[Cite as Giesberger v. Alliance Police Dept.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

DALE GIESBERGER : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2011CA00070 ALLIANCE POLICE DEPARTMENT : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CV03077

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 7, 2011

APPEARANCES:

For Appellant: For Appellee:

DALE GIESBERGER, pro se NICK C. TOMINO 8208 Bayard Rd. 803 Washington St., Suite 200 Minerva, OH 44657 Medina, OH 44256 [Cite as Giesberger v. Alliance Police Dept.,

.]

Delaney, J.

{¶1} Plaintiff-Appellant Dale Giesberger appeals the October 14, 2010 decision

of the Stark County Court of Common Pleas granting the motion for judgment on the

pleadings of Defendant-Appellee Alliance Police Department.

{¶2} Appellant filed his pro se complaint with the Stark County Court of

Common Pleas on August 20, 2010. His complaint named the Alliance Police

Department as defendant and stated only the following: “(1) VIOLATED

CONSTITUTIONAL RIGHTS, (2) ILLEGALLY TOWED AND IMPOUNDED VEHICLE,

(3) ILLEGALLY INCARCERATED PLAINTIFF, (4) FILING FALSE INFORMATION, (5)

CAUSED EMOTIONAL DISTRESS TO PLAINTIFF, AND DEFAMED PLAINTIFF’S

REPUTATION.”

{¶3} Appellee simultaneously filed its answer and a motion for judgment on the

pleadings under Civ.R. 12(C) on September 28, 2010. In its motion, Appellee argued it

was entitled to statutory immunity against Appellant’s claims because the claims arose

out of the performance of a governmental function. Appellant did not respond to the

motion.

{¶4} The trial court granted the motion for judgment on the pleadings on

October 14, 2010.

{¶5} It is from this judgment Appellant now appeals.

{¶6} At the outset, we note Appellant’s brief fails to comply with the Rules of

Appellate Procedure. Appellant’s brief consists of a recitation of the facts and

argument. Appellate Rule 16 states: Stark County, Case No. 2011CA00070 3

{¶7} “The appellant shall include in its brief, under the headings and in the

order indicated, all of the following:

{¶8} “(1) A table of contents, with page references.

{¶9} “(2) A table of cases alphabetically arranged, statutes, and other

authorities cited, with references to the pages of the brief where cited.

{¶10} “(3) A statement of the assignments of error presented for review, with

reference to the place in the record where each error is reflected.

{¶11} “(4) A statement of the issues presented for review, with references to the

assignments of error to which each issue relates.

{¶12} “(5) A statement of the case briefly describing the nature of the case, the

course of proceedings, and the disposition in the court below.

{¶13} “(6) A statement of facts relevant to the assignments of error presented for

review, with appropriate references to the record in accordance with division (D) of this

rule.

{¶14} “(7) An argument containing the contentions of the appellant with respect

to each assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which

appellant relies. The argument may be preceded by a summary.

{¶15} “(8) A conclusion briefly stating the precise relief sought.”

{¶16} Failure to meet the requirements of Rule 16 is often grounds for dismissal

of the appeal. See Pahoundis v. Beamer, Coshocton App. No. 09CA017, 2009-Ohio-

6881. However, in the interest of justice, we will address Appellant’s appeal. Stark County, Case No. 2011CA00070 4

{¶17} This matter comes to us upon a motion for judgment on the pleadings

pursuant to Civ.R. 12(C). As stated by this Court in Estate of Heath v. Grange Mutual

Casualty Company, Delaware App. No. 02CAE05023,

, ¶ 8-9:

{¶18} “The standard of review of the grant of a motion for judgment on the

Pleadings is the same as the standard of review for a Civ. R. 12(B)(6) Motion. As the

reviewing court, our review of a dismissal of a complaint based upon a judgment on the

pleadings requires us to independently review the complaint and determine if the

dismissal was appropriate. Rich v. Erie County Department of Human Resources

(1995),

,

. Judgment on the pleadings may be

granted where no material factual issue exists. However, it is axiomatic that a motion

for judgment on the pleadings is restricted solely to the allegations contained in those

pleadings. Flanagan v. Williams (1993),

,

. See,

also, Nelson v. Pleasant (1991),

,

; Barilatz v.

Luke (Dec. 7, 1995), Cuyahoga App. No. 68304, unreported,

.

{¶19} “A reviewing court need not defer to the trial court's decision in such

cases.

A motion for a judgment on the pleadings, pursuant to Civ. R. 12(C), presents

only questions of law. Peterson v. Teodosio (1973),

,

. The determination of a motion under Civ. R. 12(C) is restricted solely to

the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in her favor. Id.”

{¶20} Appellant claims arise from his interactions and subsequent arrest by the

Alliance Police Department on August 22, 2009. Appellee argues it is entitled to Stark County, Case No. 2011CA00070 5

statutory immunity under R.C. Chapter 2744, the Political Subdivision Tort Liability Act.

When Appellant was arrested by an Alliance police officer on August 22, 2009, Appellee

was engaged in the governmental function of the provision of police services or

protection.

{¶21} Based on the paucity of Appellant’s complaint and his failure to respond to

the motion for judgment on the pleadings, we reach the same conclusion as the trial

court that Appellant can prove no set of facts in support of his claim that would entitle

him to relief. We find the trial court was correct in granting Appellee’s motion for

judgment on the pleadings.

{¶22} Appellant’s appeal is overruled.

{¶23} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Farmer, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. SHEILA G. FARMER [Cite as Giesberger v. Alliance Police Dept.,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

DALE GIESBERGER : : : Plaintiff-Appellant : : -vs- : JUDGMENT ENTRY : ALLIANCE POLICE DEPARTMENT : : : Case No. 2011CA00070 Defendant-Appellee :

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

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. SHEILA G. FARMER