[Cite as J.P. v. T.H., 2016-Ohio-243.]


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

J. P.                                                 C.A. No.      14CA010715

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
T. H.                                                 COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   14CV183837

                                  DECISION AND JOURNAL ENTRY

Dated: January 25, 2016



        SCHAFER, Judge.

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

Common Pleas denying his request for a permanent civil stalking protection order against

Respondent-Appellee, T.H. For the reasons set forth below, we affirm.

                                                 I.

        {¶2}     J.P. and T.H. are neighbors in a townhouse development that includes a skate park

located near J.P.’s residence. J.P. has actively been trying to close the skate park due to alleged

“chronic nuisance conditions, including crime[.]” As part of his campaign to shut down the

skate park, J.P. has confronted, videotaped, and called the police on a number of the park’s

patrons.

        {¶3}     J.P. asserts that beginning in the spring of 2014, T.H. “began a campaign of

retaliation” against him due to his opposition to the skate park. According to J.P., this campaign

has included T.H. stalking and harassing him on a variety of occasions. J.P. accused T.H. of
                                                  2


mailing him an anonymous letter that contained derogatory and threatening language. The letter

also instructed J.P. to move out of the neighborhood for the betterment of the community. T.H.

has denied sending the letter and he also disclaimed an interest in the development’s skate park.

       {¶4}    On the evening of June 22, 2014, T.H. was riding his bicycle down the street

towards his home, returning from the development’s community swimming pool. T.H. was

forced to pass J.P.’s residence in order to get to his own home. As T.H. passed J.P.’s residence,

J.P. yelled out that he was not intimidated by T.H. A physical altercation then ensued. J.P.

claims that T.H. came onto his driveway, knocked a video camera out of his hand, and struck

him in the head. Alternatively, T.H. and another neighbor who witnessed the altercation both

assert that J.P. approached T.H. near the street and slapped him numerous times. It is undisputed

that J.P. subsequently withdrew a firearm that had been concealed on his person and briefly

aimed it at T.H. Upon seeing the firearm, T.H. and the neighbor immediately retreated and

called the police. As a result of this altercation, the police placed T.H. under arrest.

       {¶5}    The next day, J.P. petitioned for and received an ex parte civil protection order. A

magistrate subsequently held a two-day evidentiary hearing on J.P.’s petition.             T.H. was

represented by counsel and J.P., an attorney, appeared pro se during both days of the full

evidentiary hearing. Both parties were provided with an opportunity to testify and ask questions

of the other party. Both parties were also given an opportunity to present evidence.

       {¶6}    The magistrate issued a decision denying J.P.’s petition for a permanent

protection order against T.H. The trial court adopted the magistrate’s decision on the same day.

J.P. filed objections to the magistrate’s decision, which the trial court overruled on November 17,

2014. J.P. subsequently filed a Civ.R. 60(B) motion based on new evidence of alleged stalking,
                                                  3


as well as a motion to show cause against T.H. and his witnesses over their allegedly perjured

testimony during the full hearing. The trial court denied both of those motions.

       {¶7}    J.P. now appeals from the trial court’s denial of his petition for a permanent

protection order and raises twelve assignments of error for this Court’s review. To facilitate our

analysis, we elect to address J.P.’s assignments of error out of order.

                                                  II.

                                      Assignment of Error I

       The trial court’s/magistrate’s July 11, 2014, October 7, 2014, and November
       17, 2014 decisions denying, and/or adopting and confirming the magistrate’s
       decision denying, [J.P.] a permanent protection order against [T.H.] were
       erroneous, including for the following reasons.

       {¶8}    In his first assignment of error, J.P. argues that the trial court’s judgments

adopting the magistrate’s decision and overruling his objections thereto were “contrary to law,

and/or arbitrary and unreasonable” because those decisions were “fundamentally erroneous and

defective * * * and contrary to the manifest weight of the evidence and to the law[.]” Moreover,

J.P. contends that the magistrate abused his discretion.

