Post v. LeopardiPost v. Leopardi
Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, Ohio 44503 (For Respondent-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Appellant, James Leopardi (“Mr. Leopardi“), appeals the Trumbull County Court of Common Pleas’ judgment, which adopted the mаgistrate‘s granting of a civil stalking protection order (“CSPO“) pursuant to
{¶2} Mr. Leopardi raises one assignment of error on appeal. He contends the trial court erred in issuing a CSPO against him because appellees failed to provide evidence of a pattern of conduct, or in the alternative, there was insufficient evidence of a pattern of conduct because the alleged сonduct was too remote in time to fulfil the requirements of a CSPO.
{¶3} We hold that without timely objections filed with the trial court pursuant to
Substantive and Procedural History
{¶4} In March of 2019, appellеes filed a petition for an ex parte CSPO against Mr. Leopardi, alleging that Mr. Leopardi made several threats over the past two years, including threatening to shoot and/or kill several of the appellees. They further alleged that Mr. Leopardi repeatedly drove by their home shouting and gesturing obscenities and recording appellees on his cell phone. An incident that took place several days prior to the filing of the ex parte CSPO petition allegedly caused one of the appellees to go the hospital due to heart difficulties. A police incident report from the Trumbull County Sheriff‘s Deрartment documenting that incident was attached to the CSPO petition.
{¶5} The trial court referred the matter to a magistrate pursuant to
{¶6} The magistrate found that Mr. Leopardi “had multiple threatening and harassing contacts with [appellees] whiсh caused them to believe he would cause physical harm and which caused mental distress.” The magistrate entered a five-year CSPO against Mr. Leopardi. The trial court, pursuant to
{¶7} Mr. Leopardi failed to file any objections to the trial court‘s adoption of the magistrate‘s granting of the CSPO. Instead, Mr. Leopardi filed an appeal with this court.
{¶8} Mr. Leopardi raises one assignment of error on appeal:
{¶9} “The trial court erred plainly in issuing a protection order against James Leopardi.”
Civ.R. 65.1(G) Mandates Timely Filing Objections Before Filing an Appeal
{¶10} A CSPO pursuant to
{¶11} A party may timely file objections to the court‘s adoption, modification, or rejection of the magistrate‘s ruling within 14 days of the trial court‘s filing of the order.
{¶12} The procedures governing the issuance of a CSPO by a magistrate versus other matters referred to a magistrate for determination under
{¶13} Pursuant to the 2016 amendments to
{¶14} We and our sister courts have consistently found that the failure to timely file objections to the trial court‘s adoption of the magistrate‘s ruling is fatal to the appeal.
{¶15} In Jones v. Fowler, 11th Dist. Portage No. 2018-P-0083, 2019-Ohio-2096, we reviewed a denial of a motion for relief from judgmеnt and noted that ”
{¶16} In Mr. Leopardi‘s case, the only judgment on appeal is the trial court‘s adoption of the magistrate‘s decision granting a CSPO. Many of our sister districts facing similar рrocedural facts have determined that the appeal must be dismissed for lack of jurisdiction.
{¶17} The Tenth District found in [E.E.B.] v. [W.S.], 10th Dist. Franklin No. 19AP-363, 2020-Ohio-765, that the 2016 amendment was specifically made “to require that a party must file objections prior to filing an appeal from a trial court‘s otherwise appealable adoption, modification, or rejеctions of a magistrate‘s ruling.” Id. at ¶5, citing 2016 Staff Note,
{¶18} In reaching this same conclusion, the Fifth District in M.K. v. A.C.K., 5th Dist. Fairfield No. 2019 CA 00023, 2020-Ohio-400, declined to address the merits and dismissed the appellant‘s appeal, holding that without timely filed objections under
{¶19} Similarly, in J.S. v. D.E., 7th Dist. Mahoning No. 17 MA 0032, 2017-Ohio-7507, the Seventh District dismissed an appeal where written objections were not timely filed. Id. at ¶17-22. The Seventh District again dismissed an appeal in K.U. v. M.S., 7th Dist. Mahoning No. 16 MA 0165, 2017-Ohio-8029, and stated that without objections filed, an appellate court has no jurisdiction. Id. at ¶17-18.
{¶20} In A.S. v. D.S., 9th Dist. Medina No. 16CA0080–M, 2017-Ohio-7782, the Ninth District dismissed an appeal of a CPO without addressing the merits pursuant to
{¶21} The Sixth District did the same in Hetrick v. Lockwood, 6th Dist. Sandusky No. S-17-014, 2018-Ohio-118, when an appellant failed to file timely objections to the trial court‘s adoption of a magistrate‘s granting of a CSPO after a full hearing. Id. at ¶7-8.
{¶22} Likewise, the Third District in Danison v. Blinco, 3d Dist. Crawford No. 3-18-19, 2019-Ohio-2767, held that the failure to file objections to the trial court‘s adoption of the magistrate‘s ruling failed to preserve the appellant‘s argument for appeal. Id. at ¶8-9.
{¶23} In this case, once the trial court adopted the magistrate‘s ruling, notice to file objections were given. Mr. Leopardi did not file objections and instead filed the instant appeal.
{¶24} As an aside, we must also note that Mr. Leopardi attempted to file the hearing transcript on appeal and references it in his brief. Even if we could reach the merits of this appеal and he had correctly filed the transcript, we would not be able to consider it since it was never filed with the trial court below. “A reviewing court cannot аdd matter to the record before it, which was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the nеw matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus.
{¶25} Therefore, we hold that without timely filed objections pursuant to
{¶26} Mr. Leopardi‘s appeal is dismissed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.