The opinion
[Cite as Vander Kam v. Brown, 2014-Ohio-632.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
ROBERT VANDER KAM :
Plaintiff-Appellant : C.A. CASE NO. 25473
v. : T.C. NO. 12CV4274
JAMES BROWN, et al. : (Civil appeal from
Common Pleas Court)
Defendants-Appellees :
:
..........
OPINION
Rendered on the 21st day of February , 2014.
..........
ROBERT VANDER KAM, P. O. Box 13824, Dayton, Ohio 45413
Plaintiff-Appellant
JAMES BROWN, 4832 Woodland Hills Blvd., Dayton, Ohio 45414
Defendant-Appellee
RENEE JONES, 4832 Woodland Hills Blvd., Dayton, Ohio 45414
Defendant-Appellee
..........
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of
Robert
Vander Kam, filed November 14, 2012. No responsive brief was filed. Vander Kam
appeals from the October 1, 2012 decision of the trial court which overruled his pro se
objections to the magistrate’s decision; the magistrate denied Vander Kam’s petitions for
civil protection orders against James Brown, in case no. 2012 CV 4273, and Renee Jones,
in case no. 2012 CV 4274. This appeal is limited to case no. 2012 CV 4274. We hereby
affirm the decision of the trial court.
{¶ 2} Vander Kam filed his petitions on June 12, 2012, and no ex parte orders
were granted. A hearing was held on July 13, 2012. In her July 25, 2012 decision, the
magistrate initially noted that Vander Kam had also filed “a Petition against the organization
S.O.R.N., the division of the Montgomery County Sheriff’s Office which provides Sexual
Offender Notifications and Registry. * * * Petitioner was advised at the ex parte hearing that
the Petition was improper as it was not filed against an individual and would be dismissed.”
{¶ 3} The magistrate’s decision provides that the parties are neighbors, and that
Jones and Brown live together. The magistrate noted that Vander Kam “gets upset when
Respondents bring up his past,” and noted that he “has been convicted of manslaughter and
sex offenses and is currently classified as a sexual predator.” The magistrate determined that
“much of [Vander Kam’s] testimony was incomprehensible. With what was understood,
[Vander Kam], at best, has described ‘bad neighbors.’ There was no testimony that either
Respondent has said or done anything that would be reasonable to conclude was threatening
toward [Vander Kam].”
{¶ 4} Vander Kam filed his handwritten objections on August 1, 2012. We note
that his filing is captioned “Motion of Continuance, Re-Opening,” and that “Continuance” is
3
crossed out, with “objection” written above it. The filing states that Vander Kam “seeks
remedy of previously scheduled case(s),” and it includes multiple attachments, including a
“sworn affidavit” that is not notarized, a copy of a receipt, in Vander Kam’s name, from
Grandview Medical Center Emergency Department, dated July 13, 2012, setting forth
diagnoses of “head contusion and contusion of knee,” a bill for an emergency department
visit, in Vander Kam’s name, in the amount of $781.00, and two subpoenas in Vander
Kam’s name from the Vandalia Municipal Court, Criminal Division, regarding matters
entitled “State of Ohio vs. Brown, Wilbur J.” and “State of Ohio vs. Brown, James E.”
Vander Kam also filed, on August 1, 2012, an “Amended Affidavit for Objection & Motion
filed 8-1-12,” which is notarized.
{¶ 5} On September 6, 2012, Vander Kam filed a 49-page “Motion/ Appendum -
Addendum,” which includes multiple attachments. Vander Kam added the names Wilbur J.
Brown Jr., Silas King and “unknown” in the caption of the document as respondents. He
attached a bill in his name from Kettering Network Radiologists, Inc., criminal case
information printouts involving James Brown and Wilbur Brown, medical records reflecting
treatment that Vander Kam received for an assault that occurred on July 13, 2012, and arrest
records from the Montgomery County Sheriff’s Office for Wilbur Brown Jr. and James
Brown based upon an assault on Vander Kam on July 13, 2012. Vander Kam requested an
evidentiary hearing.
{¶ 6} We note that the trial court issued its decision in case no. 2012 CV 4273 on
September 18, 2012, and an identical decision in case no. 2012 CV 4274 on October 1,
2012. The trial court noted that Vander Kam’s “initial filing of objections offers essentially
4
no argument, instead seeming to rely on documents attached thereto.” The court noted as
follows:
* * * Although [Vander Kam’s] hand-written pro se filings are
somewhat difficult to follow, the Court construes the gist of [Vander Kam’s]
objections to be that this Court should overrule the Magistrate’s prior
decision denying [Vander Kam’s] requests for protection orders against these
Respondents, and instead enter such protection orders, based upon an assault
on Petitioner by Respondent Brown and other non-parties to these actions that
occurred after the hearing held by Magistrate Wuebben on [Vander Kam’s]
petitions.
{¶ 7} After noting that Vander Kam failed to file a transcript of the proceedings
before the magistrate, or an affidavit of the evidence, pursuant to Civ.R. 53(D)(3)(b)(iii), the
court determined as follows:
* * * In reaching [her] decision, Magistrate Wuebben of necessity was
limited to considering the evidence presented to her at the July 13, 2012
hearing. Because the alleged assault on [Vander Kam] by Respondent
Brown and others apparently did not occur until later that same night * * * ,
no evidence of that assault was before Magistrate Wuebben when she
concluded that the record contained no evidence that either Respondent
“ha[d] said or done anything” that could be construed as “threatening toward”
[Vander Kam]. * * * In reviewing the Magistrate’s conclusion to that effect,
this Court is likewise constrained to considering only the evidence that was
5
available to Magistrate Wuebben at that time. * * * Nothing raised in [Vander
Kam’s] objections or the related supporting documents even suggests that the
evidence actually before Magistrate Wuebben warranted a different result.
Accordingly, this Court lacks any basis for overturning that decision.
While Magistrate Wuebben’s July 25, 2012 Denial of Protection
Order after Full Hearing must be sustained based upon the evidence of
record in that proceeding, however, this Court in affirming that decision is
not holding that evidence arising subsequent to that decision could not or
would not support a different result as to a new request for a civil protection
order under R.C. § 2903.214, or that [Vander Kam] is precluded from
bringing such a petition. * * * *Although no such threat reasonably could be
inferred from the evidence presented at the hearing in this matter * * *,
evidence that a respondent in fact had physically assaulted the complainant
would present a very different factual scenario than that known to Magistrate
Wuebben when she issued her decision.
{¶ 8} On December 4, 2012, this Court ordered Vander Kam to show cause, in
case number 2012-CV-4273, as to why his notice of appeal should not be dismissed for his
failure to timely file his notice of appeal. On December 14, 2012, Vander Kam filed a pro
se “Show Cause Order.” On January 8, 2013, this Court issued a Decision and Entry
noting as follows:
In case no. 12-CV-4273, the clerk entered a notation of service in the
appearance docket on September 18, 2012. Thus, the time for filing a notice
6
of appeal ran from September 18, 2012 through October 18, 2012. App.R.
4(A)’s time requirement is jurisdictional and cannot be extended. * * *
Because [Vander Kam] has failed to timely file his notice of appeal in
case no. 12-CV-4273, this Court lacks subject matter jurisdiction to proceed.
The above captioned appeal, with respect only to case no. 12-CV-4273, is
DISMISSED.
However, in case no. 12-CV-4274, the clerk did not enter a notation
of service of the order in that appearance docket. Therefore, the time for
filing a notice of appeal, pursuant to App.R. 4(A), never began to run. * * *
Accordingly, the notice of appeal filed on November 14, 2012 is a
timely appeal of the October 1, 2012 order of the trial court in case no.
12-CV-4274. This matter shall proceed with respect to case no.
12-CV-4274.
{¶ 9} On July 9, 2013, this Court ordered Vander Kam to either cause the record
to be prepared and filed, or show cause why the matter should not be dismissed for failure to
timely prepare and file the record. On July 19, 2013, Vander Kam filed a pro se “Show
Cause Order,” in which he appears to assert his indigence and refers to “Numberious (sic)
request for that Trial Transcript.” On August 7, 2013, this Court issued a decision that
provides in part:
Despite Vander Kam’s indication on his Civil Docket Statement that a
full transcript of proceedings will comprise the record in this appeal, no
transcript was filed in the underlying case and reviewed by the trial court.
7
Consequently, this Court’s review on appeal is limited to whether the trial
court correctly applied the law to the facts as set forth in the magistrate’s
decision.
Accordingly, the record in the above-captioned appeal is complete
without a transcript of proceedings. * * * Insofar as Vander Kam argues that
he attempted to obtain a transcript from the trial court to no avail, he may
assign such argument as error in his Appellant’s Brief.
{¶ 10} We initially note that Vander Kam’s petition was filed pursuant to R.C.
2903.214, which entitles a petitioner to relief if conduct by a respondent constituting
menacing by stalking is established. Menacing by stalking is defined as “engaging in a
pattern of conduct” that “knowingly cause[s] another to believe that the offender will cause
serious physical harm to the other person or cause mental distress to the other person.” R.C.
2903.211(A)(1).
{¶ 11} As this Court has previously noted:
Litigants who choose to proceed pro se are presumed to know the law
and correct procedure, and are held to the same standard as other litigants.
See, e.g., Kilroy v. B.H. Lakeshore Co. (1996), 11 Ohio App.3d 357, 363.
As the Eighth District Court of Appeals aptly noted in Kilroy, a pro se litigant
“cannot expect or demand special treatment from the judge, who is to sit as
an impartial arbiter.” Id. Yocum v. Means, 2d Dist. Darke No. 1576,
2002-Ohio-3803, ¶ 20.
{¶ 12} In submitting his brief, Vander Kam has failed to comply with App.R. 16;
8
he does not set forth specific assignments of error, a statement of the issues, or a statement
of the case for our review. App.R. 16(A)(3),(4), and (5). Vander Kam’s brief provides,
“Sence (sic) there seems no ruling upon petitioner Plaintiff-Appellants initial filing(s), nor to
Motion of Transcript cost& (sic) avialability(sic) copies as per filing with/ to the court-it is
so fourth (sic) Noted and Agian (sic) requested.” He asserts that he “did request
Prosecutorial assistance which still seems ungranted.” His brief provides that he seeks
“monetary relief in form of complete payment of Hospital, Ambulance & X-Ray Billing
(these also previously submitted to said court and thru with/ for documented proofs for such
ruling. (Emphisis (sic) added)[.]” Vander Kam “also seeks (due proceedurial (sic) errors)
pain, suffering loss of remunerated work/employment as well as possibilities sence (sic)13th
July, 2012 - to present (e.g. compensating the time lost due/ in fieling (sic), obtaining and the
continued - HEALTH RELATED or such Physician assissted (sic) necessities (ie. time
consumptive processes/ expenses, and/or procedures(s)).” Vander Kam “preposes (sic) yet
further restraining order agianst (sic) any and all occupants/ visitors or relitives (sic) of said
Defendant-Appellee(s) per original complaint * * * .” He asserts, “Due to continuing
incodences (sic), sence (sic) it is Ms. Renees (Jones) home it is her & sadly (I need state)
obligation/ with choice of acquaintances.”
{¶ 13} Regarding Vander Kam’s failure to provide the trial court with a transcript,
or an affidavit of the evidence before the magistrate, Civ.R. 53(D)(3)(b)(iii) provides:
Objection to magistrate’s factual finding; transcript or affidavit. An
objection to a factual finding, whether or not specifically designated as a
finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a transcript
9
of all the evidence submitted to the magistrate relevant to that finding or an
affidavit of that evidence if a transcript is not available. With leave of court,
alternative technology or manner of reviewing the relevant evidence may be
considered. The objecting party shall file the transcript or affidavit with the
court within thirty days after filing objections unless the court extends the
time in writing for preparation of the transcript or other good cause. If a
party files timely objections prior to the date on which a transcript is
prepared, the party may seek leave of court to supplement the objections.
{¶ 14} To the extent that Vander Kam may be arguing that he requested a transcript,
and that the trial court erred in failing to provide one for him, we note that “‘[c]ivil due
process requires only notice and an opportunity to be heard, not provision of transcripts in
civil proceedings.’ * * * Ohio courts have limited an indigent's right to have transcript fees
taxed as costs to criminal cases, termination of parenting rights, and defense of paternity
cases. * * * .” St. Germaine v. St. Germaine, 2d Dist. Greene No. 2009 CA 28,
2010-Ohio-3656, ¶ 15.
{¶ 15} As the trial court determined, it is clear that Vander Kam’s “objections”
were addressed to an assault that Brown allegedly committed against Vander Kam with other
non-parties after the hearing on Vander Kam’s petitions for civil stalking protection orders
against Jones and Brown. The documents attached to Vander Kam’s filings as proof of the
assault were not before the magistrate, they do not provide a means for the trial court to
“re-open” the matter, and Vander Kam cannot seek “monetary relief” or restraining orders in
the context of this appeal based upon the assault. Having reviewed the record before us,
10
we conclude that the trial court correctly applied the law to the facts as set forth in the
magistrate’s decision. Accordingly, we affirm the judgment of the trial court.
..........
FROELICH, P.J. and FAIN, J., concur.
Copies mailed to:
Robert Vander Kam
James Brown
Renee Jones
Hon. Mary L. Wiseman