       {¶9}    We note that J.P. has failed to set forth any case law to support his assertion that

the trial court committed error in either adopting the magistrate’s decision or denying his

objections to the magistrate’s decision. See App.R. 16(A)(7). Further, with regard to his first

assignment of error, J.P.’s appellate brief neither develops an argument nor presents any legal

support to buttress his contention that the trial court erred. “An appellant must affirmatively

demonstrate error on appeal and must provide legal arguments that substantiate the alleged

error.” Rosen v. Chesler, 9th Dist. Lorain No. 08CA009419, 2009–Ohio–3163, ¶ 11. “If an

argument exists that can support this assignment of error, it is not this court's duty to root it out.”

Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, * 8 (May 6, 1998). This
                                                    4


Court “will not guess at undeveloped claims on appeal.” State v. Wharton, 9th Dist. Summit No.

23300, 2007–Ohio–1817, ¶ 42. As such, we decline to address his argument.

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

                                     Assignment of Error II

       The trial court did not conduct the required de novo review of the
       magistrate’s decision denying [J.P.] a permanent protection order.

       {¶11}    In his second assignment of error, J.P. argues that the trial court failed to

undertake a de novo review of the magistrate’s decision. Specifically, J.P. contends that the trial

court adopted the magistrate’s decision on the very same day that the magistrate issued his

decision, which was two months before the transcript of the full hearing was available.

According to J.P., the trial court’s decision to adopt the magistrate’s decision could not have

been based on any evidence and thus, his due process rights were violated. We disagree.

       {¶12} The parties appear to disagree on appeal about which rule of civil procedure

applies in this matter as J.P. relies on Civ.R. 65.1 while T.H. cites to Civ.R. 53. But, Civ.R.

65.1(A) provides that the provisions of the rule:

       apply to special statutory proceedings under R.C. 3113.31 * * * providing for * *
       * stalking * * * civil protection orders, [and] 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.

According to these plain terms, we must apply Civ.R. 65.1 in this matter. See M.K. v. J.K., 9th

Dist. Medina No. 13CA0085-M, 2015-Ohio-434, ¶ 6 (“Civ.R. 65.1 governs civil protection

orders.”).

       {¶13} Civ.R. 65.1(F)(3)(c)(ii) authorizes the trial court to adopt a magistrate’s decision

so long as there is “no error of law or other defect on the face of the order.” (Emphasis added.)
                                                  5


This language contemplates that pursuant to Civ.R. 65.1, the trial court need only review the

order itself before deciding whether to adopt, reject, or modify it. Nothing within the language

of Civ.R. 65.1 prohibits a trial court from contemporaneously adopting a magistrate’s decision.

As such, we conclude that the trial court did not err in adopting the magistrate’s decision on the

same day, regardless of the fact that the trial court did not review a transcript of the proceedings

before doing so.

       {¶14} However, we note that J.P. ultimately received a de novo review of the

magistrate’s decision by the trial court. Although he was not required to do so under Civ.R.

65.1, J.P. filed objections and supplemental objections to the magistrate’s decision denying his

petition for a permanent protection order against T.H. The trial court considered and ultimately

overruled J.P.’s objections after a transcript of the full hearing had been made available.

       {¶15} Therefore, J.P.’s second assignment of error is overruled.

                                     Assignment of Error III

       The magistrate and/or the trial court, before the full hearing, had an
       improper ex parte communication – in [T.H.]’s favor and with unknown
       third parties – during which the temporary protection order was amended;
       then failed to give [J.P.] after-the-fact notice of the communication and
       resulting amendment; and then, during the full hearing, refused to disclose to
       [J.P.] the full details of the communication.

       {¶16} In his third assignment of error, J.P. argues that the trial court erred by limiting

the scope of the ex parte protection order after the Avon Lake Police Department informed the

magistrate that the protection order was “unworkable.”            Specifically, J.P. challenges the

propriety of the ex parte communication that resulted in the amendment of his ex parte protection

order. Lastly, J.P. asserts that he had a right to be present at any judicial proceeding concerning

his petition or, at the very least, the right to receive notice that the scope of his protection order

had been altered. We disagree.
                                                 6


       {¶17} After reviewing the record, we determine that J.P. failed to object during the full

hearing either to the magistrate’s amending of the ex parte protection order or to the process by

which it was accomplished. While J.P. said at the full hearing that the court’s actions limiting

the scope of the protection order raised “a little bit of a concern,” he also stated that his concern

was “not directed at [the trial court]” and that he did not “necessarily disagree with the

amendment [to the ex parte protection order].” These statements, in our view, were insufficient

to properly preserve his objection. Thus, J.P. has forfeited all but plain error. See Renacci v.

