P.]’s complaint, 2) refuse to reconsider that grant, 3) fail/refuse
       to grant [J.P.]’s motion to strike [M.H.]’s motion for extension, 4) issue a
       stay, and 5) fail to grant [J.P.]’s motion to strike [M.H]’s answer.

       {¶14} In the second assignment of error, J.P. challenges several procedural rulings

throughout the proceedings. He contends that these rulings culminated in the trial court abusing

its discretion by entering judgment in favor of M.H. and against J.P. We disagree.

       {¶15} The procedural history related to this assignment of error is summarized as

follows. J.P. asserts that a deputy sheriff personally served M.H. with summons and a copy of

the complaint on February 2, 2016, and that any motion or pleading in response to the complaint

was due no more than 28 days later, or by March 1, 2016. It is undisputed that M.H. did not file

a responsive pleading by March 1, 2016. One day later, on March 2, 2016, M.H., pro se, filed a

motion for an extension of thirty days to file a pleading or motion and certified that she sent a

copy of this motion to J.P. on March 1, 2016. On March 8, 2016, the trial court granted M.H.

leave until April 7, 2016, to answer or otherwise respond to the complaint.

       {¶16} J.P. presented the trial court with several filings on March 15, 2016. These filings

included a motion for the trial court to reconsider and vacate its entry granting M.H. an extension

of time to respond to the complaint, a motion to strike M.H.’s motion for extension on the
                                                 6


grounds that it was improper under Civ.R. 6(B), an opposition to M.H.’s motion for extension,

and a motion for default judgment. The trial court issued a journal entry on March 21, 2016,

denying J.P.’s motion to reconsider or vacate its decision to grant M.H. an extension of time to

plead.

         {¶17} On March 24, 2016, before M.H.’s extension of time to respond to the complaint

had run, the trial court issued an order sua sponte staying the proceedings in this matter pending

the resolution of two other cases—which the trial court deemed related to this case—then on

appeal. On August 29, 2016, J.P. filed a second motion for default judgment, although nothing

in the record would indicate that the stay imposed by the trial court had yet been lifted. M.H.

filed her answer to the complaint on February 21, 2017. J.P. filed a motion to strike the answer,

arguing that it was improperly filed.

         {¶18} The trial court issued an order on May 2, 2017, instructing the parties to submit

briefs regarding the status of the case. After reviewing the parties’ status report and pending

motions, the trial court issued an order summarily denying all of J.P.’s outstanding motions and

the matter proceeded to trial.

         {¶19} In his merit brief, J.P. argues the trial court erred by “failing” or “refusing” to

grant his motion for default judgment. Civ.R. 12(A)(1) requires that a party file her answer

within twenty-eight days after service of the complaint.       “When a party against whom a

judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by

the[ Ohio Rules of Civil Procedure],” Civ.R. 55(A) permits the party seeking judgment to file an

application for judgment by default. “A trial court’s decision to grant or deny a motion for

default judgment is reviewed for an abuse of discretion.” MBNA America Bank, N.A. v. Canfora,

9th Dist. Summit No. 23588, 2007-Ohio-4137, ¶ 10. An abuse of discretion means that the trial
                                                  7


court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶20} “Although Civ.R. 55(A) permits a default judgment when a defendant fails to

answer or otherwise defend an action, a trial court has the discretion to permit an answer to be

filed after the time for filing has run in the case of excusable neglect.” Kitson v. Gordon Food

Serv., 9th Dist. Medina No. 15CA0078-M, 2016-Ohio-7079, ¶ 14. Here, J.P. did not move for

default judgment until after M.H. had sought and obtained from the trial court an extension of

time to file her response to the complaint. Nonetheless, J.P. challenges that M.H.’s motion

requesting a leave to plead was improper and contends that the trial court erred by granting the

extension, refusing to reconsider its decision to grant the extension, and rejecting J.P.’s request to

strike the motion.

       {¶21} The foundation of J.P.’s argument is that the trial court should not have

considered any response by M.H. filed past the twenty-eight days prescribed by Civ.R. 12(A)(1)

without a proper motion demonstrating excusable neglect for failing to timely file a pleading or

otherwise respond to the complaint. J.P. argues that her pro se motion for an extension “could

not have been construed by the trial court as a motion for leave,” because the motion did not

include an attached proposed answer. He also argues that M.H.’s motion “did not even expressly

mention, assert, or argue excusable neglect * * *.”

