[Cite as Erdman v. Williams, 2013-Ohio-980.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DIANA ERDMAN 

 Petitioner-Appellee 

-vsMARK A. WILLIAMS 

 Respondent-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. John W. Wise, J. 

Case No. 2012 AP 08 0054 

 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County 

Common Pleas Court, Case No. 

 2011 PO 09 0956 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 13, 2013 

APPEARANCES: 

For Petitioner-Appellee For Respondent-Appellant 

DOUGLAS JACKSON MARK A. WILLIAMS, PRO SE 

214 N. Dawson St. 484 2nd Dr. NE. 

Uhrichsville, Ohio 44683 New Philadelphia, Ohio 44663 
Tuscarawas County, Case No. 2012 AP 08 0054 2

Hoffman, J. 

{¶1} Respondent-appellant Mark A. Williams appeals the August 8, 2012 

Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which 

approved and adopted the magistrate’s May 23, 2012 decision, overruling his motion to 

dismiss. Petitioner-appellee is Diana Erdman.1

STATEMENT OF THE CASE AND FACTS 

{¶2} Appellant is the biological father of three of Appellee’s children. On 

September 9, 2011, Appellee filed a Complaint for Civil Stalking Protection Order. The 

trial court granted an ex parte order and scheduled the matter for hearing on September 

23, 2011. Appellant filed a pro se response on September 22, 2011. On the day of the 

scheduled hearing, the magistrate filed a notice continuing the hearing until October 7, 

2011. Appellee subsequently requested a continuance of the October 7, 2011 hearing 

date, which the magistrate granted. 

{¶3} The hearing commenced on October 14, 2011, and concluded on October 

21, 2011. After hearing the evidence, the magistrate issued a civil stalking protection 

order. The order included Civ. R. 54(B) language. Appellant filed objections to the 

magistrate’s decision on November 7, 2011. Via Judgment Entry filed December 6, 

2011, the trial court denied Appellant’s objections. 

{¶4} On March 14, 2012, Appellant filed a Notice of Appeal of the December 6, 

2011 Judgment Entry. Appellant also filed a request for an extension for filing the 

appeal, explaining he was not advised of the time limitation for filing an appeal and the 

 

1

 Appellee has not filed a brief in this matter. 
Tuscarawas County, Case No. 2012 AP 08 0054 3

attorney he had hired subsequent to the hearing did not file an appeal. There is nothing 

in the record reflecting any ruling or disposition relative to this filing. 

{¶5} On April 9, 2012, Appellant filed a motion to dismiss with the trial court, 

which the magistrate overruled on May 23, 2012. On May 25, 2012, Appellant filed 

additional objections to the magistrate’s decision. Appellee filed a response, asserting 

the filing was improper and should be stricken; the allegations contained in Appellant’s 

objections were baseless and inaccurate; and the objections were untimely filed. Via 

Judgment Entry filed August 8, 2012, the trial court approved and adopted the 

magistrate’s May 23, 2012 decision. Appellant filed a Notice of Appeal on August 22, 

2012. Appellant filed a Request for Electronic Record of Courtroom Proceeding. A CD 

of the hearing was delivered to the Clerk of Courts on September 27, 2012. 

{¶6} It is from the trial court’s August 8, 2012 Judgment Entry Appellant 

appeals, raising the following assignments of error: 

{¶7} “I. THE COURT ERRED WHEN IT ABUSED ITS DISCRETION IN 

ACKNOWLEDGING THE EVIDENCE AS BEING SUFFICIENT TO SUPPORT CLAIMS 

OF STALKING. 

{¶8} “II. WHATEVER THE TRIAL COURTS RULING WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE AS THERE IS NO EVIDENCE OR 

STATEMENTS OF BEHAVIOR THAT CONSTITUTES STALKING.” 