Evans, 9th Dist. Medina No. 09CA004-M, 2009-Ohio-5154, ¶ 24. While J.P. fashions a plain

error argument in his brief, we note that, “[i]n civil cases, the application of the plain error

doctrine is reserved for the rarest of circumstances.” Id. Since this is not one of the rarest of

circumstances, we determine that the magistrate’s amendment to the ex parte civil protection

order reducing the distance that T.H. was required to stay away from J.P. at all times did not

amount to plain error.

       {¶18} Accordingly, we overrule J.P.’s third assignment of error.

                                     Assignment of Error X

       The magistrate and/or the trial court considered a civil protection order
       against [J.P.] himself, and/or made affirmative findings to that effect, without
       according [J.P.] due process.

       {¶19} In his tenth assignment of error, J.P. argues that the trial court erred by making

“an affirmative finding and holding against him” in its judgment entry adopting the magistrate’s

decision despite the fact that no petition had been filed against him. We disagree with J.P.’s

argument because we determine that the trial court’s entry imposes no restrictions or obligations

upon him.      Rather, the entry “strongly urge[s]” the parties to “cease any and all

communication(s)” with each other and “to make every attempt to respect the other’s rights
                                                 7


particularly due to the fact that they are neighbors in the same residential development.” Based

upon the non-obligatory nature of the statement, the trial court’s entry was not tantamount to a

petition filed against him. J.P.’s argument is not well-taken.

       {¶20} J.P.’s tenth assignment of error is overruled.

                                     Assignment of Error XI

       The trial court’s November 14, 2014 denial of [J.P.]’s October 22, 2014
       verified Rule 60(B) motion1 was erroneous.

       {¶21} In his eleventh assignment of error, J.P. argues that the trial court erred by

denying his Rule 60(B) motion for relief from judgment. We disagree.

       {¶22} “‘A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a

showing of abuse of discretion.’” Wells Fargo Bank, N.A. v. Clucas, 9th Dist. Summit No.

27264, 2015–Ohio–88, ¶ 8, quoting Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). An abuse of

discretion indicates that the trial court's decision was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Reviewing courts may not substitute its

judgment for that of the trial court when applying the abuse of discretion standard. Pons v. Ohio

State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶23} Civ.R. 60(B) provides in relevant part:


       [T]he court may relieve a party * * * from a final judgment * * * for the following
       reasons: * * * (2) newly discovered evidence * * *; (3) fraud * * *,
       misrepresentation or other misconduct of an adverse party; * * * or (5) any other

       1
          J.P filed an initial Civ.R. 60(B) motion on October 8, 2014, wherein he argued that he
was deprived of the opportunity to supplement his objections to the magistrate’s decision after
the transcript of the proceedings had been filed as provided for in Civ.R. 65.1(F)(2)(d)(iv). The
trial court granted J.P.’s Civ.R. 60(B) motion on October 16, 2014. J.P. subsequently filed a
second Civ.R. 60(B) motion on October 22, 2014, which the trial court ultimately denied. J.P.’s
eleventh assignment of error concerns the trial court’s denial of his second Civ.R. 60(B) motion.
                                                 8


       reason justifying relief from the judgment. The motion shall be made within a
       reasonable time, and for reasons (1), (2) and (3) not more than one year after the
       judgment * * * was entered or taken.


The Ohio Supreme Court has held that “[t]o prevail on a motion brought under Civ.R. 60(B), the

movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief

is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) the motion is made within a reasonable time * * *.” GTE Automatic Elec.,

Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. “Civ.R. 60(B)

relief is improper if any one of the foregoing requirements is not satisfied.” State ex rel. Richard

v. Seidner, 76 Ohio St.3d 149, 151 (1996).

       {¶24} Here, J.P.’s Civ.R. 60(B) motion contains so-called “newly-discovered evidence,”

which he believes demonstrates that T.H. engaged in a pattern of menacing by stalking even after

the trial court’s July 11, 2014 decision. J.P.’s motion describes numerous encounters with and

sightings of T.H. and T.H.’s “proxies” following the full hearing on his petition.

       {¶25} “In general, newly discovered evidence has been interpreted to mean facts in

existence at the time of trial of which the aggrieved party was excusably ignorant.” In re S.S.,

9th Dist. Wayne No. 04CA0032, 2004-Ohio-5371, ¶ 13, citing Schwenk v. Schwenk, 2 Ohio

App.3d 250, 253 (8th Dist.1982). Therefore, matters occurring subsequent to an evidentiary

hearing are not considered newly discovered evidence upon which to justify the granting of a

new hearing. See Columbus & S. Ohio Elec. Co. v. Pub. Util. Comm., 10 Ohio St.3d 12, 13–14

(1984) (newly discovered evidence does not include evidence of matters occurring after trial);

see also Bachtel v. Bachtel, 7th Dist. Mahoning No. 03 MA 75, 2004–Ohio–2807, ¶ 46 (newly

discovered evidence cannot be evidence that did not exist prior to trial); Schwenk at 252
                                                  9


(collecting cases determining that there can be no Civ.R. 60(B) relief for evidence which has

only come into existence after a trial has concluded). This limitation is well-grounded in the

basic concept of finality of judgments. “To permit parties to bring up issues and facts that

occurred after the trial would only serve to leave judgments unsettled and open to challenge at

any time.” Hails v. Hails, 11th Dist. Lake No. 92–L–182, 1993 WL 407258, * 1 (Sept. 30,

1993). There must be a reasonable end to litigation. Id. “‘To allow otherwise would mean the

potential perpetual continuation of all trials in derogation of the notion of finality.’” S.S. at ¶ 14,

quoting Fink, Greenbaum, & Wilson, Guide to the Ohio Civil Rules of Procedure, Section 59:14

(2003). As such, because the examples of “newly discovered evidence” cited within J.P.’s

Civ.R. 60(B) motion are of incidents that occurred subsequent to the full hearing, we conclude

that the trial court did not err in denying the motion.

       {¶26} J.P.’s eleventh assignment of error is overruled.

                                      Assignment of Error IV

       The magistrate, during the full hearing, failed to sua sponte continue the full
       hearing due to [J.P.’s] concussion.

                                      Assignment of Error V

       The magistrate, during the full hearing, allowed [T.H.’s] counsel to cross-
       examine [J.P.] on a legal objection, in a harassing and discriminatory
       manner, and on irrelevant matters.

                                      Assignment of Error VI

       The magistrate, during the full hearing, unduly interrupted [J.P.], and,
       separately, prevented [J.P.] from effectively cross-examining [T.H.’s]
       witnesses.

                                     Assignment of Error VII

       The magistrate, during the full hearing, denied [J.P.] direct examination of a
       material witness, denied [J.P.] rebuttal testimony and rebuttal argument,
       and refused to let [J.P.] proffer the excluded testimony/argument.
                                                10



                                    Assignment of Error IX

       The magistrate’s findings and holdings were against the manifest weight of
       the evidence and against the law.

       {¶27} In his fourth, fifth, sixth, seventh, and ninth assignments of error, J.P. takes issue

with numerous rulings that the magistrate made throughout the course of the full evidentiary

hearing. For example, J.P.’s arguments include that the magistrate erred by not sua sponte

continuing the hearing after learning that he was operating under the effects of a concussion, by

allowing T.H. to cross-examine him in a harassing manner and on irrelevant matters, by

interrupting him and preventing him from effectively cross-examine witnesses, and by refusing

to let him offer rebuttal testimony to T.H.’s witnesses’ testimony.

       {¶28} We reject J.P.’s arguments on these points because, when appealing from a trial

court’s order adopting a magistrate’s decision, “[a]ny claim of trial court error must be based

upon the actions of the trial court,” not the magistrate. Citibank v. Masters, 9th Dist. Medina No.

07CA0073-M, 2008-Ohio-1323, ¶ 9, quoting Mealey v. Mealey, 9th Dist. Wayne No.

95CA00093, 1996 WL 233491, * 2 (May 8, 1996). Stated differently, the standards for appellate

review do not apply to the court's acceptance or rejection of the magistrate's findings or proposed

decision. Mealey at * 2. The proper inquiry then is whether the trial court abused its discretion

in overruling J.P.'s objections to the magistrate's decision. However, in these assignments of

error, J.P. does not argue that the trial court abused its discretion in adopting the magistrate’s

decision. As such, these assignments of error are not properly before this Court and we decline

to address them.

       {¶29} J.P.’s fourth, fifth, sixth, seventh, and ninth assignments of error are overruled.
                                                    11


                                     Assignment of Error VIII

        The magistrate and the trial court ignored clear perjury by [T.H.] and his
        witnesses during the full hearing. The magistrate during the hearing itself
        failed to sua sponte strike [T.H.’s] and his witnesses’ entire testimony or to
        otherwise sanction them for their perjury, and the trial court itself post-
        hearing denied [J.P.’s] November 14, 2014 motion to show cause.

        {¶30} In his eighth assignment of error, J.P. contends that the trial court erred by failing

to sua sponte strike T.H. and T.H.’s witnesses’ testimony, or to otherwise sanction them, for

offering perjured testimony during the full hearing. We disagree.

        {¶31} We note that much of J.P.’s argument concentrates on the magistrate’s failure to

either sua sponte strike the witnesses’ alleged perjured testimony or sanction the witnesses for

their alleged false testimony. However, as discussed above, this Court does not review the

actions of magistrates, only trial courts. See Mealey, 1996 WL 233491, at * 2. Thus, because

J.P. has not argued on appeal that the trial court abused its discretion on these points, this

assignment of error is not properly before this Court and we will not address it.

        {¶32} J.P. does argue that the trial court erred by denying his post-hearing motion to

show cause against T.H. and his witnesses for their alleged perjury. However, J.P.’s assignment

of error implicates a question of witness credibility. The trial court, as the trier of fact, was in the

best position to resolve factual questions and weigh the credibility of the witnesses. See State v.

Mills, 62 Ohio St.3d 357, 366 (1992). As such, we decline to substitute our judgment for that of

the trial court in ruling on witness credibility.

        {¶33} J.P.’s eighth assignment of error is therefore overruled.

                                      Assignment of Error XII

        The magistrate’s/trial court’s cumulative errors created a fundamentally
        unfair proceeding.
                                                12


       {¶34} In his twelfth assignment of error, J.P. contends that, viewing all of the trial

court’s errors cumulatively, he was denied of a fair hearing. We disagree.

       {¶35} Under the cumulative error doctrine, a judgment may be reversed if the

cumulative effect of multiple errors deprives a party of his constitutional rights even though,

individually, the errors may not rise to the level of prejudicial error or cause for reversal. See

State v. Garner, 74 Ohio St.3d 49, 64 (1995). However, “the cumulative error doctrine is not

typically employed in civil cases.” See e.g., Stanley v. Ohio State Univ. Med. Ctr., 10th Dist.

Franklin No. 12AP–999, 2013–Ohio–5140, ¶ 124. Consistent with this principle, its application

here is not warranted. We have rejected all of the errors that J.P. has assigned for our review in

this appeal. As such, J.P.’s argument regarding cumulative error is not well-taken.

       {¶36} J.P.’s twelfth assignment of error is overruled.

                                                III.

       {¶37} With all of J.P.’s assignments having been 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
                                                13


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




WHITMORE, P. J.
CONCURS.

MOORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶38} Although I would affirm the decision of the trial court, I would analyze J.P.’s

assignments of error differently than the majority. With specific respect to assignments of error

numbers four through nine, the majority relies upon our case law holding that “[a]ny claim of

trial court error must be based upon the actions of the trial court,” not the actions of the

magistrate. Citibank v. Masters, 9th Dist. Medina No. 07CA0073-M, 2008-Ohio-1323, ¶ 9,

quoting Mealey v. Mealey, 9th Dist. Wayne No. 95CA0093, 1996 WL 233491, *2 (May 8,

1996). I am not convinced that this case law is appropriately applied to proceedings conducted

under Civ.R. 65.1. See Masters at ¶ 9 (reviewing trial court’s action on a magistrate’s decision

under Civ.R. 53), and Mealey at *2. Nonetheless, I would assume without deciding, that the

magistrate’s actions here are appropriately challenged on appeal, and I would overrule J.P.’s

assignments of error on their merits. Accordingly, I concur in the judgment.
                                       14


APPEARANCES:

J. P., pro so, Appellant.

GERALD WALTON, Attorney at Law, for Appellee.