       {¶22} M.H. does not dispute that she filed her motion for an extension of time to plead

one day after the time to plead had run. However, she maintains that her motion was proper

under Civ.R. 6(B). She also contends that she demonstrated excusable neglect in her request for

an extension of time.
                                                8


       {¶23} The Rules of Civil Procedure permit a party to move for an extension of the

Civ.R. 12(A)(1)(a) time period, even after the expiration of the twenty-eight days. Civ.R. 6(B)

provides that “[w]hen by these rules or by a notice given thereunder or by order of court an act is

required or allowed to be done at or within a specified time, the court for cause shown may at

any time in its discretion * * * upon motion made after the expiration of the specified period

permit the act to be done where the failure to act was the result of excusable neglect * * *[.]”

Neglect under Civ.R. 6(B)(2) involves “conduct that falls substantially below what is reasonable

under the circumstances[,]” and, in determining whether neglect is excusable, “all the

surrounding facts and circumstances must be taken into consideration.” Davis v. Immediate

Med. Services, Inc., 80 Ohio St.3d 10, 14 (1997). This Court also “reviews a trial court’s grant

of an extension of time to plead under an abuse of discretion standard.” Watkins v. Williams, 9th

Dist. Summit No. 22162, 2004-Ohio-7171, ¶ 16.

       {¶24} Despite J.P.’s suggestion, M.H. was not required to submit a proposed answer

along with her motion requesting an extension of time to plead. Furthermore, his contention that

M.H. made no attempt to demonstrate excusable neglect is flatly contradicted by the record. In

her motion, M.H. requested an extension of thirty days to file a pleading or motion in response to

the complaint. The motion informed the trial court that

       [M.H.] is a single mother who had to go to [c]ourt to get a restraining order
       against [J.P.] and his brother. Subsequent to being granted that [protection o]rder,
       [J.P.] filed an appeal. [M.H.] had to retain the assistance of a lawyer in that
       matter. The grounds for this motion are that [M.H.] does not yet have the funds to
       retain a lawyer for this related [c]omplaint but expects to be able to earn the
       necessary funds over the next month.

J.P. argues that M.H.’s failure to timely plead shows a “deliberate disregard” for the judicial

process and for his rights, and asserts that her “excuse was transparently specious[.]” However,

the record does not support J.P.’s interpretation of the facts and circumstances surrounding
                                                 9


M.H.’s delay of one day in filing the motion for an extension, and J.P. has not established a valid

basis for his claim that M.H.’s conduct amounts to inexcusable neglect. Therefore, this Court

does not agree that the trial court abused its discretion by granting M.H.’s motion and allowing

the extension of time to respond to the complaint.

       {¶25} Because J.P. failed to demonstrate error in the trial court’s decision to grant the

extension to M.H., his arguments alleging error in the trial court’s rejection of his motions to

reconsider and motion to strike also fail. More significantly, because M.H. had leave until April

7, 2016, to respond to the complaint, J.P.’s March 15, 2016 motion for default judgment was

premature. Consequently, the trial court did not abuse its discretion by denying the motion for

default judgment.

       {¶26} J.P. raises several additional challenges to decisions of the trial court within this

assignment of error. He contests the stay of the proceedings imposed by the trial court, the

failure to grant his second motion for default judgment filed August 29, 2016, and the trial

court’s denial of his motion to strike M.H.’s answer. J.P. asserts that these other alleged errors

“must necessarily be discussed together in a single assignment of error, because they all reflect

the basic error of the trial court in refusing to grant [J.P.]’s motion for default judgment.”

However, there is no significant correlation between the denial of the initial motion for default

judgment and the additional issues J.P. attempts to raise.

       {¶27} Pursuant to App.R. 12(A)(2), this Court “may disregard an assignment of error

presented for review if the party raising it * * * fails to argue the assignment separately in the

brief, as required under App.R. 16(A).” As appellant, J.P. “bears the burden of affirmatively

demonstrating the error on appeal,” substantiating his arguments in support of alleged errors, and

to comply with the applicable rules. Ohio Edison Co. v. Williams, 9th Dist. Summit No. 23530,
                                                10


2007-Ohio-5028, ¶ 10. J.P. failed to separately argue and to properly support these additional

alleged errors, and this Court declines to address the merits of such claims.

       {¶28} J.P.’s second assignment of error is overruled.

                                    Assignment of Error III

       The trial court erred and abused discretion to the prejudice of [J.P.] in
       entering judgment upon jury verdict against [J.P.], because the trial court
       erred and abused discretion to the prejudice of [J.P.] in refusing to enforce
       [J.P.]’s trial subpoena to [T.H.].

       {¶29} J.P. argues that he issued a valid subpoena to a witness for trial and that, despite

actual or constructive notice, the witness failed to appear. He contends that the trial court erred

by refusing to enforce the subpoena, resulting in prejudice to J.P. in presenting his case to the

jury. We disagree.

       {¶30} J.P.’s argument implicates Civ.R. 45(B), which provides that

       [s]ervice of a subpoena upon a person named therein shall be made by delivering
       a copy of the subpoena to the person, by reading it to him or her in person, by
       leaving it at the person’s usual place of residence, or by placing a sealed envelope
       containing the subpoena in the United States mail as certified or express mail
       return receipt requested with instructions to the delivering postal authority to
       show to whom delivered, date of delivery and address where delivered * * *.”

This Court generally applies an abuse of discretion standard of review in the appeal of a

discovery ruling, including a trial court’s decision to quash or to enforce a subpoena. McDade v.

Morris, 9th Dist. Summit No. 27454, 2015-Ohio-4670, ¶ 8.              However, if a trial court’s

discretionary decision is based on a specific construction of law, an appellate court may

substitute its judgment for that of the trial court and a de novo standard is applied. Petro v. N.

Coast Villas Ltd., 136 Ohio App.3d 93, 96 (9th Dist.2000).
                                                 11


       {¶31} At trial, J.P. indicated his intention to call M.H.’s father, [T.H.], as a witness.

However, T.H., who is not a party to this case, was not present in court. J.P. asserted that T.H.’s

appearance was required because he had been served with a subpoena.

       {¶32} Counsel for M.H. advised the trial court that “[T.H.] was not subpoenaed.” The

trial court sought clarification of the issue and, upon inquiry, J.P. admitted that he did not serve

the subpoena on T.H. directly, but that he instead issued the subpoena for T.H. by serving it on

the attorney who, he believed, represented T.H. in another matter. The trial judge explained to

J.P. that he did not believe the subpoena was properly served on T.H. and, consequently, there

was no obligation for T.H. to appear or to attempt to quash the defective subpoena. In light of

J.P.’s insistence that case law existed to show that his service of the subpoena was sufficient, the

trial court afforded him the opportunity to present the trial court with authority to support his

position.

       {¶33} When the trial resumed the following morning, J.P. was unable to provide the trial

court with any authority to establish his claim that a subpoena can be served on attorneys who

represent the person named therein in a capacity unrelated to the subpoena. The trial court

informed J.P. that its own research indicated that the subpoena cannot be served on counsel.

Accordingly, the trial court confirmed its ruling that the attempt to serve the subpoena on T.H. in

that manner was insufficient.

       {¶34} In his arguments on appeal, J.P. has not presented this Court with any authority to

demonstrate error in the trial court’s finding that the subpoena he attempted to serve on T.H. was

defective. In his merit brief, J.P. cites to Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio

St.3d 14 (1988) as the authority he “alluded to” before the trial court, though he failed to actually

present the case to the trial court. Nevertheless, in Denovchek, the Supreme Court of Ohio stated
                                                12


“[w]here a subpoena is left at the business location or place of employment of a witness and

where that witness has actual knowledge of the subpoena, a valid service of summons has been

completed.” Id. at 15. J.P. does not contend that the subpoena was left at T.H.’s business

location or place of employment, nor does he aver that T.H. himself had actual—as opposed to

constructive—knowledge of the subpoena.         J.P. has failed to explain how the holding in

Denovchek might validate the manner in which he attempted to serve the subpoena on T.H..

        {¶35} Upon review, we find no support in Civ.R. 45(B) for effecting proper service of a

subpoena on a non-party to appear as a witness at trial by serving the subpoena on an attorney

who is believed to represent that individual in a capacity unrelated to his role as a potential

witness in the present matter. Because we conclude that the trial court did not err in finding that

the subpoena was procedurally defective, we further conclude that J.P.’s argument that the trial

court erred by refusing to enforce the defective subpoena is without merit. Therefore, his third

assignment of error is overruled.

                                    Assignment of Error IV

        The trial court erred and abused discretion to the prejudice of [J.P.] in
        entering judgment upon jury verdict against [J.P.], because the trial court
        erred and abused discretion to the prejudice of [J.P.] in allowing [M.H.] to
        call [J.B.] as a witness—rebuttal or otherwise—in her case.

        {¶36} In the fourth assignment of error, J.P. argues that the trial court erred to his

prejudice when it allowed M.H. to call [J.B.] as a witness to impeach the credibility of J.P. and

rebut testimony he gave during trial. He contends that J.B., who was not previously disclosed as

a potential witness, gave “extremely damaging” and “inflammatory” testimony. We disagree

that the trial court erred.

        {¶37} Following J.P.’s testimony in his case-in-chief, M.H. informed the trial court of

her intention to call J.B., a previously undisclosed witness, for the sole purpose of challenging
                                                 13


J.P.’s credibility. Specifically, she intended to have this witness testify that J.P. had previously

videotaped him, thereby contradicting statements made by J.P. during his testimony. Counsel for

M.H. confirmed that he had “no interest in offering anything other than questions to challenge

[J.P.’s] credibility.”

        {¶38} Over J.P.’s objection, the trial court ruled that it would permit J.B. to testify for

the limited purpose of rebuttal. J.P. argued that the ruling was unfair because, although M.H.

knew about J.B., she did not list him as a potential witness prior to trial. The trial court

explained that M.H.’s position was that “the necessity for [J.B.]’s testimony did not arise until

[J.P.] testified with respect to showing [a] particular video.”

        {¶39} During the brief direct examination, J.B. testified that J.P. recorded video of J.B.,

his wife, his adult stepdaughter, and his three-year-old grandson. J.B. also testified that J.P.’s

brother had filmed J.B. at a grocery store.         He further testified that he believed he had

“observe[d] [J.P.] point a camera” at a woman who lived “next door to [T.H. ad M.H.].”

        {¶40} “A trial court’s decision on whether to allow rebuttal evidence will not be

reversed absent an abuse of discretion.” Ponder v. Kamienski, 9th Dist. Summit No. 23270,

2007-Ohio-5035, ¶ 24. The testimony of a rebuttal witness is relevant to “explain, refute or

disprove new facts introduced into evidence by the adverse party;” and the scope of the

testimony is limited to such evidence. State v. McNeill, 83 Ohio St.3d 438, 446 (1998). Where a

witness was not identified prior to trial, the trial court may exclude the testimony of the

undisclosed witness “only when the failure to disclose the witness caused unfair surprise with

resulting prejudice to the opposing party.” Trajcevski v. Bell, 115 Ohio App.3d 289, 294 (9th

Dist.1996). We also apply the abuse of discretion standard to review the trial court’s decision as

to whether the undisclosed witness is allowed to testify. See id.
                                                14


       {¶41} On appeal, J.P. argues that “[M.H.]’s failure prior to trial to disclose [J.B.] as a

trial witness was willful non-compliance.” It is J.P.’s contention that J.B. was not a proper

rebuttal witness. He asserts that J.B. could not have been a rebuttal witness because M.H. had

contacted him sometime prior to trial to see if he would be willing to testify. Additionally,

although J.P. acknowledges his testimony stating “that he did not recall videoing any neighbors

in the development” other than the family of M.H., he argues that J.B.’s testimony did not

actually rebut any of J.P.’s testimony. Alternatively, he argues that J.B.’s testimony was an

“unfair surprise” and “unduly prejudicial.”

       {¶42} Initially we note that the complete transcript of the trial is not in the appellate

record. However, the portions of the transcript that are before this Court do not support J.P.’s

contentions in this assignment of error. To the extent that J.P. claims that J.B.’s testimony was

an unfair surprise, or that M.H. sought any information beyond the scope of rebuttal evidence,

the record reflects that J.P. did not object to any particular questions asked of J.B. or any

statements made during his testimony. Furthermore, J.P. acknowledges that he was aware of the

contents of his video recording of J.B. and his family, which contradicts the claim that he was

“unfairly surprised” by such testimony. In his merit brief, J.P. cites to portions of the transcript

where he claims that J.B. tended to “falsely paint” J.P. and his brother as stalkers and made

“scandalous assertions” that J.P. had no opportunity to dispute. What J.P. fails to mention in his

brief is that he elicited this allegedly damaging and inflammatory testimony from J.B. during his

own cross-examination of the witness.

       {¶43} Upon our review of the record, we conclude that J.P. has not substantiated his

claims that M.H. intentionally failed to identify J.B. as a witness or that the trial court erred in

permitting his testimony. The trial court allowed J.B.’s testimony for the limited purpose of
                                                15


refuting claims made by J.P. during his testimony, and J.P. has failed to demonstrate that he was

unfairly surprised or prejudiced by this testimony in any way. Therefore, we must conclude that

the trial court did not abuse its discretion in permitting the testimony of J.B.. J.P.’s fourth

assignment of error is overruled.

                                                III.

       {¶44} J.P.’s four assignments of error are overruled.        The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file 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.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                       16




CALLAHAN, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

J.P., pro se, Appellant.

GERALD WALTON, Attorney at Law, for Appellee.