I, II 

{¶9} Initially, we note Appellant's brief does not comply with the rules for a 

proper brief as set forth in App.R. 16(A). Although Appellant’s brief includes a statement 

of the assignments of error for review, such does not include a reference to the place in 
Tuscarawas County, Case No. 2012 AP 08 0054 4

the record where each error is reflected, in violation of App.R. 16(A)(3). Further, 

Appellant does not support his arguments on appeal with references to the record, legal 

citations, or other authority, in violation of App. R. 16(A)(7). Compliance with the rule is 

mandatory. Appellant’s failure to comply with App. R. 16 is tantamount to failing to file a 

brief in this matter. Such deficiencies permit this Court to dismiss Appellant's appeal. 

Notwithstanding the omissions in his brief, in the interests of justice and finality, we elect 

to review the appeal. 

{¶10} Appellant’s brief challenges the trial court’s issuing the civil stalking 

protection order as against the manifest weight and sufficiency of the evidence. 

Appellant’s Notice of Appeal indicates the appeal is being taken from the trial court’s 

August 8, 2012 Judgment Entry, which approved and adopted the magistrate’s May 23, 

2012 decision overruling his motion to dismiss. The trial court approved and adopted 

the magistrate’s decision to issue the protection order via Judgment Entry filed 

December 6, 2011. This judgment entry was a final, appealable order. See R.C. 

2903.214(G) (“An order issued under this section, other than an ex parte order, that 

grants a protection order, or that refuses to grant a protection order, is a final, 

appealable order”). 

{¶11} Accordingly, we find Appellant is barred from raising his arguments under 

the doctrine of res judciata. Appellant's arguments as presented herein could have or 

should have been raised on direct appeal of the trial court's December 6, 2011 

Judgment Entry. A motion to dismiss or motion to vacate cannot be used as a 

substitute for a direct appeal. Key v. Mitchell, 81 Ohio St.3d 89, 689 N.E.2d 548, 1998–
Tuscarawas County, Case No. 2012 AP 08 0054 5

Ohio–643; Bobardier Capital, Inc. v. W.W. Cycles, Inc. 155 Ohio App.3d 484, 801 

N.E.2d 900, 2003–Ohio–6716. 

{¶12} Assuming, arguendo, Appellant was not barred by the doctrine of res 

judicata, we would still affirm the judgment of the trial court. Appellant failed to provide 

this Court with a transcript of the October 14 and 21, 2011 hearing. Appellant bears the 

burden of showing error by reference to matters in the record. Knapp v. Edwards Lab.

(1980), 61 Ohio St.2d 197, 400 N.E.2d 384; State v. Prince (1991), 71 Ohio App.3d 694, 

595 N.E.2d 376. An appellate court can reach its decision only upon facts which are 

adduced in the trial court's proceeding and cannot base its decision on allegations 

founded upon facts from outside of the record. Merillat v. Fulton Cty. Bd. Of Commrs.

(1991), 73 Ohio App.3d 459, 597 N.E.2d 1124. 

{¶13} When portions of the transcript necessary for resolution of assigned errors 

are omitted from the record, the reviewing court has nothing to pass upon and thus, as 

to those assigned errors, the court has no choice but to presume the validity of the 

lower court's proceedings, and affirm.” Knapp, supra. 

{¶14} Because Appellant failed to provide this Court with a transcript of the 

hearing, we may presume the validity of the lower court's proceedings and affirm. 

{¶15} Appellant’s first and second assignments of error are overruled. 
Tuscarawas County, Case No. 2012 AP 08 0054 6

{¶16} The judgment of the Tuscarawas County Court of Common Pleas is 

affirmed. 

By: Hoffman, J. 

Gwin, P.J. and 

Wise, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 
Tuscarawas County, Case No. 2012 AP 08 0054 7

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

DIANA ERDMAN : 

 : 

 Petitioner-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

MARK A. WILLIAMS : 

 : 

 Respondent-Appellant : Case No. 2012 AP 08 0054 

 

 For the reasons stated in our accompanying Opinion, the judgment of the 

Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ W. Scott Gwin _____________________

 HON. W. SCOTT GWIN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE